JUDGMENT (Sikri, J)- These two appeals by special leave are directed against the judgment of the High Court of Allahabad dismissing two second appeals filed by the State of Uttar Pradesh against the respondents, Abdul Khaliq and Sheo Narain Pandey, here in after referred to as the plaintiffs. As a common question of law is involved and the facts are similar, it would be convenient to give facts only in the appeal dealing with Abdul Khaliq 2. Abdul Khaliq was appointed as a process-server in the office of the Sales Tax Officer, Varanasi, in July 1948, and was promoted to the post of Daftri in the same office on November 20, 1948. When he was appointtd, the office in which he was appointed was a temporary office. On May 22 1956. the Government issued a general order on the subject of conversion of temporary posts of ministerial and inferior staff in the Sales Tax Organization into permanent ones. By this order certain temporary posts mentioned in the enclosed list were converted into permanent tones with effect from April 1. 1955. On December 12. 1957, the Assistant Commissioner. Sales Tax, declared certain members of the inferior staff in the circle office, Varanasi, to be permanent in the posts noted against each with effect from April 1. 1958. On October 26. the plaintiff was served with an order of the Deputy Commissioner Sales Tax, terminating his services The relevant part of the order reads as follows: - "The services of the officials whose names are given below should be terminated with effect from the date of service of this order. They should be paid one month s pay in lieu of notice. 1. ............... 2. Shri Sheo Narain Pandey. Accountant, Varanasi Circle, Varanasi. 3. Shri Abdul Khaliq, Daftri, Circle Office, Varanasi. 2. Various representations were made by the plaintiff but they proved fruitless. On May 24, 1958 the plaintiff brought a suit for declaration that the order, dated October 26, 1956, purporting to terminate the plaintiff s services was illegal and ineffective and that the plaintiff still continued to be in service. He also claimed a decree for Rs. 1,094/- on account of salary, etc. In the plaint it was alleged that the plaintiff was made permanent in the post of Daftri with effect from April 1, 1955, as per the order, dated May 22, 1956, which we have mentioned above. He also claimed a decree for Rs. 1,094/- on account of salary, etc. In the plaint it was alleged that the plaintiff was made permanent in the post of Daftri with effect from April 1, 1955, as per the order, dated May 22, 1956, which we have mentioned above. He further contended that the order terminating his services violated art. 311 of the Constitution. 3. The State denied that the plaintiff held any permanent post and asserted that the plaintiff s appointment was on a temporary basis and his services were liable to be terminated at any time on one month s notice and this condition of service remained in full force till the date when the plaintiff s services were terminated. 4. The Trial Court held that the order, dated May 22, 1956, did not have the effect of making the plaintiff permanent government servant; it only converted certain posts into permanent posts. The Trial Court further pointed out that the order dated December 12, 1957, showed the list of persons who had been made permanent. The Trial Court also relied on G. O. No. 230/XIB-1953, dated January 30, 1953, to show that the plaintiff s services were terminable on one month s notice on either side or a month s pay in lieu of notice by the Government. This G. O., we may mention, was made in exercise of powers conferred by the proviso to art. 309 of the Constitution and framed the following general rule regulating the termination of services of temporary government servants : "The period of such notice shall be one month given either by the appointing authority to the government servant or by the Government servant to the appointing authority provided that in the case of notice by the appointing authority, the latter may substitute for the whole or part of this period of notice, pay in lieu thereof; provided further that it shall be open to the appointing authority to relieve a government servant without any notice or accept notice for a shorter period, without requiring the government servant to pay any penalty in lieu of notice. The Trial Court further held that the order, dated October 26, 1956, did not disclose that the services of the plaintiff were terminated on the ground of misconduct, negligence, inefficiency etc. He accordingly dismissed the suit. 5. The Trial Court further held that the order, dated October 26, 1956, did not disclose that the services of the plaintiff were terminated on the ground of misconduct, negligence, inefficiency etc. He accordingly dismissed the suit. 5. The plaintiff thereupon filed an appeal before the Civil Judge. The Civil Judge held that the service book showed that the plaintiffs appointment was temporary substantive and he continued to be temporary substantive till the order dated October 26, 1956. He interpreted the order to indicate that the services were not terminated in terms of the contract of service between the parties He further held that the action taken against the plaintiff was on the basis on the report of officers and no opportunity was given to the plaintiff to explain his conduct or to explain the evidence that was considered against him and hence the order violated art 311 of the Constitution. 6. The State then filed an appeal to the High Court: The High Court dismissed the appeal. The High Court gave its reasons thus :- Learned Counsel for the respondents contended that there was sefficient evidence on the record to show that the character of enchenment if respondents had changed in view of certain Government orders and at the time when their services had been terminated they were holding temporary posts in substantive capacity. Learned counsel for the appellant was not in a position to refute to aforesaid contention of the learned counsel for the respondents. In this view of the matter it must be held that the services of the respondents could not be terminated in the manner in which it was done without giving them the benefit of art 311 of the Constitution" 7. It seems that the High Court held that a person who holds a post in a temporary substantive capacity is in the same position as a Permanent Government Servant. 8. The learned counsel for the State contends that the plaintiff was a temporary servant and his services were liable to be terminated on a month s notice and the fact that he was holding appointment as temporary substantive does not make the plaintiff a permanent Government Servant There is force in this contention. 8. The learned counsel for the State contends that the plaintiff was a temporary servant and his services were liable to be terminated on a month s notice and the fact that he was holding appointment as temporary substantive does not make the plaintiff a permanent Government Servant There is force in this contention. The learned counsel for the plaintiff was not able to point out any material to show that a person who is appointed temporary substantive can be equated with a permanent government servant It is clear from the order, dated May 22, 1956. that only certain posts were made permanent, while by the order, dated December 12 1957 certain other persons were made permanent government servants The plaintiff cannot claim to be a permanent government servant till he is declared or appointed as such. 9. The learned counsel for the plaintiff wanted to urge that the G. O. No. 230/XXB-1953, dated January 30, 1953, violates art. 14 of the Constitution. This point was not taken in the courts below and we did not allow him to raise this point at this stage. It seems to have been common ground that if the plaintiff was not a permanent government servant his services could be terminated on one month s notice. 10. The learned counsel for the appellant further contends that art. 311 (2) does not apply to the facts of this case and he relied on THE judgment of this court in 1A. G. Benjamin v. Union or India where Ramaswami, J., speaking for the Court, observed:- "Even in a case where a formal enquiry is initiated against the temporary government servant it is, we think, open to the authority to drop further proceedings in the departmental enquiry and to make an order of discharge simpliciter against the temporary government servant. We do not accept the contention of Counsel for the appellant that once the formal departmental proceedings have been initiated it is not open to the authority concerned to drop them and to take the alternative course of discharging the temporary government servant in terms of the contract of service or the relevant statutory rule. It is possible that the authority takes the view that the stigma of the order of dismissal should be avoided in the individual case. It is possible that the authority takes the view that the stigma of the order of dismissal should be avoided in the individual case. As we have already said, the appropriate authority possesses two powers to terminate the services of a temporary government servant. It can either discharge him purporting to exercise us power under the terms of contract or the relevant rule, and in that case, the provisons of Art. 311 will not be applicable, Alternatively, the authority can also act under its power to dismiss a temporary servant and make an order of dismissal in which case the provisions of Art. 311 will be applicable. If therefore the authority decides, for some reason, to drop the formal depart mental enquiry even though it had been initiated against the temporary government servant. It is still open to the authority to make an order of discharge simpliciter in terms of the contract of service or the relevant statutory rule. In such cases the order of termination of services of the temporary government servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct." In Benjamin s case the government servant was asked to submit explanation as to why disciplinary action should not be taken against him and the Chairman of the Organisation had recorded a note that "the appellant was found guilty of failing to maintain properly the stores and records and of not exercising sufficient vigilance in performing his duties", but the departmental enquiriy was dropped In spite of these facts, it was held that the intention of the authority was not to impose a stigma against the appellant by making an order of dismissal but to make a simple order of discharge of the services of the appellant under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949." 11. In the present case the plaintiff alleged that "the sudden termination of the plaintiff s services now appears to be due to the suspicion of the Sales Tax Authorities based on some report of the Treasury Officer of Varanasi that the plaintiff was instrumental in identifying some fictitious person who is said to have presented a refund voucher or Rs. 300/- in the Varanasi Treasury." It appears that no charge-sheet was ever served but an enquiry was made in the matter by the Assistant Sales Tax Commissioner. But the fact that an enquiry is made into a complaint does not mean that, if the services of a temporary government servant are terminated after a report is received, any punishment is inflictedd entitling the government servant to reasonable opportunity to show cause against the termination within art. 311(2). As held by this Court in 2State of Punjab Versus Sukh Raj Bahadur," an order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution." 12. In the result the appeal against Abdal Khaliq is allowed, the judgments of the High Court and the Civil Judge set aside and the judgment of the Trial Court restored. Each party will bear, its own costs throughout. 13. It is not necessary to give facts regarding Sheo Narain Pandey. The facts are substantially similar and it is common ground that his case is not in any way different from that of Abdnl Khaliq. In the result the appeal against him is allowed, the judgments of the High Court and the Civil Judge set aside and the judgment of the Trial Court restored Each party will bear its own costs though out in this appeal also. Appeal allowed. For Citation: 1969 Serv LR 458