S. K. DUTTA, J. ( 1 ) THE petitioner in this rule, according to his case, was appointed in 1953 as a Guard in the office of the Assistant Engineer, Rural Water Supply, Maldah Sub-Division, in a permanent post under Directorate of Public Health Engineering, Government of West Bengal. He was placed on duty as a Night Guard in the stores attached to the Office of the Assistant Engineer, Maldah, and he worked in the said post till 12. 6. 65 when he was transferred to Kanchrapara in the post of Durwan. The petitioner contended that the said transfer was mala fide and for collateral purpose as the petitioner was sought to removed from Maldah as he was witness to the delivery of huge quantity of stores by the Overseer of the said department to the Contractor without challan and was a source of danger to the local officers. The petitioner filed several representation to the authorities against the transfer, as, being in indigent circumstances and with his family, it would cause great hardship to him to live away from his native place at Maldah. The petitioner however received no reply thereto and joined his post as Durwan in the Office of the Assistant Engineer, Emergency Water Supply Scheme, Kanchrapara on 29. 6. 65. ( 2 ) THE petitioner continued to make further representations without any effect. As he fell ill, he went on leave for five days from 14. 5. 66. It appears that the petitioner received a letter dated 24. 6. 66 from the Executive Engineer of the department at Kalyani asking him to join at once. The letter was replied to on 16. 8. 66 whereby the petitioner applied for medical leave from 14. 5. 66 to 13. 10. 66 with or without pay but no order was received by him on the said prayer. The petitioner made a representation to the Minster of Health complaining the mala fide treatment of officers to him. The said representation was forwarded to the Chief Engineer, to whom also the petitioner made a further representation on 14. 7. 67. No decision was however communicated to the petitioner and in the circumstances he made a demand of justice by his letter dated 3. 4. 68 calling upon the respondents to cancel for rescind the impugned order of transfer. After recovery from his illness, the petitioner saw the respondents on 26. 4. 7. 67. No decision was however communicated to the petitioner and in the circumstances he made a demand of justice by his letter dated 3. 4. 68 calling upon the respondents to cancel for rescind the impugned order of transfer. After recovery from his illness, the petitioner saw the respondents on 26. 4. 68 and 3. 5. 68 with a further representation. The petitioner was informed by the Superintending Engineer that he was dismissed from service with effect from 14. 5. 66 for being absent without leave and if he apologized and withdrew all allegations he might be reappointed. The petitioner contended that he was appointed by the Chief Engineer and the Superintending Engineer being a subordinate authority had no competency to dismiss him. Further he was dismissed without any proceedings against him in violation of the provisions of Article 311 (2) of the Constitution and also of Rule 10 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936 and the order of transfer was also mala fide as alleged above. ( 3 ) ON these allegations the petitioner moved this Court under Article 226 (1) of the Constitution and obtained the rule on 9. 5. 68 calling upon the respondents to show why a Writ in the Nature of Mandamus should not be issued directing them to cancel and forbear from giving effect to the order of dismissal of the petitioner of the petitioner or as also the order of transfer referred to above. ( 4 ) A return was filed to the said rule on behalf of the respondents by an affidavit-in-opposition, in which all material allegations in the petitioner were denied. It was stated that the petitioner was in temporary employment and never made permanent. It was denied that the order was transfer was mala fide or for other reasons. The petitioner was negligent in his duly and was accordingly transferred on administrative grounds. The petitioner joined his post on 27. 9. 65, and thereafter made representation forhis retransfer which was rejected as his retransfer was not considered proper in the circumstances. The petitioner went on leave from 14. 5. 66 to 20. 5. 66. The petitioner was negligent in his duly and was accordingly transferred on administrative grounds. The petitioner joined his post on 27. 9. 65, and thereafter made representation forhis retransfer which was rejected as his retransfer was not considered proper in the circumstances. The petitioner went on leave from 14. 5. 66 to 20. 5. 66. After expiry of leave the petitioner did not apply for extension of leave nor joined his post which conduct amounted to misbehaviour under Rule 160 (2) of the West Bengal Services Rue, Part I (hereinafter referred to as W. B. S. R. Part 1 ). The petitioner was asked to join by letter dated 24. 6. 66 but did not comply with the order and instead filed an application on 16. 8. 66 for leave from 14. 5. 66. It was stated that a Government Servant holding temporary post cannot be granted leave unless the competent authority has reason to believe that the officer will return to duty on expiry of leave. Because of his previous misbehaviour, the petitioner's application for leave could not be considered. It was denied that the petitioner was not allowed to join as he never joined his duty nor had done so even them. It was denied that the petitioner was dismissed from service and it was stated that due to continued absence for more than 90 days beyond sanctioned leave upto 22. 5. 66, the petitioner ceased to be in Government employ under provisions of Rule 34 (3), W. B. S. R. , Part 1 and his service was automatically terminated. It was also stated that the petition was defective in that the respondents have not properly impleaded or described. For all these reasons the petitioner was not entitled to any relief. ( 5 ) THE petitioner filed an affidavit-in-reply reiterating his contentions in the petition. It was denied that he was a temporary employee or that Rule 34 (3) had any application. It was further contended that provisions of Article 311 (2) are mandatory and admit of no relaxation. Even Rule 34 (3) contemplates an enquiry or formal order. ( 5 ) THE petitioner filed an affidavit-in-reply reiterating his contentions in the petition. It was denied that he was a temporary employee or that Rule 34 (3) had any application. It was further contended that provisions of Article 311 (2) are mandatory and admit of no relaxation. Even Rule 34 (3) contemplates an enquiry or formal order. ( 6 ) ASSUMING for the time being that the petitioner is not in permanent employment of the Government, let us examine to the contention of the respondent that the petitioner ceased to be in Government employ under Rule 34 (3) of West Bengal Service Rules, Part I of 1964 which provides:34 (3 ). ?where a Government servant who is not in permanent employee, fails to resume his duties on the expiry of the maximum period of extraordinary leave granted to him under sub-rule (b) of Rule 175 or when such a Government servant who is granted lesser amount of extraordinary leave than the maximum amount admissible, remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit up to which he would have been granted such leave under sub-rule (b) of Rule 175, he shall, unless Government in view of the exceptional circumstances of the case otherwise determine, be deemed to have resigned his appointment and shall accordingly cease to be in Government employ. ?rule 175 (a) and (b) provides: (a) ? extraordinary leave may be granted to a Government servant in special circumstances - (i) when no other is admissible but the Government servant concerned applies in writing for the grant of extraordinary leave. (b) except in the case of Government servant in permanent employ, the duration of extraordinary leave shall not exceed three months on any one occasion. ? we are not concerned with the provisos in the said rule. ( 7 ) RULE 34 (3) provides that the maximum period of continuous absence of duty is the maximum period of extraordinary leave under Rule 175 (b) when granted to an incumbent. When extraordinary leave is for lesser period, such maximum period of continuous absence is also the maximum period of the said extraordinary leave including the period of leave already granted. When extraordinary leave is for lesser period, such maximum period of continuous absence is also the maximum period of the said extraordinary leave including the period of leave already granted. The maximum period of extraordinary leave is three months, so that whether under extraordinary leave for full period or not, an incumbent not in permanent Government employ remaining absent for three months in the event of failure to join on expiry of the said period of three months shall be deemed to have resigned his appointment unless Government otherwise determine and he shall accordingly cease to be in Government employ. ( 8 ) MR. Manindra Mohun Sinha learned Counsel for the petitioner has contended that the above rule, assuming that the petitioner is not in permanent employ is not applicable to the facts of the case, as the petitioner never had any occasion to apply for and take extraordinary leave. The Rule 34 (3) however, like other rules, has to be read with such adaptation as the occasion may require and it cannot said that the rule will not apply unless such Government servant has taken an extraordinary leave. So that for an incumbent not in permanent employ who has not taken any extraordinary leave the maximum period of continuous absence shall be the period provided in Rule 175 (b) which is three months apart from any absence from duty under the sanction of the authority. Such interpretation is consistent with reason and justice. Viewed thus, there is no dispute that the petitioner had been absent from duty for over three months from 20. 5. 66, upto which period his leave was sanctioned. On 16. 8. 66 the petitioner applied for leave from 14. 5. 66 to 13. 10. 66, which was neither sanctioned nor curiously enough any communication was made to the petitioner on his application for leave and in the affidavit-in-opposition (para 12) plea was taken that no such leave could be granted unless the competent authority had reason to believe that the petitioner would join his duty after expiry of such leave. For this proposition no rule under W. B. S. R. Part 1 or any other law has been cited before me. For this proposition no rule under W. B. S. R. Part 1 or any other law has been cited before me. Even thereafter the petitioner, it appears, did not join his duties nor made any attempt therefor for long over three months and long after the said period made a representation to the Minster and the Chief Engineer, and also made his demand of justice on 3. 4. 68. He finally reported for duty thereafter but was not permitted to do so by the Overseer. It is obvious that the continuous absence of the petitioner was long over three months computing even from 13. 10. 66 the period upto which the petitioner prayed for leave which was also not sanctioned. Under Rule 34 (3), as applicable, the petitioner must be deemed to have resigned his post and ceased to be in Government employ in absence of any order by the Government. ( 9 ) MR. Singha however maintained that provisions of Article 311 (2) cannot be by-passed by Rule 34 (3), as the said provisions of the said article are mandatory. It has been held that the said provisions apply to temporary Government servants when the orders like dismissal removal or reduction in rank are passed by way of punitive action as was held in (1) Madan Gopal v. State of Punjab, A. I. R. 1963 S. C. 531. It will be otherwise if the service of the incumbent is terminated not by way of punitive action but under provisions or conditions governing temporary service as was held in (2) Ram Gopal Chaturvedi v. State of Madhya Pradesh, A. I. R. 1970 S. C. 158. In this case Rule 34 (3) of W. B. S. R. , Part 1 is a condition of service of persons not in permanent employ under the Government. If as a consequence of continuous absence from duty under the said rule the service of the incumbent ceases, it will be in accordance with the terms and conditions of the service itself, so that provisions of Article 311 (2) of the Constitution would have no application. The decisions relied on by Mr. If as a consequence of continuous absence from duty under the said rule the service of the incumbent ceases, it will be in accordance with the terms and conditions of the service itself, so that provisions of Article 311 (2) of the Constitution would have no application. The decisions relied on by Mr. Sinha in the cases of (3) Jai Shankar v. State of Rajasthan, A. I. R. 1966 SC 492 which was concerned with removal of a person for overstaying leave and in (4) Mafatlal N. Barot v. J. D. Rathod, A. I. R. 1966 SC 1364 which was also concerned for absence without leave are in regard to permanent employees and have application to the present case if the petitioner is taken as being not in permanent employ. The contention of Mr. Singha accordingly is unacceptable and it must be held that the petitioner's service, if he was not in permanent employment ceased to exist at least on the expiry of three month from 13. 10. 66. The said Rule 34 (3) does not again contemplate any enquiry or formal order as contended. The decision referred by Mr. Sinha in the case of (5) Jatindra Mohan Saha v. Assistant Director (Nursing), Directorate of Health Services and Ors. , A. I. R. 1963 Cal 638 also has no application in this case. It was held in that case that the delinquent's temporary service never stood terminated as the relevant Rule 174 (4), similar to some extent as Rule 34 (3), was not in force at the time and accordingly the service continued till it was terminated and till terminated in accordance with law, the petitioner was entitled to all pay and allowances under the rules. ( 10 ) THE next point for consideration is if the petitioner was in permanent employ of the Government. It is not denied that the petitioner was in Government service since 1953. The appointment letter of the petitioner has not been produced by him and the Government also failed to produce the service records of the petitioner though time for this specific purpose was granted to the respondents. It is stated that the service records are untraceable. It has been stated by Mr. P. K. Sen Gupta, learned Counsel for the respondents, that the onus to establish that the petitioner was in permanent Government employ lay with him which he failed to discharge. It is stated that the service records are untraceable. It has been stated by Mr. P. K. Sen Gupta, learned Counsel for the respondents, that the onus to establish that the petitioner was in permanent Government employ lay with him which he failed to discharge. The question as to onus loses its importance when both parties have adduced evidence and in this case through annexures to the petition of affidavits. It may also be contended that it is also for the respondents to adduced evidence to establish their case that the petitioner was not in permanent employ as contended by them. ( 11 ) MR. Sen Gupta has produced the original salary pay bill for the month of August, 1965 of the temporary establishment of the Assistant Engineer R. W. S. Presidency Division, Public Health Engineering (Maldah West Dinajpur) Maldah. It is contended that the establishment itself was temporary and accordingly all this incumbents including the petitioner whose name and signature appeared in the said pay bill were also a temporary employees. Mr. Sinha has contended that it can not inferred as a matter of rule that even if a department is temporary all its personnel should be temporary as permanent incumbents could as well be appointed in such temporary establishment. There is force in Mr. Sinha's contention but it would appear from paragraph 1 of the petition, that the petitioner was originally appointed in the said establishment of Rural Water Supply Maldah Sub-Division and it is not that he was taken from any other department. If the department itself is not permanent, it is unlikely that the petitioner would be appointed in the said department as a permanent employ. The petitioner was thereafter transferred to the post of Durwan under Naihati Emergency Water Supply Scheme. It is nobody's case that the petitioner was made permanent on such transfer or at anytime before. ( 12 ) IT is true, as pointed out by Mr. Sinha, that the petitioner, was never described in the orders passed by the respondents as being in temporary employ. It is also to be noted that the petitioner never to claimed himself in his several representations as disclosed as bring in permanent employ not even in his demand for justice against his transfer. Sinha, that the petitioner, was never described in the orders passed by the respondents as being in temporary employ. It is also to be noted that the petitioner never to claimed himself in his several representations as disclosed as bring in permanent employ not even in his demand for justice against his transfer. In absence of any evidence on the issue, I hold relying on the pay bill for the month of August, 1965 the authencity whereof cannot be disputed and also on the averments in the petition and affidavits and annexures thereto that the petitioner was not in permanent employ under the Government. Accordingly Rule 34 (3) of the W. B. S. R. part, I was attracted and the petitioner by his continuous absence from duty over the requisite period must deemed to have resigned and ceased to be in Government employ. ( 13 ) FOR the above reasons, the petition fails and rule is discharged. There will be no order for costs. I further direct that the pay bill R. W. S. for August, 1962 be kept on record subject to father orders of the Court. I further put on record that the order of transfer of this petitioner has not been challenged at the hearing. Petition fails and Rules discharge.