JUDGMENT 1. - This is a Civil Second Appeal of an unsuccessful plaintiff, who has been non-suited by the two courts below. 2. The plaintiff was a civil servant who was appointed as Assistant Store Keeper in the Department of Food & Civil Supplies at Gangapur on 5.5.58 and then promoted as Store Keeper in March, 1959. While working as Store Keeper he was suspended from service on 25.8.53 and was prosecuted for criminal breach of trust. The trail resulted in an acquittal. 3. The order of acquittal which was read over by the learned Government Advocate before this Court clearly mentions that the appellant should be paid his salary of the period of suspension. 4. A charge sheet was given to the petitioner on 23.9.58 and various charges of falsification of accounts, disregard of account instructions, and gross negligence were framed. The departmental proceedings were continuing and a report was submitted by the Enquiry Officer in which recommendation was made for stoppage of two grade increments on account of the fact that he was found to be negligent. However, the departmental authority passed the order that since the post of Storekeeper has been abolished and there is no existing post, the plaintiff appellant should be reinstated first and then his services be terminated by notice under Section 23-Article of the Rajasthan Service Rules. The relevant letter dated 11.12.59, which has been reproduced in the judgment of the trial court, is reproduced again for ready reference:- "Copy of Ex. "K." Letter dated 11th December, 1959 No. D. IV/2272/59/F. IE (108) FD/G/58. Finance (G) Department From Shri Ramsingh I.A.S., Addl. Finance Secretary To The Account Officer, Incharge, Civil Supplies, Rajasthan, Jaipur Dated Jaipur, the 26th November, 1959 Subject:- Theft of Government grain at Sawaimadhopur during 1953--Departmental Inquiry against Shri Ram Swaroop, Ex-Store-Keeper Civil Supplies Department. Ref:- Your letter No. 7017/F dated 26.6.59 I am directed to state that though Shri Raswaroop Store-Keeper, Civil Supplies, Sawai-Madhopur was acquitted by the Sub Divisional Magistrate, Sawaimadopur of the particular charges against him, the departmental proceedings instituted against him in respect of certain other charges were continued. As a result of these proceedings, he was not found free from blame by the Enquiry Officer as the irregularities committed by him in the accounts had facilitated mis-apprepriation of Govt. Grain. As a result of these proceedings, he was not found free from blame by the Enquiry Officer as the irregularities committed by him in the accounts had facilitated mis-apprepriation of Govt. Grain. In view of this position, Government are pleased to order that Shri Ramswaroop may be re-instated with immediate effect but may be allowed only two thirds of his pay (with usual dearness allowance admissible under Rules) for the suspension period, the subsistence allowance and dearness allowance, if any already drawn by him being adjusted against this pay, and dearness allowance. Since the post of Stoor Keeper was abolished in the process of winding up of the Civil Supplies Deptt. and Shri Ramswaroop was only a temporary Government Servant, he be served with one month's notice of discharge under Rule 23 Article of the R.S.R. with effect from the date of his reinstatement. His service may be terminated on the expiry of the notice. I am further directed to convey sanction of the Governor to the extension of the post of Store Keeper till the expiry of the one month's notice. The expenditure is chargeable to the head "47 Misc. J. Civil Supplies Department." sd. Ramsingh Addl. Finance Secretary." 5. The above letter is slightly confusing, because after holding that the Enquiry Officer found him responsible for committing such irregularties in the accounts which resulted in facilitating misappropriation of the Government grain in the next line the order says, "In view of this position of the Government is pleased to order that Ramswaroop be reinstated with immediate effect". The latter portion of the letter is not consistent with the earlier portion, because if he was found guilty of some irregularites, then the first question to be considered was as to what punishment has been proposed to be imposed and whether it has been imposed or not. 6. Mr. Khan in order to remove the above confusion pointed out that the Enquiry Officer recommended punishment of stoppage of two grade increments, but the same was not accepted by the disciplinary authority, who was of the opinion that in view of the abolition of the post the employee can not be retained in service any more. 7. In pursuance of this order, another order was passed on 11.12.59 by which reinstatement was made and a notice of one month for termination of his services by 25.12.59 was given. 7. In pursuance of this order, another order was passed on 11.12.59 by which reinstatement was made and a notice of one month for termination of his services by 25.12.59 was given. This order is also reproduced for ready reference:- "Office of the Collector, Sawaimadhopur. No. 3831/Supply Dated 11th December, 1959 To Shri Ram Swaroop, Ex-store Keeper, Civil Supplies, Sawaimadhopur. ORDER In compliance with the Finance (4) Department endrosement D. IV/2972/59/FIS/(108) FD/G)58, Shri Ramswaroop Ex-Store Keeper of Civil Supplies Deptt. Sawaimadhopur, is hereby reinstated from the date of order i.e., 26.11.59. In pursuance of the same order he is further given a notice of one month from the date of his reinstatement i.e. 26.11.59 that his services will not be required by this office after the expiry of the notice period 25.12.59. Sd/Collector, Sawaimadhopur." 8. Aggrieved by the above, the plaintiff filed the suit and interalia alleged that he was not allowed reasonable opportunity in the Departmental Enquiry conducted against him and the procedure followed was against the principles of natural justice and law. The lower courts have come to the conclusion that full and adequate opportunity was given to the employee. 9. The controversy before the lower courts as well as this court is whether the removal of the petitioner by one month's notice under rule 23 Article of the R.S.R. was valid; and, whether the forfeiture of ⅓rd pay of suspension period was valid. 10. So far as forfeiture of pay is concerned, it may be straight-away mentioned that in view of the fact that a judicial order was passed by a criminal court mentioning that the accused-plaintiff would be entitled to his salary, no jurisdiction was left in the Government authorities to forfeit ⅓rd of the pay of suspension period. Though, this order of the criminal court has not been placed on record, but it is not in dispute and is admitted and was read over by the Government Advocate in this Court during the arguments The order of the criminal court regarding payment of salary was a judicial order and in the face of the order the departmental authorities) were not entitled to forfeit ⅓rd pay, as has been done in this case by virtue of letter dated 11.12.59, extracted above. 11. 11. Even otherwise, I am of the opinion that after the recommendation of the Enquiry Officer when the Government was not prepared to take any further proceedings under disciplinary jurisdiction, and virtually dropped the departmental proceedings, there was no occasion to forfeit ⅓rd pay. It is true that under rule 54 R.S.R. the disciplinary authority is authorised to pass an order about the pay of the suspension period. 12. I am of the opinion that once the disciplinary authority decided not to impose any punishment in view of the abolition of the post and not to act on the report of the Enquiry officer, it was not permissible to pass any order under rule 54(3) R.S.R. The disciplinary Authority had two options in the matter; (1) to take departmental or Disciplinary proceedings to us logical conclusion by furnishing the civil servant for the omissions & commissions held to have been proved by the Enquiry Officer; and (2) to drop the proceedings of departmental enquiry and not to act upon the recommendations of the Enquiry Officer. 13. In the latter case, once the disciplinary authority decides to drop the proceedings for whatever reason it may be, then it cannot give effect to the finding of the Enquiry Officer against the Civil Servant for the purpose of forfeiture of the pay under Sub-rule (3). 14. In this view of the matter, I am of the opinion that on the second count also, the forfeiture of the pay to the extent of ⅓rd during suspension period of the plaintiff was illegal and the suit of the plaintiff deserves to be decreed to that extent The findings of two courts below on this specific point are, therefore, reversed, and it is ordered that the defendant respondent would pay to the plaintiff the entire amount of ⅓rd of the pay of suspension period which has not been paid so far, and which has been illegally forfeited. In other words, the plaintiff is entitled to the entire pay of the suspension period, and since ⅔rd pay has already been paid, ⅓rd of the pay would now be paid by the defendant-respondent. 15. Now remains the important question regarding validity of termination of service. It is not in dispute that the post of Store-keeper was abolished in the Department of Food and Civil Supplies, which itself was a temporary department. 15. Now remains the important question regarding validity of termination of service. It is not in dispute that the post of Store-keeper was abolished in the Department of Food and Civil Supplies, which itself was a temporary department. It is true that the abolition took place in 1955. The appellant suspended on 25-8-53. He was acquitted on 9-4-57. Charge Sheet given to him on 23-8-58. His services were terminated on 11-12-59. Paras Kuhad learned counsel for the appellant has submitted that since the was abolished in 1955, if the defendant wanted to act on that basis, there no occasion to keep him in service for such a long period, reinstate him, give him a charge-sheet, hold a departmental enquiry, and then wait for the result of the departmental enquiry, and thereafter without passing any board the Departmental Enquiry to remove him from service by resort of rule RSR. According to him, this was colourable exercise of the powers under 23 and the foundation for termination of services was not the abolition of post but his alleged misconduct, which was found to have been proved to extent by the Enquiry Officer. According to the learned counsel for the appellant, since in the order of termination itself it has been mentioned that conduct was not found free from blemish, it creates a stigma against him therefore, the termination order is violative of Article 311 of the Constitution, as no opportunity was given to show cause as contemplated by Rule 16 and Article 311. Mr. Kuhad relied upon the judgment reported in (I) Gujnr Steel Tubes Ltd. etc. V. Gujarat Steel Tubes 1 Mazdoor Sabha and others 1980 SC 1896. 16. Mr. Khan, the learned Government Advocate while opposing the appeal invited my attention to the following decisions:(2) Dr. S.C. Sharma V. Union of India AIR 1970 Del. 1 ,(3) N. Ramnatha Pillai V. The State of Kerala and anvil, AIR 1973 SC 2641 .(4) Joshi Narsingh Rao V. The District & Sessions-Judge, Nizamabadui another 1980 (3) SLR 161. 17. From the above it was deduced by Mr. Khan that termination services on account of abolition of post cannot attract Article 311 of the Constitution, and the Government has got a right to remove a civil servant from post on abolition of that post. 17. From the above it was deduced by Mr. Khan that termination services on account of abolition of post cannot attract Article 311 of the Constitution, and the Government has got a right to remove a civil servant from post on abolition of that post. Contrary to it, a civil servant has no right to insist that he should be kept in service even though the post has been abolished. 18. In the instant case, there is no doubt that the post of Store-keeper was abolished in 1955, which is not disputed by the appellant. All that been argued is that if the post was abolished and the Government Evan resort to the remedy of removing the Government Servant as a consequence the abolition of the post, why did not the Government remove him in 1955 when the post was abolished, or in any case in 1957 when he was acquit Why a charge sheet was given and why the report of the Enquiry Officer not made available to him when it was used in the order. 19. The emphasis and the main limb of contention of Mr. Kuhad that the narration of the events and the history of the case provides a clinching proof that the removal of the plaintiff under rule 23-A was not bona fide, but was a colourable exercise of Rule 23-A, because the foundation of removal misconduct. 20. However, it is true that the right of the State to terminate the vices of a civil servant on abolition of a post cannot be questioned, as a civil servant has got no right, more so when he is a temporary, employee to in that he would continue to hold the post which in fact does not exist. In instant case, there is no room for doubt that the post on which the petitioner as working was abolished in 1955 and at the time of his reinstatement as a consequence of the abolition there was no post, but as would be obvious from e impugned order, the Governor had to create a post for that small period. these circumstances, this Court cannot compel the State to create a post for civil servant where there is none. All that can be enquired into and scrutinised this Court is, whether the abolition was not done coloarably to get rid of a civil servant. these circumstances, this Court cannot compel the State to create a post for civil servant where there is none. All that can be enquired into and scrutinised this Court is, whether the abolition was not done coloarably to get rid of a civil servant. This is not precisely a case where any finding can be given that in order to get rid of the plaintiff, the Government abolished the post, because the post was abolished in 1955 and the termination was done in 1959. These facts are speaking and patent, I am convinced that the finding of the two courts low that the removal of the petitioner was not mala fide and that it was on account of abolition of the post suffers from no infirmity of Jaw warranting interference in this appeal. I am further convinced that though the motive of the defendant may be any, but the termination under rule 23-A of R.S.R. was not based on the foundation of misconduct. I am further convinced that there has been no violation of Article 311 of the Constitution, because the Government was within its rights to terminate the services of the appellant-plaintiff who was a temporary employee and who had no right over the post which again never existed on the relevant date. 21. In view of the above, it is not necessary to discuss in detail the principles laid down in the above causes referred to by the learned counsel for the parties. 22. In view of the above discussion. I am of the opinion that while the plaintiff succeeds so far as his prayer for grant of ⅓rd salary is concerned, he fails on the principal point that he is entitled to reinstatement and to get the order of termination quashed. 23. Mr. Kuhad also made a subsidiary argument about pension. According to him, the notification dated 25-6-55 contemplates that pension can be permitted to those civil servants who have completed 10 years service. A reading of this notification clearly shows that it was meant for permanent employees. If the Government wants to give benefit of pension to temporary employees, it can do so by amendment of the rules and making provision for the same. I am convinced that the plaintiff who was a temporary employee was not entitled to pension. 24. The result is that this appeal succeeds partly only. If the Government wants to give benefit of pension to temporary employees, it can do so by amendment of the rules and making provision for the same. I am convinced that the plaintiff who was a temporary employee was not entitled to pension. 24. The result is that this appeal succeeds partly only. The judgments of both the courts below are upheld to the extent that the impugned order by which the services of the plaintiff were terminated is valid and need not be quashed by this Court. However, that part of the order by which ⅓rd of salary of the plaintiff has been forfeited for the suspension period is quashed. decreed that the plaintiff would be entitled to get the amount of ⅓rd also for entire period of suspension from the defendant. 25. It is further ordered that in view of the facts and circumstances of the case, the costs would be easy in all the three courts. *******