JUDGMENT 1. THIS writ petition is heard as a contested application and it is directed against letter dated 14th January 1982 issued by Shri. K. P. Bhattacharya, Special deputy Commissioner (Personnel), Corporation of calcutta. By the said letter which is Annexure 'k' to the writ petition, the petitioner has been informed that the petitioner had ceased automatically to be a corporation Officer in view of his joining the Government service with effect from 24th May, 1976. The said Memo dated 14th January, 1982 was Written in answer to the petitioner's letter dated 10th July 1981 addressed to the Minister-in-charge, Local self Government and Urban Development department, Government of West Bengal whereby the petitioner made a claim of his pay from the Corporation of Calcutta for the period from 24th May 1980 till date and the petitioner claimed that such pay should be equivalent of the pay of the Special Deputy. Commissioner of the Corporation of Calcutta. 2. THE learned Counsel for the respondents have appeared and an affidavit-in-opposition has also been filed. At the hearing, the learned Counsel has also produced records concerning the State government and also the Corporation of calcutta. It appears that the petitioner joined Corporation of Calcutta sometime in the year 1946 as Lighting Inspector and the petitioner was promoted to the post of inspector-in-Charge (Lighting) sometime in 1973. It appears that the Administrator, corporation of Calcutta, created a post of additional Deputy Director of Operation (Conservancy) for a period of 6 months only and the petitioner was promoted to the post of Additional Deputy Director of Operation (Conservancy). initially the petitioner was posted for 6 months only to the said post, but thereafter the Administrator, calcutta Corporation, directed to retain the petitioner to the said post of Additional deputy Director of Operation (Conservancy) up to 8th december 1977 and the petitioner was allowed to continue officiating in the said post. While the petitioner had been officiating in the said post of Additional Deputy Director of Operation (Conservancy), the Governor of West Bengal by an order dated 21st May 1976 was pleased to appoint the petitioner the Officer on Special duty under the Department of Municipal service for a period of one year with effect from the date of petitioner's taking over charge to the said post and the copy of the said order has been annexed to the writ petition being Annexure 'o'. It appears that, in order to improve municipal administration of the Calcutta Corporation, the petitioner was deputed by the State Government by an order dated 21st May 1976 to act as a Special Deputy Commissioner for a period of one year from the date of petitioner's taking over charge of the said post. The said order deputing the petitioner in the Corporation of Calcutta has also been annexed to the writ petition being Annexure 'd'. It may be noted in this connection that the petitioner made a prayer before the Corporation of Calcutta to grant leave to the petitioner without pay for one year with effect from 4th November, 1976 and to permit the petitioner to take up employment during the period of leave under the Government of West Bengal and by Memo dated 24th May 1976 issued by the Personnel Officer of the Corporation of calcutta, the petitioner was informed that the Administrator, Corporation of Calcutta had granted leave to the petitioner as prayed for with effect from forenoon of 24th May 1976 for one year and the petitioner was also permitted to take up employment under the Government of west Bengal during the period of leave. The petitioner has contended that as, the petitioner was a permanent employee of the Corporation of Calcutta and as for the improvement of municipal service of the. Corporation of Calcutta, the State Government intended to appoint the petitioner temporarily in the Government service for the purpose of deputing the petitioner to the Corporation of Calcutta under section 47a of the Calcutta Municipal Act, the petitioner prayed for the said leave for one year and also for permission to take temporary appointment under the Government of west Bengal and as aforesaid, such permission was also accorded. It appears that, after completion of one year, the State government Intended to extend the petitioner's temporary service under the State government for a further period with effect from 24th May, 1977. It appears that, after completion of one year, the State government Intended to extend the petitioner's temporary service under the State government for a further period with effect from 24th May, 1977. The petitioner thereafter made a prayer before the Administrator, Corporation of Calcutta that, as the Governor had been pleased to extend the period of his deputation as a Special Deputy Commissioner (Conservancy), Corporation of Calcutta for a further period of 3 years with effect from 24th May, 1977, the Corporation of Calcutta should grant leave to the petitioner without pay, in continuation of the present leave for a further period of three years with effect from 24th May 1977 with a lien to his substantiate service in the Corporation of Calcutta. It appears that, although the Administrator, Corporation of Calcutta, received the said letter, no formal Communication was made to the petitioner about the decision taken by the Corporation of calcutta on the said prayer of petitioner. The petitioner continued to serve as Deputy commissioner (Conservancy), Corporation of Calcutta, as a temporary Government servant deputed to the. Corporation of calcutta under section 47 A of the Calcutta municipal Act. It appears that on 8th February 1980, the petitioner applied for leave from 16th February 1980 to 25th May 1980, i.e. upto the date of operation of the petitioner's turn as Special Deputy Commissioner (Conservancy) and after the said period of deputation was over on 25th May 1980, the petitioner on a number of occasion called on the Administrator and the commissioner, Corporation of Calcutta to ascertain as to which post the petitioner would join after the termination of the deputation of the petitioner in the temporary Government service. The petitioner contends that; petitioner being a permanent employee of the Corporation of Calcutta is entitled to continue as a Corporation employee till March 1983 when the petitioner will attain the age of superannuation. On 2nd/3rd September, 1980, the Special deputy Commissioner (P), Corporation of calcutta, wrote to the petitioner as to whether or not the petitioner was willing to maintain the status quo in regard to the provident fund as a Corporation employee and the petitioner gave his reply on 11th of September, 1980. On 2nd/3rd September, 1980, the Special deputy Commissioner (P), Corporation of calcutta, wrote to the petitioner as to whether or not the petitioner was willing to maintain the status quo in regard to the provident fund as a Corporation employee and the petitioner gave his reply on 11th of September, 1980. In the meantime, by an order dated 8th July, 1981, the Governor was pleased to allow the petitioner earned leave of 82 days from 3rd March 1980 to 23rd March 1980 as a temporary government servant, namely, for the period when the petitioner had been serving the Corporation of Calcutta as State Government employee on deputation under section 47 A of the Calcutta Municipal Act. 3. THE petitioner contends that, although the petitioner had been causing enquiries, as to which post the petitioner should join as an employee of the Corporation of Calcutta after the expiry of the temporary service of the petition under the State government, the petitioner was not favoured with in positive response and the petitioner thereafter made a representation to the minister-in-charge of Local Government and urban Development Department on 10th of July 1981 with a copy to the Administrator and the Commissioner of the Corporation of Calcutta. The petitioner contended in the said representation that, it was quite clear that no definite decision had been taken about the petitioners present status as the Corporation employee and the Hon'ble Minister was requested to kindly look into the matter so that the petitioner would be relieved of the uncertain position and could devote to the service of the Corporation of calcutta. Thereafter, the impugned letter dated 14th January 1982 written by the Special Deputy Commissioner (P) of the Corporation of Calcutta was received by the petitioner and the petitioner was informed that the petitioner's service had automatically ceased under the Corporation of Calcutta on the petitioner's joining the government service with effect from 24th may 1976. Thereafter, the impugned letter dated 14th January 1982 written by the Special Deputy Commissioner (P) of the Corporation of Calcutta was received by the petitioner and the petitioner was informed that the petitioner's service had automatically ceased under the Corporation of Calcutta on the petitioner's joining the government service with effect from 24th may 1976. The petitioner contends in the instant writ petition that the petitioner is a permanent employee of the Calcutta Corporation and as for benefit of the administration of the Calcutta Corporation, the State government intended to appoint the petitioner temporarily as a Government servant for the purpose of deputing him in the service of the Calcutta Corporation, the petitioner prayed for leave for the entire period of temporary Government service and also for an express permission from the Corporation of Calcutta that during the said period of one year, the petitioner would be entitled to take service under the State Government and as aforesaid, the leave was granted to the petitioner and permission was also accorded to the petitioner to take temporary service under the State Government. The petitioner contends that thereafter when the state Government intended to extend the petitioner's temporary service under the state Government for another term of three years and to depute the petitioner in the service of Corporation of Calcutta as before, the petitioner before the expiry of such period of original leave granted to the petitioner again asked for similar leave for three years. The petitioner contends that, although expressly such leave was not granted to the petitioner, but by the silence of the Corporation of Calcutta, it must be held that the Corporation allowed the prayer of the petitioner for a further leave of 3 years without pay and the Corporation had also acquiesced to the petitioner's continuing in the temporary service under the State Government and serving the corporation on deputation as a temporary government servant under section 47 A of the Calcutta Municipal Act. The petitioner contends that when the said temporary service under the State Government came to an end there was no further occasion for the petitioner to remain as a deputationist to the corporation of Calcutta as a temporary State Government employee and the petitioner was entitled to join the corporation of Calcutta because the petitioner was a permanent employee of the corporation of Calcutta and the petitioner's service had never been terminated by the calcutta Corporation. 4. MR. Benerjee, the learned Counsel appearing for the petitioner, has contended that in the facts and circumstances of the case, it must be Held that the petitioner had been allowed to continue to serve the State government initially for one year and thereafter for a further period of three years after obtaining permission and leave from the Corporation of Calcutta to remain in the State Government service temporarily for the said period of four years for the benefit of the Corporation of Calcutta itself. Mr. Banerjee has contended that the contention of the Corporation of Calcutta that the petitioner's service under the Calcutta corporation had automatically came to am end with effect from 24th of May, 1976, namely, when the petitioner first obtained the temporary service for one year under the State Government is devoid of any substance for the simple reason that the corporation of Calcutta had expressly granted leave to the petitioner for one year with effect from 24th May, 1976 and had expressly granted permission to the petitioner to take temporary appointment under the State Government. Mr. Banerjee, therefore contends that the case made out by the Calcutta Corporation in the impugned Memo dated 14th January 1982 that the petitioner had lost his service with effect from 24th May, 1976, is illegal and untenable on the face of it. Mr. Banerjee further contends that when the State Government intended to extend the petitioner's temporary service for a further period of three years so as to depute the petitioner in the service of the corporation, the petitioner made a similar prayer for extension of his leave without pay before the Corporation of Calcutta and the Corporation of Calcutta not having rejected the said prayer and not having informed the petitioner of any decision taken on the said prayer of the petitioner it must be held that the Corporation had acceded to the said prayer of the petitioner. Mr. Mr. Banerjee, the learned Counsel for the petitioner, has contended that, silence on the part of the Corporation of Calcutta on the said prayer of petition to extend further leave of three years, must amount to grant of such leave to the petitioner and the corporation of Calcutta is estopped from contending any further, that as no further leave had been granted to the petitioner, the petitioner must be held to be on unauthorised leave. For this contention, Mr. Banerjee has referred to Article 55 of the treatise "law relating to Estoppel by Representation" by Spencer; Bower and Turner (3rd edition) at gage 55. Commenting on the proposition of representation by silence or inaction the learned authors have observed that "it is well established that under certain conditions silence or inaction may constitute a representation, as much as positive language or conduct, for the purpose of an estoppel. The main condition subject to which alone silence or inaction counts as a representation is that a legal (not a mere moral or social) duty shall have been owed by the representor to the representee to make the disclosure or take the steps, the omission of which is relied upon as creating the estoppel." 5. MR. Banerjee, the learned Counsel has contended that the petitioner, namely, representor owed a legal obligation to ask for leave to remain in Government service for a further period of three years and as a matter of fact, the petitioner had asked for such leave prior to commencement of such extended period of three years' temporary service under the State Government. The petitioner made full disclosure of the fact for which leave was prayed for by the petitioner. But the representee, namely, the Corporation of Calcutta omitted to take any positive step on the special representation of the petitioner. In such circumstances, the omission on the part of the corporation of Calcutta must operate as an estoppel from contending any further that the petitioner continued in temporary service without any leave or permission. Mr. But the representee, namely, the Corporation of Calcutta omitted to take any positive step on the special representation of the petitioner. In such circumstances, the omission on the part of the corporation of Calcutta must operate as an estoppel from contending any further that the petitioner continued in temporary service without any leave or permission. Mr. Banerjee has also referred to the article 318 of the said treatise at page 324 dealing with the special election between two alternative courses of action It has been observed in the said article that "the rule governing this kind of ejection may thus be stated ; Where A in/his dealing with B, being at liberty to adopt either of two mutually exclusive steps, proceedings, courses of action, or attitudes, in relation to b, elects to take or adopt one of them, and to reject the other, or to "waive" his right in respect thereof, and A's declaration of such election or "waiver" by words, conduct, or inaction, influences B to alter his position to his detriment. A is estopped, as against B, from thereafter resorting to the course of action which he has thus intimated his intention of relinquishing, dispensing with, or "waiving". 6. MR. Banerjee has contended that Corporation of Calcutta in its dealing with the petitioner was at liberty either to grant leave or to refuse the same to the petitioner so as to enable the petitioner either to elect for continuance in the temporary Government service or to come back as a permanent employee of the Corporation of Calcutta, but the Corporation having exercised such election to allow the petitioner to remain in temporary Government service while on leave under the Corporation of calcutta for a further period of three years by virtue of its conduct or inaction to intimate the petitioner that no further leave would be granted to him and if he had intended to serve the Corporation, he should come back on the expiry of initial leave for one year, it must be held that by such conduct or inaction of the Corporation of Calcutta to elect between two alternative courses the petitioner had been influenced to alter his position by accepting the extension of further period of temporary service under the State Government. Accordingly, under such circumstances, the Corporation is estopped from contending any further that the petitioner had accepted the extension of service under the State Government without any authority from the Corporation of Calcutta, Mr. Banerjee has also contended that even assuming for argument's sake that the petitioner's leave not having been granted expressly by the Corporation of Calcutta, it should be held that the petitioner was on unauthorised absence for the said period of three years of temporary service under the State Government, the service of the petitioner does not ipso facto comes to an end because of such unauthorised absence. Mr. Banerjee contends that; if for such unauthorised absence constituting misconduct on the part of the petitioner, the Corporation of Calcutta intends to terminate the service of the petitioner, the Corporation is under an obligation to draw up a proceeding for the said purpose and give the petitioner an opportunity of showing cause against the proposed termination of service on the ground of unauthorised absence. For the said purpose, Mr. Banerjee has relied on a decision of the Supreme Court made in the case of Jay Shankar vs. State of Rajasthan reported in AIR 1966 SC at page 492. A five Judges' Bench of the supreme Court has decided in the said decision that a Government servant whose service was liable to be terminated for unauthorised absence for a specified period, is also entitled to a hearing before any action is taken to terminate his service and there cannot be any exparte automatic termination of service. Mr. Banerjee has also referred to another decision of the Supreme court made in the case of Mafatlal Narayan das Barot vs. J. D. Rathod reported in AIR 1966 SC at page 1364. Similar principle has been laid down by the Supreme Court in case of an employee belonging to a statutory Corporation. Mr. Mr. Banerjee has also referred to another decision of the Supreme court made in the case of Mafatlal Narayan das Barot vs. J. D. Rathod reported in AIR 1966 SC at page 1364. Similar principle has been laid down by the Supreme Court in case of an employee belonging to a statutory Corporation. Mr. Banerjee, there fore, contends that the petitioner not having attained the age of superannuation must be demand to be continuing in service under the Calcutta Corporation and the decision of the Corporation of Calcutta as contained in the impugned memo dated 14th January 1982 that the petitioner's service had automatically stood terminated with effect from 24th May, 1976, is wholly untenable and should be quashed and the respondents should be directed to allow the petitioner to join the Corporation of Calcutta as a permanent employee of the Corporation of calcutta and this Court should give further direction to the Corporation of Calcutta to make payment of the salary of the petitioner to the post to which the petitioner will be entitled to. 7. MR. Roy, the learned Counsel appearing for the respondents, has however contended that under the provisions of section 47a of the Calcutta Municipal Act, an employee to be deputed in the service of the corporation of Calcutta, must be a State government employee or an employee of some other Corporation, but not the employee of the Calcutta Corporation. The moment the petitioner had accepted the government service, whether temporary or permanent, the relationship of master and servant between the petitioner and Corporation of calcutta came to an end and after the expiry of the petitioner's tenure of service as a State Government employee, the petitioner cannot claim to be an employee of the Corporation of Calcutta simply on the footing that he was a permanent employee of the Corporation of Calcutta before accepting the tenure service under the state Government. Mr. Roy has submitted that section 47a envisages that a state Government employee or an employee of a statutory corporation other than the corporation of Calcutta may be deputed for the improvement of the municipal service of the Corporation of Calcutta. Accordingly, an employee who had already been serving the Corporation pf Calcutta, cannot be deputed for rendering his service in the corporation of Calcutta Under section 47a. Mr. Accordingly, an employee who had already been serving the Corporation pf Calcutta, cannot be deputed for rendering his service in the corporation of Calcutta Under section 47a. Mr. Roy has submitted that, in the instant case, there had been irregularity in giving the petitioner a temporary service under the state Government for the purpose of deputing him to the service of Corporation of calcutta under section 47a because the petitioner had already been in the service of the Corporation of Calcutta and the corporation could not be expected to be further benefited by the service of the petitioner who had already been in the service of the Corporation. Mr. Roy has produced the records of the State Government to show that the Public Service Commission has also entertained the said view that an employee of the Corporation of Calcutta cannot be appointed temporarily by the state Government for the purpose of deputing him to the service of the Corporation of Calcutta under Section 47a of the Calcutta municipal Act. Mr. Roy has said that the very purpose of section 47a will be frustrated if an employee of the Corporation is allowed to serve the Corporation of Calcutta only by changing his status by giving him a temporary appointment under the state Government and thereafter asking him to serve under the Corporation of Calcutta as before. In my view, there is substance in the said contention of Mr. Roy and according to my reading of section 47a of the Calcutta Municipal Act an employee of the Corporation of Calcutta cannot be asked to serve the Corporation of Calcutta on deputation as a Store Government employee by merely changing his status by giving him a temporary appointment in the state Government service. If the very purpose of section 47a is to improve the municipal service by deputing a competent person, then the said purpose will be frustrated if an existing employee of the Corporation of calcutta remains in the service of the Corporation of Calcutta only by changing his status temporarily. 8. IT may, however, be noted in this connection that Mr. If the very purpose of section 47a is to improve the municipal service by deputing a competent person, then the said purpose will be frustrated if an existing employee of the Corporation of calcutta remains in the service of the Corporation of Calcutta only by changing his status temporarily. 8. IT may, however, be noted in this connection that Mr. Roy in his fairness has submitted before the Court that as the state Government had given an appointment to the petitioner temporarily to the corporation of Calcutta after consulting the corporation of Calcutta both the State government and the Corporation of Calcutta should not be permitted to raise the question of legality of such appointment of the petitioner as temporary State Government servant. Mr. Roy has, however, contended that whenever a person gets an appointment under section 47 A, it must be held that such person is either a State government employee or an employee of any statutory body other than the Calcutta corporation and the petitioner having accepted such appointment even for a temporary period, must be held to have left the service voluntarily under the Corporation of Calcutta and in the aforesaid circumstances, the Deputy Commissioner (P) of the Corporation of Calcutta is justified in his contention as contained in the impugned memo dated 14th January 1982 that the petitioner's service under the Corporation of Calcutta stood automatically terminated with effect from 24th May, 1982. Mr. Roy has also contended that the petitioner had only asked for leave when the State Government proposed to extend his temporary service for a further period of three years, but such leave was not expressly granted by the Corporation of calcutta and an employee cannot also ask for such leave as a matter of right. Mr. Roy, therefore, submits that when the petitioner, without any express authority has accepted further extension of service under the State Government, it must be held that the petitioner has voluntarily left the service of the Corporation of Calcutta and after the expiry of the tenure service under the State Government, the petitioner is not entitled to come back to the Corporation of Calcutta as a matter of right. In the aforesaid circumstances, Mr. Roy submits that no inference by the writ court is called for against the decision taken by the corporation of Calcutta against the petitioner and this writ petition should therefore be dismissed. Mr. In the aforesaid circumstances, Mr. Roy submits that no inference by the writ court is called for against the decision taken by the corporation of Calcutta against the petitioner and this writ petition should therefore be dismissed. Mr. Roy has further contended that if the Court is ultimately inclined to hold that in the facts of the case the petitioner has not lost his permanent service, under the Calcutta Corporation by taking temporary appointment under the state Government, it should hold that the petitioner is entitled to the posting and salary and other privileges as available to the Lighting Inspector-in-charge namely the substantive post of the petitioner and the claim of the petitioner that the petitioner should be giving salaries and emoluments which was equal to the post of Additional Deputy Director of Operation (Conservancy) cannot be entertained. 9. AFTER giving my anxious consideration to the respective submissions made by the learned Counsels appearing for the parties, it appears to me that there is no provisions in the Calcutta Municipal Act and/or the rules and regulations framed thereunder that an employee of the Corporation of calcutta cannot be giving any permission whatsoever to accept employment Under arty other authority temporarily. In the instant case, before accepting temporary service for the purpose of being deputed to the service of the Corporation of Calcutta under section 47 A of the Calcutta Municipal Act, the petitioner expressly prayed for permission to accept such temporary service under the State Government and to remain in leave for the said period without pay. The Corporation of Calcutta in writing granted such permission and also granted leave to the petitioner. In such circumstances, it cannot be held that the petitioner's permanent service to the Corporation of calcutta stood automatically terminated with effect from 24th May, 1976 when for the first time the petitioner took temporary appointment under the State Government. As the Corporation of Calcutta granted leave to the petitioner it must be held that the petitioner remained an employee of the corporation of Calcutta to serve the State government temporarily and his employment under corporation of Calcutta remained suspended for the said period. 10. As the Corporation of Calcutta granted leave to the petitioner it must be held that the petitioner remained an employee of the corporation of Calcutta to serve the State government temporarily and his employment under corporation of Calcutta remained suspended for the said period. 10. SO far as the subsequent three years' service under the State Government is concerned, the petitioner before commencement of such extended service had also prayed for leave expressly intimating that the State government had intended to extend the petitioner's service so as to enable the petitioner to remain in deputation in the service of the Corporation of Calcutta. In the facts of the case, it appears to me that it was the duty of the Corporation of Calcutta to inform the petitioner expressly, if the Corporation had any objection of further continuance of the petitioner's temporary service under the State Government, that the Corporation was not inclined to grant any further leave to the petitioner but the Corporation of Calcutta not having done so, it must be held that the Corporation acquiesced to the petitioner's acceptance of temporary service by granting leave as prayed for and the principle of estoppel By a representation and the principle of election between two alternative courses of action as canvassed by Mr. Banerjee should be accepted. It should also be noted that for any deputation under section 47a, the Corporation of Calcutta is to be consulted by the state Government before making any appointment of a Government servant or a deputationist to the service of the corporation of Calcutta. It is, therefore, quite apparent that, both for the initial appointment for one year and for extension of the service of the petitioner for further three years, the Corporation of Calcutta had been consulted by the State Government and the corporation being aware of the whole fact, did not raise any objection whatsoever against the petitioner's continuance in the temporary Government service and the corporation of Calcutta also remained silent on the prayer of the petitioner to grant him further leave for three years without pay so as to enable him to serve the Corporation as a deputationist. Hence, the silence, when the Corporation had a duty to expressly declare its decision either to allow the petitioner to remain on leave or to come back, as an employee of the Corporation by giving up temporary Government service, must operate as an estoppel against Calcutta Corporation to contend that there had been automatic termination of petitioner's permanent service in the Calcutta Corporation. It may be noted that the Corporation of Calcutta can in an appropriate case grant leave for three years as an extra-ordinary leave under the regulation framed by the corporation of Calcutta governing the service conditions of its employees. Hence there cannot be automatic termination for an unauthorised absence of three years. 11. THAT apart, Mr. Banerjea is also justified in his contention that without giving the petitioner any reasonable opportunity of being heard, there cannot be any exparte decision of automatic termination of service and the decisions of the Supreme Court in jay Sankar and Mafatlal's cases (Supra) is applicable to the facts and circumstances of the case. 12. IN the circumstances, this writ petition must succeed. The Corporation of Calcutta is directed to treat the petitioner as a permanent employee of the Corporation of calcutta until he has attained the age of superannuation. The petitioner will be entitled to all the emoluments and benefits as a permanent employee of the Corporation of Calcutta for the period between may 25, 1980 upto the date of superannuation. The petitioner will also be entitled to post retirement benefit as admissible in law. The Corporation, however, should decide as to which post the petitioner will be deemed to have occupied after expiration of the tenure of service under the State government and will compute the salary and other benefits attached to such post. In making a decision as to the post to which the petitioner will be deemed to have occupied, the Corporation is reasonably expected to give due regard to the practice and precedence, if any; prevailing in the Corporation, Let such arrear salary be paid to the petitioner within two months from today and the Corporation will also make payment to the post retirement benefits to the petitioner in accordance with law as early as possible preferably within four months from today. Petition allowed.