Girish Jantilal Vaghela vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1302 Bom

JUDGMENT

D.B. Bhosale, J.

1. Rule. By consent rule is made returnable forthwith. Mr. M.S. Karnik, learned Counsel waives service for respondent No. 1 Mr. Girish Kulkarni, learned Counsel waives services for respondent No. 2. None for respondent Nos. 3 and 4 though served.

2. The short question involved in the present writ petition, filed under Article 226 of the Constitution of India, is that as to whether petitioner falls with a category of "Government servant", who was appointed as a Drugs Inspector in Medical and Health Department of respondent--administration, on contract basis, initially for a period for six months and was continued in the said post for over six years.

3. Briefly stated, the petitioner was appointed as a Drug Inspector on 11th March, 1996 after holding an interview by 2nd respondent and finding him qualified for the said post. The petitioner's appointment was on contract basis for a period of six months or till the U.P.S.C. nominee joins the said post. Admittedly, petitioner was continued for over six years, after initial period of six months was over, with artificial brakes (breaks) for a day or two.

Respondent No. 3 U.P.S.C., at the instance of respondent No. 2--Administrator published an advertisement dated 24th March, 2001 to select a candidate for the post of "Drugs Inspector" on regular basis. In the advertisement, relaxation of age limit upto five years was provided for the Government servants. On 12.04.2001, which was the closing date to apply to 3rd respondent--U.P.S.C. for selection to the said post, the petitioner's age was 32 years. He was over age by 2 years. It is the case of petitioner that in view of relaxation of age limit upto five years, he submitted representation to 2nd respondent on 29th March, 2001 requesting to issue an "age relaxation certificate". Since there was no response from 2nd respondent, the petitioner filed Original Application before Mumbai Bench of C.A.T. on 16th July, 2001 praying for directions to 2nd respondent to issue the age relaxation certificate.

The C.A.T. by its order dated 17th July, 2001 disposed of the Original Application filed by the petitioner with direction to 2nd respondent to decide petitioner's representation dated 29th March, 2001. However, no certificate stating that the petitioner is a Government servant was issued to him. In the meanwhile 3rd respondent issued an interview call to the petitioner to attend the interview provided he produces the said certificate. The petitioner, in response to the interview call, sent representation dated 29th September, 2001 to 3rd respondent explaining with instances and quoting decision of the Apex Court that he falls in the category of Government servant. It is the case of petitioner that 3rd respondent was prima facie satisfied and, therefore, allowed him to participate in the interview. However, 3rd respondent insisted for the certificate from 2nd respondent to the effect that petitioner is a Government servant. Once again 2nd respondent refused to give clear cut certificate stating that the petitioner is a Government servant.

After 2nd respondent refused to grant certificate the petitioner filed second O.A. No. 56 of 2002 before C.A.T., which passed interim order to the effect that any appointment made to the said post thereafter would be subject to outcome of the said Original Application. After five months of the interview, 3rd respondent cancelled candidature of petitioner, and recommended the name of 4th respondent for appointment to the said post of Drugs Inspector. However, 2nd respondent made conditional offer of appointment to 4th respondent for the said post stating that his appointment shall be subject to outcome of the Original Application filed by the petitioner before the Mumbai Bench of C.A.T.

4. It appears from the record that after the dismissal of petitioner's Original Application by the C.A.T. on 21st June, 2002 his services were continued upto 30th September, 2002. Since the petitioner's service was contractual and his term had come to an end on 30th September, 2002, it was not extended further. The principal question to be considered by this Court was whether petitioner falls within a category of "Government Servant" and he has been wrongly denied age relaxation certificate by 2nd respondent. According to the petitioner in the interview held by U.P.S.C., he has been chosen at serial No. 1 in the merit list. The letter dated 13th March 2002, of the U.P.S.C. placed on record by respondent Nos. 1 and 2, however, suggests that the petitioner's candidature has been cancelled. In view thereof we had by our order dated 1st October, 2002 directed not to fill in the post of Drugs Inspector in Medical and Health Services, Administration of Daman and Diu, till the matter is heard on merits.

5. The reply affidavit has been filed by 2nd respondent alone. It has been stated by 2nd respondent that the petitioner was appointed on ad hoc basis from time to time and he worked as a contract employee and not as regularly appointed candidate. It is further stated that petitioner was not entitled for any age relaxation as he was not a regularly selected candidate and in view thereof he cannot be said to be a Government servant under Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short "Central Civil Rules"). The petitioner has filed affidavit-in-rejoinder wherein he has reiterated the case set up by him in the writ petition.

6. We heard learned Counsel for the parties for quite some time. Perused the writ petition and documents annexed thereto and reply-affidavit filed by respondent No. 2.

7. Mr. C.U. Singh, learned Counsel appearing for petitioner at the outset submitted that petitioner was appointed on the post of Drugs Inspector after holding an interview and finding him qualified for the said post. He further submitted that while not considering petitioner as "Government servant" 3rd respondent failed to apply its mind correctly because in Central Civil Rules the definition of "Government servant" is given in which the case of petitioner is covered within the meaning of "Government servant". He further submitted that 2nd respondent had the right to appoint, the right to terminate the employment of petitioner, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by petitioner, the right to control the manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and in view thereof petitioner ought to have been treated as a member of civil services and a Government servant. In support, Mr. Singh, learned Counsel for petitioner placed reliance on the decisions of the Supreme Court in "State of U.P. and Ors. v. Chandra Prakash Pandey and Ors., ", "State of Assam v. Kanak Chandra ", "The Superintendent of Post Offices and Ors. v. P.K. Rajamma, ". On the other hand Mr. Karnik, learned Counsel for respondent No. 1, fairly, invited our attention to the decision of the Supreme Court in Purshottam Lal Dhingra v. Union of India, , and submitted that petitioner falls in the category of a member of civil service and, a "Government servant". Mr. (Ms.) Solani (Sonali) Joshi, learned Counsel appearing for respondent No. 2 reiterated the statements made in reply affidavit and invited our attention to the judgment of the Supreme Court in State of Haryana and Ors. v. Jasmer Singh and Ors., 1997( 1) SLJ 129 (SC).

8. The petitioner was appointed to the post of Drugs Inspector on short term contract basis at fixed monthly rate of Rs. 4,720/- and was posted in the Primary Health Center, Daman initially for a period of six months or till the date the Union Public Service Commission selected candidate joins his duty on regular basis, whichever was earlier. However, there is no dispute that the regular candidate was not selected for a period of six years and the petitioner was continued on the said post with artificial breaks of a day or two. It is also not disputed that during the period in which petitioner worked as a Drugs Inspector, he performed all the duties, which in ordinary course of business arc assigned to the Drugs Inspector. Though not admitted, the respondents have not seriously disputed that there was no relationship of master and servant between the Government and the petitioner.

9. The petitioner was informed by 3rd respondent by the impugned letter dated 13th March 2002, that since he was working on contract basis, was not entitled for age relaxation which is granted to a Government servant. Respondent No. 3 had, therefore, cancelled his candidature for the post of Drugs Inspector. The only reason assigned in the impugned letter was that the petitioner was working on contract basis in the Administration of Daman and Diu, Directorate of Medical and Health Services, Daman, and, therefore, he was not entitled for the age relaxation, which is granted to a Government servant. The Government servants were allowed on uniform basis, relaxation of maximum of five years in the upper age limit for recruitment to "group A" and "group B" posts advertised by the commission. In other words the age relaxation was admissible to such Government servant, who are working in the posts which are in the same lines or allied cadre and where relationship would be established that the service already rendered in particular post will be useful for the efficient discharge of the duties of the post (recruited) to which recruitment has been advertised. In the advertisement the decision was left to 3rd respondent commission. However, the commission by impugned letter informed the petitioner that his candidature could not be considered for want of certificate of age relaxation. As stated in the earlier paragraphs, there is no dispute that petitioner was holding required qualification for the post of Drugs Inspector and he was selected after holding an interview. The record also demonstrates that 2nd respondent had right to terminate employment of the petitioner. Taking into consideration the duties performed by the petitioner it is clear that there was a relationship between petitioner and 2nd respondent as master and servant and 2nd respondent had administrative control over petitioner being a Drugs Inspector. The existence of this relationship also demonstrates that the respondent No. 2 had a right to suspend and dismiss him and further to control manner and method of his doing work and the payment of his wages or remuneration.

10. In order to answer the question raised in the present writ petition let us turn to decision of the Supreme Court in State of U.P. and Others (supra), placed reliance upon by Mr. C.U. Singh, learned Counsel for the petitioner. According to Mr. C.U. Singh the case of petitioner is squarely covered by the principle laid down in the report. In the case of State of U.P. and others, the question involved whether Kurk Amins appointed on commission basis by different District Magistrates/Collectors within the State of U.P. for realization of outstanding dues of the various co-operative societies as arrears of land revenue could be treated to be employees of State Government holding civil posts under the State of U.P. within the meaning of Article 311 of the Constitution of India. Before the Supreme Court, the State contended that the Kurk Amins in question could not be treated to be Government servants holding civil posts under the State of U.P., as they were appointed under a scheme framed by the registrar of Co-operative Societies. The Apex Court negatived the contention of the State and dismissed their appeals. Mr. C.U. Singh, learned Counsel appearing for petitioner placed reliance upon paragraphs 10 and 11 of the report which reads thus :

"10. The question is when a person can be said to be holder of a civil post has been the subject-matter of consideration before this Court on numerous occasions. In the case of State of Assam v. Kanak Chandra Dutta a Constitution Bench of this Court was considering a case where a Mauzadar was appointed for collection of land revenues. He was working as Revenue Officer and ex-officio Assistant Settlement Officer exercising delegated powers of the Government and the State had the power and right to select and appoint him in asmuch as power to suspend and dismiss. The Mauzadar was drawing not a regular salary but commission by way of a remuneration. The Court observed that there must be existence of relationship of master and servant between the State and its employees and such a relationship can be established by presence of all or some of the ingredients. After due consideration of the entire matter, the Court laid down the law as follows :

"11. Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State and attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Revenue Officers and ex-officio Assistant Settlement Officers. Originally, a Mauzadar may have been a revenue farmer and an independent contractor. But having regard to the existing system of his recruitment, employment and functions, he is a servant and holder of a civil post under the State.

12. Counsel for the State stressed the fact that normally a Mauzadar does not draw a salary. But a post outside the regularly constituted services did not necessarily carry "a definite rate of pay". The post of a Mauzadar carries with it a remuneration by way of a commission on collections of Government dues. Counsel stressed the fact that a Mauzadar is not a whole time employee. But a post outside the regularly constituted services may be a part-time employment. The conditions of service of a Mauzadar enable him to engage in other activities.

13. In Venkata Swamy v. Supdt. of Post Offices the Orissa High Court held, on a consideration of the relevant conditions of employment that a temporary Extra-departmental Branch Postmaster was not a person holding a civil post, but the observation in that case that a part time employee cannot be the holder of a civil post outside the regularly constituted services is too wide and cannot be supported."

In the case of Supdt. of Post Offices v. P.K. Rajamma this Court was considering the case whether extra-departmental agent held a civil post and for his dismissal or removal the provision of Article 311 (2) of the Constitution was applicable. The Court laid down that an extra-departmental agent held a civil post and his dismissal or removal would be invalid if there was infraction of provisions of Article 311(2) of the Constitution as it then stood. The Court observed that extra-departmental agent was not a casual worker but he held a post under the administrative control of the State and relationship between the postal authorities and the extra-departmental agent was that of a master and servant."

11. Similarly in the case of Purshottam Lal Dhingra (supra), the Apex Court held that, when a servant has right to a post or to a rank either under the terms of the contract of employment expressed or implied or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right. As stated earlier Mr. Karnik, learned Counsel for respondent No. 1 invited our attention to paragraph 14 of the report which reads thus :

"14. Article 311 does not, in terms, say that the protections of that article extend only to persons who are permanent members of the services of who hold permanent civil posts. To limit the operation of the protective provisions of this article to these classes of persons will be to add qualifying words to the article which will be contrary to sound principles of interpretation of a Constitution or a statute. In the next place, Clause (2) of Article 311 refers to such person as aforesaid "and this reference takes us back to Clause (1) of that article which speaks of a "person who is a member of a civil service of the Union of an all India service or a civil service of a state or holds a civil post under the Union or a State". These persons also come within Article 310(1) which, besides them, also includes persons who are members of the specified services or who hold permanent post connected with the services therein mentioned. To hold that that Article covers only those persons who are permanent members of the specified services or who hold posts connected with the services therein mentioned will be to say that persons, who are not permanent members of those services or who do not hold permanent post therein, do not hold their respective offices during the pleasure of the President or the Governor, as the case may be--a proposition which obviously cannot stand scrutiny. The matter, however, does not rest here. Coming to Article 311, it is obvious that if that Article is limited to persons who are permanent members of the services or who hold permanent civil posts, then the constitutional protection given by Clauses (1) and (2) will not extend to persons who officiate in a permanent post or in a temporary post and consequently such persons will be liable to be dismissed or remove by an authority subordinate to that by which they where appointed or be liable to be dismissed, removed or reduced in rank without being given any opportunity to defend themselves. The latter classes of servants require the constitutional protections asmuch as the other classes do and there is nothing in the language of Article 311 to indicate that the Constitution makers intended to make any distinction between the two classes. There is no apparent reason for two classes. There is no apparent reason for such distinction. It is said that persons who arc merely officiating in the posts cannot be said to "hold" the post, for they only perform the duties of those posts. The word "hold" is also used in Articles 58 and 66 of the Constitution. There is no reason to think that our Constitution @page-SC44 makers intended that the disqualification referred to in Clause (2) of the former and Clause (4) of the latter should extend only to persons who substantively held permanent posts and not to those who held temporary posts and that persons officiating in permanent or temporary posts would be eligible for election as President or Vice-President of India. There could be no rational basis for any such distinction. In our judgment, just as Article 310, in terms, makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Article 311, in our views, makes no distinction between the two classes, both of which are, therefore, within its protection and the decisions holding the contrary view cannot be supported as correct."

12. Thus, it is clear that Article 311 of the Constitution, does not, in terms, say that the protection of that Article extends only to persons who are permanent members of the services or who hold permanent civil post. In other words, there is nothing in the language of Article 311 to indicate that the Constitution makers intended to make any distinction between a permanent or temporary post. If an employee who is holding civil post, which is permanent in nature, is not treated as a member of the civil services or a Government servant, as held by the Apex Court in Purshottam Lal Dhingra (supra), such an employee would not be entitled for Constitutional, protection by Clauses (1) and (2) of Article 311 of the Constitution who officiate in a permanent post or on temporary post, and consequently such person will be liable to be dismissed or removed without being given any opportunity to defend themselves. No distinction, therefore, could be made between the permanent members of the civil service and one who hold permanent civil post on temporary basis or on contract basis such as the petitioner. Undoubtedly, petitioner was holding the post of Drugs Inspector for almost six years with artificial breaks of day or two, he was qualified to hold that post and he was getting remuneration of sum of Rs. 4,720/-for holding the said post.

13. Thus, the law on the question involved in the present case is no more res integra, and finds answer in the aforesaid judgments of the Supreme Court. In short, for our purpose, whether a person working with the Government either on temporary or contract basis, could be treated as Government servant holding civil post, would depend upon the following factors: the power and right to select and appoint such person inasmuch as power to suspend and dismiss vest in the Government, there exist a relationship of master and servant between the Government and servant between the Government and such person, he works under the supervision and the administrative control of the Government, he receives by way of remuneration either salary or fixed monthly payment, the right to prescribe the conditions or service, nature of duties performed and right to control such an employee's manner and method of work etc., in the present case we are of the considered view that the petitioner does comply he aforesaid factors. We, therefore, find no reason for not holding that the petitioner was a Government servant holding a civil post.

14. Reliance placed on State of Haryana and Ors. v. Jasmer Singh and Ors. (supra) would not help the respondents since on facts. Itself the said judgment could be distinguished and in view thereof the principle laid down by the Apex Courts in the report would not help the respondents. In case of Jasmer Singh and Others the respondents therein were employed on daily wages by the State of Haryana from different dates and in that case the prayer of the respondents was that on the basis of "equal pay for equal work" they should be paid same salary as it is being paid to regularly employed persons holding service in the State of Haryana. While allowing the appeal the Supreme Court in paragraph 7 of the report held thus :

"The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the state of Haryana holding similar posts. Daily-rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfill the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workman for the purpose for their wages. Nor can they claim the minimum of the regular pay-scale of the regularly employed."

15. For the reason stated above, we hold that a person holding permanent posts, may be temporary or on contract basis, if fulfills the conditions enumerated in the earlier paragraphs is to be treated as a Government servant holding civil post. We have, therefore, no hesitation in holding that petitioner was a member of civil service and a Government servant and in view thereof was entitled for age relaxation certificate for considering him for the pose of Drugs Inspector.

16. In the result, this Petition is allowed. Rule is made absolute in the following terms:

(i)       The judgment and order dated : 21st June, 2002, passed by the Central Administrative Tribunal in Original Application No. 156 of 2002 is quashed and set aside.
 

(ii)     Second respondent is directed to issue and age relaxation certificate to the petitioner forthwith and forward it to third respondent.
 

(iii)    The recommendation made by 3rd respondent to 2nd respondent to send an offer of appointment to 4th respondent is quashed and set aside. The offer of appointment, is already sent, by 2nd respondent to 3rd respondent shall stand cancelled.
 

(iv)    The 3rd respondent is directed to consider petitioner's claim for the recommendation to 2nd respondent for sending an offer of appointment a Drugs Inspector. Needless to say that if respondent No. 4 is found more meritorious it would be open for 3rd respondent to take appropriate decision.
 

(v)     Writ Petition, accordingly, stands disposed of. No costs.