JUDGMENT Anil K. Sen. J. This is an appeal under clause 15 of the Letters Patent directed against the judgment and order dated March 21, 1971, passed by a learned single judge of this court in Civil Rule No. 2422 (W) of 1971. That .Rule was obtained by the sole respondent to this appeal on a writ petition which having succeeded before the learned trial judge, the State of West Bengal and its authorities have preferred the present appeal. The only point that arises for consideration in this appeal is as to whether the sole respondent Manik Gopal Mondal who is the Secretary of Ahmadpur Anchal Panchayat, Ahmadpur, District Birbhum holds a civil post under the State of West Bengal or not. 2. There is no dispute that the sole respondent was so appointed as the Secretary of the Ahmadpur Anchal panchayat in the year 1960 in accordance with the provision of S. 48 of the West Bengal Panchayat Act, 1956 (hereinafter referred to as the said Act) and the Rules framed thereunder. A dispute was raised by the said respondent that the post of a Secretary of an anchal panchayat is a civil post under the State, and as such, on his appointment to the post of Secretary he had become a civil servant under the State of West Bengal. Such a claim the State Government denied and its authorities refused to concede and hence the sale respondent moved this court with the writ petition for issue of an appropriate writ declaring him to be a civil servant under the State of West Bengal and for admitting him to all the benefits on the basis thereof. 3. In contesting the claim so made in the writ petition an affidavit was filed on behalf of the appellants. In this affidavit the appellants pleaded that the sole respondent being appointed Secretary of the particular Anchal Panchayat became an officer and as such a servant of the Anchal Panchayat which is a body corporate constituted under S.30 of the said Act. Such a body corporate is independent of the State and its servants are not civil servants of the State. Such a body corporate is independent of the State and its servants are not civil servants of the State. It was stated that though under the provisions of S. 48 the power of appointment vested in the State and as such the sole respondent was actually appointed by the State yet thereby the sole respondent did not become a civil servant under the Slate. The post is not civil post under the State. Moreover, it was further stated that the sole respondent while discharging his functions as, a Secretary would be acting not under the control of the State Government nor would he be paid out of the State exchequer. Though such an opposition was filed, unfortunately for the appellants none appeared on their behalf at the time of hearing of the Rule and the learned judge in the trial court decided the matter ex parte and held that the post of a Secretary of an anchal panchayat is a civil post under the State, and as such, the sole respondent to this appeal being appointed to such a post must beheld to be a civil servant under the State of West Bengal and he gave a declaration accordingly. Feeling aggrieved by the said decision the State and its authorities have preferred the present appeal. 4. To decide the solitary dispute raised in the writ petition as also in this appeal it would be necessary to consider the true nature and character of the post of a Secretary of an anchal panchayat and determine with- reference thereto as to whether the post of a Secretary to an anchal panchayat is a Civil post under the State or not. The post of a Secretary of an anchal panchayat is a statutory post created by the said Act. Section 48 of the said Act which provides for officers and servants of the anchal panchayat is as follows :- "48. Officers and servants of Anchal Panchayat.-(l) For every Anchal Panchayat, there shall be a Secretary who shall be in charge of the Office of the Anchal Panchayat and shall be responsible for the preparation of its budget estimate of income and expenditure, the statement of accounts of the previous year, the report on the work done during the previous year and the work proposed to be done during the following year. (2) The Secretary shall be executive officer of the Anchal Panchayat and shall be appointed by the State Government or any officer or authority empowered by the State Government in this behalf. (3) An Anchal Panchayat may, at a meeting specially convened for the purpose, by a resolution delegate to its Secretary such duties or powers of the Anchal Panchayat as it thinks fit, subject to the approval of the prescribed authority, and may at any time by a resolution withdraw or modify the same: Provided that when any power delegated to the Secretary is withdrawn or modified, the Anchal Panchayat shall forthwith give intimation thereof to the prescribed authority. (4) Subject to the provisions of sub-section (3), the Secretary shall act ill respect of all other matters under the direction of the Pradhan through whom he shall be responsible to the Anchal Panchayat. (5) The State Government shall make rules prescribing the method of recruitment, conditions of service, pay and allowances and the age superannuation of the Secretary. (6) The salary and allowances of the Secretary shall be paid out of the Anchal Panchayat Fund. (7) Subject to rules made by the State Government in this behalf, an Anchal Panchayat may appoint such additional staff as it may consider necessary to carry out its duties under this Act, and may fix the salaries and allowances to be paid to such staff" 5. This provision makes it clear that a Secretary to an Anchal Panchayat is an officer of the Anchal Panchayat itself and happens be the executive officer of such Panchayat. Appointment to the post of such a Secretary, however, is left with the State Government or any officer or authority empowered by the State Government. The State Government is further authorized to prescribe by Rules the method of recruitment, conditions of service, pay and allowances and the age of superannuation of a Secretary so appointed. Appointment to the post of such a Secretary, however, is left with the State Government or any officer or authority empowered by the State Government. The State Government is further authorized to prescribe by Rules the method of recruitment, conditions of service, pay and allowances and the age of superannuation of a Secretary so appointed. But the salary and allowances are to be paid out of the Anchal Panchayat fund which under S. 55 consists of (a) contribution made by the State Government for general or special purposes, (b) any taxes, toll, fee, rate or other imposition levied and collected under the Act, (c) contributions by the District Board and other local authorities and (d) any other sum raised as loan or received as gift or contribution or other income from endowments or trusts made in favour of the panchayat (e) all fines and penalties imposed under the Act and (f) all other sums received under the provision of the Act or otherwise. Section 48 as aforesaid further provides that the Secretary shall be the principal executive officer of the panchayat and apart from discharging the functions specified in sub-section (l) - all in relation to the Panchayat itself, shall discharge such duties or exercise such powers of the Anchal Panchayat as the Anchal Panchayat may delegate. Under sub-s. (4) in discharging such functions (other than those delegated to him by the panchayat) the Secretary shall act under the direction of the Pradhan and through the Pradhan he shall be responsible for his acts to the Anchal Panchayat. 6. Being authorised by the statute the State Government made rules from time to time either providing for or amending the provisions in relation to the method of recruitment, conditions of service, pay and allowances and age of superannuation of such Secretary. Initially such rules were framed in the year 1958. Rule 43 of the Rules so framed prescribed the method of recruitment. Under the said method applications are to be invited by the Sub-divisional Magistrate who on consideration of such applications is to recommend 4 candidates and the State Government or any officer or any authority empowered by the State Government in this behalf is to appoint the Secretary out of the candidates so recommended. Rule 44 provides for the qualifications. Rule 45 provided for conditions of service. Rule 44 provides for the qualifications. Rule 45 provided for conditions of service. Under Rule 45, conditions in regard to leave and punishment for such Secretaries shall be the same as those prescribed for ministerial officers of tile lowest grade serving in the office of the Sub-divisional Magistrate or a District Magistrate, This Rule further provided that on a report from the Pradhan disciplinary action Can be taken against the Secretary by the District Panchayat Officer and an appeal shall lie to the District Magistrate. Under Rule 56 a service book and a character roll shall be maintained in respect of every permanent employee of an Anchal Panchayat and the Anchal Panchayat shall be responsible for maintenance of such service book and character roll. By a later amendment a somewhat peculiar provision was introduced as Rule 56A which authorised the District Panehayat Officer to transfer any officer serving under an Anchal Panchayat to some other Panchayat in the same subdivision. 7. The material provisions in Rules 43, 44 and 4S were amended by an amendment dated July 8, 1966. The only important change that was brought about was that the powers of appointment and discipline were vested in the Finance and Establishment Standing Committee of the Anchalic Parishad. The Finance and Establishment Standing Committee of the Zila Parishad was constituted the appellate authority in respect of disciplinary action taken against a Secretary. A further provision was incorporated by this amendment which authorised transfer of a Secretary of one Anehal panehat to another within the District by a Finance and Establishment Standing Committee of the Zila Parishad and such transfer beyond the District but within the Division by the Divisional Commissioner and beyond the division by the Director of Panchayat. 8. Those Rules were again amended by an amendment dated September 22, 1967 whereby the power to appoint a Secretary was vested in the Director of Panchayat and power to take disciplinary action other than removal and dismissal in respect of a Secretary was vested in the District Panchayat Officer while the power of removal and dismissal was vested in the Director of Panchayat. Under the Rules so amended, the Director of a Panchayat was made the appellate authority in respect of disciplinary action taken by the District Panchayat Officer while the State Government was made the appellate authority with regard to orders of removal and dismissal passed by the Director of Panchayat. These rules further provided that a Secretary to an anchal panehayat may be transferred from one Panehayat to another by the District Panehayat Officer within the District and beyond the District by the Director of Panehayat. 9. A further amendment introduced on January 13, 1969, sought to invest the power of appointment and discipline in the Finance and Establishment Standing Committee of Anchalic Parishad and Zila Parishad so also the power of transfer. But that again was done away with by the amendment dated December 21, 1973, which vested the power of appointment in the Director of Panchayat and the power at discipline in the District Panchayat Officer for imposing penalties other than removal and dismissal and Director of Panchayat for removal and dismissal. By these amendments, the Director of Panchayat was made the appellate authority in respect of disciplinary action taken by the District Panchayat Officer while the State Government was made the appellate authority in respect of orders of removal and dismissal when passed by the Director of Panchayat. Power of transfer from one panchyat to the other was vested in the District Pahchayat Officer and the Director of Panchayat. These are the material provisions which are to be taken into consideration for determining the true nature and character of the post of a Secretary of an anchal panchayat. 10. There can be no dispute that in order to be a civil servant under the State there most exist a relationship of master and servant between the State and the person who claims to be such a civil servant. Whether in a given case such a relationship exists or not, is a question of fact which has to be determined on consideration of all material and relevant circumstances having a bearing on that issue. (See State of U.P. & ors. v. Oudh Narayan Singh AIR 1965 SC 360 ). This position was reaffirmed by the Supreme Court in the case of State of Assam & ors v. Kausik Chandra Dutta, AIR 1967 SC 884 where it was observed. (See State of U.P. & ors. v. Oudh Narayan Singh AIR 1965 SC 360 ). This position was reaffirmed by the Supreme Court in the case of State of Assam & ors v. Kausik Chandra Dutta, AIR 1967 SC 884 where it was observed. ''The existence of relationship is indicated by the State's right to select to appoint the holder of the post, its right to suspend and dismiss him and it is right to control the manner and method of doing his work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of these indicia in conjunction with other circumstances and it is a question of fact in each case whether there is such a relationship between the State and the alleged holder of a post." So far as the post of a Secretary of an anchal panchayat is concerned it is no doubt true that the power of appointment to such a post vests in the State or its delegate and so also the power of discipline. But such power does not emanate from the position of the State being the master in respect of the person so appointed as the Secretary but because of the fact that such powers are specifically vested in the State. Existence of such powers in the hands of the State does not also constitute an indicia that State is the master because of other existing circumstances. Vesting of such powers of appointment and discipline in the State does not necessarily render the holder of such a post a servant under the State. It was rightly pointed by this court in the case of Barada Kanta Adhikari v. State, AIR 1963 Col. 161 that existence of such control of the State is not always decisive and that a certain amount of flexible interpretation guided by the facts of each case is a necessity in the present context of the Governmental administration. 11. In spite of the fact that such powers of appointment and discipline are vested in the State, the other attending circumstances go to show that the post of a Secretary was never intended nor created to be a civil post under the State. Holder of such a post is an officer and as such a servant of the body corporate, viz., the Panchayat. Holder of such a post is an officer and as such a servant of the body corporate, viz., the Panchayat. Had has been made a civil servant, there would have been no necessity to specifically authorise the State to prescribe the conditions of service and other allied matters. Moreover it is quite evident that a Secretary of an Anchal Panchayat discharges such functions as are all functions of the panchayat itself and not of the State. This Court in the case of Ena Ghosh v. State of West Bengal, AIR 1962 Cal. 420 pointed out that the most satisfactory test is a consideration of the functions discharged by the person and the question to be asked is as to whether these are Government functions which would only mean the day to day executive administration of the State. In applying the said test it cannot but be said that the Secretary does not perform any such Governmental function by virtue of his appointment as a Secretary and all his functions relate to the functions of the body corporate, namely, the anchal panchayat. That apart as we have indicated hereinbefore in discharging the ordinary functions the Secretary acts under the direction of the Pradhan through whom he remains responsible to the anchal panchayat. Thus, the right to control the manner and method of his doing the work vests not in the State Government but in the anchal panchayat. Lastly, it is of great importance that the salary and allowances of the Secretary are to be paid out of the anchal panchayat fund and not out of the State exchequer. On the scheme of S.48 and the Rules framed thereunder, it is quite clear that the Secretary to an anchal panchayat is One of the officers a lid servants of the anchal panchayat who discharges functions of the panchayat and dues so under the control of the panchayat and is paid out of the panchayat fund though the statute itself vests in the State the right to select and appoint the holder of such a post and so also the right to take disciplinary action against him. In spite of control of the State in those two respects the Secretary remains an officer, and as such, a servant of the body corporate. In spite of control of the State in those two respects the Secretary remains an officer, and as such, a servant of the body corporate. There arises no relationship of master and servant between the State and the holder of such a post and as such he does not become a civil servant under the State. Such a Secretary, in our view, holds a comparable post as that of an executive officer under S.67A of the Bengal Municipal Act or Commissioner of Calcutta Corporation under the Calcutta Municipal Act. Secretary of a panchayat is intended to be the principal executive officer of the panchayat which is to be run by a body of elected members who may represent varying and conflicting interest, and as such to provide some security and independence to the holder of such a post the legislature may have thought it prudent to leave control in those two respects in the State Government though primarily and substantially the post that was created was that of an officer, and as such, a servant of the body corporate. 12. The learned Judge in the trial court seems to have taken the view that when for all practical purposes a Secretary is appointed by the State Government and payment to him is also made through the State Government or at the instance of the State Government and his terms of service and conditions of employment are regulated by the State Government it should be held that the post of-a Secretary is that of a Government servant. The learned judge further observed that when the payment of salaries and allowances in respect of the Secretaries of anchal panchayats is made on the basis of bills drawn on account of pay and allowance and submitted to the State Government and the State Government plates necessary amount to the Block Development Officer for the purpose of acquaintance, it should be held that the salary and allowance of a Secretary are paid out of the State fund. In the opinion of the learned judge the report of a pay commission which was disclosed by the respondent in his writ petition also goes to support the claim that the Secretaries of anchal panchayats are Governments servants. We are however, unable to share the view thus taken by the learned judge in the trial court. In the opinion of the learned judge the report of a pay commission which was disclosed by the respondent in his writ petition also goes to support the claim that the Secretaries of anchal panchayats are Governments servants. We are however, unable to share the view thus taken by the learned judge in the trial court. Indeed there can be no dispute that the power of appointment, the power of taking disciplinary action and the power to specify the other conditions of service in respect of a Secretary of an anchal panchayat had been vested in the State. Such powers are however, exercised not because the State is the master and the holder of a post of a Secretary of an anchal panchayat is a servant under the State so that the State in the position of being the master exercises such powers. Such powers, on the other hand, are exercised because the statute makes a special provision, namely, though the Secretary would be one of the officers and servants of the body corporate, namely, the anchal panchayat still the power of appointment, the power to take disciplinary action and the power to lay down conditions of service are vested in the State and such powers are not left with the master who normally possesses them. We have held for reasons given hereinbefore that vesting of these powers in the State does not render the State to be the master in respect of a Secretary to an anchal panchayat. The learned judge in the trial court, however, failed to take note of the fact that the right to control the manner and method of doing the work by such Secretaries vests in the panchayat and that such a Secretary discharges functions of the panchayat itself and not Governmental functions. In our view the learned judge in the trial court is not correct in thinking that payment of salaries and allowances to such Secretaries is made by the State. The statute makes it very clear that such Secretaries are paid out of the panchayat fund and in our opinion so long it is so paid it is wholly immaterial how the bills are passed and acquaintance is obtained. The statute makes it very clear that such Secretaries are paid out of the panchayat fund and in our opinion so long it is so paid it is wholly immaterial how the bills are passed and acquaintance is obtained. Moreover reliance was placed by the learned judge in the trial court on a statement made in the affidavit in reply to the effect, that in the payment of salaries and allowances to the Secretaries of anchal panchayats bills on account of pay and allowances are submitted to the State Government and the State Government places the necessary amount to the Block Development Officer concerned for the purpose of acquaintance," the present appellants had no opportunity to meet or explain the said Statement made for the first time in the affidavit in reply and in our opinion such a procedure might have been adopted on the basis of a statutory direction made under S. 66 of the Act. It is obvious that the State Government may sanction necessary fund for meeting the expenses of paying the Secretaries in terms of S. 55 and payment of salaries and allowances of Secretaries out of such grants would not alter the situation since that grant would constitute a contribution to the anchal panchayat fund on which remains the charge of meeting the salary and allowances of these Secretaries. The pay commission report relied on by the sole respondent in support of his claim which according to the learned judge supports such a claim does not in our view do so. Reference to the pay commission itself dated March 1, 1971, would show that what was being referred to is to examine and recommend what changes should be made in the structure of emolument and other allied matters in respect of employees other than Government employees and in this category one of the items is the Secretaries of anchal panchyats. The pay commission in recommending a revision of pay recorded an objection that though these Secretaries are employees of Anchal panchayars curiously enough they are appointed by Director or panchayat and that the same creates an anomalous position from the point of view of control and discipline. The pay commission in recommending a revision of pay recorded an objection that though these Secretaries are employees of Anchal panchayars curiously enough they are appointed by Director or panchayat and that the same creates an anomalous position from the point of view of control and discipline. Some of the members of the commission in recording a note of their own observed "We also recommend that for all practical purposes they (Secretaries) should be treated at par with the Government employees.” It is difficult for us to find anything in this report of the pay commission which can be said to be supporting the claim of the sole respondent that Secretaries of anchal panchayats are Government servants. The recommendation recites just the other way when it accepts the position that they are the officers and servants of the body corporate. Had these Secretaries been Government servants it would have been wholly unnecessary for the members of the pay commission to recommend that they should be treated at par with Government employees. We are, therefore, unable to accept the view taken by the learned judge in the trial court that Secretaries to anchal panchayats are Government servants or they hold civil posts under the Slate. 13. One of the conditions of service prescribed which brings in certain amount of incongruity is the provision for transfer of a Secretary from one panchayat to another. Normally a servant is to serve his own master and transfer of his services to another master without his consent is more consistent with servitude than with the ordinary relationship of master and servant. We have our doubts as to how far such a condition Could lawfully be prescribed in exercise of powers under S. 48 or how far it can at all be said to be a condition of service where the service to be rendered is to the particular panchayat of which such a person is appointed the Secretary. It is, however not necessary for us to go into such an isue because imposition of such a condition does not derogate from the position that so long appointed with a particular panchayat he remains its officer and servant. It is, however not necessary for us to go into such an isue because imposition of such a condition does not derogate from the position that so long appointed with a particular panchayat he remains its officer and servant. Moreover such a condition is not peculiar for the post of a Secretary alone since under Rule 56A all other servants of an anchal panchayat are liable to such transfer and it can never be claimed that all of them are Government servants. Such a condition is super-imposed by the statutory Rules and binds the holder of the statutory post. 14. In this appeal on behalf of the respondent an application has been filed for leave to produce additional evidence. In our view, the application itself does not make out any case for entertainment of additional evidence at the instance of the respondent. Moreover, it is not at all necessary for us to go for any additional evidence since the entire position is to be determined with reference to the provision in the statute and the Rules framed thereunder which we have considered in detail hereinbefore. A number of Government orders or memoranda which were sought to be relied upon by the sole respondent by way of additional evidence would not in our view change the position and those documents too do nut lead to any conclusion which would be inconsistent with the view taken by us. In this view we dismiss the application for additional evidence. 15. In the result, the appeal succeeds and is allowed. The judgment and order passed by the learned judge in the trial court is set aside, The sole respondent's writ petition fails and is dismissed. Parties to bear their costs throughout. B.C. Chakrabarti, J. I agree. Appeal allowed.