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1990 DIGILAW 452 (ALL)

TRILOKI NATH PANDEY v. STATE

1990-04-30

H.C.MITTAL, V.N.KHARE

body1990
V. N. KHARE, J. ( 1 ) SINCE common questions of fact and law in this writ petition and in the connected writ petitions are involved, we propose to decide these writ petitions by a common judgment. ( 2 ) THE petitioner in Writ Petition No. 4215 of 1990 is an Advocate and was appointed as a District Government Counsel (Civil), Basti on 7-4-1983 for a period of one year. His appointment as District Government Counsel (Civil) Basti is alleged to have been extended from time to time, the last extension being for a period from 1-7-1989 to 30-6-1992. ( 3 ) PETITIONER No. 1 in Writ Petition No. 4392 of 1990 is an Association duly registered with the Registrar of Societies, Chits and Firms, U. P. Lucknow-W, known as U. P. Government Counsel (Criminal) Welfare Association, Meerut Branch, District Courts, Meerut (hereinafter referred to as an association ). The Association is said to be a State Level Organisation of Public Prosecutors and Additional Public Prosecutors appointed under Section 24 of the Code of Criminal Procedure having its headquarter at Bareilly. Petitioner No. 2 is its Secretary. ( 4 ) IN Writ Petition No. 4214 of 1990 petitioner No. 2 was appointed as District Government Counsel (Criminal) for a period of one year. His term of office was renewed for another three years. ( 5 ) WRIT Petition No. 4208 of 1990 has been filed by U. P. Government Counsel (Criminal) Welfare Association having its office at District Judges Court, Bareilly through its President Srikant. The President of the Association was appointed as District Government Counsel (Criminal) and his term was renewed from time to time and his present term was extended from 1-7-1989 to 23-6-199o. ( 6 ) THE petitioner in Writ Petition No. 4417 of 1990 was appointed as District Government Counsel (Revenue), Basti by order dated 12-8-1988 for a period of one year. Although his term of office has not been renewed but he has been allowed to continue till further orders. ( 7 ) IN Writ Petition No. 4479 of 1990 the petitioner was appointed as Additional District Government Counsel (Revenue) for a period beginning from 1-7-1987 to 30-8-1989. Although the term of the petitioner has not been renewed yet he is still continuing to act as such. ( 8 ) IN Writ Petition. ( 7 ) IN Writ Petition No. 4479 of 1990 the petitioner was appointed as Additional District Government Counsel (Revenue) for a period beginning from 1-7-1987 to 30-8-1989. Although the term of the petitioner has not been renewed yet he is still continuing to act as such. ( 8 ) IN Writ Petition. No. 4424 of 1990 the petitioner is a Panel Lawyer appointed by the State Government. ( 9 ) THE petitioner in Writ Petition No. 4500 of 1990 is a District Government Counsel (Criminal) Azamgarh and his term as District Government Counsel (Criminal) has been renewed for three years from 17-8-1989 to 3-7-1992. ( 10 ) THE petitioner in Writ Petition No. 6025 of 1990 is District Government Counsel (Civil) at Etawah and continued to work as such till 28-2-1990. ( 11 ) THE petitioner in Writ Petition No. 6026 of 1990 is working as a Panel Lawyer since 1983 appointed by the State Government. ( 12 ) THE petitioners in Writ Petition No. 6027 of 1990 are working as Assistant Public Prosecutors Fatehpur since 1983. ( 13 ) THE petitioner Swami Dayal in Writ Petition No. of 1990 was appointed as Sub- District government Counsel (Civil), Bansi, Siddharthnagar. ( 14 ) IN Writ Petition No. of 1990, filed by Gangadhar Upadhyay on 15th March, 1990, the petitioner was appointed as District Government Counsel (Revenue) and is working as such in Jaunpur. ( 15 ) BY means of these writ petitions under Article 226 of the Constitution the petitioners have challenged the legality of the Government order dated 6th February, 1990 directing that the terms of all the Government Counsel including Penal Lawyers should be extended only up to 28th February, 1990 and the District Magistrates of the Districts have been required to send fresh names for fresh appointments as District Government Counsel (Civil), District Government Counsel (Criminal), District Government Counsel (Revenue), Assistant Panel Lawyers and others. The impugned order further provides that the present Government Counsel shall be allowed to work only up to 28th February, 1990 and thereafter their appointment shall be terminated. A copy of the Government Order has been annexed as Annexure No. 4 to Writ Petition No. 4215 of 199o. The impugned order further provides that the present Government Counsel shall be allowed to work only up to 28th February, 1990 and thereafter their appointment shall be terminated. A copy of the Government Order has been annexed as Annexure No. 4 to Writ Petition No. 4215 of 199o. This Government Order has been challenged on number of grounds and common prayer is for issuing a writ of certiorari quashing the impugned order and for issue of a writ of mandamus directing the respondents not to give effect to the order dated 6th February, 1990 and further directing the respondents not to proceed with the fresh selection in pursuance of the advertisement dated 14th February, 1990. ( 16 ) SRI G. P. Mathur, learned counsel appearing for the petitioner in Writ Petition No. 4215 of 1990 argued that the office of District Government Counsel (Civil) is a civil post within the meaning of Article 311 of the Constitution and, therefore, District Govt. Counsel (Civil) holds a civil post within the meaning of Article 311 of the Constitution and as such the appointment of the petitioner could not be terminated without giving him a notice to show cause against such termination as contemplated under Article 311 of the Constitution. ( 17 ) THE learned counsel while elaborating his argument maintained that the petitioner holds a civil post under the State Government and as such is servant of the State Government and there exists a relationship of master and servant between the State and the petitioner. In view of this argument it has to be seen as to whether there exists a relationship of master and servant between the petitioner and the State Government and if it is found that the petitioner is not a servant of the State Government, he cannot be said to hold a civil post under the State Government, within the meaning of Art. 311 of the Constitution. ( 18 ) LEARNED counsel for the petitioner referred to us decisions in State of Uttar Pradesh v. Audh Narain Singh, AIR 1965 SC 360 , State of Assam v. Kanak Chandra Dutta, AIR 1967 SC 884 , State of Gujarat v. Raman Lal Keshav Lal Soni, AIR 1984 SC 161 , Mohammad Matteen Qidwai v. The Governor General in Council, AIR 1953 All 17 and Bibhuti Narayan Singh v. State, 1986 (2) UPLBEC 1130, laying down several tests for determining relationship of employer and employee between the Government and the persons appointed by it. ( 19 ) LEARNED counsel before referring to various elements which according to him establish the relationship of master and servant between the petitioner and the State Government, referred to various tests laid down by the Supreme Court in the decisions noted above which determine the relationship of master and servant. ( 20 ) IN State of Uttar Pradesh v. Audh Narain Singh ( AIR 1965 SC 360 ) (supra) in paragraph 8 it was observed thus:-"whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinarily the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant. If the employer has the power, prima facie, the relation is that of master and servant. " ( 21 ) IN the State of Assam v. Kanak Chandra Dutta ( AIR 1967 SC 884 ) (supra) in paragraph 9 it was observed thus:-"the question is whether a Mauzadar is a person holding a civil post under the State within Art. 311 of the Constitution. There is no formal definition of "post" and "civil post". The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Art. 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or the State, see marginal note to Art. 311. In Art. 311, a member of a civil service of the Union or an all India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State, see the marginal notes to Arts. 309, 310 and 311. The heading and the sub-heading of Part XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. " ( 22 ) IN State of Gujarat v. Raman Lal Keshav Lal Soni ( AIR 1984 SC 161 ) (supra) in para 27 it was observed thus :-"we have to first consider the question whether the members of the Gujarat Panchayats Service are Government servants. Earlier we have already said enough to indicate our view that they are Government servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant, none may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employees 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 a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. Amongst the cases cited before us were Gurugobinda Basu v. Sankari Prasad Ghosal, (1964) 4 SCR 311 , AIR 1964 SC 254 ; State of Uttar Pradesh v. Audh Narain Singh, (1964) 7 SCR 89 ; State of Assam v. Kanakchandra Dutta, (1967) 1 SCR 679 ; Gurushantappa v. Abdul Khuddus, (1969) 3 SCR 425 : "we have to first consider the question whether the members of the Gujarat Panchayats Service are Government servants. Earlier we have already said enough to indicate our view that they are Government servants. Earlier we have already said enough to indicate our view that they are Government servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant, none may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employees 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 a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. Amongst the cases cited before us were Gurugobinda Basu v. Sankari Prasad Ghosal, (1964) 4 SCR 311 , AIR 1964 SC 254 ; State of Uttar Pradesh v. Audh Narain Singh, (1964) 7 SCR 89 ; State of Assam v. Kanakchandra Dutta, (1967) 1 SCR 679 ; Gurushantappa v. Abdul Khuddus, (1969) 3 SCR 425 : .