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1991 DIGILAW 59 (CAL)

Sukumar Samanta v. State of West Bengal

1991-02-08

Ruma Pal

body1991
ORDER The question involved in this writ petition is whether the petitioner who is employed in the office of the Advocate General as a Lower Division Clerk is entitled to Provident Fund. Group Insurance and other benefits. 2. According to the respondents 1, 2 and 4, the State Provident Fund Rules, Group Insurance Rules etc. apply only to State Government employees. It is contended that the petitioner is not an employee of the State Government but a personal employee of the Advocate General. Therefore, the only question to be determined in this case is whether the petitioner is a State Government employee or not. The facts relating to the petitioner's appointment are as follows. 3. At the instance of the Advocate General, West Bengal by Memo No. 10775-J dated 30.8.1977 the Judicial Department of the Government of West Bengal sanctioned the creation of the post of Lower Division Clerk and Peon on temporary basis under the Advocate General. The said sanction was given with the concurrence of the Finance Department by its Memo No.U(O)-G/868 dated 27.8 1977. Copies of the order were forwarded to the Legal Remembrancer West Bengal and to the Advocate General West Bengal with the note "Appointments to the posts should be made through the appropriate procedure". 4. The petitioner was appointed to the temporary post of Lower Division Clerk by an Order dated 1.9.1977 issued by the Advocate General, West in the scale of Rs. 230-425 "plus other allowances as admissible under the rules." 5. By Memo No. 11064 J dated 215.1981 the temporary post of Lower Division Clerk in the office of the Advocate General, West Bengal, was converted into a permanent post by the Government of West Bengal. It is specified in the order that "The charge will be met from the provision under the head 214 Administration of office-Legal Advisers & Counsels-Advocate General, standing counsels & Solicitors-Salaries." 5A. By an order no. 1354 (A) (B) (C) /A.G.I dated 4.6.1981 the petitioner was appointed permanently to the said post of Lower Division Clerk with effect from 1st March 1981 by the then Advocate General, West Bengal. 6. From the copy of the pay sheet annexed to the affidavit-in-reply it appears that apart from his basic pay the petitioner was paid Dearness Allowance, Medical Allowance. Interim Relief etc. 7. 6. From the copy of the pay sheet annexed to the affidavit-in-reply it appears that apart from his basic pay the petitioner was paid Dearness Allowance, Medical Allowance. Interim Relief etc. 7. After the petitioners permanent appointment in 1981 there was a change in the personnel of the Advocate General's post twice. 8. In the case of The State of Assam & ors. v. Kanak Chandra Dutta reported in AIR 1967 SC 884 , the Supreme Court had to consider whether a Muuzadar was holding a post under the State entitling him to the protection of Art. 311 of the Constitution. At paragraphs 9 and 10 of the Judgment the Supreme Court stated: "l9)......... 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 State's 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. (10) In the context of Arts, 309, 310 and 311. a post denotes an office. A person who bolds a civil post under a State holds "office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution, see Art. 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphases the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labour is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post." 9. The Supreme Court came to the .conclusion that Mauzadars were servants and holders of civil post under the State having regard to the mode of their recruitment, employment and functions even though they did not draw a salary and were not whole-time employees. 10. Applying the test in Kanak Chandra Dutta's case (supra), the Supreme Court has also held that extra departmental employees were government employees in the case of Superintendent of Post Offices v. P. K. Rajamma reported in (1977) 3 SCC 941=A 1977 SC 1677 and employees of Gram Panchayets under the Gujarat Gram Panchayets Act 1961 were Government employees in the case of State of Gujarat v. R. L. Keshav Lal reported in (1980) 4 SCC 653 = A 1981 SC 53. 11. Therefore the question whether there is a relation of master and servant between the petitioner and the State Government will have to be determined taking into consideration the factors inler alia of his appointment, control, removal, remuneration, functions and any other attendant circumstances. 12. It is submitted on behalf of the respondents nos. 1, 2 and 4 in support of their contention that the petitioner is not a State Government employee that (i) the petitioner was under the administrative control and was a personal employee of the Advocate General, West Bengal. The position of the petitioner has been likened to the post of a Confidential Assistant to a Minister who is paid by the State Government but whose tenure in the office extends only so long as he retains the confidence of a Minister, and in any event until there is a change in the Ministry. (ii) the office of the Advocate General is not a Government office and the employees in such office were not entitled to the benefit of the service conditions which were applicable to State Government employees; (iii) a State Government employee has to be recruited in the manner prescribed. (ii) the office of the Advocate General is not a Government office and the employees in such office were not entitled to the benefit of the service conditions which were applicable to State Government employees; (iii) a State Government employee has to be recruited in the manner prescribed. According to the said respondents the petitioner has not been recruited in the manner other employees of the State Government have been and are required to be employed; (iv) the State Government is only concerned with the financial aspect of the matter inasmuch as the petitioner was entitled to be paid out of the funds of the State Government. The qualifications and nature of the work performed by the petitioner were not commensurate with those of a Lower Division Clerk of a State Government Office; (v) there was no precedent for treating the petitioner as an employee of the State Government. According to the said respondent, previous employees of the Advocate General had been appointed or discharged according to the absolute discretion of the Advocate General. . 13, It was contended on behalf of the Advocate General that there was a distinction between service under the Government and serving in the Government. Reliance was placed on the case of Raja Bahadur K.C. Deo Bhanji v. Raghunath Misra reported in AIR 1959 SC 589 and P.K. Bose vs. Chief Justice Calcutta reported in AIR 1956 SC 285 in this connection. In K.C. Deo Bhanji's case the Supreme Court held that a Sarpanch was not a person in the service of the Government but of the Gram Panchayet which was an autonmous body exercising functions under the statute it is doubtful whether this case is still good law in view of the later decisions of the Supreme Court above. In any event we are not concerned with a similar situation in this case. 14 it is also submitted on behalf of the Advocate General that the surrounding circumstances will have to be considered for the purpose of determining whether the petitioner is a Government employee. Some of such circumstances it is stated, suggest that the petitioner was not a Government employee. 14 it is also submitted on behalf of the Advocate General that the surrounding circumstances will have to be considered for the purpose of determining whether the petitioner is a Government employee. Some of such circumstances it is stated, suggest that the petitioner was not a Government employee. Such circumstances are that the petitioner was not appointed in the manner prescribed for all other Government employees, secondly, there were no rules defining the petitioner's duties or how they were to be performed and thirdly, that the State Government itself had never in the past treated the petitioner as a State Government employee. The petitioner was not, according to the Advocate General, granted leave and would not be liable to retire on superannuation like other government employees. Reference bas been placed on the case of Shivanandan v. Punjab National Bank reported in AIR 1955 SC 404 . In that case the Supreme Court was called upon to consider the difference between an independent contracsor and a servant and whether an employee of an independent contractor for the purpose of the principal employer was an employee of the principal employer or of the independent contractor. This case is also not of assistance to the Advocate General as I hold that the Advocate General is not an "independent contractor" but a servant of the State Government. My reasons for doing so are set out below. 15. Rule 5(16) of the West Bengal Service Rules 1971 provides: "Heads of Departments are Government employees declared to be such by; Government." 16. A list of such Heads of Departments is contained in Appendix I of the said Service Rules. Item 67 specifies the Advocate General as one such Head of the Department. Therefore the Advocate General is a Government servant, at least in West Bengal. 17. Reference to the post of Advocate General may also be found in Rule 11 of the West Bengal Service (Death-cum-Retirement) Rules 1971. 18. If the Advocate General has been declared by the State Government to be the head of a department, it necessarily follows that be has a department which he heads. The department of the Advocate General must include the office and clerical staff of the office. The petitioner belongs to that office. Rule 5(8) of the Service Rules provides as follows: "(8). The department of the Advocate General must include the office and clerical staff of the office. The petitioner belongs to that office. Rule 5(8) of the Service Rules provides as follows: "(8). Clerical staff means those Government Employees in Group 'B' and Group 'C' services and posts whose duties are entirely clerical and includes any other class of Government employees specially defined as such by order of the Government. Note I: The classes of Government employees that have been defined as members of the clerical staff are given io Appendix 2." 19. Appendix 2 has mentioned the post of a Lower Division Clerk as a member of the clerical staff for the purpose of 'Rule 58). It may be noted that the order appointing the petitioner has been issued from the office of the Advocate General, West Bengal. The pay sheet is also prepared for "The Advocate General Office Staff". 20. The Advocate General being the Head of the Department to which the petitioner was appointed the petitioner was properly appointed according to the rules. The endorsement on the order of the Slate Government creating the temporary post of Lower Division Clerk directing the Advocate General to make appointments to the post through "the appropriate Procedure" is of significance. I n other words it was not left to the unfettered discretion of the Advocate General. Secondly Rule 6(2) of the West Bengal Services (Classification Control & Appeal) Rules, 1971 provides: "(2) Appointments to Class III and class IV Services.-All appointments to the West Bengal State Services, Class III and Class IV, specified in the en tires in column (I) of Schedule I shall be made by the authorities mentioned in the corresponding entries in column (2) of that schedule." 21. Though there is no specific reference to the Advocate General's office in the Schedule this does not mean that the same will not come under the residuary item 10 of Schedule to the said Classification Control and Appeal Rules. That entry reads as follows: Description Appointing Authority empowerd Appellate Of authority to impose penalties Authority Service and the penalty which it may impose with reference to the item Nos. (i) to (viii) of rule 8 Authority Penalties 1 2 3 4 5 10. In all (a)... That entry reads as follows: Description Appointing Authority empowerd Appellate Of authority to impose penalties Authority Service and the penalty which it may impose with reference to the item Nos. (i) to (viii) of rule 8 Authority Penalties 1 2 3 4 5 10. In all (a)... Heads All (a) If such other (b) In of head of Establ- other offices office is ishments offices belonging subordinate Class III Head of to West to a Head and Class offices Bengal of Department, IV belonging State such Head of Services to West Service Department. Bengal State Class I (in (b) If the Head Service Respect of of office is Class 1 their own' himself the (in respect establishment) Head of of their or where there Department own are no such and is establish officer the subordinate -ment) or officers to another where there just above Head of are no such the Heads Department officers the of offices such Head officers, just of above the Department Heads of (c) If the offices. head of office is himself the Head of Department and is not subordinate to any Head of Deptt, Secretary to Govt. in the administrative Department or where there is no such officer. Joint Secretary in charge of the Department. Note 2 to the said Schedule reads as under Note 2.- In this schedule, the "Head of an office" in relation to a Government servant means the principal head of the office or establishment. It includes the Head of Department (vide Appendix 1 of the West Bengal Service Rules (Part I) if he himself is the Head of an office or establishment." 22. As noted above Appendix 1 to the West Bengal Services Rules includes the Advocate General as the Head of the Department. 23. Therefore it cannot be stated that the petitioner was irregularly appointed. He was appointed by a State Government Employee (viz. the Advocate General) to a post created by the State Government, according to the procedure specified by the Government Rules in this behalf. In addition, the petitioner is paid by the State Government. There is no indication in the various affidavits filed as to the nature of his functions. 24 However, I am unable to hold that the petitioner's position is like that of a Confidential Assistant to a Minister. In addition, the petitioner is paid by the State Government. There is no indication in the various affidavits filed as to the nature of his functions. 24 However, I am unable to hold that the petitioner's position is like that of a Confidential Assistant to a Minister. Firstly an argument by analogy is always weak, Furthermore, it has not been shown that a confidential assistant is not a government employee. Secondly none of the relevant orders either creating the post or appointing the petitioner have indicated that the petitioner's service tenure is to extend during the pleasure of the Advocate General. On the other hand he was permanently appointed. Thirdly, the fact that the petitioner's services have not been terminated with the change in the personnel of the Advocate General would lend support to the view that he is not .the personal servant of the Advocate General. Fourthly no rule was shown to court by the respondents to the effect that all recruitments to the State Government post must be through the Public Service Commission. In any event it is well established that mero non-consultation with the Public Service commission in the matter of an appointment would not invalidate the same (See Stale of UP v. Manbodha Lal Srivastava reported in AIR 1957 SC 912 paragraph 13). Fifthly, the question of precedent or past practice does not arise in this case. The petitioner was the first appointee to the post after it was created. The time for his retirement according to the Government norms has not yet arrived. 25. It cannot be disputed that the petitioner is helping the Advocate General i.e. as a servant of the Government. In Shivanandan v. Punjab National Bank (supra) the Supreme Court had to consider whether Treasurers of a Bank appointed under an agreement were independent contractors or servants of the Bank and secondly whether the persans appointed by such Treasurers for the purpose of the bank were employees of the bank or of the treasurers. The Supreme Court on a consideration of the facts held that Treasurers were servants of the bank. The Supreme Court on a consideration of the facts held that Treasurers were servants of the bank. As far as the appointees of the Treasurers were concerned the Supreme Court held: "It the Treasurers' relation to the bank was that of servants to a master simply because the servants were authorised to appoint and dismiss the ministerial staff of the Cash Department would not make the employees independent of the Bank. In that situation the ultimate employer would be the Bank through the agency of the Treasurers." 26. In this case also merely because the Advocate General may retain the power to dismiss the employee does not make the petitioner any the less an employee of the State Government. In any event under rule 8 which provides for penalties under the Classification, Control and Appeal rules read with Schedule I to the said Rules referred to above read with Appendix I of the Service Rules, the Advocate General would be proper dismissing authority for the petitioner. 27. Therefore taking into consideration all the facts and circumstances of this case I hold that the petitioner is a State Government employee and is as a consequence, entitled to the benefits claimed by him in the writ petition. 28. The last question which arises is the question of delay raised by the respondents 1, 2 and 4. 1 cannot refuse the petitioner relief on this ground although the petitioner first raised the question of provident fund almost 7 years after his appointment because firstly no third party interests are being affected, secondly a question of status is involved and finally the right to actuality receive the Provident Fund or benefits etc. has not yet arisen. (See R.S. Deodhar v. State of Maharashtra reported in AIR 1974 S.C. 259 . 29. Considerations of equity in this case outweigh the laches of the petitioner. 30. In the result the writ petition is allowed. The respondent are directed to take all steps to ensure that the petitioner is given the benefit of any Provident Fund Scheme, Insurance Scheme, Pension Scheme or other welfare scheme, in keeping with his position as a Lower Division Clerk in the employment of the State Government. There will be no order as to costs. There will be stay of operation of this judgment and order for a period of three weeks from date. There will be no order as to costs. There will be stay of operation of this judgment and order for a period of three weeks from date. All parties to act on a signed copy of the operative party of the judgment on usual undertaking. Application allowed; direction given.