CASE NO.:
Appeal (civil) 933 of 2006
PETITIONER:
Union Public Service Commission
RESPONDENT:
Girish Jayanti Lal Vaghela & others
DATE OF JUDGMENT: 02/02/2006
BENCH:
K.G. BALAKRISHNAN & G.P. MATHUR
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Civil) No. 15714 of 2003)
G.P. Mathur, J.
Leave granted.
2. This appeal, by special leave, has been filed challenging the
judgment and order dated 13.12.2002 of the Bombay High Court by
which the writ petition filed by respondent no.1, Girish Jayanti Lal
Vaghela was allowed.
3. Respondent no.1, Girish Jayanti Lal Vaghela was appointed as
Drugs Inspector on 11.3.1996 on short term contract basis on a fixed
salary for a period of six months from the date of joining or till the
date the candidate selected by Union Public Service Commission
(UPSC) joined duty on regular basis, whichever was earlier. The
appointment of respondent no.1 was renewed after every six months
with short breaks and it continued for over five years. An
advertisement was issued by the UPSC on 24.3.2001 for making
regular selection on the post of Drugs Inspector. Under the relevant
recruitment rules made in exercise of powers conferred by proviso to
Article 309 of the Constitution, the upper age limit for making direct
recruitment is 30 years, which is relaxable for Government servants
upto five years in accordance with the instructions or orders issued by
the Central Government. Respondent No.1 had become over-age by
two years at the time when the advertisement was issued and
consequently he submitted an application to the Administrator, Union
Territory of Daman and Diu (for short "Administrator") for issuing
him an age relaxation certificate. Since there was no response,
respondent no.1 filed an Original Application on 16.7.2001 before the
Central Administrative Tribunal, Bombay (for short "Tribunal")
praying that a direction be issued to the Administrator to issue him an
age relaxation certificate. The Tribunal vide its order dated
17.7.2001 directed the Administrator to decide the representation
made by respondent no.1. Meanwhile, respondent no.1 was
provisionally allowed to appear in the interview. On account of
refusal of the Administrator to grant age relaxation certificate,
respondent no.1 filed second Original Application before the
Tribunal which passed an interim order to the effect that any
appointment made on the post of Drugs Inspector would be subject to
the outcome of the Original Application. Nearly 5 months after the
interview, the UPSC cancelled the candidature of respondent no.1 and
recommended the name of respondent no.4, Naresh Sharma for the
post of Drugs Inspector. The contract appointment given to
respondent no.1 came to an end on 30.9.2002 and it was not extended
any further. The second Original Application was dismissed by the
Tribunal vide order dated 21.6.2002 on the finding that the
appointment of respondent no.1 was made only on short term contract
basis and he had not been appointed by following the recruitment
rules and further that the intention of the Government was to provide
relaxation in age only to regular Government servants and not to those
who have been appointed on ad hoc basis de hors the rules. Feeling
aggrieved by the aforesaid decision of the Tribunal, respondent no.1
filed a writ petition before the Bombay High Court which was
allowed by the order dated 13.12.2002 and the Administrator was
directed to issue an age relaxation certificate to respondent no.1. A
further direction was issued to the appellant U.P.S.C. to consider the
claim of respondent no.1 and for making a recommendation to the
Administrator for issuing him an offer of appointment as Drugs
Inspector.
4. Before examining the contention raised by learned counsel for
the parties, it will be convenient to set out the order dated 11.3.1996,
by which respondent no.1 was initially appointed on short term
contract basis.
"ORDER
The Administrator of Daman and Diu and Dadra and
Nagar Haveli is pleased to appoint Shri Vaghela Girish Jantilal
to the post of Drugs Inspector on short term contract basis at a
fixed monthly rate of Rs.4,720/- (Rupees four thousand seven
hundred and twenty only) and to post him in the Primary Health
Centre, Daman for a period of six months only from the date of
joining or till the date the Union Public Service Commission
selected candidate joins his duties on regular basis, whichever
is earlier.
Shri Vaghela Girish Jantilal shall stand relieved on
expiry of six months from the date of joining or on the date the
Union Public Service Commission selected candidate joins his
duties on regular basis whichever is earlier.
By order and in the name of the Administrator of Daman
& Diu & Dadra & Nagar Haveli."
The aforesaid appointment order was renewed from time to
time with short breaks of few days. At the time when the UPSC
issued the advertisement on 24.3.2001 for making regular selection on
the post of Drugs Inspector, respondent no.1 was working on the said
post on contract basis. As already stated, under the relevant
recruitment rules for the post of Drugs Inspectors, the upper age limit
for direct recruitment is 30 years, which is relaxable for Government
servants upto 5 years in accordance with the instructions or orders
issued by the Central Government. If respondent no.1 was a
Government servant, he would be eligible for relaxation of upper age
limit. The Tribunal has held that respondent no.1 was not a
Government servant and was, therefore, not eligible for relaxation in
upper age limit. This view of the Tribunal has been reversed by the
High Court. The crucial question which requires consideration is
whether a person working on a short term contract basis can be said to
be a Government servant.
5. The problem of defining what is an employer and employee
relationship and what is an independent entrepreneurial dealing
frequently arises before the courts. Difficulty arises in defining what
is a "contract of service" and what is "contract for service". In
Cassidy v. Ministry of Health (1951) 1 All ER 574, after referring to
some earlier decisions, it was held that in a "contract for services" the
master can order or require what is to be done, while in the other case
(a contract of service) he can not only order or require what is to be
done but direct how it shall be done. The House of Lords in Short v.
J. & W. Henderson, Limited (1946) 174 Law Times 417, laid down
the attributes of employer-employee relationship which have been
followed in later decisions. In this case the appellant, who was a dock
labourer, sustained injuries by accident and claimed compensation
against the respondents under the Workmen's Compensation Act,
1925. The respondents contended that the appellant was not a
workman within the meaning of Section 3(1) of the said Act but was a
member of a joint stevedoring adventure. The House laid down the
following four indicia of contract of service, namely, (a) the master's
power of selection of his servant; (b) the master's responsibility of
payment of wages or other remuneration; (c) the master's right of
suspension or dismissal; and (d) the master's right to control the
method of doing the work. It was also observed that a contract of
service may still exist if some of these elements are absent altogether,
or, present only in an unusual form and that the principal requirement
of a contract of service is the right of the master in some reasonable
sense to control the method of doing the work, and that this factor of
superintendence and control has always been treated as critical and
decisive of the legal quality of the relationship.
6. Though in many cases the importance of the factor of
superintendence and control has been emphasized but that is not the
determining test. In Morren v. Swinton and Pendlebury Borough
Council (1965) 2 All ER 349, Lord Parker, C.J. held that
superintendence and control cannot be the decisive test when one is
dealing with a professional man or a man of some particular skill and
experience. Instances of that have been given in the form of the
master of a ship, an engine driver, a professional architect or a
consulting engineer. In such cases there can be no question of the
employer telling him how to do work; therefore, the absence of
control and direction in that sense can be of little, if any, use as a test.
In Argent v. Minister of Social Security (1968) 3 All ER 208, it was
observed that though in earlier cases it seems to have been suggested
that the most important test, if not the all important test, was the
extent of control exercised by the employer over the servant but as the
development of law in recent times in this field indicates, the
emphasis has shifted and no longer rests so strongly on the question of
control. Control is obviously an important factor. In some cases it
may still be the decisive factor, but it is wrong to say that in every
case it is the decisive factor.
7. Rule 2(h) of Central Civil Service (Classification, Control and
Appeal) Rules, define a Government servant and it reads as under :
"2(h) "Government servant" means a person who
(i) is a member of a Service or holds a civil post under the
Union, and includes any such person on foreign service
or whose services are temporarily placed at the disposal
of a State Government, or a local or other authority;
(ii) is a member of a Service or holds a civil post under a
State Government and whose services are temporarily
placed at the disposal of the Central Government;
(iii) is in the service of a local or other authority and whose
services are temporarily placed at the disposal of the
Central Government."
It will be noticed that under sub-rule (i), a person who is a
member of service or holds a civil post under the Union is a
Government servant. Similarly, under sub-rule (ii), a person who is a
member of a service or holds a civil post under the State Government
is a Government servant. Therefore, it is a holder of a civil post
whether under the Union or State Government, who will be a
Government servant for the purposes of the Central Civil Services
(Classification, Control and Appeal) Rules. We are not concerned
here with sub rule (iii) whereunder a person in the service of a local or
other authority and whose services are temporarily placed at the
disposal of the Central Government gets the status of a Government
Servant.
8. There are several decisions of this Court wherein the concept of
civil post has been explained and the first decision on the point is
State of Assam v. Kanak Chandra Dutta AIR 1967 SC 884. In this
case the respondent who was a Mauzadar in the Assam Valley was
dismissed from service in disregard of the provisions of Article
311(2). It was held that "having regard to the existing system of his
recruitment, employment and functions", he was "a servant and a
holder of a civil post under the State", and therefore entitled to the
protection of Article 311(2). This Court observed :
"............ 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
Articles 309, 310 and 311. The heading and the sub-
heading of Part XIV and Chapter I emphasize 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 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."
9. The question as to who can be said to be holder of civil post
under the Government was examined by a Constitution Bench in State
of Gujarat v. Raman Lal Keshav Lal AIR 1984 SC 161 and after
review of several earlier decisions the Bench recorded its conclusions
as under :
".....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 employee's 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."
10. Article 16 which finds place in Part III of the Constitution
relating to fundamental rights provides that there shall be equality of
opportunity for all citizens in matters relating to employment or
appointment to any office under the State. The main object of Article
16 is to create a constitutional right to equality of opportunity and
employment in public offices. The words "employment" or
"appointment" cover not merely the initial appointment but also other
attributes of service like promotion and age of superannuation etc.
The appointment to any post under the State can only be made after a
proper advertisement has been made inviting applications from
eligible candidates and holding of selection by a body of experts or a
specially constituted committee whose members are fair and impartial
through a written examination or interview or some other rational
criteria for judging the inter se merit of candidates who have applied
in response to the advertisement made. A regular appointment to a
post under the State or Union cannot be made without issuing
advertisement in the prescribed manner which may in some cases
include inviting applications from the employment exchange where
eligible candidates get their names registered. Any regular
appointment made on a post under the State or Union without issuing
advertisement inviting applications from eligible candidates and
without holding a proper selection where all eligible candidates get a
fair chance to compete would violate the guarantee enshrined under
Article 16 of the Constitution. (See B.S. Minhas vs. Indian Statistical
Institute and others AIR 1984 SC 363).
11. Article 309 lays down that subject to the provisions of the
Constitution, Acts of the appropriate Legislature may regulate the
recruitment, and conditions of service of persons appointed, to public
services and posts in connection with the affairs of the Union or of
any State. The proviso to this Article confers power upon the
President or the Governor, as the case may be, to make rules
regulating the recruitment and the conditions of service of persons
appointed to services and posts in connection with the affairs of the
Union or the State. Article 311 affords several protections to persons
employed in civil capacities under the Union or a State. In view of
clause (2) of this Article, holder of a civil post under the Union or a
State cannot be dismissed or removed or reduced in rank except after
an inquiry in which he has been informed of the charges against him
and he is given a reasonable opportunity of being heard in respect of
those charges.
12. A private employer in India enjoys almost a complete freedom
to select and appoint anyone he likes and there is no statutory
provision mandating advertisement of the post or selection being
made strictly on merit, even where some kind of competitive
examination is held. A private employer has absolute liberty to
appoint a less meritorious person. Except those who are covered by
the definition of "workman" and are governed by the provisions of
Industrial Disputes Act or any such allied enactment, an employee
working in a private establishment normally does not enjoy any
statutory protection regarding his tenure of service.
13. Though in State of Assam v. Kanak Chandra Dutta (supra) and
in the Constitution Bench decision in State of Gujarat v. Raman Lal
Keshav Lal (supra) the decision of House of Lords in Short vs. J & W
Henderson and other English cases were not referred to but it appears
that this Court adopted almost the same test for ascertaining whether a
person holds a civil post under the Union or a State. But in England
these tests were adopted in order to find out whether there was a
relationship of master and servant and particularly in the context of
private employment. In our country there is a substantial difference
between an employee working in a private establishment and a
Government servant on account of the aforesaid constitutional
provisions. Therefore, the indicia laid down in State of Assam v.
Kanak Chandra Dutta (supra) and State of Gujarat v. Raman Lal
Keshav Lal (supra) cannot be the only tests for determining whether a
person is holder of a civil post under the Union or the State. In the
case of a regular Government servant there is undoubtedly a
relationship of master and servant but on account of constitutional
provisions like Articles 16, 309 and 311 his position is quite different
from a private employment.
14. The nature of right possessed by a Government servant and also
his status after his appointment to a post under the Government was
considered by a Constitution Bench in Roshan Lal Tandon v. Union of
India AIR 1967 SC 1889 and it was held as under in para 6 of the
reports :
"6. .......... It is true that the origin of Government service is
contractual. There is an offer and acceptance in every case.
But once appointed to his post or office the Government servant
acquires a status and his rights and obligations are no longer
determined by consent of both parties, but by statute or
statutory rules which may be framed and altered unilaterally by
the Government. In other words, the legal position of a
Government servant is more one of status than of contract. The
hall-mark of status is the attachment to a legal relationship of
rights and duties imposed by the public law and not by mere
agreement of the parties. The emolument of the Government
servant and his terms of service are governed by statute or
statutory rules which may be unilaterally altered by the
Government without the consent of the employee. It is true that
Article 311 imposes constitutional restrictions upon the power
of removal granted to the President and the Governor under
Article 310. But it is obvious that the relationship between the
Government and its servant is not like an ordinary contract of
service between a master and servant. The legal relationship is
something entirely different, something in the nature of status.
It is much more than a purely contractual relationship
voluntarily entered into between the parties. The duties of
status are fixed by the law and in the enforcement of these
duties society has an interest. In the language of jurisprudence
status is a condition of membership of a group of which powers
and duties are exclusively determined by law and not by
agreement between the parties concerned. The matter is clearly
stated by Salmond and Williams on Contracts as follows :
"So we may find both contractual and
status-obligations produced by the same
transaction. The one transaction may result in the
creation not only of obligations defined by the
parties and so pertaining to the sphere of contract
but also and concurrently of obligation defined by
the law itself, and so pertaining to the sphere of
status. A contract of service between employer and
employee, while for the most part pertaining
exclusively to the sphere of contract, pertains also
to that of status so far as the law itself has seen fit
to attach to this relation compulsory incidents,
such as liability to pay compensation for accidents.
The extent to which the law is content to leave
matters within the domain of contract to be
determined by the exercise of the autonomous
authority of the parties themselves, or thinks fit to
bring the matter within the sphere of status by
authoritatively determining for itself the contents
of the relationship, is a matter depending on
considerations of public policy. In such contracts
as those of service the tendency in modern times is
to withdraw the matter more and more from the
domain of contract into that of status." (Salmond
and Williams on Contracts, 2nd edition, p.12)"
15. In Dinesh Chandra v. State of Assam AIR 1978 SC 17 the
contention that the relationship between the Government servant and
the Government is contractual in nature was not accepted and was
specifically repelled. It will be useful to reproduce para 11 of the
reports where the conclusions were recorded :
"11. Mr. Niren De submits that Article 310(2) supports
his submission that the relationship between the
Government servant and the Government is contractual.
Sub-article (2) of Article 310 provides that
"notwithstanding that a person holding a civil post under
the Union or a State holds office during the pleasure of
the President or, as the case may be, of the Governor of
the State, any contract under which a person, not being a
member of a defence service or of an all-India service or
of a civil service of the Union or a State, is appointed
under this Constitution to hold such a post may, if the
President or the Governor, as the case may be, deems it
necessary in order to secure the services of a person
having special qualifications, provide for the payment to
him of compensation, if before the expiration of an
agreed period that post is abolished or he is, for reasons
not connected with any misconduct on his part, required
to vacate that post". The above is a special provision
which deals with a special situation where a contract is
entered into between the Government and a person
appointed under the Constitution to hold a civil post. But
simply because there may be, in a given case, a
contractual employment, as envisaged under Article
310(2) of the Constitution, the relationship of all other
Government servants, as a class, and the Government,
cannot be said to be contractual. It is well-settled that
except in the case of a person who has been appointed
under a written contract, employment under the
Government is a matter of status and not of contract even
though it may be said to have started, initially, by a
contract in the sense that the offer of appointment is
accepted by the employee."
Again in para 12 the Court said as under :
"12. ................... It goes without saying that in many
employments, whether of private limited companies or
public companies, contracts of employment are executed
containing a term for termination of employment by
notice. Such cases of contractual employment are
different from those of Government employees whose
employment is a matter of status and not of ordinary
contract. The conditions of service of a Government
servant are regulated by statute or statutory rules made
under Article 309 of the Constitution. ............."
It, therefore, follows that employment under the Government is
a matter of status and not a contract even though the acquisition of
such a status may be preceded by a contract, namely, an offer of
appointment is accepted by the employee. The rights and obligations
are not determined by the contract of the two parties but by statutory
rules which are framed by the Government in exercise of power
conferred by Article 309 of the Constitution and the service rules can
be unilaterally altered by the rule making authority, namely, the
Government.
16. There is no dispute that respondent no.1 was engaged or hired
on contract to work as Drugs Inspector for a period of six months
from the date of joining or till a candidate selected by UPSC joined on
regular basis, whichever was earlier. The contract further stipulated
that even if a regularly selected candidate did not join, respondent
no.1 shall stand relieved on the expiry of six months. In Director,
Institute of Management Development v. Pushpa Srivastava AIR 1992
SC 2070 it was held that where the appointment is purely on ad hoc
basis and is contractual and by efflux of time the appointment comes
to an end, the person holding such post can have no right to continue
in the post. It was further held that this is so even if the person is
continued from time to time on ad hoc basis for more than a year. In
State of Haryana v. Surinder Kumar 1997(3) SCC 633 the respondents
were appointed as clerks on contract basis. They filed a writ petition
in the High Court for their regularisation which was allowed and a
direction was issued for payment of wages on the principle of 'equal
pay for equal work' and also regularisation of their services. In
appeal this Court reversed the judgment of the High Court holding
that as the respondents' recruitment was not made in accordance with
the rules and they were appointed on contract basis on daily wages,
they cannot have any right to the post as such until they are duly
selected and appointed. This decision was followed by a three-Judge
Bench in State of Haryana v. Charanjit Singh & Ors. JT 2005 (12) 475
and it was held that where a person is employed under a contract, it is
the contract which will govern the terms of contract of service and not
the rules framed under Article 309 of the Constitution governing the
conditions of service to the post on which he is employed. It is,
therefore, clear that respondent No. 1 did not have any right to
continue as Drugs Inspector after expiry of the six months period for
which he had been appointed.
17. It is neither pleaded nor there is any material to show that the
appointment of respondent no.1 had been made after issuing public
advertisement or the body authorized under the relevant rules
governing the conditions of service of Drugs Inspectors in the Union
Territory of Daman and Diu had selected him. His contractual
appointment for six months was de hors the rules. The appointment
was not made in a manner which could even remotely be said to be
compliant of Article 16 of the Constitution. The appointment being
purely contractual, the stage of acquiring the status of a Government
servant had not arrived. While working as a contractual employee
respondent no.1 was not governed by the relevant service rules
applicable to Drugs Inspector. He did not enjoy the privilege of
availing casual or earned leave. He was not entitled to avail the
benefit of general provident fund nor was entitled to any pension
which are normal incidents of a Government service. Similarly he
could neither be placed under suspension entitling him to a suspension
allowance nor he could be transferred. Some of the minor penalties
which can be inflicted on a Government servant while they continue
to be in Government service could not be imposed upon him nor he
was entitled to any protection under Article 311 of the Constitution.
In view of these features it is not possible to hold that respondent no.1
was a Government servant.
18. The situation here is somewhat similar to that considered by
this Court in Phool Badan Tiwari v. Union of India 2003(9) SCC 304.
In this case the appellants who were appointed by railway authorities
as supervisors in Handicap Centres filed an Original Application
before Central Administrative Tribunal for claiming regularisation of
their services and for declaring them as railway servants and further
for payment of regular pay scales. The claim of the appellants was
repelled by the Tribunal and also by the High Court in the writ
petition and the appeal filed by them was dismissed by this Court
mainly on the ground that the appellants had not been appointed in
pursuant to or under any recruitment rules but were appointed under a
beneficial scheme intended to help the wives and daughters of the
railway servants, where they were given an opportunity to work as
Supervisors.
19. Shri K. Ramamurthy, learned counsel for the contesting
respondent has contended that in view of the principle laid down in
State of Assam v. Kanak Chand Dutta AIR 1967 SC 884 the
respondent No. 1 should be held to be a Government servant. As
mentioned earlier the question in this case was whether a Mauzadar in
Assam Valley holds a civil post under the State of Assam and is
entitled to the protection of Article 311(2) of the Constitution. This
decision was considered and referred to in State of Gujarat v. Raman
Lal Keshav Lal Soni AIR 1984 SC 161 to which we have already
referred to earlier and also in Supdt. of Post Offices v. P.K. Rajamma
1977 (3) SCC 94. The principle laid down therein do not advance the
case of respondent no.1 in any manner as certain other factors like the
process of recruitment in accordance with relevant service rules was
not followed and certain other incidents of service like transfer,
disciplinary action, pension and the facility of general provident fund
are absent in his case. The other case relied upon by the learned
counsel is Purshottam Dhingra v. Union of India AIR 1958 SC 36
which again is of no assistance to respondent no.1 as the main
controversy here was whether a temporary Government servant was
entitled to the protection of Article 311 of the Constitution. Shri
Ramamurthy has also referred State of UP v. Chandra Prakash Pandey
2001(4) SCC 78 where the question was whether the Kurk Amins
appointed on commission basis by Collectors for realization of
outstanding dues of various cooperative societies as arrears of land
revenue can be treated to be employees of the State Government
holding civil post within the meaning of Article 311 of the
Constitution. The Kurk Amins had not been appointed on contract
basis as is the case of respondent no.1 whereunder his appointment
came to an automatic end after expiry of the period of contract. Thus,
there being a fundamental difference between the nature of
employment of respondent no.1, the principle laid down in the
aforesaid authority cited by the learned counsel can have no
application here.
20. For the reasons discussed above, we are clearly of the opinion
that respondent no.1 cannot be said to be a Government servant as he
was working on contract basis and, therefore, he was not eligible for
any relaxation in upper age limit. The view taken by the High Court
is clearly erroneous in law and is liable to be set aside.
21. The appeal is accordingly allowed and the judgment and order
dated 13.12.2002 of the High Court is set aside and the writ petition
filed by respondent no.1 is dismissed. No costs.
