Union Public Service Commission Vs. Girish
Jayanti Lal Vaghela & others [2006] Insc 51 (2 February 2006)
K.G.
Balakrishnan & G.P. Mathur
(Arising
out of S.L.P. (Civil) No. 15714 of 2003) G.P. Mathur, J.
Leave
granted.
-
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.
-
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.
-
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.
-
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,
-
the master's
power of selection of his servant;
-
the master's responsibility
of payment of wages or other remuneration;
-
the master's
right of suspension or dismissal; and
-
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.
-
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.
-
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
-
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;
-
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;
-
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.
-
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."
-
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."
-
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).
-
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.
-
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.
-
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.
-
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)"
-
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 :
-
"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 :
-
"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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
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.
Back