TMI Blog2006 (2) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1983)ILLJ284SC 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India (1958)ILLJ544SC 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]2SCR506 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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