SATHEESAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE short question that arises for consideration is whether a member of the Municipal Common Service is entitled to be considered as a Government servant.

(2.) THE bare facts germane for decision are as follows: petitioner is an Upper Division Clerk working in the Corporation of Kochi. THE post of Upper Division Clerk is borne on the Municipal Common Service. Petitioner applied for admission to the Part-time LL. B. Course (Evening) for the academic year 1990-91. THEre are altogether 100 seats for the said course in the Government Law College, ernakulam. 30 % of the seats is reserved for State Government employees. THE seats in that quota is further divided among science graduates and non-science graduates in the ratio of 1:1. Petitioner being a graduate in Commerce is entitled to be considered for a seat in the quota set apart for non-science graduates among the State Government employees. THE Principal published a select list of eligible candidates for admission to the course. Petitioner having acquired 59. 5 % marks in the B. Com. Examination was, it is alleged, entitled to be ranked No. 2 in the open merit quota. But his name did not find a place in the list. On enquiry he was told that he, being a member of the municipal Common Service is not entitled to be considered for the seat set apart for the State Government employees. THE stand taken by the Principal was that the members of the Municipal Common Service cannot claim the seat in the 30% quota set apart for the Government employees even-though the employees of the High Court, Public Service Commission and members of the Panchayat Common service are entitled to be considered for the seat. This stand taken by the principal is under challenge. Petitioner has, therefore, approached this court inter alia praying for the issuance of a writ of mandamus directing respondents 1 to 3 to admit him to the First Year Part-time LL. B. Course (Evening) for the academic year 1990-91 in the merit quota set apart for the Government employees.

(3.) S. 203 of the Gujarat Panchayat Act allowed the State to constitute a Panchayat Service in connection with the affairs of the panchayat in the State. The question whether the members of the Panchayat service constituted as per the said provision can be considered as members of the Civil service of the State and consequently Government servant, came up for consideration before the Supreme Court in Mathuradas Mohanlal Kedia v. S. D. Munshaw (AIR 1981 SC 53) and State of Gujarat v. Raman Lai Keshavlal (AIR 1984 sc 161 ). The Constitution Bench of the Supreme Court in the above mentioned cases took the view that Panchayat Service constituted under the Panchayat Act is a civil service of the State of Gujarat. According to Their Lordships, the true test for determination of the question whether a person is holding civil post or is a member of the civil service is the existence of a relationship of master and servant between the State and the person holding the post under it. The existence of such relationship depends upon the right of the State to select and appoint the holder of the post, and its right to suspend and dismiss him. In paragraph 27 of the 2nd decision, AIR 1984 SC 161. Their Lordships after examining all the previous decisions observed: "we have to first consider the question whether the members of the Gujarat Panchayat Service are Government servants. Earlier we have already said enough to indicate our view that they are Government servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. , On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the 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".