BABY GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS writ petition is by an Advocate of this Court for a writ of mandamus directing the State to forbear from making any appointments to the post of Government Pleaders/ Public Prosecutors (including the post of additional and Junior Government Pleaders) in the High Court without inviting applications from eligible aspirants. As stated in the counter-affidavit filed by the State, appointments to High Court Government Pleaders are governed by certain "rules" issued in G. O. Ms. 36/66/law dated 17th June 1966 as amended from time to time. It is said that the "rules" are not statutory, but are mere instructions in the nature of executive orders intended for purposes of guidance. The statutory nature or otherwise of the "rules" was not canvassed before us; and by our mere reference to them as "rules" we shall not be understood as having pronounced upon the same. Arguments before us were on the basis that there was a violation of the fundamental right under Art. 16 of the Constitution; and for that, it matters little whether the violation is by a statutory rule or by an executive instruction. In view of the importance of the question raised, and the interests of the profession involved, we issued notices to the President of the advocates' Association, who appeared in person before us, and to the Bar council of Kerala, which appeared through Counsel. We are grateful to them for their assistance.

(2.) THE 'rules' relating to the appointment of Government pleaders, in so far as they are relevant, are these: 1. In the "high Court there shall be one Government pleader, one Additional Government Pleader, one Public Prosecutor and one additional Government Pleader for Labour Law (hereinafter referred to as standing Lawyers who shall be appointed by Government on the recommendation of the Advocate-General. 2. THE term of office of a Standing Lawyer shall ordinarily be for a period of two years. But Government may re-appoint him for further periods not exceeding two years at a time. 3 THE services of every person holding the office of standing Lawyer shall unless Government specifically order otherwise terminate automatically on his attaining the age of 62 years. 4 THE Standing Lawyers are to represent Government in all cases in the High Court, where the State is a party. THEy shall, also attend to such other work as may be assigned to them by the Advocate General or by the Government from time to time. 5 THE Standing Lawyers will be attached to the Office of the Advocate-General and they will be subject to the supervision and control of the Advocate-General. 6 THE Standing Lawyer will be paid a fixed monthly remuneration of Rs. 1,500 (Rupees one thousand and five hundred only ). Over and above the fixed monthly remuneration of Rs. 1,500/ provided above, the Standing lawyers will be entitled to the fees prescribed under heads B and C of the schedule in respect of work contemplated thereunder. 7 A Standing Lawyer shall be entitled to travelling allowance and daily allowance at the rate prescribed for First Class Officers of the State. He will not be entitled to any daily allowance when he claims day fee for actual appearance. 8 THE Standing Lawyer is debarred (a) from advising or holding briefs against the government in any civil or criminal matter. (b) from giving advice to private parties in cases in which be is likely to be called on to appear or advise Government. (c) from defending accused persons in criminal prosecutions. 9 THE Standing Lawyer is eligible for leave not exceeding that admissible to a full-time temporary or officiating Government servant, subject to the condition that the grant does not involve any extra cost to the Government. 10 THE Standing Lawyer is not entitled to any remuneration for preliminary work done in connection with the conduct of a case, enquiry or other matter: Provided that the Government may, in any special case, having regard to the ardous nature of the work involved in such case, enquiry or other matter, or the time spent in the preliminary work, or for any other sufficient reason of a like nature, allow payment of such remuneration as may be fixed by them. " 14. THE Advocate-General will distribute Government cases among the Standing Lawyers and Counsel in the panel subject to the directions and control of the Government. He will be at liberty, whenever it is found necessary, to transfer any case or class of cases from one counsel to another in the panel, or to his own file, or to the file of any of the Standing lawyers, with the concurrence of the Government. 27. THE Government shall be at liberty at any time before the expiry of the term of a Standing Counsel or a drafting counsel to terminate his services without assigning any reason therefor: Provided that such termination shall not be effected unless a two months notice has been issued. " 2. THE petitioner's grievance is that the existing vacancies in the posts of Government Pleaders and Additional Government pleaders in the High Court we are told that, in all, there are now nearly twenty two Standing Counsel-are sought to be filled up without inviting applications and that the same violates Art. 16 of the Constitution. THE counter-affidavit has taken the stand that before making selections to these posts, applications are not invited by the Government; and that the procedure is to invite a panel of names from the Advocate-General, from which the selection or appointment is made by the Council of Ministers.

(3.) WE doubt if it would be altogether correct to import the principle of the Supreme Court decision in Raja Bahadur K. C. Deo Ghanj's case (AIR. 1959 SC. 589) rendered in an altogether different context, and with respect to the provisions of a totally different statute, to the provisions of art. 16 (1) of the Constitution. That shall not preclude us from considering the government Pleader's argument that quite apart from the decision relied on, the relationship of master and servant is necessary, both for the purpose of "employment" under the State, and for appointment to an "office" under the State and that a mere contract for service would not be within the Article. He relied upon the decision in Dharangadhra Chemical works Ltd. v. State of Saurashtra & Others (AIR. 1957 SC. 264), where the well-known tests of control are formulated to determine the relationship of employer and the employee or of master and servant for the purpose of the industrial Disputes Act. In Gurugobinda Basu v. Sankara Prasad Ghosal (AIR. 1964 SC. 254:1964 (4) SCR. 311), the appellant before the Supreme Court was an auditor appointed by the Central Government, of the Durgapur Projects and the hindustan Steel Ltd. , both of which were Government owned Companies. He was removable by the Central Government, and the Comptroller and Auditor-General exercised full control over him. The question was whether he held an "office of profit" under S. 102 (1) (a) of the Constitution, and was therefore disqualified for being chosen as a Member of Parliament. The only question on which controversy turned was, whether it could be said that the office of profit held by him was 'under', the Government. It was argued that this involved subordination to the Government with respect to the well-known tests of (1) the right to appoint (2) the right to remove or dismiss (3)payment of salary or wages (4) functional responsibilities of the office, and (5) control over the performance of the functions of office. The Supreme Court observed: "we agree with the High Court that for holding an office of profit under the Government, one need not be in the service of government and there need be no relationship of master and servant between them. The Constitution itself makes a distinction between 'the holder of an office of profit under the Government and 'the holder of a post or service under the Government'; see Art. 309 and 314 After referring to Maulana Abdul Shakur's case (1958 SCR. 387) and Ramappa v. Sangappa (1959 SCR. 1167), the Court further observed: "in view of these decisions, we cannot accede to the submission of Mr. Chowdhry that the several factors which enter into the determination of this question the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner the duties of the office are discharged and to give directions in that behalf must all co-exist, and each must show subordination to the Government, and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the government, Central or State, is not satisfied". Quite an interesting aspect is highlighted by the decision of the Privy Council in Attorney General for New South Wales v. Perpetual Trustee Co. (Ltd) (1955 Appeal Cases 457 ). Of particular relevance, appear the following observations : "their Lordships can now express their final opinion upon the case. They repeat that in their view there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of his office; be is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognised in the fact that his relationship to the government is not in ordinary parlance described as that of servant and master. " WE feel therefore, that it may not be altogether appropriate to look for the relationship of master and servant as between the holder of an office under the State and the Government. In any event, that would not be a decisive factor, the absence of which would negative in every case, the nexus between the officer and the Government. As pointed out by salmond in his Torts in a passage (11th Edn. P. 406) extracted in the House of lords decision noticed supra action based on master and servant relationship seems to be a historical relic of the days when the master had proprietary interest in the servant, and seems anomalous in modern industrial conditions. This has been ruled too in a number of decisions to which we shall, in due course, refer. But we would first refer to some decisions of the Supreme Court which were cited as giving a contrary indication. WE have already referred to the passage in K. C. Deo Bhanj's case (AIR. 1959 SC. 589) which was not with respect to Art. 16. In State of Assam & Others v. Kanak Chwdra Dutta (AIR. 1967 SC. 834), the question was whether a Mauzadar in the Assam Valley was holding a'civil post' under the Assam Government, within Art. 311 of the constitution. In considering that question it was observed: "para. 9. There is no formal definition of "post" and "civil post". The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil past is distinguished in Art. 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the union or a State, see marginal note to Art. 311. In Art. 311, a member of a civil service of the Union or an all India service or a civil service of a State is mentioned separately, and a civil past means a post not connected with defence outside the regular civil services. A post h 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 Art. 309, 310 and 311. The heading and the sub-heading of Part XIV and Chap. 1 emphasise 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. It WE think the observations were made in the context of art. 311, which, as observed in Gazula Dasaratha Rama Rao v. State of Andhra (AIR. 1961 SC. 564) should not be allowed to cut down the wide language of art. 16 (1) and (2) of the Constitution.