Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 1023

Supreme Court of India
THE HONOURABLE MR. JUSTICE TARUN CHATTERJEE & THE HONOURABLE MR. JUSTICE V.S. SIRPURKAR
State of West Bengal & Another
Versus
West Bengal Regn. Copy Writers Assn. & Another
Civil Appeal No. 3414 of 2009 (Arising out of SLP (Civil) No. 9921 of 2007) with Civil Appeal No. 3415 of 2009 (Arising out of SLP (Civil) No. 10191 of 2007) With Civil Appeal No. 3416 of 2009 (Arising out of SLP (Civil) No. 12048 of 2007)
Decided on : 08-05-2009`

Advocates:
Cases Referred:
1. State of Assam & Ors. Vs. Shri Kanakchandra Dutta AIR 1967 SC 884
2. State of U.P. Vs. Chandra Prakash Pandey AIR 2001 SC 1298
3. Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Ors. 2006 (2) SCC 482
4. State of Gujarat & Anr. Vs. Raman Lal Keshav Lal Soni & Ors. 1983 (2) SCC 33
5. Gurugobinda Basu Vs. Sankari Prasad Ghosal AIR 1964 SC 254
6. State of U.P. Vs. Audh Narain Singh AIR 1965 SC 360
7. D.R. Gurushantappa Vs. Abdul Khuddus Anwar 1969(1) SCC 466
8. S.L. Agarwal Vs. G.M. Hindustan Steel Ltd. 1970 (1) SCC 177
9. Dharamgadhra Chemical Works Limit Vs. State of Saurastra AIR 1957 SC 264
10. The Superintendent of Post Offices Vs. P.K. Rajamma 1977 (3) SCC 94
11. G.B. Pant University of Agriculture Vs. State of Uttar Pradesh 2000 (7) SCC 109
12. Ram Singh Vs. Union Territory, Chandigarh 2004(1) SCC 126
13. Nilgiri Cooperative Marketing Society Vs. State of T.N. & Ors. 2004(3) SCC 514
14. Divisional Manager, Aravali Golf Club Vs. Chander Hass 2008 (1) SCC 683
15. Principal, Mehar Chand Polytechnic Vs. Anu Lamba 2006(7) SCC 161
16. State of Haryana Vs. Navneet Verma 2008 (2) SCC 65
17. Official Liquidator Vs. Dayananda & Ors. 2008(10) SCC 1
18. Cassidy Vs. Ministry of Health 1951 (1) All ER 574
19. Short Vs. J.W. Henderson Ltd. 1946 (174) LT 417
20. Morren Vs. Swinton and Pendlebury Borough Council 1965 (2) All ER 349
21. Argent Vs. Minister of Social Security 1968 (3) All ER 208

IMPORTANT POINTS

Headnote:(a) Copywriters Rules of 1999 – Rules 3, 5, 6, 20(2), 24 and 26 – Copywriters seeking absorption/regularisation as LDC – Claiming that rules show they work under control and supervision of and in the premises of the Registry office, their fees/remuneration is fixed by Government, in case of dying in harness their kin are given licence so there exists master-servant relationship between them and the government – Rules nowhere provide even distantly, any master and servant relationship in between the State Government and the Copywriters – Rule 3 describes them as professionals – Rules, at the most, provide for the licenses to enable the Copywriters to follow the profession of Copywriting. (Para 20)
       (b) Service law – Absorption/regularisation – Parity of nature of work – Copywriters claiming absorption as LDC on the basis of Extra-muharrirs having been absorbed as LDC – Copywriters claiming parity with Extra-muharrirs claiming they do same nature of job as Extra-muharrirs – Extra-muharrirs were already on government establishment, only their nomenclature has been changed – Copywriters, on the other hand are professionals – Requirement qualifications for copywriters and Extra-muharrirs entirely different – No parity – Claim of copywriters rejected. (Para 21)
       (c) Constitution of India – Article 226 – Writ petition arising from OA before Tribunal – Petitioners not claiming doing work identical to LDCs – Also not claiming to be government servants – No prayer for creating a separate cadre for them – Only praying for consideration of their representations and till time seeking injunction on recruitment of LDCs – Changing stand before High Court introducing theory of master and servant to argue being government servants – Such change of stand – Ought not to be permitted. (Para 25)
       (d) Constitution of India – Article 226 – High Court having limited scope only to see correctness of tribunal’s order – Respondent making radical change in stand as also prayers – Allowed by High Court – High Court granting an unimaginable relief of creating a service for writ petitioners with a separate nomenclature – Travelling beyond pleadings – Without jurisdiction. (Para 26)
       (e) Administration of Justice – Judicial propriety – Writ petitioners praying for setting aside of the judgment of Tribunal and a direction to the State Government to absorb and regularize their services as Copywriters in regular cadre of service – Giving up their main demand of absorption as LDC – Appeal liable to be dismissed for this change of strand. (Para 28)
       (f) Service law – Government job – Copywriters by making copies of deeds – Job of making copies of deeds for some remuneration – Neither government job nor involving government duty. (Para 29)
       (g) Service law – Government job – Copywriters getting licence after test – Naturally, licence could be given only to those with good handwriting – Copywriter could refuse to do work, meaning thereby absence of any control – Copywriters not doing any duty, much less government duty. (Para 30)
       (h) Service law – Master servant relationship – Copywriters getting job of copying from private persons on payment of fees – Government neither giving work, nor paying for the work – Not even ensuring that each copywriter gets some fixed amount as minimum wage – Copywriters not working on any sanctioned post – No master-servant relationship existing between copywriters and government. (Para 31, 42)
       (2006) 2 SCC 482; 1951 (1) All ER 574; 1946 (174) LT 417; 1965 (2) All ER 349; (2008) 1 SCC 683; (2006) 7 SCC 161; (2008) 2 SCC 65 – Relied upon
       ILR 1967 Guj 560 – Cited with approval
       AIR 1967 SC 884; (1983) 2 SCC 33; AIR 1957 SC 264; (1977) 3 SCC 94; (2004) 1 SCC 126; (2004)) 3 SCC 514; (2008) 10 SCC 1 – Distinguished
       AIR 2001 SC 1298; AIR 1964 SC 254; AIR 1965 SC 360; (1969) 1 SCC 466; (1970) 1 SCC 177 – Referred
       Facts of the case:
       The members of the West Bengal Registration Copywriters Association as well as the applicants in the original applications were the licensees under the West Bengal Registration (Copywriters) Rules, 1982, which were replaced by the West Bengal Registration (Copywriters) Rules, 1999. These Rules dealt with the subject of preparing true copies of the documents, which were to be presented for registration under the West Bengal Registration (Filing of True Copies) Rules, 1979. The members of the Association were the licensees under these Rules, who were given the licenses, under which they alone could prepare the true copies of the documents on receiving fees prescribed in the Rules. Such true copies of the documents were compulsorily required to be filed alongwith the documents, which were presented for registration.
       The petitioners (respondents herein) mainly pleaded that they were suffering from insecurity, having no chance of promotion or stability in the working field.
       It was then pleaded that various vacancies had cropped up in the office of the Registrars throughout the State of West Bengal under the Inspector General of Registration and accordingly, the Registrars had asked the employment exchanges to sponsor the names of the eligible candidates for the purpose of appointment in the post of LDC.
       It was pleaded that in the year 1978, the respondent Government had absorbed some Copywriters working in the office of Registrars throughout the State of West Bengal as LDCs and all of them were employed under the Registration Department. These Copywriters, who were so accommodated were at that time, called as "Extra-muharrirs" and that is how all the Extra-muharrirs then were awarded with the permanent job and while doing so, even age was relaxed. A parity was, therefore, pleaded.
       Since they were licensed Copywriters, they could not even now claim employment through the employment exchange. The licenses were given on the basis of tests and selections and further on the basis that they were holders of employment exchange cards. The Copywriters were required to work under the full control of the Government and yet they were being refused absorption/regularization.
       The Tribunal dismissed all the original applications, holding that there was no relationship of master and servant and that the petitioners, i.e., the Copywriters (respondents herein) could not insist on their being absorbed in the post of LDCs.
       The High Court held that firstly, there existed master and servant relationship between the State Government and the petitioner Copywriters and, therefore, they were entitled to the relief claimed.
       Finding of the Court:
       Copywriters are not entitled to be absorbed/regularized as LDCs.
       Result:
       Appeals allowed.

Judgment :-

V.S. Sirpurkar, J.

1. This judgment will dispose of SLP(Civil) No. 9921 of 2007, SLP(Civil) No. 10191 of 2007 and SLP(Civil) No. 12048 of 2007.

2. Leave granted in all the Special Leave Petitions.

3. In all these appeals, the common judgment passed by the Calcutta High Court, allowing W.P.S.T. No. 826 of 2001, W.P.S.T. No. 1312 of 2001 and W.P.S.T. No. 15 of 2002, is in challenge.

4. In those Writ Petitions filed before the High Court, a common judgment dated 22.6.2001 passed by the West Bengal State Administrative Tribunal (hereinafter called `the Tribunal for short) in T.A. No. 391 of 1998, T.A. No. 392 of 1998, O.A. No. 2377 of 1999 and O.A. No. 4636 of 1999, dismissing all the original applications, was in challenge. The High Court has set aside the order of the Tribunal and allowed the original applications. While doing so, the High Court has also granted certain reliefs. The State of West Bengal being aggrieved by the same, has come up before us.

5. Initially, before the High Court of Calcutta, a Writ Petition came to be filed being W.P. No. 1643 of 1996, by the Registered Association of the Copywriters. One other similar Writ Petition was also filed vide W.P. No. 2304 of 1996. These two Writ Petitions came to be transferred to the Tribunal, while two other original applications were also made before the Tribunal by the individual Copywriters.

6. The common case emerging before the High Court was that the members of the West Bengal Registration Copywriters Association (hereinafter referred to as `the Association), as well as, the applicants in the original applications were the licensees under the West Bengal Registration (Copywriters) Rules, 1982 (hereinafter called `the Copywriters Rules of 1982 for short), which were replaced by the West Bengal Registration (Copywriters) Rules, 1999 (hereinafter called `the Copywriters Rules of 1999 for short). These Rules dealt with the subject of preparing true copies of the documents, which were to be presented for registration under the West Bengal Registration (Filing of True Copies) Rules, 1979 (hereinafter called `the Copywriters Rules of 1979 for short). They also fixed the prescribed fees. The members of the Association were the licensees under these Rules, who were given the licenses, under which they alone could prepare the true copies of the documents on receiving fees prescribed in the Rules. Such true copies of the documents were compulsorily required to be filed alongwith the documents, which were presented for registration. The petitioners (respondents herein) mainly pleaded that they had filed applications for their absorption/regularization as regular employees in the cadre of Lower Division Clerk (hereinafter referred to as `LDC for short) under the concerned authority. They also pleaded for an injunction against the concerned authority from appointing any person in the cadre of LDC unless all the members of the Association were accommodated in that post of the LDC. They pointed out that they were doing the identical work of preparing copies as was required to be done by the LDCs. They had also given a history of their struggle in their Writ Petitions/original applications. In short, the pleading was that they were suffering from insecurity, having no chance of promotion or stability in the working field and that they had also staged demonstration and had also gone on strikes. However, such agitation was withdrawn on the basis of the assurances given by the Finance Minister of State of West Bengal and yet nothing was done, and their several representations were ignored. It was then pleaded that various vacancies had cropped up in the office of the Registrars throughout the State of West Bengal under the Inspector General of Registration and accordingly, the Registrars had asked the employment exchanges to sponsor the names of the eligible candidates for the purpose of appointment in the post of LDC. It was pleaded that previously in the year 1978, the res

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