A person holding a post under the State, as determined by factors such as appointment process, control, removal, remuneration, functions, and other attendant circumstances, is a State Government employee and is entitled to the benefits available to such employees.

The question involved in this writ petition is whether the petitioner who is employed in the office of the Advocate General as a Lower Division Clerk is entitled to Provident Fund. Group Insurance and other benefits.

2. According to the respondents 1, 2 and 4, the State Provident Fund Rules, Group Insurance Rules etc. apply only to State Government employees. It is contended that the petitioner is not an employee of the State Government but a personal employee of the Advocate General. Therefore, the only question to be determined in this case is whether the petitioner is a State Government employee or not.

The facts relating to the petitioner's appointment are as follows.

3. At the instance of the Advocate General, West Bengal by Memo No. 10775-J dated 30.8.1977 the Judicial Department of the Government of West Bengal sanctioned the creation of the post of Lower Division Clerk and Peon on temporary basis under the Advocate General. The said sanction was given with the concurrence of the Finance Department by its Memo No.U(O)-G/868 dated 27.8 1977. Copies of the order were forwarded to the Legal Remembrancer West Bengal and to the Advocate General West Bengal with the note "Appointments to the posts should be made through the appropriate procedure".

4. The petitioner was appointed to the temporary post of Lower Division Clerk by an Order dated 1.9.1977 issued by the Advocate General, West in the scale of Rs. 230-425 "plus other allowances as admissible under the rules."

5. By Memo No. 11064 J dated 215.1981 the temporary post of Lower Division Clerk in the office of the Advocate General, West Bengal, was converted into a permanent post by the Government of West Bengal. It is specified in the order that "The charge will be met from the provision under the head 214 Administration of office-Legal Advisers & Counsels-Advocate General, standing counsels & Solicitors-Salaries."

5A. By an order no. 1354 (A) (B) (C) /A.G.I dated 4.6.1981 the petitioner was appointed permanently to the said post of Lower Division Clerk with effect from 1st March 1981 by the then Advocate General, West Bengal.

6. From the copy of the pay sheet annexed to the affidavit-in-reply it appears that apart from his basic pay the petitioner was paid Dearness Allowance, Medical Allowance. Interim Relief etc.

7. After the petitioners permanent appointment in 1981 there was a change in the personnel of the Advocate General's post twice.

8. In the case of The State of Assam & ors. v. Kanak Chandra Dutta reported in AIR 1967 SC 884, the Supreme Court had to consider whether a Muuzadar was holding a post under the State entitling him to the protection of Art. 311 of the Constitution. At paragraphs 9 and 10 of the Judgment the Supreme Court stated:

"l9)......... 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.

(10) In the context of Arts, 309, 310 and 311. a post denotes an office. A person who bolds a civil post under a State holds "office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution, see Art. 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person hold