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IN THE HIGH COURT OF ALLAHABAD
V. N. KHARE, H. C. MITTAL
TRILOKI NATH PANDEY - Appellant
Versus
STATE - Respondents
C. M. W. 4417 Of 1990
Decided On : 04/30/1990
GOVERNMENT COUNSEL - TERMINATION OF APPOINTMENT - LEGALITY - RELATIONSHIP OF MASTER AND SERVANT - WHETHER GOVERNMENT COUNSEL HOLDS A CIVIL POST UNDER THE STATE GOVERNMENT - TESTS TO DETERMINE RELATIONSHIP OF MASTER AND SERVANT - WHETHER GOVERNMENT COUNSEL IS A SERVANT OF THE STATE GOVERNMENT - WHETHER GOVERNMENT COUNSEL HOLDS A CIVIL POST UNDER THE STATE GOVERNMENT WITHIN THE MEANING OF ART. 311 OF THE CONSTITUTION.
Fact of the Case:
The petitioners, who were appointed as Government Counsel in various capacities, challenged the legality of a Government order terminating their appointments without providing a show-cause notice as required under Article 311 of the Constitution. They argued that they held civil posts under the State Government and were entitled to the protection of Article 311.
Finding of the Court:
The Court held that the petitioners did not hold civil posts under the State Government within the meaning of Article 311 of the Constitution. The Court found that there was no relationship of master and servant between the petitioners and the State Government, as the petitioners were not subject to the control and supervision of the State Government in the manner of performing their duties.
Issues: 1. Whether the petitioners held civil posts under the State Government within the meaning of Article 311 of the Constitution? 2. Whether there was a relationship of master and servant between the petitioners and the State Government?
Ratio Decidendi: The Court applied the tests laid down by the Supreme Court in various decisions to determine the relationship of master and servant between the petitioners and the State Government. The Court found that the petitioners were not subject to the control and supervision of the State Government in the manner of performing their duties, and that they were not paid a fixed salary by the State Government. Therefore, the Court held that there was no relationship of master and servant between the petitioners and the State Government.
Final Decision: The Court dismissed the petitions, holding that the petitioners did not hold civil posts under the State Government within the meaning of Article 311 of the Constitution and that there was no relationship of master and servant between the petitioners and the State Government.
( 1 ) SINCE common questions of fact and law in this writ petition and in the connected writ petitions are involved, we propose to decide these writ petitions by a common judgment.
( 2 ) THE petitioner in Writ Petition No. 4215 of 1990 is an Advocate and was appointed as a District Government Counsel (Civil), Basti on 7-4-1983 for a period of one year. His appointment as District Government Counsel (Civil) Basti is alleged to have been extended from time to time, the last extension being for a period from 1-7-1989 to 30-6-1992.
( 3 ) PETITIONER No. 1 in Writ Petition No. 4392 of 1990 is an Association duly registered with the Registrar of Societies, Chits and Firms, U. P. Lucknow-W, known as U. P. Government Counsel (Criminal) Welfare Association, Meerut Branch, District Courts, Meerut (hereinafter referred to as an association ). The Association is said to be a State Level Organisation of Public Prosecutors and Additional Public Prosecutors appointed under Section 24 of the Code of Criminal Procedure having its headquarter at Bareilly. Petitioner No. 2 is its Secretary.
( 4 ) IN Writ Petition No. 4214 of 1990 petitioner No. 2 was appointed as District Government Counsel (Criminal) for a period of one year. His term of office was renewed for another three years.
( 5 ) WRIT Petition No. 4208 of 1990 has been filed by U. P. Government Counsel (Criminal) Welfare Association having its office at District Judges Court, Bareilly through its President Srikant. The President of the Association was appointed as District Government Counsel (Criminal) and his term was renewed from time to time and his present term was extended from 1-7-1989 to 23-6-199o.
( 6 ) THE petitioner in Writ Petition No. 4417 of 1990 was appointed as District Government Counsel (Revenue), Basti by order dated 12-8-1988 for a period of one year. Although his term of office has not been renewed but he has been allowed to continue till further orders.
( 7 ) IN Writ Petition No. 4479 of 1990 the petitioner was appointed as Additional District Government Counsel (Revenue) for a period beginning from 1-7-1987 to 30-8-1989. Although the term of the petitioner has not been renewed yet he is still continuing to act as such.
( 8 ) IN Writ Petition. No. 4424 of 1990 the petitioner is a Panel Lawyer appointed by the State Government.
( 9 ) THE petitioner in Writ Petition No. 4500 of 1990 is a District Government Counsel (Criminal) Azamgarh and his term as District Government Counsel (Criminal) has been renewed for three years from 17-8-1989 to 3-7-1992.
( 10 ) THE petitioner in Writ Petition No. 6025 of 1990 is District Government Counsel (Civil) at Etawah and continued to work as such till 28-2-1990.
( 11 ) THE petitioner in Writ Petition No. 6026 of 1990 is working as a Panel Lawyer since 1983 appointed by the State Government.
( 12 ) THE petitioners in Writ Petition No. 6027 of 1990 are working as Assistant Public Prosecutors Fatehpur since 1983.
( 13 ) THE petitioner Swami Dayal in Writ Petition No. of 1990 was appointed as Sub- District government Counsel (Civil), Bansi, Siddharthnagar.
( 14 ) IN Writ Petition No. of 1990, filed by Gangadhar Upadhyay on 15th March, 1990, the petitioner was appointed as District Government Counsel (Revenue) and is working as such in Jaunpur.
( 15 ) BY means of these writ petitions under Article 226 of the Constitution the petitioners have challenged the legality of the Government order dated 6th February, 1990 directing that the terms of all the Government Counsel including Penal Lawyers should be extended only up to 28th February, 1990 and the District Magistrates of the Districts have been required to send fresh names for fresh appointments as District Government Counsel (Civil), District Government Counsel (Criminal), District Government Counsel (Revenue), Assistant Panel Lawyers and others. The impugned order further provides that the present Government Counsel shall be allowed to work only up to 28th February, 1990 a
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