STATE OF WEST BENGAL & ANR. v. WEST BENGAL REGN. COPY WRITERS ASSN. & ANR

Citation: [2009] 8 S.C.R. 334

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, V.S. SIRPURKAR

Case summary

STATE OF WEST BENGAL & ANR. v. WEST BENGAL REGN. COPY WRITERS ASSN. & ANR.pdf

Judgment text

(2009] 8 S. C. R. 334 STATE OF WEST BENGAL & ANR. v. WEST BENGAL REGN. COPY WRITERS ASSN. & ANR. (Civil Appeal No. 3414 of 2009) MAY 8, "2009 [TARUN CHATIERJEE AND V. S. SIRPURKAR, JJ. ] " West Bengal Registration (Copywriters) Rules, 1999 - Copywriters - Grant of license under the Rules - Status of copywriters - Held: There is no master-servant relationship between copywriters and State Government- Copywriters are mere licensees - Grant of license does not amount to creating service - It cannot clothe them with the status of Government servant - They were not doing any government duty nor there ) pywriters on the basis of the licenses. They were not comparable in any manner with the Extram uha rri rs even in respect of their educational qualification. The minimum qualification for a licensee as a Copywriter is barely Vlth Class passing, which is unimaginable in the present days as a minimum qualification for a Government job.

It is suggested that almost all the Copywriters were educated and were holding a better qualification. That may be so, but that does not in any manner solve the problem of the Copywriters, whose minimum qualification, as prescribed in the Rules, is much lower than that of the LDCs. Before the High Court, no evidence was brought to show as to how the post of Extra-muharrirs is comparable to or identical to the post of Copywriters. [Para 21] [368-G-H; 369-A-F] \.. 2. 3. The petition is wholly silent about the assertion that the writ petitioners are doing the identical duty as that of the LDCs and they are actually the Government servants. There is not even a whisper in the writ petition that a separate cadre with a separate nomenclature should be created for them by the Government.

In fact, in the last part of the writ petition, the petitioners have "asserted that injustice was done to them in their representations remaining without a reply and in their not being absorbed in service and further they are not being allowed to sit in the examination. _They asserted that the respondents should be injuncted from proceeding with the absorption in the post of LDCs in their offices. It cannot be understood as to how on the basis of such a petition, the petitioners were allowed to completely f, change their stand and introduce, for the first time, a theory of master and servant or even allowed to argue that they were the Government servants and in fact, because of the duties conducted by them, they were the servants of the Government on its establishments. All this was allowed, though not at the tribunal level but at the level of the High Court. [Para 25] [371-G-H; 372-A-D] 2. 4.

Respondents tried to point out that the State Government in their counter affidavits themselves asserted that there was no master and servant relationship between the writ petitioners and the State COPY WRITERS ASSN. .. _.. , Government and, therefore, petitioners could not assert their right to be absorbed as LDCs. Therefore, the respondents pointed out that if the theory of master and servant was introduced by the Government in its reply, then the writ petitioners had every right to assert that there was a master and serv;mt relationship between them and the Government. Such logic cannot be understood. A Writ Petitioner has to stand on his own legs ~ and has to rely on the pleadings in the Writ Petition. A simple case was pleaded by the Writ Petitioners in the Writ Petition that they had a right to be absorbed as LDCs, firstly because the Extra-muharrirs were so absorbed and secondly, because they were doing the same job as LDCs.

They had nowhere suggested that they were already on the Government establishment and there existed master and servant relationship between them 0 and the Government and, therefore, it was incumbent on the Government to either absorb them as the LDCs or to create a separate service for them. They never asserted that they were equally circumstanced with the LDCs or Extra-muharrirs, which position, they introduced for the first time before the High Court. Such radical change in the stand, as also the radical change in the prayers could not have been allowed by the High Court in a writ petition, J muchless when the High Court was concerned with the limited exercise of deciding the correctness or otherwise of the tribunal's judgment. Unfortunately, High Court seems to have travelled much beyond the pleadings and has, therefore, fallen into error in granting an unimaginable relief to the writ petitioners of creating a service for them with a separate nomenclature.

All this was clearly beyond the jurisdicti® o. f the High Court. - [Para 26] (372-G-H; 373-A-D] 2. 5. In prayer clause, a direction is prayed. for to provide the writ petitioner with employment as LDCs or equivalent posts. It is certain that the prayers are no different in other writ petition. Once those prayers vanish on account of the concession by the counsel, really nothing could remain in the petition. However, High Court went on to examine the belated theory of master and servant, which was totally out of the scope of the original application, as well as, the Writ Petition. When the State Government in its reply before the tribunal asserted that there was no relationship of master and servant, the ), writ petitioners seem to have totally changed their stand. Writ Petitioners before the High Court, as well as, before the tribunal rightly conceded that they could not be appointed or absorbed as LDCs.

Respondents very fairly stated that they had abandoned that prayer, however, tried to justify that in its plenary jurisdiction, the High Court could mould the relief. There could be no doubt about the High Court's power to mould the relief. However, even in its plenary jurisdiction, while moulding the relief, there must be a plea to support such a relief. The relief granted by the High Court in this case is extraordinarily beyond the jurisdiction of the High Court and has no nucleus in the writ petitions or in the original applications. The basic case that was pleaded was that since the Extra-muharrirs were absorbed by the Government, the writ petitioners; who were doing the t task of Extra-muharrirs, also had a right to be absorbed in the Government. This plea was obviously baseless, as while Extra-muharrirs were on the regular establishment of the Government, the writ petitioners were not and, therefore, they could not have claimed the parity.

It is only after the reply of the Government came, denying the master servant relationship, that the Writ Petitioners started singing the tune of the de facto Government service in their favour. The argument before the High Court, as well as, the tribunal was that because of the duties and because of licenses which were controlled by the Government in their grant, continuance and termination as well as suspension that the Copywriter COPY WRITERS ASSN. lice11se holders were in fact Government servants and, therefore, had a right under Articles 14 and 16 of the Constitution of India, is rejected. High Court treated unequal& as the equals and for that purpose, it had to do the acrobatics for finding that the Copywriters had the trace of Government service. [Para 28] [374-E-H; 375-A- G] 2. 6.

High Court proceeded to hold that once it was ,I proved from the Rules ·that they had the tracings of the Government service in their favour, then they were entitled to the equal protection like other Government servants. All this was impermissible because the Government service is controlled and managed by the Rules under Article 309 of the Constitution of India. Such - Rules were never there and were not likely to be there in case of the writ petitioners. No Government service can be de-hors the Rules. There were tt. e Rules for the Copywriters, but those Rules could never be read as creating a separate Government service. They, at the most, were licensees. Firstly, the writ petitioners were not paid from the coffers of the Government. Secondly, though there was an apparent control, there was no control on their actual working. There was no attendance register for these Copywriters nor were they required to ; take leave in case they decided to remain absent.

They were not even controlled in the matter of their actual working hours. Thus, the control was qua the licenses, not qua the duties, which was ignored. The grant of licenses was bound to be ur. der the Rules and, therefore, their continuation, termination or suspension was also bound to be under the Rules. But, that was the only scope. The Rules never provided as to how the working ~ of the Copywriters would be controlled. They were, undoubtedly, independent professionals. They could come and leave at any time. Nobody could compel their attendance and the disciplinary control which was pressed into service by respondents and others was only in respect of continuation of their license. Such a disciplinary control would be available in case of all the licensees in whatever Department the licenses are given. A criminal cannot be allowed to enjoy a license nor could a person, who misbehave, could enjoy the continuation of license.

That is not the test, muchless to hold such persons to be the persons on the Government establishment. Again, merely because the Rules provided ;, that every deed must be copied and a copy thereof must be offered while registering the deed, it did not mean that the Copywriters were doing any Government duties. The concept of the Government servant's duty is entirely different. What the Copywriters were doing, was only in terms of their profession and for earning by copying. A job of making a copy of the deed for some remuneration 0 is not a Government job nor does it involve a Government duty. [Para 29] [375-G-H; 376-A-H; 377-A] 2. 7. A person with horrible handwriting or a person with illegible handwriting could never had been given this license, which essentially required good handwriting, so that it should be legible cc py of the deed which is offered for the registration. This certainly was not a Government duty.

The Government duty would start only after the deed is presented for the registration. This would also include the checking as to whether the deed is accompanied with by a legible copy thereof. But, writing of the copy could never amount to a Government duty or a statutory duty. A particular Copywriter having a good reputation, a very good handwriting, may invite a rush of the clients and might have to refuse the work. That was perfectly possible. Therefore, in the matter of their working, there was no control and merely because they hold the license to copy the deeds, it did not mean that the Copywriters were doing any duty, which was even COPY WRITERS ASSN. distantly similar to the Government duty. [Para 30] (377- 8-F] 2. 8. The essential of a master and servant relationship is that the servant must be retained by the master for doing any duties given by the master and the remuneration must flow from the master to the servant.

The servant must be under the total control of the master -" insofar as duties are concerned. There wa! :! no control as such on the working of these Copywriters. They were merely licensees and if there was any control, the control was only on their licenses. There was no control over the manner in which they do their work of copying. Again, there has to be a disciplinary. control which is conspicuously absent in the instant case. The control was only qua the licenses, their continuation or their termination. It cannot be accepted that from the bare reading of the rule, there was a total control by the Government over the working of these Copywriters. These Copywriters did not get paid by the Government. Government had no responsibility, whatsoever, to pay or even to ensure that they got paid a particular amount. While one Copywriter could earn Rs. 1,000/- a day, the other could remain content with Rs. 50 a day, depending . 1 upon the work that he has handed out.

It was not the duty of the Government to see that every Copywriter gets some minimum wages. The concept of "payment of wages" by Government is totally absent. What the Copywriters got and were entitled to get was a fees for their services to the private persons, who wanted to get their deed registered. Once all these factors are considered cumulatively, it is obvious that there was no -'( trace of master and servant relationship. (Para 31] (378- A-G] 2. 9. As regard the submission that there was a power of transfer in the present Rules also and that showed the y,.. ultimate control, in the first place, that power of transfer is not an absolute power of transfer. It depends upon contingency of the availability of the adequate number of Ccpywriters in a particular district. That would not bE! a decisive factor. [Para 37] [388-8-C] 2. 10. A grant of license cannot clothe the Copywriters with the status of Government servant nor wete they \, doing any Government duty.

There is very little or no material to suggest any master and servant relationship between the Copywriters and the Government. It cannot be held that there was master-servant relationship between State Government and the Copywriters. [Paras 43 and 44) [393-8, D; 394-E-F] 2. 11. The submission that if all the Copy\Vriters were to be accommodated as the Clerks in the Government service, then more than 6000 posts would have to be created and that would be a practical difficulty; that majority of these Copywriters did not have the basic qualification required and thus there would b~ a practical problem in accGmmodating these Copywriters; and all that would not be possible without there being any Rules under Article 309 of the Constitution, is correct. This factor of the practical difficulty was completely if;nored i. in the impugned judgment. [Para 45] [394-G-H; 395-A] 2. 12.

The submission that such licenses are given in number of other Departments where the creation of service cannot be even conceived; that the claim of the Copywriters that they were doing the essential service of the Government is falsified from the fact that in the six Districts, the Copywriters Rules, 1999 have never been . ,.. ,implemented since inception and there are no such copywriters available; that in those Districts the Xerox copies of the documents are provided as their true copies; that had the work of copywriters been essential, Government would not have dispensed with the services COPY WRITERS ASSN. of tne Copywriters in these six District; that the Copywriters did not execute any Governmental work nor was their work essentially required for the working of Registration Office, is correct. There are 6466 Deedwriters, 1200 Marriage Registrars, 20,000 Post-office Agents, 40,000 Insurance Agents and 1100 Stamp Vendors in the State of West Bengal.

Clothing the Copywriters with the Government Service would mean financial debacle for the State, is correct as each and every licence granted by the Government does not amount to service. [Para 46] [394-F-H; 395-A] Workmen of Nilgiri Cooperative Marketing Society vs. State of TN. and Ors. 2004(3) SCC 514; Official Liquidator vs. Dayananda and Ors. 2008(10) SCC 1 and Secretary, State of Kera/a vs. Umadevi 2006 (4) SCC 1, Relied on. .. Dharamgadhra Chemical Works Limit vs. State of Saurastra AIR 1957 SC 264; Chintaman Rao vs. State of Madhya Pradesh AIR 1958 SC 388; The Superintendent of Post Offices vs. P. K. Rajamma 1977 (3) SCC 94 and Ram Singh vs. Union Territory, Chandigarh 2004(1) SCC 126, Held inapplicable. G. B. Pant University of Agriculture vs. State of Uttar Pradesh 2000 (7) SCC 109, Distinguished. State of Assam and Ors. vs. Shri Kanakchandra Dutta AIR 1967 SC 884; The State of U. P. vs. Chandra Prakash Pandey AIR 2001 SC 1298; Union Public Service Commission vs.

Girish Jayanti Lal Vaghela and Ors. 2006 (2) SCC 482; State of Gujarat and Anr. vs. Raman Lal Keshav Lal Soni and Ors. 1983 (2) SCC 33; Gurugobinda Basu vs. Sankari Prasad Ghosal AIR 1964 SC 254; State of U. P. vs. Audh Narain Singh AIR 1965 SC 360; D. R. Gurushantappa vs. Abdul Khuddus Anwar 1969(1) SCC 466; S. L. Agarwal vs. G. M. Hindustan Steel Ltd. 1970 (1) SCC 177; G. L. Shukla vs. State of Gujarat ILR 1967 Guj 560; Divisional Manager, [2009] 8 S. C. R Aravali Golf Club vs. Chander Hass 2008 (1) SCC 683; Principal, Mehar Chand Polytechnic vs. Anu Lamba 2006(7) SCC 161 and State of Haryana vs. Navneet Verma 2008 (2) SCC 65, Referred to. Cassidy vs. Ministry of Health 1951 (1) All ER 574; Short vs. J. W. Henderson Ltd. 194ti (174) LT 417; Morren vs. Swinton and Pendlebury Borough Council 1965 (2) All ER 349; Argent vs. Minister of Social Security 1968 (3) All ER ... 208, Referred to. Case Law Reference: AIR 2001 SC 1298 Referred to. Para 13 AIR 1967 SC 884 Referred to.

Para 32,33, 34 2006 (2) sec 482 Referred to. Para 35, 36 ~- - 1951 (1) All ER 574 Referred to. Para 35 1946 (174) LT 417 Referred to. Para 35 1965 (2) All ER 349 Referred to. Para 36 1968 (3) All ER 208 Referred to. Para 36 1983 (2) sec 33 Referred to. Para ~7 ·• '• AIR 1964 SC 254 Referred to. Para 37 AIR 1965 SC 360 Referred to. Para 37 1969(1) sec 466 Referred to. Para 37 1910 (1) sec 111 Referred to. Para 37 ILR. 1967 Guj 560 Referred to. Para 37 y- AIR 1957 SC 264 Held inapplicable Para 38 AIR 1958 SC 388 Held inapplicable Para 38 1977 (3) sec 94 Held inapplicable Para 39 COPY WRITERS ASSN. --{ 2000 (7) sec 109 Distinguished Para 39 2004(1) sec 125 Held inapplicable Para 40 2004(3) sec 514 Relied on Para 40 2008 (1) sec 683 Referred to Para 41 2006(7) sec 151 Referred to Para 42 , 2008 (2) sec 65 Referred to Para 43 " 2008(10) sec 1 Relied on Para 44 2006 (4) sec 1 Relied on Para 44 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3414 of 2009.

-'} From the Judgment &Order dated 16. 4. 2007 of the High Court of Calcutta in W. P. S. T. No. 826 of 2001. WITH C. A. No. 3415, 3416 of 2009. Bhaskar P. Gupta, Jayanta Kr. Mitra (N. P. ), Ranjit Kumar (N. P. ) Jaydip Kar, Rana Mukherjee, Goodwill lndeevar, Sanjiv l Sen, Anurag Pandey, Anip Sachthey, Dipak Kumar Jena, Minakshi Ghose Jena, Sushil Thakur, V. N. Raghupathy, Humayun Sahu, F. I. Choudhary, R. P. Goyal, Soumya Chkrabotry, P. Narasimhan, R. K. Gupta, S. K. Gupta, Shekhar Kumar, Anip Sachthey for the appearing parties. The Judgment of the Court was delivered by 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 t, 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 COPY WRITERS ASSN. [V. S. SIRPURKAR, J. ] 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 ,i (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 i:1lso 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 ,t 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 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 that all the members, who were (2009] 8 S. C. R. holding the licenses as the Copywriters were identically placed as those Extra-muharrirs and were working from 1984 and had the requisite qualifications, expertise and experience to work as LDC. 7. It was further pleaded that since they were licensed 8 Copywriters, they could not even now claim employment through the employment exchange. They pointed out that the licenses were given on the basis of tests and selections and .

\ further on the basis that they were holders of employment. exchange cards. It was further pleaded that they were doing their duties honestly, diligently, sincerely and continuously, without any break and blemish as Copywriters and in fact, the Extramuharrirs who were accommodated, were doing exactly the same work and as such, the members of the Association were also entitled to be accommodated as the LDCs. They also pointed out that the said Copywriters were required to work under the full control of the Government and yet they were being refused absorption/regularization. In the Writ Petition filed earlier before the High Court, which was transferred to the Tribunal, the following prayers were made:- (a) A writ in the nature of mandamus do issue commanding the respondents and/or their officers and/or their subordinates to comply to their assurances and representation by absorbing your petitioner and their members in the regular cadre of service under the respondent No.

2 in the post of Lower Division Clerks; (b) A writ in the nature of mandamus do issue directing the respondents and/or their subordinates and/or their officers not to appoint any one as Lower Division Clerk or in similar grade of service without first appointing the petitioners and their members in the service; (c) A writ in the nature of mandamus do issue directing COPY WRITERS ASSN. [V. S. SIRPURKAR, J. ] the respondents and/or their officers and/or their subordinates to allow your petitioners and their members to sit for the test either oral or in writing of selection to the posts of Lower Division Clerks having fallen vacant under the respondents herein; (d) A writ in the nature of mandamus do issue commanding the respondent and their officers and subordinates to allow each of the petitioners and their members to sit in the examination for selection to Lower Division Clerk.

irrespective: of their period of lic~nse and employment exchange card; (e) A writ in the nature of prohibition do issue prohibiting the respondents from appointing any · one without appointing the petitioners and their members first as the Lower Division Clerk; (f) to (k) x x x x x x x x 8. This was opposed by the State of West Bengal by a detailed reply on the ground that such absorption of the Copywriters in the regular cadre of services in the post of LDC was not possible. It was pointed out that there was no ) employer-employee relationship between the members of the Association i. e. Copywriters and the State of West Bengal,_ and-· as such, the Tribunal had no jurisdiction to decide the issu-es raised. It was pointed out that the Copywriters were license holders under the Copywriters' Rules of 1982 (at present under the Copywriters' Rules of 1999) and they were merely holding the licenses to be eligible to perform the duties of Copywriters.

Such duties were not under the State of West Bengal and in . _,.. fact, the Copywriters were individual professionals and earned fees for job by the public in general, who come in the Registration Office for registering their documents. It was pointed out that the licenses of the Copywriters merely enable them to make out the copies of documents, which is a statutory requirement. As the Rules provide, for filing of the true copies alongwith the documents which were produced before the Registrar and since the Government had to ensure the authenticity of such documents, accordingly, the Rules were framed granting licenses to the Copywriters, who were authorized persons to prepare copy of the original documents. It was pointed out that the absorption was not possible as the recruitment rules did not provide for any such absorption and there was no question of accommodating all these Copywriters \. as the LDCs. It was further pointed out that there were .

recruitment rules for filling up the posts of LDCs and the recruitment had to be done in terms of those rules. It was also pointed out that the Extra-muharrirs, who were accommodated earlier, as stated in the original applications, were a different class altogether. They were in fact, the employees of the State Government and it was an individual cadre, which was redesignated as LDC following the recommendation of the First "'I - Pay Commission, constituted for that purpose. It was pointed out that the petitioners (respondents herein) had deliberately tried to mislead the Tribunal, knowing well that Extra-muharrirs were in regular employment of the State Government and they were merely re-designated as the LDCs. It was also urged that there were no assurances given, whatsoever, for accommodating the said Copywriters in the post of LDC. Any discrimination on the part of the State Government was also t. denied.

In short, it was urged that the Writ Petitioners had no right, whatsoever, being accommodated as the LDCs. 9. While the matters were pending before the Tribunal, two other original applications also came to be filed, they being O. A. No. 4636of1999 and O. A. No. 2377of1999 on the same subject. All these matters were heard together by the Tribunal and by its judgment dated 22. 6. 2001, 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. COPY WRITERS ASSN. [V. S. SIRPURKAR, J. ] --. (1) fails to maintain the Register or to issue " receipts as required under Rule 12; (2) contravenes any of the provisions of these Rules or any of the conditions of his license or is found guilty of disobedience to any .. ,, lawful order passed under these rules; .

, - (3) is found guilty of abatement or participation in any illegal transaction with any member of the staff of the Registrations Office' (4) Conducts or behaves himself improperly in the Registration Offices. 20(2) An order of suspension shall be issued after a regular proceeding. The Copywriter accused of +-. guilt shall be given adequate opportunity to be heard and defend himself. The decision of the suspending authority shall be recorded in writing and a copy of it shall be furnished to the Copywriter concerned. 21. Copywriter's licensing test:- (1 )An- exarnination to be called "Copywriter's Licensing Test" shall be ". . conducted by the licensing authority of each district. The time and place of the examination and also the language in which the candidates shall be examined shall be notified in such manner as the licensing authority considers appropriate and COPY WRITERS ASSN. [VS. SIRPURKAR, J. ] necessary.

(2) The test shall relate to the transcription of documents and may include any other subject as may be prescribed by the licensing authority. (3) An examination fee as provided in these rules shall be levied on each application. 24. Remuneration:-The rate of remuneration shall be . . as follows:- (1) For copying 100 words or part thereof Rs. 6. 00, subject to the minimum of Rs. 30. 00; (2) For preparing typed copy by licensed Copywriter, the charge shall be the same as in Clause (1); (3) For comparing 100 words or part thereof, each comparer shall get Rs. 4. 00, subject to a minimum of Rs. 20. 00. 26.

Suspension, cancellation, revocation and/or granting of license under certain circumstances:- (1) Notwithstanding anything contained in these rules, the Inspector General of Registration and Commissioner of Stamp Revenue, West Bengal, may, on his own motion or otherwise, call for the records of any case relating to grant of license, and if it so appears to him that license has been granted or not granted in contravention of these rules or if it so appears to him that the licensing authority was biased or influenced in granting or not granting the license, he may pass such order including order of suspension, cancellation, revocation, and/or granting of license, as he may deem fit and proper, after giving the reasons therefor in writing, provided that no such order shall be passed without giving the person or persons so affected, an opportunity of being heard and without calling for a report from the licensing authority.

(2) An appeal against any order under Sub-Rule (1) shall lie to the Government in the Finance (Taxation) Department, if preferred within thirty days from the date of communication of the order passed under that sub-rule. . The above mentioned Rules were generally referred to and relied on by the parties and hence, we have quoted them extensively. Apart from that, Shri Jayant Kumar Mitra, Learned Senior Counsel appearing on behalf of the respondents, also referred to Rule 5 and 9 of the Copywriters' Rules of 1979. Rule 5 provides for preparation of copies, while Rule 9 provides for authentication and filing of the copies. We need not dilate upon these Rules at this juncture. 18.

Coming back to the Copywriters' Rules of 1999, they in general and particularly those Rules, which have been quoted above, bring out a position that the Copywriters' licenses are to be held exclusively, in the sense that a person holding deed writer's license shall not be entitled to hold the same and that none excepting the license holder, can engage himself in the profession of a Copywriter. The language used in Rule 3 describing it as a "profession of Copywriter" is extremely important. Rule 5 provides for the qualifications for holding such license. It is worth seeing that it requires is only passing of Vlth Class Examination. Such a person should have minimum 3 years of experience on the date of application. Such a person would also have to appear for a Test, he should be able to right neatly, legibly and correctly and he should have good conduct. COPY Vl/RITERS ASSN. [V. S. SIRPURKAR, J.

] --t Rule 6 suggests that if a Copywriter dies in harness or becomes incapacitated, then his/her spouse or any one of his/ her sons/daughters/near relations would be eligible to be considered for grant of Copywriter's license on their making application through proper channel to the Inspector General of Registration. Rule 9 provides for renewal of license, as the license granted is only an annual one. Rule 10 provides for the ) conditions of renewal. The Rule provides that if the licensee has ... violated any of the conditions or does not pay the renewal fee or during the earlier period, his license has been suspended or he becomes physical unfit or mentally unbalanced, then his license shall not be renewed. Though Rule 12 has not been quoted by us, even that was referred to by the Learned Counsel and more particularly, Learned Counsel for the respondents, to show that the licensee has to abide by the conditions, he cannot -· 1 charge more fees then prescribed under Rules.

He has to issue a receipt in Form No. 6 and he may be debarred for not following these conditions, he is also required to maintain a register in Form No. 5, he shall exhibit the rates of remuneration and he shall be amenable to the inspections made by the Registering Officer and shall be generally under the control of licensing authority. Rule 15 provides the rights of the Copywriter, suggesting that he should be allowed to sit in the office precincts ,,;; and shall work under the control of Registering Officer. Rule 17 provides for the cancellation of license, while Rule 19 provides for the suspension of the license. Suspension has been dealt with in Rule 26. Rule 20(2) provides the manner and procedure, under which the suspension shall take place. Lastly, Rule 24 provides for the rates of remuneration or the fees. All this completes the legal scenario. 19. Shri Bhaskar P.

Gupta, the Learned Senior Counsel ~ ·~ for the appellants pointed out that the Rules and the provisions, read in any manner, cannot conceive of a relationship of master and servant between the Copywriters and the State Government. Shri Gupta said that it is at the most, a selfemployment generating scheme. The Learned Senior Counsel pointed out that there are Rules under Article 309 for recruitment of the Government servants and the present Rules do not come anywhere near those Rules. It was pointed out that there are no tests in the Government Organization, which are comparable to or equivalent to the post of Copywriters. It was suggested that these Copywriters do not do any work relating to the Registration Office of State nor is any payment required to be made to them from the public exchequer. It is for this reason that the Learned Senior Counsel argued that the whole claim of absorption, as made initially in the original application, is baseless. 20.

When we see the aforementioned Rules, they nowhere provide even distantly, any master and servant relationship in . between the State Government and the Copywriters. It is the basic principle of interpretation that where the language of the Statute is clear and admits of no doubt, then the Court will accept the plain meaning of the provisions. Applying the test of plain meaning, no Rule either under the Copywriters' Rules of 1982 or the Copywriters' Rules of 1999, can be read as clothing the Copywriters with the status of Government servants. The Rules, at the most, provide for the licenses armed with which, the Copywriters can follow the profession of Copywriting, as is clear from Rule 3 of the Copywriters' Rules of 1982. 21. The demand for absorption seems to have emanated from what happened earlier in the case of Extra-muharrirs, who were admittedly absorbed by the State Government in the posts of LDCs.

That fact was used by Shri Jayant Kumar Mitra, Learned Senior Counsel for the respondents very earnestly to convince us that the Extra-muharrirs did the same job of Copywriting and were identically placed as these Copywriters. On the other hand, Shri Bhaskar P. Gupta, Learned Senior "" Counsel for the appellants pointed out to us that there cannot be any comparison between the Extra-muharrirs and the Copywriters for the simple reason that the Extra-muharrirs were already on the establishment of the Government in the regular f1 COPY WRITERS ASSN. [V. S. SIRPURKAR, J. ] posts. All that was done to change the nomenclature of that post, and finding that the duties of that post were almost identical to the duties of the LDCs, they were absorbed as the LDCs. Therefore, it is not a case where the persons, who were not even on the establishment of the Government were conferred with the status of the Government servant. Such was not the case in case of the Copywriters.

Admittedly, they were never on the Government establishment. They were private ' ,.! persons and they took the advantage of the Copywriters' Rules of 1999, which provide for the licenses to be given for doing the job of a Copywriter. They have been provided with this opportunity to earn their livelihood by working as the Copywriters on the basis of the licenses. They were not ceimparable in any manner with the Extra-muharrirs even in respect of their educational qualificatioo. It is to be seen from the Rules that the minimum quaUfication. for a licensee as a ~'t Copywriter is barely Vlth Class passing, which is unimaginable in the present days as a minimum qualification for Government job. It is tried to be suggested that almost all the Copywriters were educated and were holding a better qualification. That may be so, but that does not in any manner solve the problem of the Copywriters, whose minimum qualification, as prescribed in the Rules, is much lower than that of the LDCs.

Again during the debate, as also before the High ,. -' Court, no evidence has been brought, showing as to how the post of Extra-muharrirs is comparable to or identical to the post of Copywriters. We will have to, therefore, straightaway reject the claim in this behalf. 22. At this juncture, we must consider the arguments of Shri Bhaskar P. Gupta, Learned Senior Counsel for the appellants, about the relief which has been granted to the Writ petitioners. ~ .. We have referred to this argument in the earlier part of this judgment. The Prayer clause in the Writ Petition No. 2304/1996, which Writ Petition was transferred to the Tribunal to be renumbered as T. A. No. 392 of 1998 is already quoted by us in paragraph 7 of this Judgment. 23. The whole petition was based on the perpetual demand on the part of the Copywriters to be absorbed as the LDCs.

A substantial part of the petition deals with not only the demand, but also the agitations, which were taken up by the Copywriters individually, as well as, on Association level. We have seen the Writ Petition very carefully. After referring to the Copywriters Rules of 1982 (the Copywriters' Rules of 1999 had not, by then, come into effect, c;ince Writ Petition was filed in 1996), the Writ Petitioners pointed out, more particularly, Rule 5, 7 and 14 thereof to suggest that the Writ Petitioners' eligibility for license was fixed by the Government and that they were selected after making an application under Rule 7 and further to show from Rule 14 that they were to work under the control and supervision of the Registering Officer. The Writ Petitioners have also relied on some other Rules and also the fact that the Rule of 'dying in harness' was made applicable to 0 these Copywriters.

In short, the contention was that the Writ Petitioners were carefully selected for the grant of license and that their service conditions were almost alike to the LDCs. 24. In para 14 of the Writ Petition particularly, Writ Petitioners referred to the representations given by them for their permanent absorption as Copywriters under the respondent State. A reference is made to demonstration in the year 1995 and a further reference is made to the intervention ·and alleged assurances given by the Finance Minister of State and other Officers for considering the grievance. as well as, the proposal of permanent absorption of the Writ Petitioners, upon which the continuous strike was withdrawn by them. Writ Petitioners, in para 15 and 16, have referred to a representation dated 20. 6.

1995 and have further asserted that recently vacancies had cropped up in the Office of Registrar throughout thf 'Nest Bengal and, therefore, the names of the prospective c: ididates to fill up such vacancies were invited from the mployment exchanges. In fact, this was the sore point felt by the Wnt Petitioners, whose main demand in the Writ Petition, as would be clear from the Prayer clause, was to stop such COPY WRITERS ASSN. [VS. SIRPURKAR, J. ] process for employment, started by the State Government. It is only with that idea that they had sought for an injunction ag(linst the said process. In para 17 of the Writ Petition, the - Writ Petitioners urged that previously, i. e. in or about 1979, the Government had absorbed all the Copywriters working in the office of Registrars throughout the West Bengal as LDCs under the said office and had employed them under the State, though the Writ Petitioners were careful enough to state that those persons were then called "Extra-muharrirs".

We have already dealt with the question of Extra-muharrirs in the earlier part of the judgment. In para 18, again it was asserted that the Writ Petitioners had req1. 1isite qualification, expertise and experience to work as LDCs. The Writ Petitioners then referred to their Trade Union and in para 21, the Writ Petitioners asserted that those, who had the qualifications, should be allowed to sit for examination for absorption in the posts of LDCs, which. 0 examination was meant for filling up the vacancies of LDCs. They also pointed out that their Cards of employment exch~nge were surrendered temporarily in view of their engagement as Copywriters. They also referred to a so-called assurance given that they would ultimately be absorbed in the office of the respondent Registrars on availability of the vacancies for the posts of LDC. They also prayed in para 26 that the age bar should not be introduced in their case, as some of them had already crossed the age limit of 35 years.

In para 28, they asserted their legal and fundamental rights to be absorbed. In para 30, they stated about their requisite qualifications and eligibility to be selected as LDCs. Lastly, in para 31, the Writ Petitioners asserted that the exercise on the part of the Government was discriminatory and arbitrary. What prominently appears from the Writ Petition is that in the whole Writ Petition, the Writ Petitioners are conspicuously silent about any master and servant relationship between them and the Government much less on the basis of 1982 or 1999 Rules. 25. The petition is wholly silent about the assertion that the Writ Petitioners are doing the identical duty as that of the LDCs and they are actually the Government servants. Further, there is not even a whisper in the Writ Petition that a separate cadre with a separate nomenclature should be Greated for them by the Government.

In fact, in the last part of the Writ Petition, the - Writ Petitioners have asserted that injustice has been done to them in their representations remaining without a reply and in their not being absorbed in service and further they are not being allowed to sit in the examination. In para 36, they asserted that the respondents should be injuncted from proceeding with the absorption in the post of LDCs in their offices and from calling for interview or written tests or for any selection procedures in respect of the said posts. What we fail to understand is as to how on the basis of such a Writ Petition, the Writ Petitioners were allowed to completely change their stand and introduce, for the first time, a theory of master and servant or even allowed to argue that they were the Government servants and in fact, because of the duties conducted by them, they were the servants of the Government on its establishments.

Unfortunately, all this was allowed, though not at the Tribunal level, but at the level of the High Court. 26. Shri Jayant Kumar Mitra, Learned Senior Counsel for the respondents tried to point out that in their counter-affidavit, the State Government themselves asserted that there was no ma~ter and servant relationship between the Writ Petitioners aRd the State Government and, therefore, the Writ Petitioners eowld not assert their right1o be absorbed as LDCs. Therefore, Sifr(Mitra pointed out that if the theory of master and servant was introduced by the Government in its reply, then the Writ petitioners had every right to assert that there was a master and servant relationship between them and the Government. We completely fail to understand this logic. A Writ Petitioner has to stand on his own legs and has to rely on the pleadings in the Writ Petition.

A simple case was pleaded by the Writ Petitioners in the Writ Petition that they had a right to be absorbed as LDCs, firstly because the Extra-muharrirs were so absorbed and secondly, because they were doing the same COPY WRITERS ASSN. [VS.. SIRPURKAR, J. ] _..... ,. job as LDCs. lhey had novl. ihere suggested that they were already on the Government establishment and there existed mastei and servant relationship between them and the Government and, therefore, it was incumbent on the Government to either absorb them as the LDCs or to create a separate service for them. It has to be understood that they never asserted that they were equally circumstanced with the LDCs or Extra-muharrirs, which position, they introduced for the ) ... first time before the High Court.

Such radical change in the stand, as also the radical change in the Prayers could not have been allowed by the High Court in a Writ Petition, muchless when the High Court was concerned with the limited exercise of deciding the correctness or otherwise of the Tribunal's judgment. Unfortunately, the High Court seems to have travelled much beyond the pleadings and has, therefore, fallen into error in granting an unimaginable relief to the Writ Petitioners of --~ creating a service for them with a separate nomenclature. All this was clearly beyond the jurisdiction of the High Court. 27. We have already stated about the original Writ Petition, which was converted as a Transfer Application. Unfortunately, copy of Writ Petition being WPST No. 826 of 2001, which was filed after the order of the Tribunal was passed, has not been filed before us. We have, therefore, seen the other two Writ ;' Petitions, which came to be fried before the Calcutta High Court, they being WPST No.

1312 of 2001 and WPST No. 15 of 2002, which were also decided-by the High Court by the common judgment. The story is no different. "i"iie plea are almost the same, inasmuch as the petitioners therein also compared themselves to the Extra-muharrirs and claimed parity with them. The same plea regarding right and control and the manner of working for determining the employer-employee .... '~~ relationship has been pressed into service for the first time, though same was not the case before the Tribunal. It was also tried to be suggested in the grounds that in pith and substance, the Copywriters held statutory licenses and since they were working under the comrnand and control of the authorities and [2009] 8 S. C. R. ,..

,_ were subordinate to their disciplinary jurisdiction and since those licenses were controllable by the State Government, therefore, they became the integral part of the State Government Organization and, therefore, all that had remained was to recognize such a status by their absorption into the regular structure of the Government. Same plea, to the effect that the Copywriters were doing what the Government could have got done through their employees, has also been pressed )> into service. Again, the same identical reliance was placed on .. the fact that their remuneration was fixed by the Government Rules. Thus, the same theory of interpretation came in these petitions after the Tribunal's order. 28. At this backdrop, when we see the Prayer clause, all that was prayed is setting aside of the judgment of Tribunal and direction to the State Government to absorb and regularize .

le the services of the Copywriters in the regular cadre of service under the respondents therein, in the posts of LDC or in any such suitable post commensurate to their qualification and experience. Identically, the injunction is also prayed for restraining the State Government from filling up the, east of LDCs. Very typically, in Prayer clause (e), a direction is prayed for to provide the Writ Petitioner with employment as LDCs or equivalent posts. We are certain, the prayers are no different in WPST No. 826 of 2001, the copy of which is not on our k ' record. In fact, it is on this short ground that the Writ Petitioners had given up their main demand of being absorbed as LDCs that these appeals are liable to be rejected. Once those prayers vanish on account of the concession by the Learned Counsel, really nothing could remain in the petition.

However, High Court went on to examine the belated theory of master and servant, which was totally out of the scope of the original application, ; ~ as well as, the Writ Petition. Even at the cost of repetition, we may say that when the State Government in its reply before the Tribunal asserted that there was no relationship of master and servant, the Writ Petitioners seem to have totally changed their stand. The Learned Counsel for the Writ Petitioners before the COPY WRITERS ASSN. [VS. SIRPURKAR, J. ] High Court, as well as, before the Tribunal had rightly conceded - that they could not be appointed or absorbed as LOCs. Shri Mitra, Learned Senior Counsel for the respondents very fairly stated at the beginning of the debate that they had abandoned that prayer. Shri Mitra, however, tried to justify that in its plenary jurisdiction, the High Court could mould the relief. There could be no doubt about the High Court's power to mould the relief.

However, even in its plenary jurisdiction, while moulding the ~,. relief, there must be a plea to support such a relief. The relief granted by the High Court in this case is extraordinarily beyond the jurisdiction of the High Court and has no nucleus in the Writ Petitions or in the original applications. The basic case that was pleaded was that since the Extra-muharrirs were absorbed by the Government, the Writ Petitioners, who were doing the task of Extra-muharrirs, also had a right to be absorbed in the Government. This plea was obviously baseless, as while Extra- 0 muharrirs were on the regular establishment of the Government, the Writ Petitioners were not and, therefore, they could not have claimed the parity. It is only after the reply of the Government came, denying the master servant relationship, that the Writ Petitioners started singing the tune of the de facto Government service in their favour.

The argument before the high Court, as well as, the Tribunal was that because of the duties and because of licenses which were controlled by the Government ,~ in their grant, continuance and termination as well as suspension that the Copywriter license holders were in fact Government servants and, therefore, had a right under Articles 14 and 16 of the Constitution of India. We must, at once, repel this argument of Article 14 and 16, which has been accepted by the High Court. The High Court has treated unequals as the equals and for that purpose, the High Court had to do the acrobatics for finding that the Copywriters had the trace of 4~ .. Government service. 29. Taking this defective logic further, the High Court proceeded to hold that once it was proved from the Rules that they had the tracings of the Government service in their favour, then they were entitled to the equal protection like other Government servants.

All this was impermissible for the simple reason that the Government service is controlled and managed by the rules under Article 309 of the Constitution of India. Such rules were never there and were not likely to be there in case of the Writ Petitioners therein. Th1lby itsel[ was enough to teject the claim of the Writ Petitione;s. No Government service can be de-hors the rules. There were, undoubtedly, the rules for the Copywriters, but those rules could Aever be read as creating a separate Government service. They, at the mosf, were licensees. Firstly, these Writ Petitioners were not paid from the coffers of the Government. Secondly, though there was 37. This takes us to the case of State of Gujarat & Anr. Vs. Raman Lal Keshav Lal Soni & Ors. reported in 1983 (2) ... SCC 33. The question, which fell for consideration was as to whether personnel drawn from different sources, namely, (2009] 8 ·S. C. R. c! - ...

Government departments, as well as, the local authorities or Municipalities merged together to constitute a single integrated civil service under the State by a legislative enactment, would become the State Government employees, irrespective of their original status. The question was answered in affirmative. This decision was very heavily relied upon by Shri Mitra, Learned Senior Counsel for the respondents, since the end result went in favour of the employees and they were held to be holding the civil posts. In para 27, the Court observed:- . ,, "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 y... 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. " (Emphasis Supplied) Reference was made to the cases in Gurugobinda Basu Vs. Sankari Prasad Ghosal reported in AIR 1964 SC 254, State of U. P. Vs. Audh Narain Singh reported in AIR 1965 SC . ~ , 360, case of Kanakchandra Dutta (cited supra), D. R. Gurushantappa Vs.

Abdul Khuddus Anwar reported in 1969(1) SCC 466 and S. L. Agarwal Vs. G. M. Hindustan Steel Ltd. reported in 1970 (1) SCC 177. ln para 31, this Court noted that ~ . COPY WRITERS ASSN. [V. S. SIRPURKAR, J. ] .. >--,. +. the Panchayat Service constituted under Section 203 of the Gujarat Panchayats Act was a civil service of the State and members. • . , , of the• service• ; I ' J ' were' I ' Government servants. ' l . ~ It was noted that this question was decided by the High Court of Gujarat more than 15 yeqrs back in G. L Shukla Ys. State of Gujarat reported in ILR 1967 Guj 560 by Hon'ble Bhagwati, J. (as he then was). In that judgment, Hon'ble Bhagwati, J. observed:- ,,. .

i <' "The mode of recruitment, the conditions of service and matters relating to appointments, transfers and promotions of persons employed in the panchayat service as also disciplinary action against them are all determined by the State Government and that is consistent only with the State being the master in the entire panchayat service. The mandatory provision for promotion from panchayat service to State service which is required to be made in the rules also shows that both the services are services of the State. There could be no question of promotion from one service to another if the masters in the two services were different. Then it would be a case of termination of one service and appointment of another..... ............ ..... " The Learned Judge further said:- "It is not possible to believe that the officer or servant could have been intended by the Legislature to be treated like a chattel which can be tossed about from one master to another.

The only reasonable way of looking at the matter seems to be and that conclusion is inevitable on the language of these provisions, that the panchayat service is a civil service of State like the State service and since both the services are civil services of the State with the State as the master, an officer or servant can be allocated from the State service to the panchayat service and reallocated from the panchayat service to the State service.... ........... . " ~--.... Considering other provisions, ultimately, this Court held the employees to be belonging to the Government service and found that there existed the master and servant relationship. The situation is entirely different in the present case and as has been oft quoted by this Court that every case would have to be decided on the facts. We do not find any parity of the facts in this case with the case at hands.

It was tried to be argued feebly by Shri Mitra, Learned Senior Counsel for the respondents that l there was a power of transfer in the present rules also and that showed the ultimate control. In the first place, that power of transfer is not an absolute power of transfer. It depends upon contingency of the availability of the adequate number of Copywriters in a particular district. That, in our opinion, would· not be a decisive factor. On the other hand, what we find is that there is no payment of wages to the Copywriters from the Government coffers nor is there any control on the work or on the way the work is to be conducted. Further, there are no rules creating any such service like the rules, which were considered in the case of State of Gujarat & Anr. Vs. Raman Lal Keshav Lal Soni & Ors. (cited supra). This case is, therefore, of no use to the respondents herein. 38.

Shri Jayant Mitra, Learned Senior Counsel for the respondents relied on the judgment in Dharamgadhra Chemical Works Limit Vs. State of Saurastra reported in AIR ....... 1957 SC 264. This case obviously will not apply for the simple reason that the question there was as to whether a person, if paid not per day, but by the job, could be held as a workman. The observations have been made to the effect that the rules regarding hours of work etc. applicable to other workmen may not be conveniently applied to them, is no deterrent against holding the persons to be workmen within the meaning of the definition. We do not think. . that- these. observations or the law laid down in this case, is apposite to the present controversy. The other case relied on was Chintaman Rao Vs. State of Madhya Pradesh reported in AIR 1958 SC 388. This was the case under the Factories Act. The Court was called upon to COPY WRITERS ASSN. [V. S. SIRPURKAR, J. ] ·. ,;.

decide upon as to whether who is a contractor and distinction between a contractor and a workman. Thi~ w11s the case under the labour jurisprudence and, therefore, the observations made therein in paras 10 and 11 would not apply to the present controversy. Relying on this case, the Learned Senior Counsel tried to contend that the State supervises and controls the work done by the Copywriters. For this purpose, reliance was made on the Copywriters' Rules of 1979. That was tried to be viewed r ( as a control by the State Government on the working of the Copywriters. We have already held that the rules do not have any such scope as to spell out an absolute control on the work of Copywriters. 39. The Learned Senior Counsel also relied on the case of The Superintendent of Post Offices Vs. P. K. Rajamma reported in 1977 (3) sec 94. This was a case regarding the extra departmental branch Post Masters and ext•a departmental • delivery agents.

The question was as to Whether such persons could be held to be holding the civil post. The Court came to the conclusion that considering the elaborated provisions of rules controlling the appointment, leave, termination of services, the nature of penalties, procedure for imposing penalties and other matters relating to the conduct and service of extra departmental agents, such persons were holding the civil post. ,-ir We have closely seen the ruling and find that the rules relating to extra departmental branch Post Masters are entirely different. Those extra departmental branch Post Masters were being paid from the coffers of the Government and their service was also controlled in the manner of penalties. Such is not the case here. The ruling is of no consequence. Further reliance was made on the case of G. B. Pant University of Agriculture Vs. State of Uttar Pradesh reported in 2000 (7) SCC 109, where (A.

the question was as to whether the employees of the Cafeteria run in the University could be recognized as regular employees of the University. The Canteen workers were ultimately held to be the employees of the University. We have compared the conditions of service. The law laid down in this case cannot - apply, since on facts, this case is entirely different. There can be no comparison between the Canteen workers of a University, who were actually in the employment and the Copywriters, who were merely license holders. 40. For canvassing his case on employer-employee 8 relationship, Shri Mitra relied on the case of Ram Singh Vs. Union Territory, Chandigarh reported in 2004(1) SCC 126. Our attention was drawn to the finding that the control is only one of the important tests, but not the only test and in determining such relationship, all the relevant factors have to be considered.

Reference is also made to the integration test for examining as to whether an employee is fully integrated into the employer's concern or has remained apart from and independent of it. There can be no question with the ratio. Ho)Never, in our opinion, even applying the integration test, it cannot be said in . ; the present case that the Copywriters have the integral part of the Government machinery. We have already commented upon the other factors like power of selection, dismissal, the remuneration etc. This case refers to insurance contributions, supply of tools and materials etc. , which is absent in the present case. Therefore, even this case would be no consequence. Lastly, the reliance was made on the case of Workmen of Nilgiri Cooperative Marketing Society Vs. State of T. N. & Ors. reported in 2004(3) sec 514. That was the case regarding the claim of the workers that they were the workmen of Nilgiri Cooperative Marketing Society.

The Court, undoubtedly, culled out some principles like the appointing authority, the paymaster, the person who can dismiss, the length of the alternative service, the extent of control, the nature of job, the nature of establishment etc. in para 37 of the judgment. Ultimately, the Court decided against the workrnen in para 98 of the judgment and held:- "98. It has been found that the employment of the workmen for doing a particular piece of work is at the instance of the producer or the merchants on COPY WRITERS ASSN. [V. S. SIRPURKAR, J. ] -.. - ... an ad hoc basis or job to job basis and, thus, the same may not lead to the conclusion that relationship of employer and employee has come into being. Furthermore, when an employee has right to work or not when an offer is made to him in this behalf by the producer or by the merchants will also assume significance.

" ~ ; This was the case, where in Cooperative Marketing Society, having about 22,000 members, who brought their agricultural produce in the marketing yards of the society by hired lorries or trucks. The concerned persons, who claimed to be the workmen, helped for unloading of the gunny bags containing potatoes from the lorries, unpacking the gunny bags and keeping the potatoes in lots inside the godown, grading the potatoes into different sorts, weighing the auctioned -- t potatoes in 45 kg and packing them into gunny bags brought by the merchants, stitching the gunny bags and loading them into lorries hired by the merchants. These persons, who claimed to be the workmen, were paid on the basis of the work output. The growers and merchants were free to engage their own porters and graders. There had been no obligation on the Society's godown to engage service of these workers, waiting in the yard.

There were no attendance registers or wage r'< registers and the Society was found to have no control' as to who should do the work and the members were free to engage any worker available in the yard. There were no working hours fixed for porters and graders and they were free to come and . go at will. They had no obligation to report to work everyday nor was there any control regarding the number of workers to be engaged and the work to be turned out by the porters and graders. There were no appointment orders issued by the {_. + Society and there was no disciplinary control over the porters and graders exercised by the Society. In the light of these facts, this Court came to the conclusion that the workmen could not claim to be the workmen of the Society. The situation is no different, though in some matters, some distinguishing features can be seen. In our opinion, this case would come nearest to the facts of the present case.

In our opinion, this case would, : therefore, help the appellants more than the respondents; who have chosen to rely on the same. The integrated approach suggested by this Court in this decision, when made applicable to the present case would be of no assistance to the respondents. 41. On the other hand, Shri Gupta, Learned Senior Counsel for the appellants, invited our attention to the decision in Divisional Manager, Aravali Golf Club Vs. Chander Hass reported ih 2008 (1) Sec 683. Here, the daily wager Malis who were working for a long period as daily wager Tractor Drivers without there being any sanctioned post of Tractor Driver, Were ordered to be regularized as Tractor Drivers, by the High Court. This direction was struck down by this Court, hoidihg that when there was no sanctioned post of Tractor Driver, the Court could not direct to creation of such posts and regularize the Malis ih such posts.

Thus, it has been clearly held that where there are no sanctioned posts, the creation ofposts is impermissible. 42. Shri Mitra, Learned Senior Counsel for the respondents tried to distinguish this case on the ground that it is different on facts. However, we may rely on this case to the limited extent that where there are no sanctioned posts of a particular nature, the workmen cannot be directed to be accommodated in the post and for that matter, no direction can be given to create any such post. In Principal, Mehar Chand Polytechnic Vs. Anu Lamba reported in 2006(7) SCC 161, the ad-hoc/temporary appointees and promotees, who were not appointed in terms of any statutory rules, claimed regularization. This Court pointed out that the project, under which they were employed, was a time bound project and no a regular service and, therefore, the High Court's direction to create the post and regularize the services of the respondents therein, was quashed by this Court.

Again, to the limited extent that the posts cannot be directed to be created in complete disregard to the rules, this decision COPY WRITERS ASSN. [VS. SIRPURKAR, J. ] ' ~+ helps the appellants. 43. Shri Mitra, Learned Senior Counsel for the " respondents, tried to suggest that in the present case, the Copywriters were engaged to perform duties of the State on regular basis, in pursuance of the so-called licenses issued by the State Government. We have already clarified that such grant of license cannot clothe the Copywriters with the status of Government servant nor were they doing any Government . ti' ' duty. In State of Haryana Vs. Navneet Verma reported in 2008 (2) sec 65, this Court approved of the abolition of the post of Accounts Executive by the Government. That was challenged before the High Court.

This Court observed that an action taken by the Government in good faith cannot be challenged and the Courts do not have any competence to go into such matters, particularly on the basis of scant materials. We have no . •· ·~ hesitation to say that in the present case, there is very little or no material to suggest any master and servant relationship between the Copywriters and the Government. 44. Lastly, Shri Gupta, Learned Senior Counsel for the respondents relied on the decision in Official Liquidator Vs. Dayananda & Ors. reported in 2008(10) sec 1. That was case, where the staff employed in the office of the Official Liquidator attached to different High Courts claimed the status ,cy ' of permanent Central Government employees. The • employments were undoubtedly of temporary nature, but this staff was attached to the Official Liquidator and were doing the Government duty. The mode and source of their recruitment and remuneration were also controlled by the Central Government.

However, this Court came to the conclusion, on the basis of the decision in Secretary, State of Kera/a Vs. Umadevi reported in 2006 (4) sec 1, that such staff formulated a different class. . -'· This Court noted that from the inception of their employment, ' the staff there were being paid from the fund created by disposal of assets of the company (in liquidation). Thus, this Court was of the view that the directions given by the High Court ~for creation of supernumerary posts to facilitate absorption of company paid staff were not legally sustainable. In many ways, the facts are common, inasmuch as, the duty, which were done by the staff was undoubtedly an official duty. This Court took into account the fact that they were never paid the wages by the Central Government nor were they on the Central Government establishment. This staff, undoubtedly, worked .

under the control of the Official Liquidators, who were none else but the Central Government employees and yet the Court came J ' to the conclusion that they could not be given the status of the Central Government employees. This case comes very near to the facts of the present case and would be much helpful to the appellants, inasmuch as, firstly, this staff, though appointed by the Central Government, was working in the premises provided by the Central Government and sometimes in the High Court premises, and secondly, though they were on ad-hoc basis, they ~ .. were working continuously and the nature of their duties was \ official. Further, they were under the direct control of the Official Liquidator, as is being claimed in the present case and yet it was held by the court that they could not claim the status of the Central Government employees. The situation is more or the less identical in the present case.

We are, therefore, convinced that the law relied upon by Shri Mitra, Learned Senior Counsel, as also the other Learned Senior Counsel like Shri Ranjit Kumar, Shri P. P. Rao, and Learned Counsel like Shri Dipak y\ Kumar Jena, does not help the respondents and it cannot be held that there was master-servant relationship between State Government and the Copywriters. 45. Shri Gupta contended that if all the Copywriters were to be accommodated as the Clerks in the Government service, then more than 6000 posts would have to be created and that would be a practical difficulty. Further majority of these ~-) Copywriters did not have the basic qualification required and I thus there would be a practical problem in accommodating these Copywriters. He further reiterated that all that would not be possible without there being any Rules under Article 309 of COPY WRITERS ASSN. [Y. S. SIRPURKAR, J. ] ~·-,. 4.. the Constitution of India. The contention is undoubtedly correct.

This factor of the practical difficulty has been completely ignored in the impugned judgment. 46. Shri Gupta pointed out that such licenses are given in number of other Departments where the creation of service cannot be even conceived. He pointed out that the claim of the Copywriters that they were doing the essential service of the ti ,j Government is falsified from the fact that in the Districts of Burdwan, Purba Medinipur, Paschim Medinipur, Maldah, Uttar Dinajpur and Dakshin Dinajpur the Copywriters Rules, 1999 have never been implemented since inception and there are no such eopywriters available. In those Districts the Xerox copies of the documents are provided as their true copies. Had the work of copywriters been essential, Government would not have dispensed with the services of the Copywriters in these ,. ,"-- ~ six Districts.

According to the learned counsel this clearly suggest that the Copywriters did not execute any Governmental work nor was their work essentially required for the working of Registration Office. The argument is undoubtedly correct. Learned counsel also pointed out that there are 6466 Deedwriters, 1200 Marriage Registrars, 20,000 Post-office Agents, 40,000 Insurance Agents and 1100 Stamp Vendors in the State of West Bengal. He pointed out that clothing the Copywriters ,-'f with the Government Service would mean a financial debacle for the State. The argument is undoubtedly correct as each and every licence granted by the Government does not amount to Service. 47. The conclusion of all the above discussion is as under: (i) That the original Writ Petitioners-Copywriters are mere licensees. ( -+ (ii) Though the Rules have been formulated by the Government for awarding these licenses the Rules do not spell out an absolute control over the working of these Copywriters.

The Rules merely pertain to the grant of licences and control of those licences, how~ver, did not control the working and duties of the Copywriters. (iii) The Copywriters do not do any Government duty. They are merely required to copy the deeds which are to be presented for registration. Though the filing of a fresh copy is necessary for registration, the making of that copy does not amount to a Government duty. (iv) The Copywriters are not controlled in the matters of their attendance, working hours, leave, pension and output of work etc. , by the Government. (v) The Copywriters are not on the establishment under the Rules, more particularly the Rules formulated under Article 309 of the Constitution of India. (vi) The Copywriters are not paid from the Government coffers. On the other hand they are paid by the private parties who require those copies for Registration of the deeds.

Therefore, there is no fiduciary relationship between the Government and the Copywriters nor is the government responsible for any such payment. (vii) In short the grant of licence for copywriting does not amount to creating a service. Hence there is no master-servant relationship between the Copywriters and the Government nor can they said to be Government servants entitling them to socalled equal treatment with the other Government servants. + ) (viii) The High Court has erred in directing the creation of service and for that purpose framing the Rules as also providing the nomenclature for such a COPY WRITERS ASSN. [V. S. SIRPURKAR, J. ] service. In that the High Court has traveled beyond A the scope of the original application and the writ petition. 48. The appeals thus deserve to be allowed and they are accordingly allowed. The common judgment of the High 'Court B is set aside and that of the Tribunal is restored.

Under these circumstances, however, there shall be no order as to costs. N. J. Appeals allowed. .. i