Calcutta High Court
West Bengal Registration Copywriters' ... vs State Of West Bengal Service Through The ... on 16 April, 2007
Equivalent citations: 2007(2)CHN721
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. All these three applications under Article 226/227 of the Constitution of India were heard analogously as those are preferred against the common judgment dated June 22, 2001 passed by the West Bengal State Administrative Tribunal 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, all heard analogously before the Tribunal. The T.A. No. 391 of 1998 originates from W.P. No. 1643 of 1996 filed in this High Court by the Registered Association of the Copywriters and was transferred to the Tribunal along with another writ application being W.P. No. 2304 of 1996 and the same was renumbered as T.A. No. 392 of 1998 and the other two were filed by the individual copywriters claiming identical relief direct before the Tribunal.
2. The common case made out by the applicants in all the four matters before the Tribunal may be summed up thus:
(a) The members of the West Bengal Registration Copywriters' Association as well as the applicants in the other matters were the licensees under the West Bengal Registration (Copywrites) Rules, 1982 [which have since been replaced by the West Bengal Registration (Copywriters) Rules, 1999 during the pendency of the proceedings before the Tribunal] in order to prepare the prescribed true copies of the documents to be presented the prescribed true copies of the documents to be presented for registration under the West Bengal Registration (Filing of True Copies) Rules, 1979 on receipt of fees prescribed under the aforesaid Rules. They filed the applications for their absorption/regularization as regular employees in the cadre of Lower Division Clerk under the authority concerned and for prohibiting the State authority from appointing any one without appointing the applications and their members first in the said cadre.
(b) According to the applicants, for quite sometime past, they had been regularly giving representations to the respondents for their permanent absorption as copywriters under the respondents. They claimed that due to lack of sufficient work, the copywriters had been suffering from insecurity having no chance of promotion or stability in the working field. In the year 1995, the applicants staged demonstration and even went on strike throughout the State of West Bengal and ultimately, at the intervention and assurance of the Finance Minister of the State of West Bengal that their grievances will be considered, such agitation was withdrawn.
(c) Even, thereafter nothing had been done though the Association filed several representations for consideration of the applicants' demand and grievances.
(d) Recently, various vacancies had cropped up in the office of the Registrars throughout the State of West Bengal under the respondent No. 2, the Inspector General of Registration, and accordingly, the Registrars of the various districts including the Registrar of Assurance, Calcutta had asked the Employment Exchange to sponsor the names of the eligible candidates for the purpose of appointment in the post of the Lower Division Clerk, Previously, in the year 1978, the respondents had absorbed all the then copywriters working in the office of the Registrars throughout the State of West Bengal as Lower Division Clerk under the said office and had employed them under the Registration Department. At that point of time, the copywriters were known as extra-muharrirs. This was done to provide those muharrirs with permanent job and in fact, even the bar of age under the Government service was relaxed on the ground that as the extra-muharrirs were working as copywriters, the bar of age should not be applicable.
(e) Similarly, the members of the applicants were working from the year 1984 and had otherwise the requisite qualifications, expertise and experience to work as Lower Division Clerk in the office of the said Registrar.
(f) Very recently, some vacancies, as already stated above, having been cropped up in the office of the Registrars throughout the West Bengal, the respondents were trying to recruit new entrants as Lower Division Clerk though the members of the writ petitioners had the requisite qualification and they were not even given the liberty to appear at the examination.
(g) The members of the applicants were given licence on the basis of Registration Card of Employment Exchange and they had not renewed the identity card in view of their engagement as copywriters, as a result, they could not be sponsored even by the Employment Exchange. The members of the applicants were given licence of copywriters on the basis of tests and selections as the holders of the Employment Exchange cards and were given assurance that they would be ultimately absorbed in the office of the respective Registrars when such vacancies would appear in future.
(h) The members of the applicants had been carrying on the jobs of the licensed of copywriters at the office of the Registrar from the year 1984 and some of the petitioners had crossed the age limit of 35 years for absorption into the Government service i.e. at the induction level. (i) The job of the members of the applicants are governed by the statutory rules and they were regularly discharging their duties honestly, diligently, sincerely and continuously, without any break and blemish as copywriters which was previously done by the extra-muharrirs and consequently, they were required to be absorbed by the State Government instead of creating a new cadre in place of extra-muharrirs. The Government had decided to fill up such vacancies without engaging the copywriters by planning to grant licence to them under the said statutory rules. However, the licensed copywriters had not been given the status of the Government servants.
(j) Although the copywriters under the statutory rules are required to work under the full control of the Government, they are not recognized as the Government employees and as such, there should be specific direction for the absorption of the members of the petitioners in the regular Government post.
(k) The conduct of the respondents violated Articles 14, 16, 21 and 41 of the Constitution of India.
3. The previously mentioned applications were resisted by the State of West Bengal thereby denying the material allegations contained therein. They disputed the relationship of the employer and the employees between the parties and their specific defence was that the members of the applicants were nothing but the licensees under the West Bengal Registration (Copywriters) Rules, 1982 (at present under the rules of 1999) and they had to perform their duties as copywriters under the terms and conditions contained in the licence as well as the Rules. It was denied that the members of the applicants had been working under the Government authority or that the Government ever assured them for their absorption and regularization in the cadre of Lower Division Clerk under the authority concerned. The State Government, therefore, prayed for dismissal of the applications.
4. The learned Tribunal, as pointed out earlier, by the order impugned herein, dismissed all the four applications heard before the Tribunal thereby holding that the prayers of the applicants were devoid of any substance.
5. Being dissatisfied, the unsuccessful applicants have come up with the present three applications.
6. Mr. Jayanta Kumar Mitra, the learned Senior Advocate has appeared on behalf of the writ petitioners in W.P.S.T No. 861 of 2001 while Mr. Asis Kumar Sanyal, the learned Advocate has advanced submissions on behalf of the writ petitioners in the other two writ applications. Mr. Kar, the learned Advocate has resisted all these three applications on behalf of the State of West Bengal.
7. Mr. Mitra, the learned Senior Advocate appearing on behalf of the writ petitioners in the first matter has, at the very outset, fairly submitted before us that his clients were not entitled to the relief actually claimed in the application before the Tribunal i.e. absorption in the post of Lower Division Clerk; according to Mr. Mitra, his clients are, however, entitled to the equal protection of law as are available to a Government servant as provided in Articles 14, 16 and 308-311 of the Constitution of India while serving the State. He contends that there exists relationship of master and servant between his clients and the Government but the Government with an intention to evade the burden arising out of the relationship, has framed the disputed Rules and a so-called relationship of licensor and licensee has been sought to be established. Mr. Mitra, therefore, prays for moulding the relief claimed in the original application and a declaration that there exists a relationship of master and servant between the parties with a consequential relief for framing a regular scale of pay having regard to the similar duties done by the employees in other departments of the Government.
8. Mr. Mitra by referring to the various provisions of the West Bengal Registration (Copywriters) Rules, 1999 (hereinafter referred to as the rules) draws our attention to the fact that the copywriters are appointed by the Government in terms of the rules and that qualifications of being appointed as a copywriter are fixed by the Rules. Mr. Mitra points out that once a person has been given the purported licence to act as a copywriter, he is not entitled to take any other assignment. Mr. Mitra further contends that his clients are under full control of the Government while they perform their duties and at the same time, the Government has the power of termination of their so-called license at its sole pleasure. Mr. Mitra submits that all these factors, if taken into account, will clearly reveal that the Government is the master of his clients. Mr. Mitra contends that although the remuneration of service is coming from the executors of the deeds, yet, his clients are not entitled to charge their remunerations at their sweet will and the remuneration is fixed by the rules. If any of the copywriters charges in excess of the remuneration fixed by the Rules, that will amount to misconduct on their part and will afford a ground for termination of the purported license. Mr. Mitra, therefore, prays for passing necessary declaration of the existence of the relationship of master and servant between the parties and for the consequential relief by protecting the security of their services and the scale of pay as envisaged in the Constitution of India and Rules framed thereunder. Mr. Mitra, in this connection, cited the following decisions:
1. Indian Petrochemicals Corporation Ltd. and Anr. v. Shramik Sena and Ors. ;
2. Paschimbanga Tahsil-Mohurrir Kalyan Samity and Ors. v. State of West Bengal, reported in 1993(2) CLJ 330;
3. G. B. Pant University of Agriculture & Technology, Pantnagar, Nainital v. State of U.P. and Ors. ;
4. National Thermal Power Corporation Ltd. v. Karri Pothuraju and Ors. ;
5. Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Anr. reported in AIR 2000 Supreme Court 1508;
6. Gujarat Agricultural University v. Rathod Labhu Bechar and Ors. ;
7. Parimal Chandra Raha and Ors. v. Life Insurance Corporation of India and Ors. reported in 1995 Supp.(2) Supreme Court Cases 611;
8. S. L. Kapoor v. Emperor, reported in AIR 1937 Lahore 547.
9. Mr. Sanyal, the learned Advocate appearing on behalf of the writ petitioners in other two writ applications has adopted the submission of Mr. Mitra and in addition to that has vehemently contended that the enactment of the disputed Rules is a fraud on the Constitution and is in conflict with the spirit of the Constitution which supports the concept of protection of the service of the employee of the Government as provided in Articles 308-311 of the Constitution of India. Mr. Sanyal contends that the fact that the remuneration of the employee is not paid direct by the Government is inconsequential for the purpose of tracing out the real relationship between the parties. Mr Sanyal, therefore, prays for a direction upon the Government to shake off the clandestine relationship and to accept the truth. In support of his contention, Mr. Sanyal relies upon the decision of the Supreme Court in case of Hussainbhai v. Alath Factory Tezhilali Union and Ors. .
10. Mr. Kar, the learned Advocate appearing on behalf of the State of West Bengal has resisted the contentions put forward by Mr. Mitra and Mr. Sanyal and has contended that the grant of the licence in favour of the writ-petitioners is recognised by the statutory rules and the writ petitioners with their eyes wide open accepted the terms of the licence granted in their favour. According to Mr. Kar, after acceptance of the stipulations of the licence, the writ petitioners now cannot turn round and contend that there exists relationship of master and servant between the parties thereby giving a go-by to the statutory rules, Mr. Kar contends that the Government by enacting the Rules tried to help the writ petitioners to be self-sufficient but talcing advantage of the generosity of the Government, the writ petitioners now claim to be the Government servant. Mr. Kar in this connection by relying upon the recent decision of the Supreme Court in the case of State of Karnataka v. Uma Debi and Ors. , contended that the writ petitioners are disentitled to claim not only any right of absorption in the service but also any type of declaration that they were serving under the Government. Mr. Kar, therefore, prays for dismissal of these writ applications. In support of his contention, Mr. Kar places strong reliance upon the following decisions:
1. Accounts Officer (A and I) A.P. SRTC and Ors. v. P. Chandra Sekhara Rao and Ors. reported in 2006 (7) Supreme Court Cases 488;
2. Principal, Mehar Chand Polytechnic and Anr. v. Anu Lamba and Ors. ;
3. State of Karnataka and Ors. v. KGSD Canteen Employees Welfare Association and Ors. ;
4. State Bank of India and Ors. v. State Bank of India Canteen Employees' Union (Bengal Circle) and Ors. ;
5. Employers in Relation to the Management of Reserve Bank of India v. Workmen, ;
6. State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. Reported in ;
7. Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors. ;
8. State of U.P v. Neeraj Awasthi and Ors. ;
9. K.S. Mahalingegowda and Ors. v. Secretary to Government, Department of Vocational Education, Karnataka and Ors. reported in 1995 Supp (2) Supreme Court Cases 95;
10. Secretary, State of Karnatake and Ors. v. Uma Devi and Ors. .
11. Therefore, the principal question that arises for determination in these writ applications is whether there exists relationship of master and servant between the parties in the fact of the present case.
12. In order to appreciate the aforesaid question, it will be profitable to refer to the entire Rules of 1999, which, according to the State-respondent, guide the relationship between the parties and those are quoted below:
In exercise of the power conferred by Section 80GG of the Registration Act, 1908 (16 of 1908), and in suppression of all previous notifications on the subject, the Inspector-General of Registration, West Bengal, hereby makes the following rules:
The West Bengal Registration (Copywriters) Rules, 1999
1. Short title, extent and commencement.-(1) These rules may be called the West Bengal Registration (Copywriters) Rules, 1999.
(2) They shall extend to the whole of West Bengal.
(3) Rules 23 and 24 shall come into force at once; and the remaining provisions of these rules shall be deemed to have come into force on the lst day of January, 1983.
2. Definitions.--In these rules, unless the context otherwise requires,--
(1) 'Copywriter' means a person who prepares in the prescribed form true copies of documents to be presented for registration under the West Bengal Registration (Filing to True Copies) Rules, 1979, and holds a licence under these rules:
(2) 'Form' means a Form appended to these rules;
(3) 'licensing authority' means the District Registration Act, 1908 (16 of 1908).
3. Prohibition of unlicensed persons.--No person who is not a licensed Copywriter duly appointed by the licensing authority under these rules shall engage himself in the profession of a copywriter.
4. Bar to hold Deedwriter's licence and Copywriter's licence simultaneously.--No person holding a Deed Writer's licence shall simultaneously hold a Copywriter's licence.
5. Persons eligible for licence.--A Copywriter's licence may be granted to a person,--
(i) who is citizen of India;
(ii) who has completed eighteen years of age, but is below 35 years of age, on the date of notification inviting applications for licence;
(iii) who has passed the School Final or its equivalent examination:
Provided that any person applying for a Copywriter's licence under Rule 6 shall be eligible for such licence if such person has passed Class VI examination for promotion to Class VII and has gained experience as an assistant to a Deedwriter in his profession for not less than three years on the date of application;
(iv) who has passed the Copywriter's Licensing Test conducted by the licencing authority;
(v) who writes neatly, legibly and correctly;
(vi) whose conduct is good; and
(vii) who is not debarred by any of the conditions as laid down in Rule 7.
6. If any Copywriters dies in harness or becomes incapacitated due to old age or otherwise having his/her family in immediate need of assistance, his/her spouse or any one of his/her sons/daughters/near relations may, with the written consent through an affidavit, duly affirmed by the spouse and all the other eligible sons/daughters who are entitled to be considered for grant of Copywriter's licence under these rules, apply through proper channel to the Inspector-General of Registration, West Bengal, for a Copywriter's licence under such special circumstances as may be specified in the application. The Inspector-General of Registration and Commissioner of Stamp Revenue, West Bengal, may, by order, direct a Registrar to issue a licence to the applicant, provided the applicant fulfils the conditions laid down in Rule 5, other than the conditions referred to in Clause (ii) and Clause (iv), of that rule.
7. Disqualifications.--(1) A Copywriter's licence shall not be granted to a person,--
(a) if he has been declared by a competent Court to be of unsound mind; or
(b) if he has been convicted for any criminal offence or any proceeding is pending against him in any Criminal Court; or
(c) if he is deaf-mute; or
(d) if he is a leper or suffers from an incurable contagious disease; or
(e) if his licence has at any time been cancelled and the order cancelling the licence has not been quashed by the competent authority; or
(f) if he is engaged in any gainful occupation or employment.
(2) In the case of refusal to grant a licence, the licensing authority shall record his reasons for refusal and communicate a copy of the order to the person applying for licence.
8. Application for licence.--Application for a Copywriter's licence in Form No. 1 shall be made in the candidate's own hand-writing to the District Registrar through the local Registering Officer with testimonials and attested copies of certificates. If the District Registrar is satisfied that the appellant is fit to be a Copywriter according to the provisions of these rules, he shall direct the applicant to pay the prescribed licence fee. On payment of the licence fee, the candidate's name shall be entered in the register of Copywriters in Form No. 2 against the particular Registration Office and a licence in form No. 4 shall be issued to him through the Registering Officer concerned. The name of the Copywriter with necessary particulars shall, at the time, be communicated to the Registering Officer for entry in the register of Copywriters in Form No. 3 maintained by him. The licence shall take effect from the date of issue and shall remain valid till the 31st December of the year of issue.
9. Renewal of licence.--(1)A licence issued under these rules may be renewed on year to year basis by the District Registrar, subject to good conduct, satisfactory work and physical fitness, duly certified by the Registering Officer under whose superintendence and control the Copywriter works, by an endorsement on the body of the renewal application, on payment of the prescribed renewal fee. The application for renewal shall be filed to the Registering Officer in the month of November each year together with the Treasury Challan or Bank Draft or Money Order Receipt showing the remittance of renewal fee. The Registering Officer shall forward the application to the concerned District Registrar with necessary endorsement as required under this rule with his remarks, if any.
(2) Every application for renewal may be filed on or before the 31st day of December of the year of issue with late fee, provided the applicant succeeds in establishing that the delay was unavoidable.
(3) An application for such renewal may be made beyond the 31st day of December to the Inspector-General of Registration and Commissioner of Stamp Revenue, West Bengal, through proper channel together with the receipt of deposit of application fee of Rs. 50/- (Rupees fifty) only. If the Inspector-General of Registration and Commissioner of Stamp Revenue, West Bengal, is satisfied with the evidence furnished by the applicant and is of opinion that the delay may be condoned, he shall issue a separate order directing the District Registrar to renew the licence, if the applicant deposits late fee of Rs. 15/- (Rupees fifteen) only for the delay for each month or part thereof to be computed from the date following the 30th day of November.
10. Conditions of renewal.--(1) A licence shall not be renewed--
(a) if the licensee fails or has failed to observe any of the conditions of his licence or to comply with the direction of making deposit of renewal fees as provided in Rule 9; or
(b) during the period for which the licence has been suspended; or
(c) if the licensee becomes physically unfit or mentally unbalanced to perform the duties of a Copywriter.
(2) (a) The name of the Copywriter, the renewal of whose licence is refused by the District Registrar under any provision of these rules, shall be struck off from the registers maintained by the District Registrar as well as by the Registering Officer concerned.
(b) A Copywriter, who fails to apply for renewal within the stipulated period, may however apply for a fresh licence.
11. Appeal against an order of refusing the grant or renewal of licence.-An appeal against an order refusing the grant or renewal of licence shall lie to the Inspector General of Registration and Commissioner of Stamp Revenue, West Bengal, within a period of thirty days from the date of communication to the person concerned of the order. The decision of the Inspector-General of Registration and Commissioner of Stamp Revenue, West Bengal, shall be final.
12. Condition attached to Copywriter's licence.--The following conditions shall be deemed to be attached to the Copywriter's licence:
(a) the licence shall abide by the rules relating to the licensing of Copywriters;
(b) (i) the licensee shall not demand or receive any remuneration in excess of the amount specified in Rule 24 for the service rendered by him as a Copywriter;
(ii) if the licensee is found by any Registering Officer to have demanded or received remuneration in excess of the amount specified in Rule 24 or has failed to maintain a register in Form No. 5 as required under clause
(c) or did not issue a receipt in Form No. 6 as required under Clause (d), he shall be debarred by such Registering Officer from writing out copies of documents, under intimation to the District Registrar concerned:
Provided that subject to the provisions of sub-clause (iii), such order of the Registering Officer shall cease to be operative after a period of 45 days from the date of passing of the order unless it is confirmed by the District Registrar;
(iii) a licensee so debarred from writing out copies in terms of sub-clause (ii) by any Registering Officer, may submit his prayer for restoration of his right to write out copies of documents to the District Registrar who granted him the licence, through the Registering Officer who debarred him from writing out copies, giving specific reasons for his non-compliance with the provisions of this clause and Clauses (c) and (d);
(iv) the District Registrar, after giving adequate opportunity to the Copywriter, who is accused of guilt, may either restore the right of Copywriter to write out copies of documents or may take action under Rule 20 as he thinks proper or fit;
(c) the licensee shall maintain a register in Form No. 5 which shall be open to inspection at all times by the Registering Officer and any of the Inspecting Officers. The register, when completed, shall be preserved for a period of two years;
(d) the licensee shall issue a receipt in Form No. 6 to the party showing the money received as provided in these rules. The carbon copy, which shall contain the signature of the party as a taken of his receiving the receipt, shall be preserved for a period of two years;
(e) the licensee shall exhibit the rates of remuneration of a Copywriter in a conspicuous place of his office in the local language;
(f) the licensee shall produce his licence before the Registering Officer or any Inspecting Officer on demand;
(g) the licensee shall prepare true copies of documents to be presented for registration in accordance with the instructions that may be issued from time to time by the licensing authority.
13. Issue of duplicate licence.--(1) When the licence issued to a Copywriter is worn out, it may be replaced on payment of the prescribed fee by a duplicate licence on the prayer of the Copywriter concerned. The original worn out licence shall be cancelled.
(2) When the licence issued to a Copywriter is lost, it may be replaced by a duplicate licence in the prescribed printed form on the prayer of the Copywriter concerned on payment of the prescribed fee.
(3) All fees for the first licence, duplicate of a lost licence, renewal of licence, or replacement of a worn out licence shall be paid to the District Registrar in cash or through the Treasury or by Postal Money Order or by Bank Draft.
14. List of Copywriters.--A list of licensed Copywriters shall be hung up at a conspicuous place in the registration office.
15. Rights and duties of Copywriter.--(1) A licensed Copywriter shall be allowed to sit in the office precincts.
(2) He shall work under control and supervision of the registering officer.
(3) He will enter office either on being summoned by the Registering Officer or in connection with his specified work of preparing true copy.
(4) A Copywriter shall confirm himself to the work of preparing true copies of documents to be presented for registration. He shall not engage himself in the act of canvassing for any Deedwriter.
16. Attestation of copy.--Every true copy prepared by a Copywriter shall be attested by him in the following manner:
True copy prepared by XY (name in full) having licence No. ...of... under Z (name of the Registering Officer).... Signature of the Copywriter.
17. Cancellation of Copywriter's licence.--(1) A licence granted under these rules to a Copywriter may be cancelled by the District Registrar, if--
(a) his licence has been suspended thrice during the course of two consecutive years:
Provided that where the suspension of the licence is of demanding or receiving remuneration in excess of the amount specified in these rules, the licence may be cancelled if it has been suspended twice during the course of two consecutive years;
(b) he becomes disqualified on any of the grounds specified in Rule 7.
(2) The District Registrar shall cancel the licence of a Copywriter who is guilty of the breach of any of the provisions of these rules or of his licence or of any misconduct.
(3) The District Registrar shall cancel the licence of a Copywriter after a regular proceeding. In such a proceeding generally, charge shall be formally framed, copy of the charge shall be made over to the Copywriter concerned, evidence shall be recorded in his presence, adequate opportunity shall be allowed to him to defend himself by adducing witnesses and, finally, there shall be written orders with appropriate reasons.
18. Appeal against cancellation of Copywriter's licence.--A Copy-writer, aggrieved by any order of the District Registrar cancelling his licence, may prefer an appeal to the Inspector-General of Registration and Commissioner of Stamp Revenue, West Bengal within 30 (thirty) days of the date of the order.
19. Suspension of a Copywriter's licence.--A licence granted under these rules to a Copywriter may be suspended if he--
(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 licence or is found guilty of disobedience to any lawful order passed under these rules;
(3) is found guilty of abetment or participation in any illegal transaction with any member of the staff of the Registration Office:
(4) conducts or behaves himself improperly in the Registration Offices.
20. Suspending authority, procedure of suspension and appeal.--
(1) (a) A licence granted under these rules to a Copywriter may be suspended by the District Registrar for a period not exceeding two years at a time.
(b) The Registering Officer under whose direct control and supervision the Copywriter works may recommend suspension of the licence to the concerned District Registrar, stating therein the facts and circumstances of any violation of any of these rules, by the Copywriter. If the District Registrar, on due consideration of the recommendation made by the Registering Officer concerned, finds that a prima facie case has been made out against the licensee, he may dispose of the matter within a period of one month from the date of receipt of the report in accordance with the provisions of Sub-rule (2).
(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.
(3) An appeal against the order of suspension shall lie to the Inspector-General of Registration and Commissioner of Stamp Revenue, West Bengal, within 30 (thirty) days from the date of suspension.
21. Copywriter's licensing test.--(1) An examination 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 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.
22. The number of Copywriters of each office.--The number of Copywriter for a particular Registration Office shall be fixed by the District Registrar according to its needs. Normally, there shall be one Copywriter for three hundred deeds per year.
Note: In calculating the number of average annual registration, the number of documents registered in the proceeding three years shall be taken into account for calculation. Government documents and the documents prepared by Advocates shall be excluded.
23. Fees.--(1) The fees under these rules shall be as follows:
(a) Licence Fee Rs. 10.00
(b) Licence Renewal Fee (Annual) Rs. 5.00
(c) Late Fee (For Renewal of Licence) Rs. 5.00
(d) Duplicate Licence Fee Rs. 3.00
(e) Examination Fee for admission to the Copywriter's Licensing Test Rs. 5.00 (2) All the fees as referred to in Sub-rule (1) shall be paid to the District Registrar by Treasury Challan or by Postal Money Order or by Bank Draft and in no circumstances the fees shall be received in cash.
24. Remuneration.--The rate of remuneration shall be as follows:
(1) for copying 100 words or part thereof Rs. 3.00, subject to the minimum of Rs. 15.00;
(2) for preparing typed copy by licenses Copywriter, the charge shall be the same as in Clause (1);
(3) for comparing 100 words or part thereof, each comparer shall get Rs. 2.00, subject to a minimum of Rs. 10.00.
25. Transfer of Copywriters.--(1) Normally, licence granted to a Copywriter against any particular registration office shall not be transferred to another registration office. If, for the change of jurisdiction of a registration Sub-District, the interest of any licensed Copywriter is adversely affected, the District Registrar may consider to transfer the licence of such Copywriter, at his opinion, to the office of the newly changed registration sub-district or vice versa.
(2) The Inspector-General of Registration and Commissioner of Stamp Revenue, West Bengal, in exceptional circumstances and for reasons to be recorded in writing, transfer the licence of a Copywriter from one district to another.
26. Suspension, cancellation, revocation and/or granting of licence 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 licence, and if so appears to him that licence 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 licence, he may pass such order including order of suspension, cancellation, revocation and/or granting of licence, as he may deem fit and proper, after giving the reasons therefor in writing:
Provided that no such order shall be passed 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.
13. After going through the provisions contained in the rules, we find that there are specific qualifications fixed by the rules for being eligible to be a copywriter and similarly, there are various disqualifications mentioned therein for working as such copywriters. There is detailed mode of requirement and at the same time, there is provision for holding examination for the purpose of selection. In case of misconduct on the part of a copywriter, the licensing authority is vested with the power to terminate the purported licence. Although there is no provision for getting salary for the job done by the licensee direct from the purported licensing authority, the licensees are authorised to accept remuneration for doing their job from the parties to the deed. Such remuneration, however, cannot be realised according to the individual whim or demand of the licensees but if fixed by the rules and in case of violation of the rules, the licence is liable to be cancelled. The licensees are given the accommodation to sit in the office-precincts just like an employee. The rules further provide that if any copywriter dies in harness or becomes incapacitated due to old age or otherwise having his/her family in immediate need of assistance, his or her spouse/sons/daughters/near relations may, with the written consent through an affidavit, duly affirmed by the spouse and all other eligible persons mentioned above for being considered for grant of the copywriters' licence, may apply through the proper channel to the Inspector General of Registration, West Bengal under such special circumstances as may be specified in the application. The Inspector General of the Registration and the Commissioner of Stamp Revenue of the Government of West Bengal, may, in appropriate cases, by order direct the Registrar to issue a licence to the applicant provided the applicant fulfils the conditions laid down in Rule 5 other than the conditions referred to in Clauses (ii) of that rule.
14. The aforesaid Rule 6 is a provision containing benefit of compassionate appointment similar to the one given to the heirs of the Government servant in case of premature death. It is true that in the rules there is no age fixed for superannuation but that cannot be said to be material when power to terminate the licence is given to the licensing authority in case it finds that the licensee is incapable of doing the job for any reason; moreover, the licence is required to be renewed annualy, and therefore, the licensing authority is always at liberty to verify at the end of each year, whether it would extend the licence in a given case. However, it is needless to mention that a so-called licensee is obliged to act under the full supervision of the licensing authority and the job, he performs, is for the sole benefit of the Government for facilitating the process of registration under the Registration Act. Even a licensee, under the rules, is not permitted to take any other job simultaneously attached to an office is also fixed depending upon the total number of registration of the deeds during a year in that office. It is alreadly mentioned that there is specific provision of annual renewal of the licence and in case of refusal to renew, there is exhaustive provision of appeal before higher authority at the instance of an aggrieved person and the conditions of renewal are mentioned in the rules. In the rules, the rights and duties of the copywriters are mentioned and those copywriters are given power of attestation. Even the licensing authority is vested with power to suspend the licence under the circumstances mentioned in the Rules. At the same time, under special circumstances mentioned in the rules, the copywriters may be transferred to a different Registration office.
15. At this stage, it will be profitable to refer to a well-known decision of a Bench of the Supreme Court consisting of five Judges in the case of State of Assam v. Kanak Chandra Dutta, , where the Supreme Court precisely laid down the principles to be followed by a Court of Law in deciding whether a person is holding a civil post under the Government within the meaning of the Constitution. The following pertinent observations are quoted below:
The question is whether a Mauzadar is a person holding a civil post under the State within Article 311 of the Constitution. There is no formal definition of 'post' and 'civil post'. The sense in which they are used in the Services Chapter of Part XVI of the Constitution is indicated by their context and setting. A civil post is distinguished in Article 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State, see marginal note to Article 311. In Article 311, a member of a civil service of the Union or all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post in a service or employment. A person holding a post under a State is a person serving or employed under the State, see the marginal notes to Articles 309, 310 and 311. The heading and the sub-heading of Part XVI and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.
In the context of Articles 309, 310 and 311, a post denotes an office. A person who holds 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 Article 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 holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.
Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments.
16. If we apply the tests laid down by the Apex Court mentioned above, it will be clear that all the conditions for establishing a relationship of master and servant are present in this case. We are not at all impressed by the submission of Mr. Kar, the learned Counsel appearing on behalf of the State-respondent, that in order to establish the relationship of master and servant between the parties, it is necessary that the remuneration must come to the employee direct from the end of the employer. The fact that the so-called licensees, in our case, are permitted to take remuneration from the parties to the deed only at a rate fixed by the rules itself suggests that there exists relationship of master and servant between the parties notwithstanding the fact that the salary or remuneration is not paid direct by the master particularly when the master has the overall control over the duties of the servant who has been described in this case as licensee for the purpose of avoiding the liabilities undertaken by the Government as is borne in case of the other employees of the Government. In the case of the State of Assam (supra), no remuneration was paid direct by the employer, nevertheless, the Apex Court found existence of the relationship of master and servant between the parties. Moreover, the job performed by the writ-petitioners cannot be said to be casual one but is definitely a perennial one consistent with the provisions contained in the Registration Act.
17. Even in a subsequent case, viz. State of U.P. v. Chandra Prakash Pandey , the Apex Court had the occasion to consider whether the "Kurk Amin" appointed on commission basis for the recovery of the dues of the Co-operative Societies were Government servants. In the said case, the Apex Court specifically held that although the "Kurk Amin" appointed on commission basis, were paid remuneration out of revenue recovered by them, were, nevertheless, Government servants holding civil post.
18. All those factors mentioned above and recognised by the rules, unmistakably point out that the writ petitioners are appointed by the Government in accordance with the statutory rules for doing public services in connection with the affairs of the State, their activities are fully controlled and under the direct supervision of the Government and at the same time, the Government retains the power to terminate the alleged licence. The mere fact that the remuneration of the writ petitioner does not come direct from the Government revenue cannot be a decisive factor for concluding that there exists no relationship of master and servant between the parties when their job is not for temporary purpose.
19. We are unable to accept the submission of Mr. Kar that by the Rules, the Government has recognised a new "Profession of Copywriters" and that the writ petitioners are holding licence of following that profession. The word "Profession" means an occupation carried on by a person by virtue of his personal and specialised qualification, training or skill. The Supreme Court in the case of Indian Medical Association v. V.P. Santhan, , quoted with approval the observations of Rupert M. Jackson and John L. Powell, that the occupations which are regarded as professions have four characteristics, viz.--
(i) the nature of the work which is skilled and specialized and a substantial part is mental rather than manual;
(ii) commitment to moral principles which go beyond the general duty of honesty and a wider duty to community which may transcend the duty to a particular client or patient;
(iii) professional association which regulates admission and seeks to uphold the standards of the profession through professional codes on matters of conduct the ethics; and
(iv) high status in the community.
20. Applying the aforesaid tests to the facts of the present case, we are unable to hold that the rules have merely recognised a new profession of Copywriters and that the Government is by no means an employer.
21. We now propose to deal with the decisions cited by Mr. Kar appearing on behalf of the State-respondent.
22. In the case of Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. (supra), all that was laid down by the Supreme Court was that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. The Supreme Court further held that the temporary employees appointed in violation of the Constitutional scheme do not have any enforceable legal right to be permanently absorbed and mandamus cannot be issued in favour of those employees directing the Government to make them permanent. In the said decision, the Supreme Court in paragraph 10 of the judgment (of All India Reporter) specifically recorded that the Constitution of India does not envisage any employment outside the Constitutional Scheme and without following the requirements set down therein. But in the next paragraph, the Court further reminded that in spite of such Scheme, there may be occasions when the Sovereign State or its instrumentalities will have to employ persons in posts which are temporary or on daily wages as additional or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently.
23. In our view, in the case before us, the applicants are not serving the nation temporarily and the duties they are required to do are all permanent in nature so long the law of registration will be in force and the nature of job entrusted to them is not allotted to any other regular employees of the Government so as to brand them as "additional" or "temporary" as if they are "not needed permanently". Therefore, in our view, as observed by the Supreme Court in paragraph 10 of the judgment, once it is established that there exists relationship of master and servant between the parties, the employment of the writ petitioner should be guided by the provisions of the Constitution as the present case does not come within the exceptions pointed out by the Supreme Court in paragraph 11 of the judgment. Thus, the decision in the case of Uma Devi (supra) cannot help Mr. Kar's client in anyway. Moreover, the decision of the Apex Court in the case of Uma Devi is in no way conflict with that of the former constitutional Bench of that Court in the case of State of Assam (supra), and even if one tries to find out any conflict, in that event, any portion of it which is inconsistent with the earlier one, cannot be treated as a precedent as in the decision of Uma Devi, the case of State of Assam was not taken note of and above all, both being the decision of the Constitutional Bench of five Judges, in case of any inconsistency between the two, the former should prevail.
24. In the case of Accounts Officer (A and I) A.P. SRTC and Ors. v. P. Chandra Sekhara Rao and Ors. (supra), a Bench of the Supreme Court consisting of two Judges by following the decision of the Supreme Court in the case of Uma Devi (supra), held that the contractual appointment made by the State Corporation in violation of the statutory rules could not be regularised. In the said case, the question was whether the respondents fulfilled the requirements of regularisation of their services as contained in the guidelines issued by the A.P. State Road Transport Corporation. The contention of the appellant was that the respondents did not fulfil the said condition. The High Court, however, proceeded on the basis that the circular applied even to those who were engaged in contract labour on consolidated pay. In such a situation, the Supreme Court by following the decision in the case of Uma Devi (supra) held that no direction for regularisation could have been made on the basis of the guidelines even issued by the A.P. State Road Transport Corporation as the same time could not have been made in terms of Article 162 of the Constitution of India. In our opinion, the principles laid down in the said case cannot have any application to the case before us where the Government itself has appointed the writ petitioners by taking examination strictly in accordance with the statutory rules which is the subject matter of challenge but tried to create an invisible screen in between the employer and the employees by using the word 'licence' in place of 'service'. Therefore, the said decision cannot help Mr. Kar's client in anyway.
25. In the case of Principal, Mehar Chand Polytechnic and Anr. v. Anul Lamba and Ors. (supra). some project-employees who were not appointed in terms in any statutory rules or upon compliance with the requirements envisaged under Articles 14 and 16 of the Constitution, prayed for regularisation and the High Court passed direction to create post and regularise the services of the respondents. In such case, the Supreme Court held that there being no sanctioned post and the appointment of the respondents being not in terms of any statutory rules, there was no scope of passing such direction. In the case before us, the Government itself has created statutory rules providing mode of employment and also deciding to take services of the writ petitioners for the Government and the job if of perpetual nature. Therefore, the principle laid down in that case cannot have any application to our case.
26. In the case of State of Karnataka and Ors. v. KGSD Canteen Employees' Welfare Association and Ors. (supra), the Supreme Court held that the question whether the employees of State Government Secretariat Department Canteen are employees of State Government was a serious question of fact and it was not proper for the High Court to embark thereupon in exercise of power under Article 226 of the Constitution of India. It was further held that if a committee ran a canteen for the employees of the State Government Secretariat Department that fact could not confer any right upon the employees of such canteen as the State had no statutory compulsion to run and maintain any canteen for its employees and the State had also no intention to run and maintain canteen as its department. In the case before us, the State itself has enacted the statuary rules in exercise of power conferred upon it under the Registration Act for due compliance of the provisions of the said Act and has decided to take the services of the writ-petitioners for the benefit of the Government but without recognising them in terms of the provisions of the Constitution. Therefore, the decision in the case of State of Karnataka (supra), cannot have any application to the fact of the present case.
27. Similarly, in the case of State Bank of India and Ors. v. State Bank of India Canteen Employees' Union (Bengal Circle) and Ors. (supra), the canteens were run by Local Implementation Committees at branches of the State Bank of India as per the welfare scheme of the bank. It was held that the employees of such canteens were not the employees of the bank as there was no statutory or contractual obligation or obligation under the Sastry Award on the bank to run such canteens. We fail to appreciate how the principle laid down in the said case can have any application to a case where persons are taken in public service in connection with the affairs of the State by giving appointment with the aid of statutory rules and the purpose of employment if permanent one.
28. In the case of Employers in relation to the Management of Reserve Bank of India v. Workmen (supra), the question was whether the workers of the canteens of the Reserve Bank of India were workmen of the bank. In the said case, canteens were run by the Implementation Committee, Co-operative Society or the contractors as a welfare measure and not under any statutory or other legal obligation on the bank to run the canteens and in such a situation it was held that no right was vested in the bank to supervise or control the work of the canteen workers to take disciplinary action against them and, therefore, those employees could not be said to be employees of the bank. We have already pointed out that in our case, the Government is vested with the authority not only to supervise or control of the job but also to take disciplinary proceedings against the writ petitioners by virtues of the power vested in it by statutory rules. Therefore, the said decision as of no avail to Mr. Kar's client.
29. In the case of State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. (supra), it was held that if somebody claims disparity in the employment, the burden to establish the right to equal pay is on the person claiming the same. We are of the view that the principle laid down in the said case cannot have any application to the fact of our present case where the question is whether there exists relationship of master and servant between the writ petitioners and the respondent and if we answer the question in affirmative, the next question will be what will be their scale of pay and if they, at that stage, claim any particular scale, the onus will be upon them to show that having regard to the nature of job performed by them, they are entitled to the scale they claim.
30. In the case of Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors. (supra), the Union of India evolved several schemes to provide income for those who were below the poverty line and particularly, during the periods when they were without any source of livelihood and without any income whatsoever. The schemes were further meant for the rural poor people, for the object of the schemes was to start tackling the problem of poverty from that end. Under these programmes, works in rural areas resulting in durable community assets, social forestry, village roads etc. were taken up 'and the entire work was done by providing daily-wage-employment to the rural workers including the writ petitioners. The labour was employed at those sites depending upon their availability in rural areas and without reference to any Employment Exchange in either the Union Territory of Delhi or anywhere else. In such a fact, it was held that those employed under the scheme could not ask for more than what the scheme intended to give them. According to the Supreme Court to get an employment under such scheme and to claim based on the said employment, a right to regularisation is to frustrate the scheme itself and no Court can be a party to such exercise. According to the Supreme Court, it was wrong to approach the problems of those employed under such guaranteeing equal pay for equal work. According to the Supreme Court, such concepts in the context of the scheme are both unwarranted and misplaced and will do more harm than good by depriving them of the little income that they might get to keep them from starvation and would also force the State to wind up the existing schemes and forbid them from introducing the new ones for want of resources. In the case before us, even prior to the enactment of the present Rules, regular Government servants used to take the burden of copying registered documents which are now entrusted in the hands of the writ petitioners. We have already said that this is not a temporary job and that the requirement of job is not for a specific period. So long the Registration Act would be there, these jobs are required to be performed and are essentially required for the stability in the society. In such circumstances, there is no reason for caking deviation from the constitutional scheme of our country, which is against the exploitation of the citizens and envisages social security. We, therefore, find that the said decision cannot help Mr. Kar's client in anyway.
In the case of State of U.P. v. Neeraj Awasthi and Ors. (supra), it was held that the High Court had no power to direct the Agricultural Product Market Board in exercise of writ jurisdiction to frame scheme or policy for regularisation services of ad hoc or daily wage employees not having been appointed in terms of extant statutory provision, rules and regulations but to meet exigencies. We have already pointed out that this is not a case of meeting the exigencies of situation for a temporary period but is an example avoiding responsibility of the Government servants in violation of Articles 14, 16, 308-311 of the Constitution of India.
31. In the case of K.S. Mahalingegowda and Ors. v. Secretary to Government, Department of Vocational Education, Karnataka and Ors. (supra), the question was whether the part-time vocational teachers under the Government scheme for vocationalisation of the secondary education could claim parity with the full time non-vocational teachers in the educational institutions. According to the Supreme Court, the scheme being the outcome of policy-decision of the Government, the Court should not modify it by directing the Government to regularise and absorb part-time vocational teachers as full-time vocationals. The Supreme Court, however, held that the scheme being for operation for long, required revision and the periodic regularisation of teachers on the basis of length of continuous service was stressed upon. In the case before us, we are not concerned with any part-time employees but they are all required in compliance with statutory rules on permanent basis and in such a situation, the provisions contained in Articles 308-311 of the Constitution read with Articles 14 and 16 should be strictly enforced.
32. We, thus, find that the decisions cited by Mr. Kar are of no assistance to his client.
33. We, therefore, find that there exists relationship of master and servant between the State Government and the copywriters appointed under the rules and those provisions of the rules which endeavour to give a false impression of the relationship of licensee and licensor between the parties, stipulate yearly renewal of the purported licence including suspension and termination thereof and also realisation of licence-fees, provide mode of payment of remuneration by realising the same direct from the parties to the deeds at the rates fixed by the Rules instead of fixing regular scale of pay, are all violative of the principles and tenets of the Constitution as mentioned in Articles 14, 16, 21, 308-311 thereof and as such, those provisions of the rules are null and void. Once we hold that there exists such relationship, the next question is what relief the writ petitioners are entitled to.
34. In view of our finding mentioned above, the writ petitioners are certainly entitled to the relief of absorption in the service of the State Government. We, are however, unable to give them the relief claimed by them that they should be absorbed as Lower Division Clerk. In our view, it is for the State Government to decide the nomenclature of their post and their salary should be fixed after taking into consideration the nature of job and the duties entrusted to them after comparing those with the similarly placed Government servants employed either in the same or in other departments bearing in mind the well-settled principle of equal pay for equal work.
35. The next question is what should be the date from which they should be entitled to the benefit at par with the similarly placed Government employees. In our opinion, they should be entitled to those benefits from the date of filing of the first of the applications filed by the Association i.e. W.P. No. 1643 of 1996 before this Court which was renumbered as T.A. No. 391 of 1998 before the Tribunal. The arrears should be paid from the said date after adjusting the remuneration already received by the individual copywriters. The years of continuous service put in by them, even prior to the aforesaid date as copywriters, should, however, be taken into account for the purpose of calculation of the retiral benefits. We further make it clear that the above direction to treat the writ petitioners as regular Government employee will be subject to two further conditions; first, that they were above the minimum and below the maximum age limit for the entry in the Government service on the date of filing of the W.P. No. 1643 of 1996 and for the purpose of retiral benefit, the service rendered prior to the attainment of minimum qualifying age under the Govermnent service, if any, should be ignored. This benefit, it is needless to mention, will be available also to those members of the Association and those petitioners who got the alleged licence even during the pendency of these proceedings and those persons would get the benefit from the date of obtaining the licence. Secondly, the service rendered beyond the age-limit prescribed for superannuation from the Government service, if any, should not be considered for giving retiral benefit.
36. The respondents are directed to decide the nomenclature of the post and the scale of pay of the petitioners in accordance with this order within three months from today. The arrears should be paid within six months from today. In default, the amount will carry interest at the rate of eight per cent, per annum from the date it became payable till the date of actual payment.
37. The writ applications, thus, are, allowed to the extent indicated above. The orders passed by the Tribunal are set aside. In the facts and circumstances, there will be, however, no order as to costs.
Kishore Kumar Prasad, J.
38. I agree.