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PETITIONER: STATE OF ASSAM & ORS.

       Vs.

RESPONDENT: SHRI KANAK CHANDRA DUTTA

DATE OF JUDGMENT: 03/10/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. DAYAL, RAGHUBAR RAO, K. SUBBA (CJ) HIDAYATULLAH, M. SIKRI, S.M.

CITATION:  1967 AIR  884            1967 SCR  (1) 679  CITATOR INFO :  RF         1977 SC1677  (3)  D          1979 SC 979  (12)  R          1981 SC  53  (14)  C          1984 SC 161  (27)

ACT: Constitution of India, 1950, Art. 311(2)-Civil post-Mauzadar in  Assam  Valley,  if  holder of  civil  post  entitled  to protection of Article.

HEADNOTE: The respondent, who was a Mauzadar in the Assam Valley,  was dismissed from office without complying with the  provisions of  Art. 311(2) of the Constitution.  His writ  petition  to the  High  Court was allowed on the ground that  he  held  a civil post under the State of Assam and was entitled to  the protection of the Article. In appeal by the State, HELD : In the light of the system of recruitment, employment and  functions, a Mauzadar is a servant and the holder of  a civil post, under the State,, entitled to the protection  of the Article. A civil post means a post not connected with the defence and outside  the regular civil services.  It is an office  or  a position  to which duties in connection with the affairs  of the  State  are attached.  It is  under  the  administrative control  of  the  State but need not  necessarily  carry  "a definite  rate  of  pay"  and  may  involve  only  part-time employment.   A person holding the post is a person  serving or   employed  under  the  State.   The  existence  of   the relationship  of master and servant between the State and  a person holding a post under it, 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.  Such a relationship may be established by -the presence of all or some of these indicia in  conjunction with other circumstances, and its  existence is a question of fact in each case. [682 G, H; 683 A. B, H]

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Under the Mauzadari system of collecting revenue, prevailing in  the Assam Valley, the revenue charge of a Mauza and  the responsibility  for  the whole revenue of it, in  the  first instance,  rest with the Mauzadar.  Originally he  may  have been  a  revenue farmer and an  independent  contractor  but under  the  existing  system, he  is  a  subordinate  public servant  working  under the supervision and control  of  the Deputy Commissioner.  He is a Revenue Officer and ex-officio Assistant Settlement Officer exercising delegated powers  of Government,  and  the State has the power and the  right  to select and appoint him and the power to suspend and  dismiss him.   Though  he  may  not be  a  whole-time  employee  and receives  by  way  of  remuneration  a  commission  on   his collections and sometimes a salary 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. [683 E-G] Observations  in  Venkata Swamy v.  Superintendent  of  Post Offices  A.I.R. 1957 Orissa 112, that a  part-time  employee cannot be the holder of a civil post disapproved.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION  : Civil Appeal  No.  254  of 1964 . 6SupC.I./66-15 680 Appeal  by special leave from the judgment and  order  dated August  13,  1963 of the Assam and Nagaland  High  Court  in Civil Rule No. 387 of 1962. S.   V.  Gupte,  Solicitor-General and Naunit Lal,  for  the appellant. K.   R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Bachawat, J. This appeal raises the question whether a  Mau- zadar in the Assam Valley holds a civil post under the State of  Assam, and is entitled to the protection of Art.  311(2) of  the Constitution.  On March 4, 1939,  respondent,  Kanak Chandra  Dutta, was appointed Mauzadar of Mancotta Monza  in the  Dibrugarh  Sub-division  of  Lakhimpur  District.   His father  also before his death was the Mauzadar  of  Mancotta Monza  for  about  52 years from 1885 to  1938.   Under  the orders of the Deputy Commissioner, Lakhimpur, the respondent was suspended on August 22, 1949 and was dismissed from  the office  of the Mauzadar on July 4, 1962.  It is common  case that  this dismissal from office was made without  complying with the provisions of Art. 311(2) of the Constitution.   On a  writ  petition filed by the respondent,  the  Assam  High Court  quashed the order of dismissal.  The High Court  held that  the  respondent held a civil post under the  State  of Assam, and was entitled to the protection of Art. 311(2)  of the  Constitution.   The  correctness  of  this  finding  is challenged  by the State of Assam in this appeal by  special leave. Under the Mauzadari system of collecting revenue  prevailing in  the Assam Valley, the revenue charge of a Monza and  the responsibility  for  the whole revenue of it  in  the  first instance rest with the Mauzadar.  The Mauzadar is spoken  of as  a "revenue contractor", see Baden-Powell’s Land  Systems of  British India, Vol. 3, p. 459.  A brief  description  of the  Mauzadari  system  is given at pp. 56  and  57  of  the Introduction to the Assam Land Revenue Manual, 6th Edn.  The executive  instructions appearing in paragraphs 115  to  159 and 167(a) at pp. 203 to 215 and 217 to 222 give the  method

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of  selection, appointment and dismissal of a Mauzadar,  the duties and emoluments of the office and the registers to  be kept  and maintained by him.  The Mauzadar is  generally  an influential and well-to-do resident of his Monza. lie may be appointed  and dismissed by the Deputy Commissioner  subject to  the Commissioner’s approval and suspended by the  Deputy Commissioner  on his own authority.  A Mauzadar’s  successor is  ordinarily  selected  from amongst the  members  of  his family.   If a suitable heir of the deceased Mauzadar  is  a minor,  the post may be kept open for him for a  period  not exceeding  three  years,  an agent being  appointed  in  the meantime  to  carry on the duties of  the  Mauzadar.   Every Mauzadar before his appointment has to execute a written 681 agreement  (kabuliyat) in the prescribed form.  He  is  also required  to  furnish security to the  satisfaction  of  the Deputy Commissioner. A  Mauzadar  is a public servant whose primary  duty  is  to collect  land  revenue and other Government  dues  with  the collection of which he is entrusted.  He is responsible  for the collection of poll-tax, house-tax, tauzi-bahir  revenue, grazing fees and forest dues.  He undertakes to pay into the treasury the full amount of all instalments of land  revenue and local rates included in the Jamabandi and of  house-tax, poll-tax  and grazing fees within one month of the  date  on which they fall due for payment.  In regard to land revenue, his  duties  are  confined  to  collection  and  he  is  not concerned  with its assessment, the settlement of  land  and the checking of maps or assessment papers. He  is  charged with the special duties of  supervising  the performance of duties by Gaonburas, to receive  applications for  waste lands which he is authorised to entertain and  to submit  them with a report to the proper revenue  authority, to submit reports of cases sent to him by special order  for local  enquiry,  to assist the district authorities  in  the assessment of income-tax, to report, when so directed,  upon the  sufficiency of the security offered by the  lessees  of Government or Local Board ferries, fisheries etc., to submit weekly  reports upon the condition of crops, the  prevalence of epidemics amongst men or cattle, the loss of life  caused by  wild  animals  and the appearance of  insect  pests,  to compile and submit to the Civil Surgeon a monthly return  of vital statistics, to check the Gaonburas’ reports of  births and  deaths by local inspection, to effect  field  mutations and  field  partitions  in  uncontested  cases,  to   assist Government  in any work connected with the  village  organi- sation system, to warn persons not to allow their cattle  to stray  on  or  damage the roads,  to  report  offenders  and encroachments on roadside lands and to submit weekly returns of collections.  Generally, a Mauzadar is required to act as the  Deputy Commissioner’s assistant in  all  administrative matters within his Mouza so far as he may be called upon  to do so. In order to deal properly with mutation and other work,  the Mauzadar  has  free access to the settlement papers  in  the hands  of  mandals,  and it is the duty of  the  mandals  to attend  upon him, when required, during such  investigations as  are conducted by him.  The Mauzadar is required to  keep and  maintain  a number of official  registers,  and  minute details  of  keeping  the accounts  and  the  registers  are prescribed.  The criminal prosecution of a Mauzadar requires the  Commissioner’s  sanction.  In  exceptional  cases,  the Deputy Commissioner may impose upon him an executive fine of an amount not exceeding Rs. 200/-. 682

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The Mauzadar is permitted to address his correspondence with Government  offices "service bearing", and is given a  small annual  allowance  for the provision of stationery.   I*  is responsible for the payment of process fee on all  processes issued  at  his instance.  His remuneration as  Mauzadar  is generally  by a commission on the revenue, local  rates  and grazing  dues  collected by him, but he may also be  paid  a fixed salary. The  Mauzadar may be invested with the power  of  attachment and  sale  of  movables under s. 69 of the  Assam  Land  and Revenue   Regulation  1886  (Regulation  No.  I  of   1886). Mauzadars are appointed Revenue Officers under s. 124 of the Regulation.   All Mauzadars in the Assam Valley and  in  the case  of Mauzadars who are minors, their  Sarbarahkars  have been appointed ex-officio Assistant Settlement Officers  and invested  with  the powers to effect registration  under  s. 53(A) in uncontested cases and to dispose of under Chap.  VI of the Regulation all applications for partition of revenue- paying  estates  in which no objection  is  preferred.   See footnotes  to ss. 124, 133 and 137 of the Regulation at  pp. 41, 44 and 45 of the Manual.  A  Mauzadar may own a tea garden and other landed  property and  engage  in  trade  or  politics,  but  if  any  of  his extraneous   occupations  interferes  seriously.  with   his primary  duties  as a Mauzadar, the Deputy  Commissioner  is required  to consider whether he should be retained  in  his office. The  question  is whether a Mauzadar is a person  holding  a civil   post   under  the  State  within  Art.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  XIV  of  the  Constitution   is indicated  by  their context and setting.  A civil  post  is distinguished  in  Art.  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  notet  of Art.311. In Art.311,a member of a civil service of the Union or  an  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 is 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 Arts. 309, 310 and  311. The  heading  and the subheading of Part XIV and  Chapter  I emphasise  the element of service.  There is a  relationship of master and servant between the State and a person 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 683 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 Arts. 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  Art. 310.   A post under the State is an office or a position  to which duties in connection with the affairs of the State are attached,  an  office  or a position to which  a  person  is

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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. He  is a responsible officer exercising delegated powers  of Government.   Mauzadars  in the Assam Valley  are  appointed Revenue   Officers  and  ex-officio   Assistant   Settlement Officers.   Originally, a Mauzadar may have been  a  revenue farmer and an independent contractor.  But having regard  to the  existing  system  of his  recruitment,  employment  and functions,  he  is a servant and a holder of  a  civil  post under the State. Counsel  for  the State stressed the fact  that  normally  a Mauzadar  does  not draw a salary.  But a post  outside  the regularly constituted services need not necessarily carry "a definite  rate of pay." The post of a Mauzadar carries  with it  a remuneration by way of a commission on collections  of Government dues.  Counsel stressed the fact that a  Mauzadar is not a whole-time employee.  But a post 684 outside  the regularly constituted services may be  a  part- time  employment.  The conditions of service of  a  Mauzadar enable him to engage in other activities. In  Venkata Swamy v. Superintendent of Post Offices(l),  the Orissa  High Court held, on a consideration of the  relevant conditions   of   employment,  that   a   temporary   extra- departmental  branch post-master was not a person holding  a civil  post, but the observation in that case that  a  part- time  employee cannot be the holder of a civil post  outside the regularly constituted services is too wide and cannot be supported.   In  Sher Singh v. State  of  Rajasthan(2),  the Rajasthan  High Court held that a chaudhari appointed  under the  Land  Revenue  Act of Bikaner is not  entitled  to  the protection  of  Art. 311.  The report of the case  does  not disclose the functions of the chaudhari and the  regulations governing  his  employment.  In  Bindu  Nath  v.  State   of Assan(3),  the  Court  found that the  applicant  was  never appointed to the post of a Mauzadar, and no question of  the protection of Art. 311 could arise in the circumstances. The appeal is dismissed with costs. V.P.S. Appeal dismissed. (1)  A.I.R. 1957 Orissa, 112. (2)  I.L.R. [1956] 6 Rai. 335, 339-340.

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(3)  A.I.R. 1959 Assam.  II S. 685