REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  3414     OF 2009 (Arising out of SLP (Civil) No. 9921 of 2007)

State of West Bengal & Anr.       …. Appellants  

Versus

West Bengal Regn. Copy Writers Assn. & Anr.       …. Respondents  

With

CIVIL APPEAL NO.  3415    OF 2009 (Arising out of SLP (Civil) No. 10191 of 2007)

State of West Bengal & Anr.       …. Appellants  

Versus

Chiranjib Kumar Das & Ors.       …. Respondents

With

CIVIL APPEAL NO.  3416   OF 2009 (Arising out of SLP (Civil) No. 12048 of 2007)

State of West Bengal & Anr.       …. Appellants

Versus

Sadhan Kumar Dutta & Ors.                 …. Respondents   

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J U D G M E N T

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  

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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  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  

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  

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as regular  employees  in  the cadre of  Lower  Division  Clerk  (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 also 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 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  

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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 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 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 Extra-muharrirs 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:-

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(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  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 license 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 issues raised.  It was pointed  

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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 re-designated as LDC following the recommendation of  

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the First 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 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. 4636 of  

1999 and O.A. No. 2377 of 1999 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.

10. The  only  question,  which  was  canvassed  and  decided  by  the  

Tribunal  was as to whether  the Copywriters have any accrued right  on  

account of their rendering services as Copywriters for being appointed as  

LDCs and/or whether the petitioners (respondents herein) are eligible for  

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their absorption as LDCs.  The Tribunal, inter alia, held that though it was  

true that the Copywriters were the creatures of the Copywriters’ Rules of  

1982 as amended by the Copywriters’ Rules of 1999, they were merely the  

license holders, which licenses were given by the licensing authority after  

observing all formalities provided in the said Rules.  Their task was only to  

prepare, in the prescribed form, the true copies of the documents, which  

were to be presented for registration under the Copywriters’ Rules of 1979.  

The Tribunal  also held that  though it  was  true that  the activities of  the  

Copywriters  were  supervised  by  the  authorities  concerned  and  in  that  

sense,  the  respondent  authority  had  the  control  over  the  Copywriters,  

which included the cancellation/suspension of the Copywriters’  licenses,  

renewal etc. and further though the Copywriters were allowed to sit in the  

office premises and work under the control and supervision of the office of  

the Registering Officers, yet it could not be said that there was any right  

created in their favour by their continuously working since 1982 for being  

absorbed as the LDCs.  The Tribunal also came to the conclusion that they  

could not claim parity with Extra-muharrirs nor could it be said that there  

was any gross indiscrimination on the part of the authorities in the said  

Copywriters’ not being absorbed as the LDCs.   

11. The Tribunal further found that the absorption or as the case may  

be, regularization, could be directed only under the Rules and that there  

were  no  such  Rules  nor  any  policy  for  regularizing  or  absorbing  the  

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Copywriters as the LDCs.  The Tribunal made a distinction that in case of  

Extra-muharrirs,  they  were  considered  to  be  the  seasonal  employees  

under the Tehsildar or as the case may be, part time Government servants  

under  Rules  15  of  the  West  Bengal  Land  Manual,  1977  and  their  

salaries/remuneration  were  payable  from  the  public  exchequer  and  as  

such,  they were  treated to be Government  employees  and regularized.  

The Tribunal  also found that  the said  Extra-muharrirs  were  engaged in  

connection and for the purpose of assisting the collection of land revenue,  

which was held to be perennial type of a work, although their services were  

on the seasonal basis.  The Tribunal also further found that admittedly, the  

Copywriters were not the casual workers, they were mere license holders  

for the purposes of their livelihood and merely because some facilities like  

accommodation etc. were provided to them and because they were under  

the control of the authorities under the terms of license, it did not mean that  

the said licensees were directly under the State Government or there was  

relationship of master and servant between the State Government and the  

Copywriters.  The Tribunal further found that insofar as the posts of LDC  

were  concerned,  there  were  specific  Recruitment  Rules  providing  

examination/interview and in the absence of any provision, the petitioners  

(respondents herein) could not claim to be absorbed as LDCs, giving the  

complete go-by to the Recruitment Rules framed under Article 309 of the  

Constitution of India.  The Tribunal specifically found that the license was  

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hereditary in nature, whereas, employment under such was not so and it  

distinguished the status of the petitioner (respondents herein).  Giving the  

findings, the Tribunal dismissed all the original applications.

12. The  petitioners  (respondents  herein)  then  filed  the  Writ  Petitions  

before the Calcutta High Court, challenging the common judgment by way  

of 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.  All these Writ Petitions were heard and were disposed of by  

the common judgment passed by the Division Bench of the Calcutta High  

Court.  The High Court in its impugned judgment found that there existed  

relationship of master and servant between the State Government and the  

Copywriters appointed under the Rules and in reality, the relationship was  

not  that  of  licensee  or  licensor.   The  High  Court  noted  that  the  Writ  

Petitioners had conceded that they were not entitled to the relief claimed in  

the application before the Tribunal, namely, the absorption in the post of  

LDC.   The  High  Court,  however,  entertained  the  stand  that  the  Writ  

Petitioners were entitled to equal protection of  law,  as is available to a  

Government  servant,  provided  in  Article  14,  16  and  308-311  of  the  

Constitution of  India,  while  serving under  the State.   In  short,  the High  

Court  held  that  firstly,  there  existed  master  and  servant  relationship  

between  the  State  Government  and  the  petitioner  Copywriters  and,  

therefore, they were entitled to the relief claimed.  It was urged on behalf of  

the respondent  Government before the High Court  that the Copywriters  

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were merely the licensees and they could claim any better status than that.  

It was also pointed out that these licenses were granted in keeping with the  

Rules made therefor.  That contention was negatived.  In coming to this  

conclusion, the High Court has relied on various Rules brought in vide the  

Copywriters’ Rules of 1999.  As per the interpretation put forth by the High  

Court,  the  said  Rules  had  the  effect  of  creating  a  master  and servant  

relationship between the Copywriters and the State Government.   

13. The  High  Court  has  also  very  heavily  relied  on  the  five  Judges’  

Bench  decision  of  this  Court  in  State  of  Assam  &  Ors.  Vs.  Shri  

Kanakchandra  Dutta reported  in  AIR  1967  SC  884,  as  also  another  

decision in The State of U.P. Vs. Chandra Prakash Pandey reported in  

AIR 2001 SC 1298.   The contention of  the State  Government  that  the  

Copywriters  were  professionals,  was  also  repelled.   Various  other  

decisions were considered by the High Court and it ultimately came to the  

conclusion  that  since  there  existed  master  and  servant  relationship  

between the State Government and the Copywriters appointed under the  

Rules,  it  could  not  be  said  that  the  relationship  was  merely  that  of  

licensees and licensor.  The High Court observed that the Rules gave a  

“false impression” that the said relationship was merely of licensees and  

licensor.   It  was further held that the demand of remuneration to these  

Copywriters, which was recoverable from the parties at the rates fixed by  

the Rules, was violative of  principles and tenets of  the Constitution,  as  

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mentioned in Articles 14, 16, 21, 308-311, as like every other Government  

servant, they were entitled for a regular scale of pay.   

14. The High Court went on to observe that though they could not be  

absorbed as LDCs, it  would be for the State Government to decide the  

nomenclature  of  their  post  and their  salary  was  liable  to  be fixed after  

taking into  consideration the nature of  the jobs and duties entrusted to  

them,  only  after  comparing those with  the similarly  placed Government  

employees either in the same or in other Departments,  the principle of  

“equal pay for equal work”.  On the basis of this finding, the High Court  

further  went  on  to  hold  that  these  benefits  should  be  awarded  to  the  

Copywriters from the date of filing the first of the applications filed by the  

Association,  namely,  Writ  Petition  No.  1643  of  1996,  which  got  

renumbered as T.A. No. 391 of 1998.  The High Court also awarded the  

arrears  to  the  Copywriters  from  the  said  date  after  adjusting  the  

remuneration already received by the individual  Copywriters.   The High  

Court further directed that the years of continuous service put in by them  

even prior to the date as Copywriters, should be taken into account for the  

purposes of calculation of the retiral benefits, subject to the minimum and  

maximum age limit  for  entry into the Government service (probably the  

date,  when  they  first  got  the  license  to  practice  as  Copywriters)  and  

secondly,  their  service  rendered  prior  to  the  attainment  of  minimum  

qualifying  age  should  be  ignored.   The  High  Court  also  held  that  the  

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service  rendered  beyond  the  age  limit  prescribed  for  superannuation  

should not be considered for giving retiral benefits.  Lastly, the High Court  

also directed to decide the nomenclature of the post and the scale of pay  

for the same within three months from the date of judgment.  The State  

Government was given six months’ time to pay the arrears.  It was further  

held that if the Government defaulted to pay the arrears, the amount would  

carry  interest  at  the rate  of  eight  per  cent  per  annum.   With all  these  

findings, the High Court allowed the Writ Petitions, which are now fallen for  

our consideration.

15. Shri Bhaskar P. Gupta, Learned Senior Counsel appearing on behalf  

of the State of West Bengal, firstly took us through various provisions of  

the Registration Act, 1908 and the various amendments made to them by  

the State of West Bengal.  We were also taken through 1981 Amendments  

and  the  Statement  of  Objects  and  Reasons,  so  also  we  were  taken  

through the Registration (West Bengal Amendment) Bill, 1986.  Shri Gupta  

took us through various Rules, firstly, the Copywriters’ Rules of 1979 and  

more particularly, the Copywriters’ Rules of 1999.  The whole thrust of the  

argument was that there was nothing in the provisions of the Registration  

Act or the Rules to suggest that the legislature ever intended creation of a  

separate service for these Copywriters.  The Learned Senior Counsel very  

earnestly argued that vide the above mentioned Rules, the legislature has  

created a separate class, called “Copywriters”.  The contention was that,  

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firstly, filing of a copy of a deed before the same presented for registration,  

was made compulsory and then a class was created called “Copywriters”,  

who were given the licenses by the concerned authorities to make those  

copies.  It was urged that the Copywriters had the task of copying the said  

deeds on payment of prescribed fees, as fixed under the Rules and for that  

purpose,  the  Copywriters  were  given  licenses  and  for  giving  those  

licenses, they were selected, meaning that licenses were granted not to all  

and sundry,  but  to certain persons,  depending upon their  qualifications.  

The Learned Senior Counsel was at pains to point out that there could  

never  exist  master  and servant  relationship  because these Copywriters  

were not under the control of the authorities, insofar as their attendance,  

their  working hours or their  emoluments were concerned.  The Learned  

Senior Counsel pointed out that it was a total misnomer to say that those  

Copywriters were the Government servants since from the very nature of  

the work  of  Copywriters,  it  could not  be said that  they were  doing any  

Government duties.  It was further argued that the Division Bench, in its  

impugned judgment, has almost rewritten the Rules.  It was pointed out by  

the Learned Senior Counsel that such directions even under the plenary  

jurisdiction  of  Article  227,  could  not  be  given,  as  that  amounted  to  

legislating and hence impermissible.  Lastly, the Learned Senior Counsel  

urged that the rulings which the High Court had relied on, were not at all  

applicable.

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16. As against this, Shri Jayant Kumar Mitra, Learned Senior Counsel,  

as also Shri  Ranjit  Kumar, Shri  P.P. Rao, Learned Senior Counsel and  

other Learned Counsel like Shri Dipak Kumar Jena appearing on behalf of  

the  respondents,  supported  the  High  Court  judgment.   In  the  leading  

address, Shri Jayant Kumar Mitra urged that though the Writ Petitioners  

before the High Court had given up their main prayer, it could not be said  

that the High Court had given the relief not prayed or the one beyond the  

pleadings.  The Learned Senior Counsel pointed out that the High Court  

had  moulded  the  relief  and  instead  of  directing  the  absorption  of  

Copywriters as the LDCs, had directed to create a new class for the Writ  

Petitioners.   He also pointed out that the State Government had earlier  

regularized the services of Extra-muharrirs and the Copywriters were doing  

no different work than those persons.  It is on these rival pleas that the  

present appeal has to be decided.

17. It  will  be better first to see the legal provisions, which have been  

relied  on  by  the  parties  extensively.   The  Registration  Act,  1908  is  a  

Central  legislation  for  consolidating  the  enactments  relating  to  the  

registration  of  the  documents.   Various  States  have  introduced  State  

amendments  to  this  Act.   Section  19A  was  introduced  by  a  State  

amendment  in  1981  which  provided  that  notwithstanding  anything  

elsewhere in the Act or any other law, no document shall be accepted by  

the Registration Officer for registration, unless it is prepared and presented  

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and accompanied by a true copy thereof in accordance with such Rules,  

as may be made in that behalf.  While amending the Act, the State of West  

Bengal had introduced Part XIII A. XIIIB and XIIIBB in 1978.  Part XIII BB  

which  is  relevant  here  deals  with  the  Inspector  General,  who  has  the  

power  to  make  Rules,  consistent  with  the  Act,  with  prospective  or  

retrospective effect, providing for the grant of licenses to the Copywriters,  

revocation of such licenses, the terms and conditions, subject to which and  

the authority by which such licenses shall be granted and generally for all  

purposes connected with the copying of documents for registration.  Rules  

so made, were to be submitted to the State Government for approval and  

after approval were to be published in the Official Gazette and on such  

publication, those Rules would have the effect as if they are enacted in the  

Act.  This power in the State Government, to make the Rules, came vide  

Section 80A.  On its heels, came the Copywriters’ Rules of 1982, as also  

the West Bengal (Deed Writers) Rules, 1982 (hereinafter called “the Deed  

Writers’  Rules  of  1982”  for  short).   Needless  to  mention  that  we  are  

presently concerned with the Copywriters’ Rules of 1982.  Section 80GG  

was  incorporated  thereafter  in  1986,  which  empowered  the  Inspector  

General  to  make rules relating to  Copywriters.   Section 80GG became  

operative w.e.f. 1.1.1993.  The Copywriters’ Rules of 1982 were replaced  

by Notification Nos. 23335 and 23336 and in their place, the Copywriters’  

Rules of 1999 were brought in.  For the purposes of the controversy in  

17

question, though it started in 1996, the relevant Rules are the Copywriters’  

Rules of  1999 since 1982 Rules were replaced by 1999 Rules.  These  

Rules  introduced  a  completely  new  scheme  of  self-employment  by  

granting licenses to the deed writers and Copywriters creating for them  

self-employment,  profession  or  vocation.   The  most  relevant  amongst  

these Rules are Rules 2(3), 3, 5, 6, 7, 8, 9, 10, 15, 17, 19, 20(2), 21, 24  

and 26.  They are as under:-

2(3) “Licensing Authority” means the District Registrar as defined  in Section 2 of the 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  

Copywriters.

5. Persons eligible for license:- A  Copy  Writer’s  license  may  be granted to a person:-

(i) who is a 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 license;

(iii) who  has  passed  the  School  Final  or  its  equivalent  

examination,  provided that  any  person applying  for  a  

Copy Writer’s license under Rule 6 shall be eligible for  

such  license  if  such  person  has  passed  Class  VI  

Examination for promotion to Class VII and has gained  

experience  as  an  assistant  to  a  Deed  Writer  in  his  

18

profession for not less than three years on the date of  

application;

(iv) who  has  passed  the  Copywriter’s  Licensing  Test  

conducted by the licensing 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. (Provides die-in-Harness Principle)

7. Disqualifications:- (1) A Copywriter’s license 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 a deaf-mute; or

(d) if  he  is  a  leper  or  suffers  from  an  incurable  

contagious disease; or

(e) if his license has at any time been cancelled and  

the  order  cancelling  the  license  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 license, the licensing  

authority  shall  record  his  reasons  for  refusal  and  

communicate a copy of the order to the person applying  

for license.

19

8. (Not necessary)

9. Renewal of license:- (1) A  license  issued  under  these  Rules may be renewed on year to year basis by the District  

Register,  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) xx xxx xxx

(3) xxxx xxx xxx

10. Conditions of renewal:- (1) A  license  shall  not  be  renewed:-

(a) if the licensee fails or has failed to observe any of  

the conditions of his license 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 license has been  

suspended; or

20

(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 license 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  

Officers concerned.

(b) A Copywriter, who fails to apply for renewal within  

the stipulated period, may, however, apply for a  

fresh license.

15. Rights and duties of Copywriter:- (1) A  licensed  Copywriter shall be allowed to sit in the officer precincts.

(2) He shall work under the 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  confine  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 the Deed Writer.

17. Cancellation of Copywriter’s license:- (1) A  license  granted under these rules to a Copywriter may be cancelled  

by the District Registrar, if-

21

(a) his license has been suspended thrice during the  

course  of  two  consecutive  years,  provided  that  

where  the  suspension  of  the  license  is  for  

demanding or receiving remuneration in excess of  

the amount specified in these rules, the license  

may be cancelled if it has been suspended twice  

during the course of two consecutive years;

(b) he  become  disqualified  on  any  of  the  grounds  

specified in Rule 7.

(2) The District Registrar shall have powers to cancel the  

license of a Copywriter, who is guilty of the breach of  

any of the provisions of these rules or of his license or  

of any misconduct..

(3) The  District  Registrar  shall  cancel  the  license  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 present,  

adequate opportunity shall be allowed to him to defend  

himself by adducing witnesses and, finally,  there shall  

be written orders with appropriate reasons.

19. Suspension of a Copywriter’s license:- A  license  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  license  or  is  found  guilty  of  

22

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  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.

23

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.

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(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 a license.  It is worth seeing  

that it requires is only passing of VIth Class Examination.  Such a person  

should have minimum 3 years of experience on the date of application.  

25

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.  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  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  

26

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  self-employment  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  

27

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  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  

28

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 comparable in any manner with the  

Extra-muharrirs even in respect of their educational qualification.  It is to be  

seen from the Rules that the minimum qualification for a licensee as a  

Copywriter  is  barely  VIth  Class  passing,  which  is  unimaginable  in  the  

present days as a minimum qualification for a 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.  

29

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,  since  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 these Copywriters.  In short, the  

contention  was  that  the Writ  Petitioners  were  carefully  selected for  the  

30

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 the West Bengal and, therefore, the names of the prospective  

candidates  to  fill  up such vacancies  were  invited from the employment  

exchanges.  In fact, this was the sore point felt  by the Writ Petitioners,  

whose main demand in the Writ Petition, as would be clear from the Prayer  

clause,  was to stop such process for employment,  started by the State  

Government.  It is only with that idea that they had sought for an injunction  

against  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  

31

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 requisite 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  

examination was meant for filling up the vacancies of LDCs.  They also  

pointed out that their Cards of employment exchange 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  

32

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 created 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.   

33

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 master and servant  

relationship between the Writ Petitioners and the State Government and,  

therefore, the Writ Petitioners could not assert their right to be absorbed as  

LDCs.  Therefore, Shri 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 job as LDCs.  

They had nowhere suggested that they were already on the Government  

establishment and there existed master 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  

34

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  filed  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.   The  plea  are  almost  the  same,  

inasmuch  as  the  petitioners  therein  also  compared  themselves  to  the  

Extra-muharrirs and claimed a 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 command and  

35

control  of  the  authorities  and  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 a direction to the  

State Government to absorb and regularize 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  post  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  

record.  In fact, it is on this short ground that the Writ Petitioners had given  

36

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 High Court, as well as, before  

the  Tribunal  had  rightly  conceded  that  they  could  not  be  appointed  or  

absorbed  as  LDCs.   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-

37

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 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 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  

38

never there and were not likely to be there in case of the Writ Petitioners  

therein.   That  by  itself  was  enough  to  reject  the  claim  of  the  Writ  

Petitioners.   No  Government  service  can be de-hors  the  rules.   There  

were,  undoubtedly,  the rules for  the Copywriters,  but  those rules could  

never be read as creating a separate Government service.  They, at the  

most, were licensees.  Firstly, these 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.  It  was very fairly  

admitted at the time of debate that there was no attendance register for  

these  Copywriters  nor  were  they  required  to  take  leave  in  case  they  

decided to remain absent.  Further, they were not even controlled in the  

matter  of  their  actual  working  hours.   Thus,  the  control  was  qua  the  

licenses, not qua the duties.  This fine distinction was ignored.  The grant  

of  licenses  was  bound  to  be  under  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 Shri Mitra and others was only in  

respect of the continuation of their licenses.  Such a disciplinary control  

would be available in case of all the licensees in whatever Department the  

39

licenses are given.  A criminal cannot be allowed to enjoy a license nor  

could a person, who misbehave, could enjoy the continuation of a 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.  Here, what these 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 is not a Government job nor does  

it involve a Government duty.   

30. Much was spoken about the selection of these Copywriters.  If they  

were Copywriters,  the Government was perfectly justified in holding the  

tests for awarding the licenses.  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  

copy of the deed which is offered for the registration.  This certainly was  

not a Government duty.  In our opinion, 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, in our opinion, could never  

amount to a Government duty or a statutory duty.  We specifically asked  

40

the  Learned  Senior  Counsel  for  the  Copywriters,  as  to  whether  a  

Copywriter could refuse to do the copying work on account of any relevant  

reason.  The Counsel very fairly admitted that he could so refuse to write.  

We can easily visualize such a situation that 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 distantly similar to the  

Government duty.  All the arguments, therefore, based on the rules, have  

to be rejected.

31. This takes us to the finding on the master and servant relationship,  

since that was the main tune on behalf of the Copywriters during all the  

arguments  before  us.   We would  ordinarily  have  entertained  this  plea,  

since  it  was  not  raised  in  the  Writ  Petitions  turned  into  Transfer  

Applications.   However,  since  the  main  thrust  of  the  Learned  Senior  

counsel for the Copywriters was on this master and servant relationship,  

we would choose to consider the argument.  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.   We have already given a  

41

finding  that  there  was  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 this case.  The control  

was  only  qua  the  licenses,  their  continuation  or  their  termination.  

Therefore, we are unable to accept the argument of Shri Mitra that from  

the bare reading of the rule, we must hold that there was a total control by  

the Government over the working of these Copywriters.  Now, we will take  

the  the  most  crucial  question  regarding  the  master  and  servant  

relationship.   Admittedly,  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 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.   In  fact,  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.

42

32. To  get  out  of  this  difficult  situation,  Shri  Mitra,  Learned   Senior  

Counsel for the respondents, relied on the case of  Kanakchandra Dutta  

(cited supra).  Whether Mauzadars working under the Government held a  

civil post, was a question considered in this matter.  Under the Mauzadari  

system, the land revenue used to be collected in Assam Valley and the  

Mauzadar  was  in  charge of  a  Mauza and  responsible  for  the  revenue  

collection of that Mauza.  In short, Mauzadar was spoken of as “Revenue  

Contractor”.   The executive instructions appearing in paragraphs 115 to  

159  and  167(a)  of  Assam  Land  Revenue  Manual,  6th Edition  drew  a  

complete scheme for  the appointment  and dismissal  of  the Mauzadars,  

their duties and emoluments and the registers, which were to be kept and  

maintained by them.  They were to be appointed and dismissed by the  

Deputy Commissioner subject to the Commissioner’s approval and could  

be  suspended  by  the  Deputy  Commissioner  on  his  own  authority.  

Normally,  Mauzadar’s  successor  used  to  be  selected  from  among  the  

members of his family.  Every Mauzadar, before his appointment, had to  

execute a written agreement (kabuliyat) in the prescribed form.  Mauzadar,  

as  has been said  earlier,  was  responsible  for  the collection of  poll-tax,  

house-tax,  tauzi-bahir  revenue,  grazing  fees  and forest  dues.   He was  

required to pay to the treasury the full amount of all installments of land  

revenue, as also the other taxes collected by him within a particular time.  

The Mauzadar was not concerned with the assessment of land revenue or  

43

the settlement of land or checking of maps or assessment papers.  He was  

only concerned with the collection of land revenue.  He was charged with  

the  duties  of  supervising  the  performance  of  duties  by  Gaonburas,  to  

receive applications for waste lands which he was authorized 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  

organization system, to warn persons not to allow their cattle to stray on  

roadside lands and to submit weekly returns of collections.  Therefore, he  

was generally required to act as the Deputy Commissioner’s Assistant in  

all  administrative matters within his Mauza, so far as he may be called  

upon to do so.  This Court also took the complete trace of his duties, which  

further  included  the  power  of  attachment  and  sale  of  movables  under  

Section 69 of the Assam Land and Revenue Regulation, 1886 (Regulation  

44

No. 1 of 1886).  It also took note of the fact that Mauzadars were appointed  

Revenue Officers under Section 124 of the Regulation.  It was also noted  

that  all  Mauzadars  were  appointed  as  ex-officio  Assistant  Settlement  

Officers and invested with the powers to effect registration under Section  

53(A)  in  uncontested cases and to dispose of  under Chapter  VI  of  the  

Regulation all applications for partition of revenue-paying estates in which  

no objection is preferred.  The Court further went on to note that there was  

no formal definition of “post” and “civil post”.  The Court further observed:-

“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 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 Articles 309, 310  and 311.  The heading and the sub-heading of Part XIV and  Chapter  I  emphasize  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 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.” (emphasis supplied).

45

33. Heavily relying on this judgment, Shri Jayant Mitra, Learned Senior  

Counsel  for  the  respondents,  compared the post  of  Mauzadar  with  the  

Copywriter.  It was suggested that like Mauzadars, the Copywriters also  

held heritable office.  The Learned Senior Counsel further urged that the  

element of ‘appointment’ of Mauzadars was present, in Copywriters’ case,  

inasmuch as the licenses were granted, continued and terminated, as also,  

suspended by the State government under the Rules, it was pointed out  

that practically all the factors were present in their case also.  We do not  

think that there is any similarity between the duties of Mauzadars and the  

duties of Copywriters.  In fact, all the duties done by the Mauzadars were  

the Government duties, the most important being the collection of revenue  

and  the  collection  of  other  taxes,  which  were  essentially  Government  

functions.  The nature of powers enjoyed by the Mauzadars is also another  

pointer to suggest that in comparison to Mauzadars, Copywriters had no  

powers.  All that they were required to do was to copy the deeds.  There  

were not only the powers to collect the revenue on the part of Mauzadars,  

but they also had the special duties of supervisory nature.  They were also  

responsible  to  the  Government  servants  like  Assistant  Commissioners,  

under  whom  they  worked  and  to  whom  they  reported  the  essential  

information for income tax.  They also had the powers to effect the partition  

and thereby, to deal with the land in some cases.  We fail to follow as to  

46

how this case could be of any assistance to the respondents herein.  This  

Court observed:-

“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.  (Emphasis  supplied)  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.”

34. This Court further noted that though the Mauzadars were not paid  

the salaries, they were paid the remuneration by way of commission on  

collections of Government dues.  The Court further noted that considering  

the overall duties, which we have quoted above, the Mauzadars held civil  

posts.  We have already pointed out that in case of Mauzadars, they were  

paid from the Government coffers, while in case of the Copywriters, they  

got  paid from the private individuals.   Again,  the element of  ‘control’  is  

completely absent in case of Copywriters, which was present in case of  

Mauzadars.   Similarly,  Mauzadars  were  clothed  with  the  administrative  

47

powers  on  the  revenue  side  and  had  to  carry  out  onerous  duties  in  

connection  with  the  affairs  of  the  State,  which  is  not  the  case  of  the  

Copywriters.  In our opinion, therefore, the reliance placed by Shri Mitra,  

Learned Senior Counsel for the respondents, on this case, is uncalled for.

35. Relying on this case further, Shri Mitra, Learned Senior Counsel for  

the respondents, invited our attention to another decision in Union Public  

Service Commission Vs. Girish Jayanti Lal Vaghela & Ors. reported in  

2006 (2) SCC 482 and more particularly, to the observations in para 10  

thereof,  where the decision in the case of  Kanakchandra Dutta (cited  

supra) was relied upon for deciding as to whether appointment of a person  

under the Administration of a Union Territory on contract basis for a short  

period, de-hors the statutory rules and without complying with the Article  

16, the person could be held as the Government servant.  The Court came  

to  the  conclusion  that  such  person  could  not  be  viewed  as  a  person  

holding  a  civil  post.   The  petitioner  therein  was  appointed  as  Drugs  

Inspector on short term contract basis on a fixed salary for a period of six  

months.  While he was so serving, one advertisement was issued for Drug  

Inspector post providing the upper age limit for making direct recruitment at  

30 years.   Since the petitioner was over-aged by two years,  he sought  

relaxation of his age claiming to be a Government servant by filing a Writ  

Petition, which was allowed and the High Court had directed to issue the  

age relaxation certificate.  The question fell for consideration as to whether  

48

the Writ Petitioner was a Government servant as the relaxation for possible  

only for Government servant.  Relying on the judgment in  Cassidy Vs.  

Ministry of Health reported in 1951 (1) All ER 574, the Court noted that  

while in “contract for service”, the master can order or require what is to  

done,  in  other  case,  i.e.,  “contract  of  service”,  he cannot  only order or  

require what is to be done, but can also direct how it shall be done.  The  

Court also referred to another decision in Short Vs. J.W. Henderson Ltd.  

reported  in  1946  (174)  LT  417,  which  had  laid  down  the  attributes  of  

employer-employee  relationship,  which  principles  were  followed  in  the  

latter decision.  In that case, the following four indicia of contract of service  

were laid down:

(a) The master’s power of selection of his servant; (b) The  master’s  responsibility  of  payment  of  wages  or  

other remuneration ; (c) The master’s right of suspension or dismissal; (d) The master’s right to control  the method of doing the  

work.

Undoubtedly,  it  was  observed that  a contract  of  service  may still  

exist if some of these elements are absent altogether, or present only in an  

unusual form.  It was, however, treated that the factor of superintendence  

and control has always been a critical and decisive of the legal quality of  

the relationship.   

36. The Court then proceeded to consider the law laid down in Morren  

Vs. Swinton and Pendlebury Borough Council reported in 1965 (2) All   

49

ER 349,  which made a slight departure by saying that though in many  

cases, the importance of the factor of superintendence and control was  

emphasized, but that is not the determining test.  The Court noted the law  

laid down in Morren’s Case to the effect that superintendence and control  

cannot be a decisive test, when one is dealing with a professional man or a  

man with professional skill and experience.  Lastly, the Court referred to  

the  decision  in  the  case  of  Argent  Vs.  Minister  of  Social  Security  

reported in 1968 (3) All ER 208, in which it was suggested that though in  

earlier cases, the most important test, if not the all-important test, was the  

extent of control exercised by the employer over the servant but with the  

development  of  law  in  recent  times,  the  emphasis  has  shifted  and  no  

longer rests so strongly on the question of control.  Control is obviously an  

important factor.  In some cases, it may still be a decisive factor, but it is  

wrong to say that in every case, it is the decisive factor.  The Court then  

went on to consider the law laid down in the case of Kanakchandra Dutta  

(cited supra) in para 15 and came to the conclusion that indicia laid down  

in this case this case could not be the only test for determining the person  

holding a civil post under the Union Territory or State.  Ultimately, in para  

23,  the  Court  observed  that  the  principle  laid  down  in  the  case  of  

Kanakchandra  Dutta  (cited  supra)  did  not  advance  the  case  of  the  

respondent in any manner, as certain other factors like  the process of  

recruitment  in  accordance  with  relevant  service  rules  were  not  

50

followed and certain other incidents of service like transfer, disciplinary  

action,  pension  and  the  facility  of  General  Provident  Fund  were  

absent  in his case.   Lastly,  the Court  also considered the decision in  

State of U.P. Vs. Chandra Prakash (cited supra),  where the question  

was whether the Kurk Amins appointed on commission basis by Collectors  

for  realization  of  outstanding  dues  of  various  cooperative  societies  as  

arrears  of  land  revenue  can  be  treated  to  be  employees  of  the  State  

Government.  It was pointed out that Kurk Amins had not been appointed  

on contract basis as is the case of Respondent No. 1, but they were in fact,  

regularly appointed and had to perform Govt. duty of recovering arrears of  

land revenue.   The Court,  therefore,  did not  hold the said person as a  

Government employee.  A look at this case would suggest that the rules  

for the appointment were given the utmost importance.  Admittedly, in the  

present matters there were no rules for appointment of any service.  The  

rules merely provided the manner in which the licenses were to be created  

and controlled.  That is a distinction.  According to us, even this case does  

not help the respondents herein.  In fact, the observations in para 15 to the  

effect that the decision in Kanakchandra Dutta (cited supra) provided the  

complete test, go rather against the respondents.

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  

51

different sources, namely, 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 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  

52

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.  In para 31, this Court noted that the  

Panchayat  Service  constituted  under  Section  203  of  the  Gujarat  

Panchayats  Act  was  a  civil  service  of  the  State  and  members  of  the  

service were Government servants.  It was noted that this question was  

decided by the High Court of Gujarat more than 15 years back in G.L.  

Shukla Vs. 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:-

“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  

53

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  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.

54

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  decide  upon  as  to  

whether who is a contractor and distinction between a contractor and a  

workman.   This  was  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 as a control by  

the  State  Government  on  the  working  of  the  Copywriters.   We  have  

55

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)  

SCC 94.  This was a case regarding the extra departmental branch Post  

Masters and extra 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.  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 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.  

56

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 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.   However,  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) SCC 514.   That was the case  

regarding the claim of the workers that they were the workmen of Nilgiri  

57

Cooperative Marketing Society.  The Court, undoubtedly, culled out some  

principles like the appointing authority, the pay master, 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  workmen  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 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 a 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 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  

58

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 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  in  2008 (1)  SCC 683.  

59

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, holding that when  

there was no sanctioned post of Tractor Driver, the Court could not direct  

to creation of such posts and regularize the Malis in such posts.  Thus, it  

has  been  clearly  held  that  where  there  are  no  sanctioned  posts,  the  

creation of posts 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  

60

to be created in complete disregard to the rules, this decision 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 a  

grant  of  license  cannot  cloth  the  Copywriters  with  the  status  of  

Government servant nor were they doing any Government duty.  In State  

of Haryana Vs. Navneet Verma reported in 2008 (2) SCC 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) SCC 1.  That was a case, where the staff employed in  

the  office  of  the  Official  Liquidator  attached  to  different  High  Courts  

61

claimed the status  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 Kerala Vs.  

Umadevi reported in 2006 (4) SCC 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 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  

62

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  

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  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  the  

Constitution of India.  The contention is undoubtedly correct.  This factor of  

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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 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  

copywriters 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 Deed-writers, 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 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.

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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,  however,  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.

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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  

so-called 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 service.  In that the High Court has  

traveled beyond 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 is set aside and that of  

the Tribunal is restored.  Under these circumstances, however, there shall  

be no order as to costs.

………………………………J. (Tarun Chatterjee)

……………………………….J. (V.S. Sirpurkar)

New Delhi May 08, 2009

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