THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.228 OF 2010 DATED 25TH NOVEMBER, 2011 BETWEEN Mr.Mohammad Azmat … Appellant/Petitioner And Director of Intermediate Education, Andhra Pradesh, Hyderabad and others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.228 OF 2010 J U D G M E N T (Per Sri Justice Sanjay Kumar) The following issues, framed by a learned Division Bench comprising two of us (VVSR & RR JJ), were referred to this Full Bench for consideration and decision: (i) Whether a person appointed by the Government on contract basis under Rule 9(a) of the Andhra Pradesh State and Subordinate Service Rules, 1996 holds a civil post under the State? (ii) Whether service matters concerning such a person fall within the ambit of Section 15(1)(a) and (b) of the Administrative Tribunals Act, 1985, necessitating his invoking the jurisdiction of the Andhra Pradesh Administrative Tribunal in the first instance? The reference arose in the context of the writ appeal on hand filed against the order dated 29.01.2010 passed by a learned single Judge dismissing Writ Petition No.25221 of 2009 as not maintainable. It was the case of the appellant/writ petitioner that he was appointed as a contract junior lecturer in the fourth respondent Government Junior College at Korutla, Karimnagar District, during the academic year 2006-07 and that his contractual appointment was renewed each year thereafter. However, his services were not continued during the academic year 2009-10. Aggrieved thereby, he filed the subject writ petition before this Court for a declaration that the action of the respondents in not continuing him as a contract junior lecturer was illegal and seeking a consequential direction to continue him in service as such. The learned single Judge, at the threshold, was of the opinion that as the writ petitioner was in Government service, his grievance had to be agitated in the first instance before the Tribunal constituted under the Administrative Tribunals Act, 1985 (for brevity, ‘the Act of 1985’) and accordingly dismissed the writ petition granting him liberty to work out his remedy. The present writ appeal was filed contending that the decision of a learned Division Bench of this Court in GOVERNMENT OF A.P. v. P.SULOCHANAMMA[1], holding the Act of 1985 inapplicable to a contract employee of the Government, barring the appellant/writ petitioner from approaching the Andhra Pradesh Administrative Tribunal would require reconsideration. When the matter was listed on 04.08.2010, the learned Division Bench took note of certain observations made in P.SULOCHANAMMA1 in the context of Rule 9 of the Andhra Pradesh State and Subordinate Service Rules, 1996 and having regard to the observations made by the Supreme Court in STATE OF KARNATAKA v. AMEERBI[2], opined that the matter required reconsideration. In consequence, the reference, framing the two questions detailed supra for consideration and decision. Heard Sri G.Vidya Sagar, learned counsel for the appellant/writ petitioner and Sri Siva, learned Special Government Pleader representing the learned Additional Advocate General for the State. Chapter I of Part XIV of the Constitution, comprising Articles 308 to 314, deals with services under the Union and the States. A brief overview of relevant Articles–– Article 309 provides that, subject to other constitutional provisions, Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or a State. The proviso thereto enables promulgation of rules regulating recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the Union or a State, until a provision in that behalf is made by an Act of the appropriate legislature. Clause (1) of Article 310 provides that every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with the defence or any civil post under the Union holds office during the pleasure of the President and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. Clause (2) of Article 310 provides that a person with special qualifications appointed under a contract, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is guaranteed security of tenure and is entitled to be compensated if, before expiration of the agreed period under the contract, he is required to vacate the post for reasons not connected with any misconduct on his part. Article 311 is concerned with the dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. Clause (1) thereof provides that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Clause (2) of Article 311 provides that no such person shall be dismissed or removed or reduced in rank except after an enquiry, in which he has been informed of the charges framed against him and given a reasonable opportunity of being heard in respect of those charges. This constitutional framework is a necessary backdrop for appreciating the issues that arise for consideration. Pertinent to note, though Article 309 speaks of public services, Article 311 speaks of a civil service of the Union or a State or a civil post under the Union or a State. These phrases are not defined in the Constitution but the distinctive use of one or the other in the aforestated Articles was obviously with definite purpose. Article 310 gives a clear indication as to the difference between a ‘public service’ and a ‘civil service’ by separating members of a defence service from members of a civil service of the Union or a State. Ergo, excluding defence services, all other services of a civil nature, be it under the Union or a State, would fall within the ambit of civil services. It is also necessary to note that apart from speaking of members of a civil service of the Union or a State, Articles 310 and 311 both speak of persons who hold ‘civil posts’ under the Union or a State. Thus, a distinction needs to be drawn between persons who are members of a civil service under the Union or a State and persons who are merely holding civil posts under the Union or a State. The term ‘civil post’ is not defined in the Constitution but reading Articles 310 and 311 together, the conclusion is inescapable that a ‘civil post’ means a post or office on the civil side of the administration as distinguished from a post connected with defence. It cannot be confined merely to posts which are borne on the cadre of any regularly constituted service and any post held by any public servant, if it does not belong to the military department or the defence forces, must be deemed to be a civil post [S.MOHAN SINGH v. PATIALA AND EAST PUNJAB STATES UNION, PATIALA[3] and Judicial Dictionary by Justice L.P.Singh and P.K.Majumdar, Second Edition, Reprint 2003]. The observations of a Constitution Bench in STATE OF ASSAM v. KANAK CHANDRA DUTTA[4] are particularly illuminating in this regard: “9. ……… There is no formal definition of “post” and “civil post”. The sense in which they are used in the Service Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Article 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State. See marginal note to Article 311. In Article 311, a member of a civil service of the Union or 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 emphasise the element of service. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State’s right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant 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. 10. In the context of Articles 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds “office” during the pleasure of the Governor of the State, except as expressly provided by the Constitution. See Article 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.” Reference may also be made to the observations of another Constitution Bench in STATE OF GUJARAT v. RAMAN LAL KESHAV LAL SONI[5]: “27. ……… 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. ………” I n UNION OF INDIA v. DEEP CHAND PANDEY[6], the question that fell for decision before the Supreme Court was whether casual Typists engaged by the Union of India were the holders of civil posts requiring them to approach the Tribunal constituted under the Act of 1985 in the first instance. The argument advanced was that as the Typists were engaged on casual basis, they were not holding any civil posts under the Union and therefore the Act of 1985 would not be attracted. The Court observed that the scheme of Article 323A of the Constitution permitting the Parliament to legislate on the subject covered therein was very wide and by enacting the Act of 1985 this power had been exercised in almost full measure. Adverting to Sections 14 and 3(q) of the Act of 1985, the Court held that there was nothing to suggest that the provisions dealing with the jurisdiction of the Tribunal should receive a narrow interpretation. The Court accordingly held that the remedy of the Typists was before the Tribunal in the first instance. I n STATE OF KARNATAKA v. AMEERBI2, the Supreme Court was considering whether Anganwadi workers and helpers appointed under the Integrated Child Development Service Programme held civil posts. The Court found that the posts of Anganwadi worker were not statutory posts but were only created in terms of the Scheme. The Court pointed out that it was one thing to say that there exists a relationship of employer and employee between the State and Anganwadi workers but it is another thing to say that they are holders of civil posts. The Court further found that Anganwadi workers did not carry on any function of the State and did not hold a post under a statute. Their posts were not created and recruitment rules, ordinarily applicable to the employees of the State, were not applicable in their case. The Court observed that appointments made under a scheme through a recruitment process carried out by a committee would not render the incumbents thereof holders of ‘civil posts’. No rule or regulation governed the mode of their recruitment and therefore, the Court concluded that the Tribunal constituted under the Act of 1985 had no jurisdiction to entertain the application filed by such Anganwadi workers. More recently, the Supreme Court had occasion to deal with this issue in STATE OF WEST BENGAL v. WEST BENGAL REGISTRATION COPYWRITERS ASSOCIATION[7]. The Court was considering whether copywriters in various Registration offices of the State of West Bengal were entitled to be absorbed in Government service – the core issue being whether there was any ‘master-servant’ relationship between the State Government and the copywriters. The Administrative Tribunal found that the copywriters were mere licence holders and that there was no relationship of master-and-servant between the State Government and them. It accordingly dismissed their applications. The High Court reversed the order of the Administrative Tribunal; found that there existed a relationship of master-and-servant between the State Government and the copywriters and held them entitled to the relief claimed. In appeal, the Supreme Court pointed out that the essence 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 in so far as the duties are concerned. Considering these factors cumulatively, the Court found that there was no trace of such relationship between the State Government and the copywriters as they were merely licensees and there was no control over the manner in which they did their work of copying; there was no disciplinary control as the control provided was only qua the licences and crucially, they were not paid wages by the Government. The Supreme Court considered KANAK CHANDRA DUTTA4 and found that there was no similarity between the duties of copywriters and the duties of Mauzadars in KANAK CHANDRA DUTTA4. The Court then considered its later judgment in UNION PUBLIC SERVICE COMMISSION v. GIRISH JAYANTI LAL VAGHELA[8] which affirmed that the 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 Article 16, would not entitle such person to claim that he is a Government servant. The Court pointed out therein that such a person could not be viewed as a person holding a civil post. Reliance was placed on CASSIDY v. MINISTRY OF HEALTH[9] in the context of a ‘contract for service’ where the master can order or require what is to be done as compared to a ‘contract of service’ where he can not only order or require what is to be done, but can also direct how it is to be done. The Court also pointed out that the indicia laid down in KANAK CHANDRA DUTTA4 could not be the only test for determining whether a person holds a civil post. Summing up, the Supreme Court observed that a look at GIRISH JAYANTI LAL VAGHELA8 suggested that the rules for appointment were to be given the utmost importance and found there were no such rules for appointment of copywriters and the rules only provided for creation and control of licences. Considering RAMAN LAL KESHAV LAL SONI5, the Supreme Court held that the situation therein was entirely different. As every case has to be decided on its own facts and there was no parity on facts between the two cases, RAMAN LAL KESHAV LAL SONI5 was held to be of no avail to the copywriters. Dealing with SUPERINTENDENT OF POST OFFICES v. P.K.RAJAMMA[10], the Supreme Court found that the rules relating to Extra-Departmental Branch Post Masters and Extra-Departmental Delivery Agents, whereby such persons were held to hold civil posts, were entirely different from the rules relating to copywriters. The Court therefore concluded that copywriters did not do any Government duty; they were not controlled in the matters of their attendance, working hours, leave, pension and output of work and they were not paid from the Government coffers. In consequence, the Court held that there was no master-servant relationship between the Government and them. Applying the above principles to the case on hand, the appellant/writ petitioner demonstrably stands on a different footing. He was appointed after due selection on a consolidated monthly salary by the fourth respondent Government college and his functioning and teaching were completely controlled by it. Further, his very appointment by contract was as per the relevant rules, the Andhra Pradesh State and Subordinate Service Rules, 1996 (for brevity, ‘the Rules of 1996’). The Rules of 1996 were framed under the proviso to Article 309 of the Constitution and apply to the State and subordinate Services and also to the holders of posts, appointed by contract or an agreement subsisting between such holders and the State Government, except to the extent otherwise expressly provided [Rule 1(c)]. ‘Direct recruitment’ is defined under Rule 2(15) as under: “Direct Recruitment:- A candidate is said to be recruited direct to a post, class or category in a service, in case his first appointment thereto is made otherwise than by the following methods:- (i) by promotion from a lower post, category or class in that service or from a lower grade of any such post, category or class, or (ii) by transfer from any other class of that service, or (iii) by appointment by transfer from any other service, or (iv) by re-employment of a person in case he had retired from service of Government prior to such appointment, or (v) by appointment by agreement or contract.” Rule 4 deals with method of appointment, and to the extent relevant, reads thus: “4. Method of Appointment:- (a) Appointment to any service, class or category shall be by one or more of the methods indicated below as may be specified in the Special Rules applicable to the relevant post:- 1. Direct recruitment 2. Recruitment/Appointment by transfer 3. Promotion or 4. Contract/Agreement/Re-employment ………” It is therefore clear that appointment by agreement or contract would not qualify as direct recruitment but is one of the methods of appointment under Rule 4. Rule 9 deals with appointment by agreement or contract. “9. Appointment by Agreement or Contract:- (a) (i) Notwithstanding anything contained in these rules or special rules it shall be open to the State Government to make appointment to any post in a service, class or category, otherwise than in accordance with these rules or special rules and to provide by agreement or contract with the person(s) so appointed, for any of the matters in respect of which, in the opinion of the State Government, special provisions are required to be made and to the extent to which such provisions are made in the agreement or contract, nothing in these rules or the special rules shall apply to any person so appointed in respect of any matter for which provision is made in the agreement or contract: Provided that in every agreement or contract made in exercise of the powers conferred by these rules, it shall further be provided that in respect of any matter in which no provision has been made in the agreement or contract, provisions of these rules or special rules relatable to the post shall apply. (ii) The agreement or contract may inter alia include provisions in respect of conditions of service, pay and allowances, discipline, contract period of appointment, notice period for termination of appointment by either party and other relevant matters. (iii) The Government may, by order, prescribe the form of such agreement or contract. (b) A person appointed under sub-rule (a) shall not be regarded as a member of the service, in which the post to which he is appointed, is included and shall not be entitled by reason only of such appointment, to any preferential right to any other appointment in that or in any other service.” Rule 9(b) makes it clear that a person appointed by agreement or contract would not be a member of the service in which the post to which he is appointed is included and would therefore not be entitled, by reason of his appointment, to any preferential right to any other appointment in that or in any other service. However, as these appointments are permitted under Rule 4, such appointees would consequently form a separate category by themselves, but would not be part of a service under the State though the posts to which they were appointed may find inclusion in such service. Article 323A in Part XIVA of the Constitution deals with Administrative Tribunals and empowers the Parliament, by law, to provide for the adjudication or trial of disputes and complaints pertaining to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State, amongst others, by Administrative Tribunals. Article 323A speaks of public services and posts in connection with the affairs of the Union or a State and the wide latitude afforded by these phrases cannot be whittled down to exclude those who are per se holding posts in connection with the affairs of the Union or a State or are in public services. As pointed out in CHIEF JUSTICE OF ANDHRA PRADESH v. L.V.A. DIXITULU[11], the primary principle of interpretation is that a constitutional or statutory provision should be construed “according to the intent of they that made it” (Coke). … where two alternative constructions are possible, the Court must choose the one which will be in accordance with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living, integrated organism having a soul and consciousness of its own. The Court is expected to and it should interpret the terms