State Of West Bengal & Anr vs West Bengal Regn.Copy Writers Assn.& ...

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 3 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 4 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 5 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.

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.

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 10 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 11 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 12 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.

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 14 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.

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 31 grant of license and that their service conditions were almost alike to the LDCs.

Copywriter shall be allowed to sit in the officer precincts. (2) He shall work under the control and supervision of the Registering Officer.

(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.

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.

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.

47. The conclusion of all the above discussion is as under:

vi) The Copywriters are not paid from the Government coffers.

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.

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.