V.S. Deshpande, J.
(1) The question of law in this and the connected Letters Patent Appeal No. 28 ol' 1969 is whether the services of the common Respondent No. 1 Dr. (Mrs) Savitri Aggarwal could be validly tenanted from the post of Medical Superintendent, Victoria Zanana Hospital by the Central Government (hereinafter called the Government) alone, (appellant herein) as held by the learned Single Judge in the order appealed against or whether they could be terminated by t-he Municipal Corporation of Delhi (hereinafter called the Corporation) appellant in L.P.A. 28 of 1969. as contended by both the appellants.
(2) The answer to this question is plainly in favor of the former alternative and the only difficulty in giving it has arisen from an unfortunate divorce of law from fact and a conflict between status and contract. Let us first look at the legal provisions relating to the post and the status of the incumbent theirof. The Victoria Zanana Hospital is managed by the Delhi Municipal Corporation. The appointments to the posts under the Corporation are regulated by the provisions of Chapter Vi of the Delhi Municipal Corporation Act. 1957. Under section 90 of the said Act the Standing Committee has to prepare Two schedules of posts setting forth the designations of municipal officers and other municipal employees who should be maintained permanently in the service of the Corporation indicating therein the salaries, fees and allowances which are proposed to be paid to such officers and other employees. In the first schedule arc included posts with a minimum salary of not less than Rs. 350.00 per month. The Corporation has to sanction the schedule of posts and it is only thereafter that appointments to the said posts could be made by the Corporation lender section 92 of the Act. The post of Medical Superintendent. Victoria Zanana Hospital is a permanent one and the appointment of the Medical Superintendent thereto would, thereforee, have been made by the Corporation after the inclusion of the post in the first schedule- and the sanction of the first schedule and the post by the Corporation, In 1963, however, the Central Government formed Central Health Service by promulgating the Central Health Service Rules, 1963- G.S.R. 787 dated 1-5-1963-under the proviso to Article 309 of the Constitution. The duty posts included in the Service were enumerated and classified in the First Schedule to the Rules. Part A. of the First Schedule enumerated the posts under the Central Government proper while Part B of the Schedule enumerated the deputation posts which existed under bodies other than the Central Government proper. These posts were called 'deputation posts' because the officers of the Central Health Service would be deputed under authorities other than the Central Government to work in these deputation posts in which they would work under these authorities and would be paid by them. As contrasted with the officers of Central Health Service working in the duty posts included in Part A of the First Schedule, the officers occupying the deputation posts in Pari B thereof would not be working directly under the Government. Several posts in hospitals managed by the Corporation find place in Part U of the First Schedule including the post of Medical Superintendent. Victoria Zenana Hospital which is in the ji.inior scale category of Rs. 425-950 per month. Some other posts of the Corporation were included in the senior scale category C of Rs. 675-1300 per month in Part B of the First Schedule. The posts included both in categories C and D were Class I posts. Had these deputation posts not been included in the Central Health Service cadre then the officers of the C-.;iitral Health Service would have to be sent to man these posts on the ordinary deputation terms such as payment of deputation allowance for working on foreign, service. The initiative to borrow the Central Health Service officers would then have been with the Corporation. By inclusion of these posts in the Central Health Service cadre, however. the posts themselves became deputation posts to be manned exclusively by the officers of the Central Health Service. The Central Health Service is one of the Central Civil Services and as such governed by the Central Civil Services (Classification, Control & Appeal) Rules, 1957 and 1965 [hereinafter called the Ccs (CCA) Rules of 1957 and 1965 respectively. According to rule 10 of the Ccs (CCA) Rules of 1957 and rule 8 of the Ccs (CCA) Rules of 1965, all appointments to Central Civil Services, Class I, and Central Civil posts, Class I, shall be made by the President. The Second Schedule to the Central Health Service Rules, 1963 required direct recruitment to I he posts in the Central Health Service cadre to be made through the Union Public Service Commission.
(3) With the inclusion of the post of the Medical Superintendent, Victoria Zanana Hospital and many other posts of the Corporation in the Central Health Service cadre, these posts were taken out of the First Schedule of posts under the Corporation sanctioned by the Corporation under section 90 of the Corporation Act. Consequently the Corporation ceased to have any power to make the appointment of Medical Superintendent, Victoria Zanana Hospital under section 92 as the power there under is limited to the posts included in the First Schedule and sanctioned by the Corporation. The power to make the appointment vested in the President since the promulgation of the Central Health Service Rules, 1963. The Central Health Service and the posts included therein were 'service' and 'posts in connection with the affairs of the Union' within the meaning of the proviso to Article 309 of the Constitution. The members of the Service and the incumbents of the posts included in it would, thereforee, be 'members of a Civil Service of the Union' within the meaning of Articles 310 and 311 of the Constitution. Under section 16 of the General Clauses Act. 1897, the authority who has power to make an appointment is presumed also to have the power to dismiss any person so appointed. According to the legal position stated above, thereforee, the President alone had the power to appoint Dr. (Mrs) Savitri Aggarwal to the post of Medical Superintendent, Victoria Zanana Hospital and to terminate her services from that post.
(4) How is it then that any doubt could have arisen as to the power of the President to appoint Dr. Aggarwal to this post and to terminate her services from it? Initially there was no doubt at all. Dr. Naidu. the predecessor-in-office of Dr. Aggarwal had been appointed by the President to this very post. When the post became vacant the Government itself took the initiative to fill it obviously because it was a post in the Central Health Service cadre. The standard typed form of 'Requisition for the recruitment of candidates for appointment to Category-of the Central Health Service' was sent to the Corporation by the Government by letter No. F. 12 (11)-8/63-CHS dated 6-12-1963. The Corporation returned the requisition duly filled in to the Government on 18-1-1964 observing that the 'remaining columns may be filled in by you in accordance with the procedure laid down in the Central Health Scheme Rules'. In this requisition column 2 was 'Class and service to which the post belongs', '[see rule 14 of the Ccs (CCA) Rules]'. The answer to column 2 was 'Central Health Service' Column Ii was filled as follows:-
'ELIGIBLE for promotion to higher categories in the Chs in accordance with Chs Rules, 1963 when the officer selected is appointed to the Chs cadre'.
The selection referred to was by the Union Public Service Commission and the appointment was to be by the Government. Against column 21 it was stated that 'when the officer selected is appointed to the Chs cadre, the terms and conditions of the relevant category of the Service will be applicable to him/her'. As the requisition itself was for recruitment to the Central Health Service, columns 11 and 21 showed that the selection and appointment was to a post in the Central Health Service itself. At that stage it could not be the intention that the selection and appointment was to some other Service and thereafter the officer was to be appointed to the Central Health Service. ^ The 'post of Medical Superintendent, Victoria Zanana Hospital was Tactually advertised by the Union Public Service Commission for recruitment on 29-2-1964. On 20-3-1964 the Corporation wrote to the Government that the pay-scale of the post was revised from Rs. 570-950 (this itself seems to have been revised from the original scale of Rs. 425-950) to Rs- 700-1250 plus rent free accommodation and Non-practicing Allowance @ 25/o of pay. it was further requested that the Government should either recommend the name of a suitable candidate for appointment to the post in the revised scale or else permit the Corporation to make an ad-hoc appointment till such time as the nominee of the Union Public Service Commission is available. The Corporation did not think that the enhancement of the pay-scale in any way affected the legal position that the post continued to be in the Central Health Service cadre. On 4-4-1964 the Government wrote to the Union Public Service Commission that a new advertisement should be issued showing the revised pay of the post. The Government also did not till then think that the post had gone out of the Central Health Service cadre because of enhancement of the pay-scale.
(5) On 7-5-1964 the Government sent to the Union Public Service Commission a new requisition for the recruitment to the post. For the first time in this requisition and in the forwarding letter the Govern- ment substituted the words 'Delhi Municipal Corporation Service' in place of the words 'Central Health Service' in column 2. In column I (b) it was stated that (the post) 'will be included in category C oF the C.H.S.' Excepting these two changes the rest of the requisition remains the same as before including the reference to Ccs (CCA) ' Rules in column 2 and also to Class I therein. The Ccs (CCA.) Rules and the description of the post as Class I were applicable only if the post was in the Central Health Service cadre and not if it was under the Corporation. Similarly, there was no such Service as 'Delhi Municipal Corporation Service.' In column 6 reference was made to Central Civil Services (Temporary Service) Rules. 1949. In column 7 (b) it was stated that the place of posting was 'lord the present, Delhi, but liable to be posted any where in India'. In coniums Ii and 21 the references to the Central Health Service continued as before. No Explanationn is found on record why Shri K. Satyanarayana. Under Secretary, Ministry of Health, changed the nature of the post iii the new requisition from 'Central Health Service' to 'Delhi Municipal Corporation Service'. The only reason subsequently given in the counter-affidavit filed by Shri R.N. Sinha (not by Shri K.Satyanarayana) Under Secretary, Ministry of Health, in paragraph 2.02 is as follows:-
The post of Medical Superintendent, Victoria Zanana Hospital with this scale of pay (Rs. 700-1250) was not the existing post under category 'D' of the Central Health Service, though it was possible that the same would have been included in Category C if so decided at a later stage'.
It was thus only an opinion of Shri R.N. Sinha, an Under Secretary in the Ministry of Health, following perhaps the same opinion formed by Shri K. Satyanarayana on 7-5-1964 that in view of the revision of the pay-scale the recruitment to the post of the Medical Superintendent. Victoria Zanana Hospital was not to the existing post in category of the Central Health Service. This opinion was clearly wrong There was only one post of Medical Superintendent. Victoria Zanna Hospital. This post continued in the Central Health Service cadre. According to rule 6 of the Central Health Service Rules a post already in the Service could be excluded there from or a new post could be included in the Service by the Central Government in Consultation with the Union Public Service Commission by an appropriate amendment in the Schedule to the Rules. As this was not done. the post continued to be in the Central Health Service. If so. to what post was the recruitment being made? According to the new requisition sent by the Government to the Union Public Service Commission, the recruitment was to a post in the Delhi Municipal Corporation Service. But in the actual advertisement dated 28-5-1964 published by the Union Public Service Commission, the words 'Delhi Municipal Corporation Service' arc not to be found. No Service at ail is mentioned, It is, however, mentioned that the post 'will be included in category of the Central Health Service'. It is. however, said that in the 'information for candidates' supplied by the Union Public Service Commission to the applicants for the post. the words 'Delhi Municipal Coporation Service Class I' are mentioned though there was neither Delhi Municipal Corporation Service nor any Class I Service under the Corporation at all.
(6) As the post of Medical Superintendent, Victoria Zanana Hospital had been taken out of the First Schedule prepared under section 90 of the Delhi Municipal Corporation Act, 1957 when the post was ceded to the Central Health Service from 1963 onwards, the Corporation also had no authority to make the appointment to the said post under section 92. It is no body's case that the recruitment was being made to a post which was neither in the Central Health Service nor in the First Schedule of posts sanctioned under section 90 of the Delhi Municipal Corporation Act. The post must, thereforee, be either in the former or in the latter. According to law and in fact it was in the fournier the absence of any amendment of the Central Health Service Rules. It was not in the latter in the absence of re-inclusion ol'the post in the First Schedule under section 90 of the Delhi Municipal Corporation Act.
(7) If the Government had really believed that the recruitment being made to a post which was included in the First Schedule under section 90 of the Delhi Municipal Corporation Act. then the Government would have absolutely no concern with the post. The Government would not have taken the initiative to till the post and would not have asked the Corporation for information and would not have requested the Union Public Service Commission to make the selection and the Union Public Service Commission would not have sent the recommendation to the Government. The recommendation would not have been accepted by the Government as was done. The Government would have simply informed the Corporation that as the post was not in the Central Health Service, the recruitment to it could be made by the Corporation and the Government had nothing to do with the recruitment. There is absolutely nothing on record to show that at that time the Government associated itself with the recruitment because the post was likely to be included in category C of Part B of the First Schedule to the Central Health Service Rules. This Explanationn is given turn the first time in the counter-affidavit by Shri R.N. Sinha, Under Secreatary. From the contemporary documents, on the other hand, it appears that the Government apparently thought that the post was not under the Corporation at all and this was why the Government got the recruitment made to it.
(8) The case of the petitioner as against that of the Government and the Corporation is supported by the Union Public Service Commission whose view of facts is entitled to great weight being independent and impartial, In two important letters dated 24-8-1964 and 7-1-1966 written by the Commission to the Ministry of Health it is asserted by the Commission that the recruitment to the post was conducted by the Commission at the instance of the Ministry of Health, the recommendation of the C'onimission was sent i.e the Ministry of Health who was the Controlling authority for the cadre of the Central .Health Service under the Central Health Service Rules, 1963 and during the interviews of the candidates by the Commission. Dr. Tewari and Lt. Col. R.R. Rao assisted the Commission as representing the Ministry and not the Corporation. This official version is preferable to the subsequent statement of of Col. Rao that he assisted the Commission as a representative of the Corporation. The Commission also requested the Ministry of Health (and not the Corporation) to send assessment reports on the work of Dr. Aggarwal for two years to the Commission and in case her probation was extended or services terminated to indicate the detailed reason thereforee. It was in keeping with this view that it did not appear proper to the Commission that the Corporation should decide to terminate the services of Dr. Aggarwal. Even the .Municipal Commissioner Shri K. L. Rathee was aware that the doctors in the Municipal hospitals and dispensaries were Central Government servants and when there was a strike of these doctors he expressed his inability to forestall it by saying that 'the Controlling authority is the Health Ministry.'
(9) An Under Secretary in the Ministry of Health, however, thought that with the revised scale the post could not. be said to be the same post which was included in category D of Part B of the First Schedule to the Central Health Service Rules. What he failed to consider was that the pay of the post in category D could be changed only by the Government in accordance with rule 19 of the Fundamental Rules. It could not be changed by the Corporation as the Corporation purported to do. Of course, the Government had no objection to the raising of the pay-scale of the post by the Corporation. All that the Government, thereforee could do was to amend the pay-scale of the post with the result that the post would be transferred to the senior scale category C from the junior scale category D as was actually done by the Central Health Service (Amendment) Rules, 1966 G.S.R. J383 dated 9-9-1966. The amendment of the Schedule could have been made with retrospective effect. Alteranatively, the Government could have taken the stand that the pay-scale of the post continued to be the junior scale till the amendment though the Corporation was free to give a higher pay on its own responsibility till the Government amended the pay scale in the Schedule. But the Government could not have legally taken the stand that the post to which the recruitment was being made was not the same post which was already included in the Central Health Service. For, it is admitted by both the parties that the post of Medical Superintendent, Victoria Zanana Hospital is only one post. If so, the recruitment could be made only to that post. If that post was never legally taken out of the Central Health Service, the recruitment was being made to the post which was in the Central Health Service.
(10) Because of the wrong opinion formed by the Under Secretary. Ministry of Health, Dr. (Mrs) Savitri Aggarwal who was selected and recommended for appointment by the Union Public Service Commission to the Government was actually appointed not by the Government but by the Corporation. On 13-11-1964 the Corporation wrote to Dr. Aggarwal that her appointment had been approved by the Corporation and that an offer was being made to her on the conditions stated in the letter of that date. If the said terms and conditions were acceptable then she was requested to report for duty to the Municipal Health Officer.
(11) Shri Tarkunde, learned counsel for the appellant Union of India, contended that the contract of service was between Dr. Aggarwal and the Corporation. For, Dr. Aggarwal had applied to a post which was not stated to be in the Central Health Service though it was stated that it would be included in category C of the said Service. But at the time of the application it was not said to be in the Central Health Service. The Government did not appoint her. There was, thereforee, no contract between her and the Government, According to the contract of service, thereforee, it is only the Corporation who had the power to terminate her services. There is thus clearly a divergence between what ought to have been done according to the correct legal position and what was actually done on a wrong view. The question is which is to prevail, namely, the law or the fact. The answer is that both the Government and the Corporation are creatures of the law. They could not act outside the law. The Corporation had no authority under section 92 of the Delhi Municipal Corporation Act to make the appointment of Dr. Aggarwal inasmuch as the post of Medical Superintendent, Victoria Zanana Hospital was not included in the First Schedule of the posts under the Corporation sanctioned under section 90 of the said Act. The so-called contract between Dr. Aggarwal and the Corporation was thus contrary to the express provisions of sections 90 and 92 of the said Act. On the other hand. Dr. Aggarwal actually joined the post and served in it. As there was no such post outside the Central Health Service she must be said to have joined the post ill the Central Health Service and served in it. If the authority to appoint her vested in the President then the mere plea of the Government that the authority vested in the Coporation could not change the legal position. The appointment of Dr. Aggarwal is not challenged either by the Government or by the Corporation. All the parties proceed on the assumption that the appointment was actually made and no body is trying to invalidate the appointment. But the point of dispute arose when on 22-11-1965 the Corporation passed a resolution terminating the services of Dr. Aggarwal and on 12-13-1965 the Commissioner informed Dr. Aggarwal that her services had been terminated and that she should report to the Ministry of Health for further posting. The Commissioner also apparently thought that Dr. Aggarwal was an officer of the Government occupying a deputation post under the Corporation and that she should go back to the Government after ceasing to occupy the deputation post. The Government also considered Dr. Aggarwal as being in the Central Health Service when on 14-7-1965 she was given the opportunity to opt for the revised scale in the Central Health Service and on 6-9-1965 it extended time to her to make the option. Dr. Aggarwal disputed the authority of the Corporation to terminate her services and filed a writ petition in this Court to have the termination quashed. The learned Single Judge accepted her contention that her services could have been terminated only by the Central Government and not by the Corporation and quashed the order of her termination. The decision of the learned Single Judge is assailed in this appeal on the ground that the power to terminate Dr. Aggarwal's services was with the Corporation and not with the Government because:-
(1) she was appointed by the Corporation, (2) she served under the Corporation, and (3) her salary was paid by the Corporation.
The Corporation would have had the power to terminate the services of Dr. Aggarwal under section 16 of the General Clauses Act (i) if the power to make the appointment to the post of Medical Superintendent, Victoria Zanana Hospital had been conferred by the Delhi Municipal Corporation Act, 1957 on the Corporation, and (ii) if Dr. Aggarwal had been appointed either by the Corporation or any other authority in exercise of that power. As the post was not included in the First Schedule sanctioned under section 90 of the said Act. the power of appointment had not been conferred on the Corporation by section 92 thereof. The Corporation had not appointed Dr. Aggarwal 'In exercise of that power'. Section 16 of the General Clauses Act thus does not apply and does not confer the power of termination of the services of Dr. Aggarwal on the Corporation. In the absence of any power with the Corporation to appoint Dr. Aggarwal, there could be no valid contract between her and the Corporation. The Corporation could not, thereforee, claim to exercise the power to terminate her services under any contract of service. The Corporation being a creature of Jaw, no contract of service between it and Dr. Aggarwal could exist outside the power of appointment which could be derived only from sections 90 and 92.
(12) Even if it is assumed for the sake of argument that a de facto, though not a de jure, contract of service could exist between the Corporation and Dr. Aggarwal, the post to which the appointment was made was not under the Corporation but was under the Government. To determine whether a contract of service exists between two parties and whether they are related as master and servant, the following criteria are generally used:-
(a) Whether the servant was appointed by the master., (b) Whether he received his pay from the master, (c) Whether the master controlled the manner of the servant's work,
and (d) Whether the master had the right to dismiss the servant. In the present case. the power to appoint and dismiss was with the Government while the payment of the salary and the control of the work were done by the Corporation. As the criteria were equally divided in favor of these two authorities, they by themselves were not decisive. The question has to be decided, thereforee, according to the law and the legal status of the incumbent of the post and not merely according to the facts and contract. By law the power of appointment and termination vested only in the President. The incumbent of the post became possessed of a legal status of being a member of the Central Health Service holding a post under the Government. No authority could be claimed by the Corporation to terminate the services of a person holding a post under the Government. It is clear, thereforee. that Dr. Aggarwal's services could be terminated only by the Government and not by the Corporation inasmuch as she held a post under the Government, the appointment to and termination from which had to be made by the President.
(13) Even if it is assumed for the sake of argument that there was no relationship of master and servant between the Government and Dr. Aggarwal, yet this assumption itself would not mean that the right of appointment and dismissal would not be in the Government. The right to make the appointment and terminate the services of an incumbent of a post included in the Central Health Service is in the President irrespective of the question whether the holder of the post is regarded as a Government servant or not
(14) We conclude, thereforee, that (1) the Respondent No. 1 Dr. Aggarwal Health Central Government servant being a member of the Central Health Service and a holder of a post included in it whose services could be terminated only by the President, and alternatively (2) even if it is assumed that Dr. Aggarwal was not a Central Government servant still she held a post in the Central Health Service under the Government and her services could be terminated only by the President In neither case had the Corporation any right to terminate her services.
(15) For the above reasons, the judgment of the learned Single Judge is affirmed and the appeals both by the Government and the Corporation (Letters Patent Appeals 23 and 28 of 1969) are dismissed with costs