1. Petitioner, Ranchhodbhai Desaibhai Patel, prays for an order quashing an order dated 17 January, 1962 passed by the Collector, Panchmahals, and for an order of his reinstatement to the post of the secretary, Boru Group Panchayat, Taluka Kalol, on the same terms and conditions as governed his service prior to the aforesaid order dated 17 January, 1962. Petitioner also prays for an order directing respondents to pay him his salary from the date of his suspension till the date of his reinstatement. Respondent 1 is the Collector of Panchmahals and respondent 2 is the State of Gujarat. The petition is under Arts. 226 and 227 of the Constitution of India.
2. Unfortunately, the facts which have been stated in the petition and ink the affidavit-in-reply have not been correctly stated. Even though some of the facts are taken from the documents which have been produced in the case, the facts as stated in the petition and the affidavit-in-reply are not borne out by those documents on the record. Even the dates of those documents and the exhibits at which they are produced have not been correctly stated in the petition. However, at the time of the argument, learned counsel on both sides were agreed as to the correct facts on the basis of which the present petition requires to be decided, and we propose first to state those facts. We are concerned in the present petition with the Boru Group Panchayat. That panchayat was a corporate body, having perpetual succession, a common seal and a right to acquire and hold property. The panchayat was, at the relevant time, governed by the Bombay Village Panchayat Act, 1933 (hereafter called Act of 1933). S. 33 of the Act of 1933, the panchayat was required to appoint part-time secretary It appears from the resolution dated 21 September, 1956 that petitioner was appointed part-time secretary with effect from 1 July, 1956. It is not clear from the record as to who appointed petitioner to that post. But that appointment was sanctioned by the panchayat by its aforesaid resolution dated 21 September, 1956. By that resolution, the salary of petitioner was fixed at Rs. 15, and it was further resolved that he should be sent for training for the post of secretary. On 17 March, 1959, the panchayat passed another resolution, by which in appointed petitioner as the permanent secretary with effect from 1 July, 1958 and further resolved to give petitioner increments as per the Act of 1933. It is common ground that petitioner was, during the tenure of his office as secretary, governed by the Bombay Village Panchayats Secretaries (Conditions of Service) Rules, 1948, framed by the Government of Bombay under Clause (1) of Sub-section (1) of S. 108 of the Act of 1933. It is common ground that petitioner was at all relevant times subject to the conditions of service embodied in these rules. We shall have occasion to refer to these rules in detail at the proper time. It appears that, in the meantime, the Bombay Village Panchayats Act of 1958 (hereafter called Act of 1958) came to be passed on 29 January, 1959. However, that Act came into force on 1 June, 1959. Therefore, Sri Sompura does not dispute the fact that, on the date, on which the Act the of 1958 came into operation, the petitioner was the permanent secretary of the Boru Group Panchayat. That panchayat, after the coming into operation of the Act of 1958, retained its character as a body corporate with perpetual succession, a common seal and right to acquire and hold property. Section 60 of the Act of 1958 directs that there shall be a secretary for every panchayat or a group of panchayats. Sub-section (2) of S. 60 states that the secretary shall be appointed by the State Government or an officer or authority authorized by it in that behalf. That sub-section further states that the secretary shall be a whole-time Government servant and his salary and allowances shall not be a charge on the village fund. Sub-section (3) of S. 60 states that the qualifications, selection, appointment, powers, duties and conditions of service inter alia of such secretary shall be such as may be prescribed. Then comes Sub-section (4). According to that sub-section, every secretary in the employ of a panchayat on the date of the commencement of the Act of 1958 shall be deemed to have been appointed under S. 60 and shall, until other provision is made in accordance with the provision of the Act of 1958, receive the salaries and allowances and be subject to the conditions of service to which he was entitled or subject on the date of the commencement of the Act of 1958. Then there is a proviso according to which the State government is given the power, after giving a secretary deemed to have been appointed under Sub-section (4), a notice to discontinue his service if, in the opinion of the Government, he was not necessary or suitable to the requirements of the panchayat. The proviso further states that though this may be so, the secretary will be entitled to such leave, pension, provident fund, gratuity and other rights and privileges as he would have been entitled to take or receive on being invalided out of service if he had continued in the employ of the panchayat after the said date. The notice which the Government was empowered to give for discontinuance of service, was required to be given by the terms of the secretary's employment. However, before the Act of 1958 was enacted, a criminal prosecution was launched against petitioner on two allegations which came to be made against petitioner after an investigation was made in that regard by the Mamlatdar, Kalol, and the sub-auditor, Halol Kalol Jambughoda Division, after examining the books of account of the panchayat for the years 1958-59 and 1959-60. the first charge against petitioner was that, although he had not paid that amount, he had debited a sum of Rs. 425 on 1 October, 1958 in the account of the panchayat as having been paid by him to the sarpanch and that, he paid the aforesaid amount to the sarpanch only on 15 May, 1960 and that, he produced the voucher in connexion with that payment only on 31 May, 1960. The second charge against him was that he had debited the rent payable in regard to the officer of the panchayat as having been paid by him on 22 September, 1959, although he had not paid the same and that he produced the relevant voucher of that payment only on 31 May, 1960. Petitioner, however, was acquitted of those charges by the criminal Court. The acquittal was made on the ground of benefit of doubt. In the course of his judgment, the learned magistrate observed that petitioner was an unreliable person and that the conduct and movements of petitioner were such as might turn out to be dangerous for service in panchayat. This judgment was delivered on 15 May, 1961. Thereafter on 28 December, 1961, the Collector of Panchmahals wrote a letter to petitioner in which after reciting the aforesaid two charges and he observations made by the learned magistrate, he stated that the services of petitioner as the secretary could not be continued and intimated to petitioner that an order would be passed relieving him of his duties as the secretary after one month from the date of the receipt for the aforesaid notice. Both in the petition and in the affidavit-in-reply, it has been stated that, by the aforesaid letter, petitioner was called upon to show cause why he should not be removed from service. Learned counsel on both sides now admit that, in fact, this was not so. By the aforesaid letter, only an intimation was given to petitioner of the intention of the Collector that he would be relived of his duties after one month after the date of the receipt of the notice. This notice was received by petitioner on 8 January, 1962. However, before the expiry of one month, the Collector passed the impugned order on 17 January, 1962, discharging petitioner from his service as the secretary on account of the aforesaid misbehaviour, with effect from 8 February, 1962. This order was received by petitioner on 15 February, 1962. Aggrieved by this order, petitioner filed the present petition on 29 August, 1962. Petitioner has challenged the impugned order on two grounds. The first ground is that the impugned order was bad because he was not given a reasonable opportunity to show cause against the passing of the aforesaid order under Art. 311 of the Constitution of India. Secondly, he attacks it on the ground that no enquiry was made in regard to his alleged misconduct, as required by the rules governing the conduct, discipline etc., of Government servants. One U.C. Buch Under Secretary to the Government, Panchayats and Health Department, Ahmedabad, has filed an affidavit-in-reply. In that affidavit, the deponent has raised certain preliminary objections. On the merits, the deponent has stated that the impugned order was not an order of removal or dismissal, but that it was 'a pure and simple case of termination of services.' The deponent has also denied that petitioner was entitled to the protection of Art. 311 of the Constitution. According to the deponent, petitioner was not holding a civil post, nor was he a member of any service of the State. As regards the alleged violation of the rules governing the conduct, discipline, etc., of Government servants, the deponent has denied that any such breach was committed.
3. On the aforesaid pleadings, at the time of the hearing, Sri C. C. Patel, counsel for petitioner, at the time of arguments stated that it was not necessary for us to consider the question as to whether petitioner was or was not entitled to the protection of Art. 311. He contended that under rule 25 of the Bombay Village Panchayats Secretaries (Conditions of Service) Rules, 1948 (hereafter called the rules), applicable to him, petitioner was entitled to be given intimation in regard to such matters and to be given an opportunity to cross-examine witnesses against him and to be heard in person and that this rule having been violated, petitioner was entirely to an order for quashing the impugned order of the Collector as a matter of course. The arguments of Sri Patel were entirely addressed to us on this basis. For that purpose, what would have to be ascertained by this Court in the first instance would be whether the impugned order was one of removal or dismissal and even if this Court came to the conclusion that this order was of a character of one of the two kinds, whether on the pleadings petitioner was entitled to raise the question of the breach of that particular rule and as to what exactly the legal consequence of a breach of that rule would be. If petitioner were held not to be a servant of the State at the relevant time, then, the question would arise whether this Court had jurisdiction to give any relief to petitioner under its extraordinary jurisdiction in regard to a State servant, and even if it was so, the further question would arise as to whether the tenure of the post of petitioner was such that his services could not be terminated on the giving of a reasonable notice on the basis that there was only a contract of service between petitioner and the panchayat. Sri Sompura contends that, if petitioner were to be permitted to challenge the impugned order on the aforesaid new ground, then respondents will be considerably prejudiced inasmuch as they will be precluded from raising the points indicated above which otherwise they would have done if the impugned order had been challenged on the ground of the breach of rule 25. In addition to this, Sri Sompura says that the Collector is entitled to discontinue the services of petitioner under the proviso to Sub-section (4) of S. 60 of the Act of 1958 but that proviso has not been pleaded in the present case. But because there is no reference to rule 25 Sri Patel points out that under that proviso the power of discontinuance of services is vested only in the State Government and that proviso will be of no avail to the Collector. Sri Sompura contends that under S. 182 of the Act of 1958 the power of the State Government can be delegated to a subordinate authority and that, if rule 25 had been pleaded, respondents would have pleaded the proviso and would have also shown that the Collector had been empowered to exercise the power vested in the State Government under the aforesaid proviso. In our judgment, there is considerable force in the argument advanced by Sri Sompura. The affidavit-in-reply was filed as far back as 9 August, 1965. Now amendment was asked for in the petition to bring out that the impugned order was being challenged under the aforesaid rule or any of the rules. It is true that there is a vague ground, being ground 4, in which it has been dismissed that petitioner had been dismissed without any enquiry being held against him and thus the order deserves to be set aside. There is also a similar general ground 7 in which it is stated that the order of dismissal was without jurisdiction and bad in law. But, in our judgment, these vague grounds could have hardly given any idea to respondents that petitioner had in mind the aforesaid rule 25 or any of the other rules. Under the circumstances, in our judgment, the present petition should be considered only on the two aforesaid grounds on which the same is based, and if petitioner intends to challenge the impugned order on any of the other grounds, which he seeks now to raise in this Court, he may have recourse to such other proceedings as he may be advised in order to have those other points decided in the proper forum. Therefore, we propose to confine our attention only to the two specific grounds on which the petition has been based and on which the impugned order has been challenged by petitioner.
4. Now, before we consider the aforesaid two points, it will be better first to clear the grounds by determining the exact status and position which petitioner occupied in fact and in law as secretary of the village panchayat at the time when the impugned order was passed. In order to determine this question, in our judgment, it will be better to quote S. 60 of the Act of 1958 in full :
'60. (1) There shall be a secretary for every panchayat, or a group of panchayats, as the State Government may (having regard to the extent and population of the village and income of the panchayat), by a general or special order, determine.
(2) The secretary shall be appointed by the State Government or an officer or authority authorized by it in this behalf. The secretary shall be a whole-time Government servant and his salary and allowances shall not be a charge on the village fund.
(3) The qualifications, selection, appointment, training, powers, duties, transfer, remuneration and conditions of service (including disciplinary matters) of such secretary shall be such as may be prescribed.
(4) Every secretary in the employ of a panchayat or two or more panchayats whether part-time or otherwise on the date of the commencement of this Act shall be deemed to have been appointed under this Act and shall, until other provision is made in accordance with the provisions of this Act, receive the salaries and allowances and be subject to the conditions of service to which he was entitled or subject on such date :
Provided that it shall be competent to the State Government, after giving a secretary such notice as is required to be given by the terms of his employment, to discontinue his services if in the opinion of the Government he is not necessary or suitable to the requirements of the panchayat service; and every secretary whose services are to discontinued shall be entitled to such leave, pension provident fund, gratuity other rights and privileges as he would have been entitled to take or receive on being invalided out of service if he had continued in the employ of the panchayat or panchayats after the said date.'
5. Now, there cannot be any doubt whatsoever that petitioner is not a secretary appointed under Sub-section (2) of S. 60. This is not disputed by Sri Patel. Therefore, there is no doubt that petitioner cannot be regarded under that sub-section to be a whole-time Government servant. This is also not disputed by Sri Patel. Therefore, at the outset, we must make it clear that the point as to whether petitioner is or is not entitled to the protection under Art. 311 is not to be decided with reference to Sub-section (2) of S. 60. We are not considering in the present petition the status and position of a secretary appointed under Sub-section (2) of S. 60, and do not propose to decide as to whether such as secretary is or is not entitled to the protection of Art. 311. Sub-section (3) deals with the question of the qualifications, selection, appointment, and conditions of services of 'such secretary.' meaning thereby, a secretary appointed under Sub-section (2). The qualifications, etc., are to be such as may be prescribed by the State Government. It is common ground that at the relevant date no such qualifications were prescribed. But Sri Patel contends that the conjoint effect of the definitions of the words 'prescribed' and 'rules' is that the rules prescribed under the Act of 1933 would be applicable also to petitioner, the old secretary. The term 'prescribed' had been defined in S. 3, Sub-section (15), as prescribed by rules, and the term 'rules' has been defined in S. 3, Sub-section (16), as meaning the rules made 'or deemed to have been made under this Act.' Under S. 186, Sub-section (8), the rules in force immediately before the commencement of the Act of 1958, which will include the aforesaid rules, are to be deemed to have been framed under the Act of 1958 in so far as they are not inconsistent with the provisions of the Act of 1958. But we fail to understand as to how that would make applicable those old rules to the present petition, by virtue of the force of Sub-section (3). As we have already stated that Sub-section (3), deals only with the qualification, etc., of secretaries appointed under Sub-section (2) and, petitioner not having been appointed thereunder, it is quite clear that the aforesaid argument must be rejected.
6. But there is no doubt whatsoever that the provisions of Sub-section (4) of S. 60 do apply to petitioner. Under that sub-section, a fiction is created in the first instance. The fiction is that a secretary in the employment of a panchayat on the date of the commencement of the Act of 1958 shall be deemed to have been appointed under S. 60. Secondly, that Sub-section (4) states that such a secretary shall receive salary and allowances and be subject to the conditions of service to which he was entitled or subject on the date of the commencement of the Act of 1958. Therefore, there is no doubt whatsoever that, under this Sub-section (4), petitioner must be taken to have been appointed under Sub-section (2), that petitioner is entitled to receive salaries and allowances which he was entitled to receive on the date of the commencement of the Act of 1958 and he would still continue to be governed by the conditions of his service prior to he last-mentioned date. Now Sri Patel's argument is that, not only petitioner is deemed to have been appointed under Sub-section (2) as a secretary, but that he must also be taken to have become a Government servant within the meaning of that sub-section. In other words, the argument is that the fiction extends not only to the appointment of a secretary but also to his status. In our judgment, there is no warrant for this contention. In the first instance, there is no doubt whatsoever that the fiction is confined to the question of appointment and that question is dealt with only by the first sentence in Sub-section (2). If the intention of the legislature was that the fiction was also to be extended to create for the secretary the status of a Government servant, then, in our judgment, the legislature would have expressed such an intention in express words. There is one very good ground which shows that such could not have been the intention of the legislature. Sub-section (4) applies not only to the case of a whole-time secretary, but also to a part-time secretary. It would be strange if, by the aforesaid fiction, the legislature intended to create a part-time secretary into a whole-time Government servant. It is quite clear that Sub-section (4) has been enacted as a temporary measure and its intention is to provide for the continuity of secretarial administration in the case of old panchayats. It is quite clear that the State Government might not have been able to appoint immediately secretaries for old panchayat the existence of which was continued under the Act of 1958. Therefore, in order to avoid a hiatus, the legislature has enacted the provisions contained in Sub-section (4). That it is intended to be a temporary measure is further shown by the fact that the receipt of salaries and allowances the application of the condition of service of such secretaries has been made contingent upon the making of the other provisions under the Act. In addition to this, it is also important to bear in mind that a power is given to the State Government to discontinue the services of the secretary deemed to have been appointed under Sub-section (4). This power is conferred on the State Government by the proviso. Therefore, reading Sub-section (4) and the whole, not merely the first part thereof but also the second part of Sub-section (4) and the proviso together with the whole of Sub-section (2), in our judgment, the only fiction which is created by the legislature, is the fiction of appointment of the secretary under S. 60 and by that fiction the secretary deemed to have been so appointed is not made a whole-time Government servant. It will be noticed that whereas in Sub-section (2) it is clearly stated that the salaries and allowances of the secretary shall not be a charge on the village fund, under Sub-section (4), it is not specifically stated that the salaries and allowances shall not be drawn from the village fund in spite of the fact that a specific reference is made to the receipt of such salaries and allowances. On the contrary, having regard to the fact that the salaries and allowances are directed to be received in accordance with the conditions of service of the secretary concerned, it is possible to take the view that the salaries and allowances were still a charge on the panchayat fund as appears from the provisions contained in S. 33 of the Act of 1933. Although, in that section or in other part of the Act of 1933, it is not specifically stated that the salaries and allowances are payable from the panchayat fund, from S. 33, Sub-section (2), it can be inferred that the salaries and allowances are payable by the panchayat.
7. For the aforesaid reasons, in our judgment, the effect of S. 60 is that the secretary retains the same status as he possessed before the Act of 1958 was enacted and he was subject to the same conditions of service to which he was subject on the latter date. The only change which is made after the enactment of the Act of 1958 is that, whereas formerly the secretary was appointed by the panchayat, after coming into force of the Act of 1958, he is deemed to have been appointed by the State Government or an officer or authority authorized by it in that behalf. The second change which takes place is that the services of the secretary could be terminated by the State Government by giving such notice 'as is required to be given by the terms of his (secretary's) employment.'
8. Therefore, in our judgment, in order to decide the question whether petitioner is or is not entitled to the protection of Art. 311, we will have to consider the position which petitioner occupied at the date of the coming into force of the Act of 1958 and the effect which the aforesaid changes made by Sub-section (4) of S. 60 had on the status of petitioner. Now, the question as to the status of petitioner prior to the coming into force of the 1958 Act is to be determined with reference to the Act of 1933 and the rules aforesaid, i.e., the Bombay Village Panchayat Secretaries (Conditions of Service) Rules, 1948. Under Sub-section (1 A B) of S. 33, the panchayat was to appoint a secretary. Under rule 18, the secretary was required to devote his whole-time and attention to the duties of his office and might not, without the previous sanction of the panchayat, engage in any trade or undertake any employment while on duty or leave, other than the duties of his office. Under rule 19, he was required to reside at the place of his appointment. Under S. 20, he was required to execute a bond in favour of the panchayat. Under rule 10, the secretary was required to perform all the administrative and other duties which might be entrusted to him by the panchayat. Under rule 11, he was bound to carry out all the executive orders of the panchayat. Under rule 12, he was made responsible for the supervision, direction and control of the servants of the panchayat. Under rule 13, he was required, except in cases of markets and slaughter-houses, to issue all licences and permits which might be issued under the provisions of the Act of 1933. Under rule 14, he was made responsible for the prompt recovery of panchayat taxes. Under rule 15, he was required to take prompt measures to remove any irregularity pointed out by the auditor or by the district local board or the Collector and, under rule 16, he was required to report promptly to the sarpanch all cases of fraud, embezzlement, theft or loss of money or property of the panchayat. The only duty which the secretary was assigned other than the duties of the panchayat is, under the latter part of rule 10, which enjoins on the secretary to perform
'such other duties as the State Government may direct him to perform in connexion with the rural welfare.'
9. In our judgment, the aforesaid provisions in the Act of 1933 and in the rules do not leave any doubt that petitioner was appointed by the panchayat and was entrusted with the responsibility to exercise the powers or to carry out the duties, statutory or otherwise, imposed upon the panchayat. His remuneration was to be paid from out of the panchayat funds. He was made responsible to the panchayat for the execution of all its duties. It is true that some of the officers of the Government have been entrusted with the same duties or the functions assigned to the secretary. But, on the aforesaid provisions of the rules, there cannot be any dispute that petitioner was in the employment of the panchayat and was carrying out the functions entrusted by law to the panchayat. The only difference which sub-section (4) of S. 60 of the Act of 1958 made to the status of petitioner was that, whereas in fact he was appointed by the panchayat, after the coming into operation of the Act of 1958 by a fiction, he was deemed to have been appointed by the Government. However, though this was so, petitioner was still required to carry out all the aforesaid duties and was required to exercise all the aforesaid powers.
10. As regards the disciplinary provisions contained in the rules, they were as follows : Rule 24 provided for the kinds of penalties which could be inflicted on the secretary. Amongst other things, the penalties which could be inflicted were the penalties of removal and dismissal. Rule 25 provided for the procedure which was required to be followed before imposing the penalty of removal or dismissal. Now, there cannot be any doubt whatsoever that the aforesaid penalties could be inflicted on petitioner by the panchayat itself. Having regard to the fact that Sub-section (4) enacts that, even after the coming into operation of the Act of 1958, petitioner will be subject to the same conditions of service as before, in our judgment, disciplinary action could still be taken by the panchayat against petitioner. In any case, there is nothing in Sub-section (4) which would justify the view that the State Government should be deemed to have been sub-stituted for the panchayat in regard to the powers conferred on the panchayat for taking the aforesaid disciplinary action. Under the circumstances, in our judgment, even after the coming into operation of the Act of 1958, petitioner was still subject to the disciplinary jurisdiction of the panchayat.
11. Now, the question as to whether petitioner is or is not entitled to the protection of Art. 311 of the Constitution must be decided in the light of the aforesaid conclusions of facts which we have reached. At the relevant time, Clause (2) of Art. 311 read as follows :
'No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.'
12. The expression 'such person' has reference to the person mentioned in Clause (1) of Art. 311 who is described as follows :
'No person who is a member of the 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.'
13. Therefore, in order that a person may be entitled to the protection of Art. 311, Clause (2), the person must belong to one of the two categories of persons. He must be either a member of the designated civil service or he must hold a civil post under the Union or a State. The civil service may be either of the Union or of a State or it may be an All India Service. We are not concerned in the present case with the category of persons belonging to one of the above services. It is not the case of petitioner that he was a member of a civil service of the Union or an All India Service or a civil service of the State. Therefore, it is not necessary for us to consider the question as to what exactly is the connotation of the expression 'a member of a civil service ...' Prima facie, the reference appears to be to several kinds of services which were in existence when the Constitution of India came into force, such as, the Indian Civil Service, the Central Service, the Indian Engineering Service, the Indian Medical Service, etc., and which or some of which were continued after the Constitution came into force. The second category is that of a person who 'holds a civil post under the Union or a State.' It is not the case of petitioner that he held a civil post under the Union. The contention of Sri Patel is that petitioner held a civil post under the State of Gujarat. Therefore, the question for consideration is whether, on the aforesaid facts and circumstances, petitioner did or did not hold a civil post under the State. Now, in order to satisfy this condition, it is necessary :
(1) that there should be a civil post,
(2) that that post must be held by the person concerned, and
(3) that the post must be under the State.
14. It is possible to argue that the expression 'under a State' qualifies the word 'holds'. But whether the expression 'under a State' qualifies the word 'holds' or qualifies the word 'post,' in our judgment, in a large majority of cases, it would not make any difference. In each case, the question for consideration would be, whether the post is one which is under the State or whether the holder of the post is a person who is under the State. Now, the expression 'civil post' appears to have been used in contradistinction to the expression 'military post.' If that is so, then, in that case, in order that the condition under Art. 311 may be satisfied, it is necessary that the post must be a civil post in contra-distinction to a military post. The Constitution-makers have not made distinction between a municipal or a panchayat post and a civil post. If a post is created for exercise of powers or performance of duties which are ordinarily exercisable or performable by the Government of a State, then, the post would be a civil post, even though the duties may actually be performable or the powers exercisable by a body other than the government of the State. However, from the expression used, it is quite clear that merely because a person occupies a civil post in the aforesaid sense, he would not have the protection of Art. 311. In order that he may have the protection of that article, it is further necessary that, as already stated, the post must be either held under the State or the post must be one which is under the State. We will assume in the present case that the functions which petitioner was charged with to perform as the secretary of the panchayat were the functions which one ordinarily associates with a civil post and that, therefore, one of the aforesaid ingredients for the application of Art. 311 is satisfied. The main question is whether petitioner held that post under or the post was under the panchayat or whether he held the post under or the post was under the State. Sri Sompura contends that, in order that a post may be under the panchayat or that the holder may hold the post under the panchayat, the main test is whether the person holding the post is discharging the functions of the State. In support of this argument, Sri Sompura relies upon the decision in State of Punjab and others v. Prem Prakash and others [A.I.R. 1957 Punj. 219]. That was the case of a person appointed by the Government under S. 4 of the East Punjab Local Authorities (Restriction of Functions) Act, to discharge the duties of the water-works department of a municipal committee. In that case, their lordships proceeded to answer the question by considering whether the person concerned was a municipal officer or a Government officer. They said that, prima facie, a municipal officer was a person whose duties and functions related exclusively to the local affairs of the municipality as distinguished from those that related to the State at large, or the general public, although exercised within defined limits. Then their lordships stated that the answer to the question whether a particular person was a municipal servant or a Government servant was determined by the functions which he performed and that, if he performed the functions relating to a municipal committee, he was a municipal officer and that if he performed the functions relating to the Government, he was a Government servant. The same question arose before the Patna High Court in Lachmi and others v. Military Secretary to the Governor of Bihar and another [A.I.R. 1956 Pat. 398]. The case related to the gardeners employed by the Military Secretary to the Governor of Bihar at the Raj Bhavan. Imam, J., rejected the contention of the gardeners that they were entitled to the protection of Art. 311 on the ground that they were not Government servants. It will be noticed that Imam J., equates the expression 'a member of a civil service of a State' with Government servant. It is not necessary for us to consider whether the two expressions are identical because, as already stated, we are not concerned with the first category of persons mentioned in Art. 311 Imam, J., however, did not consider the case of the gardeners under the second part of Art. 311, viz., 'holds a civil post under a State,' because, in his opinion, such a case was not pleaded by the gardeners. Das, C.J., however, considered their case under the latter head and the learned Judge laid down the test as follows at p. 402 :
'I think that the expression 'civil post under a State' means that the post is under the control of the State; that is, the State can abolish the post if it so desires, or the State can regulate the conditions subject to which the post is or will be held. The real test, therefore, is the immediate or ultimate control which is exercised by the State with regard to the post in question.'
15. It appears that the control test laid down by Das, C.J. has been accepted as a correct test in a number of decisions recorded thereafter. However, though one may accept the control test as one of the tests applicable for the determination of the question, it is doubtful whether the learned Judge is right in stating that the control test depends for its application on the question whether the State concerned can abolish the post if it so desires. In the case of a statutory civil post, this test may not be satisfied and still the post may be found to be under the control of the Government in the sense that the appointing authority is the Government, or that the post is one in regard to which immediate or ultimate control is exercised by the State. In State of Uttar Pradesh and another v. Audh Narain Sigh and another [A.I.R. 1965 S.C. 360], the same question arose for decision also. That was a case of tahsildars appointed in the cash department of the State of Uttar Pradesh with the approval of the District Collector. In determining the question as to whether tahsildars held civil posts under the State of Uttar Pradesh, their lordships applied the test of master and servant. The same test was applied in Raja Bahadur K. C. Deo Bhanj v. Raghunath Misra and others [A.I.R. 1959 S.C. 589] for interpreting the expression 'in the service of the Government' used in Sub-section (7) of S. 123 of the Representation of the Peoples Act, 1951. However, that case is not useful for the purpose of determining the question in hand for ore than one reason. In the first instance, the expression which their lordships were called upon to construe was the expression 'in the service of a Government,' and not 'hold civil post under a State.' It will be important to notice that the expression 'in the service of a Government' is also different from the expression used to designate the first category of persons, viz., the membership of the service of the Union or a State. mentioned in Art. 311.
16. There have been a number of cases on the question as to whether a panchayat or a municipal servant is or is not entitled to the protection of Art. 311. The case in R. Srinivasan v. President, District Board, Coimbatore [1958 - I L.L.J. 312] was the case of an employee in the service of a district board.
17. Rajagopalan, J., held that such a person was not entitled to the protection of Art. 311. He did this mainly on the ground that the employee was in the service of the local authority like a district board and was not a member of the civil service or did not hold a civil post under the Union or State. It is quite clear that the learned Judge applied the test of master and servant. In support of his aforesaid conclusion, the learned Judge quoted a number of pervious cases in Para. 12 of his judgment. Yuganadhara Rao (M.) v. Government of Andhra and another [1959 - II L.L.J. 267], was the case of an executive officer of the panchayat. Chandra Reddi, C.J., placing reliance upon the above Madras decision, held that the officer was not entitled to the protection of Art. 311. Similarly, in Roopsingh Devisingh v. Sanchalak Panchayat and Sewa Samaj, Madhya Pradesh, Indore, and another [A.I.R. 1962 M.P. 50], it was held that an employee in the service of a kendra panchayat was not a member of the civil service of the Union or in the civil service of a State nor was he a person who held the post under the Union or the State
18. In some of the aforesaid cases, some negative tests have also been laid down. For example, in some cases, it is stated that the fact that the appointing authority is the State Government is not of much consequence in determining the question whether a civil post is under the Government. In some other cases, it has been stated that the fact that a person receives his pay from a particular source is also not of much consequence. In some other cases, the aspect which is emphasized is that the local authority concerned is a body corporate having a perpetual succession and a common seal and that the employee is employed for the purpose of carrying out the duties assigned to the local authority. In such cases, it has been held that the fact that such a person is to be appointed by the Government, or that the Government, or that the Government had the power of dismissing him or of requiring his dismissal, or has the power of direction and control in regard to his work, is not a test which should affect the question whether he held a civil post under a State.
19. A perusal of the aforesaid authorities would show that, if any or all the aforesaid tests were to be applied rigidly in a given set of circumstances, then, the results cannot be uniform. Inn our judgment, it is unwise to lay down any sole or universal test which would be applicable to all cases. It is unwise to say that the test of functions, or the test of control, or the test of master and servant, is more important than the other, or that the tests of appointment or power of dismissal or payment of wages, are of no importance at all. In our judgment, the observations made by P. B. Mukharji, J., in Barada Kanta Adhikary v. State of West Bengal and others [1963 - I L.L.J. 149], are weighty and deserve to be accepted. Mukharji, J., observed as follows at p. 152 :
'There is no decisive test for determining whether a person holds a civil post under the State or not. For a civil post under the State within the meaning of Art. 311 of the Constitution though it is always relevant and almost sometimes crucial to see the nature of the control which the State exercises in the particular case, still even where it exists such 'control' may not be decisive of the question. A certain amount of flexible interpretation guided by the facts of each case is a necessity in the present context of the Governmental administration. The orthodox limits and ideas of a civil service or a civil post under the State may not today exhaust all such categories under Art. 311(1) of the Constitution. At the Same time the other extreme also will be equally inappropriate if it includes all kinds of miscellaneous and hybrid institutions, mostly private or quasi-private with aids or controls or 'sponsoring' financial or otherwise from the Government within 'civil service' or 'a civil post under the State.' Between these two extremes the Courts in the present state of law should have to find in each case on its own merits whether a particular service in a particular case is a civil service or civil post under the State within the meaning of Art. 311(1) of the Constitution.'
20. In our judgment, it would be the duty of the Judge in each case, having regard to all the factors in a given case to ascertain as to whether the person concerned holds a civil post under the State or not. In determining that particular question, the point which the Judge will have to decide on the facts of each case would be whether, in the circumstances of the case, there is relationship of master and servant, or whether the post is under the control of the state, or whether the functions which are assigned to the individual are functions which he is performing as the agent of the State, or whether the appointing authority is the State, or whether he receives his remuneration from the State. It is only on a consideration of the totality of all the circumstances in each case that it can be decided whether the person concerned holds his post under the State, or whether the post is one which is under the control of the State.
21. In our judgment, applying the aforesaid principles to the facts of the present case, one important fact which emerges is that petitioner was a servant of the panchayat entrusted with the duties of the panchayat and under the executive and disciplinary control of the panchayat, before the Act of 1958 came into operation. The panchayat, though carrying out the functions which usually one associates with a Government, is not the same thing as a Government. It is a corporate body, having perpetual succession, a common seal and is capable of holding property in its own right. It is under such a body that petitioner was employed at the time of the coming into operation of the Act of 1958. As we have already pointed out, the status of petitioner substantially remains the same after the coming into operation of the Act of 1958. Petitioner remains subject to the same conditions of service to which he was subject before the coming into operation of the Act of 1958. The only change which has taken place is that, instead of his having been appointed by the panchayat, by a legal fiction, he is to be treated as having been appointed by the Government. In our judgment, this single factor dies not make any radical change in the status of petitioner. Even if we were to proceed on the basis that the panchayat was not liable to make payment to petitioner and that petitioner was entitled to receive his salary and allowances from the Government, having regard to the fact that petitioner still has to perform the duties assigned to the panchayat and remains under the disciplinary control; of the panchayat, it cannot be stated that the post that petitioner was holding, though a civil post, was under the State. In our judgment, therefore, the contention of petitioner that he was entitled to the protection under Art. 311 of the Constitution, must be rejected.
22. As regards the second ground, Sri Patel was unable to point out to us that petitioner was governed by the rules of conduct, discipline, etc., of Government servants. Having regard to the fact that we have reached the conclusion that petitioner did not become a Government servant under the fiction created in Sub-section (4) of S. 60, it is quite clear that the rules applicable to Government servants in the aforesaid regard cannot apply to petitioner. Sri Patel mentioned the Bombay Civil Services Rules as those which would be applicable to petitioner. For the aforesaid reasons, we must reject this contention of Sri Patel. In our judgment, by the very terms of Sub-section (4) of S. 60, petitioner still remains subject to the conditions of service under the rules of 1948 and that being so, in our judgment, petitioner has not been able to substantiate that any rule relating to conduct and discipline of Government servants was violated in the present case.
23. In view of our aforesaid conclusion, we do not propose to undertake the decision of the disputed question as to whether the impugned order is one which is based by respondent 1 for termination of services or whether it is in fact an order of removal.
24. For the aforesaid reasons, the petition must fail. Under the circumstances, each party must bear its own costs. Rule discharged. No order as to costs.