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Judgment
At issue in this Writ Appeal is the legality of the order passed in G.O.Ms.No.32, Social Welfare (A) Department, dated 23-2-1982 by which the respondent herein was removed from service as Hindi Pandit in the Upper Primary Ashram School, Karakagudem, Khammam district by the Governor of the State of Andhra Pradesh in exercise of the powers conferred by (sub)-clause (c) to the second proviso to clause (2) of Article 311 of the Constitution of India.
The impugned order says, inter alia, that while working as a teacher in the Ashram schools at Sunnambatti and Kothapeta the respondent "has been preaching Islam even in the classes, instead of teaching the lessons from the prescribed textbooks", his activities are "highly unbecoming of a teacher" and "are likely to result in communal tension which is not conducive to the security of the State, and the Governor is satisfied that in the circumstances of the case, it is not expedient to hold an enquiry into his conduct in the interest of the security of the State". The respondent herein challenged the validity of the aforesaid order by filing Writ Petition No. 3089 of 1982 which was allowed by a learned single Judge of this Court on the view that the respondent was an employee of the Integrated Tribal Development Agency, a society registered under the Societies Registration Act; he has to necessarily function within the parameters of the bye-laws of the society and so, could be removed from service in accordance with the bye-laws; the fact that sufficient funds have been sanctioned by the Government for disbursement of salaries and other allowances to the employees of the Ashram schools does not clothe the posts in the society with the character of civil posts under the State of Andhra Pradesh; even if the Integrated Tribal Development Agency is regarded as an instrumentality or agency of the State and, therefore, an authority within the meaning of Article 12 of the Constitution of India, "only the provisions of Parts III and IV of the Constitution of India can be invoked against the employees" and " it cannot be elevated to the position of State for the purpose of applicability of Article 311 of the Constitution of India". The learned Judge, for coming to the aforesaid conclusion, relied on the following passage occuring in the decision of the Supreme Court in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, .
"It is also necessary to add that merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of "State" for the purpose of Articles 309, 310 and 311 which find a place in Part XIV The definition of "State" in Article 12 which includes an "Authority" within the terriotry of India or under the control of the Government of India is (not ?) limited in its application only to Part III and by virtue of Article 36, to Part IV, it does not extend to the other provisions of the Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution.
.........."
Aggrieved by that the present appeal was brought by the State. Sri V. Venkataramanaiah, the learned Advocate-General has contended before us that the respondent was selected and appointed by a Government department, his salary was paid from the State revenues and he was liable to be removed from service by the Government. His promotion as well as transfers were effected by the Government. Further, at the time of entry into service one of the conditions for allowing him to join the post was execution of a bond in favour of the Government department underking that he would serve for a period of three years. From these circumstances, the inference is inevitable that there was relationship of master and servant between the Government and the respondent and, therefore, the view taken by the learned Judge was not correct. The learned Advocate-General also submitted that the learned single Judge has not considered the question whether the respondent was holding a civil post at the relevant time.
In opposition to this, it is submitted by the learned counsel for the respondent that the Integrated Tribal Development Agency alone had disciplinary jurisdiction over the respondent and the mere fact that funds were given by the Government for purpose of disbursement of salary would not result in the relationship of master and servant between the Government and the respondent. He also invited our attention to the passage in Ajay Hasia v. Khalid Mujib (1 supra) based upon which the learned Judge allowed the writ petition.
On the rival contentions urged before us, the question that must be considered is whether at the relevant time the respondent was holding a civil post ?
What are the criteria to determine whether a post held by an individual was a civil post are no longer in doubt. In State of Assam and Others Vs. Shri Kanak Chandra Dutta, a Constitution Bench of the Supreme Court, while dealing with the question whether a Mauzadar is a person holding a civil post under the State within Article 311 of the Constitution held;"
"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 said to be 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."
Following the aforesaid statement of law another Constitution Bench of the Supreme Court in Mathuradas v. S.D. Munshaw ruled that Panchayat service is a civil service under the State of Gujarat. In State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, yet another Constitution Bench of the Supreme Court, after noticing the precedents on the question, held that if salary and allowances of the servants and officers are paid out of funds contributed or lent by the Government it will amount to an essential Government function and "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 the light of the legal position stated above we have to consider whether the respondent was the holder of a civil post when the impugned order was issued.
There is abundant evidence to show that the tests laid down by the Supreme Court are fully satisfied in the case of the respondent to conclude that he was the holder of a civil post at the relevant time. Sixty secondary grade (Tribal) posts were created for the purpose of opening of new schools in tribal blocks by the proceedings issued by the District Educational Officer, Khammam on 24-3-1979. The candidates were required to be sponsored by the Employment Exchange. The Government sanctioned the posts by G.O.Ms.No.138, Education (I) Department, dated 7-2-1979. It was specifically mentioned in this Government Order that the expenditure shall be debited to a certain head of account maintained by the Government. The respondent was one of the 56 candidates (Sl.No.40) sponsored by the Employment Exchange as could be seen from the proceedings issued by the Project Officer, Sri Bir Singh, I.A.S. in Rc.No.Al/2413/79-1, dated 25-6-1979. By the same proceedings he was also appointed as a teacher temporarily and one of the conditions laid down in paragraph 5 was that he should execute a bond on a stamped paper worth Rs. 5/- stating that he will "service the Department at least for a period of three years". The power of transfer was also vested in Project Officer, a member of the Indian Administrative Service who was heading the Integrated Tribal Development Agency; the respondent was promoted to the post of Hindi Pandit on 14-4-1980 by the District Tribal Welfare Officer. The Tribal Welfare Officer, Kothagudem was the competent authority to draw the salaries from the treasury. These facts are uncontroversial.
The aforesaid material dearly establishes that the respondent was appointed, promoted and paid salary by a department of the Government..
We do not find any merit in the contention advanced by the learned counsel for the respondent that the Integrated Tribal Development Agency had the disciplinary jurisdiction over the respondent. In the objects of the society we find one clause which is to the effect that the society is empowered to "establish any special services such as educational institutions, hostels, Ashram schools, training institutions/centres, dispensaries, laboratories or process plants, etc. in furtherance of the socio-economic interests of the tribals". Based upon this the contention advanced is that the respondent became an employee of the society. Factually this is incorrect. At no point of time was the respondent absorbed into the service of the society so as to lead to the conclusion that he lost the status as a Government employee. The decision in Roshan Lal Tandon Vs. Union of India (UOI), authoritatively lays down the proposition that Government service is not a contract. There is nothing to show that the respondent had lost his status as a Government employee and became a contractual employee of the society.
We, therefore, have no hesitation to hold that the respondent was holding a civil post under the State and his tenure, under Article 310 of the Constitution, was "during the pleasure of the Governor". Clause (1) of Article 311 inter alia lays down that no holder of a civil post shall be dismissed or removed by an authority subordinate to that by which he was appointed. Clause (2) says that the punishment of dismissal, removal or reduction in rank shall not be inflicted except after an enquiry in which the employee has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second proviso to clause (2) contains exceptions to this protection. Clause (c) to the second proviso says that a holder of a civil,post or member of civil service or of an all India service can be dismissed or removed or reduced in rank without enquiry if the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to do so.
In Union of India and Another Vs. Tulsiram Patel and Others, , D.P.Madon, J, speaking for the majority of the Constitution Bench, interpreting the aforesaid provision, expressed the view thus:
"The satisfaction so reached by the Present or the Governor must necessarily be a subjective satisfaction. Expediency involves matters of policy. Satisfaction may be arrived at as a result of secret information received by the Government about the brewing danger to the security of the State and like matters. There may be other factors which may be required to be considered, weighed and balanced in order to reach the requisite satisfaction whether holding an inquiry would be expedient reached as a result of secret information received by the Government, making known such information may very often resultion disclosure of the source of such information. Once known, the particular source from which the information was received would no more be available to the Government. The reasons for the satisfaction reached by the President or Governor under clause (c) cannot, therefore, be required to be recorded in. the order of dismissal, removal or reduction in rank nor can they be made public."
Following the above precedent it was held in Bakshi Sardari Lal (Dead) through Lrs and Others Vs. Union of India (UOI) and Another, that if the record indicates that the reason has been recorded, it is enough, and that it is not the requirement of law that the same should be communicated. 15. We have perused the record placed before us by the learned Advocate General and we are satisfied that it contains reasons for the satisfaction arrived at by the Governor. Such reasons not being justiciable nor can they be made public, we refrain from adverting to the same.
The passage in Ajayhasia v. Khalid Mujib (1 supra) relied upon by the learned single Judge, in our considered opinion, has no application to the fact situation. It is an unexceptional principle of law that Article 311 is applicable only to a member of a civil service of the Union or an all India Service or a civil service of a State or holder of a civil post under the Union or a State. If the tests laid down for the application of Article 311 are satisfied, any order passed under clause (c) to the second proviso of clause (2) of Article 311 is not open to judicial review either on the ground that it is arbitrary or that the reasons for the order are not sufficient to arrive at the requisite satisfaction. We must also mention that the necessary indicia for ascertaining the status of the respondent - whether he was holding a civil post were not considered by the learned single Judge and so the conclusion reached by him, with respect, we hold, is unsustainable in law and accordingly we set aside the same and dismiss the Writ Petition.
For these reasons the Writ Appeal is allowed and the W.P. 3089 of 1982 is dismissed. No costs.