Full Judgment Text
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PETITIONER:
SUPERINTENDENT OF POST OFFICES ETC. ETC.
Vs.
RESPONDENT:
P.K. RAJAMMA ETC. ETC.
DATE OF JUDGMENT22/04/1977
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
BEG, M. HAMEEDULLAH (CJ)
KAILASAM, P.S.
CITATION:
1977 AIR 1677 1977 SCR (3) 678
1977 SCC (3) 94
CITATOR INFO :
RF 1981 SC 53 (15)
RF 1992 SC 573 (14,40)
ACT:
Constitution of India, Art. 311 (2)--Whether the post
of extra Departmental Branch Postmasters/Sub Post-
Masters/Delivery agents a "Civil Post" within the meaning of
Art. 311(2)--Posts and Telegraphs Extra-Departmental
Agents (Conduct and Service) Rules, 1964--Rule 2(b).
HEADNOTE:
The respondents in all these appeals are "extra depart-
mental agents" within the meaning of Rule 2(b) of the Posts
and Telegraphs Extra Departmental Agents (Conduct of
Service) Rules, 1964 issued under the authority of the
Government of India. They were either dismissed or removed
from service during the period between January 1, 1966 and
June 18, 1974, admittedly without complying with the provi-
sions of Art. 311(2) of the Constitution. The question in
each case is whether the respondent held a "civil post" as
contemplated in Art. 311(2) of the Constitution. The High
Court of Kerala, Andhra Pradesh & Orissa held that the
respondents held a civil post under the Union of India and
the orders terminating their services in violation of Art.
31.1(2) of the Constitution were invalid.
Dismissing the appeals the Court,
HELD: (1) An "extra departmental agent" held a "civil
post" and his dismissal or removal would be invalid, if
there was non-compliance with Art. 311 (2) of the Constitu-
tion. [680 B-C. 682 E]
(2) An extra departmental agent is not a casual worker, but
he holds a post under the administrative control of the
State. It is apparent from the 1964 Rules that the em-
ployment of an extra departmental agent is in a post
which exists "apart from" the person who happens to fill it
at any particular time. Though such a post is outside the
regular civil service, there is no doubt it is a post under
the State. [681 E-F]
State of Assam & Ors. v. Kanak Chandra Dutta [1967] 1 SCR
679 @ 682 applied.
(3) The 1964 rules make it clear that these extra-
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departmental agents work under the direct control and super-
vision of the authority who obviously have the right to
control the manner in which they must carry out their du-
ties. There can be no doubt, therefore, that the relation-
ship between the Postal Authorities and the extra-departmen-
tal agents are of master and servant. [662 C-E]
Venkataswamy v. Superintendent, Post Offices, AIR 1957
Orissa 112; V. Subbaravalu v. Superintendent of Post
Offices, AIR 1961 Madras 166, held inapplicable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: C. As Nos. 1172, 1354,
1355 and 1751 of 1972.
(Appeals by Special Leave from the Judgment and
Order dated the 27.9.1971 of the Kerala High Court in O.P.
No. 1339/70 W.A.No. 8/70, W.A. No. 420/69 and O.P. No. 862
of 1969 respectively.)
AND
Civil Appeal No. 2275 of 1972
679
(Appeal by Special Leave from the Judgment and Order
dated the 18.11.1971 of the Andhra Pradesh High Court in
Writ Petition No. 5662/70).
AND
Civil Appeals Nos. 1015/73, 1865/74 and CA No. 506/76.
(From the Judgments and Orders dated the 7-9-72, 22-7-
74, and 30-10.1975 of the Andhra Pradesh High Court in Writ
Petitions Nos. 4717/71, 3914/74 and 4213/75 respectively).
AND
CA No. 1866 of 1973 and 1867/73.
(Appeals by Special Leave from the Judgment and Order dt.
the 15.2.1972 of the Andhra Pradesh High Court in Writ
Petition No. 2933 and 3385/71 respectively.)
AND
Civil Appeal No. 1234 of 1974.
(Appeal by Special Leave from the Judgment and Order
dated the 18.10.1973 of the Andhra Pradesh High Court in
S.A. No. 360 of 1972).
AND
Civil Appeal Nos. 1300 and 1393 of 1976.
(From the Judgment and Order dated the 5-12-1975 of the.
Kerala High Court in Writ Appeals Nos. 414 & 415 of 1975).
AND
Civil Appeal No. 1313 of 1976.
(Appeal by Special Leave from the Judgment and Order
dated the 10.3.1976 of the Orissa High Court in O.J.C. No.
531/74).
Niren De, Attorney General of India in CAs 1171, 1354-
1355; V.P. Raman, Addl. Sol. General in CAs 2275 and 1313
with B. Datta in CAs 1172, 1355 and 2275 and Girish Chandra,
for the appellants in all the appeals.
Vepa Sarathi, N. Sudhakaran and P.K. Pillai for respond-
ents in CA 1172/72.
Vepa Sarathi (1354) K.M.K. Nair and Mrs. B. Krishnan for
respondents in CAs 1354, 1751/72 and 1300 and 1393 of 1976.
Mrs. S. Gopalakrishnan, for respondent in CA 1355.
K. Jayaram and K. Ram Kumar for respondents in CAs
1866-67, 1015/73 and 1865 of 1974 and 506/76.
Mrs. Veena Devi Khanna, for respondent in CA 2275/72. C.S. S
Rao, for respondent in CA 1313/76.
680
The Judgment of the Court was delivered by
GUPTA, 3.--The respondents in all these fourteen ap-
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peals, some of which are on certificate and some by special
leave, are extra-departmental agents connected with the
postal department. Six of these. appeals are from the
Kerala High Court, seven from the Andhra Pradesh High Court
and one from. the Orissa High Court. These respondents
were either dismissed or removed from service during the
period between January 1, 1966 and June 18, 1974, and admit-
tedly the order of dismissal or removal was passed without
complying with the provisions of Article 311(2) of the
Constitution. The question in each case is whether the
respondent held a civil post as contemplated in Article 311
of the Constitution; if he did the dismissal or removal, as
the case may be, would be unquestionably invalid for non-
compliance with Article 311(2).
The conditions of service of the respondents are gov-
erned by a body of rules called the Posts and Telegraphs
Extra Departmental Agents (Conduct and Service) Rules, 1964
(hereinafter called the rules) issued under the authority
of the Government of India. Rule 2(b) of the rules defining
"Extra Departmental Agent" includes within the category,
among others, Extra Departmental Sub Postmaster’s, Extra
Departmental Branch postmasters, Extra Departmental Delivery
Agents, and several sections of class IV employees. Eleven
of the respondents arc extra departmental branch postmas-
ters, one is an extra departmental delivery agent, and two
are class IV extra departmental employees. In all these
cases the High Courts have found that the respondents held
civil posts under the Union of India and the orders termi-
nating their services in violation of Article 311 (2) of the
Constitution were invalid.
This Court in State of Assam and others v. Kanak
Chandra Dutta(1) has explained what a civil post is. In
that case the respondent who was a Mauzadar in the Assam
Valley was dismissed from service in disregard of the provi-
sions of Article 311 (2). It was held that "having regard
to the existing system of his recruitment, employment and
functions", he was "a servant and a holder of a civil post
under the State", and therefore entitled to the protection
of Article 311(2). This Court observed:
" .... a civil post means a post not
connected with defence and outside the regu-
lar civil services. A post is a service or
employment ....... There is a relationship
of master and servant between the State and a
person holding a post under it. The exist-
ence 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."
(1) [1967]1 S.C,R. 679 (682).
681
A post, it was explained, exists apart from the holder
of the post. "A post may be created before the appointment
or simultaneously with it. A post is an employment, but
every employment is not a post. A casual labourer is not
the holder of a post. A post under the State means a post
under the administrative control of the State. The State may
create or abolish the post and may regulate the conditions
of service of persons appointed to the post." Turning now
to the rules by which the respondents were admittedly gov-
erned, it appears that they contain elaborate provisions
controlling the appointment, leave, termination of services,
nature of penalties, procedure for imposing penalties and
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other matters relating to the conduct and service of these
extra departmental agents. There is a schedule annexed to
the rules naming the appointing authorities in respect of
each category of employees. Rule 5 states that the employ-
ees governed by these rules shall be entitled to such leave
as may be determined by the Government from time to time and
provides that if an employee fails to resume duty on the
expiry of the maximum period of leave admissible and granted
to him or if an employee who is granted leave is absent from
duty for any period exceeding the limit upto which he could
have been granted leave he shall be removed from the service
unless the Government decides otherwise in the exceptional
circumstances of any particular case. The services of
employees who had not put in more than three years’ continu-
ous service are liable to be terminated at any time under
rule 6 for unsatisfactory work or for any administrative
reason. The rules also indicate the nature of penalties
which may be imposed on an employee and the procedure for
imposing them. A right of appeal is provided against an
order imposing any of the penalties on the employee.
Various other conditions of service are also provided in
these rules.
It is thus clear that an extra departmental agent is not
a casual worker but he holds a post under the administrative
control of the State. It is apparent from the rules that
the employment of an extra departmental agent is in a post
which exists "apart from" the person who happens to fill it
at any particular’ time. Though such a post is outside the
regular civil services, there is no doubt it is a post under
the State. The tests of a civil post laid down by this
Court in Kanak Chandra Dutta’s case (supra) are clearly
satisfied in the case of the extra departmental agents.
For the appellants it is contended that the relationship
between the postal authorities and the extra departmental
agents is not of master and servant, but really of principal
and agent. The difference between the relations of master
and servant and principal and agent was pointed out by this
Court in Lakshminarayan Ram Gopal and Son Ltd. v. The Gov-
ernment of Hyderabad. (1) On page 401 of the report the
following lines from Halsbury’s Laws of England (Hailsham
edition) Volume 1, at page 193, article 345, were quoted
with approval in explaining the difference:
(1) [1955] 1 S.C.R. 393.
682
"An agent is to be distinguished on the
one hand from a servant, and on the other from
an independent contractor. A servant acts
under the direct control and supervision of
his master, and is bound to conform to all
reasonable orders given him in the course of
his work, an independent contractor, on the
other hand, is entirely independent of any
control or interference and merely undertakes
to produce a specified result, employing his
own means to produce that result. An agent,
though bound to exercise his authority in
accordance with all lawful instructions which
may be given to him from time to time by his
principal, is not subject in its exercise to
the direct control or supervision of the
principal. An agent, as such is not a servant,
but a servant is generally for some purposes
his master’s implied agent, the extent of the
agency depending upon the duties or position
of the servant."
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The rules make it clear that these extra departmental
agents work’ under the direct control and supervision of the
authorities who obviously have the right to control the
manner in which they must carry out theft duties. There can
be no doubt therefore that the relationship between the
postal authorities and the extra departmental agents is one
of master and servant. Reliance was placed on behalf of the
appellants on two decisions, one of the Orissa High Court
Venkata Swamy v. Superintendent, Post Offices(1) and the
other of the Madras High Court V. Subbaravalu v. Superin-
tendent of Post Offices.(2) The judgment in these cases
were rendered before the elaborate rules governing the
conduct and service of these extra departmental agents were
brought into operation in 1964. We do not therefore think
an examination of these two decisions will be relevant or
useful for disposing of the appeals before us.
The appeals are accordingly dismissed with costs: one
set o[ hearing fee in respect of all the appeals except C.A.
1172 of 1972 C.A. 1751 of 1972 and C.A. 2275 of 1972 in
which separate orders as to costs was made earlier.
S.R. Appeals dismissed
(1) AIR 1957 Orissa 112.
(2) AIR 1961 Madras 166.
683