# STATE OF WEST BENGAL & ANR v. WEST BENGAL REGN. COPY WRITERS ASSN. & ANR

- **Citation:** [2009] 8 S.C.R. 334
- **Court:** Supreme Court of India
- **Decided:** 2009
- **Case number:** WRITERS ASSN. & ANR. (Civil Appeal No. 3414 of 2009
- **Bench:** Tarun Chatierjee, V.S. Sirpurkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-west-bengal-anr-v-west-bengal-regn-copy-writers-assn-anr-26019
- **Pages:** 64

## Headnote

"
West Bengal Registration (Copywriters) Rules, 1999 -
Copywriters - Grant of license under the Rules - Status of
c copywriters - Held: There is no master-servant relationship
between copywriters and State Government- Copywriters are
mere licensees - Grant of license does not amount to creating
service - It cannot clothe them with the status of Government
servant - They were not doing any government duty nor there
)<
D
was absolute control over their working - They were not paid
from public exchequer - Copywriters not on Government
establishment under Rules formulated under Article 309 - On
facts, High Court erred in directing creation of service and
framing Rules as also providing nomenclature for such service
E instead of directing absorption of copywriters as LDCs - It
traveled beyond the scope of its jurisdiction - Thus, order of
High Court set aside and that of tribunal. restored -
~
Constitution of India, 1950 - Article 309.
F
Constitution of India, 1950 - Article 226 - Writ petition -
High Court travelling much beyond the pleadings - High
Court instead of directing absorption of copywriters as LDCs,
directing to decide nomenclature of the post - Held: Not
correct - Relief granted by High Court extraordinarily beyond
its jurisdiction - Even in its plenary jurisdiction, while moulding
G relief, there must be a plea to support the relief
y
Respondents-members of West Bengal Registration
Copywriters' Association were licensees under the West
Bengal Registration (Copywriters) Rules, 1982 as
H
334
STATE OF WEST BENGAL v. WEST BENGAL REGN. 335
COPY WRITERS ASSN.
amended by Copywriters Rules, 1999. Under the license, A
the members could prepare the true copies of the
documents, compulsorily required to be filed alongwith
the documents presented for registration, on receiving
fees prescribed in the Rules. Respondents claimed
absorbtion as regular employees in the cadre nf Lower B
Division Clerk under the concerned authority as they
were doing the identical work of preparing copies as
done by LDCs. They prayed for injunction against the
authority from appointing any person in the cadre of LDC
unless all the members of the Association were c
accommodated in that post of LDC; and also claimed
parity with the "extra-muharrirs", whose services were
regularised. Tribunal dismissed the applications.
Respondents f1.led writ petitions. High Court held that
there was relationship of master and servant between the 0
State Government and the Copywriters appointed under
the Rules and not that ofrlicensee or licensor, thus, were
entitled to the relief clairrled. It observed that though they
could not be absorbed as LDCs, State Government
would decide the nomencla_ture of their post. Hence, the E
present appeals.
Allowing the appeals, the Court
HELD: 1. (i) The original writ petitioners-Copywriters
are mere licensees.
F
(ii) Though the West Bengal
Registration
(Copywriter~) Rules, 1999 have been formulated by
the Government for awarding the licenses the Rules
do not spell out an absolute control over the working
of Copywriters. The Rules merely pertain to the grant G
of licences and control of those licences, however,
does not control the working and duties of the
Copywriters.
(iii) The Copywriters do not do any Government duty. H
336
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A
They are merely required to copy the deeds which
are to be presented for registration. Though the filing
of a fresh copy is necessary for registration, the
making of that copy does not amount to a
B
Government duty.
(iv) The Copywriters are not controlled in the matters
of their attendance, working hours, leave, pension
and output of work etc., by the Government.
(v) The Copywriters are not on the establishment
C
under the Rules, more particularly the Rules
formulated under Article 309 of the Constitution of
India.
D
E
F
G
H
(vi) The Copywriters are not paid from the
Government coffers. They are paid by the private
parties who require those copies for Registr<1tion of
the

## Text

_Characters 0–39,962 of 127,560. This is a partial read: ask again with offset=39962 for what follows._

(2009] 8 S.C.R. 334
A
STATE OF WEST BENGAL & ANR.
v.
WEST BENGAL REGN. COPY WRITERS ASSN. & ANR.
(Civil Appeal No. 3414 of 2009)
B
MAY 8, "2009
[TARUN CHATIERJEE AND V.S. SIRPURKAR, JJ.]
"
West Bengal Registration (Copywriters) Rules, 1999 -
Copywriters - Grant of license under the Rules - Status of
c copywriters - Held: There is no master-servant relationship
between copywriters and State Government- Copywriters are
mere licensees - Grant of license does not amount to creating
service - It cannot clothe them with the status of Government
servant - They were not doing any government duty nor there
)<
D
was absolute control over their working - They were not paid
from public exchequer - Copywriters not on Government
establishment under Rules formulated under Article 309 - On
facts, High Court erred in directing creation of service and
framing Rules as also providing nomenclature for such service
E instead of directing absorption of copywriters as LDCs - It
traveled beyond the scope of its jurisdiction - Thus, order of
High Court set aside and that of tribunal. restored -
~
Constitution of India, 1950 - Article 309.
F
Constitution of India, 1950 - Article 226 - Writ petition -
High Court travelling much beyond the pleadings - High
Court instead of directing absorption of copywriters as LDCs,
directing to decide nomenclature of the post - Held: Not
correct - Relief granted by High Court extraordinarily beyond
its jurisdiction - Even in its plenary jurisdiction, while moulding
G relief, there must be a plea to support the relief
y
Respondents-members of West Bengal Registration
Copywriters' Association were licensees under the West
Bengal Registration (Copywriters) Rules, 1982 as
H
334
STATE OF WEST BENGAL v. WEST BENGAL REGN. 335
COPY WRITERS ASSN.
amended by Copywriters Rules, 1999. Under the license, A
the members could prepare the true copies of the
documents, compulsorily required to be filed alongwith
the documents presented for registration, on receiving
fees prescribed in the Rules. Respondents claimed
absorbtion as regular employees in the cadre nf Lower B
Division Clerk under the concerned authority as they
were doing the identical work of preparing copies as
done by LDCs. They prayed for injunction against the
authority from appointing any person in the cadre of LDC
unless all the members of the Association were c
accommodated in that post of LDC; and also claimed
parity with the "extra-muharrirs", whose services were
regularised. Tribunal dismissed the applications.
Respondents f1.led writ petitions. High Court held that
there was relationship of master and servant between the 0
State Government and the Copywriters appointed under
the Rules and not that ofrlicensee or licensor, thus, were
entitled to the relief clairrled. It observed that though they
could not be absorbed as LDCs, State Government
would decide the nomencla_ture of their post. Hence, the E
present appeals.
Allowing the appeals, the Court
HELD: 1. (i) The original writ petitioners-Copywriters
are mere licensees.
F
(ii) Though the West Bengal
Registration
(Copywriter~) Rules, 1999 have been formulated by
the Government for awarding the licenses the Rules
do not spell out an absolute control over the working
of Copywriters. The Rules merely pertain to the grant G
of licences and control of those licences, however,
does not control the working and duties of the
Copywriters.
(iii) The Copywriters do not do any Government duty. H
336
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A
They are merely required to copy the deeds which
are to be presented for registration. Though the filing
of a fresh copy is necessary for registration, the
making of that copy does not amount to a
B
Government duty.
(iv) The Copywriters are not controlled in the matters
of their attendance, working hours, leave, pension
and output of work etc., by the Government.
(v) The Copywriters are not on the establishment
C
under the Rules, more particularly the Rules
formulated under Article 309 of the Constitution of
India.
D
E
F
G
H
(vi) The Copywriters are not paid from the
Government coffers. They are paid by the private
parties who require those copies for Registr<1tion of
the deeds. Therefore, there is no fiduciary
relationship between the Government and the
Copywriters nor is the government responsible for
any such payment.
(vii) The grant of licence for copywriting does not
amount to creating a service. Hence, there is no
master-servant relationship between the Copywriters
and the Government nor can they said to be
Government servants entitling them to so-called
equa: treatment with the other Government servants.
(viii) High Court erred in directing the creation of
service and for that purpose framing the Rules as
also providing the nomenclature for such a service.
High Court traveled beyond the scope of the original
application and the writ petition. [Para 47] [395-E-H;
396-A-H; 397-A]
2.1. It is the basic principle of interpretation that where
...
.•.
STATE OF WEST BENGAL v. WEST BENGAL REGN. 337
COPY WRITERS ASSN.
the language of the Statute is clear and admits of no
A
doubt, then the Court will accept the plain meaning of the
provisions. Applying the test of plain meaning, no Rule
either under the Copywriters' Rules of 1982 or the
Copywriters' Rules of 1999, can be read as clothing the
Copywriters with the status of Government servants. The
B
Rules nowhere _provide any master and servant
relationship in between the State Government and the
Copywriters. The Rules, at the most, provide for the
licenses armed with. which, the Copywriters can follow
the profession of Copywriting, as is clear from Rule 3 of c
the Copywriters' Rules of 1982. [Para 20] (368-C-E]
2.2.
Extra-muharrirs were already on
the
establishment of the Government in the regular posts.
They were absorbed by the State Government in the
posts of LDCs. All that was done to change the
D
nomenclature of that post, and finding that the duties of
that post were almost identical to the duties of the LDCs,
they were absorbed as the LDCs. Therefore, it is not a
case where the persons, who were not even on the
establishment of the Government were conferred with the
E
status of the Government servant. Such was not the case
in case of the Copywriters. Admittedly, they were never
on the Government establishment. They were private
persons and they took the advantage of the Copywriters'
Rules of 1999, which provide for the licenses to be given
F
for doing the job of a Copywriter. They have been
provided with this opportunity to earn their livelihood by
working as the Cc;>pywriters on the basis of the licenses.
They were not comparable in any manner with the Extram u ha rri rs even in respect of their educational G
qualification. The minimum qualification for a licensee as
a Copywriter is barely Vlth Class passing, which is
unimaginable in the present days as a minimum
qualification for a Government job. It is suggested that
H
338
SUPREME COURT REPORTS
(2009] 8 S.C.R.
A almost all the Copywriters were educated and were
holding a better qualification. That may be so, but that
does not in any manner solve the problem of the
Copywriters, whose minimum qualification, as prescribed
in the Rules, is much lower than that of the LDCs. Before
B the High Court, no evidence was brought to show as to
how the post of Extra-muharrirs is comparable to or
identical to the post of Copywriters. [Para 21] [368-G-H;
369-A-F]
\..
c
2.3. The petition is wholly silent about the assertion
that the writ petitioners are doing the identical duty as that
of the LDCs and they are actually the Government
servants. There is not even a whisper in the writ petition
that a separate cadre with a separate nomenclature
D
should be created for them by the Government. In fact,
in the last part of the writ petition, the petitioners have
" -
asserted that injustice was done to them in their
representations remaining without a reply and in their not
being absorbed in service and further they are not being
E
allowed to sit in the examination. _They asserted that the
respondents should be injuncted from proceeding with
the absorption in the post of LDCs in their offices. It
cannot be understood as to how on the basis of such a
petition, the petitioners were allowed to completely
f,
change their stand and introduce, for the first time, a
F theory of master and servant or even allowed to argue
that they were the Government servants and in fact,
because of the duties conducted by them, they were the
servants of the Government on its establishments. All this
was allowed, though not at the tribunal level but at the
G level of the High Court. [Para 25] [371-G-H; 372-A-D]
2.4. Respondents tried to point out that the State
Government in their counter affidavits themselves
asserted that there was no master and servant
H relationship between the writ petitioners and the State
STATE OF WEST BENGAL v. WEST BENGAL REGN. 339
COPY WRITERS ASSN .
.._..,
Government and, therefore, petitioners could not assert A
their right to be absorbed as LDCs. Therefore, the
respondents pointed out that if the theory of master and
servant was introduced by the Government in its reply,
then the writ petitioners had every right to assert that
there was a master and serv;mt relationship between B
them and the Government. Such logic cannot be
understood. A Writ Petitioner has to stand on his own legs
~
and has to rely on the pleadings in the Writ Petition. A
simple case was pleaded by the Writ Petitioners in the
Writ Petition that they had a right to be absorbed as LDCs, c
firstly because the Extra-muharrirs were so absorbed and
secondly, because they were doing the same job as
LDCs. They had nowhere suggested that they were
already on the Government establishment and there
existed master and servant relationship between them 0
and the Government and, therefore, it was incumbent on
the Government to either absorb them as the LDCs or to
create a separate service for them. They never asserted
that they were equally circumstanced with the LDCs or
Extra-muharrirs, which position, they introduced for the
first time before the High Court. Such radical change in E
the stand, as also the radical change in the prayers could
not have been allowed by the High Court in a writ petition,
J
muchless when the High Court was concerned with the
limited exercise of deciding the correctness or otherwise
of the tribunal's judgment. Unfortunately, High Court F
seems to have travelled much beyond the pleadings and
has, therefore, fallen into error in granting an
unimaginable relief to the writ petitioners of creating a
service for them with a separate nomenclature. All this
was clearly beyond the jurisdicti® o.f the High Court. G
- [Para 26] (372-G-H; 373-A-D]
2.5. In prayer clause, a direction is prayed. for to
provide the writ petitioner with employment as LDCs or
equivalent posts. It is certain that the prayers are no H
340
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A different in other writ petition. Once those prayers vanish
on account of the concession by the counsel, really
nothing could remain in the petition. However, High
Court went on to examine the belated theory of master
and servant, which was totally out of the scope of the
B original application, as well as, the Writ Petition. When the
State Government in its reply before the tribunal asserted
that there was no relationship of master and servant, the
writ petitioners seem to have totally changed their stand.
),
Writ Petitioners before the High Court, as well as, before
c the tribunal rightly conceded that they could not be
appointed or absorbed as LDCs. Respondents very fairly
stated that they had abandoned that prayer, however,
tried to justify that in its plenary jurisdiction, the High
Court could mould the relief. There could be no doubt
D about the High Court's power to mould the relief.
However, even in its plenary jurisdiction, while moulding
the relief, there must be a plea to support such a relief.
The relief granted by the High Court in this case is
extraordinarily beyond the jurisdiction of the High Court
E
and has no nucleus in the writ petitions or in the original
applications. The basic case that was pleaded was that
since the Extra-muharrirs were absorbed by the
Government, the writ petitioners; who were doing the
task of Extra-muharrirs, also had a right to be absorbed
t
in the Government. This plea was obviously baseless, as
F while Extra-muharrirs were on the regular establishment
of the Government, the writ petitioners were not and,
therefore, they could not have claimed the parity. It is only
after the reply of the Government came, denying the
master servant relationship, that the Writ Petitioners
G started singing the tune of the de facto Government
service in their favour. The argument before the High
Court, as well as, the tribunal was that because of the
duties and because of licenses which were controlled by
the Government in their grant, continuance and
H termination as well as suspension that the Copywriter
STATE OF WEST BENGAL v. WEST BENGAL REGN. 341
COPY WRITERS ASSN.
lice11se holders were in fact Government servants and, A
therefore, had a right under Articles 14 and 16 of the
Constitution of India, is rejected. High Court treated
unequal& as the equals and for that purpose, it had to do
the acrobatics for finding that the Copywriters had the
trace of Government service. [Para 28] [374-E-H; 375-AB
G]
,I
2.6. High Court proceeded to hold that once it was
proved from the Rules ·that they had the tracings of the
Government service in their favour, then they were c
entitled to the equal protection like other Government
servants. All this was impermissible because the
Government service is controlled and managed by the
-
Rules under Article 309 of the Constitution of India. Such
Rules were never there and were not likely to be there in
D
case of the writ petitioners. No Government service can
be de-hors the Rules. There were tt.e Rules for the
Copywriters, but those Rules could never be read as
creating a separate Government service. They, at the
most, were licensees. Firstly, the writ petitioners were not
paid from the coffers of the Government. Secondly, E
though there was an apparent control, there was no
control on their actual working. There was no attendance
;
register for these Copywriters nor were they required to
take leave in case they decided to remain absent. They
were not even controlled in the matter of their actual F
working hours. Thus, the control was qua the licenses,
not qua the duties, which was ignored. The grant of
licenses was bound to be ur.der the Rules and, therefore,
their continuation, termination or suspension was also
bound to be under the Rules. But, that was the only G
~
scope. The Rules never provided as to how the working
of the Copywriters would be controlled. They were,
undoubtedly, independent professionals. They could
come and leave at any time. Nobody could compel their
attendance and the disciplinary control which was H
342
SUPREME COURT REPORTS
[2009) 8 S.C.R.
A
pressed into service by respondents and others was only
in respect of continuation of their license. Such a
disciplinary control would be available in case of all the
licensees in whatever Department the licenses are given.
A criminal cannot be allowed to enjoy a license nor could
B a person, who misbehave, could enjoy the continuation
of a license. That is not the test, muchless to hold such
persons to be the persons on the Government
establishment. Again, merely because the Rules provided
;,
that every deed must be copied and a copy thereof must
C be offered while registering the deed, it did not mean that
the Copywriters were doing any Government duties. The
concept of the Government servant's duty is entirely
different. What the Copywriters were doing, was only in
terms of their profession and for earning by copying. A
0 job of making a copy of the deed for some remuneration
is not a Government job nor does it involve a Government
duty. [Para 29] [375-G-H; 376-A-H; 377-A]
2.7. A person with horrible handwriting or a person
with illegible handwriting could never had been given this
E license, which essentially required good handwriting, so
that it should be legible cc py of the deed which is offered
for the registration. This certainly was not a Government
duty. The Government duty would start only after the
deed is presented for the registration. This would also
F include the checking as to whether the deed is
accompanied with by a legible copy thereof. But, writing
of the copy could never amount to a Government duty
or a statutory duty. A particular Copywriter having a good
reputation, a very good handwriting, may invite a rush of
G the clients and might have to refuse the work. That was
perfectly possible. Therefore, in the matter of their
working, there was no control and merely because they
hold the license to copy the deeds, it did not mean that
the Copywriters were doing any duty, which was even
H
STATE OF WEST BENGAL v. WEST BENGAL REGN. 343
COPY WRITERS ASSN.
distantly similar to the Government duty. [Para 30] (377A
8-F]
2.8. The essential of a master and servant relationship
is that the servant must be retained by the master for
doing any duties given by the master and the B
remuneration must flow from the master to the servant.
The servant must be under the total control of the master
-"
insofar as duties are concerned. There wa!:! no control as
such on the working of these Copywriters. They were
merely licensees and if there was any control, the control
was only on their licenses. There was no control over the C
manner in which they do their work of copying. Again,
there has to be a disciplinary. control which is
conspicuously absent in the instant case. The control
was only qua the licenses, their continuation or their
termination. It cannot be accepted that from the bare D
reading of the rule, there was a total control by the
Government over the working of these Copywriters.
These Copywriters did not get paid by the Government.
Government had no responsibility, whatsoever, to pay or
even to ensure that they got paid a particular amount. E
While one Copywriter could earn Rs.1,000/- a day, the
other could remain content with Rs.50 a day, depending
.1
upon the work that he has handed out. It was not the duty
of the Government to see that every Copywriter gets
some minimum wages. The concept of "payment of F
wages" by Government is totally absent. What the
Copywriters got and were entitled to get was a fees for
their services to the private persons, who wanted to get
their deed registered. Once all these factors are
considered cumulatively, it is obvious that there was no G
-'(
trace of master and servant relationship. (Para 31] (378A-G]
2.9. As regard the submission that there was a power
of transfer in the present Rules also and that showed the
H
344
SUPREME COURT REPORTS
[2009] 8 S.C.R.
y,..-
A ultimate control, in the first place, that power of transfer
is not an absolute power of transfer. It depends upon
contingency of the availability of the adequate number of
Ccpywriters in a particular district. That would not bE! a
decisive factor. [Para 37] [388-8-C]
B
2.10. A grant of license cannot clothe the Copywriters
with the status of Government servant nor wete they
doing any Government duty. There is very little or no
\,
material to suggest any master and servant relationship
c
between the Copywriters and the Government. It cannot
be held that there was master-servant relationship
between State Government and the Copywriters. [Paras
43 and 44) [393-8, D; 394-E-F]
2.11. The submission that if all the Copy\Vriters were
D to be accommodated as the Clerks in the Government
service, then more than 6000 posts would have to be
created and that would be a practical difficulty; that
majority of these Copywriters did not have the basic
qualification required and thus there would b~ a practical
E problem in accGmmodating these Copywriters; and all
that would not be possible without there being any Rules
under Article 309 of the Constitution, is correct. This
factor of the practical difficulty was completely if;nored
i.
in the impugned judgment. [Para 45] [394-G-H; 395-A]
F
2.12. The submission that such licenses are given in
number of other Departments where the creation of
service cannot be even conceived; that the claim of the
Copywriters that they were doing the essential service of
the Government is falsified from the fact that in the six
G Districts, the Copywriters Rules, 1999 have never been
implemented since inception and there are no such
.,..,-
copywriters available; that in those Districts the Xerox
copies of the documents are provided as their true
copies; that had the work of copywriters been essential,
H Government would not have dispensed with the services
..
STATE OF WEST BENGAL v. WEST BENGAL REGN. 345
COPY WRITERS ASSN.
of tne Copywriters in these six District; that the A
Copywriters did not execute any Governmental work nor
was their work essentially required for the working of
Registration Office, is correct. There are 6466 Deedwriters, 1200 Marriage Registrars, 20,000 Post-office
Agents, 40,000 Insurance Agents and 1100 Stamp
B
Vendors in the State of West Bengal. Clothing the
Copywriters with the Government Service would mean a
financial debacle for the State, is correct as each and
every licence granted by the Government does not
amount to service. [Para 46] [394-F-H; 395-A]
c
Workmen of Nilgiri Cooperative Marketing Society vs.
State of TN. and Ors. 2004(3) SCC 514; Official Liquidator
vs. Dayananda and Ors. 2008(10) SCC 1 and Secretary,
State of Kera/a vs. Umadevi 2006 (4) SCC 1, Relied on.
D
Dharamgadhra Chemical Works Limit vs. State of
Saurastra AIR 1957 SC 264; Chintaman Rao vs. State of
Madhya Pradesh AIR 1958 SC 388; The Superintendent of
Post Offices vs. P.K. Rajamma 1977 (3) SCC 94 and Ram
Singh vs. Union Territory, Chandigarh 2004(1) SCC 126,
E
Held inapplicable.
G.B. Pant University of Agriculture vs. State of Uttar
Pradesh 2000 (7) SCC 109, Distinguished.
State of Assam and Ors. vs. Shri Kanakchandra Dutta
F
AIR 1967 SC 884; The State of U.P. vs. Chandra Prakash
Pandey AIR 2001 SC 1298; Union Public Service
Commission vs. Girish Jayanti Lal Vaghela and Ors. 2006 (2)
SCC 482; State of Gujarat and Anr. vs. Raman Lal Keshav
Lal Soni and Ors. 1983 (2) SCC 33; Gurugobinda Basu vs.
G
Sankari Prasad Ghosal AIR 1964 SC 254; State of U.P. vs.
Audh Narain Singh AIR 1965 SC 360; D.R. Gurushantappa
vs. Abdul Khuddus Anwar 1969(1) SCC 466; S.L. Agarwal vs.
G.M. Hindustan Steel Ltd. 1970 (1) SCC 177; G.L. Shukla vs.
State of Gujarat ILR 1967 Guj 560; Divisional Manager,
H
346
SUPREME COURT REPORTS
[2009] 8 S.C.R
A Aravali Golf Club vs. Chander Hass 2008 (1) SCC 683;
Principal, Mehar Chand Polytechnic vs. Anu Lamba 2006(7)
SCC 161 and State of Haryana vs. Navneet Verma 2008 (2)
SCC 65, Referred to.
B
Cassidy vs. Ministry of Health 1951 (1) All ER 574; Short
vs. J.W. Henderson Ltd. 194ti (174) LT 417; Morren vs.
Swinton and Pendlebury Borough Council 1965 (2) All ER
349; Argent vs. Minister of Social Security 1968 (3) All ER
...
208, Referred to.
c
Case Law Reference:
AIR 2001 SC 1298
Referred to.
Para 13
AIR 1967 SC 884
Referred to.
Para 32,33, 34
D
2006 (2) sec 482
Referred to.
Para 35, 36
~- -
1951 (1) All ER 574
Referred to.
Para 35
1946 (174) LT 417
Referred to.
Para 35
1965 (2) All ER 349
Referred to.
Para 36
E
1968 (3) All ER 208
Referred to.
Para 36
1983 (2) sec 33
Referred to.
Para ~7
·•
AIR 1964 SC 254
Referred to.
Para 37
'•
F
AIR 1965 SC 360
Referred to.
Para 37
1969(1) sec 466
Referred to.
Para 37
1910 (1) sec 111
Referred to.
Para 37
G
ILR. 1967 Guj 560
Referred to.
Para 37
AIR 1957 SC 264
Held inapplicable Para 38
yAIR 1958 SC 388
Held inapplicable Para 38
H
1977 (3) sec 94
Held inapplicable Para 39
STATE OF WEST BENGAL v. WEST BENGAL REGN. 347
COPY WRITERS ASSN.
--{
2000 (7) sec 109
Distinguished
Para 39
A
2004(1) sec 125
Held inapplicable Para 40
2004(3) sec 514
Relied on
Para 40
2008 (1) sec 683
Referred to
Para 41
B
2006(7) sec 151
Referred to
Para 42
" ,
2008 (2) sec 65
Referred to
Para 43
2008(10) sec 1
Relied on
Para 44
c
2006 (4) sec 1
Relied on
Para 44
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3414 of 2009.
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From the Judgment & Order dated 16.4.2007 of the High D
Court of Calcutta in W.P.S.T. No. 826 of 2001.
WITH
C.A. No. 3415, 3416 of 2009.
E
Bhaskar P. Gupta, Jayanta Kr. Mitra (N.P.), Ranjit Kumar
(N.P.) Jaydip Kar, Rana Mukherjee, Goodwill lndeevar, Sanjiv
l
Sen, Anurag Pandey, Anip Sachthey, Dipak Kumar Jena,
Minakshi Ghose Jena, Sushil Thakur, V.N. Raghupathy,
Humayun Sahu, F.I. Choudhary, R.P. Goyal, Soumya
F
Chkrabotry, P. Narasimhan, R.K. Gupta, S.K. Gupta, Shekhar
Kumar, Anip Sachthey for the appearing parties.
The Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. This judgment will dispose of G
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SLP(Civil) No. 9921 of 2007, SLP(Civil) No. 10191 of 2007
and SLP(Civil) No. 12048 of 2007.
2. Leave granted in all the .Special Leave Petitions.
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348
SUPREME COURT REPORTS
[2009] 8 S.C.R.
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A
3. In all these appeals, the common judgment passed by
the Calcutta High Court, allowing W.P.S.T. No. 826 of 2001,
W.P.S.T. No. 1312 of 2001 and W.P.S.T. No. 15 of 2002, is in
challenge.
B
4. In those Writ Petitions filed before the High Court, a
common judgment dated 22.6.2001 passed by the West
Bengal State Administrative Tribunal (hereinafter called 'the
Tribunal' for short) in T.A. No. 391 of 1998, T.A. No. 392 of
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1998, O.A. No. 2377 of 1999 and O.A. No. 4636 of 1999,
c
dismissing all the original applications, was in challenge. The
High Court has set aside the order of the Tribunal and allowed
the original applications. While doing so, the High Court has
also granted certain reliefs. The State of West Bengal being
aggrieved by the same, has come up before us.
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5. Initially, before the High Court of Calcutta, a Writ Petition
,...
came to be filed being W.P. No. 1643 of 1996, by the
Registered Association of the Copywriters. One other similar
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Writ Petition was also filed vide W.P. No. 2304 of 1996. These
'
two Writ Petitions came to be transferred to the Tribunal, while
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two other original applications were also made before the
Tribunal by the individual Copywriters.
6. The common case emerging before the High Court was
t,
that the members of the West Bengal Registration Copywriters'
F
Association (hereinafter referred to as 'the Association'), as
well as, the applicants in the original applications were the
licensees under the West Bengal Registration (Copywriters)
Rules, 1982 (hereinafter called 'the Copywriters' Rules of 1982'
for short), which were replaced by the West Bengal Registration
(Copywriters) Rules, 1999 (hereinafter called 'the Copywriters'
G
Rules of 1999' for short). These Rules dealt with the subject of
.,.,..
preparing true copies of the documents, which were to be
presented for registration under the West Bengal Registration
(Filing of True Copies) Rules, 1979 (hereinafter called 'the
Copywriters' Rules of 1979' for short). They also fixed the
H
prescribed fees. The members of the Association were the
STATE OF WEST BENGAL v. WEST BENGAL REGN. 349
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
licensees under these Rules, who were given the licenses,
A
under which they alone could prepare the true copies of the
documents on receiving fees prescribed in the Rules. Such true
copies of the documents were compulsorily required to be filed
alongwith the documents, which were presented for registration.
The petitioners (respondents herein) mainly pleaded that they
B
had filed applications for their absorption/regularization as
,i
regular employees in the cadre of Lower Division Clerk
(hereinafter referred to as 'LDC' for short) under the concerned
authority. They also pleaded for an injunction against the
concerned authority from appointing any person in the cadre c
of LDC unless all the members of the Association were
accommodated in that post of the LDC. They pointed out that
they were doing the identical work of preparing copies as was
required to be done by the LDCs. They had i:1lso given a history
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of their struggle in their Writ Petitions/original applications. In
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short, the pleading was that they were suffering from insecurity,
having no chance of promotion or stability in the working field
and that they had also staged demonstration and had also gone
on strikes. However, such agitation was withdrawn on the basis
of the assurances given by the Finance Minister of State of E
West Bengal and yet nothing was done, and their several
representations were ignored. It was then pleaded that various
t
vacancies had cropped up in the office of the Registrars
,
throughout the State of West Bengal under the Inspector
General of Registration and accordingly, the Registrars had
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asked the employment exchanges to sponsor the names of the
eligible candidates for the purpose of appointment in the post
of LDC. It was pleaded that previously in the year 1978, the
respondent Government had absorbed some Copywriters
working in the office of Registrars throughout the State of West
G
Bengal as LDCs and all of them were employed under the
Registration Department. These Copywriters, who were so
accommodated were at that time, called as "Extra-muharrirs"
and that is how all the Extra-muharrirs then were awarded with
the permanent job and while doing so, even age was relaxed.
A parity was, therefore, pleaded that all the members, who were
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350
SUPREME COURT REPORTS
(2009] 8 S.C.R.
A holding the licenses as the Copywriters were identically placed
as those Extra-muharrirs and were working from 1984 and had
the requisite qualifications, expertise and experience to work
as LDC.
8
7. It was further pleaded that since they were licensed
Copywriters, they could not even now claim employment
through the employment exchange. They pointed out that the
licenses were given on the basis of tests and selections and
further on the basis that they were holders of employment.
exchange cards. It was further pleaded that they were doing their
C duties honestly, diligently, sincerely and continuously, without any
break and blemish as Copywriters and in fact, the Extramuharrirs who were accommodated, were doing exactly the
same work and as such, the members of the Association were
also entitled to be accommodated as the LDCs. They also
D pointed out that the said Copywriters were required to work
under the full control of the Government and yet they were being
refused absorption/regularization. In the Writ Petition filed
earlier before the High Court, which was transferred to the
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F
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Tribunal, the following prayers were made:-
(a)
A writ in the nature of mandamus do issue
commanding the respondents and/or their officers
and/or their subordinates to comply to their
assurances and representation by absorbing your
petitioner and their members in the regular cadre
of service under the respondent No. 2 in the post
of Lower Division Clerks;
(b)
A writ in the nature of mandamus do issue directing
the respondents and/or their subordinates and/or
their officers not to appoint any one as Lower
Division Clerk or in similar grade of service without
first appointing the petitioners and their members
in the service;
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(c)
A writ in the nature of mandamus do issue directing
.\
STATE OF WEST BENGAL v. WEST BENGAL REGN.351
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
(d)
the respondents and/or their officers and/or their A
subordinates to allow your petitioners and their
members to sit for the test either oral or in writing
of selection to the posts of Lower Division Clerks
having fallen vacant under the respondents herein;
B
A writ in the nature of mandamus do issue
commanding the respondent and their officers and
subordinates to allow each of the petitioners and
their members to sit in the examination for selection
to Lower Division Clerk. irrespective: of their period C
of lic~nse and employment exchange card;
(e)
A writ in the nature of prohibition do issue
prohibiting the respondents from appointing any
· one without appointing the petitioners and their
members first as the Lower Division Clerk;
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(f) to (k)
x
x x
x
x
x
x
x
8. This was opposed by the State of West Bengal by a
detailed reply on the ground that such absorption of the
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Copywriters in the regular cadre of services in the post of LDC
was not possible. It was pointed out that there was no
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employer-employee relationship between the members of the
Association i.e. Copywriters and the State of West Bengal,_ and-·
as such, the Tribunal had no jurisdiction to decide the issu-es
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raised. It was pointed out that the Copywriters were license
holders under the Copywriters' Rules of 1982 (at present under
the Copywriters' Rules of 1999) and they were merely holding
the licenses to be eligible to perform the duties of Copywriters.
Such duties were not under the State of West Bengal and in G
._,..
fact, the Copywriters were individual professionals and earned
fees for job by the public in general, who come in the
Registration Office for registering their documents. It was
pointed out that the licenses of the Copywriters merely enable
them to make out the copies of documents, which is a statutory
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352
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A requirement. As the Rules provide, for filing of the true copies
alongwith the documents which were produced before the
Registrar and since the Government had to ensure the
authenticity of such documents, accordingly, the Rules were
framed granting licenses to the Copywriters, who were
B authorized persons to prepare copy of the original documents.
It was pointed out that the absorption was not possible as the
recruitment rules did not provide for any such absorption and
there was no question of accommodating all these Copywriters
\.
as the LDCs. It was further pointed out that there were
. C recruitment rules for filling up the posts of LDCs and the
recruitment had to be done in terms of those rules. It was also
pointed out that the Extra-muharrirs, who were accommodated
earlier, as stated in the original applications, were a different
class altogether. They were in fact, the employees of the State
D Government and it was an individual cadre, which was redesignated as LDC following the recommendation of the First
"'I -
Pay Commission, constituted for that purpose. It was pointed
out that the petitioners (respondents herein) had deliberately
tried to mislead the Tribunal, knowing well that Extra-muharrirs
were in regular employment of the State Government and they
E were merely re-designated as the LDCs. It was also urged that
there were no assurances given, whatsoever, for
accommodating the said Copywriters in the post of LDC. Any
discrimination on the part of the State Government was also
t.
denied. In short, it was urged that the Writ Petitioners had no
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right, whatsoever, being accommodated as the LDCs.
9. While the matters were pending before the Tribunal, two
other original applications also came to be filed, they being
O.A. No. 4636of1999 and O.A. No. 2377of1999 on the same
G subject. All these matters were heard together by the Tribunal
and by its judgment dated 22.6.2001, the Tribunal dismissed
all the original applications, holding that there was no
relationship of master and servant and that the petitioners, i.e.,
the Copywriters (respondents herein) could not insist on their
H being absorbed in the post of LDCs.
STATE OF WEST BENGAL v. WEST BENGAL REGN. 353
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
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10. The only question, which was canvassed and decided A
by the Tribunal was as to whether the Copywriters have any
accrued right or. account of their rendering services as
Copywriters for being appointed as LDCs and/or whether the
petitioners (respondents herein) are eligible for their abso~ption
as LDCs. The Tribunal, inter alia, held that though it was true B
that the Copywriters were the creatures of the Copywriters'
Rules of 1982 as amended by the Copywriters' Rules of 1999,
.
,(
they were merely the license holders, which licenses were given
by the licensing authority after observing all formalities provided
in the said Rules. Their task was only to prepare, in the c
prescribed form, the true copies of the documents, which were
to be presented for registration under the Copywriters' Rules
of 1979. The Tribunal also held that though it was true that the
activities of the Copywriters were supervised by the authorities
concerned and in that sense, the respondent authority had the D
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control over the Copywriters, which included the cancellation/
suspension of the Copywriters' licenses, renewal etc. and further
though the Copywriters were allowed to sit in the office
premises and work under the control and supervision of the
office of the Registering Officers, yet it could not be said that E
there was any right created in their favour by their continuously
working since 1982 for being absorbed as the LDCs. The
Tribunal also came to the conclusion that they could not claim
JI
parity with Extra-muharrirs nor could it be said that there was
any gross indiscrimination on the part of the authorities in the
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said Copywriters' not being absorbed as the LDCs.
11. The Tribunal further found that the absorption or as the
case may be, regularization, could be directed only under the
Rules and that there were no such Rules nor any policy for
regularizing or absorbing the Copywriters as the LDCs. The G
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Tribunal made a distinction that in case of Extra-muharrirs, they
were considered to be the seasonal employees under the
Tehsildar or as the case may be, part time Government servants
under Rules 15 of the West Bengal Land Manual, 1977 and their
salaries/remuneration were payable from the public exchequer H
354
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A and as such, they were treated to be Government employees
and regularized. The Tribunal also found that the said Extramuharrirs were engaged in connection and for the purpose of
assisting the collection of land revenue, which was held to be
perennial type of a work, although their services were on the
8
seasonal basis. The Tribunal also further found that admittedly,
the Copywriters were not the casual workers, they were mere
license holders for the purposes of their livelihood and merely
because some facilities like accommodation etc. were
provided to them and because they were under the control of
C the authorities under the terms of license, it did not mean that
the said licensees were directly under the State Government
or there was relationship of master and servant between the
State Government and the Copywriters. The Tribunal further
found that insofar as the posts of LDC were concerned, there
were specific Recruitment Rules providing examination/
D interview and in the absence of any provision, the petitioners
(respondents herein) could not claim to be absorbed as LDCs,
giving the complete go-by to the Recruitment Rules framed
under Article 309 of the Constitution of India. The Tribunal
specifically found that the license was hereditary in nature,
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whereas, employment under such was not so and it
distinguished the status of the petitioner (respondents herein).
Giving the findings, the Tribunal dismissed all the original
applications.
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12. The petitioners (respondents herein) then filed the Writ
Petitions before the Calcutta High Court, challenging the
common judgment by way of W.P.S.T. No. 826 of 2001,
W.P.S.T. No. 1312 of 2001 and W.P.S.T. No. 15 of 2002. All
these Writ Petitions were heard and were disposed of by the
G common judgment passed by the Division Bench of the
Calcutta High Court. The High Court in its impugned judgment
found that there existed relationship of master and servant
between the State Government and the Copywriters appointed
under the Rules and in reality, the relationship was not that of
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licensee or licensor.