Holding

A contractual appointee who is not selected under the recruitment rules does not acquire the status of a government servant and is therefore not eligible for the age‑relaxation benefit.

Summary

Girish Jayanti Lal Vaghela was appointed as a Drugs Inspector on a six‑month renewable contract from 1996, without a public advertisement or selection under the recruitment rules. When the UPSC advertised a regular selection in 2001, the upper age limit of 30 years (relaxable by five years for government servants) applied, but Vaghela was over‑age by two years. He sought an age‑relaxation certificate; the Central Administrative Tribunal held he was not a government servant and denied the relief. The Bombay High Court reversed that decision, directing issuance of the certificate. On appeal, the Supreme Court examined whether a short‑term contractual appointee, appointed de hors the rules, qualifies as a "government servant" under Rule 2(h) of the Central Civil Service Rules and is therefore eligible for age relaxation. Relying on the constitutional provisions (Arts 16, 309, 311) and the definition of a civil post, the Court held that such a contractual employee does not acquire the status of a government servant and is ineligible for the relaxation. Consequently, the High Court’s order was set aside and the petition dismissed.

Issues considered

Whether a person appointed on a short‑term contract, outside the recruitment rules, is a "government servant" within the meaning of Rule 2(h) of the Central Civil Service (Classification, Control and Appeal) Rules.
Whether such a contractual appointee is entitled to the age‑relaxation provision applicable to government servants under the Central Civil Service Rules.

Legislation cited

Constitution of Indias. Article 16, s. Article 309, s. Article 311

Subjects

Government servantContractual appointmentAge relaxationArticle 16Rule 2(h)Central Civil Service RulesStatus vs contractUPSCDrugs InspectorRecruitment rules

Judgment

' A UNION PUBLIC SERVICE COMMISSION
v ~ '
GIRISH JAYANTI LAL VAGHELA AND ORS

FEBRUARY 2, 2006

B [K.G. BALAKRISHNAN AND G.P. MATHUR, JJ.]

Central Civil Service (Classification, Control and Appeal) Rules-
Rule 2(h)-Relaxation of Upper Age limit-Entitlement of-Respondent
appointed on contract basis for a short period at a fIXed salary de hors the
c recruitment rules--Claimed relaxation of upper age limit provided for by the
rules for Government servants--Held. since the appointment was purely
contractual, he has not acquired the status of Government servant-Hence,
not eligible for any relaxation in upper age limit for Government servants.

D Constitution of India, 1950-Article 16--objecl and scope of-Held
object is to create a constitutional right to equality of opportunity and
employment in public office-It covers not merely the initial appointment but
also other attributes of service like promotion and age of superannuation,
etc.

E Articles 311, 309--Civil Post, Concept of and conditions of Service-
Test for determining whether a person is a holder of civil post under Union
or state-Discussed-Conditions of service determined by statutory rules.

Articles 16, 309 and 311-Government Employment-Whether
contractual-Held. employment under the Government is a matter of status '
F and not a contract-Rights and obligations are determined by the statutory
rules and not by contract.

Respondent No.I was appointed as Drugs Inspector in 1996 on short
term contract basis on a fixed salary for a period of six months from the date
of joining or till the date the candidate selected by lJPSC joined duty on regular
G basis, whichever was earlier. His appointment was renewed after every six
months with short breaks and it continued for over live years. An advertisement
was issued by the lJPSC in 2001 for making regular selection to the post of •
"

-
Drugs Inspector. As per rules, upper age limit for making direct recruitment
is 30 years, relaxabie for Government servants up to five years. Respondent
H 1006
UNIO~ PUBLIC SERVICE COMMISSION ,._GIRISH JAYANT! LAL VAGHELA J007

' had become over-age by two years at the time when advertisement was issued. A -_
-~ His application to the Administrator for issuing him an age relaxation
certificate was refused. UPSC cancelled the candidature of respondent. The
contract appointment given to him came to an end and it was not extended any
further. His application to Tribunal was dismissed on the ground that since
his appointment was made only on short term contract basis de hors the B
recruitment rules, he was not a Government servant and was, therefore, not
eligible for relaxation in upper age limit. The Bombay High Court allowing
the wrir petition of respondent, directed the Administrator to issue an age
~ relaxation certificate to him. Hence the appeal by UPSC to this Court.

Allowing the appeal, the Court
c
HELD : 1.1. Rule 2(h) of Central Civil Service (Classification, Control
and Appeal) Rules, define a Government servant. As per this Rule a person
who is a member of service or holds a civil post under the Union or the State
Government is a Government servant. (1013-G, H; 1014-AJ
D
1.2. Article 16 which finds place in Part III of the Constitution relating
to fundamental rights provides that there shall be equality of opportunity for
all citizens in matters relating to employment or appointment to any office
under the State. The main object of Article 16 is to create a constitutional
right to equality of opportunity and employment in public office. The word
"employment" or "appointment"_cover not merely the initial appointment but E
also other attributes of service like promotion and age of superannuation etc.
The appointment to any post under the State can only be made after a proper
advertisement has been made inviting applications from eligible candidates
and holding of selection by a body of experts or a specially constituted
committee whose members are fair and impartial through a written F
examination or interview or some other rational criteria for judging the inter
se merit of candidates who have applied in response to the advertisement made.
A regular appointment to a post under the State or Union can not be made
without issuing advertisement in the prescribed manner which may in some
cases include inviting applications from the employment exchange where
eligible candidates get their names registered. Any regular appointment made G
on a post under the State or Union without issuing advertisement inviting
application from eligible candidates and without holding a proper selection
where all eligible candidates get a fair chance to compete would violate the
guarantee enshrined under Article 16 of the Constitution.
(1015-F, G, H; 1016-A, Bl H
1008 SUPREME COllRT REPOR1 S [2006J I S.C.R.

A B.S. Minhas v. Indian Statistical Institute, AIR (1984) SC 363, relied ,
upon.

2.1. Article 309 lays down that subject to the provisions of the
Constitution, Acts of the appropriate Legislature may regulate the
recruitment, and conditions of service of persons appointed, to public services
B and posts in connection with the affairs of the Union or of any State. The
proviso to this Article confers power upon the President or the Governor, as
the case may be, to make rules regulating the recruitment and the conditions
of service of persons appointed to services and posts in connection with the
affairs of the Union or the State. Article 311 affords several protections to
C persons employed in civil capacities under the Union or a State. In view of
clause (2) of this Article, holder of a civil post under the Union or a State
cannot be dismissed or removed or reduced in rank except after an inquiry in
which he has been informed of the charges against him and he is given a
reasonable opportunity of being heard in respect of those charges.
[!016-C, DI
D
2.2. Employment under the Government is a matter of status and not a
contract eventhough the acquisition of such a status may be preceded by a
contract, namely, an offer of appointment is accepted by the employee. The
rights and obligations are not determined by the contract of the two parties
but by statutory rules which are framed by the Government in exercise of
E power conferred. by Article 309 of the Constitution and the service rules can
be unilaterally altered by the rule making authority, namely, the Government.
[I019-E, Fl

Roshan Lal Tandon v. Union of India, AIR (1967) SC 1889 and Dinesh
Chandra v. State ofAssam, AIR (1978) SC 17, relied upon.
"
F
Cassidy v. Ministry of Health, [1951[ 1 All ER 574; Short v. J.&W
Henderson Limited, (1946) 174 Law Times 417; Morren v. Swinton and
Pendlebury Borough Council, [ 1965[ 2 All ER 349 and Argent v. Minister of
Social Security, [1968[ 3 All ER 208, referred to.

G State of Assam v. Kanak Chandra Dulla. AIR (1967) SC 884 and State
of Gujarat v. Raman Lal Keshav Lal, AIR (1984) SC 161, distinguished.

3. A private employer in India enjoys almost a complete freedom to select ..,. •
and appoint anyone he likes and there is no statutory provision mandating
advertisement of the post or selection being made strictly on merit, even where
•
H some kind of competitive examination is held. A private employer has absolute

·-
UNION PUBLIC SERVICE COMMISSION v.GIRISH IAYANTI LAL VAGHELA
1009
liberty to appoint a less meritorious person. Except those who are covered by A
,., th;! definition of "workman" and governed by the provisions of Industrial
Disputes Act or any such allied enactment, an employee working in a private
establishment normally does not enjoy any statutory protection regarding his
tenure of service. In the case of a regular Government servant there is
undoubtedly a relationship of master and servant but on account of
constitutional provisions like Articles I 6, 309 and 311 his position is quite B
different from a private employment. (1016-E, F; 1017-B]

"\ State of Assam v. Kanak Chandra Dutta, Af (I967) SC 884; State of
Gujarat v. Raman Lal Keshav Lal, AIR (1984) SC16I, distinguished.

4. Respondent no.I was engaged or hired on contract to work as Drugs c
Inspector for a period of six months from the date of joining'or till a candidate
selected by UPSC joined on regular basis, whichever was earlier. The contract
further stipulated that even if a regularly selected candidate did not join,
respondent no.I shall stand relieved on the expiry of six months. It is,
therefore, clear that respondent No.1 did not have any right to continue as D
I Drugs Inspector after expiry of the six months period for which he had been
~ appointed. It is neither pleaded nor there is any material to show that the
appointment of respondent no.I had been made after issuing public
advertisement or the body authorized under the relevant rules governing the
conditions of service of Drugs Inspectors in the Union Territory of Daman
and Diu had selected him. His contractual appointment for six months was de E
hors the rules. The appointment was not made in a manner which could even
remotely be said to be compliant of Article I6 of the Constitution. The
appointment being purely contractual, the stage of acquiring the status of a
/ Government servant had not arrived. While working as a contractual employee
respondent no.I was not governed by the relevant service rules applicable to F
Drugs Inspector. He did not enjoy the privilege of availing casual or earned
leave. He was not entitled to avail the benefit of general provident fund nor
was he entitled to any pension which are normal incidents of a Government
service. Similarly he could neither be placed under suspension entitling him
to a suspension allowance nor he could be transferred. Some of the minor
penalties which can be inflicted on a government servant while they continue G
to be in Government service could not be impo~ed upon him nor he was entitled
to any protection under Article 3I I of the Constitution. In view of these
""' 1 features it is not possible to hold that respondent no.I was a Government
servant. Therefore, he was not eligible for any relaxation in upper age limit.
The view taken by the High Court is clearly erroneous in law and is liable to H
1010 SUPREME COURT REPORTS (2006) I S.C.R.

A be set aside. (1019-G, H; 1020-A, E, F, G, H; 1022-B]

Director, Institute of Management Development v. Pushpa Srivastava,
AIR (1992) SC 2070 ; State of Haryana v. Surinder Kumar, (1997] 3 SCC
633 ; State of Haryana v. Charan) it Singh, JT (2005) 12 475 and Phool Badan
Tiwari v. Union of India, (2003] 9 SCC 304, relied upon.
B
State of Assam v. Kanak Chandra Dutta, AIR (1967) SC 884; State of
Gujarat v. Raman Lal Keshav Lal, AIR (1984) SC 161; Supdt. of Post Offices
v. P. K. Rajamma, [1977] 3 SCC 94; Purshottam Dhingra v. Union of India,
'
AIR 1958 SC 36 and State of U.P. v. Chandra Prakash Pandey, (2001( 4 SCC
78, distinguished.
c CIVIL APP ELLA TE JURISDICTION : Civil Appeal No. 933 of 2006.

From the Judgment and Order dated 13 .12.2002 of the Bombay High
Court in Writ Petition No. 1918 of2002.

G.E. Vahanvati, S.G., Ms. Binu Tamta, Shreekant N. Terdal and V.K.
D Verma for the Appellant.

B. Datta, A.S.G. K. Ramamurthy, Imtiaz Ahmed, D.S. Mahra, Ravi Prakash,
Prashant Chaudhary, Pardeep Gupta (for K.K. Mohan) and Rajeev Sharma (for
Rameshwar Prasad Goyal) for the Respondents.

E The Judgment of the Court was delivered by

G.P. MATHUR, J. Leave granted.

2. This appeal, by special leave, has been filed challenging the judgment
and order dated 13.12.2002 of the Bombay High Court by which the writ
petition filed by respondent no. I, Girish Jayanti Lal Vaghela was allowed.
F
3. Respondent no. I, Girish Jayanti Lal Vaghela was appointed as Drugs
Inspector on 11.3.1996 on short term contract basis on a fixed salary for a
period of six months from the date of joining or till the date the candidate
selected by Union Public Service Commission (UPSC) joined duty on regular
G basis, whichever was earlier. The appointment of respondent no. I was renewed
after every six months with short breaks and it continued for over five years.
An advertisement was issued by the UPSC on 24.3 .200 I for making regular
selection on the post of Drugs Inspector. Under the relevant recruitment rules
made in exercise of powers conferred by proviso to Article 309 of the
Constitution, the upper age limit for making direct recruitment is 30 years,
H which is relaxable for Government servants upto five years in accordance with
)<

UNION PUBLIC SERVICE COMMISSION ··.GIRISH JAY ANTI LAL VAGllELA fG p \tATHUR, J.f I 011

the instructions or orders issued by the Central Government. Respondent A
... No. I had become over-age by two years at the time when the advertisement
'>
was issued and consequently he submitted an application to the Administrator,
Union Territory of Daman and Diu (for short "Administrator") for issuing him
an age relaxation certificate. Since there was no response, respondent no. I
filed an Original Application on 16.7.2001 before the Central Administrative
Tribunal, Bombay (for short "Tribunal") praying that a direction be issued tu B
the Administrator to issue him an age relaxation certificate. The Tribunal vide
)
its order dated 17.7.2001 directed the Administrator to decide the representation
made by respondent no. I. Meanwhile, respondent no. I was provisionally
\ allowed to appear in the interview. On account of refusal of the Administrator
to grant age relaxation certificate, respondent no. I filed second Original c
Application before the Tribunal which passed an interim order to the effect
that any appointment made on the post of Drugs Inspector would be subject
to the outcome of the Original Application. Nearly 5 months after the interview,
the UPSC cancelled the candidature of respondent no. I and recommended the
name of respondent no.4, Naresh Sharma for the post of Drugs Inspector. The
f contract appointment given to respondent no. I came to an end on 30.9.2002 D
·I and it was not extended any further. The second Original Application was
dismissed by the Tribunal vide order dated 21.6.2002 on the finding that the
appointment of respondent no. I was made only on short term contract basis
and he had not been appointed by following the recruitment rules and further
that the intention of the Government was to provide relaxation in age only E
to regular Government servants and not to those who have been appointed
on ad hoc basis de hors the rules. Feeling aggrieved by the aforesaid decision
of the Tribunal, respondent no. I filed a writ petition before the Bombay High
; Court which was allowed by the order dated 13.12.2002 and the-Administrator
was directed to issue an age relaxation certificate to res.pondent no. I. A
further direction was issued to the appellant U.P.S.C. to consider the claim of F
respondent no. I and for making a recommendation to the Administrator for
issuing him an offer of appointment as Drugs Inspector.

4. Before examining the contention raised by learned counsel for the
parties, it will be convenient to set out the order dated 11.3.1996, by which
respondent no. I was initially appointed on short term contract basis.
G

"ORDER
¥

The Administrator of Daman and Diu and Dadra and Nagar Have Ii
is pleased to appoint Shri Vaghela Girish Jantilal to the post of Drugs
H
1012 SUPREME COURT REPORTS [20061 I S.C.R.

A Inspector on short term contract basis at a fixed monthly rate of
Rs. 4,720 (Rupees four thousand seven hundred and twenty only) and
to post him in the Primary Health Centre, Daman for a period of six
months only from the date of joining or till the date the Union Public
Service Commission selected candidate joins his duties on regular
basis, whichever is earlier.
B
Shri Vaghela Girish Jantilal shall stand relieved on expiry of six
months from the date of joining or on the date the Union Public
Service Commission selected candidate joins his duties on regular
basis whichever is earlier.

C By order and in the name of the Administrator of Daman & Diu
& Dadra & Nagar Haveli."

The aforesaid appointment order was renewed from time to time with
short breaks offew days. At the time when the UPSC issued the advertisement
on 24.3.200 I for making regular selection on the post of Drugs Inspector,
D respondent no.1 was working on the said post on contract basis. As already
stated, under the relevant recruitment rules for the post of Drugs Inspectors,
the upper age limit for direct recruitment is 30 years, which is relaxable for
Government servants upto 5 years in accordance with the instructions or
orders issued by the Central Government. If respondent no. I was a Government
E servant, he would be eligible for relaxation of upper age limit. The Tribunal
has heid that respondent no. I was not a Government servant and was,
therefore, not eligible for relaxation in upper age limit. This view of the
Tribunal has been reversed by the High Court. The crucial question which
requires consideration is whether a person working on a short term contract
'
basis can be said to be a Government servant.
F
5. The problem of defining what is an employer and employee relationship
and what is an independent entrepreneurial dealing frequently arises before
the courts. Difficulty arises in defining what is a "contract of service" and
what is "contract for service". In Cassidy v. Ministry of Health, [I 951] I All
G ER 574, after referring to some earlier decisions, it was held that in a "contract
for services" the master can order or require what is to be done, while in the
other case (a contract of service) he can not only order or require what is to
be done but direct how it shall be done. The House of lords in Short v. J.
& W. Henderson, limited ( 1946) 174 Law Times 417, laid down the attributes
of employer-employee relationship which have been followed in later decisions.
H In this case the appellant, who was a dock labourer, sustained injuries by
UNION PUBLIC SERVICE COMMISSION,. GIRISH JAY ANTI LM. VAGHELA (GP. MATHUR. J.] J Qj J

accident and claimed compensation against the respondents under the A
• Workmen's Compensation Act, 1925. The respondents contended that the
appellant was not a workman within the meaning of Section 3(1) of the said
Act but was a member of a joint stevedoring adventur~. The House laid down
the following four indicia of contract of service, namely, (a) the master's power
of selection of his servant; (b) the master's responsibility of payment of
wages or other remuneration; (c) the master's right of suspension or dismissal;
B
and (d) the master's right to control the method of doing the work. It was also
observed that a contract of service may still exist if some of these elements
• are absent altogether, or, present only in an unusual form and that the
I principal requirement of a contract of service is the right of the master in some
reasonable sense to control the method of doing the work, and that this factor c
of superintendence and control has always been treated as critical and decisive
of the legal quality of the relationship.
'I

6. Though in many cases the importance of the factor of superintendence
and control has been emphasized but that is not the determining test. In
Morren v. Swinton and Pendlebury Borough Council, [1965] 2 All ER 349, D
Lord Parker, C.J. held that superintendence and control cannot be the decisive
test when one is dealing with a professional man or a man of some particular
~ skill and experience. Instances of that have been given in the form of the
master of a ship, an engine driver, a professional architect or a consulting
engineer. In such cases there can be no question of the employer telling him
E
·how to do work; therefore, the absence of control and direction in that sense
can be of little, if any, use as a test. In Argent v. Minister of Social Security,
[I 968] 3 All ER 208, it was observed that though in earlier cases it seems to
_)
have been suggested that the most important test, if not the all important test,
was the extent of control exercised by the employer over the servant but as
the development of law in recent times in this field indicates, the emphasis F
has shifted and no longer rests so strongly on the question of control.
Control is obviously an important factor. In some cases it may still be the
decisive factor, but it is wrong to say that in every case it is the decisive
factor.

7. Rule 2(h) of Central Civil Service (Classification, Control and Appeal) G
Rules, define a Government servant and it reads as under :

, "2(h) "Government se1Tant" means a person who -

(i) is a member of a Service or holds a civil post under the Union,
and includes any such person on foreign service or whose services H
..,
'·
1014 SUPREME COURT REPORTS [2006) I S.C.R.

A are temporarily placed at the disposal of a State Government, or a local
or other authority;

(ii) is a member of a Service or holds a civil post under a State
Government and whose services are temporarily placed at the disposal
of the Central Government;
B
(iiQ is in the service of a local or other authority and whose services
are temporarily placed at the disposal of the Central Government."

It will be noticed that under sub-rule (i), a person who is a member of
service or holds a civil post under the Union is a Government servant.
C Similarly, under sub-rule (ii), a person who is a member of a service or holds
a civil post under the State Government is a Government servant. Therefore,
it is a holder of a civil post whether under the Union or State Government,
who will be a Government servant for the purposes of the Central Civil
Services (Classification, Control and Appeal) Rules. We are not concerned
here with sub rule (iii) whereunder a person in the service of a local or other
D authority and whose services are temporarily placed at the disposal of the
Central Government gets the status of a Government Servant.

8. There are several decisions of this Court wherein the concept of civil
post has been explained and the first decision on the point is State of Assam
E v. Kanak Chandra Dul/a, AIR ( 1967) SC ggli_ In this case the respondent who
was a Mauzadar in the Assam Valley was dismissed from service in disregard
of the provisions 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 :
F
" ..... A post is a service or employment. A person holding a post under
a State is a person serving or employed under the State, see the
marginal notes to Articles 309, 310 and 311. The heading and the sub-
heading of Part XIV and Chapter I emphasize the element of service.
There is a relationship of master and servant between the State and
G 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
H
UNION PUBLIC SERVICE COMMISSION •·.GIRISll JA YANTI I.Al. VAGHELA [G.P. MA THUR. J I JQJ5

indicia, in conjunction with other circumstances and it is a question A
of fact in each case whether there is such a relation between the State
and the alleged holder of a post."

9. The question as to who can be said to be holder of civil post under
the Government was examined by a Constitution Bench in State of Gujarat
v. Raman Lal Keshav Lal, AIR (1984) SC I61 and after review of several earlier B
decisions the Bench recorded its conclusions as under :

"..... We do not propose and indeed it is neither politic nor possible
to lay down any definitive test to determine when a person may be
said to hold a civil post under the Government. Several factors may
indicate the relationship of ma~ter and servant. None may be C
conclusive. On the other hand, no single factor may be considered
absolutely essential. 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 D
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
each case, it is a question of fact whether a person is a servant of the E
State or not."

IO. Article 16 which finds place in Part III of the Constitution relating
to fundamental rights provides that there shall be equality of opportunity for
all citizens in matters relating to employment or appointment to any office
under the State. The main object of Article 16 is to create a constitutional right F
to equality of opportunity and employment in public offices. The words
"employment" or "appointment" cover not merely the initial appointment but
also other attributes of service like promotion and age of superannuation etc.
The appointment to any post under the State can only be made after a proper
advertisement has been made inviting applications from eligible candidates G
and holding of selection by a body of experts or a specially constituted
committee whose members are fair and impartial through a written examination
or interview or some other rational criteria for judging the inter se merit of
candidates who have applied in response to the advertisement made. A
regular appointment to a post under the State or Union cannot be made
H
1016 SUPREME COURT REPORTS [2006] 1 S.C.R.

A without issuing advertisement in the prescribed manner which may in some
cases include inviting applications from the employment exchange where ,.
eligible candidates get their names registered. Any regular appointment made
on a post under the State or Union without issuing advertisement inviting
applications from eligible candidates and without holding a proper selection
B where all eligible candidates get a fair chance to compete would violate the
guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas
v. Indian Statistical Institute and Ors., AIR ( 1984) SC 363 ).

11. Article 309 lays down that subject to the provisions of the
Constitution, Acts of the appropriate Legislature may regulate the recrnitment,
C and conditions of service of persons appointed, to public services and posts
in connection with the affairs of the Union or of any State. The proviso to
this Article confers power upon the President or the Governor, as the case
may be, to make rules regulating the recruitment and the conditions of service
of persons appointed to services and posts in connection with the affairs of
the Union or the State. Article 311 affords several protections to persons
D employed in civil capacities under the Union or a State. In view of clause (2)
of this Article, holder of a civil post under the Union or a State cannot be
dismissed or removed or reduced in rank except after an inquiry in which he
has been informed of the charges against him and h~ is given a reasonable
opportunity of being heard in respect cf those charges.
E 12. A private employer in India enjoys almost a complete freedom to
select and appoint anyone he likes and there is no statutory provision mandating
advertisement of the post or selection being made strictly on merit, even
where some kind of competitive examination is held. A private employer has
absolute liberty to appoint a less meritorious person. Except those who are
F covered by the definition of "workman" and are governed by the provisions
of Industrial Disputes Act or any such allied enactment, an employee working
in a private establishment normally does not enjoy any statutory protection
regarding his tenure of service.

13. Though in State of Assam v. Kanak Chandru Dul/a (supra) and in
G the Constitution Bench decision in State of Cujarut v. Ramun Lui Keshav Lal
(supra) the decision of House of Lords in Short v. .I & W Henderson and
other English cases were not referred to but it appears that this Court
adopted almost the same test for ascertaining whether a person holds a civil
post under the Union or a State. But in England these tests were adopted in
H order to find out whether there was a relationship of master and servant and
UNION PUBLIC SERVICE C0'1.\11SSION ··GIRISH JAYANTI LAL VAGHELA [GP. MATHUR.JI I 017

. particularly in the context of private employment. In our country there is a A
I substantial difference between an employee working in a private establishment
and a Government servant on account of the aforesaid constitutional
provisions. Therefore, the indicia laid down in State of Assam v. Kanak
Chandra Du/la (supra) and State of Gujarat v. Raman Lal Keshav Lal,
(supra) cannot be the only tests for determining whether a person is holder B
of a civil post under the Union or the State. In the case of a regular Government
servant there is undoubtedly a relationship of master and servant but on
account of constitutional provisions like Articles I6, 309 and 311 his position
is quite different from a private employment.

I4. The nature of right possessed by a Government servant and also C
his status after his appointment to a post under the Government was considered
by a Constitution Bench in Roshan Lal Tandon v. Union of India, AIR (1967)
SC 1889 and it was held as under in para 6 of the reports :

"6........... It is true that the origin of Government service is contractual.
There is an offer and acceptance in every case. But once appointed D
to his post or office the Government servant acquires a status and his
rights and obligations are no longer determined by consent of both
parties, but by statute or statutory rules which may be framed and
altered unilaterally by the Government. In other words, the ·legal
position of a Government servant is more one of status than of
contract. The hall-mark of status is the attachment to a legal E
relationship of rights and duties imposed by the public law and not
by mere agreement of the parties. The emolument of the Government
servant and his terms of service are governed by statute or statutory
rules which may be unilaterally altered by the Government without the
consent of the employee. It is true that Article 311 imposes p
constitutional restrictions upon the power of removal granted to the
President and the Governor under Article 310. But it is obvious that
the relat_ionship between the Government and its servant is not like
an ordinary contract of service between a master and servant. The
legal relationship is something entirely different, something in the
nature of status. It is much more than a purely contractual relationship G
voluntarily entered into between the parties. The duties of status are
fixed by the law and in the enforcement of these duties society has
an interest. In the language of jurisprudence status is a condition of
membership of a group of wbich powers and duties are exclusively
determined by law and not by agreement between the parties concerned. H
1018 Sl'.PRE!'v1E COl'Rl REPORTS [20061 I S.C.R.

A The matter is clearly stated by Salmond and Williams on Contracts as
,
follows:

"So we may find both contractual and status-obligations produced
by the same transaction. The one transaction may result in the creation
not only of obligations defined by the parties and so pertaining to the
B sphere of contract but also and concurrently of obligation defined by
the law itself, and so pertaining to the sphere of status. A contract
of service between employer and employee, while for the most part
pertaining exclusively to the sphere of contract, pertains also to that
of status so far as the law itself has seen fit to attach to chis relation
compulsory incidents, such as liability to pay compensation for
c accidents. The extent to which the law is content to leave matters
within the domain of contract to be determined by the exercise of the
autonomous authority of the parties themselves, or thinks fit to bring
the matter within the sphere of status by authoritatively detennining
for itself the contents of the relationship. i'> a matter depending on
D considerations of public policy. In such contracts as those of service
the tendency in modern times is to withdraw till matter more and more
from the domain of contract into that of status." (Salmond and Williams
on Contracts, 2nd edition, p.12)"

15. In Dinesh Chandra v. State ofAssam, AIR (1978) SC 17 the contention
E that the relationship between the Government servant and the Government is
contractual in nature was not accepted and was specifically repelled. It will
be useful to reproduce para 11 of the reports where the conclusions were
recorded :

"I I. Mr. Niren De submits that Article 310(2) supports his submission
F that the relationship between the Government servant and the
Government is contractual. Sub-article (2) of Article 310 provides that
"notwithstanding that a person holding a civil post under the Union
or a State holds office during the pleasure of the President or, as the
case may be, of the Governor of the State, any contract under which
G a person, not being a member of a defence service or of an all-India
service or of a civil service of the Union or a State, is appointed under
this Constitution to hold such a post may, if the President or the
Governor, as the case may be, deems it necessary in order to secure
the services of a person having special qualifications, provide for the
payment to him of compensation, if before the expiration of an agreed
H period that post is abolished or he is. for reasons not connected with
UNIO~ PUBLIC SERVICE COMMISSION >".GIRISH JAY ANTI LAL VAGHELA [G.P. MATHUR. J.] JQJ9

any misconduct on his part, required to vacate that post". The above A
'' is a special provision which deals with a special situation where a

I contract is entered into between the Government and a person
appointed under the Constitution to hold a civil post. But simply
because there may be, in a given case, a contractual employment, as
envisaged under Article 310(2) of the Constitution, the relationship of
all other Government servants, as a class, and the Government, cannot B

.. \
be said to be contractual. It is well-settled that except in the case of
a person who has been appointed under a written contract, employment
under the Government is a matter of status and not of contract even
though it may be said to have started, initially, by a contract in the
sense that the offer of appointment is accepted by the employee." c
Again in para 12 the Court said as under :

"12 .................... It goes without saying that in many employments,
whether of private limited companies or public companies, contracts
of employment are executed containing a term for termination of D
employment by notice. Such cases of contractuai employment are
< different from those of Government employees whose employment is
a matter of status and not of ordinary contract. The conditions of
service of a Government servant are regulated by statute or statutory
rules made under Article 309 of the Constitution .............. "
E
It, therefore, follows that employment under the Government is a matter
of status and not a contract even though the acquisition of such a status may
be preceded by a contract, namely, an offer of appointment is accepted by
.. the employee. The rights and obligations are not determined by the contract
of the two parties but by statutory rules which are framed by the Government
in exercise of power conferred by Article 309 of the Constitution and the F
service rules can be unilaterally altered by the rule making authority, namely,
the Government.

16. There is no dispute that respondent no.1 was engaged or hired on
contract to work as Drugs Inspector for a period of six months from the date
G
of joining or till a car.didate selected by UPSC joined on regular basis,
whichever was earlier. The contract further stipulated that even if a regularly
selected candidate did not join, respondent no.1 shall stand relieved on the
expiry of six months. In Director, Institute of Management Development v.
Pushpa Srivastava. AIR ( 1992) SC 2070 it was held that where the appointment
is purely on ad hoc basis and is contractual and by efflux of time the H
1020 SUPREME COl!RT REPORTS [2006[ I S.C.R.

A appointment comes to an end, the person holding such post can have no T
right to continue in the post. It was further held that this is so e.ven if the
person is continued from time to time on ad hoc basis for more than a year.
In State of Haryana v. Surinder Kumar. [ 1997] 3 SCC 633 the respondents
were appointed as clerks on contract basis. They filed a writ petition in the
B High Court for their regularisation which was allowed and a direction was
issued for payment of wages on the principle of 'equal pay for equal work'
and also regularisation of their services. In appeal this Court reversed the
judgment of the High Court holding that as the respondents' recruitment was
not made in accordance with the rules and they were appointed on contract
basis on daily wages, they cannot have any right to the post as such until
C they are duly selected and appointed. This decision was followed by a three-
Judge Bench in State of Haryana v. Charanjit Singh and Ors.. JT (2005) 12
475 and it was held that where a person is employed under a contract, it is
the contract which will govern the terms of contract of service and not the
rules framed under Article 309 of the Constitution governing the conditions
of service to the post on which he is employed. It is, therefore, clear that
D respondent No. I did not have any right to continue as Drugs Inspector after
expiry of the six months period for which he had been appointed.

17. It is neither pleaded nor there is any material to show that the
appointment of respondent no. I had been made after issuing pub!'ic .
advertisement or the body authorized under the relevant rules governing the
E
conditions of service of Drugs Inspectors in the Union Territory of Daman
and Diu had selected him. His contractual appointment for six months was de
hors the rules. The appointment was not made in a manner which could even
remotely be said to be compliant of Article 16 of the Constitution. The
appointment being purely contractual, the stage of acquiring the status of a
F Government servant had not arrived. While working as a contractual employee
respondent no. I was not governed by the relevant service rules applicable
to Drugs Inspector. He did not enjoy the privilege of availing casual or earned
leave. He was not entitled to avail the benefit of general provident fund nor
was entitled to any pension which are normal incidents of a Government
G service. Similarly he could neither be placed under suspension entitling him
to a suspension allowance nor he cou Id be transferred. Some of the min or
penalties which can be inflicted on a Government servant while they continue
to be in Government service could not be imposed upon him nor he was
entitled to any protection under Article 311 of the Constitution. In view of
these features it is not possible to hold that respondent no. I was a Government
H servant.
L"O' PUBLIC SERVICE COMMISSION,. GIRISH JAY ANTI LAL VAGHELA [GP " ..\THUR. J] 1021

18. The situation here is somewhat similar to that considered by this A
Court in Phool Sadan Tiwari v. Union of India, (2003] 9 SCC 304. In this case
the appellants who were appointed by railway authorities as supervisors in
Handicap Centres filed an Original Application before Central Administrative
Tribunal for claiming regularisation of their services and for declaring them
as railway servants and further for payment of regular pay scales. The claim B
of the appellants was repelled by the Tribunal and also by the High Court
in the writ petition and the appeal filed by them was dismissed by this Court
mainly on the ground that the appellants had not been appointed in pursuant
to or under any recruitment rules but were appointed under a beneficial
scheme intended to help the wives and daughters of the railway servants,
where they were given an opportunity to work as Supervisors. C
19. Shri K. Ramamurthy, learned counsel for the contesting respondent
has contended that in view of the principle laid down in State of Assam v.
Kanak Chand Dul/a, AIR (1967) SC 884 the respondent No. I should be held
to be a Government servant. As mentioned earlier the question in this case
was whether a Mauzadar in Assam Valley holds a civil post under the State D
of Assam and is entitled to the protection of Article 3 I I(2) of the Constitution.
This decision was considered and referred to in Stale of Gujarat v. Raman
Lal Keshav Lal Soni, AIR (1984) SC 161 to which we have already referred
to earlier and also in Supdt. of Post Offices v. P.K. Rajamma, [ 1977] 3 SCC 94.
The principle laid down therein do not advance the case of respondent no. I E
in any manner as certain other factors like the process of recruitment in
accordance with relevant service rules was not followed and certain other
incidents of service like transfer, disciplinary action, pension and the facility
of general provident fund are absent in his case. The other case relied upon
by the learned counsel is Purshottam Dhingra v. Union of India, AIR ( 1958)
SC 36 which again is of no assistance to respondent no. I as the main F
controversy here was whether a temporary Government servant was entitled
to the protection of Article 311 of the Constitution. Shri Ramamurthy has also
referred State of UP v. Chandra Prakash Pandey, [2001] 4 SCC 78 where the
question was whether the Kurk Amins appointed on commission basis by
Collectors for realization of outstanding dues of various cooperative societies G
as arrears of land revenue can be treated to be employees of the State
II
Government holding civil post within the meaning of Article 311 of the
Constitution. The Kurk Amins had not been appointed on contract basis as
is the case of respondent no. I whereunder his appointment came to an
automatic end after expiry of the period of contract. Thus, there being a
fundamental difference between the nature of employment of respondent H
1022 SUPREME COURT REPORTS (2006] I S.C.R.

A no. I, the principle laid down in the aforesaid authority cited by the learned )
counsel can have no application here.

20. For the reasons discussed above, we are clearly of the opinion that
respondent no. I cannot be said to be a Government servant as he was
working on contract basis and, therefore, he was not eligible for any relaxation
B in upper age limit. The view taken by the High Court is clearly erroneous in
law and is liable to be set aside.

21. The appeal is accordingly allowed and the judgment and order dated
13.12.2002 of the High Court· is set aside and the writ petition filed by
respondent no. I is dismissed. No costs.
c
KG. Appeal allowed.

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