R.L. Gulati, J. - (1.) The petitioner was appointed as a Staff Artist in All India Radio, Bombay, Ministry of Information and Broadcasting, Government of India by the Director General of All India Radio, New Delhi. His terms and conditions of service are contained in an agreement signed by the petitioner and the. Station Director of All India Radio, Bombay on behalf of the President of India. The Agreement was valid for three years but this services were terminated on 13th February, 1961 The petitioner was, however, re-employed in the capacity of Staff Artist/with effect from 1-12-1962. His contract was renewed on yearly basis upto 30th November, 1964, Thereafter he was given a 5 years contract valid upto 30th September, 1969. The Government of India by an order dated 31st January, 1965 fixed the pay scale of Staff Artists employed in the Department of AH India Radio with effect from 1st October, 1964. The petitioner being a Staff Artist but doing the work of a copyist was placed in the scale of Rs. 110-286. The Government of India by an order dated November 2, 1967 directed that the Staff Artists should be allowed to remain in service upto the age of 55 years, which could be extended upto 58 years or 60 years. Accordingly, a clause was introduced in the agreement of service of the petitioner stipulating that the petitioner shall remain in service upto December 31, 1985, on which date he was to attain the age of 55 years. The said agreement also provided for the termination of his service on six months' notice on either side Thereafter he was transferred to ail India Radio, Varanasi He then received a letter from the Assistant Station Director of All India Radio, Lucknow dated 5th October, 1970 informing him that his services would stand terminated on the expiry of six calendar months from 5th October, 1970, according to the conditions contained in clause 4 (v) of Agreement. The petitioner made a representation against this notice. It was pending when the present writ petition was filed as the period of six months was due to expire shortly. The petitioner has prayed for a writ of certiorari quashing the notice dated 5th October, 1970, and for a writ, order or direction in the nature of mandamus commanding the opposite parties to treat him still in service and to pay all benefits such as pay, allowances of the intervening period.
(2.) The only contention raised on behalf of the petitioner is that he holds la civil post under the Government of India and is entitled to the protection I contained in Articles 311 and 16 of the Constitution, which has been denied to him, inasmuch as persons junior to him in the Department are still being retained while his services nave been terminated.
(3.) The first question for consideration is as to whether the petitioner is a Government servant holding a civil post, it is contended by Mr. B.N. Sapru, the learned counsel for the respondents, that the petitioner had been engaged under a contract and did not hold a post in any cadre in the Ministry of Information and Broadcasting. He says that there are no rules governing the conditions of service of the petitioner as in the case of a Government servant. According to him, being a Government servant is a mailer of status and hot of contract and, as such, the petitioner, even though working in a Department of the Government is not a Government servant. He further says that the Rules Governing the service conditions of a Government servant can be changed unilaterally by the Government as laid down by rue Supreme Court in the case of Roshan Lal Tandon v. Union of India ana others A.I.R. 1967 S.C. 1889; According to him, the real test to determine was there a person is a government servant or not would be to ascertain if his service conditions can be changed unilaterally by the Government. According to him, the terms and conditions of service of the petitioner are contained in a contract which cannot be changed unilaterally by the Government and, as such, the petitioner is not a Government servant. Mr. Sapru, however, very frankly invited my attention to a decision of the supreme Court in the case of State of U.P. v. Audh Narain Singh and another A.I.R. 1965 S.C. 360; which lays down the rest for determining the relationship of a master and servant. There a question arose as to whether Tahsildars appointed in the Cash Department in the State of Uttar Pradesh were civil servants of the State of Uttar Pradesh or held civil posts in the State. It was found that Tahsildars were appointed not by the Government but by Government Treasurer, who received allowance from the Government to defray their pay and leave salary. The Treasurer, however, gave employment to Tahsildars only with the approval of the District Officers and he had to remove a Tahsildar or transfer him from one Tahsil to another, if required by rite District Officer to do so. The Supreme Court paragraph 8 has laid down the following test: "Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question, in general, selection by the employer, coupled with payment by him of remuneration or wages, rue right to control me method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant, in special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinarily the right of an employer to control the method of doing the work, and the power of superior tendency and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done, if the employer has the power, prima facie, the relation is that of master ana servant " To decide the question as to whether in the instant case the relation of the petitioner with the Government is that of master and servant or whether the petitioner works under an independent contract, one has to turn to the agreement of service. Under Clause (1) of the agreement, the staff artist has to submit himself to the orders of the Government and of the officers and authorities under whom he may from time to time be placed by the Government and has to render the service required of him. Clause (2) provides that the staff artist shall devote his whole time (unless other wise to specifically stated) to the services required of him and at all times obey the rules prescribed for him from time to time and shall whenever required, proceed to any part of India and there render such services as may be assigned to him. He will not absent himself without having first obtained the permission from the Head of the All India Radio Clause (3) provides that staff artist may be required to render such services other than the services assigned to him under this contract, clause (4) then provides how the services of a staff artist can be terminated and also in what circumstances he may be suspended from service. It is thus clear that the Government in consideration for a monthly salary completely controls the nature and manner of work assigned to the staff artist. He is liable to disciplinary proceedings and cannot absent himself from duty without prior leave. All these conditions are inconsistent with the petitioner being an independent contractor and are consistent with his being a servant of the government. The fact that there is a clause in the contract that his services can be terminated by giving six months notice does not militate against the proposition that he is a government servant holding a civil post and as such is entitled to the protection of Articles 311 (2) and 16 of the constitution.;