Holding

Copywriters are mere licence‑holders, not government servants; no master‑servant relationship exists and the High Court’s order creating a service is ultra vires.

Summary

The members of the West Bengal Registration Copywriters' Association were licensed under the West Bengal Registration (Copywriters) Rules, 1982/1999 to prepare true copies of documents for registration. They sought to be absorbed as regular Lower Division Clerks (LDCs) on the basis of parity with the earlier absorbed "extra‑muharrirs" and filed writ petitions. The Calcutta High Court held that a master‑servant relationship existed between the State Government and the copywriters, directing the creation of a new service and the nomenclature of their posts. The Supreme Court, however, held that the copywriters are merely licensees, not government servants, and that the grant of a licence does not create a service under Article 309; consequently there is no master‑servant relationship and the High Court exceeded its jurisdiction. The appeal was allowed, the High Court order set aside and the Tribunal’s dismissal restored.

Issues considered

The nature of the relationship between copywriters and the State Government: whether it is a master‑servant relationship creating a government service.
Whether the copywriters are entitled to absorption as Lower Division Clerks under Articles 14 and 16 of the Constitution.
Whether the West Bengal Registration (Copywriters) Rules, 1999 create a service covered by Article 309.
The jurisdiction of the High Court to mould relief and direct the creation of a new service.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 226, s. Article 227, s. Article 309, s. Article 310, s. Article 311
Registration Act, 1908s. Section 19A

Subjects

licenseegovernment servantmaster‑servant relationshipArticle 309West Bengal Registration (Copywriters) RulesabsorptionLower Division Clerkequal protectionArticle 14Article 16jurisdictionHigh CourtSupreme Court

Judgment

(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)
MAY 8, "2009
B
[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.

Constitution of India, 1950 - Article 226 - Writ petition -
F 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
Government duty.
B
(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.

(vi) The Copywriters are not paid from the
D 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.
E
(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
F 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
G 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
H
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 Extra-
m 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 that 2.3. The petition is wholly silent about the assertion
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
should be created for them by the Government. In fact,
D 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
allowed to sit in the examination. _They asserted that the
E 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
relationship between the writ petitioners and the State
H
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
about the High Court's power to mould the relief.
D
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
and has no nucleus in the writ petitions or in the original
E 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-A- B
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
entitled to the equal protection like other Government c
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
case of the writ petitioners. No Government service can D
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
job of making a copy of the deed for some remuneration
0
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] (377- A
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] (378-
A-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
between the Copywriters and the Government. It cannot
c 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 Deed-
writers, 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.

Cassidy vs. Ministry of Health 1951 (1) All ER 574; Short
B
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

Para 37
·•'•
AIR 1964 SC 254 Referred to.
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
y-
AIR 1957 SC 264 Held inapplicable Para 38

AIR 1958 SC 388 Held inapplicable Para 38

1977 (3) sec 94 Held inapplicable Para 39
H
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.
-'} 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
'""' 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.
H
348 SUPREME COURT REPORTS [2009] 8 S.C.R.

}--

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.

4. In those Writ Petitions filed before the High Court, a
B
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 \
1998, O.A. No. 2377 of 1999 and O.A. No. 4636 of 1999,
dismissing all the original applications, was in challenge. The
c 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.

D 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 '
Writ Petition was also filed vide W.P. No. 2304 of 1996. These '
two Writ Petitions came to be transferred to the Tribunal, while
E 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'
Association (hereinafter referred to as 'the Association'), as
F 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
regular employees in the cadre of Lower Division Clerk
,i
(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
-}- of their struggle in their Writ Petitions/original applications. In D
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
vacancies had cropped up in the office of the Registrars
,t
throughout the State of West Bengal under the Inspector
General of Registration and accordingly, the Registrars had
asked the employment exchanges to sponsor the names of the F
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
Bengal as LDCs and all of them were employed under the G
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 H
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.

7. It was further pleaded that since they were licensed
8
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 Extra-
muharrirs 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
Tribunal, the following prayers were made:-
E
(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
F 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
G 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;

H (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.]
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
(d) 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; D

(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 E
Copywriters in the regular cadre of services in the post of LDC
was not possible. It was pointed out that there was no
) 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 F
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 H
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 re-
designated 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
F 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.]
--.< 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
-~ 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
said Copywriters' not being absorbed as the LDCs. F

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
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 Extra-
muharrirs 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,
E 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.

F 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
H licensee or licensor. The High Court noted that the Writ
STATE OF WEST BENGAL v. WEST BENGAL REGN.355
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
--; Petitioners had conceded that they were not entitled to the relief A
claimed in the application before the Tribunal, namely, the
absorption in the post of LDC. The High Court, however,
entertained the stand that the Writ Petitioners were entitled to
equal protection of law, as is available to a Government servant,
provided in Article 14, 16 and 308-311 of the Constitution of B
India, while serving under the State. In short, the High Court held
that firstly, there existed master and servant relationship
"";I
between the State Government and the petitioner Copywriters
and, therefore, they were entitled to the relief claimed. It was
urged on behalf of the respondent Government before the High c
Court that the Copywriters were merely the licensees and they
could claim any tletter status than that. It was also pointed out
that these licenses were granted in keeping with the Rules made
therefor. That contention was negatived. In coming to this
conclusion, the High Court has relied on various Rules brought
-, in vide the Copywriters' Rules of 1999. As per the interpretation
D
put forth by the High Court, the said Rules had the effect of
creating a master and servant relationship between the
Copywriters and the State Government.

13. The High Court has also very heavily relied on the five E
Judges' Bench decision of this Court in State of Assam & Ors.
Vs. Shri Kanakchandra o'utta reported in AIR 1967 SC 884,
as also another decision in The State of U.P. Vs. Chandra
~\
Prakash Pandey reported in AIR 2001 SC 1298. The contention
of the State Government that the Copywriters were F
professionals, was also repelled. Various other decisions were
considered by the High Court and it ultimately came to the
conclusion that since there existed master and servant
relationship between the State Government and the Copywriters
appointed under the Rules, it could not be said that the G
-,. relationship was merely that of licensees and licensor. The High
......;.,. Court observed that the Rules gave a "false impression" that
the said relationship was merely of licensees and licensor. It
was further held that the demand of remuneration to these
Copywriters, which was recoverable from the parties at the rates H
356 SUPREME COURT REPORTS [2009) 8 S.C.R.

A fixed by the Rules, was violative of principles and tenets of the
Constitution, as mentioned in Articles 14, 16, 21, 308-311, as
like every other Government servant, they were entitled for a
regular scale of pay.

14. The High Court went on to observe that though they
8
could not be absorbed as LDCs, it would be for the State
Government to decide the nomenclature of their post and their
salary was liable to be fixed after taking into consideration the
nature of the jobs and duties entrusted to them, only after
comparing those with the similarly placed Government
C employees either in the same or in other Departments, the
principle of "equal pay for equal work". On the basis of this
finding, the High Court further went on to hold that these benefits
should be awarded to the Copywriters from the date of filing
the first of the applications filed by the Association, namely, Writ
D Petition No. 1643 of 1996, which got renumbered as T.A. No.
391 of 1998. The High Court also awarded the arrears to the
Copywriters from the said date after adjusting the remuneration
·-
already received by the individual Copywriters. The High Court
further directed that the years of continuous service put in by
E them even prior to the date as Copywriters, should be taken
into account for the purposes of calculation of the retirnl
benefits, subjecrto the minimum and maximum age limit for
entry into the Government service (probably the date, when they
I.
first got the license to practice c;is Copywriters) and secondly,
F their service rendered prior to the attainment of minimum
qualifying age should be ignored. The High Court also held that
the service rendered beyond the age limit prescribed for
superannuation should not be considered for giving retiral
benefits. Lastly, the High Court also directed to decide the
G nomenclature of the post and the scale of pay for the same
within three months from the date of judgment. The State
Government was given six months' time to pay the arrears. It
was further held that if the Government defaulted to pay the
arrears, the amount would carry interest at the rate of eight per
H cent per annum. With all these findings, the High Court allowed
STATE OF WEST BENGAL v. WEST BENGAL REGN. 357
·COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
the Writ Petitions, which are now fallen for our consideration. A

15. Shri Bhaskar P. Gupta, Learned Senior Counsel
"
appearing on behalf of the State of West Bengal, firstly took
us through various provisions of the Registration Act, 1908 and
the various amendments made to them by the State of West B
Bengal. We were also taken through 1981 Amendments and
the Statement of Objects and Reasons, so also we were taken
,,- • through the Registration fYVest Bengal Amendment) Bill, 1986.
Shri Gupta took us through various Rules, firstly, the
Copywriters' Rules of 1979 and more particularly, the
Copywriters' Rules of 1999. The whole thrust of the argument
c
was that there was nothing in the provisions of the Registration
Act or the Rules to suggest that the legislature ever intended
creation of a separate service for these Copywriters. The
Learned Senior Counsel very earnestly argued that vide the
- "' above mentioned Rules, the legislature has created a separate D
class, called "Copywriters". The contention was that, firstly, filing
of a copy of a deed before the same presented for registration,
was made compulsory and then a class was created called
"Copywriters", who were given the licenses by the concerned
authorities to make those copies. It was urged that the E
Copywriters had the task of copying the said deeds on payment
of prescribed fees, as fixed under the Rules and for that
.) purpose, the Copywriters were given licenses and for giving
those licenses, they were selected, meaning that licenses were
granted not to all and sundry, but to certain persons, depending F
upon their qualifications. The Learned Senior Counsel was at
pains to point out that there could never exist master and servant
relationship because these Copywriters were not under the
control of the authorities, insofar as their attendance, their
working hours or their emoluments were concerned. The G
~,.
Learned Senior Counsel pointed out that it was a total
,.. misnomer to say that those Copywriters were the Government
servants since from the very nature of the work of Copywriters,
it could not be said that they were doing any Government
duties. It was further argued that the Division Bench, in its H
358 SUPREME COURT REPORTS [2009] 8 S.C.R.

A impugned judgment, has almost rewritten the Rules. It was
pointed out by the Learned Senior Counsel that such directions
· even under the plenary jurisdiction of Article 227, could not be
given, as that amounted to legislating and hence impermissible.
Lastly, the Learned Senior Counsel urged that the rulings which
B the High Court had relied on, were not at all applicable.

16. As against this, Shri Jayant Kumar Mitra, Learned
Senior Counsel, as also Shri Ranjit Kumar, Shri P.P. Rao,
Learned Senior Counsel and other Learned Counsel like Shri
Dipak Kumar Jena appearing on behalf of the respondents,
C supported the High Court judgment. In the leading address, Shri
Jayant Kumar Mitra urged that though the Writ Petitioners
before the High Court had given up their main prayer, it could
not be said that the High Court had given the relief not prayed
or the one beyond the pleadings. The Learned Senior Counsel
D pointed out that the High Court had moulded the relief and .I' -

instead of directing the absorption of Copywriters as the LDCs,
had directed to create a new class for the Writ Petitioners. He
also pointed out that the State G.overnment had earlier
regularized the services of Extra-muharrirs and the Copywriters
E were doing no different work than those persons. It is on these
rival pleas that the present appeal has to be decided.

17. It will be better first to see the legal provisions, which
have been relied on by the parties extensively. The Registration
F Act, 1908 is a Central legislation for consolidating the
enactments relating to the registration of the documents.
Various States have introduced State amendments to this Act.
Section 19A was introduced by a State amendment in 1981
which provided that notwithstanding anything elsewhere in the
G Act or any other law, no document shall be accepted by the
Registration Officer for registration, unless it is prepared and
presented and accompanied by a true copy thereof in
accordance with such Rules, as may be made in that behalf.
While amending the Act, the State of West Bengal had
introduced Part XIII A. XlllB and XlllBB in 1978. Part XIII BB
H
STATE OF WEST BENGAL v. WEST BENGAL REGN. 359
' COPY WRITERS ASSN. [VS. SIRPURKAR, J.]
--..f-
which is relevant here deals with the Inspector General, who has A
the power to make Rules, consistent with the Act, with
prospective or retrospective effect, providing for the grant of
licenses to the Copywriters, revocation of such licenses, the
terms and conditions, subject to which and the authority by
which such licenses shall be granted and generally for all B
purposes connected with the copying of documents for
registration. Rules so made, were to be submitted to the State
"' Government for approval and after approval were to be
published in the Official Gazette and on such publication, those
Rules would have the effect as if they are enacted in the Act. c
This power in the State Government, to make the Rules, came
vide Section BOA. On its heels, came the Copywriters' Rules
of 19B2, as also the West Bengal (Deed Writers) Rules, 19B2
(hereinafter called "the Deed Writers' Rules of 19B2" for short).
--f Needless to mention that we are presently concerned with the
D
Copywriters' Rules of 19B2. Section BOGG was incorporated
thereafter in 19B6, which empowered the Inspector General to
make rules relating to Copywriters. Section BOGG became
operative w.e.f. 1.1.1993. The Copywriters' Rules of 19B2 were
replaced by Notification Nos. 23335 and 23336 and in their
place, the Copywriters' Rules of 1999 were brought in. For the E
purposes of the controversy in question, though it started in
1996, the relevant Rules are the Copywriters' Rules of 1999
p
since 19B2 Rules were replaced by 1999 Rules. These Rules
introduced a completely new scheme of self-employment by
granting licenses to the deed writers and Copywriters creating F
for them self-employment, profession or vocation. The most
relevant amongst these Rules are Rules 2(3), 3, 5, 6, 7, B, 9,
10, 15, 17, 19, 20(2), 21, 24 and 26. They are as under:-

2(3) "Licensing Authority" means the District Registrar· G
--)I
as defined in Section 2 of the Registration Act, 190E.
,,
(16 of 190B).

3. Prohibition of unlicensed persons:- No person who
is not a licensed Copywriter duly appointed by thE~
H
360 SUPREME COURT REPORTS (2009] 8 S.C.R. ?

.:.---
A licensing authority under these Rules, shall engage
himself in the profession of a Copywriters.

5. Persons eligible for license:-A Copy Writer's
license may be granted to a person:-
B (i) who is a citizen of India;

(ii) who has completed eighteen years of age, ~
...
but is below 35 years of age, on the date of
notification inviting applications for license;
c (iii) who has passed the School Final or its
equivalent examination, provided that any
person applying for a Copy Writer's license
under Rule 6 shall be eligible for such license
if such person has passed Class VI ~ --
D Examination for promotion to Class VI I and
has gained experience as an assistant to a
Deed Writer in his profession for not less
than three years on the date of application;

E (iv) who has passed the Copywriter's Licensing
Test conducted by the licensing authority;

(v) who writes neatly, legibly and correctly; t.
(vi) whose conduct is good; and
F
(vii) who is not debarred by any of the conditions
as laid down in Rule 7.

6. (Provides die-in-Harness Principle)

G 7. Disqualifications:- 11-

(1) A Copywriter's license shall not be granted to a
person:-

(a) if he has been declared by a competent
H
STATE OF WEST BENGAL v. WEST BENGAL REGN. 361
COPY WRITERS ASSN. [VS. SIRPURKAR, J.]
Court to· be of unsound mind; or A

(b) if he has been convicted for any criminal
offence or any proceeding is pending against
him in any criminal Court; or

(c) if he is a deaf-mute; or B

(d) if he is a leper or suffers from an incurable
contagious disease; or

(e) if his license has at any time been cancelled c
and the order cancelling the license has not
been quashed by the competent authority; or

(f) if he is engaged in any gainful occupation or
employment.
D
(2) In the case of refusal to grant a license, the
, licensing authority shall record his reasons for
' refusal and communicate a copy of the order to the
person applying for license.
E
8. (Not necessary)

9. Renewal of license:- (1)A license issued under
these Rules may be renewed on year to year basis
by the District Register, subject to good conduct,
satisfactory work and physical fitness, duly certified F
by the Registering Officer under whose
superintendence and control the Copywriter works,
by an endorsement on the body of the renewal
application, on payment of the prescribed renewal
fee. The application for renewal shall be filed to the G
Registering Officer in the month of November each
year together with the Treasury Challan or Bank
Draft or Money Order Receipt showing the
remittance of renewal fee. The Registering Officer
shall forward the application to the concerned H
362 SUPREME COURT REPORTS (2009] 8 S.C.R.

A District Registrar with necessary endorsement as
required under this rule with his remarks, if any.

(2) xx xxx xxx
(3)xxxx xxx xxx
B
10. Conditions of renewal:- (1 )A license shall not be
renewed:-
.,
(a) if the licensee fails or has failed to observe
c any of the conditions of his license or to
comply with the direction of making deposit
of renewal fees as provided in Rule 9; or

(b) during the period for which the license has
been suspended; or
D ~-
(c) if the licensee becomes physically unfit or
mentally unbalanced to perform the duties of
a Copywriter.

(2) (a) The name of the Copywriter, the renewal of
E
whose license is refused by the District Registrar
under any provision of these Rules, shall be struck
off from the registers maintained by the District
Registrar, as well as, by the Registering Officers
concerned.
F
(b) A Copywriter, who fails to apply for renewal within
the stipulated period, may, however, apply for a
fresh license.

15. Rights and duties of Copywriter:-(1) A licensed
G
Copywriter shall be allowed to sit in the officer
precincts.

(2) He shall work under the control and
supervision of the Registering Officer.
H
STATE OF WEST BENGAL v. WEST BENGAL REGN. 363
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
-·-t
(3) He will enter office either on being A
· summoned by the Registering Officer or in
connection with his specified work of
'1 preparing true copy.
~

(4) A Copywriter shall confine himself to the
B
_,
. work of preparing true copies of documents
to be presented for registration. He shall not
.,.- ~ engage himself in the act of canvassing for
the Deed Writer.
~.»

17. Cancellation of Copywriter's license:- (1 )A license c
granted under these rules to a Copywriter may be
cancelled by the District Registrar, if-

(a) his license has been suspended thrice during
--t the course of two consecutive years, D
provided that where the suspension of the
t license is for demanding or receiving
remuneration in excess of the amount
specified in these rules, the license may be
cancelled if it has been suspended twice
E
during the course of two consecutive years;

(b) he become disqualified on any of the
,""I grounds specified in Rule 7.

(2) The District Registrar shall have powers to F
cancel the license of a Copywriter, who is
guilty of the breach of any of the provisions
of these rules or of his license or of any
misconduct..
G
~-.,
(3) The District Registrar shall cancel the license
of a Copywriter after a regular proceeding.
In such a proceeding generally, charge shall
be formally framed, copy of the charge shall
be made over to the Copywriter concerned,
evidence shall be recorded in his present, H
364 SUPREME COURT REPORTS (2009] 8 S.C.R.

~-
A adequate opportunity shall be allowed to him
to defend himself by adducing witnesses
and, finally, there shall be written orders with
approprtate reasons.

19. Suspension of a Copywriter's license:- A license
B
granted under these Rules to a Copywriter may be
suspended if he-
>
(1) fails to maintain the Register or to issue "
receipts as required under Rule 12;
c
(2) contravenes any of the provisions of these
Rules or any of the conditions of his license
or is found guilty of disobedience to any ..,,
lawful order passed under these rules;
D (3) is found guilty of abatement or participation
., -
in any illegal transaction with any member of
the staff of the Registrations Office'

(4) Conducts or behaves himself improperly in
E the Registration Offices.

20(2) An order of suspension shall be issued after a
regular proceeding. The Copywriter accused of +-.
guilt shall be given adequate opportunity to be
heard and defend himself. The decision of the
F
suspending authority shall be recorded in writing
and a copy of it shall be furnished to the Copywriter
concerned.

21. Copywriter's licensing test:- (1 )An- exarnination to
G be called "Copywriter's Licensing Test" shall be
. conducted by the licensing authority of each district. ".
The time and place of the examination and also the
language in which the candidates shall be
examined shall be notified in such manner as the
H licensing authority considers appropriate and
STATE OF WEST BENGAL v. WEST BENGAL REGN. 365
COPY WRITERS ASSN. [VS. SIRPURKAR, J.]
necessary. A

(2) The test shall relate to the transcription of
documents and may include any other
subject as may be prescribed by the
licensing authority. B

(3) An examination fee as provided in these
rules shall be levied on each application.

24. Remuneration:-The rate
. of remuneration
. shall be
as follows:- C

(1) For copying 100 words or part thereof
Rs.6.00, subject to the minimum of Rs.30.00;

(2) For preparing typed copy by licensed
Copywriter, the charge shall be the same as D
in Clause (1);

(3) For comparing 100 words or part thereof,
each comparer shall get Rs.4.00, subject to
a minimum of Rs.20.00. E

26. Suspension, cancellation, revocation and/or
granting of license under certain
circumstances:-

(1) Notwithstanding anything contained in these F
rules, the Inspector General of Registration
and Commissioner of Stamp Revenue, West
Bengal, may, on his own motion or otherwise,
call for the records of any case relating to
grant of license, and if it so appears to him G
that license has been granted or not granted
in contravention of these rules or if it so
appears to him that the licensing authority
was biased or influenced in granting or not
granting the license, he may pass such order H
366 SUPREME COURT REPORTS [2009] 8 S.C.R.

A including order of suspension, cancellation,
revocation, and/or granting of license, as he
may deem fit and proper, after giving the
reasons therefor in writing, provided that no
such order shall be passed without giving the
B person or persons so affected, an
opportunity of being heard and without calling
for a report from the licensing authority.

(2) An appeal against any order under Sub-Rule
(1) shall lie to the Government in the Finance
c (Taxation) Department, if preferred within
thirty days from the date of communication of
the order passed under that sub-rule .

. The above mentioned Rules were generally referred to and
D relied on by the parties and hence, we have quoted them
extensively. Apart from that, Shri Jayant Kumar Mitra, Learned
Senior Counsel appearing on behalf of the respondents, also
referred to Rule 5 and 9 of the Copywriters' Rules of 1979. Rule
5 provides for preparation of copies, while Rule 9 provides for
E authentication and filing of the copies. We need not dilate upon
these Rules at this juncture.

18. Coming back to the Copywriters' Rules of 1999, they
in general and particularly those Rules, which have been quoted
F above, bring out a position that the Copywriters' licenses are
to be held exclusively, in the sense that a person holding deed
writer's license shall not be entitled to hold the same and that
none excepting the license holder, can engage himself in the
profession of a Copywriter. The language used in Rule 3
describing it as a "profession of Copywriter" is extremely
G important. Rule 5 provides for the qualifications for holding such
a license. It is worth seeing that it requires is only passing of
Vlth Class Examination. Such a person should have minimum
3 years of experience on the date of application. Such a person
would also have to appear for a Test, he should be able to right
H neatly, legibly and correctly and he should have good conduct.
STATE OF WEST BENGAL v. WEST BENGAL REGN. 367
COPY Vl/RITERS ASSN. [V.S. SIRPURKAR, J.]
--t
Rule 6 suggests that if a Copywriter dies in harness or A
becomes incapacitated, then his/her spouse or any one of his/
her sons/daughters/near relations would be eligible to be
considered for grant of Copywriter's license on their making
application through proper channel to the Inspector General of
Registration. Rule 9 provides for renewal of license, as the B
license granted is only an annual one. Rule 10 provides for the
conditions of renewal. The Rule provides that if the licensee has
... )
violated any of the conditions or does not pay the renewal fee
or during the earlier period, his license has been suspended
or he becomes physical unfit or mentally unbalanced, then his c
license shall not be renewed. Though Rule 12 has not been
quoted by us, even that was referred to by the Learned Counsel
and more particularly, Learned Counsel for the respondents, to
show that the licensee has to abide by the conditions, he cannot
-· 1 charge more fees then prescribed under Rules. He has to issue
D
a receipt in Form No. 6 and he may be debarred for not
following these conditions, he is also required to maintain a
register in Form No. 5, he shall exhibit the rates of remuneration
and he shall be amenable to the inspections made by the
Registering Officer and shall be generally under the control of
E
licensing authority. Rule 15 provides the rights of the Copywriter,
suggesting that he should be allowed to sit in the office precincts
,,;; and shall work under the control of Registering Officer. Rule 17
provides for the cancellation of license, while Rule 19 provides
for the suspension of the license. Suspension has been dealt
with in Rule 26. Rule 20(2) provides the manner and procedure, F
under which the suspension shall take place. Lastly, Rule 24
provides for the rates of remuneration or the fees. All this
completes the legal scenario.

~ ·~
19. Shri Bhaskar P. Gupta, the Learned Senior Counsel G
for the appellants pointed out that the Rules and the provisions,
read in any manner, cannot conceive of a relationship of master
and servant between the Copywriters and the State
Government. Shri Gupta said that it is at the most, a self-
employment generating scheme. The Learned Senior Counsel H
368 SUPREME COURT REPORTS [2009] 8 S.C.R.

A pointed out that there are Rules under Article 309 for
recruitment of the Government servants and the present Rules
do not come anywhere near those Rules. It was pointed out that
there are no tests in the Government Organization, which are
comparable to or equivalent to the post of Copywriters. It was
B suggested that these Copywriters do not do any work relating
to the Registration Office of State nor is any payment required
to be made to them from the public exchequer. It is for this
reason that the Learned Senior Counsel argued that the whole
claim of absorption, as made initially in the original application,
c is baseless.
20. When we see the aforementioned Rules, they nowhere
provide even distantly, any master and servant relationship in
. between the State Government and the Copywriters. It is the
basic principle of interpretation that where the language of the
D Statute is clear and admits of no 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.
E 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 the Copywriters' Rules of 1982.

21. The demand for absorption seems to have emanated
F from what happened earlier in the case of Extra-muharrirs, who
were admittedly absorbed by the State Government in the posts
of LDCs. That fact was used by Shri Jayant Kumar Mitra,
Learned Senior Counsel for the respondents very earnestly to
convince us that the Extra-muharrirs did the same job of
G Copywriting and were identically placed as these Copywriters.
On the other hand, Shri Bhaskar P. Gupta, Learned Senior ""
Counsel for the appellants pointed out to us that there cannot
be any comparison between the Extra-muharrirs and the
Copywriters for the simple reason that the Extra-muharrirs were
already on the establishment of the Government in the regular
f1
STATE OF WEST BENGAL v. WEST BENGAL REGN. 369
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
posts. All that was done to change the nomenclature of that A
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 status of the Government servant. Such was B
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 for doing
the job of a Copywriter. They have been provided with this c
opportunity to earn their livelihood by working as the
Copywriters on the basis of the licenses. They were not
ceimparable in any manner with the Extra-muharrirs even in
-
respect of their educational qualificatioo. It is to be seen from
the Rules that the minimum quaUfication. for a licensee as a
~'t D
Copywriter is barely Vlth Class passing, which is unimaginable
in the present days as a minimum qualification for a
Government job. It is tried to be suggested that 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 E
qualification, as prescribed in the Rules, is much lower than that
of the LDCs. Again during the debate, as also before the High
,.-' Court, no evidence has been brought, showing as to how the
post of Extra-muharrirs is comparable to or identical to the post
of Copywriters. We will have to, therefore, straightaway reject F
the claim in this behalf.

22. At this juncture, we must consider the arguments of Shri
Bhaskar P. Gupta, Learned Senior Counsel for the appellants,

~ . about the relief which has been granted to the Writ petitioners. G
We have referred to this argument in the earlier part of this
judgment. The Prayer clause in the Writ Petition No. 2304/1996,
which Writ Petition was transferred to the Tribunal to be
renumbered as T.A. No. 392 of 1998 is already quoted by us
in paragraph 7 of this Judgment. H
370 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 23. The whole petition was based on the perpetual
demand on the part of the Copywriters to be absorbed as the
LDCs. A substantial part of the petition deals with not only the
demand, but also the agitations, which were taken up by the
Copywriters individually, as well as, on Association level. We
B have seen the Writ Petition very carefully. After referring to the
Copywriters Rules of 1982 (the Copywriters' Rules of 1999 had
not, by then, come into effect, c;ince Writ Petition was filed in
1996), the Writ Petitioners pointed out, more particularly, Rule
5, 7 and 14 thereof to suggest that the Writ Petitioners'
C eligibility for license was fixed by the Government and that they
were selected after making an application under Rule 7 and
further to show from Rule 14 that they were to work under the
control and supervision of the Registering Officer. The Writ
Petitioners have also relied on some other Rules and also the
fact that the Rule of 'dying in harness' was made applicable to
0
these Copywriters. In short, the contention was that the Writ
Petitioners were carefully selected for the grant of license and
that their service conditions were almost alike to the LDCs.

24. In para 14 of the Writ Petition particularly, Writ
E Petitioners referred to the representations given by them for
their permanent absorption as Copywriters under the
respondent State. A reference is made to demonstration in the
year 1995 and a further reference is made to the intervention
and alleged assurances given by the Finance Minister of State
·-
F and other Officers for considering the grievance. as well as, the
proposal of permanent absorption of the Writ Petitioners, upon
which the continuous strike was withdrawn by them. Writ
Petitioners, in para 15 and 16, have referred to a representation
dated 20.6.1995 and have further asserted that recently
G vacancies had cropped up in the Office of Registrar throughout
thf 'Nest Bengal and, therefore, the names of the prospective
c: ididates to fill up such vacancies were invited from the
mployment exchanges. In fact, this was the sore point felt by
the Wnt Petitioners, whose main demand in the Writ Petition,
H as would be clear from the Prayer clause, was to stop such
STATE OF WEST BENGAL v. WEST BENGAL REGN. 371
COPY WRITERS ASSN. [VS. SIRPURKAR, J.]
process for employment, started by the State Government. It A

- is only with that idea that they had sought for an injunction
ag(linst the said process. In para 17 of the Writ Petition, the
Writ Petitioners urged that previously, i.e. in or about 1979, the
Government had absorbed all the Copywriters working in the
office of Registrars throughout the West Bengal as LDCs under B
the said office and had employed them under the State, though
the Writ Petitioners were careful enough to state that those
persons were then called "Extra-muharrirs". We have already
dealt with the question of Extra-muharrirs in the earlier part of
the judgment. In para 18, again it was asserted that the Writ c
Petitioners had req1.1isite qualification, expertise and experience
to work as LDCs. The Writ Petitioners then referred to their
Trade Union and in para 21, the Writ Petitioners asserted that
those, who had the qualifications, should be allowed to sit for
examination for absorption in the posts of LDCs, which.
0
examination was meant for filling up the vacancies of LDCs.
They also pointed out that their Cards of employment exch~nge
were surrendered temporarily in view of their engagement as
Copywriters. They also referred to a so-called assurance given
that they would ultimately be absorbed in the office of the
respondent Registrars on availability of the vacancies for the E
posts of LDC. They also prayed in para 26 that the age bar
should not be introduced in their case, as some of them had
already crossed the age limit of 35 years. In para 28, they
asserted their legal and fundamental rights to be absorbed. In
para 30, they stated about their requisite qualifications and F
eligibility to be selected as LDCs. Lastly, in para 31, the Writ
Petitioners asserted that the exercise on the part of the
Government was discriminatory and arbitrary. What prominently
appears from the Writ Petition is that in the whole Writ Petition,
the Writ Petitioners are conspicuously silent about any master G
and servant relationship between them and the Government
much less on the basis of 1982 or 1999 Rules.

25. The petition is wholly silent about the assertion that the
Writ Petitioners are doing the identical duty as that of the LDCs H
372 SUPREME COURT REPORTS [2009] 8 S.C.R.

A and they are actually the Government servants. Further, there
is not even a whisper in the Writ Petition that a separate cadre
with a separate nomenclature should be Greated for them by
the Government. In fact, in the last part of the Writ Petition, the
Writ Petitioners have asserted that injustice has been done to
B them in their representations remaining without a reply and in
-
their not being absorbed in service and further they are not
being allowed to sit in the examination. In para 36, they asserted
that the respondents should be injuncted from proceeding with
the absorption in the post of LDCs in their offices and from
c calling for interview or written tests or for any selection
procedures in respect of the said posts. What we fail to
understand is as to how on the basis of such a Writ Petition,
the Writ Petitioners were allowed to completely change their
stand and introduce, for the first time, a theory of master and
servant or even allowed to argue that they were the
D Government servants and in fact, because of the duties
conducted by them, they were the servants of the Government
on its establishments. Unfortunately, all this was allowed, though
not at the Tribunal level, but at the level of the High Court.

E 26. Shri Jayant Kumar Mitra, Learned Senior Counsel for
the respondents tried to point out that in their counter-affidavit,
the State Government themselves asserted that there was no
ma~ter and servant relationship between the Writ Petitioners
aRd the State Government and, therefore, the Writ Petitioners
F eowld not assert their right1o be absorbed as LDCs. Therefore,
Sifr(Mitra 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 servant relationship between them and the Government.
G We completely fail to understand this logic. 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, firstly because the Extra-muharrirs were
H so absorbed and secondly, because they were doing the same
STATE OF WEST BENGAL v. WEST BENGAL REGN. 373
_.....,. COPY WRITERS ASSN. [VS ..SIRPURKAR, J.]
job as LDCs. lhey had novl.ihere suggested that they were A
already on the Government establishment and there existed
mastei and servant relationship between them 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. It has to be understood that they B
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 the
stand, as also the radical change in the Prayers could not have
been allowed by the High Court in a Writ Petition, muchless c
when the High Court was concerned with the limited exercise
of deciding the correctness or otherwise of the Tribunal's
judgment. Unfortunately, the High Court seems to have travelled
much beyond the pleadings and has, therefore, fallen into error
in granting an unimaginable relief to the Writ Petitioners of
--~ D
creating a service for them with a separate nomenclature. All
this was clearly beyond the jurisdiction of the High Court.

27. We have already stated about the original Writ Petition,
which was converted as a Transfer Application. Unfortunately,
copy of Writ Petition being WPST No. 826 of 2001, which was E
filed after the order of the Tribunal was passed, has not been
filed before us. We have, therefore, seen the other two Writ
;' Petitions, which came to be fried before the Calcutta High Court,
they being WPST No. 1312 of 2001 and WPST No. 15 of
2002, which were also decided-by the High Court by the F
common judgment. The story is no different. "i"iie plea are
almost the same, inasmuch as the petitioners therein also
compared themselves to the Extra-muharrirs and claimed a
parity with them. The same plea regarding right and control and
the manner of working for determining the employer-employee G
.... '~~ relationship has been pressed into service for the first time,
though same was not the case before the Tribunal. It was also
tried to be suggested in the grounds that in pith and substance,
the Copywriters held statutory licenses and since they were
working under the comrnand and control of the authorities and H
374 SUPREME COURT REPORTS [2009] 8 S.C.R.
,..,_
A were subordinate to their disciplinary jurisdiction and since
those licenses were controllable by the State Government,
therefore, they became the integral part of the State
Government Organization and, therefore, all that had remained
was to recognize such a status by their absorption into the
B regular structure of the Government. Same plea, to the effect
that the Copywriters were doing what the Government could
have got done through their employees, has also been pressed
into service. Again, the same identical reliance was placed on )>
.
the fact that their remuneration was fixed by the Government
c Rules. Thus, the same theory of interpretation came in these
petitions after the Tribunal's order.

28. At this backdrop, when we see the Prayer clause, all
that was prayed is setting aside of the judgment of Tribunal and
a direction to the State Government to absorb and regularize
. D the services of the Copywriters in the regular cadre of service le -

under the respondents therein, in the posts of LDC or in any
such suitable post commensurate to their qualification and
experience. Identically, the injunction is also prayed for
restraining the State Government from filling up the, east of
E LDCs. Very typically, in Prayer clause (e), a direction is prayed
for to provide the Writ Petitioner with employment as LDCs or
equivalent posts. We are certain, the prayers are no different
in WPST No. 826 of 2001, the copy of which is not on our k
'
record. In fact, it is on this short ground that the Writ Petitioners
F had given up their main demand of being absorbed as LDCs
that these appeals are liable to be rejected. Once those prayers
vanish on account of the concession by the Learned Counsel,
really nothing could remain in the petition. However, High Court
went on to examine the belated theory of master and servant,
G which was totally out of the scope of the original application,
;
as well as, the Writ Petition. Even at the cost of repetition, we ~

may say that 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
H stand. The Learned Counsel for the Writ Petitioners before the
STATE OF WEST BENGAL v. WEST BENGAL REGN. 375

--
COPY WRITERS ASSN. [VS. SIRPURKAR, J.]
High Court, as well as, before the Tribunal had rightly conceded A
that they could not be appointed or absorbed as LOCs. Shri
Mitra, Learned Senior Counsel for the respondents very fairly
stated at the beginning of the debate that they had abandoned
that prayer. Shri Mitra, however, tried to justify that in its plenary
jurisdiction, the High Court could mould the relief. There could B
be no doubt 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 and has no nucleus in the Writ c
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 in the
Government. This plea was obviously baseless, as while Extra-
0
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 started singing the tune of the de facto Government
service in their favour. The argument before the high Court, as E
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 termination as well as
suspension that the Copywriter license holders were in fact
Government servants and, therefore, had a right under Articles F
14 and 16 of the Constitution of India. We must, at once, repel
this argument of Article 14 and 16, which has been accepted
by the High Court. The High Court has treated unequals as the
equals and for that purpose, the High Court had to do the
acrobatics for finding that the Copywriters had the trace of G
4~ ..
Government service.

29. Taking this defective logic further, the 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, H
376 SUPREME COURT REPORTS [2009] 8 S.C.R.

A then they were entitled to the equal protection like other
Government servants. All this was impermissible for the simple
reason that 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 case
B of the Writ Petitioners therein. Th1lby itsel[ was enough to
teject the claim of the Writ Petitione;s. No Government service
can be de-hors the rules. There were, undoubtedly, the rules
for the Copywriters, but those rules could Aever be read as
creating a separate Government service. They, at the mosf,
C were licensees. Firstly, these Writ Petitioners were not paid
from the coffers of the Government. Secondly, though there was <
an apparent control, there was no control on their actual
working. It was very fairly admitted at the time of debate that
there was no attendance register for these Copywriters nor
were they required to take leave in case they decided to remain
0
absent. Further, they were not even controlled in tl:ie matter of
their actual working hours. Thus, the control was qua the
licenses, not qua the duties. This fine distinction was ignored.
The grant of licenses was bound to be under the rules and,
therefore, their continuation, termination or suspension was also
E bound to be under the rules. But, that was the only 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
F was pressed into service by Shri Mitra and others was only in
respect of the continuation of their licenses. 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 a person, who
G misbehave, could enjoy the continuation of a license. That is
not the test. muchless to hold such persons to be the per5'lns -• -•
on the Government establishment. Again, merely because the
rules provided that every deed must be copied and a copy
thereof must be offered while registering the deed, it did not
H mean that the Copywriters were doing any Government duties.
STATE OF WEST BENGAL v. WEST BENGAL REGN. 377
COPY WRITERS ASSN. [VS. SIRPURKAR, J.]
The concept of the Government servant's duty is entirely A
different. Here, what these Copywriters were doing, was only
in terms of their prof~ssion and for earning by copying. A job
of making a copy of the deed for some remuneration is not a
Government job nor does it involve a Government duty.

30. Much was spoken about the selection of these
B
Copywriters. If they were Copywriters, the Government was
perfectly justified in holding the tests for awarding the licenses.
A person with horrible handwriting or a person with illegible
handwriting could never had been given ~his license, which
essentially required good handwriting, so that it should be C
legible copy of the deed which is offered for the registration.
This certainly was not a Government duty. In our opinion, the
Government duty would start only after the deed is presented
for the registration. This would also include the ch~cking as to
whether the deed is accompanied with by a l~gible copy D
thereof. But, writing of the copy, in our opinion, could never
amount to a Government duty or a statutory duty. We
specifically asked the Learned Senior Counsel for the
Copywriters, as to whether a Copywriter could refuse to do the
copying work on account of any relevant reason. The Counsel E
very fairly admitted that he could so refuse to write. We can
easily visualize such a situation that a particular Copywriter
having a good reputation, a very good handwriting, may invite
a rush of the clients and might have to refuse the work. That
,was perfectly possible. Therefore, in the matter of their working, F
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 distantly similar to the
Government duty. All the arguments, therefore, based on the
rules, have to be rejected. G
31. This takes us to the finding on the master and servant
relationship, since that was the main tune on behalf of the
Copywriters during all the arguments before us. We would
ordinarily have entertained this plea, since it was not raised in
H
378 SUPREME COURT REPORTS [2009] 8 S.C.R.

A the Writ Petitions turned into Transfer Applications. However,
since the main thrust of the Learned Senior counsel for the
Copywriters was on this master and servant relationship, we
would choose to consider the argument. The essential of a
master and servant relationship is that the servant must be
8 retained by the master for doing any.duties given by the master
and the 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. We have already given a finding that
there was no control as such on the working of these
C Copywriters. They were merely licensees and if there was any
control, the control was only on their licenses. There was no
control over the manner in which they do their work of copying.
Again, there has to be a disciplinary control which is
conspicuously absent in this case. The control was only qua the
licenses, their continuation or their termination. Therefore, we
D are unable to accept the argument of Shri Mitra that from the
bare reading of the rule, we must hold that there was a total
control by the Government over the working of these
Copywriters. Now, we will take the the most crucial question
regarding the master and servant relationship. Admittedly, these
E 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. While one Copywriter could
earn Rs.1,000/- a day, the other could remain content with
Rs.50 a day, depending upon the work that he has handed out.
F It was not the duty of the Government to see that every
Copywriter gets some minimum wages. In fact, the concept of
"payment of 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
G registered. Once all these factors are considered cumulatively,
it is obvious that there was no trace of master and servant
relationship.

32. To get out of this difficult situation, Shri Mitra, Learned
H Senior Counsel for the respondents, relied on the case of
STATE OF WEST BENGAL v. WEST BENGAL REGN. 379
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
,,.......,
Kanakchandra Dutta (cited supra). Whether Mauzadars A
working under the Government held a civil post, was a question
considered in this matter. Under the Mauzadari system, the land
revenue used to be collected in Assam Valley and the
Mauzadar was in charge of a Mauza and responsible for the
revenue collection of that Mauza. In short, Mauzadar was B
spoken of as "Revenue Contractor''. The executive instructions
appearing in paragraphs 115 to 159 and 167(a) of Assam Land
A Revenue Manual, 6th Edition drew a complete scheme for the
' ,...
appointment and dismissal of the Mauzadars, their duties and
emoluments and the registers, which were. to be kept and c
maintained by them. They were to be appointed and dismissed
by the Deputy Commissioner subject to the Commissioner's
approval and could be suspended by the Deputy Commissioner
on his own authority. Normally, Mauzadar's successor used to
be selected from among the members of his family. Every D
Mauzadar, before his appointment, had to execute a written
agreement (kabuliyat) in the prescribed form. Mauzadar, as has
been said earlier, was responsible for the collection of poll-tax,
house-tax, tauzi-bahir revenue, grazing fees and forest dues.
He was required to pay to the treasury the full amount of all
E
installments of land revenue, as also the other taxes collected
by him within a particular time. The Mauzadar was not
concerned with the assessment of land revenue or the
settlement of land or checking of maps or assessment papers.
He was only concerned with the collection of land revenue. He
was charged with the duties of supervising the performance of F
duties by Gaonburas, to receive applications for waste lands
which he was authorized to entertain and to submit them with
a report to the proper revenue authority, to submit reports of
cases sent to him by special order for local enquiry, to assist
the district authorities in the assessment of income tax, to G
...... report, when so directed, upon the sufficiency of the security
offered by the lessees of Government or Local Board Ferries,
fisheries etc., to submit weekly reports upon the condition of
crops, the prevalence of epidemics amongst men or cattle, the
loss of life caused by wild animals and the appearance of H
380 SUPREME COURT REPORTS [2009] 8 S.C.R.

A insect pests, to compile and submit to the Civil Surgeon a
monthly return of vital statistics, to check the Gaonburas' reports
of births and deaths by local inspection, to effect field mutations
and field partitions in uncontested cases, to assist Government
in any work connected with the village organization system, to
B warn persons not to allow their cattle to stray on roadside lands
and to submit weekly returns of collections. Therefore, he was
generally required to act as the Deputy Commissioner's
Assistant in all administrative matters within his Mauza, so far -. I

as he may be called upon to do so. This Court also took the
c complete trace of his duties, which further included the power
of attachment and sale of movables under Section 69 of the
Assam Land and Revenue Regulation, 1886 (Regulation No.
1 of 1886). It also took note of the fact that Mauzadars were
appointed Revenue Officers under Section 124 of the
Regulation. It was also noted that all Mauzadars were appointed
0
as ex-officio Assistant Settlement Officers and invested with the
powers to effect registration under Section 53(A) in uncontested
cases and to dispose of under Chapter VI of th·e Regulation all
applications for partition of revenue-paying estates in which no
objection is preferred. The Court further went on to note that
E there was no formal definition of "post" and "civil post". The
Court further observed:-

"A civil post is distinguished in Article 310 from a post
connected with defence; it is a post on the civil as
F distinguished from the defence side of the administration,
an employment in a civil capacity under the Union or a
State. See marginal note to Article 311. In Article 311, a
member of a civil service of the Union or an all-India
Service or a civil service of a State is mentioned
G separately, and a civil post means a post not connected
with defence outside the regular civil services. A post is a .j. ..

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
H heading and the sub-heading of Part XIV and Chapter I
STATE OF WEST BENGAL v. WEST BENGAL REGN. 381
COPY WRITERS ASSN. [VS. SIRPURKAR, J.]
-~
emphasize the element of service. There is a relationship A
of master and servant between the State and a person
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 B
work and the payment by it of his wages or remuneration.
A relationship of master and servant may be established
,,,.. ,j by the presence of all or some of these indicia, in
conjunction with other circumstances and it is a question
of fact in each case whether there is such a relation c
between the State and the alleged holder of a post."
(emphasis supplied).

33. Heavily relying on this judgment, Shri Jayant Mitra,
Learned Senior Counsel for the respondents, compared the
~ post of Mauzadar with the Copywriter. It was suggested that like D
Mauzadars; the Copywriters also held heritable office. The
Learned Senior Counsel further urged that the element of
'appoihttneht' of Mauzadars was present, in Copywriters' case,
ihasmuch as the licenses were granted, continued and
termihated, as also, suspended by the State government under E
the Rules, it was pointed out that practically a!I the factors were
preseht in their case also. We do not think that there is any
-~ similarity between the duties of Mauzadars and the duties of
Copywriters. In fact, all the duties done by the Mauzadars were
the Government duties, the most important being the collection F
of revenue and the collection of other taxes, which were
essentially Government functions. The nature of powers enjoyed
by the Mauzadars is also another pointer to suggest that in
comparison to Mauzadars, Copywriters had no powers. All that
.. they were required to do was to copy the deeds. There were G
4 1 not only the powers to collect the revenue on the part 0f
Mauzadars, but they also had the special duties of supervisory
nature. They were also responsible to the Government servants
like Assistant Commissioners, under whom they worked and
to whom they reported the essential information for income tax. H
382 SUPREME COURT REPORTS [2009] 8 S.C.R.

><' ...
A They also had the powers to effect the partition and thereby, to
deal with the land in some cases. We fail to follow as to how
this case could be of any assistance to the respondents herein.
This Court observed:-

"Judged in this light, a Mauzadar in the Assam Valley is
B
the holder of a civil post under the State. The State has
the power and the right to select and appoint a Mauzadar
and the power to suspend and dismiss him. He is a ~
-..
subordinate public servant working under the supervision
and control of the Deputy Commissioner. He receives by
c way of remuneration a commission on his collections and
sometimes a salary. There is a relationship of master and
servant between the State and him. He holds an office on
the revenue side of the administration to which specific
and onerous duties in connection with the affairs of the
D State are attached, an office which falls vacant on the +- -
death or removal of the incumbent and which is filled up
by successive appointments. He is a responsible officer,
exercising delegated powers of Government. (Emphasis
supplied) Mauzadars in the Assam Valley are appointed
E Revenue Officers and ex-officio Assistant Settlement
qmcers. Originally, a Mauzadar may have been a revenue
farmer and an independent contractor. But having regard
to the existing system of his recruitment, employment and f,
functions, he is a servant and a holder of a civil post under
F the State."

34. This Court further noted that though the Mauzadars
were not paid the salaries, they were paid the remuneration by
way of commission on collections of Government dues. The
Court further noted that considering the overall duties, which we
G have quoted above, the Mauzadars held civil posts. We have
already pointed out that in case of Mauzadars, they were paid
~ .
from the Government coffers, while in case of the Copywriters,
they got paid from the private individuals. Again, the element
of 'control' is completely absent in case of Copywriters, which
H was present in case of Mauzadars. Similarly, Mauzadars were
,.,...
STATE OF WEST BENGAL v. WEST BENGAL REGN. 383

--.. COPY WRITERS ASSN. [V.S. SIRPURKAR, J-.]
, clothed with the administrative powers on the revenue side and A
had to carry out onerous duties in connection with the affairs
of the State, which is not the case of the Copywriters. In our
opinion, therefore, the reliance placed by Shri Mitra, Learned
Senior Counsel for the respondents, on this case, is uncalled
for. B

35. Relying on this case further, Shri Mitra, Learned Senior
,,. ,;; Counsel for the respondents, invited our attention to another
decision in Union Public Service Commission Vs. Girish
Jayanti Lal Vaghela & Ors. reported in 2006 (2) SCC 482 and
more particularly, to the obseNations in para 10 thereof, where
c
the decision in the case of Kanakchandra Dutta (cited supra)
was relied upon for deciding as to whether appointment of a
person under the Administration of a Union Territory on contract
basis for a short period, de-hors the statutory rules and without
... "., complying with the Article 16, the person could be held as the D
Government servant. The Court came to the conclusion that
such person could not be viewed as a person holding a civil
post. The petitioner therein was appointed as Drugs Inspector
on short term contract basis on a fixed salary for a period of
six months. While he was so serving, one advertisement was E /

issued for Drug Inspector post providing the upper age limit for
making direct recruitment at 30 years. Since the petitioner was
,., over-aged by two years, he sought relaxation of his age
claiming to be a Government servant by filing a Writ Petition,
' which was allowed and the High Court had directed to issue F
the age relaxation certificate. The question fell for consideration
as to whether the Writ Petitioner was a Government servant as
the relaxation for possible only for Government servant. Relying
on the judgment in Cassidy Vs. Ministry of Health reported in
1951 (1) All ER 574, the Court noted that while in "contract for G
~ ,., service'', the master can order or require what is to done, in
other case, i.e., "contract of service'', he cannot only order or
require what is to be done, but can also direct how it shall be
done. The Court also referred to another decision in Short Vs.
J.W Henderson Ltd. reported in 1946 (174) LT 417, which had H
384 SUPREME COURT REPORTS [2009] 8 S.C.R.
.'
A laid down the attributes of employer-employee relationship,
which principles were followed in the latter decision. In that
case, the following four indicia of contract of service were laid
down:

(a) The master's power of selection of his servant;
8
(b) The master's responsibility of payment of wages or
other remuneration ;
~ ...
(c) The master's right of suspension or dismissal;
c (d) The master's right to control the method of doing
the work.

Undoubtedly, it was observed that a contract of service
may still exist if some of these elements are absent altogether,
D or present only in an unusual form. It was, however, treated that ~ -
the factor of superintendence and control has always been a
critical and decisive of the legal quality of the relationship.

36. The Court then proceeded to consider the law laid down
E in Morren Vs. Swinton and Pendlebury Borough Council
reported in 1965 (2) All ER 349, which made a slight departure
by saying that though in many cases, the importance of the
factor of superintendence and control was emphasized, but that
f-._
is not the determining test. The Court noted the law laid down
in Morren's Case to the effect that superintendence and control
F
cannot be a decisive test, when one is dealing with a
professional man or a man with professional skill and
experience. Lastly, the Court referred to the decision in the case
of Argent Vs. Minister of Social Security reported in 1968 (3)
All ER 208, in which it was suggested that though in earlier
G cases, the most important test, if not the all-important test, was ._ ~

the extent of control exercised by the employer over the servar1
but with the development of law in recent times, the emphasL
has shifted and no longer rests so strongly on the question o
control. Control is obviously an important factor. In some cases
H it may still be a decisive factor, but it is wrong to say that in
STATE OF WEST BENGAL v. WEST BENGAL REGN. 385
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
~~- .. every case, it is the decisive factor. The Court then went on to A
consider the law laid down in the case of Kanakchandra Dutta
(cited supra) in para 15 and came to the conclusion that indicia
laid down in this case this case could not be the only test for
determining the person holding a civil post under the Union
Territory or State. Ultimately, in para 23, the Court observed that B
the principle laid down in the case of Kanakchandre Dutta (cited
supra) did not advance the case of the respondent in any
,,. • manner, as certain other factors like the process of recruitment
in accordance with relevant service rules were not followed and
certain other incidents of service like transfer, disciplinary c
action, pension and the facility of General Provident Fund were
absent in his case. Lastly, the Court also considered the
decision in State of UP. Vs. Chandra Prakash (cited supra),
where the question was whether the Kurk Amins appointed on
commission basis by Collectors for realization of outstanding
---.\ D
dues of various cooperative societies as arrears of land
revenue can be treated to be employees of the State
Government. It was pointed out that Kurk Amins hqd not been
appointed on contract basis as is the case of Respondent No.
1, but they were in fact, regularly appointed and had to perform
E
Govt. duty of recovering arrears of land revenue. The Court,
therefore, did not hold the said person as a Government
employee. A look at this case would suggest that the rules for
,• the appointment were given the utmost importance. Admittedly,
in the present matters there were no rules for appointment of
any service. The rules merely provided the manner in which the F
licenses were to be created and controlled. That is a distinction.
According to us, even this case does not help the respondents
herein. In fact, the observations in para 15 to the effect that the
decision in Kanakchandra Dutta (cited supra) provided the
complete test, go rather against the respondents. G
" >
37. This takes us to the case of State of Gujarat & Anr.

... Vs. Raman Lal Keshav Lal Soni & Ors. reported in 1983 (2)
SCC 33. The question, which fell for consideration was as to
whether personnel drawn from different sources, namely, H
386 SUPREME COURT REPORTS (2009] 8 ·S.C.R.

c!- ...
A Government departments, as well as, the local authorities or
Municipalities merged together to constitute a single integrated
civil service under the State by a legislative enactment, would
become the State Government employees, irrespective of their
original status. The question was answered in affirmative. This
B decision was very heavily relied upon by Shri Mitra, Learned
Senior Counsel for the respondents, since the end result went
in favour of the employees and they were held to be holding
the civil posts. In para 27, the Court observed:- .,,

"We do not propose and indeed it is neither politic nor
c 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 master and servant. None may be conclusive. On the

D
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
E 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 y ...
circumstances, may have to be considered to determine
F 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 State or not." (Emphasis Supplied)

Reference was made to the cases in Gurugobinda Basu
G
Vs. Sankari Prasad Ghosal reported in AIR 1964 SC 254,
State of U.P. Vs. Audh Narain Singh reported in AIR 1965 SC
360, case of Kanakchandra Dutta (cited supra), D.R.
. ~ ,

Gurushantappa Vs. Abdul Khuddus Anwar reported in 1969(1)
SCC 466 and S.L. Agarwal Vs. G.M. Hindustan Steel Ltd.
reported in 1970 (1) SCC 177. ln para 31, this Court noted that ~
H
STATE OF WEST BENGAL v. WEST BENGAL REGN. 387
. COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
..>--,.+.
the Panchayat Service constituted under Section 203 of the A
Gujarat Panchayats Act was a civil service of the State and
members of the service were Government servants. It was
. • . , , • • ; I ' J ' 'I ' ' l .~

noted that this question was decided by the High Court of
Gujarat more than 15 yeqrs back in G.L Shukla Ys. State of
Gujarat reported in ILR 1967 Guj 560 by Hon'ble Bhagwati, J. a
(as he then was). In that judgment, Hon'ble Bhagwati, J.
observed:-
,,. .i
<'
"The mode of recruitment, the conditions of service and
matters relating to appointments, transfers and promotions
of persons employed in the panchayat service as also
c
disciplinary action against them are all
determined by the
State Government and that is consistent only with the State
being the master in the entire panchayat service. The
mandatory provision for promotion from panchayat service
to State service which is required to be made in the rules D
also shows that both the services are services of the State.
There could be no question of promotion from one service
to another if the masters in the two services were different.
Then it would be a case of termination of one service and
appointment of another..... ...... ... ... . .. .." E

The Learned Judge further said:-

"It is not possible to believe that the officer or servant could
have been intended by the Legislature to be treated like
a chattel which can be tossed about from one master to F
another. The only reasonable way of looking at the matter
seems to be and that conclusion is inevitable on the
language of these provisions, that the panchayat service
is a civil service of State like the State service and since
both the services are civil services of the State with the G
State as the master, an officer or servant can be allocated
from the State service to the panchayat service and
reallocated from the panchayat service to the State
service .... ........... ."
H
388 SUPREME COURT REPORTS [2009] 8 S.C.R.

~--....
A Considering other provisions, ultimately, this Court held the
employees to be belonging to the Government service and
found that there existed the master and servant relationship. The
situation is entirely different in the present case and as has
been oft quoted by this Court that every case would have to be
B decided on the facts. We do not find any parity of the facts in
this case with the case at hands. It was tried to be argued feebly
by Shri Mitra, Learned Senior Counsel for the respondents that
there was a power of transfer in the present rules also and that l

showed the ultimate control. In the first place, that power of
c transfer is not an absolute power of transfer. It depends upon
contingency of the availability of the adequate number of
Copywriters in a particular district. That, in our opinion, would·
not be a decisive factor. On the other hand, what we find is that
there is no payment of wages to the Copywriters from the
Government coffers nor is there any control on the work or on
D
the way the work is to be conducted. Further, there are no rules
creating any such service like the rules, which were considered
in the case of State of Gujarat & Anr. Vs. Raman Lal Keshav
Lal Soni & Ors. (cited supra). This case is, therefore, of no use
to the respondents herein.
E
38. Shri Jayant Mitra, Learned Senior Counsel for the
respondents relied on the judgment in Dharamgadhra
Chemical Works Limit Vs. State of Saurastra reported in AIR .......
1957 SC 264. This case obviously will not apply for the simple
F reason that the question there was as to whether a person, if
paid not per day, but by the job, could be held as a workman.
The observations have been made to the effect that the rules
regarding hours of work etc. applicable to other workmen may
not be conveniently applied to them, is no deterrent against
G holding the persons to be workmen within the meaning of the
definition. We do not think
. . that
- these
. observations or the law
laid down in this case, is apposite to the present controversy.
The other case relied on was Chintaman Rao Vs. State of
Madhya Pradesh reported in AIR 1958 SC 388. This was the
case under the Factories Act. The Court was called upon to
H
STATE. OF WEST BENGAL v. WEST BENGAL REGN. 389
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
·.,;.-
decide upon as to whether who is a contractor and distinction A
between a contractor and a workman. Thi~ w11s the case under
the labour jurisprudence and, therefore, the observations made
therein in paras 10 and 11 would not apply to the present
controversy. Relying on this case, the Learned Senior Counsel
tried to contend that the State supervises and controls the work B
done by the Copywriters. For this purpose, reliance was made
on the Copywriters' Rules of 1979. That was tried to be viewed
r (
as a control by the State Government on the working of the
Copywriters. We have already held that the rules do not have
any such scope as to spell out an absolute control on the work c
of Copywriters.

39. The Learned Senior Counsel also relied on the case
of The Superintendent of Post Offices Vs. P.K. Rajamma
reported in 1977 (3) sec 94. This was a case regarding the
D
extra departmental branch Post Masters and ext•a departmental
• delivery agents. The question was as to Whether such persons
could be held to be holding the civil post. The Court came to
the conclusion that considering the elaborated provisions of
rules controlling the appointment, leave, termination of services,
E
the nature of penalties, procedure for imposing penalties and
other matters relating to the conduct and service of extra
departmental agents, such persons were holding the civil post.
,-ir We have closely seen the ruling and find that the rules relating
to extra departmental branch Post Masters are entirely different.
Those extra departmental branch Post Masters were being F
paid from the coffers of the Government and their service was
also controlled in the manner of penalties. Such is not the case
here. The ruling is of no consequence. Further reliance was
made on the case of G.B. Pant University of Agriculture Vs.
State of Uttar Pradesh reported in 2000 (7) SCC 109, where G
(A.
the question was as to whether the employees of the Cafeteria
run in the University could be recognized as regular employees
of the University. The Canteen workers were ultimately held to
be the employees of the University. We have compared the
conditions of service. The law laid down in this case cannot H
-
390 SUPREME COURT REPORTS [2009] 8 S.C.R.

A apply, since on facts, this case is entirely different. There can
be no comparison between the Canteen workers of a
University, who were actually in the employment and the
Copywriters, who were merely license holders.

40. For canvassing his case on employer-employee
8
relationship, Shri Mitra relied on the case of Ram Singh Vs.
Union Territory, Chandigarh reported in 2004(1) SCC 126. Our
attention was drawn to the finding that the control is only one
of the important tests, but not the only test and in determining
C such relationship, all the relevant factors have to be considered.
Reference is also made to the integration test for examining
as to whether an employee is fully integrated into the employer's
concern or has remained apart from and independent of it.
There can be no question with the ratio. Ho)Never, in our
opinion, even applying the integration test, it cannot be said in
D the present case that the Copywriters have the integral part of .;

the Government machinery. We have already commented upon
the other factors like power of selection, dismissal, the
remuneration etc. This case refers to insurance contributions,
supply of tools and materials etc., which is absent in the present
E case. Therefore, even this case would be no consequence.
Lastly, the reliance was made on the case of Workmen of
Nilgiri Cooperative Marketing Society Vs. State of T.N. & Ors.
reported in 2004(3) sec 514. That was the case regarding the
claim of the workers that they were the workmen of Nilgiri
F Cooperative Marketing Society. The Court, undoubtedly, culled
out some principles like the appointing authority, the paymaster,
the person who can dismiss, the length of the alternative service,
the extent of control, the nature of job, the nature of
establishment etc. in para 37 of the judgment. Ultimately, the
G Court decided against the workrnen in para 98 of the judgment
and held:-
"98. It has been found that the employment of the
workmen for doing a particular piece of work is at
the instance of the producer or the merchants on
H
STATE OF WEST BENGAL v. WEST BENGAL REGN. 391
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
-.. - ...
an ad hoc basis or job to job basis and, thus, the
A
same may not lead to the conclusion that
relationship of employer and employee has come
into being. Furthermore, when an employee has a
right to work or not when an offer is made to him in
this behalf by the producer or by the merchants will B
also assume significance."
~
; This was the case, where in Cooperative Marketing
Society, having about 22,000 members, who brought their
agricultural produce in the marketing yards of the society by c
hired lorries or trucks. The concerned persons, who claimed
to be the workmen, helped for unloading of the gunny bags
containing potatoes from the lorries, unpacking the gunny bags
and keeping the potatoes in lots inside the godown, grading
the potatoes into different sorts, weighing the auctioned D
-- t potatoes in 45 kg and packing them into gunny bags brought
by the merchants, stitching the gunny bags and loading them
into lorries hired by the merchants. These persons, who claimed
to be the workmen, were paid on the basis of the work output.
The growers and merchants were free to engage their own
E
porters and graders. There had been no obligation on the
Society's godown to engage service of these workers, waiting
in the yard. There were no attendance registers or wage
r'<
registers and the Society was found to have no control' as to
who should do the work and the members were free to engage
any worker available in the yard. There were no working hours F
fixed for porters and graders and they were free to come and .
go at will. They had no obligation to report to work everyday
nor was there any control regarding the number of workers to
be engaged and the work to be turned out by the porters and
graders. There were no appointment orders issued by the G
{_.+
Society and there was no disciplinary control over the porters
and graders exercised by the Society. In the light of these facts,
this Court came to the conclusion that the workmen could not
claim to be the workmen of the Society. The situation is no
different, though in some matters, some distinguishing features H
392 SUPREME COURT REPORTS [2009) 8 S.C.R.

A can be seen. In our opinion, this case would come nearest to
the facts of the present case. In our opinion, this case would,
therefore, help the appellants more than the respondents; who :

have chosen to rely on the same. The integrated approach
suggested by this Court in this decision, when made applicable
B to the present case would be of no assistance to the
respondents.

41. On the other hand, Shri Gupta, Learned Senior
Counsel for the appellants, invited our attention to the decision
in Divisional Manager, Aravali Golf Club Vs. Chander Hass
C reported ih 2008 (1) Sec 683. Here, the daily wager Malis who
were working for a long period as daily wager Tractor Drivers
without there being any sanctioned post of Tractor Driver, Were
ordered to be regularized as Tractor Drivers, by the High Court.
This direction was struck down by this Court, hoidihg that when
D there was no sanctioned post of Tractor Driver, the Court could
not direct to creation of such posts and regularize the Malis ih
such posts. Thus, it has been clearly held that where there are
no sanctioned posts, the creation of posts is impermissible.

E 42. Shri Mitra, Learned Senior Counsel for the respondents
tried to distinguish this case on the ground that it is different
on facts. However, we may rely on this case to the limited extent
that where there are no sanctioned posts of a particular nature,
the workmen cannot be directed to be accommodated in the
F post and for that matter, no direction can be given to create
any such post. In Principal, Mehar Chand Polytechnic Vs. Anu
Lamba reported in 2006(7) SCC 161, the ad-hoc/temporary
appointees and promotees, who were not appointed in terms
of any statutory rules, claimed regularization. This Court pointed
G out that the project, under which they were employed, was a
time bound project and no a regular service and, therefore, the
High Court's direction to create the post and regularize the
services of the respondents therein, was quashed by this Court.
Again, to the limited extent that the posts cannot be directed
to be created in complete disregard to the rules, this decision
H
STATE OF WEST BENGAL v. WEST BENGAL REGN.393
COPY WRITERS ASSN. [VS. SIRPURKAR, J.]
'
~+
helps the appellants. A

" 43. Shri Mitra, Learned Senior Counsel for the
respondents, tried to suggest that in the present case, the
Copywriters were engaged to perform duties of the State on
regular basis, in pursuance of the so-called licenses issued by B
the State Government. We have already clarified that such a
grant of license cannot clothe the Copywriters with the status
of Government servant nor were they doing any Government
. ti'
' duty. In State of Haryana Vs. Navneet Verma reported in 2008
(2) sec 65, this Court approved of the abolition of the post of
Accounts Executive by the Government. That was challenged
c
before the High Court. This Court observed that an action taken
by the Government in good faith cannot be challenged and the
Courts do not have any competence to go into such matters,
particularly on the basis of scant materials. We have no
.•· ·~ hesitation to say that in the present case, there is very little or D
no material to suggest any master and servant relationship
between the Copywriters and the Government.

44. Lastly, Shri Gupta, Learned Senior Counsel for the
respondents relied on the decision in Official Liquidator Vs. E
Dayananda & Ors. reported in 2008(10) sec 1. That was a
case, where the staff employed in the office of the Official
,cy Liquidator attached to different High Courts claimed the status
' of permanent Central Government employees. The
• employments were undoubtedly of temporary nature, but this F
staff was attached to the Official Liquidator and were doing the
Government duty. The mode and source of their recruitment and
remuneration were also controlled by the Central Government.

.
However, this Court came to the conclusion, on the basis of the
decision in Secretary, State of Kera/a Vs. Umadevi reported
G
-'·
in 2006 (4) sec 1, that such staff formulated a different class .
This Court noted that from the inception of their employment,
' the staff there were being paid from the fund created by
disposal of assets of the company (in liquidation). Thus, this
Court was of the view that the directions given by the High Court
H
394 SUPREME COURT REPORTS [2009] 8 S.C.R.

~-
A for creation of supernumerary posts to facilitate absorption of
company paid staff were not legally sustainable. In many ways,
the facts are common, inasmuch as, the duty, which were done
by the staff was undoubtedly an official duty. This Court took
into account the fact that they were never paid the wages by
B the Central Government nor were they on the Central
Government establishment. This staff, undoubtedly, worked .
under the control of the Official Liquidators, who were none else
but the Central Government employees and yet the Court came J

to the conclusion that they could not be given the status of the '
c Central Government employees. This case comes very near to
the facts of the present case and would be much helpful to the
appellants, inasmuch as, firstly, this staff, though appointed by
the Central Government, was working in the premises provided
by the Central Government and sometimes in the High Court
premises, and secondly, though they were on ad-hoc basis, they
D
were working continuously and the nature of their duties was ~ ..- \
official. Further, they were under the direct control of the Official
Liquidator, as is being claimed in the present case and yet it
was held by the court that they could not claim the status of the
Central Government employees. The situation is more or the
E less identical in the present case. We are, therefore, convinced
that the law relied upon by Shri Mitra, Learned Senior Counsel,
as also the other Learned Senior Counsel like Shri Ranjit
Kumar, Shri P.P. Rao, and Learned Counsel like Shri Dipak y\

Kumar Jena, does not help the respondents and it cannot be
F held that there was master-servant relationship between State
Government and the Copywriters.

45. Shri Gupta contended that if all the Copywriters were
to be accommodated as the Clerks in the Government service,
G then more than 6000 posts would have to be created and that
would be a practical difficulty. Further majority of these ~-)
Copywriters did not have the basic qualification required and I

thus there would be a practical problem in accommodating
these Copywriters. He further reiterated that all that would not
H be possible without there being any Rules under Article 309 of
STATE OF WEST BENGAL v. WEST BENGAL REGN. 395
COPY WRITERS ASSN. [Y.S. SIRPURKAR, J.]
~·-,.4..
the Constitution of India. The contention is undoubtedly correct. A
This factor of the practical difficulty has been completely ignored
in the impugned judgment.

46. Shri Gupta pointed out that such licenses are given in
number of other Departments where the creation of service
B
cannot be even conceived. He pointed out that the claim of the
Copywriters that they were doing the essential service of the
ti ,j Government is falsified from the fact that in the Districts of
Burdwan, Purba Medinipur, Paschim Medinipur, Maldah, Uttar
Dinajpur and Dakshin Dinajpur the Copywriters Rules, 1999
have never been implemented since inception and there are c
no such eopywriters available. In those Districts the Xerox
copies of the documents are provided as their true copies. Had
the work of copywriters been essential, Government would not
have dispensed with the services of the Copywriters in these
,.,"-- ~
six Districts. According to the learned counsel this clearly D
suggest that the Copywriters did not execute any Governmental
work nor was their work essentially required for the working of
Registration Office. The argument is undoubtedly correct.
Learned counsel also pointed out that there are 6466 Deed-
writers, 1200 Marriage Registrars, 20,000 Post-office Agents, E
40,000 Insurance Agents and 1100 Stamp Vendors in the State
of West Bengal. He pointed out that clothing the Copywriters
,- 'f with the Government Service would mean a financial debacle
for the State. The argument is undoubtedly correct as each and
every licence granted by the Government does not amount to F
Service.

47. The conclusion of all the above discussion is as under:

(i) That the original Writ Petitioners-Copywriters are
mere licensees. G
( -+
(ii) Though the Rules have been formulated by the
Government for awarding these licenses the Rules
do not spell out an absolute control over the working
of these Copywriters. The Rules merely pertain to H
396 SUPREME COURT REPORTS [2009] 8 S.C.R.

A the grant of licences and control of those licences,
how~ver, did not control the working and duties of
the Copywriters.

(iii) The Copywriters do not do any Government duty.
They are merely required to copy the deeds which
B
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
Government duty.

C (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 under
D the Rules, more particularly the Rules formulated
under Article 309 of the Constitution of India.

(vi) The Copywriters are not paid from the Government
coffers. On the other hand they are paid by the
private parties who require those copies for
E Registration of the deeds. Therefore, there is no
fiduciary relationship between the Government and
the Copywriters nor is the government responsible
for any such payment.

F (vii) In short 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 equal treatment with the other Government
G
servants. + )

(viii) The High Court has erred in directing the creation
of service and for that purpose framing the Rules
as also providing the nomenclature for such a
H
STATE OF WEST BENGAL v. WEST BENGAL REGN. 397
COPY WRITERS ASSN. [V.S. SIRPURKAR, J.]
service. In that the High Court has traveled beyond A
the scope of the original application and the writ
petition.

48. The appeals thus deserve to be allowed and they are
accordingly allowed. The common judgment of the High 'Court B
is set aside and that of the Tribunal is restored. Under these
circumstances, however, there shall be no order as to costs.

N.J. Appeals allowed .

.. i