WP/13933/2007 of Dr.P.Sitapati Rao Vs State of Andhra Pradesh rep. by Cheief Secretary to on 31 December 2007

* THE HON'BLE THE ACTING CHIEF JUSTICE BILAL NAZKIAND

* THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN

+ WRIT PETITION NOs. 5563 AND 13933 OF 2007

%Dated 31.12.2007

W.P.No.5563 of 2007:

Between:

Dr.P.Sitapati Rao

……….. PETITIONER

$ Institution of Lokayukta, Andhra Pradesh, Hyderabad rep.by its Registrar

………… RESPONDENT

! Counsel for Petitioner : Sri. Sr. S.R.Ashok ^ Counsel for Respondent : Sri.M.V.S.Suresh Kumar < GIST:

> HEAD NOTE:

? Cases referred[1] AIR 1988 SC 13692AIR 1974 SC 18633(2002) 5 SCC 11142004(2) ALT 6635(2004)5 SCC 2636(1976) 1 SCC 117(1990)1 SCC 5898AIR 1967 SC 8849AIR 1981 SC 5310AIR 1984 SC 16111AIR 1965 SC 36012AIR 1977 SC 167713(1997) 11 SCC 650142004(5) SCC 263

THE HON'BLE THE ACTING CHIEFJUSTICE BILAL NAZKIANDTHE HON'BLE SRI JUSTICE RAMESH RANGANATHANWRIT PETITION NOs. 5563 AND 13933 OF 2007

COMMON ORDER: (The Hon'ble Sri Justice Ramesh Ranganathan)

Dr. P. Sitapati Rao, hitherto the Additional Director General(Irrigation), National Academy of Construction and Ex-officioAdvisor, Irrigation & Command Area Development Department ofthe Government of A.P. has filed these two writ petitions. In W.P.No. 5563 of 2007, the order of the Honourable Lokayukta dated05.03.2007 in holding him to be a “pubic servant”, both underSection 2(k)(iii) and 2(k)(V)(4) of the A.P. Lok Ayukta and Upa-LokAyukta Act, 1983, (hereinafter referred to as Act 11 of 1983), andas amenable to the jurisdiction of the Lokayukta, is underchallenge. In W.P. No. 13933 of 2007, the provisions of Section10 of the A.P. Lokayukta and Upa Lokayukta Act, 1983,(hereinafter referred to as “Act 11 of 1983”), is under challenge, inso far as it empowered the Lokayukta to suo motu conduct aninvestigation and to adjudicate issues, as ultravires Article 14 ofthe Constitution of India. The petitioner also seeks to have theorder passed by the Lokayukta, in C.M.P. Nos. 5 and 6 inComplaint No.890/2005/B1 dated 25.6.2007, set aside. In C.M.P.No. 5, the petitioner had requested the Lokayukta to cause an enquiry into the reasons why phone calls were made from theRegistry and the interest of the individual in getting theproceedings of the Lokayukta published in newspapers. In C.M.P.No. 6, the petitioner sought transfer of Complaint No.890/2005/B1from the file of the Hon’ble Lokayukta to the file of the Hon’ble UpaLokayukta.

Since Sri S.R. Ashok, Learned Senior Counsel appearing onbehalf of the petitioner, has fairly stated that the petitioner was notpressing Writ Petition No. 13933 of 2007, it is not necessary for usto examine either the vires of Section 10 of Act 11 of 1983 or theorders passed by the Lokayukta in C.M.P. Nos. 5 and 6, inComplaint No.890/2005/B1, dated 25.6.2007. W.P. No. 13933 of2007 is dismissed as not pressed.

Even in W.P. No. 5563 of 2007, Sri S.R. Ashok, LearnedSenior Counsel, has confined his submissions, on the validity ofthe order of the Lokayukta dated 5.3.2007, to the limited extentthat the petitioner was held to be a “public servant”. LearnedSenior Counsel seeks adjudication only on the question whetherthe petitioner was, during the relevant period, a public servantwithin the meaning of either Section 2(k)(iii) or Section 2(k) (v)(4)of Act 11 of 1983, for, according to him, it is only if the petitioner isheld as such would he be amenable to the jurisdiction of theLokayukta. Learned Senior Counsel would request that the otherquestions raised in this writ petition be left open. Since ourdecision is invited only on the question whether the petitioner is a“Public Servant”, either under Section 2(k)(iii) or 2(k)(v)(4) of Act11 of 1983, it is wholly unnecessary for us to examine any of theother questions raised in this writ petition.

Elaborate submissions were made by Sri S.R. Ashok,

Elaborate submissions were made by Sri S.R. Ashok, learned Senior Counsel ably assisted by Sri O. Manohar Reddy,learned Counsel for the petitioner. Sri M.V.S. Suresh, learnedStanding Counsel for the Institution of the Lok-Ayukta, made adetailed reference to the order under challenge and to severalG.Os and other proceedings in support of his submission that theorder of the Lok-Ayukta was valid and did not necessitateinterference in proceedings under Article 226 of the Constitution ofIndia.

IS THE NATIONAL ACADEMY OF CONSTRUCTION, OF WHICHTHE PETITIONER WAS THE ADDITIONAL DIRECTORGENERAL (IRRIGATION), A SOCIETY WHICH IS SUBJECT TOTHE CONTROL OF THE STATE GOVERNMENT:

Section 2(k) of Act 11 of 1983 defines “public servant” tomean a person falling under any of the descriptions mentionedthereunder. Under clause (v)(4) thereof, every director, in respectof any society registered under the A.P. (Telangana Area) PublicSocieties Registration Act, 1350 F and subject to the control of theGovernment, is also a “public servant”. Section 2(e) of Act 11 of1983 defines “Government” to mean the State Government. It isnot in dispute that the petitioner as the Additional Director Generalof the National Academy of Construction falls within thedescription of “director” and, as the National Academy ofConstruction was registered as a society under the A.P.(Telangana Area) Public Societies Registration Act, 1350 Fasli,vide Registration No. 4844 of 1998, dated 24.09.1998, he is adirector of a society.

The question to be answered is whether the petitioner is adirector of a society subject to the control of the StateGovernment. To answer this question we must first examinewhether the National Academy of Construction is a society which is subject to the control of the State Government.

It is true that the National Academy of Construction(hereinafter referred to as the Academy) is an independent legalentity and is not a department of the Government. It musthowever be borne in mind that the words “subject to” or “under” donot connote complete control in the sense of being owned by theState Government, and to construe it as such, the words “subjectto” will have to be substituted by the words “of”. The words“subject to” cannot be taken to have the same meaning as theword “of” which may bring in the notion of ownership. Had thatbeen the intention of the legislature there is no cogent reason whythe word “of” was not used in place of the words “subject to”. Theconcept of subjugation can be relevant only when there are twoentities one of which may be subject to the control of the other.While a department of the government strictly speaking is a part ofthe government, a society registered under the A.P. (TelanganaArea) Public Societies Registration Act, is a separate legal entity,and is not a government department. The mere fact that theNational Academy of Construction is a distinct legal entity, and isnot a department of the government, cannot, by itself, be acircumstance from which it may be deduced that it cannot be asociety subject to the control of the State Government. (C.V.Raman Vs. Management of Bank of India[[1]]).

The word “control”, used in clause v(4) of Section 2(k)suggests check, restraint or influence. Control is intended toregulate and hold in check and restrain from action. (State ofMysore Vs. Allum Karibasauppa[[2]]). A society would be subjectto the control of the State Government if it is under the influence of the State Government or the State Government has the power toregulate its affairs and exercise check on it.

Though decisions in cases dealing with Article 12 of theConstitution of India cannot be made the basis to hold that theNational Academy of Construction is a society subject to thecontrol of the State Government, it cannot be gainsaid that thesalient principles which have been laid down in those cases withregard to the authorities having a separate legal entity, andexercising autonomy in certain spheres, will certainly be useful indetermining whether the National Academy of Construction is aSociety subject to the control of the State Government. (C.V.Raman[1]).

I n Pradeepkumar Biswas Vs. Institute of Chemical Biology[[3]], the question which fell for consideration before aseven judge bench of the Supreme Court was whether the Councilof Scientific and Industrial Research (CSIR) was a State within themeaning of Article 12 of the Constitution of India and the SupremeCourt observed:

“…….The picture that ultimately emerges is that the tests formulatedin Ajay Hasia are not a rigid set of principles so that if a body falls within anyone of them it must, ex hypothesi, be considered to be a State within themeaning of Article 12. The question in each case would be — whether inthe light of the cumulative facts as established, the body is financially,functionally and administratively dominated by or under the control ofthe Government. Such control must be particular to the body inquestion and must be pervasive. If this is found then the body is a Statewithin Article 12. On the other hand, when the control is merelyregulatory whether under statute or otherwise, it would not serve tomake the body a State………” (emphasis supplied)

It is contended on behalf of the petitioner that the NationalAcademy of Construction is a private society not subject to the control of the State Government, that the bye-laws of the societyclearly show that the governing body of the society was thesupreme authority and any decision taken by it was not subject toany review by the Government nor did the government have anycontrol, the mere fact that the Chief Minister was the Chairman didnot by itself make the society one subject to the control of theState Government, that there was no financial contribution fromthe Government and the entire finance of the society was fromcontributions from contractors, that the members of the Board ofthe governing body exercised independent power and, merelybecause the governing body had persons from governmentdepartments, an inference could not be drawn that the Governmentwas exercising its influence over the functioning of the Society. The judgment of the Supreme Court, in Pradeep Kumar Biswas[3],is sought to be distinguished on the ground that, in the said case,the Minister had the power to review the decisions taken by thegoverning body of the society whereas in the present case therewas no power of review conferred on the Chief Minister. It isfurther contended that the G.Os, issued by the Government, withregards contributions, showed that the same were issued at therequest of the association of the contractors, that the provisions ofSection 28 only empowered the government to place such termsand conditions on the society which were mutually agreed uponand that no such conditions had been imposed by the Governmenton this Society. It is further contended that, since the Society wasnot under the control of the government, the mere fact that thepetitioner was its Additional Director General did not make him a“public servant”.

The Hon’ble Lokayukta relied on the judgment of theSupreme Court, in Pradeepkumar Biswas[3], to hold that the teststo be satisfied, for a society to be subject to the control of the Government, was whether the National Academy of Constructionwas financially, functionally and administratively dominated by theState Government. The factual details, based on which thehonourable Lok-Ayukta has concluded that the State Governmentexercised financial, functional and administrative dominance overthe Academy, are not disputed before us. What is under challengeis the conclusions drawn by him from these facts.

The Honourable Lokayukta noted that the National Academyof Construction, (hereinafter referred to as the “Academy”),wascreated by the State Government with the main object ofpromoting education, training, research etc., at all levels inconstruction and allied industries without any profit motive, thatthe first governing body was constituted by the State Governmentin G.O.Ms.No.108 dated 20.6.1998, that the Chief Minister of theGovernment of A.P. was the ex-Officio Chairman of the Academyas also its governing body, that, as ex-Officio Chairman, the ChiefMinister had the power to preside over all governing and generalbody meetings, that the ex-Officio Chairman had also the power tonominate any member to conduct general body meetings in hisabsence, that as ex-Officio Chairman the Hon’ble Chief Ministerhad the power to fill up any vacancy that may arise in thegoverning body, that he had the power to nominate certain numberof members to the governing body, that he had the power toappoint the Director General of the Academy who was to be aMember Secretary and that the General Body, over which hepresided, had the power to consider and make decisions relatingto the objects, administration, finances of the academy and toregulate the finances of the academy.

The Hon’ble Lokayukta held that the rules and regulations ofthe academy gave a dominant role to the Chief Minister who wasthe ex-Officio Chairman over the administration and financial affairs of the academy, that the present governing body consistedof several heads of government departments and corporations andit was evident that the Government of A.P. was in a position todominate or influence the administration of the academy and themere fact that the rules of the academy did not specify theadministrative control of the government was of no consequence. The Hon’ble Lokayukta rejected the contention advanced on behalfof the petitioner that the powers exercised by the Chief Ministerwas in his capacity as the Chairman of the Academy and not asthe Chief Minister of the State and held that, given the fact that theChairman of the Governing Body was the Chief Minister and theGoverning Body consisted of several heads of governmentdepartments and government corporations, subjugation of thegoverning body to the will of the State Government was evident.

On the question of financial control, the Hon’ble Lokayuktaheld that the bulk of the initial funding came from governmentdepartments and government corporations who had joined as thepatron members as per the directions of the government, that therecurring income of the Academy i.e., contribution fromcontractors was also because of the mandatory intervention of thegovernment by issuing two G.Os. directing the departments andcorporations to collect contributions from the contractors byinserting appropriate clauses in the work agreements, and, but forsuch mandatory intervention of the Government, contributionsfrom the contractors could not have been collected and passed onto the Academy. He held that the governing body was dominatedby, and was under the influence of, the State Government whichregulated the expenditure of the Academy.

In this context it is useful to note that the State Governmentissued G.O.Ms. No. 92 dated 19.05.1998 for mobilization of fundsfor the Academy. The said G.O. notes that the Engineering-in-

Chief, Roads & Buildings department of the State Government,vide letter dated 30.03.1998, had informed that the Builders’Association of India, Andhra Pradesh Centre was requested todiscuss about the contribution of 0.50% of the contract value forestablishing the Institute of Construction Technology of India atHyderabad, (later called the National Academy of Construction),for utilizing the amount in construction of buildings and for meetingthe expenditure in running the Institute, that the Builders’Association of India, vide letter dated 13.02.1998, had informedthat the issue was discussed in their meeting and that themembers had agreed to contribute 0.25% of the contract value andhad sent proposals to the Government for inclusion of thiscondition in all Orders of Contracts. Under the said G.O, theGovernment decided to permit the Executive Engineers toconclude supplemental agreements with the contractors, for worksunder execution and to be entrusted in future, to deduct 0.25%. The Engineering-in-Chief was requested to issue necessaryinstructions to all concerned and ensure that the funds werecollected and remitted to the Institute.

In G.O.Ms. No. 103 dated 16.06.1998, the Governmentapproved the scheme of starting the National Academy ofConstruction and granted an extent of Ac.167.30 in Sy. Nos. 5/2 to5/23 at Izzatnagar Village, Lingampaly Mandal, Ranga ReddyDistrict to the Academy free of cost. The Government alsoaccorded approval for its departments and Corporations becomingpatrons of the Academy by contributing Rs.30.00 lakhs each. TheG.O. refers to five Government Corporations and four Governmentdepartments and they were requested to send Demand Drafts forRs.30.00 lakhs each in favour of the to the Engineering-in-Chief,R&B department. The Engineering-in-Chief, R&B department wasrequested to take immediate action for establishing the National Academy of Construction at Hyderabad. The Secretary to theGovernment, Revenue department, was requested to identify andalienate to the A.P. State Housing Corporation Limited suitableland in Ranga Reddy District in lieu of the land which belonged tothe A.P. State Housing Corporation having been allotted to theNational Academy of Construction.

In G.O.Ms. No. 61 dated 11.04.2000 the Government notedthat, in the 6[th] Governing Board Meeting of the National Academyof Construction held on 29.12.1999, it was resolved to recover0.25% from the contractors’ gross bills as contribution to theNational Academy of Construction by including it as a condition inthe tender documents and agreement forms, thus making suchcontributions mandatory. The Government, after carefulconsideration and examination of the matter, directed that all itsdepartments, as well as Corporations under their administrativecontrol, should include the said condition in the tender documentsand agreement forms so as to collect 0.25% from the contractors’gross bills as their contribution to the National Academy ofConstruction thus making such contribution mandatory. Thiscondition was required to be included in the tender documents andagreement forms from 01.04.2000 onwards.

In G.O.Ms. No. 159 dated 30.10.2004, the Governmentnoted that the Builders’ Association of India, in their meeting heldwith the Honourable Ministers of Panchayat Raj, Irrigation, Roads& Buildings and Commercial Taxes on 30.08.2004 regardingstreamlining the tender procedure for timely completion of works,had agreed that, in the interest of the State, they had no objectionto their contribution of 0.25% being apportioned. After carefulexamination, the Government ordered that the present 0.25%contribution from the Contractors continue and be divided betweenChief Minister’s Relief Fund and the National Academy of Construction in the ratio of 0.15% and 0.10% respectively withimmediate effect.

Ratio decidendi

Sri S.R. Ashok, Learned Senior Counsel, would howevercontend that the mere fact that the Government had given landfree of cost would not make the Society one subject to the controlof the State Government. He would refer to the fact that severalprivate companies had been allotted land by the Government, fromtime to time. According to the Learned Senior Counsel, ifallotment of land was the only criteria, then these privatecompanies must also be held to be subject to the control of theState Government.

It is evident that, not only was the National Academy ofConstruction allotted an extent of Ac. 167.30 of land free of costfor establishing the Academy, but the initial contribution of Rs.2.7crores also came by way of contributions as patron members fromfive Government corporations and four departments of the StateGovernment and that periodical contributions, of an extent of0.25% of the Gross bills of contractors, was as a result of such astipulation in all contracts in which either the State Government orGovernment Corporations were a party. The financial controlexercised by the State Government over the National Academy ofConstruction is overwhelming.

On the question of functional control, the Lokayukta heldthat, since the governing body of the Academy was dominated byand was under the influence of the Government, it was futile tocontend that the Government had no functional control over theaffairs of the Academy. He further held that, besides these factorswhich gave administrative, financial and functional domination orinfluence of the state government over the affairs of the Academy,Section 28 of the A.P. Societies Registration Act, 2001 gave power to the State Government to control the affairs of the Academy, thatunder Section 28, when the government was a member of asociety, or was wholly or substantially financing the society, itcould control the affairs of the society unilaterally, in the absenceof mutual agreement, by issuing a specific policy notification andsince the government was a member of the Academy, thisstatutory provision again gave the State Government control overthe affairs of the Academy. The Honourable Lokayukta rejectedthe contention that the control, which the State Government couldexercise under Section 28 of Act 35 of 2001 was only at theinception and not thereafter. He held that the State Governmentcould exercise control under Section 28 during the existence of thesociety at any time.

Section 28 of the A.P. Societies Registration Act, 2001,(hereinafter referred to as Act 35 of 2001), relates to Societiesfinanced by the Government and, thereunder, where a Governmentis a member or is wholly or substantially financing a society, itmay place such terms and conditions on the society as aremutually agreed upon or through specific public policy notified bythe Government for this purpose.

It is evident from G.O.Ms. No. 103 dated 16.06.1998 thatfive Government Corporations and four Government departmentsbecame the patron members of the Academy contributingRs.30.00 lakhs each. These four Government departments are (a)Transport, Roads and Buildings; (b) Department of Irrigation andCommand Area Development; (c) Department of Panchayat Rajand Rural Development and (d) Department of MunicipalAdministration and Urban Development. It is also evident from

G.O.Ms. No. 103 dated 16.06.1998 that the Government hadgranted an extent of Ac.167.30 of land free of cost to the NationalAcademy. In addition to Rs.2.7 crores, contributed as patronmembers by five Government Corporations and four Governmentdepartments, G.O.Ms. No. 92 dated 19.05.1998, G.O.Ms. No. 61dated 11.04.2000 and G.O.Ms. No. 159 dated 30.10.2004 revealthe extent of financial contribution made to the Academy as aresult of the stipulation, directed to be made by the Government, inthe contracts to which either the State Government or GovernmentCorporations were a party. It is not in doubt, therefore, that theState Government is substantially financing the National Academyof Construction. While there is no evidence on record to show thatterms and conditions had been mutually agreed upon between theGovernment and the Academy, the Government, vide G.O.Ms. No.108 dated 20.06.1998, had notified the public policy underlying thepurpose for which the Academy had been established as alsodetails of the governing body of the Academy to be under theChairmanship of the Chief Minister of Andhra Pradesh, Ex-officio.There is nothing in the language of Section 28 of Act 35 of 2001 tosupport the contention that the power conferred thereunder on theGovernment, to issue public policy notifications and thereby placeterms and conditions on the society, can be exercised only at theinception when the Academy was established and not thereafter. The statutory power, which the Government has under Section 28of the Act 35 of 2001, can be exercised at any time. The powerconferred on the Government under Section 28 is unfettered and iscircumscribed only by the provisions of Act 35 of 2001 and not by any rules which the Academy may have made for its internalmanagement. That the Government has the power under Section28 of Act 35 of 2001 to issue public policy notifications to theAcademy, in view of its being a member of the Academy, andsubstantially financing it, would also go to show that the NationalAcademy of Construction is a society subject to the control of theState Government.

The Hon’ble Lokayukta held that, since the Academy was aregistered society subject to the control of the State, the petitioner,who was working as the Additional Director General in theAcademy, was a public servant within the meaning of Section 2(k)(v)(4) of the Act. These conclusions of the Honourable Lokayukta,on a detailed examination of several Government orders and othermaterial placed before it, are valid and do not necessitateinterference in proceedings under Article 226 of the Constitution ofIndia.DOES THE PETITIONER, AS EX-OFFICIO ADVISOR(IRRIGATION) IN THE IRRIGATION AND COMMAND AREADEVELOPMENT DEPARTMENT OF THE GOVERNMENT OFANDHRA PRADESH, FALL WITHIN THE DEFINITION OF “PUBLIC SERVANT” UNDER SECTION 2(k) (iii) of Act 11 of1983:

Under Section 2(k)(iii), a “public servant” means everyofficer referred to clause (i). Section 2(i) defines “officer” to meana person appointed to a public service or post in connection withthe affairs of the State of Andhra Pradesh. It is not necessary torefer to the second limb of the definition of “officer” since it wasstruck down by a Division Bench of this Court in J. Paparao Vs.Government of Andhra Pradesh[[4]]. To fall within the definition of “officer” under Section 2(i) of the Act, the person should havebeen appointed (a) to a public service or (b) to a post inconnection with the affairs of the State of A.P.

It is contended on behalf of the petitioner that he did notcome under the definition of “officer” under Section 2(i) of the Actas he was only an advisor whose advice was being taken oncertain matters and any advice that he had given was not bindingon the State, that the words “ex-officio” used in G.O.Ms. No. 97dated 11.9.2004 were mere surplusage, that the petitioner did notreceive any salary from the Government, that G.O.Ms.No.97 dated11.9.2004 did not indicate any duties required to be discharged bythe petitioner, that the petitioner was led to believe that he wasonly required to advise the Government on ongoing irrigationprojects that, since the order issued by the Government inG.O.Ms. No. 97 dated 11.09.2004 was that of an Advisor, as noremuneration was being paid to him from government funds andsalary was being paid to him only by the society, he was notholding a public post and, merely because his advice was beingtaken by the Government, it cannot be said that he came withinthe definition of an “Officer” under the Act. It is contended that thepost of Advisor is neither a cadre post nor a Constitutional post,that it was a function akin to an expert advice under Section 45 ofthe Evidence Act, 1872, and that the government desired suchexpert advice as essential in respect of matters anterior to theJalayagnam programme. It is also contended that matters werereferred to the petitioner only for his expert technical advice to theapex administrator i.e., Principal Secretary who was handicapped with lack of technical engineering knowledge and as such theservice rendered as an Advisor did not bring the petitioner withinthe definition of a “public servant” under the Act. It is furthercontended that the language used in Section 2(i), whereunder theword “officer” is defined, has been borrowed from Article 309 ofthe Constitution of India, that in order to come under the definitionof “officer” under Section 2(i) of the Act, a master and servantrelationship between the State government and the personemployed was essential, that mere tendering of advice did notmake the person an officer, that the advice tendered by thepetitioner was only recommendatory in character and that thepetitioner was not entitled to the protection of Article 311 of theConstitution of India. Reference is made to the preamble of Act 11of 1983 to contend that it is only “action taken” which falls withinthe scope of the Act, that only persons who had the power to takea decision, as distinguished from mere advice, would fall within thedefinition of ‘Officer” under Section 2(i) and thereby a “publicservant” under Section 2(k)(iii) of the Act. It is contended thatsince the petitioner was merely tendering advice which was notbinding on the Government, and as he had no power to take anydecision, he cannot be said to be an “officer” or a “public servant”under the Act. Reliance is placed on behalf of the petitioner onDr. Gurjeewan Garewal Vs. Dr.Sumitra Dash[[5]]and Dattatraya Narayan Patil Vs. The State of Maharashtra[[6]].

In his order dated 05.03.2007, the Honourable Lokayuktatook note of the written comments submitted by the petitioner thatthe government had permitted him to peruse all the files relating to

irrigation projects and that all files were being marked for hiscomments as was the practice from 1998, that his long experiencein the field of irrigation projects had helped him to see that theestimates of the projects, formulation of projects with regard toinvestigations and designs of projects were correctly estimated.

On the question whether the petitioner was an “officer”within the meaning of Section 2(i) of the Act, and whether he wasappointed to a public service or a post in connection with theaffairs of the State of A.P., the Honourable Lokayukta noted that,after his retirement as Chief Engineer, the petitioner had beenappointed as the Technical Advisor in the Irrigation and CommandArea Development Department by the State Government, videG.O.Ms.No.654 dated 20.8.1998, with powers to co-ordinate,monitor and provide technical support to all field functionaries toimplement APER Project, that all the concerned Chief Engineersand other officers were asked to extend all possible cooperation toseek his advise and provide the required information relating toA.P. Economic Restructuring Project, that the Government hadextended the tenure of the petitioner as Technical Advisor to theIrrigation Department for one year from 19.7.2002 to 18.4.2003vide G.O.Ms. No. 517 dated 19.7.2002 whereunder also he wasentrusted with the additional duties of scrutiny/evaluation of highvalue works of R & B and Panchayat Raj Department. TheLokayukta noted the submission of the petitioner, in para 2 of hiswritten comments, that his tenure as Technical Advisor was beingrenewed every year till 2004. He further noted that the petitionerwas appointed as the Additional Director General of the NationalAcademy of Construction on 3.8.2004 for a period of 2 years on atotal salary of Rs.40,000/- per month with perks like car withdriver, residential telephone with STD facility and mobile phones,that subsequently he was again appointed for a period of two years

with effect from 6.8.2006 as an Additional Director General of theAcademy vide order dated 1.8.2006 on the same terms sandconditions and that, while he was working as Additional DirectorGeneral, the Government had issued G.O.Ms.No.97 dated11.9.2004. While taking note of the fact that G.O.Ms.No.97 dated11.9.2004 did not specify the duties and functions of the petitioneras ex-Officio Advisor, the Lokayukta held that the Government hadpermitted him to peruse all files relating to irrigation projects, thatall files had been marked to him for his opinion as was the practicefrom the year 1998 and his long experience in the field of irrigationhad helped him to see that these estimates were correctly made. The Lokayukta noted that the facts which came to light during thepreliminary verification clearly indicated that he was scrutinizingall the estimates even before they were placed before the PrincipalSecretary to the Government, Irrigation & CAD Department, thathe was also the Chairman of the Technical Evaluation Committeewhich scrutinized bid evaluation reports, submitted by theconcerned Superintending Engineers and Chief Engineers, andplaced its recommendations before the High Power Committee. The Lokayukta held that as ex-Officio advisor, the petitioner wasexercising considerable control over the department and wasenjoying a status equal to that of the Principal Secretary to theGovernment, if not more and these facts clearly established thathe was occupying an important position in the Government as anEx-Officio Advisor. The Lokayukta held that the functions whichthe petitioner was discharging were of public nature and were inconnection with the affairs of the State Government. While notingthat in G.O.Ms.No.97 dated 11.9.2004 the word “appoint” was notused, he held that absence of these words would not make anydifference since the definition of the word “appoint” as per Black’sLaw Dictionary included to “designate, ordain or nominate” and that the order in G.O.Ms.No.97, in effect, amounted to appointingthe petitioner to a public post. The Honourable Lokayukta heldthat, in this view of the matter, it was unnecessary to examinewhether there was a master-servant relationship between thepetitioner and the State Government and whether he was under theadministrative control of the State Government or was receivingpay in the State Government and that these questions were notrelevant in view of the clear language employed in Section 2(i) ofthe Act.

The Honourable Lokayukta relied on Dattatraya NarayanPatil[6]and Coal Mines Provident Fund Commissioner Vs.Ramesh Chander Jha[[7]]to hold that the petitioner, who was apublic servant under Section 2(k)(v)(4) of the Act, did not cease tobe a public servant while discharging the additional publicfunctions entrusted to him in the Irrigation and Command AreaDevelopment Department and the actions taken by him as suchadvisor were open to investigation by the Lokayukta under theprovisions of the Act. The preliminary objection was rejected bythe Honourable Lokyukta holding that the petitioner answered thedefinition of “public servant”.

The petitioner was appointed as Technical Advisor, to theIrrigation Department of the State Government vide G.O.Rt. No.654 dated 20.08.1998, with a view to coordinate and providetechnical support to the field engineers to implement the APER(Irrigation component) Project, since he had versatile experiencein investigation, design and execution of irrigation works as theTechnical Adviser to the Irrigation Department. Under the saidG.O, the petitioner was required to co-ordinate, monitor andprovide technical advice to all the field functionaries for

implementing APER project. All the concerned Chief Engineersand other officers were asked to extend all possible cooperation tothe petitioner and seek his advice and provide the requiredinformation relating to the A.P. Economic Restructuring Project. The Government permitted payment of honorarium at the rate ofRs.1,000/- per day subject to a ceiling of Rs.20,000/- per monthand also to reimburse the actual expenditure incurred by him ontelephones, traveling etc., for carrying out his duties as TechnicalAdvisor. The expenditure in this regard was required to be debitedto the Major & Medium Irrigation Project Account of the StateGovernment. The petitioner’s services, as Technical Advisor tothe Irrigation department, were extended for one year from19.04.2002 to 18.04.2003 vide G.O.Rt. No. 517 dated 19.07.2002and the petitioner was asked to look after, not onlyscrutiny/evaluation of estimates relating to the irrigationdepartment, but also estimates of high value works of R&B andPanchayat Raj Departments and/or those which thesedepartments chose to refer to him for advice/scrutiny. The otherterms and conditions of his appointment remained unchanged. Thepetitioner was appointed as Additional Director General (Irrigation)of the National Academy of Construction, Hyderabad, for a periodof 2 years, vide proceedings dated 3.8.2004 and, vide proceedingsdated 9.9.2004, he was paid a monthly remuneration ofRs.40,000/- and in addition was given certain perquisites includinga car with a driver, a residential telephone with STD facility for amaximum limit of Rs.1500/- per day and a mobile telephone with amaximum limit of Rs.1500/- per month. Thereafter the Government, by G.O.Ms.No.97 dated 11.9.2004, appointed him asthe ex-officio Advisor (Irrigation) I & CAD Department. The saidG.O. reads:

“Dr.P.Sitapati Rao has joined National Academy of Construction, Hyderabadas Additional Director General, Irrigation.

Government after careful consideration hereby order thatDr.P.Sitapati Rao will also work as Ex-officio Advisor (Irrigation) I & CADDepartment”

The petitioner’s appointment as Additional Director General(Irrigation) in the National Academy of Construction was extended,vide proceedings dated 01.08.2006, for a period of two years from06.08.2006. While he was continued to be paid a remuneration ofRs.40,000/- per month, the maximum limit for the residentialtelephone and the Mobile phone was enhanced to Rs.2,000/- permonth. In addition he was paid a service allowance of Rs.2,000/-per month.

It is thus evident that the petitioner was paid honorarium ofRs.1,000/- per day subject to a ceiling of Rs.20,000/- by the StateGovernment till he was appointed as Additional Director General ofthe National Academy of Construction. Payment of honorariumwas stopped only because he was paid twice as much asremuneration by the National Academy of Construction.

In his affidavit, filed in support of the writ petition, thepetitioner states that he worked in the Irrigation Department from1980 till he superannuated in the year 1993 as the Chief Engineer,that in the year 1998 the State Government had appointed him asthe Head of the A.P. Economic Restructuring (IrrigationDepartment) Projects, with an outlay of Rs.1299.00 crores, inorder to improve the performance of the irrigation systems in theState, that the Government, taking into consideration his versatileexperience in investigation, design and execution of irrigation

Conclusion

works, had appointed him as the technical advisor in the IrrigationDepartment for two years, that the appointment was extended fromtime to time from the year 1998 and that, in the year 2003, G.O.Rt.No. 517 dated 19.07.2002 was issued wherein the Governmenthad extended his term as Technical Advisor for a period of oneyear from 19.04.2002 to 18.04.2003 and had entrusted theadditional work of not only scrutiny/evaluation of estimates relatingto irrigation department, but also estimates of high value works ofR&B and Panchayat Raj Departments and that his tenure wasrenewed every year till 2004. The petitioner states that, during theabove period, he was involved in the work of monitoring Owktunnel and Owk reservoir projects in Kurnool District, that he wasinvolved in formulation and monitoring of medium irrigationprojects financed by the World Bank such as SurampalemReservoir Project, Kovvada Kalva Reservoir Scheme, PedderuReservoir Scheme etc., that he was also entrusted with the downstream protection works of Prakasam Barrage, Dam Safety workof Srisailam Project, scrutiny of Estimates, claims of variouscontractors, scrutiny and evaluation of estimates of high value andworks of Roads and Buildings and Panchayat Raj departments,that he was also incharge of the works connected with GodavariPushkarams in the year 2003 and that his work was appreciatedby the Government. Petitioner further states that, whenever therewas any damage to any of the dams or irrigation projects in theState, he was the first person to be sent to take temporary andpermanent restoration of the damaged dams, etc and in this regardhe was sent to take remedial measures in Sathanala Dam inAdilabad District, Kandaleru Dam near Nellore and P.A.B.R. Damnear Anantapur. In the words of the petitioner, in para 4 of his affidavit,:- “I submit that in the year 2004, I was appointed as AdditionalDirector General of National Academy of Construction on 03.08.2004. Taking into consideration of my vast experience in the field ofirrigation projects, the Government of Andhra Pradesh has issuedG.O.Ms. No. 97 dated 11.09.2004 wherein I was asked to work asEx-Officio Advisor (Irrigation) I & CAD department. I submit thatthe nature of works and duties have not been enumerated in theG.O. that has been issued by the Government, but however all thefiles relating to the irrigation projects were being marked to me formy opinion which was the practice from the year 1998. I submitthat the long experience in the field of irrigation projects hashelped me to see that the estimates of the projects, formulation ofprojects with regard to investigations and designs of projects arecorrectly estimated. I submit that my experience in the irrigationfield was being utilized by the government and my advice is takenin the matters pertaining to irrigation. In most of the projects, I wasinstrumental in reviewing the estimates that have been preparedby the department.” (emphasis supplied.)

Facts

It is true that the words “person appointed to a publicservice or post in connection with the affairs of the State”, found inthe definition of “officer” under Section 2(i) of Act 11 of 1983, isalso to be found in Article 309 of the Constitution of India. Whilethe Hon’ble Lokayukta found it unnecessary to go into the questionwhether there existed a master and servant relationship betweenthe State Government and the petitioner as Ex-Officio Advisor inthe Irrigation Department, it is contended on behalf of the petitionerthat it is only if this test is satisfied can the petitioner be said tohave been appointed to a public service or as holding a post inconnection with the affairs of the State of Andhra Pradesh. Thereis no formal definition, under the Constitution of India, of "post" and"civil post". A civil post is distinguished in Article 310 of theConstitution of India from a post connected with the defence. It isa post on the civil as distinguished from the defence side of theadministration, an employment in a civil capacity under the Union or a State. In Article 311, a member of a civil service of the Unionor all-India service or a civil service of a State is mentionedseparately and a civil post means a post not connected withdefence outside the regular civil services. A post is a service oremployment. A person holding a post under a State is a personserving or employed under the State. A post under the State is anoffice or a position to which duties in connection with the affairs ofthe State are attached, an office or a position to which a person isappointed and which may exist apart from and independent of theholder of the post. It is not possible to lay down a definite test todetermine when a person may be said to hold a civil post underthe Government. There is a relationship of master and servantbetween the State and a person said to be holding a post under it. The true test for determination of the question whether a person isholding a civil post or is a member of the civil service is theexistence of a relationship of master and servant between theState and the person holding a post under it. Several factors mayindicate the relationship of master and servant. None may beconclusive. On the other hand, no single factor may be consideredabsolutely 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 otherdisciplinary action, the right to prescribe the conditions of service,the nature of the duties performed by the employee, the right tocontrol the employee’s manner and method of the work, the rightto issue directions and the right to determine and the source fromwhich wages or salary are paid and a host of such circumstances,may have to be considered to determine the existence of therelationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. (State ofAssam Vs. Kanak Chandra Dutta[[8]];Mathuradas MohanlalKedia Vs. S.D. Munshaw[[9]]; and State of Gujarat Vs. RamanLal Keshav Lal Soni[[10]]). But co-existence of all these indicia isnot predicated in every case to make the relation one of masterand servant. In special classes of employment a contract ofservice may exist, even in the absence of one or more of theseindicia. (State of Uttar Pradesh Vs. Audh Naarain Singh[[11]]).

As noted above the petitioner, as a Technical Advisor of theIrrigation Department, was being paid an honorarium of Rs.1000/-per day subject to a ceiling of Rs.20,000/- per month in addition tocertain other perquisites. It is only after he was appointed as theAdditional Director General of the Academy, where he was paid amonthly remuneration of Rs.40,000/-, that payment of honorarium,as Ex-Officio Advisor in the Irrigation department were stopped. The mere fact that he was not being paid monthly remuneration bythe State Government, in the light of the facts and circumstancesmentioned above, would not, by itself, indicate absence of amaster and servant relationship between the State Governmentand the petitioner. Suffice to note that in Coal Mines ProvidentFund Commissioner[7], the Supreme Court held that the word “toserve” meant “to perform, function; do what is required for”, andthe mere fact that the Commissioner received salary andallowances out of the Coal Mines Provident Fund and not from thegovernment, during his tenure as Commissioner, would make nodifference when the description as an officer in “service” of thegovernment was answered.

Similarly, the fact that there is no cadre post of Advisor/Technical Advisor in the Irrigation department is of noconsequence since the appointment to a post outside the regularcivil services, if under the direct control of the State Government,would still render such person as one holding a civil post under theState Government. Reference can usefully be made to a few suchcases which came up for consideration before the Supreme Court.

The Extra Departmental Agents system in the Departmentof Posts and Telegraphs was in vogue since 1854. The objectunderlying it was to cater to the postal needs of the ruralcommunities dispersed in remote areas. The system availed of theservices of schoolmasters, shopkeepers, landlords and such otherpersons in a village who had the faculty of reasonable standards ofliteracy and adequate means of livelihood and who, therefore, intheir leisure could assist the Department by way of gainfulavocation and social service in ministering to the ruralcommunities in their postal needs, through maintenance of simpleaccounts and adherence to minimum procedural formalities, asprescribed by the Department for the purpose. In The Supdt. ofPost Offices Vs. P.K. Rajamma[[12]], and Union of India Vs.Kameshwar Prasad[[13]], the Supreme Court held that an extradepartmental agent held a post under the administrative control ofthe State, that though such a post was outside the regular civilservices, there was no doubt it was a post under the State, thatthese extra departmental agents worked under the direct controland supervision of the postal authorities who had the right tocontrol the manner in which they carried out their duties and thatthe relationship between the postal authorities and the extradepartmental agents was one of master and servant.

In Kanak Chandra Dutta[8], the question which arose forconsideration was whether a Mauzadar was a person holding acivil post under the State within the meaning of Art. 311 of theConstitution of India. The Supreme Court held that a Mauzadar inthe Assam Valley was the holder of a civil post under the State,that a post outside the regularly constituted services need notnecessarily carry "a definite rate of pay" and may be a part-timeemployment and that the conditions of service of a Mauzadarenabled him to engage in other activities.

It is evident from G.O.Rt.No.654 dated 20.8.1998 that thepetitioner, as a Technical Advisor to the Irrigation Department,was assigned the duties of coordinating, monitoring and providingtechnical advice to all the field functionaries for implementing A.P.Economic Restructuring (Irrigation component) project with anoutlay of about Rs.1299 Crores. In addition to these duties theGovernment, vide G.O.Rt. No. 517 dated 19.7.2002, had alsoasked the petitioner to look after, not only the scrutiny/evaluationof estimates related to the Irrigation Department, but the estimatesof high value works of the Roads and Buildings and Panchayat RajDepartments and/or those which these departments choose torefer to him for advice/scrutiny. These duties were assigned tothe petitioner in view of his versatile experience in investigation,design and execution of irrigation works. Since these duties wereassigned by the Government to the petitioner by way of executiveorders they assume the character of public duty. (DattarayaNarayan Patil[6]). As is evident from the averments of thepetitioner in his affidavit, relevant portion of which is extractedabove, all files relating to irrigation projects were marked for hisopinion, even after G.O.Ms.No.97 dated 11.9.2004 was issued as was the practice from the year 1998. In effect, the petitionercontinued to discharge the very same duties which were assignedto him as Technical Advisor in the Irrigation Department from 1998onwards. It is evident, from the G.Os. referred to herein above,that the government exercised control over the petitioner’s mannerand method of work, in the sense that it chose to decide whichfiles were required to be sent to him for his expert advice. Thepetitioner was appointed for a fixed duration and his appointmentwas periodically extended. The Government had the right toterminate the engagement. The petitioner, as Ex-officio Advisor inIrrigation department, rendered service to the Government bygiving his expert advise on several matters. He was also theChairman of the Technical Evaluation Committee which made itsrecommendations to the High power committee. It is, therefore,evident that the relationship between the State Government andthe petitioner, (as Technical Advisor in the Irrigation Department),was that of a master and servant and that the petitioner wasdischarging public duties assigned to him under executive ordersof the government. The petitioner, in rendering service anddischarging public duties in connection with the affairs of the Stateas a Technical Advisor in the Irrigation department, must be heldto have been appointed to a public service and a post inconnection with the affairs of the State of A.P.

Reliance is, however, placed on behalf of the petitioner onMrs. Gurjeewan Garewal Vs. Sumitra Dash[[14]], to contend tothe contrary. In Mrs. Gurjeewan Garewal[14], the Supreme Courtobserved that Article 311 of the Constitution of India conferredcertain safeguards upon persons employed in a civil capacityunder the Union or a State and that only persons holding "civil

posts" could claim protection under Article 311. The SupremeCourt noted that, under Section 4 of the Post Graduate Instituteof Medical Education and Research, Chandigarh Act, 1966,(PGIMER Act), PGIMER was a 'body corporate having a perpetualsuccession and a common seal, that PGIMER was a separateentity in itself, that employees of any authority, which was a legalentity separate from the State, could not claim to be holders ofcivil posts under the State in order to avail the protection of Article311, that there was also no master and servant relationshipbetween the State and an employee of PGIMER, which was aseparate legal entity in itself and that employees of PGIMER couldnot avail the protection of Article 311 as it could only be claimedby members of a civil service of the Union or of All India Serviceor of a Civil service of a State or by persons who held a civil postunder the Union or a State.

The petitioner’s appointment as Additional Director Generalin the National Academy for Construction does not, by itself, makehim a person holding a civil post under the State. It is as anAdvisor (Irrigation), in the Irrigation and Command AreaDevelopment Department of the State Government, that he holds apost in connection with the affairs of the State of Andhra Pradesh.The judgment in Mrs. Gurjeewan Garewal[14]has, thus, noapplication to the facts of the present case.

Sri S.R. Ashok, learned Senior Counsel, would contend thateven if the Academy was held to be a society subject to thecontrol of the State Government and, by virtue of his being itsAdditional Director General, the petitioner is held to be a publicservant, even then it is only with regards the functions which he has discharged in the society could an enquiry be held under theAct and not any “action” taken pursuant to any recommendationswhich he may have made as the Advisor in the Irrigation andCommand Area Development Department of the Government ofA.P. This question may not strictly necessitate examination as wehave held that the petitioner, on his services being engaged as aTechnical Advisor, is a public servant under Section 2(k)(iii) of theAct also. The word “Ex-Officio” is defined, (Refer Law Lexicon byP. Ramanatha Aiyer – Reprint 2002 edition), to mean “by virtue ofoffice”. Since the petitioner was appointed as Ex-Officio Advisor,(Irrigation), under G.O.Ms. No. 97 dated 11.09.2004, as he wasthe Additional Director General in the National Academy ofConstruction, a society subject to the control of StateGovernment, it cannot be said that the words “Ex-officio” as usedin the said G.O. is inappropriate surplussasge. Any action takenby the petitioner, as Technical Advisor, can be the subject matterof investigation by the Lokayukta and it is not necessary that theinvestigation should be confined only to his functions as AdditionalDirector General of the National Academy of Construction. Thecontention that it is only a decision taken by a public servant, andnot a mere recommendation, which can be the subject matter ofinvestigation under Act 11 of 1983, does not merit acceptance. Act 11 of 1993, as is evident from its preamble, is an Act to makeprovision for investigation of administrative action taken by or onbehalf of the Government of A.P. or certain public authorities in theState of A.P. including any omission and commission inconnection with or arising out of such action and for all matters

connected therewith. Section 2(a) of the Act defines “action’ tomean an action taken by a public servant in the discharge of hisfunctions, as such public servant, by way of recommendationalso. Even if it were to be held that the petitioner, as a TechnicalAdvisor (Irrigation), was only making recommendation, and nottaking any decision, his recommendation, by itself, would fallwithin the definition of “action” under Section 2(a) and be amenableto investigation under the Act by the Honourable Lokayukta.

Since the petitioner, as the Additional Director General ofthe National Academy for Construction and the ex-Officio Advisor(Irrigation) of the Government of A.P, is a “public servant” withinthe meaning of Section 2(k)(v)(4) and Section 2(k)(iii) of Act 11 of1983, the challenge to the order of Honourable Lokayukta dated5.3.2007 must fail.

This Court, by order in W.P.M.P. No. 7088 of 2007 in W.P.No. 5563 of 2007 dated 20.03.2007, observed that the application,seeking stay of the proceedings in Complaint No. 890/2005/B1,pending before the Lokayukta, Andhra Pradesh, was liable to bedismissed because it was not supported by any affidavit and thatthe stay order of the Court would jeopardize the ongoingproceedings pending before the Lok Ayukta, Andhra Pradesh in acomplaint involving, not only the petitioner, but three other personsand that it would not be in public interest to stultify proceedings atthat stage. In W.P. No. 13933 of 2007 this Court, in its docketproceedings dated 26.07.2007, took note of the submission madeon behalf of Sri M.V.S. Suresh Kumar, learned Counsel appearingfor the Institution of the Lok Ayukta, that the Lok Ayukta, who haddemitted office, had already prepared the report and the same hadbeen put in a sealed cover. This Court directed the sealed cover containing the report prepared by the Lok Ayukta be kept ready forperusal of the Court. On 17.09.2007 this Court noted that SriM.V.S. Suresh Kumar had produced two sealed envelopes, that hehad stated that the same contained the report prepared by the LokAyukta, Andhra Pradesh and that the sealed covers were shown tothe Counsel for the petitioner and returned to Sri M.V.S. SureshKumar for being handed over to the office of the Lok Ayukta. Since the report of the Hon’ble Lokayukta is ready, and is kept in asealed cover, it shall, in accordance with Section 12(1) of the Act11 of 1983, be forwarded to the competent authority forthwith.

The writ petition, however, fails and is, accordingly,dismissed. No order as to costs.

________________

BILAL NAZKI, J

Date: .12.2007

_____________________________

RAMESH RANGANATHAN, J

Note: L.R. copy to be marked.B/o

MRKR/ASP

[1]AIR 1988 SC 1369[2]AIR 1974 SC 1863[3](2002) 5 SCC 111[4]2004(2) ALT 663[5](2004)5 SCC 263[6](1976) 1 SCC 11[7](1990)1 SCC 589[8]AIR 1967 SC 884[9]AIR 1981 SC 53[10]AIR 1984 SC 161[11]AIR 1965 SC 360[12]AIR 1977 SC 1677[13](1997) 11 SCC 650[14]2004(5) SCC 263