and "in the service of the Government", as explained by the Supreme Court in the case, reported in Raja Bahadur K. C. Deo Bhanj v. Raghunath @page-Cal542 Misra, (1959) 2 SCA 168 : (AIR 1951 SC 589), where, for being in the service of the Government, two essentials of the relationship of the master and servant were held to be necessary. The servant must be under the duty of rendering personal service to the master or to others in his behalf and the master must have a right to control the servant's work, either personally or by another servant or agent. Neither of these two elements would be present in the instant case - in any event, the element of control, envisaged therein, would not be present - the Commissioner qua Commissioner cannot be held to be in the service of the Government. The Commissioner also cannot be said to be in the pay of the Government, because as provided in Section 20 of the Calcutta Municipal Act, his salary is to be paid out of the Municipal Fund, which under Section 115 of the said Act, is made up of monies realised or realisable under the said Act (other than the fines levied by Magistrates) and all monies otherwise received by the Corporation. This fund is certainly not any part of the Government or State Exchequer and cannot be said to be belonging to the State. 20. In the premises, the Commissioner would not satisfy either of the requisite tests of a Public Officer under the relevant Cl. (h) or Section 2 (17) of the Code of Civil Procedure, namely, of being in the service of the Government or in its pay.
