Director of Panchayat Raj & ANR Vs.
Babu Singh Gaur  INSC 314 (18 November 1971)
KHANNA, HANS RAJ
CITATION: 1972 AIR 420 1972 SCR (2) 400 1972
SCC (1) 227
F 1977 SC 355 (6) F 1977 SC1267 (5)
Civil Service-Temporary Servants-Declared to
be holding posts in substantive capacity-Posts subsequently made permanent--No
orders of confirmation of individual officersTermination on one month's notice
Legality-Fundamental Rule 26(d) of Financial Hand Book, Vol. II Part II-Scope.
The respondents were appointed temporarily to
respective posts and at the time of their appointment the posts were also
temporary. Sometime after, their appointments, though temporary, were declared
to be in substantive capacity within the meaning of the order of the Governor
regarding, Fundamental Rule 26(d) of the Financial Hand Book Volume III, Part
11, with retrospective effect from the date of their first appointment. These
posts along with other temporary posts, were subsequently made permanent.
However, the government did not consider the question of confirmation of the
individual officers in these posts, the respondents' services were terminated
by one month's notice as provided in the rule for termination of the services
of a government servant in temporary service. The respondents filed writ
petitions challenging the orders of termination of their services. The High
Court allowed these petitions. Setting aside the Orders of the High Court and
dismissing the writ petitions,
HELD : Fundamental Rule 26(d) and the Order
of the Governor clearly show that they merely dealt with leave and increment
and the order has nothing to do with the nature of the appointment. That order
did not convert the appointments of temporary government servants either into
permanent appointments or into temporary appointment in substantive capacity in
permanent posts. For purposes other 'than those mentioned in the order their
appointments continue to be temporary. The High Court proceeded on the
erroneous reasoning that as the respondents were holding their posts in a
substantive capacity though temporarily, they must be held to have been holding
those permanent posts in a substantive capacity. [405 C] (ii) A temporary
government servant does not become Permanent unless he gets that capacity
either under some rule or he is declared or appointed by the government as a
permanent government servant. At the time of the conversion of the temporary
post,, into permanent posts the government did not consider the question of
confirmation of the officers holding those posts. And no rule has been shown
under which the respondents can be considered as having been appointed either
permanently or in a substantive capacity to permanent posts. [405 G] State of
U.P. v. Abdul Khalik, C. As Nos 782 & 783/66 decided on April 30, 1969,
Purshotam Lal Dhingra v. The Union of India,
 S.C.R. 8 28 and State of Nagaland v. G. Vasantha,, A.I.R. 1970 S.C.
537, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 1011 and 1012 of 1966.
401 Appeals by special leave from the
judgments and decrees dated February 12, 1965 and November 10, 1964 of the
Allahabad High Court in Special Appeals Nos. 298 of 1960 and 483 of 1962
G. N. Dixit and 0. P. Rana, for the
appellants (in both the appeals).
W.S. Barlingay, M. K. Pandey, S. K. Sabharwal
and Ganpat Rai, for the respondents (in both the appeals).
J.P. Goyal and R. K. Bhatt, for the
intervener (in C.A. No. 1012 of 1966).
The Judgment of the Court was delivered by
Hegde, J. These are appeals by special leave. A common question of law arises
for decision in these two appeals.
Hence it is convenient to consider them
together. The material facts are more fully set out in Civil Appeal No.
1012 of 1966. We shall set out those facts in
detail. We shall refer to the facts of Civil Appeal No. 1011 of 1966
The respondent in Civil Appeal No. 1012 of
1966, Jugal Kishore Bhatt was appointed as the Sales-tax Officer on June 29,
1948 by the Governor of U.P. At the time of his appointment the posts of
Sales-tax Officers were temporary posts. He joined the service in the Sales-tax
department at Bareilly on July 15, 1948. His appointment was on temporary
basis. He continued to serve in that department as Salestax Officer until the
year 1951 on temporary basis. In that year the Government issued G.O. No. ST
419/X-941. Paragraph 4 of that order provided that as the posts detailed in the
list annexed to the G.O. are likely to last for more than three years, the
Governor is pleased to declare that the appointments made to those posts will
be deemed to have been made in a substantive capacity and the incumbents
thereof (shown in the list) other than those who are appointed to officiate in
leave vacancies shall be treated as holders of those posts in a substantive
capacity within the meaning of the order of the Governor regarding Fundamental
Rule 26(d) of the Financial Handbook, Volume II, Part II with retrospective
effect from the date of their first appointments to those posts. The respondent
continued in the department as Sales-tax Officer until 1953. In that year the
Governor of U.P. in exercise of the powers conferred upon him by the provisions
of Art. 309 of the Constitution made the following rule:
"(1) Notwithstanding anything to the
contrary in any existing rules and orders on the subject, the services of a
Government servant in temporary service shall be liable to termination at any
time by notice in writing 402 given either by the Government servant to the
appointing authority or by the appointing authority to the government servant.
(2)The period of such notice shall be one
month given either by appointing authority to the Government servant, or by the
government servant to the appointing authority, provided that in the case of
notice by the appointing authority, the latter may substitute for the whole or
part of this period of notice, pay in lieu thereof; provided further that it
shall be open to the appointing authority to relieve a government servant
without any notice or accept notice for a shorter period without requiring the
government servant to pay any penalty in lieu of notice.
(3) This rule shall take immediate effect and
shall apply to all persons who are appointed hereafter in a civil post in
connection with the affairs of Uttar Pradesh and who are under the rule making
control of the Governor, but who do not hold a lien on any permanent government
(4) In this rule "temporary
service" means officiating and substantive service in a temporary post.
and officiating service in a permanent post, under the U.P. government.
(5) Nothing in this rule shall apply to:
(a) government servant engaged on contract;
(b) government servant not in whole time
(c) government servant paid out of
(d) persons employed in work-charged
establishments." Sometime in February 1953, the respondent was informed by
the Commissioner of Sales-tax, U.P. that his appointment would terminate on
March 31, 1953; but he could be reemployed in the post but he will be subject
to the rule set out earlier. The respondent was asked to intimate to the
Government by March 23, 1953 whether he was prepared to be reemployed from
April 1, 1953 on the said terms. The respondent signified his consent for
reappointment on the terms mentioned in the letter. Thereafter he continued in
service up to March 31, 1954. Subsequently his appointment was extended for a
period of one year from April 1, 1954 to March 31, 1955.
403 Meanwhile by G.O. No. ST-896/X-911 D/55
dated April 27, 1955, the Governor was pleased to sanction the extension of the
posts of Sales-tax Officers up to March 31, 1956.
On May 22, 1956 the Governor was pleased to
issue G.O.No.ST-2562/x-911-A. This G-O.is important. Hence we shall quote the
same in full:
"G.O. No. ST 2562/X-911 dated May 22,
1956 from the Deputy Secretary to Government to Commr. Sales Tax.
Subject : Conversion of sixty one temporary
posts of S.T.O. into permanent one.
With reference to your letter No. E-1-Cent-1313814/ST
dated Feb. 13, 1956, I am directed to convey the sanction of the Governor to
the conversion, w.e.f. April 1, 1955, of sixty one temporary posts of S.T.0s,
in the scale of Rs. 250-25-600 sanctioned for the S.T. Department, the term of
which was last extended upto March 31, 1956, in G.O. No. S.T. 896/X-911/55
dated April 26, 1955 into permanent ones. That G.O. should be deemed to have
been modified accordingly. Orders regarding the confirmation of individual
officers in these posts will issue separately.
The charge on the above account should be
debited to the relevant primary Units under the head "13-other taxes and
Duties. Charges in connection with the U.P. Sales Tax Act 1948 in the
budget." On May 1, 1958, the State Government terminated the services of
the respondent by giving him one month's notice. The respondent represented
against the notice terminating his service but his representation was rejected.
Thereafter he challenged the order of his termination before the Allahabad High
Court by means of a writ petition under Art. 226 of the Constitution. His writ
petition was accepted by the learned single judge and the impugned order was
set aside. That order was affirmed by a division bench. Aggrieved by that
order, the government has brought this appeal.
Now turning to the facts in Civil Appeal No.
1011 of 1966, the respondent therein was appointed as a temporary Panchayat Raj
Inspector on June 6, 1949. Officers appointed temporarily under the Panchayat
Raj scheme were also declared to hold their temporary posts in a substantive
capacity, within the meaning of the order of the Governor regarding Fundamental
Rule 26(d) of the Financial Handbook Vol. II, Part II with retrospective effect
from the date of their first appointment to those posts. They were also made
subject to the rule made under Art. 309 referred to earlier.
The temporary posts under the Panchayat Raj
Scheme 404 were converted into Permanent posts subsequently. The services of
the respondent Babu Singh Gaur were terminated, by giving him one month's
notice, on September 12, 1958.
Babu Singh Gaur also challenged his
termination by means of a writ petition under Art. 226 of the Constitution
before the Allahabad High Court. His writ petition was dismissed by a single
judge but in appeal the Letters Patent Bench allowed his plea and set aside the
impugned order. The government has appealed against that order.
It is admitted that the respondents in both
these appeals were appointed temporarily. At the time of their initial
appointment, the posts to which they were appointed were also temporary.
Sometime after their appointment, their appointments though temporary were
declared to be on substantive capacity within the meaning of the order of the
Governor regarding Fundamental Rule 26(d) Financial Handbook Vol. II, Part II
with retrospective effect from the date of their first appointments to their
posts. Fundamental Rule 26(d) says :
"If a government servant's tenure of a
temporary post is interrupted by duty in another post or by leave other than
extraordinary leave or by foreign service, such duty, leave or foreign service
counts for increments in the time-scale applicable to the temporary post if the
government servants returns to the temporary post; provi ded that the
Government may, in any case where they are satisfied that the leave was taken
on account of illness or for any other cause beyond the government servants'
control, direct that extraordinary leave shall be counted for increments under
this clause." The order of the Governor regarding rule 26(d) reads thus:
"Under this rule if a government
servant's tenure of a temporary post is interrupted by leave, the leave counts
for increments to the time-scale applicable to the temporary post, but under
clause (b) of this rule if a government servant officiating in a permanent post
takes leave and returns to his officiating tenure of that post on the expiry of
the leave, the leave does not count for increments in the time-scale applicable
to that post as during such leave he is treated as having reverted to his
substantive post, if any. The difference in the treatment accorded to leave
granted under similar circumstances arises from the fact that appointments to
temporary posts, even of short duration' are usually made in a substantive
capacity. But neither the practice of making almost all appointments to
temporary post in a substantive capacity nor the difference of treatment to
which it gives rise is justified. Therefore, although these rules as they stand
admit of both a substantive appointments to temporary 405 posts should be made
only in a limited number of cases, as for example, when posts are to all
intents and purposes quasi permanent or when they have been sanctioned for a
period of not less than three years, or there is reason to believe that they
will not terminate with in that period. In all other cases, appointment to
temporary posts should be made in an officiating capacity only." It is
clear from the rules as well as the order of the Governor that they merely
dealt with leave and increment.
That order has nothing to do with the nature
of the appointment. The fact ',,hat for certain specified purposes those
temporary appointments were to be considered to be in a substantive capacity,
does not mean that the appointees were holding the posts in question in a
substantive capacity for all purposes. For purposes other than mentioned in the
order, their appointments continue to be temporary.
The learned judges of the Letters Patent
Bench thought that as Babu Singh Gaur and Jugal Kishore Bhatt were holding
their posts in a substantive capacity, though temporarily, after the posts held
by their, were made permanent, they must be held to have been holding those
permanent posts in a substantive capacity. In our opinion this is an erroneous
reasoning. The order which converted those temporary posts into permanent posts
specifically stated that "order regarding the confirmation of individual
officers in these posts will issue separately". At the time of the
conversion of temporary posts into permanent posts, the Government did not
consider the question as to who all should be confirmed.
Obviously the government wanted to consider
that question separately.
The substantive capacity conferred on the
officers holding temporary posts in the Sales-tax department as well as in the
panchayat Raj department was for a specific purpose i.e. counting leave for
increment purpose, and for no other purpose. That order did not convert the
appointments of the temporary government servants in those departments either
into permanent appointments or into temporary appointments in substantive
capacity in permanent posts.
A temporary government servant does not
become a permanent Government servant unless he gets that capacity either under
some rule be is declared or appointed by the Government as a permanent
government servant. Our attention has not been invited to any rule tinder which
respondents in these appeals can be considered as having been appointed either
permanently or in a substantive capacity to permanent posts.
All along they continued to be temporary
government servants whether the posts held by them were temporary posts or
This Court in Purshotam Lal Dhingra v. The
Union of India(1) considered in detail the nature of posts held by government
ser(1)  S.C.R. 828.
406 vants. Dealing with the question of
substantive appointment of a person to a temporary post, this Court observed at
842 and 843 of the report :
"The substantive appointment to a
temporary post, under the rules, used to give the servant so appointed certain
benefits regarding pay and leave, but was otherwise on the same footing as
appointment to a temporary post on probation or on an officiating basis, that
is to say, terminable by notice except where under the rules promulgated in
1949 to which reference will hereafter be made, his service had ripened into
what is called a quasi permanent service." In State of Nagaland v. G.
Vasantha(1), this Court was called the effect of Fundamental Rules. In these
appeals also we are concerned with those Rules. After dealing with the nature
of the various appointments, this Court observed :
"The position may, therefore, be
submarised as follows : In the absence of any special contract the substantive
appointment to a permanent post gives the servant so appointed a right to hold
the post until, under the rules he attains the age of superannuation or is
compulsorily retired after having put in the prescribed number of years'
service or the post is abolished and his service cannot be terminated except by
way of punishment for misconduct, negligence, inefficiency or any other
disqualification found against him on proper enquiry after due notice to him.
An appointment to a temporary post for a certain specified period also gives
the servant so appointed a right to hold the post for the entire period of his
tenure and his tenure cannot be put an and to during that period unless he is,
by way of punishment, dismissed or removed from the service. Except in these
two cases, the appointment to a post, permanent or temporary, on probation or
on an officiating basis or a substantive appointment to a temporary post gives
to the servant so appointed no right to the post and his service may be
terminated unless his service had ripened into what is, in the service rules,
called a quasi-permanent service." In State of Nagaland v. G. Vasantha(1),
this Court was called upon to decide the validity of termination of service of
a government servant by giving him notice of termination as prescribed in the
relevant Rules. Therein, the concerned government servant had been appointed
purely on temporary basis. The post to which he was appointed was also a
temporary first. Sometime after his (1) A.I.R.  S.C. 537.
407 appointment that post was converted into
a permanent post.
But his services were terminated. The
question was whether because of the conversion of the post into a permanent
post, he ceased to be temporary government servant. Reversing the decision of
the High Court of Assam and Nagaland, this Court held that the fact that the
post which he was holding was converted into a permanent post did not confer on
him any additional right. His service was terminable by giving him the
prescribed notice under the Rules.
A question similar to the one before us came
up for consideration before this Court in State of U.P. v. Abdul Khalik(1). The
facts of that case were substantially similar to the facts in than appeals.
Therein this Court reversing the decision of the Allahabad High Court held that
the service of the respondent therein was validly terminated by giving him one
months notice. Speaking for the Court Sikri J. (our present Chief Justice)
"The learned Counsel for the State
contends that the plaintiff was a temporary servant and his services were
liable to be terminated on a months’ notice and the fact that he was holding
appointment as temporary substantive does not make the plaintiff a permanent
government servant. There is force in this contention.
The learned Counsel for the plaintiff was not
able to point out any material to show that a person who is appointed temporary
substantive can be equated with a permanent government servant. It is clear
from the order dated May 22, 1956, that only certain posts were, made permanent
while by the order dated December 12, 1957, certain other persons were made
permanent government servants. The plaintiff cannot claim to be a permanent
government servant till lie is declared or appointed as such." In that
case this Court had to consider the scope of the rule framed by the Governor
under Art. 309 of the Constitution. In our opinion, the ratio of that decision
completely covers the point under consideration. That decision was tried to be
distinguished on the ground that in that case, only some out of the several
temporary posts had been converted into permanent posts, whereas in the cases
before us all the temporary posts had been converted into permanent posts. We
do not think this difference has any bearing on the ratio of that decision. The
ratio of that decision is that a government servant temporarily appointed does
not get a right to the post merely because the post held by him is converted
into a permanent post.
For the reasons mentioned above, we allow
these appeals, set aside the orders of the High Court and dismiss the writ
(1) C.A.S. No,. 782 & 783/66 decided in April 30,1969.
408 but in the circumstances of the case, we
direct the parties to bear their own costs both in this Court as well as in the
Before leaving these cases, we would like to
impress on the government the hardship that is likely to be caused to the
respondents in these appeals. Babu Singh Gaur was appointed as far back as 1949
and Jugal Kishore Bhatt in the year 1948. They have served the government for a
very long time.
At this late stage in their lives, it would
be very difficult for them to seek other employment. These are eminently fit
cases where the government should find a way to absorb them in its service.
S. C. Appeals allowed.