State of Mysore & ANR Vs. S. V.
Narayanappa [1966] INSC 136 (22 August 1966)
22/08/1966 SHELAT, J.M.
SHELAT, J.M.
RAO, K. SUBBA (CJ)
CITATION: 1967 AIR 1071 1967 SCR (1) 128
CITATOR INFO :
R 1979 SC1676 (5) R 1985 SC1367 (44)
ACT:
Mysore Civil Service Rules, 1958-Government
Order dated 22nd Sept. 1961--Local candidates entitled to have their services
regularised under order-Break in service after 1st Jan.
1960-Effect of.
HEADNOTE:
The respondent joined Class III service of
the Mysore Government in 1958 as a local candidate. According to the Mysore
Civil Service Rules, 1958 a local candidate meant a temporary Government
servant not appointed regularly in accordance with the rules of recruitment to
that service.
On September 22, 1961 the Mysore Government
passed art order whereby under sub-cl. (i) of cl. 2 local candidates appointed
before Dec. 31, 1959, were entitled to have their appointments regularised
subject to certain conditions.
According to sub-cl. (ii) of cl. 2 of the
Order the services of local candidates were to be regularised with effect from
the date of their appointment', from which their service was continuous
provided they were in service on 1st January 1960 and continued to be in
service at the time their services were regularised. Sub-clause (iii) said that
local service would count for purposes of leave, pension and increments but not
for purposes of seniority, and that only the service from the date of
regularisation of the appointment in the particular department would count for seniority.
Sub-clause (iv) laid down that breaks in service would not be condoned even if
such breaks were only for short periods. There was a break of one day in the
respondent's service on March 1, 1961. The Mysore Government terminated his
service on July 4, 1963. The respondent filed a writ petition before the High
Court claiming that he was entitled to have his appointment regularised under
the aforesaid Government Order. The High Court held that the requirements of
the Order were that a local candidate was entitled to its benefit if he joined
service before Dec. 31, 1959, and was in service on two dates, namely 1st
January 1960 and 22nd September 1961. On this view the High Court allowed the
respondent's petition whereupon the State appealed to this Court.
HELD : The High Court was wrong in its
construction of subcl. (ii) of cl. 2 of the Order.
On a harmonious construction of sub-cl. (ii)
with the other subclauses of cl. 2 its proper interpretation would be that in
order that the regularisation order may apply to a particular case the local
candidate must be initially appointed prior to December 31, 1959, he must be in
service on January 1, 1960 and continue to be in service without any break till
the date of the order. Since the service of the respondent was not continuous
during this period he was not entitled to regularisation of his appointment
under the Order. (133 G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1420 of 1966.
129 Appeal by special leave from the judgment
and order dated October 21, 1965 of the Mysore High Court in Writ Petition No.
2173 of 1964.
S. T. Desai, B. R. L. Iyenger and B. R. G. K.
Achar, for the appellant.
R. B. Datar, Anil Kumar Sablok and B. P.
Singh, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. This appeal by special leave is against the Judgment and Order of
the High Court of Mysore quashing the memorandum dated July 4, 1963 whereby the
State Government terminated the service of the respondent. The only question
arising in this appeal is one of interpretation of the Government Order No. GAD
46 SRR, dated September 22, 1961.
The respondent entered government service as
an officiating computor in the Government Press on March 11, 1958 and continued
in that post until September 1, 1958. He was thereafter appointed from time to
time in officiating capacity in different posts though in the same department
until December 3, 1959 when he was appointed as a proof examiner. He continued
in that post until February 28, 1961. According to the appellants there was
break in his service on March 1, 1961 as his service was terminated on February
28, 1961 and he was once again appointed on March 2, 1961 as a second division
clerk (industrial.). He continued in that post until July 4, 1963 when the
impugned order terminating his service was passed. The first of March 1961 on
which it was said there was break in his service was a holiday.
There is no dispute that the respondent was
throughout working in officiating capacity and was a "local candidate"
like several other such employees appointed by direct recruitment by Government
instead of regular recruitment by the Public Service Commission of the State as
required by the rules of Recruitment.
Rule 8(27A) of the Mysore, Civil Service
Rules, 1958 defines a "local candidate" as meaning a temporary
Government servant not appointed regularly in accordance with the Rules of
Recruitment to that service. Rule I(A) of the Mysore Government Servants'
(Seniority) Rules, 1957 provides that those rules do not apply to a person
appointed as a local candidate so long as he is treated as such. It further
provides that where his appointment is treated as regularised from any date,
his seniority in the service shall be determined in accordance with these rules
as if he had been appointed regularly in accordance with the Rules of 130
Recruitment to the post held by him on that day. Since the appointment of local
candidates as in the case of the respondent was not made by or through the
Public Service Commission as required by the Rules, the State Government with a
view to regularise such appointments passed the said order dated September 22,
1961.
The material portion of the said order runs
as follows 2.
(i) All appointments to Class III Direct
Recruitment Posts made by the local appointing authorities, both in the old
Mysore area (including Bellary District) and in the other integrating areas up
to 31st December 1959 (inclusive) may be regularised subject to the condition
that the candidates were within the prescribed age limits and had the requisite
qualifications at the time of their initial appointments;
(ii) The services of local candidates shall
be regularised with effect from the date of their appointment, from which their
service is continuous provided they were in service on 1st January 1960 and
continue to be in service at the time their services are regularised.
(iii) The local service will count for
purposes of leave, pension and increments............ but not for purposes of
seniority; only the service from the date of regularisation of their
appointments in the particular department will count for seniority;
(iv) Breaks in service will not be condoned
even if such breaks are only for short periods.
In the Writ Petition filed by the respondent
against the impugned order dated July 4, 1963 terminating his service the
respondent raised two points :--(1) that though he was a local candidate
appointed from time to time to the aforesaid posts he was entitled to have his
service regularised under the said order and (ii) that as he was entitled to be
so regularised he was also entitled to the protection of Article 311(2) of the
Constitution. Consequently, his service could not be terminated in the manner
it was done by the impugned order. The contention of the State Government on
the other hand was that the order of regularisation did not apply to the
respondent as his service was not continuous as required by the said order and
therefore there was no question of Article 311 being applicable to his case and
the State Government was entitled therefore to terminate his service by the
said order of July 4, 1963.
131 The High Court on an interpretation of
the Order dated September 22, 1961 repelled the Government's contentions and
held that the respondent was entitled to have his service regularised with
effect from the date his service was continuous prior to December 31, 1959 and
that being so, the order terminating his service on the erroneous basis that he
was a temporary government servant not entitled to the benefit of the aforesaid
regularisation order was violative of Article 311. This interpretation meant
that the appointment and service of the respondent were not only to be
regularised but as a result of such regularisation the respondent had to be treated
as a permanent servant being entitled to the protection of Article 311(2). The
High Court arrived at this result on the interpretation it gave to the portion
of the said Order which we have set out above. The High Court observed that
sub-clause (2) of clause 2 of the said Order provided for the fixation of the
date with effect from which the appointment was deemed to have been made
permanent and that the second part of that sub-clause laid down the conditions
which if satisfied entitled the respondent for regularisation. According to the
High Court the necessary conditions for such regularisation were :-(a) that the
local candidate should be in service on January 1, 1960 and (b) that he should
continue to be in service at the time his service was to be regularised. The
High Court further observed that what subclause (2) required was "not
continuity of service but that the services be continued at the time of the
regularisation" and that the intention of the Government was not to lay
down the condition of continuous service between December 31, 1959 and the date
of the said Government order. It then observed "When the Government order
by a fiction of the law provided for regularisation of services with effect
from a date anterior to 31-121959, the local candidates who satisfy the
qualifications and conditions prescribed by sub-paras (i) and (ii) are deemed
to have been permanently appointed with effect from a date anterior to
31-12-1959. Where the local candidate possesses the qualifications prescribed in
sub-para (i) of para 2, if his initial appointment was made before 31-121959,
he is entitled to have his appointment regularised provided he was in service
on 1st January 1960 and is continued in service at the time of the G.O.,
notwithstanding any break in service between 31-12-1959 and 22-91961." The
High Court also held that sub-clause (iv) on which reliance was placed by the
Government had reference to break in service before December 31, 1959 and not
during the period subsequent to that date. Thus, according to the High Court if
a local candidate 132 was initially appointed prior to December 31, 1959 and
was in service on January 1, 1960 and also on September 22, 1961 he was
entitled to the benefit of the regularisation order.
So long as he was in service on the two
termini his service would have to be regularised irrespective of whether his
service during the interval was continuous or not. The High Court also equated
regularisation with permanence of service and therefore held that once a local
candidate's service was regularised he had to be treated as a permanent
servant.
Before we proceed to consider the
construction placed by the High Court on the provisions of the said order we
may mention that in the High Court both the parties appear to have proceeded on
an assumption that regularisation meant permanence. Consequently it was never
contended before the High Court that the effect of the application of the said
order would mean only regularising the appointment and no more and that regularisation
would not mean that the appointment would have to be considered to be permanent
as an appointment to be permanent Would still require confirmation. It seams
that on account of this assumption on the part of both the parties the High
Court equated regularisation with permanence.
We are however not called upon in this appeal
to decide and we do not decide that question as Mr. Desai on behalf of the
State Government assured us that the Government bad come in appeal only in its
anxiety to have the order interpreted by this Court as the construction placed
by the High Court on the said order, if upheld, would have considerable
repurcussions on the prospects of other State employees. He also assured us on
behalf of the State Government that since the break in the service of the
respondent during the material time was only of one day, viz., March 1, 1961,
assuming there was such a break, the government would not do anything to
adversely affect his service and would not take away the benefit which he acquired
as a result of the High Court's judgment, even if we were to disagree with the
interpretation placed by the High Court on the said Order.
Coming now to the Order, sub-clause (i) of
clause 2 provides that all appointments to Class III posts by direct recruitment
made up to December 31, 1959 should be regularised provided the candidates
satisfied the conditions as to age and qualifications at the time of their
initial appointment. The controversy arises ,on the construction of sub-clause
(ii). That sub-clause provides that the services of such candidates shall be
regularised with effect from the date of their appointment from which their
services are continuous provided they were in service on January 1, 1960 and
-continue to be in service at the time their services are regularised. It is
clear from the express words used in this sub-clause that 133 continuity of
service from January 1, 1960 until the date of the order is a condition
prescribed for regularisation. In other words, a candidate claiming the benefit
of this order has to satisfy that he was initially appointed prior to December
31, 1959, that he was in service on January 1, 1960 and continued in that
service, till the date of the order, i.e., September 22, 1961. This
construction finds support from sub-clause (iii) which provides that local
service prior to regularisation would be counted for the purposes of leave,
pension and increments though not for seniority as seniority was to be fixed
from the length of service calculated from the date of regularisation. It is
manifest that unless the local service was continuous such service could not be
taken into account for the purposes, in particular of pension and increments.
How would increments, for example, be granted unless the service prior to such increments
was continuous ? The same consideration would also apply in the case of
pension. It had therefore to be provided as has been done in sub-clause (iv)
that a break in service would not be condoned for a period howsoever short.
Continuity of service is thus a condition for
both subclauses 2 and 3. The High Court was therefore in error when it said
that sub-clause (iv) did not relate to considerations under sub-clause (ii) or
that it had reference only to a break in service before December 31, 1959. The
High Court was also in error when it construed sub-clause (ii) to mean that the
only thing it required was, that the candidate had to be appointed initially
prior to December 31, 1959 and that he had to be in service on the two dates,.
viz., January 1, 1960 and September 22, 1961 and that the service during the
interval need not be continuous.
If that construction were to be upheld it
would result in injustice, for local candidates. not recruited regularly and
not in continuous service provided they were in service on the two relevant
dates, viz., January 1, 1960 and September 22, 1961, would get seniority over
candidates. regularly appointed after December 31, 1959 and whose service Is
continuous. Such a result would manifestly be both unjust and improper and
could hardly have been contemplated.
Therefore the proper interpretation would be
that in order that the regularisation order may apply to a particular case the
local, candidate must be initially appointed prior to December 31, 1959, he
must be in service on January 1, 1960 and continue to be in service without any
break till the date of the said order. If his service is regularised, his
service from the date of such regularisation would be counted for seniority as
against others who were recruited properly under the Rules of Recruitment.
Under subclause (iii) however if the service is continuous from January 1, 1960
to September 22, 1961, such service is to be taken into account for purposes of
leave, pension and increments but not for purposes of seniority. The
construction which we are inclined to adopt thus harmonises all the provisions
of the Order and besides.
134 results in fairness to all the local
candidates appointed by direct recruitment whether regularly or otherwise. For
the reasons aforesaid the construction placed by the High Court cannot be
sustained.
Though the construction which we are inclined
to adopt is in support of the stand taken by the State Government, in view of
the assurance given by counsel on behalf of the Government that this
construction should not affect the regularisation of the respondent's service
and its having been considered by the High Court as permanent, it is not
necessary to interfere with the order passed by the High Court. The appeal
consequently is dismissed. There will however be no order as to costs.
G.C. Appeal dismissed.
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