P.C. Patel & Ors Vs. Smt. T.H.
Pathak & Ors [1976] INSC 231 (22 September 1976)
SHINGAL, P.N.
SHINGAL, P.N.
RAY, A.N. (CJ) BEG, M. HAMEEDULLAH
CITATION: 1977 AIR 101 1977 SCR (1) 677 1977
SCC (1) 42
ACT:
Civil service--Seniority--Irregular
recruitment Regularisation--Appointments through Public Service Commission--Recruitment
through centralised recruitment scheme.
HEADNOTE:
The respondents Nos. 1 to 10 who were Writ
Petitioners in the High Court, were appointed as clerks between June, 1963 to
January, 1967 on temporary basis and were promoted to higher posts thereafter.
They contended that at the relevant time there was, no rule or order requiring
that appointments to their posts shall be made through Public Service
Commission. The Gujarat Government issued Gujarat Non-Secretariat Clerks, Clerk
Typists and 'Typists (Direct Recruitment Procedure) Rules, 1970. Thereafter, by
resolution dated 15-4-1971, it was stated that seniority of the candidates who
were to be selected for the posts of Clerks, Clerk typists and typists shall be
determined as if their allotment or appointment was from 17-4-1970 irrespective
of the question whether they were in service or not, and that their names shall
be arranged in a common seniority list in order of merit in accordance with the
principles laid down in the Rules.
The Writ petitioners filed a Writ Petition in
the Gujarat High Court feeling aggrieved by the said 1970 Rules and the 1971
resolution.
The Writ Petitioners contended that the
Government should be directed to treat their entire service as regular and that
their seniority should be fixed on the basis of the dates on which they had
joined their respective posts.
The State Government in its counter affidavit
pointed out that the Writ Petitioners were not recruited through proper
channel; that even though the centralised recruitment scheme was in existence
and was applicable with effect from January, 1963, the Writ Petitioners did not
come through the employment exchanges that their appointments were by way of a
stop-gap arrangement. The State, however, admitted in its affidavit that the
Writ Petitioners were not under the purview of the Gujarat Public Service
Commission at the time of their appointment. The State contended that the Writ
Petitioners were irregularly appointed and that 1970 Rules were framed on
humanitarian considerations to regularise their appointments and that, their
seniority could not be counted from the dates of their appointment and could be
counted only from 17th April, 1970.
The High Court came to the conclusion that
the Centralised Recruitment Scheme was not applicable when the Writ Petitioners
were appointed and that the posts were also not within the purview of the
Gujarat Public Service Commission until March, 1969. The High Court therefore,
held that the appointments of the petitioners were regular and were not
required to be regularised under the 1970 Rules. It also held that the State
Government had no power to issue the circular under rule 30 of the Rules for
allotment and fixation of a seniority and that the instructions contained in
the resolution of 1971 were not applicable to the Writ Petitioners. The High
Court allowed the Writ Petition, struck down the seniority list, and directed
the State Government and the Director of Civil Supplies to treat the services
of the petitioners as regular from the dates when they were appointed initially
and not to apply the instructions contained in the resolution of 1971 to
compute their seniority.
The appellants, who claimed to have been
appointed regularly from the beginning and who contend that the appointments of
the writ petitioners were irregular filed appeal by Special Leave. The
appellants contended:
1. That the initial appointment of the Writ
Petitioners was irregular, being in violation of the centralised recruitment
scheme, since the office 678 of the Director of Civil Supplies became a part
and parcel of the Directorate of Civil Supplies, and that the centralised
recruitment scheme was applicable to the recruitment of the Writ Petitioners.
2. The appointment to the posts held by the
Writ Petitioners were required to be made through Public Service Commission,
but as they were not made through P.S.C. the appointments were irregular.
Dismissing the appeal with a modification,
HELD: 1. The High Court has rightly negatived
both the contentions of the appellants. The State in its affidavit had admitted
that the posts, the Writ Petitioners were not within under the purview of the
Public Service Commission at the time of their appointment. The High Court has
also rightly held' that by describing the cadre in question as a "State
Cadre", it could not be said that the modified scheme was made applicable
to the Directorate. It is clear from the scheme that it governed the
recruitment to the regional offices and not to the offices of the Directorate.
[680 C--E, F-G]
2. Rule 29 of the 1970 Rules can apply only
if the initial appointment was irregular, i.e., if the Public Service
Commission was not consulted when the consultation was required and if the
recruitment had not taken place through the Centralised Recruitment Scheme when
it was necessary to do so. In the' present case Rule 29 cannot apply because
the appointments of the Writ Petitioners were regular. [681 G--H]
3. The view taken by the High Court is quite
justified and does not call for interference. [681 F]
4. The High Court, however, was not justified
in directing that the seniority should be counted from the respective dates of
the appointment of the Writ Petitioners. 'the High Court ought to have left the
matter to the State Government to re-examine the question of fixing the
seniority to give effect to their intention of ameliorating the lot of the writ
petitioners. [682 A--B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1022 of 1975.
Appeal by Special Leave from the Judgment and
Order dated' 27-2-75 of the Gujarat High Court in Spl. Civil Appln. No. 767/74.
S.K. Dholakia and R.C. Bhatia, for the
Appellants.
Hardayal Hardy, K.R. Nagaraja, S.K. Mehta and
P.N. Puri, for Respondents 2, 4, 5, 7-10.
R.N. Sachthey, for Respondent No. 11.
The Judgment of the Court was delivered by
SHINGHAL, J.---This appeal by special leave is directed against a, judgment of
the Gujarat High Court dated February 28, 1975, in a writ petition filed by
Smt. T.H. Pathak and nine others, who are now arrayed as respondent Nos. 1 to
10 and will hereafter be referred to as the writ petitioners.
They were appointed as clerks or accounts'
clerks from June 19, 1963 to January 12, 1967, on a temporary basis. in the
office of the Director of Civil Supplies (Accounts), Gujarat, and were promoted
to higher posts thereafter. They claimed that there was no rule or order until
March 1, 1969, requiring that appointments on their posts shall be made through
the Gujarat Public Service Commission, so that their appointments were outside
the purview of the Commission and were regular. The State Government however
made 679 the Gujarat Non-Secretariat Clerks, Clerk-typists and Typists (Direct
Recruitment Procedure) Rules, 1970, hereinafter referred to as the Rules, on
April 17, 1970, and issued instructions for their enforcement, including
instructions for determination of their seniority. That was followed by a
resolution dated April 15, 1971, in which it was stated that the seniority of
the candidates who were to be selected for the posts of clerks, clerk-typists
and typists under clause (i) (a) of rule 29, shall be determined from April 17,
1970, as if their allotment and/or appointment was from that date irrespective
of the question whether they were in service or not, and that their names shall
be arranged in a common seniority list in order of merit, in accordance with
the principles laid down in the Rules. The writ petitioners felt aggrieved against
the provisions of the Rules and the Government instructions, as well as the
seniority list which was published there under on April 18, 1974. They prayed
for a direction requiring the authorities concerned to treat their service as
regular, for quashing the aforesaid resolution dated April 15, 1971, and for a
direction that their seniority may be fixed on the basis of the dates on which
they had joined their respective posts.
The respondents to the writ petition
traversed the contentions of the writ petitioners in their replies. The State
Government stated in its reply that the writ petitioners were not recruited
through proper channel even though the Centralised Recruitment Scheme was in
existence and was applicable to their office with effect from January 21, 1963,
that they did not come through the employment exchanges, that their
appointments were by way of a stop-gap arrangement pending recruitment through
Centralised Recruitment Scheme or the Public Service Commission, and that as
they were "irregularly appointed" their services could be terminated
at any time. It was pleaded that it was for that reason that the Government
made a provision in rule 29 of the Rules, on humanitarian considerations, to
regularise the appointments in accordance with the provisions of the Rules. It
was accordingly contended that the writ petitioners could not claim seniority
from the dates of their irregular appointments and their service. for purposes
of seniority, could only be counted from April 17, 1970.
The High Court took the view that the
Centralised Recruitment Scheme was not applicable when the writ petitioners
were appointed in the Directorate of Civil Supplies (Accounts) or in the office
of the Deputy Director of Civil Supplies (Accounts), and that their posts were
also not within the purview of the Gujarat Public Service Commission until
March 1, 1969. The High Court therefore held that the appointments of the writ
petitioners were regular and were not required to be regularised under rule 29
of the Rules.
It held that the State 'Government had no
power to issue the circular under rule 30 of the Rules for
"allotment" and fixation of seniority of the writ petitioners, and
the instructions contained in the resolution dated April 15, 1971 were not
applicable to them. It accordingly allowed the writ petition, struck down the
seniority list dated April 18, 1974, directed the State Government and the
Director of Civil Supplies (Accounts) to treat the service of the writ
petitioners as regular from the dates when they were 680 appointed initially,
not to apply the instructions contained in the resolution dated April 15, 1971
to them, to compute their seniority from the dates of their respective initial
appointments and to fix their seniority afresh on that basis. The appellants,
who claim to have been appointed regularly from the very beginning, and
challenge the appointments of the writ petitioners as irregular, feel aggrieved,
and this is how the present appeal has come up for consideration before us.
It has been argued by counsel for the
appellants that the initial appointments of the writ petitioners were irregular
and the High Court erred in taking the view that rule 29 of the Rules was not
applicable to them. This argument has been advanced on the grounds that the
office of the Director of Civil Supplies (Accounts) became a part and parcel of
the Directorate of Civil Supplies and appointments to the posts to which the
writ petitioners were initially appointed were therefore required to be made
through the Public Service Commission, and that the Centralised Recruitment
Scheme was made applicable to those appointments in pursuance, at any rate, of
the resolution dated July 9, 1964. We find that both these contentions have
been examined by the High Court and it has given satisfactory reasons for
taking the view that this was not so. It will be enough to say that the Directorate
of Civil Supplies (Accounts) was not included in appendix B to the Scheme which
formed part of the resolution dated November 21, 1960 by which certain posts
were brought within the purview of the Public Service Commission. It has in
fact been admitted in the affidavit of K.K. Joshipura, Under Secretary to the
State Government, dated September 4, 1974, that it was "true the office of
the D.C.S.(A) was not under the purview of the Gujarat Public Service
Commission at the time of the appointment of the petitioners." There is
therefore nothing wrong with the view which has prevailed with the High Court
that the Directorate did not come under the purview of the Public Service
Commission until March 1, 1969.
As regards the Centralised Recruitment Scheme
and the resolution of January 21, 1963, the High Court has again rightly held
that the resolution applied to recruitment of clerks in district and regional
offices and as the Directorate of Civil Supplies (Accounts) was not such an
office, the Scheme did not apply to it. We have gone through the other
resolution dated July 9, 1964, which modified the Scheme, but here again the
High Court has rightly taken the view that merely because of use of the
expression "state cadre", it could not be said that the modified
scheme was made applicable to the Directorate. We have gone through the whole
of the Scheme and we have no doubt that it governed recruitment to district and
regional offices, and there is no justification for the argument that it become
applicable for recruitment of clerks in the Directorate of Civil Supplies
(Accounts) as well.
As it is, nothing has been shown to justify
the view taken by the State Government that the initial appointments of the
writ petitioners were irregular and had to be regularised in accordance with
the provisions of rule 29 of the Rules. The rule provides as follows,-"29.
Notwithstanding anything contained in these rules the following eases shall be
regularised in the manner shown 681 below in relaxation of their upper age,
provisions of Recruitment Rules concerned and/or rules for pre-service training
made by Government in this behalf to the extent indicated below :-(1) (a)
Persons initially recruited otherwise than through the Gujarat Public Service
Commission, or Centralized Recruitment Scheme, as clerks, clerk-typists or
typistsin the offices to which the Rules apply, and who have rendered not less
than 2 years' continuous service, as clerk or clerk-typist or typist, as the
case may be, as on 31st December, 1968 in one or more offices and who are
continuing in Government service as clerks, clerk-typists or typists, as the
case may be, on the date of this notification or such persons whose names are
kept on the Waiting List for provisional appointment for the reason that they
had to be discharged for want of posts even though they had rendered 2 years'
continuous service as on 31st December, 1968 shall be required to appear at the
special interview and/or the special typing test to be held for them for their
selection for appointment to the post of clerk, clerk-typist or typist, as the
case may be." Then follow the other sub-rules with which we are not concerned.
The writ petitioners were initially recruited otherwise than through the
Gujarat Public Service Commission and the Centralised Recruitment Scheme and
they had rendered not less than two years' continuous service as clerk,
clerk-typists or typists by December 31, 1968, but,' as would appear from the
history of their service, it could not be said that they were continuing in
Government service as clerks, clerk-typists or typists on April 17, 1970, which
was the date of the notification of the Rules. The State Government therefore
again erred in thinking that their service was governed by rule 29(1) (a). So
when the appointments of the writ petitioners were not irregular, and they were
not continuing in Government service as clerks, clerk-typists or typists on
April 17. 1970, rule 30 of the Rules was also not applicable to them and it was
not permissible for the authorities concerned to determine their allotment and
seniority under that rule. The view taken by the High Court is therefore quite
justified and does not call for interference.
The write petitioners had put in several
years of service, and had received promotions from time to time. Their
appointments were however temporary all through. It. appears that the State
Government thought of ameliorating their lot for that reason and attempted to
do so by making the aforesaid rule 29 of the Rules. But, as has been shown, in
doing so the State Government laboured under the impression that the initial
appointments of the writ petitioners were irregular, and had to be regularised.
As this was not a correct premise, and as rule 29 is not really applicable to
the writ petitioners for the reasons mentioned above, it would perhaps be
advisable for the SL ate Government to reexamine the whole matter and to take
appropriate action to give effect to their intention of ameliorating the lot of
the writ petitioners. That is however not a matter for this Court to decide.
The 689 High Court was therefore not justified in directing that the seniority
of the writ petitioners should be computed on the basis that "their
services with effect from the respective dates of their joining service as
Clerks in the Directorate of Civil Supplies (Accounts) were regular and in
accordance with law." As it would have been enough for the High Court to
say that the State Government may reexamine the question of fixing the
seniority of the writ petitioners and to take appropriate action to ameliorate
their lot as temporary employees, the operative part of the impugned judgment
of the High Court is modified to this extent. The appeal otherwise fails and is
dismissed. In the circumstances of the case, we leave the parties to pay and
bear their own costs.
P.H.P. Appeal dismissed.
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