A.P.M. Mayakutty Vs. Secretary, Public
Service Department [1977] INSC 45 (8 February 1977)
ACT:
Interstate seniority in equated posts
consequent to the reorganisation of States--Whether services rendered under
Rule 10(a) (i) (1) of the Madras State and Subordinate Services Rules would
count for the purpose of fixing the interstate seniority--Kerala Government
order dated 10-5-63 based on the recommendation of the Central Government dated
16-2-1963---Validity of.
HEADNOTE:
The three appellants, who were appointed as
temporary junior engineers in the Madras High Way Subordinate Service under
rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules on
13-6-1950, 6-6-1951 and 8-6-1951 respectively, on being selected by the Public
Service Commission and again appointed to the same posts were permitted by an
order issued under rule 23(a) ibid to commence their probationary period with
effect from 15-3-1953, 4th July, 1954 and 18th July 1954 respectively. On 1-11-1956, on the re-organisation of States, they were allotted as junior engineers in the
Kerala State which was formed by inclusion therein of parts of the Slates of
Madras and TravancoreCochin. For the propose of fixing the interstate seniority,
several orders were passed, from time to time, both by the Central Government
and the Government of Kerala. A provisional integrated gradation list of junior
engineers was prepared by the State Government in October 1962 giving the
appellants ranks therein at serial Nos. 123, 132 and 145 respectively. On a
representation by the employees of the Travancore-Cochin area, the Government
of India recommended three alternatives for the acceptance of the Kerala Government
on 16-2-1963. They were: (1) The Officers allocated to Kerala from the former
Madras State may be allowed the benefit of emergency service towards seniority
in the equated category if such service would have been regularised from the
date of their emergency appointment and if it would have been counted for
interstate seniority on November 1, 1956 had these officers remained in Madras.
(2) The principles. laid down by the Government of Madras in their order dated
July 17, 1957 be accepted and (3) The Government of India would have no
objection even if the State Government was to adopt the rule that interstate
seniority would be determined on the basis of the length of continuous service
in the equated grade subject to the exclusion of service rendered in purely
stop-gap or emergency arrangements and that only short periods for which
appointment was held under such arrangements should be excluded. The Government
of Kerala passed an order on May 10, 1963 adopting the first two alternatives
but not the third. The writ petition filed by the appellants in the Kerala High
Court challenging he said orders dated 10-5-1963 was rejected.
In appeal by special leave, the appellants
contended:
(1) The emergency service rendered under Rule
10(a)(i)(1) of the Rules ought to be taken into account because such service
can be taken into account under Rule 23(a) ibid (ii) Such service is not liable
to be excluded by reason of the directives issued earlier by the Government of
.India on 3rd April 1957 and 1st March 1962, (iii) If the appellants had
remained in Madras, the temporary service rendered by them would have been
taken in to account for fixing their seniority and (iv) Such service should
count in view of the grant of increments to them from the date of their initial
appointments in view of the temporary service rendered by them having been
counted for the purpose of eligibility for promotion to the higher post of
Assistant Engineers, they being duly qualified to hold the posts of Junior
Engineers, they having been permitted to appear for departmental tests which
are open only to the probationers, their service books having been opened from
the. date of their appointment and the concurrence of the Public Service
Commission having been obtained for continuing them in service after the expiry
of three months and again after the -expiry of one year of their emergency
service.
938 Dismissing the. appeals, the Court,
HELD: (1) A fact of fundamental importance
which permeates every one of these cOnsiderations is that the appellants were
appointed under rule 10(a) (i)(1) of the Madras State and Subordinate Services
Rules. In face of the provisions of these rules and the express terms of their
appointment, to the effect, "that appointments were under rule 10(a) (i)
(1) purely temporary necessitated on account of the non-availability of
regularly selected candidates, conferring no claim for future appointment as
junior engineers and they were liable to be terminated at any time without
previous notice", it is clear. that the appointments were purely as a
matter of stop-gap or emergency arrangement and such service cannot be taken
into account for the purpose of seniority from the date of their initial
appointment. [941 E, H, 942 A] (2) Clauses (iii) and (iv) of rule 10(a) reflect
significantly on the nature of the appointment held by the appellants and show
that the appellants were appointed initially on a uniquely precarious tenure.
Such tenures hardly even count for seniority in any system of service jurisprudence.
[942-C-D] (3) The fact that the appellants were qualified to hold the posts
cannot, in view of clause (iii) of rule 10(a) entitle them to count for the
purpose of seniority the period during which they served in a stop-gap or an
emergency arrangement. [942 B] (4) The contention that if the appellants had
remained in Madras their entire service would have counted for the purpose of
seniority is without any merit and one of speculation as to what course the
appellants' destiny would have taken had they remained in Madras. The
Government of Madras itself did not treat the entire service of the appellants
as regular when they were selected by the Public Service Commission. That
parent government undoubtedly assigned to them artificial dates for fixing the
commencement of their probationary periods but such dates, though anterior to
the dates of their actual selection by the Public Service Commission, were
quite subsequent to the dates of their initial appointment. The services
rendered by them under rule 10(a) (i)(1) were treated by the Government which
appointed them as a matter of stop-gap, emergency or fortuitous arrangement.
[942 D-G] (5) The concurrence of the Public Service Commission to the
continuance of the appellants in the post filled by them, first after the
expiry of three months and then after the expiry of one year was obtained not
with a view to regularising the appointments but for the purpose of meeting the
requirements of a provision under which such concurrence is necessary to.
obtain if an appointment made without selection by the Public Service
Commission is required for any reason to be continued beyond three months or a
year.
[943 E-F] (6) In the instant case, the
initial appointment was not only made without any reference to the Public
Service Commission but the various rules and the terms of the appointment shove
that the appellants were appointed purely as a matter of fortuitous or stop-gap
arrangement. Their initial temporary services cannot therefore be counted for
the purpose of seniority. [943 B-C] C.P. Damodaran Nayar v. State of Kerala
[1974] 2, SCR 867, distinguished and held not applicable.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 841 of 1974.
Appeal by Special Leave from the Judgment and
Order dated 30-3-1970 of the Kerala High Court in Writ Appeal No. 39/70 and
Civil Appeal No. 1575 of 1970.
Appeal by Special Leave from the Judgment and
Order dated 22-12-1969 of the Kerala High Court in O.P. No. 211/65, 939 V.
Sivarama Nair and ,4. S. Nambiar for the Appellants in both :the Appeals.
M.C. Bhandare and K.M.K. Nair for Respondent
No. 1 in CA 841 and R. 2 in CA 1575/70.
(Mrs.) Shyamla Pappu and Girish Chandra for
Respondent No. 1 in CA No. 1575/70.
K.S. Ramanurthi, N. Sudhakaran and P.K.
Pillai for Respondent No. 45 in CA 1575/70.
The Judgment of the Court was delivered by
CHANDRACHUD, J.--Since these two appeals involve identical questions, we
propose to state the facts of one of these only. The decision in Civil Appeal
No. 1575 of 1970 will govern the other appeal.
The three appellants were .appointed as
temporary Junior Engineers in the Madras High Way Subordinate Service under
rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules. Appellants
1 and 2 were appointed on June 6 and June 8, 1951 respectively while the third
appellant was appointed on June 30, 1950. A few years later they were appointed
to the very same posts after selection by the Public Service Commission and in
course of time, orders were issued under rule 23(a) of the aforesaid rules
permitting them to commence their probation from dates anterior to the dates of
their appointments after selection by the Public Service Commission but
subsequent to the dates of their initial 'appointments under rule 10(a)(i)(1).
The first appellant was permitted to commence his probationary period on July
4, 1954, the second on July 18, 1954 and the third on March 15, 1953.
On November 1, 1956, on the reorganisation of
States, appellants were allotted as Junior Engineers to. the Kerala State.
which was formed by inclusion therein of parts of the States of Madras and
Travancore-Cochin. As in other States, so in Kerala, it became necessary to fix
rules of seniority governing employees drawn from different States, parts of
which were integrated in Kerala. A conference of Chief Secretaries of various
States was held on May 18 and 19, 1956, to consider problems arising out of
reorganisation of States and the consequent integration of services.
Pursuant to the decision taken in that
Conference, the Government of Kerala passed an order on December 29, 1956
providing that the relative seniority as between persons drawn from different
States and holding posts declared to be equivalent shall be determined by
considering the length of continuous service in the equated grade, whether such
service is temporary or officiating, quasi permanent or permanent. The order,
however, expressly provided that in the aforesaid determination, the period for
which an appointment was held "in a purely stop-gap or emergency arrangement"
was to be excluded. On April 3, 1957 the. Government of India issued a
directive under section 117 of the States ReorganisatiOn Act stating that it
was agreed that in determining the relative seniority as between two persons
holding posts declared as equivalent to each other and drawn 'from different
States the length 12--206sC1/77 940 of continuous service, whether temporary or
permanent, in the particular grade should be taken into account, excluding
"periods for which an appointment is held in a purely stop-gap or
fortuitous arrangement." On April 2, 1958 the Government of Kerala issued
a clarificatory order stating that for computing length of continuous service
"only short periods for which an appointment was held in purely stop gap
or emergency appointment will be excluded." It issued another order on August
16, 1961 stating that one year of temporary service of Junior Engineers
allotted from Madras would be excluded for the purposes of fixing their interstate
seniority. Representations were made against this order to the Government Of
India which directed by an order dated March 1, 1962 that services rendered
under provisional or emergency appointments by the Travancore-Cochin or Madras
personnel prior to November 1, 1956 before regularisation of their appointments
should be taken into account for the purposes of deciding interstate seniority,
only if such service is either regularised, or it is in a timescale of pay and
is reckoned for grant of increments in the time-scale and is continuous. On May
16, 1962 the Government of Kerala passed an order modifying its earlier orders
so as to conform to the decision taken by the Government of India on March 1,
Consequently, in October 1962 a provisional integrated gradation list of Junior
Engineers was prepared by the State Government giving to the appellants ranks
therein at serial nos. 145, 137 and 123 respectively.
Employees drawn from the Travancore-Cochin
area being evidently prejudiced by the decision of the Kerala Government made
representations to the Government of India which, on February 16, 1963
recommended three alternatives for the acceptance of Kerala Government. The
first alternative thus recommended was that the officers allocated to Kerala
from the former Madras State may be allowed the benefit of emergency service
towards seniority in the equated category if such service would have been
regularised from the date of their emergency appointment and if it would have
been counted for interstate seniority on November 1, 1956, had these officers
remained in Madras. The second alternative was that the principles laid down by
the Government of Madras in their order dated July 17, 1957 be accepted. By the
third alternative it was stated that the Government of India would have no
objection even if the State Government was to adopt the rule that interstate
seniority would be determined on the basis of the length of continuous service
in the equated grade subject to the exclusion of service rendered in purely
stop-gap or emergency arrangements and that only short periods for which
appointment was held under such arrangements should be excluded. On May 10,
1963 the Government of Kerala passed an order adopting the first two
alternatives but not the third.
The appellants thereafter field a writ
petition in the Kerala High Court which was disposed of in December 1964 by
directing them to file representations to the Government of India on the basis
of a certain decision rendered by the High Court earlier. The appellants
accordingly made representations and on. those being rejected, they filed a writ
petition in the High Court in August 1965. That writ petition having been
dismissed, they have filed this appeal by special leave.
941 The question which arises for decision is
whether the services rendered by the appellants under rule 10(a) (i) (1) of the
Madras State and Subordinate Services Rules must be taken into account for the
purpose of fixing. their seniority in the service of the Kerala Government as
from November 1, 1956. It is urged on behalf of the appellants that the
aforesaid service ought to be taken into account because such service can be
taken into account under rule 23, secondly because such service is not liable
to be excluded by reason of the directives issued earlier by the Government of
India and thirdly because if the appellants had remained in Madras, the
temporary service rendered by them would have been taken into account for
fixing their seniority.
Counsel for the appellants says that they
were granted increments from the date of theft initial appointments, that the
temporary service rendered by them was counted for them.
purpose of eligibility for promotion to the
higher post of Assistant Engineers, that they were duly qualified to hold the
post of Junior Engineers, that they were entitled and permitted to appear for
departmental tests which are open only to the probationers, that their service
books were opened from the data of their initial appointments, and that the
concurrence of the Public Service Commission was obtained for continuing them
in service after the expiry of three months and then again after the expiry of
one year.
These facts and circumstances, according to
the appellants, would justify the counting of temporary service rendered by
them for the purpose of fixing their seniority.
Having given every consideration to these
matters we think it impossible to accept the appeal. A fact of fundamental
importance which permeates every one of these considerations is that the
appellants were appointed under rule 10(a)(i)(1) of the Madras State and
Subordinate Services Rules which runs thus:
"10. Temporary appointments.--(a)(i)(1)
Where it is necessary in the public interest owing to. an emergency which has
arisen to fill immediately a vacancy in a post borne on the cadre of a service,
class or category and there would be undue delay in making such appointment in
accordance with these rules and the Special Rules, the appointing authority may
temporarily appoint a person, otherwise than in accordance with the said
rules." This provision contemplates the making of temporary appointments
when it is necessary in the public interest to do so owing to an emergency
which has arisen for filling a vacancy immediately. Such appointments, in
terms, are permitted to made otherwise than in accordance with the rules. The
letters of appointment issued to the appellants mention expressly that they
were appointed under rule 10(a) (i)(1), that the appointments were "purely
temporary necessitated on account of the non-availability of regularly selected
candidates conferring no claim for future appointment as Junior Engineers ....
and that the appointment is liable to be terminated at any time without
previous notice." In face of the provisions of the rule and the terms of
the appointment it seems to us clear that the appellants Were appointed purely
as a matter of stop-gap or emergency arrangement.
Since 942 such service cannot be taken into
account for purposes of seniority, the appellants cannot contend that the
entire service rendered by them from the date of their initial appointment must
count for purposes of seniority.
Clause (iii) of rule 10(a) makes ‘this
position clearer by providing that a person appointed under clause (i) shall,
whether or' not he possesses the qualifications prescribed for the service, be
replaced as soon as possible by a member of the service or an approved
candidate qualified to hold the post under the relevant rules. The fact that
the appellants were qualified to. hold the posts cannot, therefore, entitle
them to count for the purposes of seniority the period during which they served
in a stop-gap or emergency arrangement. Clause (v) of rule 10(a) provides that
a person appointed under clause (i) shall not be regarded as a probationer,
that he is not entitled by reason only of such appointment to any preferential
claim to future appointment to the service .and that the services shall be
liable to be terminated at any time without notice and without assigning any
reason. These provisions reflect significantly on the nature of the appointment
held by the appellants and show that the appellants were appointed initially on
a uniquely precarious tenure. Such tenures hardly ever count for seniority in
any system of service jurisprudence.
It is now only necessary to consider the
appellant's argument that had they remained in Madras, their entire service
would have counted for purposes of seniority. In support of this argument
reliance was placed on the correspondence between the Governments of Kerala and
Madras, but neither that correspondence nor a certain order dated June 11,
1960, which is at Ex. P-17 in the record, can avail the appellants. In a way of
saying, the proof of pudding is in the eating. It is needless to speculate as
to what course the appellants' destiny would have taken had they remained in
Madras, because the Government of Madras itself did not treat the entire
service of the appellants as regular when they were selected by the Public
Service Commission. That parent government undoubtedly assigned to. The
artificial dates for fixing the commencement of their probationary periods but
such dates, though anterior to the dates of their actual selection by the
Public Service Commission, were quite subsequent to the dates of their initial
appointment. As stated earlier, the appellants were appointed initially in June
1951 and June 1950, but the Government of Madras, prior to the reorganisation
of the States, had directed that their probationary periods should be deemed to
commence in July 1954 and March 1953. This shows that the services rendered by
the appellants under rule 10(a)(i)(1) were treated by the Government which
appointed them as a matter of stop-gap, 'emergency or fortuitous arrangement.
The decision in C.P. Damodaran Nayar v. State
of Kerala(1) on which the appellants' counsel has placed reliance for showing
that temporary service of the kind rendered initially by the appellants can (1)
[1974] 2 S.C.R. 867.
943 be counted for the purposes of seniority
has no application to the instant case. One of the appellants in that case was
selected as a District Munsif by the Madras Public Service Commission and was
posted as such on May 26, 1951. He was in continuous service in than post since
his appointment but on being allotted to the State of Kerala on November 1,
1956 his seniority was reckoned from October 6, 1951 on the footing that the
said date was assigned to him as the date of commencement of his continuous
service. Dealing with the appeal arising out of the dismissal of his writ petition,
this Court held that the service rendered by the appellant after his initial
appointment was neither emergency service nor was it a purely stop gap or
fortuitous arrangement. The distinguishing feature of that case, which is
highlighted in the judgment of the Court, is that the appellant therein was
"appointed in a regular manner through the Public Service Commission"
and therefore his appointment could not "by any stretch of
imagination" be described as having been made to fill a purely stop-gap or
fortuitous vacuum (p. 876). In our case the initial appointment was not only
made without any reference to the Public Service Commission but the various
rules and the terms of the appellants' appointment to which we have drawn
attention show that the appellants were appointed purely as a matter of
fortuitous or stop-gap arrangement. The concurrence of the Public Service
Commission to the continuance of the appellants in the posts filled by them,
first after the expiry of three months and then after the expiry of one year,
was obtained not with a view to regularizing the appointments since their
inception but for the purpose of meeting the requirements of a provision under
which such concurrence is necessary to obtain if an appointment made without
selection by the Public Service Commission is required for any reason to be
continued beyond three months or a year.
For these reasons we confirm the judgment of
the High Court and dismiss this appeal. There will be no order as to costs.
Civil Appeal No. 841 of 1974 will also stand
dismissed but without an order of costs.
S.R. Appeals dismissed.
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