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 76774
SK Dholakia and RC Bhatia for the Appellants
Hardayal Hardy KR Nagaraja SK Mehta and PN Puri for Respondents 2 4 5 7 10
RN 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
TH 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 Guja rat 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 Typ ists 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 andor 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 petition ers felt aggrieved against the provisions of the Rules and the Government instructions as well as the seniority list which was published thereunder on April 18 1974
They prayed for a direction requiring the authorities concerned to treat their service as regular for quashing the afore said 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 petition ers 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 ex changes that their appointments were by way of a stop gap arrangement pending recruitment through Centralised Re cruitment 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 petition ers could not claim seniority from the dates of their irreg ular appointments and their service
for purposes of senior ity could only be counted from April 17 1970
The High Court took the view that the Centralised Re cruitment Scheme was not applicable when the writ petition ers 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 Direc tor 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 ap pointments of the writ petitioners as irregular feel ag grieved 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 irreg ular 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 Recruit ment 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 exam ined 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 Dircctorate 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 KK Joshipura Under Secretary to the State Government dated September 4 1974 that it was true the office of the DCSA was not under the purview of the Gujarat Public Service Commission at the time of the ap pointment 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 Direc torate 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 regula rised 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 Re cruitment Rules concerned andor 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 Central ized Recruitment Scheme as clerks clerk typists or typist sin the offices to which the Rules apply and who have ren dered 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 provi sional appointment for the reason that they had to be dis charged 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 andor the special typing test to be held for them for their selection for appointment to the post of clerk clerk typist or typ ist as the case may be
 Then follow the other sub rules with which we are not con cerned
The writ petitioners were initially recruited otherwise than through the Gujarat Public Service Commis sion 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 291 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 permis sible 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 serv ice and had received promotions from time to time
Their appointments were however temporary all through
Itap pears 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 impres sion 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 SLate Government to re examine 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
PHP Appeal dismissed


Summary:
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 rele vant time there was no rule or order requiring that ap pointments 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 resolu tion 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 Guja rat 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 Centra lised 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 fixa tion 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 instruc tions 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 ap pointments 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 ap plicable to the recruitment of the Writ Petition ers
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 PSC 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 ie 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 direct ing 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