Case: A.P.M. Mayankutty, Etc  Vs. Secretary, Public Service Department

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 be 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 necessiated on account of the non-availability of regularly selected candidates conferring no claims 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 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. 8. Clause (iii) of Rule 10(a) makes this position clearer by providing that a person appointed under cl. (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, entitled 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 cl. (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 precarious tenure. Such tenures hardly ever count for seniority in any system of service jurisprudence. 9. It is now only necessary to consider the appellants argument that has 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 Government of Kerala and Madras, but neither that correspondence nor a certain order dated June, 11, 1960, which is at Ext. P. 17, in the record, can avail the appellant. In a way of saying, the proof of the 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 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. 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 of fortuitous arrangements. 10. The decision in C. P. Damodaran Nayar v. State of Kerala, (1974) 2 S.C.R. 867, on which the appellants counsel has placed reliance for showing that temporary service of the kind rendered initially by the appellants can 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 that 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 regularising 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. Having given every consideration to these matters we think it impossible to accept the appealIn 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 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 seniority8. Clause (iii) of Rule 10(a) makes this position clearer by providing that a person appointed under cl. (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, entitled 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 cl. (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 precarious tenure. Such tenures hardly ever count for seniority in any system of service jurisprudenceIn a way of saying, the proof of the 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 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. 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 of fortuitous arrangements. 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 regularising 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.