Case: State of Orissa Etc Vs. Arun Kumar Patnaik and Another Etc

an appointment. The terms of the initial appointment are relevant in this behalf because though the appointment was on a contract basis, it was also expressly described as temporary. In common parlance it may be incongruous to describe a contractual appointment as temporary, because the appointment is intended in the normal circumstances to last during the currency of the contract. But Service regulations have their own semantics and not unoften, not only are service rules technical but they have their own technical vocabulary. Krishna Moorthys initial appointment must be construed on its own terms and therefore the adjective temporary cannot be dismissed as a mere adjunct. He was unquestionably and in terms appointed as an Assistant Engineer on a "temporary" basis and the fact that he held his post on a contract did not make his tenure other than temporary. The subsequent course of his career, within the contractual period itself, show s that he was granted all the facilities and privileges which are available to employees in the regular cadre, temporary or permanent, and which are generally not available to contractual employees. He drew the same pay as any other employee in the regular cadre of Assistant Engineers and he was fitted into the same scale of pay. He drew no special benefits by reason of being on a contractual basis. And when during the currency of the contract he wanted to apply for a post under the Union of India, his application was not forwarded by the State Government for the reason that there was a "shortage of technical personnel in the State". His appointment was thus made truly on a temporary basis and the question for consideration resolves itself into this: Can an appointment made on a temporary basis after compliance with the relevant rules be regularized retrospectively ?If Krishna Moorthy had not been recommended by the Public Service Commission, different considerations might have arisen. But he was recommended by the Commission, the recommendation was accepted by the Governor and the State Government appointed him as an Assistant Engineer on a temporary basis in pursuance of the Commissions recommendation and the Governors selection. This is where Rule 19 plays an important part. Under clause (a) of that rule, persons appointed by direct recruitment are required to be on probation for 2 years. Under clause (b) of Rule 19, not withstanding anything in clause (a), "when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole of the period of his temporary service or a portion thereof, as the case may be shall if approved by the Government for this purpose, count towards the prescribed period of probation". Krishna Moorthy was selected by the State Government for a permanent appointment as an Assistant Engineer and before implementing that decision, the State Government had obtained the concurrence of the Public Service Commission. On such concurrence being obtained, the State Government issued the impugned notification dated March 14, 1962 appointing him as an Assistant Engineer, though temporarily and until further orders, with effect from January 19, 1959. The Government had the power under rule 19(b) to count any part of Krishna Moorthys temporary service towards the prescribed period of probation and what it did was to count his temporary service from January 19, 1959 till March 14, 1962 towards the probationary period. He had by then put in more than three years service whereas rule 19 stipulates a normal probationary period of 2 years only.6. In view of these facts and considerations, it is impossible to accept the submission made on behalf of Patnaik and Mishra that Krishna Moorthys appointment under the notification of March 14, 1962 is in any sense invalid. Consequently, his subsequent promotions and the seniority accorded to him must also be upheld. The decision in Narayan Chandra Parida v. State of Orissa and Ors., (1) on which reliance is placed to deprive Krishna Moorthy of his seniority has no application, as in that case the petitioner was ranked as a junior to a person who was not at all in Government service when the petitioner was appointed. In the instant case, Krishna Moorthy was appointed as an Assistant Engineer on a temporary basis on January 19, 1959 whereas Patnaik and Mishra were appointed on April 14, 1960 to act as Assistant Engineers on a provisional basis. All along their respective service careers, extending over 13 years, Krishna Moorthy was recognized as senior to the other two. It is unnecessary to deal at length with the States contention that the writ petitions were filed in the High Court after a long delay and that the writ petitioners are guilty of laches. We have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress. Krishna Moorthys appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors. On November 15, 1968 they were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthys confirmation as of February 27, 1961 and that of the other two as of May 2, 1962. And yet till May 29, 1973 when the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973. The High Court made light of this long and inexplicable delay with a casual remark that the contention was "without an y force". It overlooked that in June, 1974 it was setting aside an appointment dated March 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer. Those 12 long years were as if writ in water. We cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.7.

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

Explanation:
1[ds]In view of these facts and considerations, it is impossible to accept the submission made on behalf of Patnaik and Mishra that Krishna Moorthys appointment under the notification of March 14, 1962 is in any sense invalid. Consequently, his subsequent promotions and the seniority accorded to him must also be upheld. The decision in Narayan Chandra Parida v. State of Orissa and Ors., (1) on which reliance is placed to deprive Krishna Moorthy of his seniority has no application, as in that case the petitioner was ranked as a junior to a person who was not at all in Government service when the petitioner was appointed. In the instant case, Krishna Moorthy was appointed as an Assistant Engineer on a temporary basis on January 19, 1959 whereas Patnaik and Mishra were appointed on April 14, 1960 to act as Assistant Engineers on a provisional basis. All along their respective service careers, extending over 13 years, Krishna Moorthy was recognized as senior to the other two. It is unnecessary to deal at length with the States contention that the writ petitions were filed in the High Court after a long delay and that the writ petitioners are guilty of laches. We have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress. Krishna Moorthys appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors. On November 15, 1968 they were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthys confirmation as of February 27, 1961 and that of the other two as of May 2, 1962. And yet till May 29, 1973 when the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973. The High Court made light of this long and inexplicable delay with a casual remark that the contention was "without an y force". It overlooked that in June, 1974 it was setting aside an appointment dated March 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer. Those 12 long years were as if writ in water. We cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.