Case: State Of Mysore &amp; Anr Vs. S. V. Narayanappa

to the benefit of the regularisation order. So long as he was in service on the two termini his service would have to be regularised irrespective of whether his service during the interval was continuous or not. The High Court also equated regularisation with permanence of service and, therefore, held that once a local candidates service was regularised he had to be treated as a permanent servant.8. Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence.9. We are, however, not called upon in this appeal to decide and we do not decide that question as Mr. Desai on behalf of the State Government assured us that the Government had come in appeal only in its anxiety to have the order interpreted by this Court as the construction placed by the High Court on the said order, if upheld, would have considerable repercussions on the prospects of other State employees. He also assured us on behalf of the State Government that since the break in the service of the respondent during the material time was only of one day, viz., March 1, 196l, assuming there was such a break, the Government would not do anything to adversely affect his service and would not take away the benefit which he acquired as a result of the High Courts Judgment, even if we were to disagree with the interpretation placed by the High Court on the said Order.10. Coming now to the Order, sub-cl (i) of Cl. 2 provides that all appointment to Class III posts by direct recruitment made upto December 31, 1959 should be regularised provided the candidates satisfied the conditions as to age and qualifications at the time of their initial appointment. The controversy arises on the construction of sub-cl. (ii). That sub-clause provides that the services of such candidates shall be regularised with effect from the date of their appointment from which their services are continuous provided they were in service on January 1, 1960 and continue to be in service at the time of their services are regularised. It is clear from the express words used in this sub-clause that continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September 22, 1961. This construction finds support from sub-cl. (iii) which provides that local service prior to regularisation would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in sub-cl. (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both sub-cls. 2 and 3.The High Court was, therefore, in error when it said that sub-l. (iv) did not relate to considerations under Sub-cl (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed sub-cl. (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates, viz., January 1, l960 and September 22, 1961 and that the service during the interval need not be continuos. If that construction were to be upheld it would result in injustice, for local candidates, not recruited regularly and not in continuos service provided they were in service on the two relevant dates, viz., January 1, 1960 and September 22, l961 would get seniority over candidates regularly appointed after December 31, 1959 and whose service is continuos. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, l960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against other who were recruited properly under the Rules of Recruitment. Under sub-cl (iii), however, if the service is continuous from January 1, 1960 to September 22, 1961 such services is to be taken into account for purpose of leave, pension and increments but not for purpose of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise.

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

Explanation:
0[ds]8. Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence.9. We are, however, not called upon in this appeal to decide and we do not decide that question as Mr. Desai on behalf of the State Government assured us that the Government had come in appeal only in its anxiety to have the order interpreted by this Court as the construction placed by the High Court on the said order, if upheld, would have considerable repercussions on the prospects of other State employees. He also assured us on behalf of the State Government that since the break in the service of the respondent during the material time was only of one day, viz., March 1, 196l, assuming there was such a break, the Government would not do anything to adversely affect his service and would not take away the benefit which he acquired as a result of the High Courts Judgment, even if we were to disagree with the interpretation placed by the High Court on the said Order.10. Coming now to the Order, sub-cl (i) of Cl. 2 provides that all appointment to Class III posts by direct recruitment made upto December 31, 1959 should be regularised provided the candidates satisfied the conditions as to age and qualifications at the time of their initial appointment. The controversy arises on the construction of sub-cl. (ii). That sub-clause provides that the services of such candidates shall be regularised with effect from the date of their appointment from which their services are continuous provided they were in service on January 1, 1960 and continue to be in service at the time of their services are regularised. It is clear from the express words used in this sub-clause that continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September 22, 1961. This construction finds support from sub-cl. (iii) which provides that local service prior to regularisation would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in sub-cl. (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both sub-cls. 2 and 3.The High Court was, therefore, in error when it said that sub-l. (iv) did not relate to considerations under Sub-cl (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed sub-cl. (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates, viz., January 1, l960 and September 22, 1961 and that the service during the interval need not be continuos. If that construction were to be upheld it would result in injustice, for local candidates, not recruited regularly and not in continuos service provided they were in service on the two relevant dates, viz., January 1, 1960 and September 22, l961 would get seniority over candidates regularly appointed after December 31, 1959 and whose service is continuos. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, l960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against other who were recruited properly under the Rules of Recruitment. Under sub-cl (iii), however, if the service is continuous from January 1, 1960 to September 22, 1961 such services is to be taken into account for purpose of leave, pension and increments but not for purpose of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise.