A. P. M. MAYAKUTTY ETC. v.

SECRETARY, PUBLIC SERVICE DEPARTMENT, ETC.

February 8, 1977

[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.] B llllerstate senioritY, in equated posts consequent to the reorganfamion of .State.~Whether scrvtes rendered under Rule !O(a)(i)(l) of the Madras State .and Subo_rdnate Services Rules would count for the purpose of fixing the interstate se'!1or11y-Kerala Government order dated 10-5-63 based 011 the recommendatzon of the Central Government dated 16-2-1963-Va/idity of.

The three appellants, who were appointed as temporary junior engineers in .the Madras High Way Subordinate Service under mle !O(a)(i) (!) of the C 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 States of Madras and Travancore-Cochin. For the purpose of fixing the interstate seniority, several .orders were passed, from time tOI time, both by the Central Government and D 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 : (!) The Officers allocated to Kerala from the former Madras State may be allowed the benefit of emergency service towardi seniority in the equated category if such service would have been regularised from the date of their emergency appointment and if it would E have been counted for interstate seniority on November !, 1956 had these .officers remained in Madras. (2) The principles. laid down by the Governmenu -0f 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 on! y short periods for which appointment was held under such arrangements should be excluded.

The Government of Kerala passed an order on May 10, 1963 F 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.

Jn appeal by special leave, the appellants contended :

( 1) The emergency service rendered under Rnle !O(a) (i) (1) of the Rules .ongbt to be taken into account because snch service can be taken into account under Rnle 23 (a) ibid (ii) Such service is not liable to be excluded by reason G

~ ·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 sernce rendered by them would have been taken into account for fixing their seniority and (iv) Such, service should conn! 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 beinJ! 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 H service books having been opened from the date of their appointmfnt 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 ooe year of their emergency service.

A Dismissing the appeals, the Comt,

HEID : ( 1) A fact of fundamental importance which permeates every one of these considerations is that the appellants were appointed under rule !O(a) (i)(l) at the Madras State and Subordinate Services Rules.

In face of the proviiiOilll of these rules and the express terms of their appointment, to the effect, "that appointments were under rule !O(a)(i)(l) purely temporary neceiiitated on account of, the non-availability of regularly selected candidates, conferring no claim for future appointment as junior engmeers aad 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 serrice 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 IO(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 lO(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 Bl

(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 trellt the entire service of the appellants as regular when they were selected by the Public Service Commission. That parent government undoubtedly assigned to them attificial dates for fixing he commencement of eir probationary periods but such dates, though antenor 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 IO(a)

(i) ( 1) wer-c treated by the Government which appointed them as a matter of stop-gap, emergency or fortuitous arrangement. [942 D-G]

(5) Tho concurrence of the Public Service Commission. to the continuance of the appellants in the post filled by them, firs~ after the !lxp1ry ?f three monts and then after the expiry of one year was obtame~ not with a. view to regularising the appointments but for the purpose of meetmg the r<:qu!rements of. a provision under which such concurrence is necessary to obtam 1f an appomtmcn' made \Tithout selection by the Public Service Commission is required for any F reaon to be continued beyond three months or a year. [943 E-F]

(6) In !he 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 show that the appellants were appointed purely as a matter oJ' fortuitous or stop-gap arrangement. Their initial temporary services cannot therefore be counted for the purpose of seniority. [943 B-C]

C. P. Dfll/lodaran Nayar v. State of Karn/a [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

3~-~-1970 of the Kerala High Court in Writ Appeal No. 39/70 and C1v1l Appeal No. 1575 of 1970.

Appeal by Special Le-ave from the Judgment and Order dated 22-12-1969 of the Kerala High C0urt in O.P. No. 211/65,

. '

~·.

V. Sivarama Nair and A. 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. Ramamurthi, N. Sudhakaran and P. K. Pillai for Respondent B 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 lO(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 thir_d 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 .IO( 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 ori March 15, 1953.

On November 1, 1956, on the reorganisation of States, appellants were allotted as Junior Engineers to the Kerala Srate 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 Kera1'a 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 ea.ch other and drawn from different States the length

12--206SCT /77

A of continuous service, whether temporary or persnanent, in the particular grade should be taken into account, excluding "periods for wllich 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 B another order on August 16, 1961 stating &at 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 direlcted 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 -1 C 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 time-scale of pay and is reckoned for grant of increments in the time-scale. and is continuous.

O'n 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, Consequ'ently, in October 1962 a provisional integ- D rated grad_ation 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 d_rawn froni. the Travancore-Cochin area being evidently p~_ejudiced by the decision of the Kemla 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 St'ate may be allowed the benefit of emergency service towards seniority in the equated category if such service would h'ave 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 M'adras.

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 wa~ 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 SIJecial leave ..

The question which arises for decision is whether the serviCes rendilred by the appellants under rule lO(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 th•at the aforesaid service ought to be taken into account because such service can be taken into account under rule 23, econdly 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 their initial appointments, that the temporary service rendered by them was counted for the purpose of eligibility for promotion to the higher post of Assistant Engineers, that they were duly qualified to hold the post of Junior Engineei:s, that they were entitled and permitted to appear for departmental tests which are open only to the probationers, that their service Qooks 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 consideratio11 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 ru)e lO(a) (i) (1) of the Madras State E 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 expressely that they were appointed under rule lO(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 appointmerit 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

A such service cannot be t•aken 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. lO(a) makes this position clearer by providmg that a person appomted under clause (i) shall, whether or not he possesses the qualifications prescribed for the service, be repl'aced 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 lO(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 wete 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_ ¥adras, 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 Keral'a 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 specurate 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 Maaras, 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 th•at the services rendered by the appellants under rule lO(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(I) on which the -appellants' counsel has placed reliance for showing that temporary service of the kind rendered initially by the appellants can

(I) [1974] 2 S.C.R. 867.

.....

A.P.M. MAYAKUTTY v. SECRETARY, P. s. DEPTT. (Cha11drachud, !.) 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 conunencement 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 dmwn 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 i;; xpiry 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.

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.