Case ID: 3596

Judgment:
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. 767/74. S.K. Dholakia and R.C. Bhatia	 for the Appellants. Hardayal Hardy	 K.R. Nagaraja	 S.K. Mehta and P.N. Puri	 for Respondents 2	 4	 5	 7 10. R.N. 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. T.H. 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 and/or 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 K.K. Joshipura	 Under Secretary to the State Government	 dated September 4	 1974	 that it was "true the office of the D.C.S.(A) 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 and/or 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 and/or 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 29(1) (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 pro.motions from time to time. Their appointments were however temporary all through. It.ap 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. P.H.P. 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 P.S.C. 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	 i.e.	 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]