PETITIONER:
A.P.M. MAYAKUTTY ETC.
Vs.
RESPONDENT:
SECRETARY, PUBLIC SERVICE DEPARTMENT, ETC.
DATE OF JUDGMENT08/02/1977
BENCH:
ACT
Interstate seniority in equated posts consequent to the
reorganisation of States--Whether services rendered under
Rule 10(a) (i) (1) of the Madras State and Subordinate Serv-
ices Rules would count for the purpose of fixing the inter-
state seniority--Kerala Government order dated 10-5-63 based
on the recommendation of the Central Government dated
16-2-1963---Validity of.
HEADNOTE
The three appellants, who were appointed as temporary junior
engineers in the Madras High Way Subordinate Service under
rule 10(a)(i)(1) of the 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 Com-
mission 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 Slates of Madras and Travancore-
Cochin. For the propose of fixing the interstate seniori-
ty, several orders were passed, from time to time, both by
the Central Government and 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 Govern-
ment on 16-2-1963. They were: (1) The Officers allocated to
Kerala from the former Madras State may be allowed the
benefit of emergency service towards seniority in the
equated category if such service would have been regula-
rised from the date of their emergency appointment and if it
would have been counted for interstate seniority on Novem-
ber 1, 1956 had these officers remained in Madras. (2)
The principles. laid down by the Government of 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 emer-
gency arrangements and that only short periods for which
appointment was held under such arrangements should be
excluded. The Government of Kerala passed an order on May
10, 1963 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.
In appeal by special leave, the appellants contended:
(1) The emergency service rendered under Rule
10(a)(i)(1) of the Rules ought to be taken into account
because such service can be taken into account under Rule
23(a) ibid (ii) Such service is not liable to be excluded by
reason 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 service
rendered by them would have been taken in.to account for
fixing their seniority and (iv) Such service should count 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 being 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 service books having been opened from the. date of
their appointment 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 one year of their emergency service.
938
Dismissing the. appeals, the Court,
HELD: (1) A fact of fundamental importance which perme-
ates every one of these cOnsiderations is that the appel-
lants were appointed under rule 10(a) (i)(1) of the Madras
State and Subordinate Services Rules. In face of the provi-
sions of these rules and the express terms of their ap-
pointment, to the effect, "that appointments were under
rule 10(a) (i) (1) purely temporary necessitated on
account of the non-availability of regularly selected candi-
dates, conferring no claim for future appointment as junior
engineers and 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 arrange-
ment and such service cannot be taken into account for the
purpose of seniority from the date of their initial appoint-
ment. [941 E, H, 942 A]
(2) Clauses (iii) and (iv) of rule 10(a) reflect signif-
icantly on the nature of the appointment held by the appel-
lants 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 jurispru-
dence. [942-C-D]
(3) The fact that the appellants were qualified to hold
the posts cannot, in view of clause (iii) of rule 10(a)
entitle them to count for the purpose of seniority the
period during which they served in a stop-gap or an emer-
gency arrangement. [942 B]
(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 specu-
lation as to what course the appellants’ destiny would have
taken had they remained in Madras. 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.Com-
mission, were quite subsequent to the dates of their initial
appointment. The services rendered by them under rule 10(a)
(i)(1) were treated by the Government which appointed them
as a matter of stop-gap, emergency or fortuitous arrange-
ment. [942 D-G]
(5) The concurrence of the Public Service Commission to
the continuance of the appellants in the post 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 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.
[943 E-F]
(6) In the instant case, the initial appointment was not
only made without any reference to the Public Service Com-
mission but the various rules and the terms of the appoint-
ment shove that the appellants were appointed purely as a
matter of fortuitous or stop-gap arrangement. Their initial
temporary services cannot therefore be counted for the
purpose of seniority. [943 B-C]
C.P. Damodaran Nayar v. State of Kerala [1974] 2, SCR
867, distinguished and held not applicable.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 841 of 1974.
Appeal by Special Leave from the Judgment and Order
dated 30-3-1970 of the Kerala High Court in Writ Appeal No.
39/70 and Civil Appeal No. 1575 of 1970.
Appeal by Special Leave from the Judgment and Order
dated 22-12-1969 of the Kerala High Court in O.P.
No. 211/65,
939
V. Sivarama Nair and ,4. 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. Ramanurthi, N. Sudhakaran and P.K. Pillai for
Respondent No. 45 in CA 1575/70.
The Judgment of the Court was delivered by
CHANDRACHUD, J.--Since these two appeals involve identi-
cal 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 10(a)(i)(1) of the Madras State and Subordinate Serv-
ices Rules. Appellants 1 and 2 were appointed on June 6 and
June 8, 1951 respectively while the third 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 permit-
ting 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 10(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 on March 15, 1953.
On November 1, 1956, on the reorganisation of States,
appellants were allotted as Junior Engineers to. the Kerala
State. 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 Kerala 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 serv-
ice is temporary or officiating, quasi permanent or
permanent. The order, however, expressly provided that in
the aforesaid determination, the period for which an ap-
pointment was held "in a purely stop-gap or emergency ar-
rangement" was to be excluded. On April 3, 1957 the. Gov-
ernment 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 each other and drawn
’from different States the length 12--206sC1/77
940
of continuous service, whether temporary or permanent, in
the particular grade should be taken into account, exclud-
ing "periods for which 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
another order on August 16, 1961 stating that one year of
temporary service of Junior Engineers allotted from Madras
would be excluded for the purposes of fixing their inter-
state seniority. Representations were made against this
order to the Government Of India which directed 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 regulari-
sation 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. On May 16, 1962 the Govern-
ment 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, Consequently, in October 1962 a provi-
sional integrated gradation 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 drawn from the Travancore-Cochin area being
evidently prejudiced by the decision of the Kerala Govern-
ment 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 State may be allowed the benefit of emer-
gency service towards seniority in the equated category if
such service would have been regularised from the date of
their emergency appointment and if it would have been count-
ed for interstate seniority on November 1, 1956, had these
officers remained in Madras. 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 was 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 repre-
sentations and on. those being rejected, they filed a writ
petition in the High Court in August 1965. That writ peti-
tion having been dismissed, they have filed this appeal by
special leave.
941
The question which arises for decision is whether the
services rendered by the appellants under rule 10(a) (i) (1)
of the Madras State and Subordinate Services Rules must be
taken into account for the purpose of fixing. their seniori-
ty in the service of the Kerala Government as from November
1, 1956. It is urged on behalf of the appellants that the
aforesaid service ought to be taken into account because
such service can be taken into account under rule 23, sec-
ondly 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 theft 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 Engineers, that they were entitled and
permitted to appear for departmental tests which are open
only to the probationers, that their service books were
opened from the data of their initial appointments, and that
the concurrence of the Public Service Commission was ob-
tained 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 consideration to these matters we
think it impossible to accept the appeal. A fact of funda-
mental importance which permeates every one of these consid-
erations is that the appellants were appointed under rule
10(a)(i)(1) of the Madras State 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 au-
thority may temporarily appoint a person,
otherwise than in accordance with the said
rules."
This provision contemplates the making of temporary appoint-
ments 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 10(a) (i)(1),
that the appointments were "purely temporary necessitated on
account of the non-availability of regularly selected candi-
dates conferring no claim 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
942
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.
Clause (iii) of rule 10(a) makes’this position clearer
by providing that a person appointed under clause (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, there-
fore, entitle them to count for the purposes of seniority
the period during which they served in a stop-gap or emer-
gency arrangement. Clause (v) of rule 10(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 were appointed initially on a uniquely
precarious tenure. Such tenures hardly ever count for sen-
iority in any system of service jurisprudence.
It is now only necessary to consider the appellant’s
argument that had they remained in Madras, their entire
service would have counted for purposes of seniority. In
support of this argument reliance was placed on the corre-
spondence between the Governments of Kerala 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 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 appoint-
ment. 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 or fortuitous arrangement.
The decision in C.P. Damodaran Nayar v. State of
Kerala(1) on which the appellants’ counsel has placed reli-
ance for showing that temporary service of the kind rendered
initially by the appellants can
(1) [1974] 2 S.C.R. 867.
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 commencement of his continuous service. Dealing with
the appeal arising out of the dismissal of his writ peti-
tion, this Court held that the service rendered by the
appellant after his initial appointment was neither emergen-
cy service nor was it a purely stop gap or fortuitous ar-
rangement. 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 appel-
lants’ 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 appel-
lants 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 selec-
tion 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 dis-
missed.
944