PETITIONER:
C.MUNIYAPPA NAIDU ETC.
Vs.
RESPONDENT:
STATE OF KARNATAKA AND ORS.
DATE OF JUDGMENT13/10/1976
BENCH:
BHAGWATI, P.N.
KRISHNAIYER, V.R.
FAZALALI, SYED MURTAZA
CITATION:
1976 AIR 2377 1977 SCR (1) 791
1976 SCC (4) 543
ACT
City of Bangalore Municipal Corporation Services
(General) Cadre and Recruitment Regulations, 1971, Reg.
3--Absorption of Senior Health inspectors by Corporation
contrary to provision in Reg. 3--Effect of.
HEADNOTE
The City of Bangalore Municipal Corporation Services
(General) Cadre and Recruitment Regulations, 1971, framed
under the City of Bangalore Municipal Corporation Act,
1949, came into force on 3rd March,1971. In accordance with
the’ practice of the Corporation prevailing before that
date to have one half of the cadre of Senior Health Inspec-
tors manned by deputation of Senior Health Inspectors from
the Karnataka State Civil Service, the appellants were taken
on deputation by the Corporation from the Karnataka State
Civil Service. In 1974, the Corporation passed a resolution
that the appellants would be absorbed by the Corporation if
they were willing to accept their ranking as juniors to the
Senior Health Inspectors of the Corporation, and the State
Government accorded its sanction to the resolution of the
Corporation as required by the Act. But coming to know that
the chances of promotion of the permanent officials of the
Corporation would be prejudicially affected by such absorp-
tion, the State Government withdrew its sanction accorded
earlier. The appellants preferred writ petitions for
quashing the withdrawn but the High Court dismissed the
petitions.
In appeal to this Court, it was contended that the
appellants became permanent employees of the Corporation and
ceased to be Government servants as soon as the State Gov-
ernment accorded sanction to the Resolution of the Corpora-
tion and that therefore, the State Government could not,
thereafter, by its unilateral action, reverse the process
and annihilate the relationship of employer and employee
between the Corporation and the. appellants and restore
their status as Government servants.
Dismissing the appeals,
HELD : (1) The Resolution read with the Government
sanction did not operate to put an end to the status of the
appellants as government servant and to create the rela-
tionship of master and servant between the Corporation and
the appellants, and therefore, it was competent to the State
Government to withdraw the sanction accorded earlier; and
this would be so irrespective of whether the appellants
expressed their willingness to be absorbed as SeniOr Health
Inspectors by the Corporation or not. [797 BC]
(a) Regulation 3 of the Regulations which were in force
when the Resolution was passed by the Corporation recognised
only two modes of recruitment to the post of Senior Health
Inspectors namely, by promotion from the cadre of Junior
Health Inspectors and by deputation. Therefore, to absorb
Senior Health Inspectors from the State Directorate of
Health Services as permanent employees of the Corporation
would be plainly contrary to the express mandate of this
statutory provision. [796 C & F]
(b) It could not be urged that because they were already
on deputation in the cadre of Senior Health Inspectors under
the Corporation, their absorption as permanent Senior Health
Inspectors did not constitute fresh entry into the cadre so
as to require compliance with the Regulations. Not only
792
their entry but also their continuance in the cadre of
Senior Health Inspectors on the Corporation establishment
depended on their being on deputation, because, it is only
by way of deputation that Senior Health Inspectors from the
State Directorate of Health Services can find place in the
cadre of Senior Health Inspectors on the establishment of
the Corporation Since absorption is appointment, without
amendment of the Regulations permitting appointment of
Senior Health Inspectors drawn from the State Directorate
of Health Services as permanent Senior Health Inspectors
under the Corporation, the appellants could not be absorbed
on the Corporation Establishment. [796 G-H]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 761 of 1976.
(Appeal by Special Leave from the Judgment and Order
dated 28-5-1976 of the Karnataka High Court in Writ Appeal
No. 665/75 ).
CIVIL APPEAL No’s. 845-854 of 1976.
(Appeals by Special Leave from the Judgment and Order
dated 28-6-1976 of the Karnataka High Court in Writ Appeal
Nos. 247, 237, 241,243-246, 248 and 250/76 respectively.)
S.V. Gupte, S.B. Wad, A.K. Ganguli and Mrs. Jayashree
wad, for the Appellants in all the Appeals.
M.P. Chandrakantraj Urs and B.R.G.K. Achar, for Respond-
ents 1 to 3 in CA 761/76.
Narayan Nettar, for Respondent 4 in CA. No. 761/76.
A.K. Sen, M.P. Chandrakantraj Urs and Narayan Nettar,
for the respondents in CA. No. 845/76.
M.P. Chandrakantaraj Urs and Narayan Nettar, for Re-
spondents 1-3 in CAs 846-849/76.
B.R.G.K. Achar for Respondent 1 in CAs. 850-854/76.
M.P. Chandrakantaraj Urs and Narayan Nettar, for Re-
spondents 1-3 in CAs. 850-854/76.
Narayan Nettar for Respondent 7 in CAs. 845-846/76.
The Judgment of the Court was delivered by
BHAGWATI, J.--This group of appeals raises a common
question of law affecting Senior Health Inspectors on
deputation with the Municipal Corporation of the City of
Bangalore (hereinafter referred to as the Corporation). The
facts giving rise to the appeals are identical and may be
briefly stated as follows.
The appellants are Senior Health Inspectors in the
Karnataka State Civil Service. It seems that prior to 3rd
March, 1971, when the City of Bangalore Municipal Corpora-
tion Services (General) Cadre and Recruitment Regulations,
1971 (hereinafter referred to as the Cadre and Recruitment
Regulations) came into force, the practice
793
of the Corporation was to have one half of the cadre of
Senior Health inspectors manned by deputation of Senior
Health Inspectors from the Karnataka State Civil Service and
in accordance with this practice, the appellants were taken
on deputation by the Corporation from the Karnataka State
Civil Service. While the appellants were working as Senior
Health Inspectors on deputation, the Corporation passed a
resolution dated 30th December, 1974- approving the report
of the Commissioner that sixteen Senior Health Inspectors,
including the appellants, who were working under the Corpo-
ration on deputation should "be absorbed in the interest of
work if they are :willing on then’ own pay and accept their
seniority as Juniors to the Senior Health Inspectors of the
Corporation." It is the case of the appellants that on the
same day, immediately :after the passing of this Resolution,
they addressed a communication to the Mayor of the Corpora-
tion intimating to him that they were willing to be
absorbed as Senior Health Inspectors under the Corporation
on their own pay and with ranking below the Senior Health
Inspectors of the Corporation. The factum of this communi-
cation was disputed by the Corporation as well as by the
State Government, but in the view we are taking, it will not
be necessary for us to examine this question. To. continue
further with the narration of facts, the Corporation sent
the Resolution dated 30th December, 1974 to the State Gov-
ernment for according its sanction and the State Government
by an order dated 6th May, 1975 accorded sanction "to the
Corporation’s resolution dated 30th December, 1974 regarding
the absorption of the Senior Health Inspectors" mentioned
the Resolution under section 89 of the City of Bangalore
Municipal Corporation Act, 1949 (hereinafter referred to as
the Act). The term of the Corporation in the meantime came
to an end and since fresh elections were not held to elect
the members of the Corporation, an administrator was ap-
pointed’ by the Government to manage the affairs of the
Corporation. The administrator requested the State
Government to defer implementation of the proposal contained
in the Resolution dated 30th December, 1974 since the perma-
nent officials of the Corporation were considerably dis-
turbed by this proposal as it prejudicially affected their
chances of promotion by reason of the absorption of sixteen
deputationist Senior Health Inspectors from the Karnataka
State Civil Service. The State Government on the basis of
the communication addressed by the Administrator in this
behalf passed another order dated 25th August, 1976 with-
drawing the sanction accorded under the earlier order dated
6th May, 1975. The appellants being prejudicially affected
by the withdrawal of the sanction. preferred writ petitions
in the High Court of Karnataka contending that as soon as
the State Government gave its sanction on 6th May, 1975 to
the Resolution of the Corporation dated 30th December, 1974,
they were absorbed as permanent employees of the Corporation
and they ceased to be Government servants and the State
Government thereafter had no authority to withdraw the
sanction granted by it under the earlier order dated 6th
May, 1975 and the subsequent order dated 25th August 1975
was invalid and inoperative. These writ petitions came up
for hearing before a Single Judge of the High Court who
rejected them by a judgment dated 22nd September, 1975. The
appellants thereupon preferred appeals under section 4 of
the Karnataka High Court Act.
794
1961, but the appeals ’were unsuccessful and they were
rejected by a Division Bench of the High Court by a judgment
dated 28th May, 1976. Hence the present appeals by the
appellants with special leave obtained from this Court.
The principal question which arises for determination
in these appeals is whether the appellants who are Senior
Health Inspectors mentioned in the Resolution of the Corpo-
ration dated 30th December, 1974 became permanent employees
of the Corporation and ceased to be Government servants as
soon as the State Government passed the order dated 6th May,
1975 according its sanction to the Resolution of the Corpo-
ration. There can be no doubt that if the effect of the
Government order dated 6th May, 1975 was to snap the status
of the appellants as Government servants and to absorb them
as permanent employees of the Corporation, the State Govern-
ment could not thereafter by its unilateral action reverse
the process and annihilate the relationship of employer and
employee between the Corporation and the appellants and
restore their status as Government servants. The main issue
which, therefore, falls for determination is as to what
legal effect flowed from the Government order dated 6th May,
1975: did it have the effect of absorbing the appellants as
permanent employees of the Corporation with simultaneous
termination of their employment as Government servants ? To
answer this issue it is necessary to refer to a few relevant
provisions of the Act and the Cadre and Recruitment Regula-
tions.
The provisions in regard to the establishment of the
Corporation are-to be found in sections 84 to 95 of the Act.
Section 84 provides for appointment of a Health Officer, an
Engineer, a Revenue Officer and other heads of departments
working under the Commissioner while section 85 deals with
special superior appointments. We are not concerned with
either of these two sections since Senior Health Inspectors
do not fall within the categories of officers dealt with in
these two sections. Section 86 provides that if a. vacancy
occurs in any office specified in sections 84 and 85 or in
any office under the Corporation the maximum monthly
salary of which exceeds two hundred and fifty rupees, the
Corporation shall, subject to the confirmation of the Gov-
ernment, within two months of the date of occurrence of the
vacancy, appoint a duly qualified person to hold such of-
fice. The office of Senior Health Inspector is undoubtedly
an office the maximum monthly salary of which exceeds two
hundred and fifty rupees and therefore, a vacancy in that
office is liable to be filled by the Corporation, subject to
confirmation by the Government, under this section. Sections
87 and 88 are not material for our purpose and we need not
pause to consider them. Section 89 says that, subject to
the provisions of sections 84, 85, 86 and 88, appointments
to the Corporation establishment shall be made by the Corpo-
ration if the maximum monthly salary of the office exceeds
two hundred and fifty rupees. It is clear on a conjoint
reading of sections 86 and 89 that it is the Corporation
which is entitled to make appointment to the office of
Senior Health Inspector and such appointment is subject to
confirmation by the Government. Then comes section 90
which provides that the Commissioner shall from time to time
lay before the Standing Committee
795
a Schedule setting forth the designations and grades of
officers and servants who should in his opinion constitute
the Corporation establishment and embodying his proposals in
regard to salaries, fees and allowances payable to them and
the Standing Committee may either approve or amend such
Schedule as it thinks fit and shall lay it before the Corpo-
ration and the Corporation shall then sanction such Schedule
with or without modifications and may also from time to time
amend it at the instance of the Commissioner and the Stand-
ing Committee. There is a proviso to this section which says
that no new office shall be created without the sanction of
the Government, if the maximum monthly salary exceeds two
hundred and fifty rupees. This proviso, however, has no
application in the present case, since the Schedule sanc-
tioned by the Corporation set out the office of Senior
Health Inspector and the absorption of the appellants as
Senior Health Inspectors on the Corporation establishment
did not involve the creation of any new office which was not
already enumerated in the Schedule. Section 91 provides that
no officer or servant shah be entertained on the Corporation
establishment unless he has been appointed under section 84,
85, 86 or 88 or unless his emoluments are included in the
Schedule sanctioned under section 90. But this section also
does not stand in the way of the absorption of the appel-
lants as Senior Health Inspectors on the Corporation estab-
lishment, since they are purported to be absorbed by the
Corporation by its resolution dated 30th December, 1974
and the Government Order dated 6th May, 1975 is tantamount
to confirmation of such absorption and hence section 86 is
complied with and the office and emoluments of Senior Health
Inspector are also included in the Schedule sanctioned under
section 90. The other sections dealing with the establish-
ment of the Corporation are not material except section 94
which confers power on the Standing Committee to frame
regulations in respect of the Corporation establishment in
regard to various matters. It will, therefore, be seen
that there is nothing in the Act which debarred absorption
of the appellants as permanent employees of the Corporation
under the Corporation Resolution dated 30th December, 1974
read with the Government Order dated 6th May, 1975.
But the argument of the State Government and the Corpo-
ration was, and this argument found favour with the Division
Bench of the High Court, that until the Cadre and Recruit-
ment Regulations were amended, it was not competent to the
Corporation to absorb the appellants as permanent Senior
Health Inspectors on the establishment of the Corporation
and the Resolution of the Corporation dated 30th December,
1974, though sanctioned by the Government by its order dated
6th May, 1975, was not effective to bring about absorption
of the appellants as permanent employees of the Corporation
with simultaneous termination of their service as Government
servants. This argument requires consideration of some of
the relevant provisions of the Cadre and Recruitment Regula-
tions. The Cadre and Recruitment Regulations were framed
under sections 7, 84, 85, 88 and 94 of the Act and they were
sanctioned by the State Government under section 94(g) of
the Act and they came into force with effect from 3rd March,
1971 being the date on which they were published in the
Government
19--1234SCI/76
796
Gazette. Regulation 3 laid down the method of recruitment
and minimum qualifications for recruitment to various posts
enumerated in the Schedule. One of the posts enumerated in
the Schedule was the post of Senior Health Inspector and it
was provided in Column 2 of the Schedule that the method of
recruitment to the post of Senior Health Inspector shall be:
"50% by promotion from the Cadre of Junior Health
Inspectors of the Corporation,
50% by deputation from the State Directorate of Health
Services."
The Cadre and Recruitment Regulations thus recognised
only two modes of recruitment to the post of Senior Health
Inspector, namely, promotion from the cadre of Junior Health
Inspectors and deputation from the State Directorate of
Health Services and one half of the cadre was to be drawn
from each of these two sources. No other mode of recruitment
could be resorted to by the Corporation under the Cadre
and Recruitment Regulations. it is difficult to see how in
the face of this provision which has admittedly statutory
effect, the posts of Senior Health inspector could be filled
in by absorption of deputationist Senior Health Inspectors
from the Karnataka State Civil Service. Senior Health In-
spectors from the State Directorate of Health Services could
only be on deputation to the extent of one half of the
number of posts of Senior Health Inspectors on the Corpora-
tion establishment and they could not be absorbed as perma-
nent Senior Health Inspectors under the Corporation without
violating the aforesaid statutory provision. This statu-
tory provision does not contemplate any Senior Health
Inspectors on the establishment of the Corporation who are
drawn from the State Directorate of Health Services other-
wise than on deputation and to absorb Senior Health Inspec-
tors from the State Directorate of Health Services as perma-
nent employees of the Corporation (otherwise than on deputa-
tion), would be plainly contrary to its express mandate.
It was, however, contended on behalf of the appellants that
when they were absorbed as permanent Senior Health Inspec-
tors on the establishment of the Corporation, they were
already in the cadre of Senior Health Inspectors under the
Corporation, filling 50% of the posts and their absorption
as permanent Senior Health Inspectors did not constitute
fresh entry into the cadre so as to require compliance with
the Cadre and Recruitment Regulations. The position, accord-
ing to the appellants, was similar to that of an employee
Who is initially OffiCiating in a pOSt in a cadre and is
subsequently confirmed in the post. This contention, we do
not think, is well founded. It is only by way of deputation
that Senior Health Inspectors from the State Directorate of
Health Services can find place in the Cadre of Senior
Health Inspectors on the establishment of the Corporation.
Not only their entry but also their continuance in the cadre
of Senior Health Inspectors on the Corporation establishment
depends on their being on deputation. There is no scope
under the Cadre and Recruitment Regulations for their ab-
sorption as permanent Senior Health Inspectors under the
Corporation. In fact, it is impermissible to do so. The
category of Senior Health Inspectors, who are regular em-
ployees of the Corporation, can be drawn only by promotion
from Junior Health
797
Inspectors and that too, to the extent of only one half the
number of posts. It is, therefore, obvious that without
amendment of the Cadre and Recruitment Regulations permit-
ting appointment--and absorption is really nothing but
appointment--of Senior Health Inspectors drawn from the
State Directorate of Health Services as permanent Senior
Health Inspectors under the Corporation, the appellants
could not be absorbed as permanent Senior Health Inspectors
on the Corporation establishment. The conclusion must
irresistibly follow that the Resolution of the Corporation
dated 30th December, 1974 read with the Government order
dated 6th May, 1975 did not operate to put an end to the
status of the appellants as Government servants and to
create the relationship of master and servant between the
Corporation and the appellants and in the circumstances, it
was competent to the State Government to pass the Order
dated 25th August, 1975 withdrawing the sanction granted by
it under the earlier Order dated 6th May, 1975. This view
taken by us renders it unnecessary to consider whether the
communication dated 30th December, 1974 was addressed by the
appellants to the Mayor of the Corporation expressing their
willingness to be absorbed as Senior Health Inspectors under
the Corporation on the terms set out in the Resolution dated
30th December, 1974. Even if any such communication was
sent, it could have no legal effect because, as already
pointed out by us. the appellants could not be absorbed as
permanent Senior Health Inspectors under the Corporation,
unless and until the Cadre and Recruitment Regulations were
first amended so as to permit such absorption.
The appeals are accordingly dismissed, but in the pecul-
iar facts and circumstances of the ease, we make no order as
to costs.
V.P.S. Appeals
dismissed..
798