PETITIONER:
P.C. PATEL AND ORS.
Vs.
RESPONDENT:
SMT. T.H. PATHAK AND ORS.
DATE OF JUDGMENT22/09/1976
BENCH:
SHINGAL, P.N.
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1977 AIR 101 1977 SCR (1) 677
1977 SCC (1) 42
ACT
Civil service--Seniority--Irregular recruitment Regu-
larisation--Appointments through Public Service Commis-
sion--Recruitment through centralised recruitment scheme.
HEADNOTE
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.
2. 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]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil 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.
683