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Nanjundappa (R.N.) and ors. Vs. Thimmayya (T.) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 473, 482, 497, 567 and 1152 of 1967
Judge
Reported in(1970)ILLJ160Kant
ActsMysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1967; Constitution of India - Articles 14, 16 and 309; Mysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1957; Mysore State Civil Services (General Recruitment) Rules, 1957 - Rule 16; Mysore Government Servants Seniority Rules, 1957 - Rule 1A; Mysore Absorption of Instructors and Assistant Instructors in Tailoring Rules, 1965; Mysore State Civil Service (General Recruitment) (Amendment) Rules, 1958; Cadre and Recruitment Rules, 1964
AppellantNanjundappa (R.N.) and ors.
RespondentThimmayya (T.) and ors.
Excerpt:
- labour & services. dismissal from service: [subhash b adi, j] articles of charges against the respondent regarding obtaining employment by producing false transfer certificate enquiry report finding of disciplinary authority that the charges is proved order of dismissal-challenge to delay in completing the enquiry proceedings reinstatement without back wages pleaded against held, a person, who practices fraud for achieving his object, cannot perpetuate much less on the ground of delay. even one acquires certain rights, they get vitiated once it is proved that the acquisition by means of fraud. the allegation of fraud having been proved, there is no justification for the labour court to set aside the punishment. further, the gravity of the charge cannot be ignored,.....ordergopivallabha ayyangar, j.1. the petitioners in these writ petitions challenge the validity of the rules called 'the mysore education department services (technical education department) (special recruitment) rules, 1967,' made by the governor of mysore in exercise of the powers conferred on him by the proviso to art. 309 of the constitution of india. as identical questions arise for decision in all the above writ petitions, a common order is passed. these rules were published under a notification dated 9 february, 1967 which reads as follows : 'government of mysoreno. ed 91 dgo 58 mysore government secretariatvidhana soudhabangalore, dated 9 february, 1967 notification in exercise of the powers conferred by the proviso to art. 309 of the constitution of india, and all other powers.....
Judgment:
ORDER

Gopivallabha Ayyangar, J.

1. The petitioners in these writ petitions challenge the validity of the rules called 'the Mysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1967,' made by the Governor of Mysore in exercise of the powers conferred on him by the proviso to Art. 309 of the Constitution of India. As identical questions arise for decision in all the above writ petitions, a common order is passed. These rules were published under a notification dated 9 February, 1967 which reads as follows :

'GOVERNMENT OF MYSORE

No. ED 91 DGO 58

Mysore Government Secretariat

Vidhana Soudha

Bangalore,

dated 9 February, 1967

Notification

In exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India, and all other powers enabling him in this behalf, the Governor of Mysore hereby makes the following rules, namely :

(1) Title. - These rules may be called the Mysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1957.

(2) Provisions relating to regularization of appointment of Principal, School of Mines, Orgasm, Kolar Gold Fields.

Notwithstanding any rule made under, the proviso to Art. 309 of the Constitution of India, or any other rules or orders in force at any time, Dr. T. Thimmayya, B.Sc. (Hons.), PH.D. (London). F.G.S., shall be deemed to have been regularly appointed as Principal, School of Mines, Orgasm, Kolar Gold Fields, with effect from 15 February, 1958.

(By order and in the name of the Governor of Mysore)

(Sd.) S. M. SREENATH,

Under Secretary to Government,

Education Department.'

This document is marked Ex. F in Writ Petition No. 473 of 1967 and will be referred to as Ex. F hereafter. Dr. T. Thimmayya referred to therein and the State of Mysore are impleaded as respondents in all the above writ petitions and they shall hereafter be referred to as respondent and the State, respectively.

2. The petitioner in Writ Petition No. 473 of 1967 is now serving as Principal of the Polytechnic at Mysore. He is a graduate in Science with Physics, Chemistry and Mathematics. He took post-graduate degree in Chemical Engineering of the Madras University.

3. The petitioner in Writ Petition No. 482 of 1967 is a graduate in Mechanical Engineering of the Mysore University. He is now serving as head of mechanical engineering section, in C.P.C. Polytechnic, Mysore.

4. The petitioner in Writ Petition No. 497 of 1967 is now posted in additional charge of Joint Director of Technical Education, Bangalore.

5. The petitioner in Writ Petition No. 567 of 1967 is a graduate of the Mysore University in Civil Engineering and is at present the Principal of the Polytechnic, Hassan.

6. The petitioner in Writ Petition No. 1152 of 1967 is also a graduate of the Mysore University in Civil Engineering and he is now working as the Principal of B.D.T. College of Engineering, Davanagere.

7. The respondent holds a degree in B.Sc., (Hons.) and is a Ph.D. (Lond.) in Economics, Geology or Applied Geology. He is also a Fellow of the Geological Society. Incidentally, we may point out that the respondent, after his appointment as Assistant Geologist, went to England and acquired Ph.D. degree in Geology, obviously to improve his prospects.

8. The undisputed facts are that by its order dated 5 July 1967 (marked as enclosure I) the Government of Mysore ordered the establishment of a School of Mines, Kolar Gold Fields, at Orgasm. It was also provided that the school be placed under the administrative control of the Director of Technical Education Department, who may be permitted to exercise the powers of the chairman of the managing committee till such time as the managing committee is constituted and starts functioning. The Director of Technical Education was required to submit definite proposals regarding the staff to be appointed. The Director of Technical Education Department sought by his communication dated 24/29 July 1957 the sanction of Government, amongst others, for the appointment of the respondent, (who was then working as an Assistant Geologist) (Department of Geology), on a deputation basis for a period of two years as the Vice-Principal of the School of Mines on his own pay and grade in the Department of Geology with a special pay of Rs. 75 per mensem. By its order dated 17 August, 1957 (marked enclosure II) the Government of Mysore accorded sanction to the above proposal of the Director of Technical Education. It was further directed that the appointment of the Vice-Principal will be counted against one of the posts of lecturers already included in the teaching staff as directed in the Government order dated 5 July, 1967. One Sri Issacson, a Mining Engineer of the Kolar Gold Fields, was also appointed as the Principal of the school on a part-time basis on as allowance of Rs. 200 per mensem. Sri Issacson continued as Principal till 15 February, 1958. Thereafter the respondent was doing the duties of the Principal. On 25 September, 1958 the Government issued a notification appointing the respondent temporarily as officiating Principal, School of Mines, Kolar Gold Fields, with effect from 22 July, 1958, until further orders in grade Rs. 500 - 30 - 800. On representations made by the respondent to the Government that he should be appointed as Principal with effect from 15 February, 1958, when Sri Issacson ceased to be the Principal of the school, the Joint Director of Technical Education sent a communication dated 16/17 December, 1958 (marked enclosure IV) to the Government of Mysore stating that the respondent was placed in charge of the post of the Principal, in the absence of Sri Issacson, and that the respondent has performed all the duties of the post of Principal from 15 February 1958. As the permanent Principal was on leave. Thereafter, the Government of Mysore issued a notification dated 3 April, 1959 (marked enclosure V) modifying the notification dated 25 September, 1958 and appointing the respondent temporarily as officiating Principal, School of Mines, Kolar Gold, Fields, with effect from 15 February 1958 until further orders.

9. It may here be mentioned that the petitioner in Writ Petition No. 473 of 1967 filed Writ Petition No. 185 of 1962 seeking a writ of quo warranto against the respondent or such other appropriate orders declaring the appointment of the respondent temporarily as officiating Principal, School of Mines, Kolar Gold Fields, as illegal and void. The petitioner also sought for a writ of mandamus to be issued to the State to advertise the post of the Principal of Orgasm school for appointment by itself or through the Public Service Commission. This writ petition was dismissed on 1 November, 1963 on an affidavit being filed by the Government Pleader in that case. The material portion of the affidavit relevant for the purpose of these petitions, and taken into consideration in the aforesaid writ petition, mentions that :

'The draft cadre and recruitment rules of Technical Education Department have been framed and forwarded to the Public Service Commission. As per the provisions of the draft rules, the post of Principal of School of Mines has to be filled up by promotion from the cadre of heads of sections or by direct recruitment. For direct recruitment the qualifications proposed in draft rules are as follows :

'B.Sc. in Mining with at least second class certificate in Mine Manager's examination and two years' experience in teaching or M.Sc. in Applied Geology with five years' teaching experience.' 4. The rules, when finalized, would be applicable only to appointments to be made after the date of publication in the gazette. The matter of regularization of the appointment of Dr. T. Thimmayya in the post was under the consideration of Government and the Public Service Commission had agreed to the regularization. The matter has yet to be considered by Government and a decision taken in that behalf.'

In view of the above representation, this Court took the view that no useful purpose would be served in pronouncing on the questions raised in the writ petition. It was also observed that the question of regularization of the respondent's appointment will have to be considered separately if and when the appointment is regularized. Therefore the petitioner in that writ petition did not press the contention that the appointment of the respondent by the Government of Mysore under its orders dated 25 September, 1958, as modified by the Government order dated 3 April 1959, was void. None of the petitioners in the other connected petitions has challenged the validity of the abovesaid notifications. By virtue of the impugned rules dated 9 February, 1967 (marked Ex. F), the appointment of the respondent has been regularized with effect from 15 February, 1958. This rule in effect is in identical terms with the Government order dated 3 April, 1959. The petitioners attack the validity of these rules on grounds common to all these writ petitions.

10. The first contention is that the initial order of appointment of the respondent as officiating Principal being improper and in violation of rule 16(a)(ii) of the Mysore State Civil Services (General Recruitment) Rules, 1957, which was the rule in force at the time of the appointment in 1958 and 1959, it cannot be regularized. It is unnecessary to consider this contention in view of what we propose to say in regard to the contention of the respondent and the State that even though the initial appointment of the respondent was irregular, it is competent for the Governor to regularize the appointment by making a rule in exercise of his powers under Art. 309 of the Constitution. The High Court Special Government Pleader submits that an appointment to a civil post can be made in there ways :

one is by promotion;

the second is by direct recruitment through the Public Service Commission; and

the third is by regularizing the appointment which has been made initially irregularly.

He circumscribes his argument by stating that the power to regularize can be exercised if there has been a long lapse of time after such appointment and there is no violation of the provisions of Arts. 14 and 16 of the Constitution. It is also submitted by him that, there being no rule for regularization, it can be made in exercise of the executive power of the State. The respondent, according to him, is to be considered as a local candidate as defined in the Mysore Civil Service Rules. Local candidate is defined in the Mysore Civil Service Rules as follows :

'A local candidate in service means a temporary servant not appointed regularly as per rules of recruitment to that service.'

Taking this definition into consideration with the contention of the petitioners that the initial appointment of the respondent was irregular, the submission of the High Court Special Government Pleader that the respondent should be treated as a 'local candidate' has to be accepted.

11. The learned High Court Special Government Pleader invites our attention to rule 1A of the Mysore Government Servants Seniority Rules, 1957, which reads as follows :

'1A. Nothing in these rules shall be applicable to any person appointed as a local candidate so long as he is treated as such ... Provided that where his appointment is treated as regularized from any date, his seniority in service shall be determined in accordance with these rules as if he had been appointed regularly as per rules of recruitment to the post held by him on that day.'

Without expressing any opinion in regard to the seniority inter se amongst the candidates in these petitions, it is to be gathered that the Government has power to regularize an appointment and if thought fit, with effect from any particular date.

12. It must also be noticed that the vires of rules 1A not being attacked, the inference that we can draw is that regularization is permissible. As pointed out by one of the petitioners, it is true that rule 1A comes under the Mysore Government Servants Seniority Rules, 1957, but it does not preclude us from drawing the inference that we have drawn as indicated above. In Champaklal Chimanlal Shah v. Union of India [1964 - I L.L.J. 752] which is relied on by the High Court Special Government Pleader, the Supreme Court observes (at p. 759) that :

'It is well-recognized that the Government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate. There can also be no doubt, if such a class of temporary servants could be recruited, that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees. There is no denial of equal opportunity if out of the class of temporary employees some are made quasi-permanent depending on length of services and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees.'

As contended by the Government Pleader, the above observations support the proposition that there can be a temporary employment without being discriminatory or violating the principles of Art. 16 and secondly it also provides for the recognition of temporary servants as quasi-permanent employees. These observations are made in connexion with the creation of quasi-permanent employees who acquire special rights of their own. But this distinction does not take away the support it gives to the contention of the respondents as set out above. The respondents place reliance on a decision in Pillappa (L.) v. State of Mysore [(1967) 2 Mys. L.J. 40] which proceeds on the ground that it is permissible to regularize an appointment and also fix a date from which such appointment becomes regularized. This is what has been done under the impugned rule, Ex. F. In State of Mysore v. S. V. Narayanappa : [1967]1SCR128 also it is recognized that appointments made by the State of Mysore regularized. In Mythili v. State of Mysore [(1968) 1 Mys. L.J. 189], the rule that was impugned related to 35 persons who were serving as craft teachers in the Department of Industries and Commerce. The Governor, in exercise of the power under the proviso to Art. 309 of the Constitution, made rules called 'the Mysore Absorption of Instructors and Assistant Instructors in Tailoring Rules, 1965', which was published on 29 May, 1965. Rule 2 of these rules provided that :

'Notwithstanding anything contained in the Mysore State Civil Service (General Recruitment) Rules, 1958, and the orders fixing the general qualification for instructors and assistant instructors in Tailoring (1) the persons mentioned in Col. (2) of the schedule who were holding the posts mentioned in the corresponding entry in Col. (3) shall with effect from the date of this order, be deemed to have been absorbed in the category of posts in the Mysore Education Department mentioned in the corresponding entry in Col. (4) thereof.'

This order was upheld, thus supporting the proposition that in exercise of the executive powers, the Governor is entitled to appoint or to regularize the appointment subject to the condition already referred to. Our attention is also invited to a recent decision of this Court in Venkatayya v. State of Mysore [(1968) 2 Mys. L.J. 491]. The appointments the correctness of which was questioned in these writ petitions were made prior to the Cadre and Recruitment Rules, 1964, coming into force, as in this case. The Government had found it necessary to appoint a number of persons, to the posts of Associate Professors, Assistant Associate Professors, Readers, Lecturers and Registrars, in clinical subjects in the Government Medical Colleges and the Government Dental Colleges. They were also appointed in order to maintain in the Medical Colleges staffing standards as prescribed by the Indian Medical Council. These appointments were made both by promoting temporarily persons who were already in service and who had acquired post-graduate qualifications, and also by directly appointing as local candidates persons who possessed post-graduate qualifications. The services of some of such persons were sought to be regularized by a rule issued under Art. 309 of the Constitution of India. The question that came up for consideration before the court was whether the Government had no competence for regularization of the local candidates. It was contended that the regularization is violative of Arts. 14 and 16 of the Constitution. The Court upheld the order of regularization observing that :

'The executive power of the State extends to all matters relating to the State Public Services, and the power to regularize the services of local candidates is, in our opinion, only ancillary or incidental to the power of the State to manage its public services. It is not necessary that there must be a law already in existence before the Government can exercise its executive power to regularize the services of local candidates. No doubt such executive power cannot be exercised contrary to, or inconsistent with, any provisions of the Constitution, legislative enactment, or rules made under the proviso to Art. 309.'

The only test to find out if the regularization of the services of the local candidate is valid or not, is to see if the appointment of the candidate as a local candidate was in violation of any provisions of the Constitution, legislative enactment or rules made under the proviso to Art. 309. We shall consider this aspect of the matte at a later stage.

13. It was pointed out by the counsel for the petitioners that the impugned order Ex. F refers to a single person. It was contended that a rule under Art. 309 can apply only to a class and it cannot be made in respect of a single individual. In a support of this contention, the learned counsel for the petitioners relied on the decision of the Supreme Court in D. Sadasiva Reddi v. Chancellor, Osmania University [A.I.R. 1967 S.C. 1305]. This decision referred to by the counsel for the petitioners, does not lay down that the Governor has no power to make a rule in respect of one person but holds that the particular rule made in that case was discriminatory inasmuch as one individual was discriminated for no justifiable reason. If an individual can be considered to constitute a class by himself, we do not see anything objectionable if he is to be classified as constituting a class provided the classification is reasonable and not discriminatory or violative of any other provisions of the Constitution or law or rules validly made. In the decision referred to above the Supreme Court observes as follows :

'It is no doubt true, as pointed out by the learned Additional Solicitor-General, that a statute may direct its provisions against one individual person or thing, or against several individual persons or things.'

This principle is, as pointed out above, accepted by our Court in Mythili v. State of Mysore [(1968) 1 Mys. L.J. 189] (vide supra) and Venkatayya v. State of Mysore [(1968) 2 Mys. L.J. 491] (vide supra). It was not disputed that the power of the Governor to frame rules under Art. 309 of the Constitution is co-extensive with that of the legislature which can make a legislation in respect of a single individual. Therefore, it cannot be contended that the Governor has no power to make a rule under Art. 309 of the Constitution in respect of a single individual.

14. It was next contended that the respondent should have taken his chance for appointment as Principal, School of Mines, Orgasm, Kolar Gold Fields, in accordance with the Cadre and Recruitment Rules issued on 5 May, 1964. In the relevant Cadre and Recruitment Rules it is laid down that the post of Principle, School of Mines, Kolar Gold Fields, is to be filled up permanently from the cadre of heads of sections or by direct recruitment. It is not clear if any of the petitioners come under the class from which recruitment may be made by promotion or whether they satisfy the qualifications prescribed under the Cadre and Recruitment Rules for the purpose of direct recruitment to the post of Principal of School of Mines. Kolar Gold Fields. The grievance of some of the petitioners is that if the appointment of the respondent as Principal of the School of Mines is to be regularized with effect from 15 February, 1958, their claim for promotion to the post of Joint Director of Technical Education would be prejudiced. As mentioned already we do not express any opinion as to the inter se seniority amongst the petitioners and the respondent. Therefore, the question as to whether such a grievance can arise or not does not arise for consideration before us.

15. The State in the affidavit filed by them set out the circumstances under which the appointment was made by their orders dated 25 September, 1958 and 3 April, 1959. It is stated that :

'Respondent 3 was a highly qualified person having passed B.Sc. (Hons.) and Ph.D. (Lond.) in Economics, Geology or Applied Geology. He was also a Fellow of the Geological Society. It is submitted that it was for the first time a full fledged and independent school of mines was so started. The existing institutions were not capable of imparting the instruction which the school of mines at Kolar Gold Fields was expected to do. It was also found that in the Department of Technical Education no other person was suitable for holding the post of the Vice-Principal. That was the reason why respondent 3 who was working in the Department of Mines and Geology was appointed in that post.'

As mentioned earlier one Sri Issacson, an officer of the Rock Burst Unit of the Kolar Gold Fields Undertakings was appointed as Principal on a Part-time basis and he continued as such till 15 February, 1958, without reference to any prescribed qualification because no such qualification had been prescribed. Similar is the position with reference to the post of the Vice-Principal but with this difference that the respondent's qualifications for the post were considered and this appointment was made on the recommendation of the Director of Technical Education. It is undisputed that from 15 February, 1958, the respondent continued to discharge his duties as Principal. On verifying that the respondent had worked as Principal from 15 February, 1958, the Government appointed him temporarily on officiating basis as Principal with effect from 15 February, 1958. It is also averred by the State that when the question of regularization of the services of the respondent as Principal was under contemplation in 1962, Government again on investigation came to the conclusion that there were no other qualified persons available in the Mines and Geological Department of Technical Education Department of fill up the post of Principal of the School. The Government consulted the Public Service Commission who agreed with the proposal of the Government to regularize the service of the respondent as Principal of the School of Mines, Kolar Gold Fields. These averments are not denied or contradicted. It must be noted that at the time when the relevant Government orders were passed no Cadre and Recruitment Rules relating to the appointment of Principal were in force. As stated already, the State made it clear in Writ Petition No. 185 of 1962 that the question of regularization of the appointment of the respondent was being considered by the Government and that the Public Service Commission had agreed to the regularization of the respondent's appointment. The appointment of the respondent as Vice-Principal was made on 17 August, 1957 on the recommendation of the Director of Technical Education. There has been no allegation that either as Vice-Principal or as officiating Principal from 15 February, 1958, after Sri Issacson ceased to be the Principal, the respondent has not discharged his duties satisfactorily. It is in evidence from what is mentioned above that at the time the Principal or the Vice-Principal was initially appointed for the school of mines, there were no qualifications prescribed for the posts. Even when the respondent was temporarily appointed as officiating Principal in 1959, there was no qualification being prescribed. Without the qualification being prescribed, the Government had to make the best choice possible in the circumstances. The Government did not accept the qualifications prescribed by the Government of India and they had power to do so. They took the advice of the Director of Technical Education and appointed the respondent as Vice-Principal of the institution. Later, on consultation with the Public Service Commission, the State appointed him as officiating Principal. Though an attempt was made to challenge Ex. F as being vitiated by mala fides on the part of the authorities for the reason that the respondent is the son-in-law of Sri K. Hanumanthayya, an Ex-Chief Minister of the State of Mysore, it has been since abandoned. We also are of the view that the allegations pertaining to bias or mala fides are rightly abandoned. In the absence of any rules prescribing the qualifications for the appointment of the Principal of the School of Mines, the Government had to make a temporary appointment and this was made by them in respect of the post of Vice-Principal as also that of the Principal at different stages. In Para. 13 of enclosure I, dated 5 July, 1967, it is stated :

'As regards the staff, it is stated that it would be necessary for the present to obtain the services of qualified and experienced persons on part-time basis from the Kolar Gold Fields, Mining Board, the Department of Geology, the university and other departments. The Director of Technical Education has stated that he would submit necessary recommendations in this regard, in consultation with the officers concerned, well in time.'

It must also be taken into account that the appointments were to be made quickly inasmuch as applications had been called for from candidates for admission to the school of mines, as can be seen from the Government order dated 17 August, 1967. The method for recruitment to the post under the 1967 Rules is by competitive examination or by selection or by promotion. As mentioned already, there were no rules governing the competitive examination or selection or promotion at the time the appointments were made. Scrutinizing the appointment of the respondent from the point of view whether it has been discriminatory or violative of the principles of equal opportunity being given to the candidates equally qualified, we are inclined to think that in the circumstances narrated above, the State considered that the respondent was the only qualified person to be appointed as Vice-Principal in the first instance and later as Principal. Hence the initial appointment cannot be said to be discriminatory. The appointment of the respondent as officiating Principal in 1959 cannot therefore be said to be vitiated for any valid reason. Further, taking into consideration that the respondent has held the post of the Principal from 15 February, 1958 continuously up to the date of Ex. F, viz., 9 February, 1967, discharging his duties satisfactorily and that he holds high academic qualifications in Geology, it appears to us that the regularizations of the appointment of the respondent as Principal, School of Mines, Orgasm, with effect from 15 February, 1958 cannot be held to be unjustified.

16. It cannot be gainsaid that at the stage of the initial appointment of the respondent as Vice-Principal or Principal, it would have been advisable to strictly follow the method of recruitment prescribed in the 1957 Rules.

It is only the special circumstances of this case as detailed above that can persuade us to take the view that the Government properly exercised its executive power to make the temporary appointment and subsequently regularize the same. We are aware that if the regularization is disturbed at this stage great prejudice would be caused to the respondent. The petitioners' counsel brought to our notice the following observations of the Supreme Court in Channabasavayya v. State of Mysore : [1965]1SCR360 that :

'It seems surprising that Government should have recommended as many as twenty-four names and the Commission should have approved of all those names without a single exception even though in its own judgment some of them did not rank as high as others they had rejected. Such a dealing with the public appointments is likely to create a feeling of distrust in the working of the Public Service Commission which is intended be fair and impartial and to do its intended work free from any influence from any quarter ... and it is very unfortunate that these persons should be uprooted after they had been appointed but if equity and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them, we would be failing in our duty if we did not, even at the cost of causing inconvenience to Government and the selected candidates, do the right thing. If any blame for the inconvenience is to be placed, it certainly cannot be placed upon the petitioning candidates, the candidates, whom this order displaces or this Court.'

These observations were made with reference to the particular glaring facts of the said case. They do not on that account lose their force. However, keeping in view the above observations of the Supreme Court, we have to see if the rule should be applied to this case. In view of the facts and the circumstances narrated in detail in the course of this order, a rigorous application of the rule laid down by the Supreme Court is not warranted in this case.

17. It was submitted by the counsel for the petitioners that the respondent was appointed as officiating Principal on a deputation basis, when he was appointed on 17 August, 1957 and had a lien in the Department of Geology; which was his parent department. It was further pointed out that the lien of the respondent was temporarily suspended with effect from 8 February, 1966 under the order of the same date issued by the Director of the Department of Mines, Geology. It was, therefore, contended that the respondent continued as an Assistant Geologist in the Department of Geology and had been promoted from time to time according to rules. No provision of law has been pointed out to us that a Government servant who holds a lien on an appointment in his parent department cannot be appointed as a local candidate for any other appointment and the same cannot be regularized later. Therefore, it appears to us that the fact that the respondent was on deputation at the time he was appointed as officiating Principal of the School of Mines, does not prevent his being treated as a local candidate for the post of Principal of the institution in question.

18. It was contended by Sri Byra Reddi, the learned counsel appearing for the respondent, that the petitioners cannot ask for a writ of quo warranto for the reason that the office in question is not one either under the Constitution or created under any statute. It was further contended that the petitioners cannot be said to be aggrieved by the appointment of the respondent under Exs A and B, the notifications dated 25 September, 1958 and 3 April, 1959 as they were not even qualified to seek the appointment even under the 1964 Cadre and Recruitment Rules. It is unnecessary for us to advert to these contentions.

19. Another contention advanced by the respondent's counsel was that the petitioners ought to have challenged the orders referred to above as Exs. A and B, and not having done so for very nearly ten years, their challenge now made in regard to the appointment of the respondent as officiating Principal is highly belated. It is unnecessary to consider this contention also in view of our finding that Ex. F cannot validly be impeached.

20. We should however make it clear that any temporary appointment to any post in the State Civil Services should be made in accordance with the rules governing such appointments. If no such rules exist, the appointment should be made in full conformity with the provisions of the Constitution under Arts. 14 and 16. Any violation of the said provisions would vitiate the appointment. The decisions in these petitions should not be taken as laying down the proposition that any appointment irregularly made would come within the meaning of the words 'local candidate' and the appointment of such a candidate could be regularized. It is only under exceptional circumstances that regularization could be resorted to and even that could be done only if the appointment of the local candidates is not discriminatory or not made without giving equal opportunity as required under Art. 16 of the Constitution of India. It is needless to say that the practice of appointing local candidates and continuing them as such for a long time and then regularizing their services is a practice that can seldom be countenanced. The question relating to the inter se seniority amongst the petitioners and the respondent and their claim for any higher appointment is left open for determination according to rules governing that matter when the need to do so arises.

21. For the reasons mentioned above, we dismiss the writ petitions but we make no order as to costs.


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