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N. Chandramouli Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 4357 of 1968
Judge
Reported inAIR1971Kant53; AIR1971Mys53; (1970)2MysLJ187
ActsState Reorganisation Act, 1956 - Sections 115, 115(2), 115(5) and 116; Constitution of India - Article 162
AppellantN. Chandramouli
RespondentState of Mysore and anr.
Appellant AdvocateH.B. Datar, Adv.
Respondent AdvocateH.K. Vasudeva Reddy, Govt. Pleader and ;B.S. Keshava Iyengar, Central Govt. Pleader
DispositionPetition dismissed
Excerpt:
.....in accordance with law-question of law answered against the revenue. - in the provisional inter-state seniority list of non-gazette government servants working in the said department published on 5th june, 1964, as well as in the final list published on 5th december, 1964, the petitioner and other similarly situated were included in the category of first division clerks. ' whatever else is or is not capable of being read into this, one thing that is perfectly clear is that it is a matter of admission that the petitioner, though appointed to the post of first division clerk in the mysore government insurance department, was not a person regularly appointed to that post according to rules of recruitment relating thereto. 7. before considering the principal arguments on behalf of the..........as 'local candidates' (the meaning of which we shall explain later) should be placed in the inter-state seniority list prepared under section 115 of the states reorganisation act.2. the facts of this case, as to which there is no dispute, are briefly the following:3. the petitioner was appointed temporarily as a first division clerk in the erstwhile state of mysore on 1st october, 1956. he continued to hold that position when the reorganisation of states under the above act was brought about on 1st november, 1956. the petitioner was then working in the mysore government insurance department. in the provisional inter-state seniority list of non-gazette government servants working in the said department published on 5th june, 1964, as well as in the final list published on 5th december,.....
Judgment:
ORDER

1. The question that arises for consideration in this writ petition is the manner in which the Government servants described as 'local candidates' (the meaning of which we shall explain later) should be placed in the Inter-State Seniority List prepared under Section 115 of the States Reorganisation Act.

2. The facts of this case, as to which there is no dispute, are briefly the following:

3. The petitioner was appointed temporarily as a First Division Clerk in the erstwhile State of Mysore on 1st October, 1956. He continued to hold that position when the reorganisation of States under the above Act was brought about on 1st November, 1956. The petitioner was then working in the Mysore Government Insurance Department. In the Provisional Inter-State Seniority List of non-gazette Government servants working in the said Department published on 5th June, 1964, as well as in the Final List published on 5th December, 1964, the petitioner and other similarly situated were included in the category of First Division Clerks. Thereafter a fresh Final List was published on 7th December, 1965 in substitution of the previous one. In that List, the petitionerand others similarly situated were shown in a separate category called 'local candidates'. Thereupon certain persons of that category aggrieved by that separate classification filed Writ Petns. Nos. 2619, 2621, 2648, 2649 and 2658 of 1965 (Mys) before this Court challenging the said Final List.

By a common order made in those Writ Petitions on 11th January, 1968, this Court quashed the List in so far as it related to the petitioners therein and directed the Union Government to re-determine their positions in the said List, after giving an opportunity to persons affected to make representations, within two months from the date of receipt of such representations. The present petitioner was one of the persons who took the opportunity to make fresh representations. After considering the various representations, the Central Government published a fresh Final List on 10th October 1968. In the said List, the four petitioners in the earlier Writ Petitions 2619 of 1965, etc. were shown in one group under the heading 'local candidates', and other persons including the present petitioner in another group, also under the heading 'Local candidates'.

4. It is this separate placement of the petitioner along with other similarly situated in a separate category called 'local candidates' that is challenged as illegal in this Writ Petition. As the question had once been brought before this Court in Writ Petition 2619 of 1965 and connected cases, and the present impugned List was published after giving an opportunity to the petitioner and others similarly situated no question now remains of the Central Government being once again asked to reconsider the position on merits. The examination of the question on merits has now to be done by this Court and we proceed to do so.

5. The term 'local candidate' was for the first time defined by an amendment which came into force on 1st April 1958 to the Mysore Civil Services Rules, 1957 (1958?). The definition is found in Clause (27-A) of Rule 8 of the Mysore Civil Services Rules and reads:--

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

Although this definition was not available prior to 1st April, 1958 there is no doubt that in the impugned List and all papers and material connected therewith, the term has been used in the sense in which it is defined in Rule 8 (27-A) of the Mysore Civil Services Rules, 1957; that is to say, a person appointed temporarily to Government Service but not so appointed regularly as per rules. Inthe relevant portion of the proceedings of the Advisory Committee functioning under Section 115 of the States Reorganisation Act, it is found stated:--

'The Inter-State Seniority List should be on the basis of the facts as existed on 31st October, 1956. It has been agreed on all hands that as on 31st October, 1956 the officers whose names were shown in the list as local candidates were in fact only local candidates.'

Whatever else is or is not capable of being read into this, one thing that is perfectly clear is that it is a matter of admission that the petitioner, though appointed to the post of First Division Clerk in the Mysore Government Insurance Department, was not a person regularly appointed to that post according to rules of recruitment relating thereto. At one time it was stated in the course of the argument that there were no particular or special rules of recruitment applicable to the post in the erstwhile State of Mysore. But that contention could not be persisted in nor be relied upon in view of the fact that it is now no longer capable of being disputed that in the erstwhile State of Mysore there were in force, at the time the integration of the State was brought about, some rules notified by the Government by means of an- order bearing No. 6-105'-CRB.l-34-a dated 3rd July, 1934. That these rules were then prevalent is clear from the fact that they were cited and relied upon by this Court for determining certain disputes regarding confirmation in Writ Petn. No. 2243 of 1966 (Mys), Venkataswamy v. State of Mysore and connected cases disposed of by a common order on 27th September, 1968.

For our present purpose, the substance of those rules is that there was functioning in the erstwhile State of Mysore a body called the Central Recruitment Board (occupying the position similar to the one occupied by the Public Service Commission today) and that the mode of making appointments to posts required to be filled by direct recruitment was by the appropriate appointing authority making appointments out of a list of persons selected and arranged in order of merit by the said Central Recruitment Board. It is not the case of the petitioner that he was a person so selected by the Central Recruitment Board and that his appointment was made in accordance with the rules of 1934.

6. The result, therefore, is that the petitioner was a person appointed to a post temporarily but not regularly appointed thereto in accordance with the rules of recruitment applicable thereto at the relevant period. Therefore, by calling him a local candidate, no violence is involved either to language or to law.

7. Before considering the principal arguments on behalf of the petitioner, we must first deal with another well-known concept in service matters, viz., what is called regularisation. That is a process whereby a person not regularly appointed by following the relevant recruitment rules is invested with the status of a person so regularly appointed or recruited. In this regard, there are two processes, -- one is regularisation by the Government in exercise of its executive power and the other is by a person originally irregularly appointed securing the right of appointment by getting selected by the Public Service Commission.

8. In regard to the first matter, there has been in this State what is popularly called the regularisation G. O., -- a Government Order bearing No. GAD 46 SRR 59 dated 22nd September. 1961. It was preceded by another; but the one of 1961, slightly amended or modified, is the order in regard to which there has been judicial interpretation. Two cases dealing with the same are (1) Chandrappa v. State of Mysore decided by a Bench of this Court and reported in (1964) 2 Mys LJ 150 and (2) State of Mysore v. Narayanappa decided by the Supreme Court and reported in : [1967]1SCR128 . The material portion of the said order runs as follows:--

'2 ** ** **

(i) All appointments to Class III Direct Recruitment Posts made by the local appointing authorities, both in the old Mysore area (including Bellary District) and in the other integrating areas up to 31st December, 1959 (inclusive) may be regularised subject to the condition that the candidates were within the prescribed age limits and had the requisite qualifications at the time of their initial appointments;

(ii) The services of local candidates shall be regularised with effect from the date of their appointment, from which their service is continuous provided they were in service on 1st January, 1960 and continue to be in service at the time their services are regularised.

(iii) The local service will count for purposes of leave, pension and increments ..... but not for purposes of seniority; only the service from the date of regularisation of their appointments in the particular department will count for seniority;

(iv) Breaks in service will not be condoned even if such breaks are only for short periods.'

In Chandrappa's case, (1964) 2 Mys LJ 150 this Court pointed out that Clause (ii) of the second paragraph iscontrolled by Clause (iii) thereof and that the two should be read together for ascertaining the exact right acquired by regularisation made under that order. The effect is that whereas a person whose services are regularised is entitled to his local or irregular service counted for purposes of leave, pension and increments, the only service which he could count for the purpose of seniority is the service from the date of regularisation and not the previous local or irregular service.

9. The direct question considered and decided in the case decided by the Supreme Court was the meaning of 'continuous service' and the effect of breaks in it. But the Court examined the general effect and the principles underlying the entire order and expressed itself on that matter as follows:--

'Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959 he must be in service on January 1, 1960 and continue to be in service without break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against others who were recruited properly under the Rules of Recruitment. Under sub-clause (iii), however, if the service is continuous from January 1,1960 to September 22, 1961, such service is to be taken into account for purposes of leave, pension and increments but not for purposes of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise.'

10. The effect of the said order or the general purpose of it was later given legislative sanction by introducing a new Rule numbered 1-A in the Mysore Government Servants Seniority Rules 1957. The said Rule reads:--

'1-A. 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 regularised from any date, his seniority in service shall be determined in accordance with these rules as if he had been appointed regularly as per the rules of recruitment to the post held by him on that day. Explanation. -- In this rule 'Local candidate' shall have the same meaning as in the Mysore Civil Services Rules, 1958.'

11. There are two cases of this Court dealing with the said rule. Inthe case of Pillappa v. State of Mysore, (1967) 2 Mys LJ 40, it was held that the proviso to the rule does not preclude the Government from making an order directing local services to be counted for purposes of leave, pension, increments, and that it regulates the seniority only with reference to the date of regularisation which the Government is free to select. In the case of Venkataiah v. State of Mysore, (1968) 2 Mys LJ 491 - (AIR 1969 Mys 186), it was pointed out that the Government had the competence to regularise the services of local candidates but that regularisation by itself does not amount to confirmation or confer permanency in the appointment.

12. We must now refer to two unreported decisions of this Court. The first was rendered on 15-1-1969 in Writ Petn. No. 1932 of 1966 (Mys), (Srinivasiah v. State of Mysore). The petitioner as well as respondents 3 to 9 in that petition had originally entered Government Service as local candidates. The petitioner's service became regularised by selection through the Public Service Commission with effect from 1st January, 1956 and the services of the said respondents with effect from 6th July, 1956. Those dates were taken for indicating their relative seniority in the Provisional Inter-State Seniority List published in 1967 relating to their department. The contention of the petitioner that he was senior and that the service for purposes of seniority should be counted from the date of regularisation was accepted. The Court observed:--

'The contention thus formulated on behalf of the petitioner finds support from the principles stated by the Supreme Court in : [1967]1SCR128 . The principle stated therein is that a local candidate becomes regular Government servant only from the date on which his services are regularised because his appointment or service till then was irregular, and that the taking into account of such irregular service for the purpose of seniority would result in injustice to persons regularly appointed before the date of his regularisation. The Supreme Court points out that such a result ought not to be permitted.' The decision was followed and applied in another Writ Petn. No. 1869 of 1968 disposed of on 21-3-1969 (Mys).

13. So far as these principles are concerned, we do not think it is any longer possible to contend either that they are not in accordance with law or that they cannot be applied to persons in the position of local candidates, because they are now settled by the decisions not only of the Benches of this Court but also of the Supreme Court.

14. But the argument strongly pressed is that all those cases dealt withthe position obtaining subsequent to the reorganisation of States and that even the definition of 'local candidate' was not available at the time of reorganisation or at any time prior thereto. This argument, in our opinion, if examined in the light of the principles, has no force whatever. Although the principles in those cases were settled in relation to or in connection with rules and orders made after the reorganisation of States it is impossible to contend that they cannot properly apply or should not be applied to persons who have been irregularly appointed, that is to say, appointed without complying with the rules of recruitment applicable to the post in question. As pointed out in Writ Petn. No. 1932 of 1966 (Mys), the essential principle is that until the service is regularised either by an order made by the Government in exercise of its executive power or by the 'person irregularly appointed subsequently getting selected by the Public Service Commission and securing the right of appointment pursuant to such selection, his service is irregular service.

Indeed, appointment itself is purely temporary and confers no right upon him except such as may be expressly stated in the order of appointment. Very often, if not invariably, the order of appointment itself contains a clause that the appointment is purely temporary and is liable to be terminated at any time either without notice or with notice of certain specified length. In certain other cases it is also expressly stated that the appointment under the Order is made temporarily, liable to be terminated without notice, pending selection to the post in question by the Public Service Commission.

15. It follows, therefore, that a, person so irregularly appointed acquires no right as such as would accrue to a regularly appointed Government servant. One of the attributes of regular service is what is called the seniority. Seniority in simple English means a longer life than of another thing or person taken for comparison. In the easel of Government servants, it means 'the length of service'. If the service of one person is longer than that of another, the first named person is called senior to the other. The value of the right of seniority is the right to consideration for promotion to a higher post in case where promotion is made on seniority-cum-merit basis. In such cases, it is undoubted that seniority taken into account is the seniority in the grade immediately below the promotional post or in the grade which is described as the grade from which promotions are to be made. It proceeds upon the basis thatthe comparison for purposes of seniority is between equals or those that are in the same grade or equated grades. It is incongruous to say or even to conceive that seniority is a concept involving comparison between the length of service in one grade and the length of service in another grade. If so, it becomes perfectly clear that it is impossible to compare regular service with irregular service for determining seniority between the regularly appointed Government servants and irregularly appointed Government servants. The very concept of seniority makes it impossible to postulate such a comparison.

16. While preparing the Inter-State Seniority List, it is well known that the first stage is the equation of posts and the second stage is the determination of seniority in equated posts. When the relative seniority of person in equated posts is determined, what is taken into account is the length of service. If the service for purposes of seniority could only be regular service as already pointed out, then, the length of service taken for determining relative seniority in equated posts for purposes of Inter-State Seniority List could only mean the length of regular service. Further, if, as already pointed out, irregular service cannot be equated with regular service, equation of such dissimilar posts for purposes of determining Inter-State Seniority is also impossible.

17. It is no doubt true that the principles agreed upon for purposes of determining Inter-State Seniority require the taking into account of the 'length of continuous service, whether temporary or permanent, in a particular grade excluding periods for which an appointment is held in a purely stop-gap or fortuitous arrangement'. But the temporary service in the said statement of principle does not mean irregular service but service of a person regularly appointed for a stated period or temporarily until the happening of a stated event. For the reasons already stated, it can only mean regular service though temporary. Reliance was however, placed on another unreported decision of this Court D/- 11-12-1968 in Writ Petn. No. 1833 of 1966 (Mys) B. A. Xavier v. Union of India.

In that case the temporary service of a promotee, promoted under Rule 39 of the Madras State Subordinate Services Rules, of a sufficient length of time was held to be service which should be taken into account for purposes of Inter-State Seniority List, because the length of service in the promotional post of the petitioner therein was upon facts held to be neither a purely stop-gap nor a fortuitous arrangement. It will benoticed that the petitioner was a regularly appointed Government servant in the lower grade and had been promoted temporarily under Rule 39 of the Madras State Rules. His service though temporary was regular. The said case therefore does not assist the petitioner in this case to any extent.

18. The next contention is that although integration of services and determination of relative seniority in the integrated services is the exclusive power of the Central Government under Section 115 of the States Reorganisation Act, the State Government alone has the power of determining inter se seniority of Government servants within the State and that therefore, if the State Government makes such a determination of seniority, the same should necessarily get reflected in the Inter-State Seniority list. It is stated that the first provisional inter-State seniority list prepared by the State in this case had in fact placed the petitioner and other local candidates in the same category as that of the regularly appointed First Division Clerks and that therefore the Central Government was bound to respect that determination by the State Government and prepare the Inter-State Seniority List accordingly. Similar argument is also possible if the State Government regularizes services of persons irregularly appointed with retrospective effect from a date or dates anterior to 1st November, 1956.

19. That the State Government has the power of determining inter se seniority in the class or category of its service is undisputed. It has also been held by this Court in Writ Petition No. 1412 of 1961 (Mys) Sayad Rashid Ahmad Sayad Zainuddin Moulve v. State of Mysore, D/- 27-9-1966 that if the parent State had left undecided the question of inter seniority in any class or category of services, the responsibility and the right of determining the said question falls within the executive power under Article 162 of the Constitution, of the new or successor State.

20. This principle, however, cannot be applied in isolation in cases of this nature. It was held by this Court in the earliest of cases dealing with Inter-State Seniority, viz., Jaleel v. State of Mysore, AIR 1961 Mys 210 that the power of integration under Section 115(5) of the States Reorganisation Act is the exclusive power of the Central Government and that the said power is an original power and not a mere appellate or revisional power. It was also pointed out that to that extent the executive power of the State stands attenuated. In other words, so much of the executive power of a State under Article 162 of the Constitution as is necessary to effectIntegration of services consequent upon the reorganisation , of States is taken away from the State Government by the States Reorganization Act and conferred on the Central Government. In the case of Union of India v. P. K. Roy, : (1970)ILLJ633SC , although the Supreme Court left the matter open, it proceeded on the assumption that the power of integration was exclusively the power of the Central Government.

21. Hence, it follows that the executive power of the State under Article 162 of the Constitution cannot be exercised so as to impede or interfere with the exercise of power of integration by the Central Government.

22. It is also clear that for purposes of integration and determination of inter-State seniority, the Central Government has to take note of the facts and the rights existing at the moment immediately before the midnight of 31st October/1st November, 1956. The integration involves only an adjustment of the rights existing at that moment. No rights which did not exist could be conferred by the process of integration on any of these persons in the services which are integrated.

23. When a question of relative seniority inter se between two or more persons in the same class of service within a State was left undetermined by the parent State and the same is decided by the successor State in exercise of its executive power under Article 162 of the Constitution, it must clearly be understood that the successor State does not confer any new right on any one of its servants but is merely determining what those rights were at the moment relevant for integration that is to say, the moment immediately before the midnight of 31st October/1st November, 1956. In the case of a regularisation as explained above, after integration but with retrospective effect from a date anterior to 1st November, 1956, the State Government is not determining pre-existing rights but is for the first time conferring the rights appertaining to regular service on a person who has been irregularly appointed. In such a case, the State Government would in effect be interfering with the power of integration which belongs exclusively to the Central Government, because a person whose irregular service could not be counted for seniority against a person who is regularly appointed is enabled to acquire that right of seniority and occupy a place in the Inter-State Seniority List which he would not have occupied if the actual state of affairs just before integration had been taken into account.

24. We are therefore of the opinion that any decision by a State conferring regularisation with retrospective effect from a date anterior to 1st November, 1956 would be an exercise of its executive power in a manner which impedes or interferes with the Central Government's power of integration, which is not permissible.

25. The third and last contention is one based upon Section 116 of the States Reorganization Act, which reads as follows:--

'116. Provisions as to continuance of Officers in the same posts:--

(1) Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new State or a Union Territory shall, except where by virtue or in consequence of the provisions of this Act such post or office in the other existing State or new State or Union Territory in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or office by the Government of, or other appropriate authority in, such State, or by the Central Government or other appropriate authority in such Union Territory, as the case may be.

(2) Nothing in this section shall be deemed to prevent a competent authority, after the appointed day, from passing in relation to any such person any order affecting his continuance in such post or office.'

26. The argument is that because the first sub-section uses the words 'duly appointed' to such post or office by the successor State, it must be held that by force of the section whatever irregularities there might have been in the appointment are cured and that thereafter the appointment must be regarded as regular and beyond question. But it is conceded, as it has to be, that the section cannot be so read as conferring upon the Government servant affected a status or any right or rights superior to what he occupied or had before integration. It means, therefore, that all that the section does is to substitute the successor Government for the Government of the parent State in the place of the appointing authority; that is to say, after the integration of States and allotment of Government servants, the allottee must, for all purposes, be regarded as' a person appointed by the Government of his parent State. Indeed, the sectional is complementary to sub-section (2) of Section 115 of the States Reorganization Act, according to which every Government servant referred to in Section 116(2) and working in the transferred territoryshall provisionally continue to serve in connection with the affairs of the principal successor State.

27. Hence, Section 116 does not add any strength to the case of the petitioner.

28. We therefore see no reason to hold that the Central Government committed any error in placing the petitioner and other persons similarly situated in a separate category called the local candidates.

29. It has been brought to our notice that quite recently i. e., on 28th May, 1970 the said heading was substituted by a new heading 'temporary, emergency or local'. We do not think that this change makes any difference to the principles already discussed by us.

30. The Writ Petition fails and is dismissed.


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