Skip to content


R.N. Nanjundappa and ors. Vs. T. Thimmiah and ors. - Court Judgment

LegalCrystal Citation
Overruled ByR.N. Nanjundappa Vs. T. Thimmiah and Anr. Dated:08.12.1971
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 473, 482, 497, 567 and 1152 of 1967
Judge
Reported inAIR1969Kant208; AIR1969Mys208; (1969)1MysLJ22
ActsMysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1967; Constitution of India - Articles 14, 16 and 309; Mysore State Civil Services (General Recruitment) Rules, 1957 - Rule 16; Mysore Government Servant Seniority Rules, 1957 - Rule 1-A; Mysore Absorption of Instructors and Assistant Instructors in Tailoring Rules, 1965 - Rule 2
AppellantR.N. Nanjundappa and ors.
RespondentT. Thimmiah and ors.
Excerpt:
.....application for bringing the legal representatives of the deceased respondent having not been made within 90 days, there is a delay in making this application and therefore, unless the delay is condoned the application for bringing the legal representatives on record cannot be entertained. liberty given to make an application for condonation. - union of india, which is relied on by the high court special government pleader, the supreme court observes that :it is well recognised that the government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate. it seems surprising that government should have recommended as many as twenty-four names and the commission should have approved of all those names..........under a notification dated 9-2-1967 which reads as follows:government of mysoreno. ed 91 dgo 58 mysore government secretariatvidhana soudhabangalore dt. 9-2-1967magha 20 s. e. 1888notificationin exercise of the powers conferred by the proviso to article 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, 1967. 2. provisions relating to regularisation of appointment of principal, school of mines oorgaum, kolar gold fields: notwithstanding any rule made under the proviso to article 309 of the constitution of india, or any other rules or order in force at.....
Judgment:
Gopivallabha Iyengar, 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 Article 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 9-2-1967 which reads as follows:

GOVERNMENT OF MYSORE

No. ED 91 DGO 58

Mysore Government Secretariat

Vidhana Soudha

Bangalore dt. 9-2-1967

Magha 20 S. E. 1888

NOTIFICATION

In exercise of the powers conferred by the proviso to article 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, 1967.

2. Provisions relating to regularisation of appointment of Principal, School of Mines Oorgaum, Kolar Gold Fields: Notwithstanding any rule made under the proviso to article 309 of the Constitution of India, or any other rules or order in force at any time, Dr. T. Thimmiah, B.Sc. (Hons) Ph. D. (Lond) F. G. S. shall be deemed to have been regularly appointed as Principal School of Mines, Oorgaum, Kolar Gold Fields, with effect from 15-2-1958.

By order and in the name of the Governor of Mysore

Sd/ S. N. Sreenath

Under Secretary to Govt.

Education Deptt.

This document is marked Exhibit 'F' in W. P. No. 473/1967 and will be referred to as Exhibit 'F' hereafter. Dr. T. Thimmiah 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 W. P. 473/ 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 W. P. 482/1967 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 W. P. No. 497/1967 is now posted in additional charge of Joint Director of Technical Education, Bangalore.

5. The petitioner in W. P. No. 567/1967 is a graduate of the Mysore University in Civil Engineering and is at present the Principal of the Polytechnic, Hasan.

6. The petitioner in W. P. No. 1152/1967 is also a graduate of 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 they 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 5-7-1967 (marked as Enclosure I) the Government of Mysore ordered the establishment of a School of Mines K.G.F. Oorgaum. 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 24-19-7-57 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 17-8-1957 (marked Enclosure II) the Government of Mysore accorded sanction to the above proposal of the Director of Technical Education. It was further directed 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 5-7-1967. One Mr. Issacson a Mining Engineer of the Kolar Gold Fields was also appointed as the Principal of the School as a part time basis on an allowance of Rs. 200/- per mensem. Mr. Issacson continued as Principal till 15-2-1958. Thereafter the respondent was doing the duties of the Principal. On 25-9-1958 the Government issued a Notification appointing the respondent temporarily as Officiating Principal, School of Mines, K. G. F. with effect from 22nd 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 15-2-1958, when Mr. 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 Mr. Issacson and that the respondent has performed all the duties of the post of Principal from 15-2-1958, as the Permanent Principal was on leave.

Thereafter, the Government of Mysore issued a Notification dated 3rd April 1959 (marked Enclosure V) modifying the Notification dated 25th September 1958 and appointing the respondent temporarily as Officiating Principal, School of Mines K. G. F. with effect from 15th February 1958 until further orders.

9. It may here be mentioned that the petitioner is W. P. No. 473/1967 filed a W. P. No. 185/1962 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, K. G. F. as illegal and void.

The petitioner also sought for a writ of Mandamus to be issued to the State to advertise the post of Principal of Oorgaum School for appointment by itself or through the Public Service Commission. This Writ Petition was dismissed on 1-11-1963 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 II 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 finalised, would be applicable only to appointments to be made after the date of publication in the gazette. The matter of regularisation of the appointment of Dr. T. Thimmiah in the post was under consideration of Government and the Public Service Commission had agreed to the regularisation. 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 regularisation of the respondent's appointment will have to be considered separately if and when the appointment will have to be considered separately if and when the appointment is regularised. 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 25th September 1958, as modified by the Government Order dated 3rd April 1959 was void. None of the petitioners in the other connected petitions has challenged the validity of the above Notifications.

By virtue of the impugned Rules dated 9-2-1967 (marked Exhibit F), the appointment of the respondent has been regularised with effect from 15-2-1958. This Rule in effect in identical terms with the Government Order dated 3rd 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 regularised. 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 regularise the appointment by making a rule in exercise of his powers under Articles 309 of the Constitution. The High Court Special Government Pleader submits that an appointment to a civil post can be made in three ways; on is by promotion; the second is by direct recruitment through the Public Service Commission and the third is by regularising the appointment which has been made initially irregularly. He circumscribes his argument by stating that the power to regularise can be exercise if there has been a long lapse of time after such appointment and there is no violation of the provisions of Articles 14 and 16 of the Constitution.

It is also submitted by him that there being no rule for regularisation 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 1-A of the Mysore Government Servant Seniority Rules, 1957 which reads as follows:

'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 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 regularise an appointment and if thought fit with effect from any particular date.

12. It must also be noticed that the vires of Rule 1-A not being attacked, the inference that we can draw is that regularisation is permissible. As pointed out by one of the petitioners, it is true that Rule 1-A comes under the Mysore Government Servant Seniority Rules, 1957, but it does not preclude us from drawing the inference that we have drawn as indicated above.

In : (1964)ILLJ752SC , Champaklal v. Union of India, which is relied on by the High Court Special Government Pleader, the Supreme Court observes that :

'It is well recognised 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 service 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 connection 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 reported in 1967 (2) Mys LJ 40, L. Pillappa v. State of Mysore, which proceeds on the ground that it is permissible to regularise an appointment and also fix a date from which such appointment becomes regularised. This is what has been done under the impugned rule, Exhibit F. In : [1967]1SCR128 , State of Mysore v. S. V. Narayanappa, also it is recognised that appointments made by the State can be regularised.

In W. P. No. 2296 of 1965 : (AIR 1969 Mys 59), 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 Article 309 of the Constitution made Rules called 'The Mysore Absorption of Instructors and Assistant Instructors in Tailoring Rules, 1965' which was published on 29-5-1965. 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 (i) the persons mentioned in column of the schedule who were holding the posts mentioned in the corresponding entry in column 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 column No. 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 regularise the appointment subject to the condition already referred to.

Our attention is also invited to a recent decision of this Court in W. P. Nos. 858 and 913 of 1967 (Mys). The appointments and 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 College 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 regularised by a Rule issued under Article 309 of the Constitution of India. The question that came up for consideration before the Court was if the Government had no competence for regularisation of the local candidates. It was contended that the regularisation is violative of Articles 14 and 16 of the Constitution.

The court upheld the order of regularisation observing that:

'The executive power of the State extends to all matters relating to the State Public Services, and the power to regularise 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 regularise 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 regularisation 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 matter at a later stage.

13. It was pointed out by the counsel for the petitioners that the impugned order Exhibit F refers to a single person. It was contended that a rule under Article 309 can apply only to a class and it cannot be made in respect of a single individual. In support of this contention, the learned counsel for the petitioners relied on the decision of the Supreme Court reported in (1967) 2 An. W. R. (SC) 44 : (AIR 1967 SC 1305), D. Sadasiva Reddi v. Chancellor, Osmania University. 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 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 of 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 WP No. 2296 of 1965 : (AIR 1969 Mys 59); WP Nos. 858 and 913 of 1967 (Mys). It was not disputed that the settled view of the Supreme Court is 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, Oorgaum K. G. F. in accordance with the Cadre and Recruitment Rules issued on 5th May 1964. In the relevant Cadre and recruitment Rules it is laid down that the post of Principal, School of Mines, K. G. F. is to be filled up permanently from the cadre of Heads of Section 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, K. G. F. 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 regularised with effect from 15-2-58, 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. (After considering the circumstances under which the appointment was made his Lordship proceeded).

Scrutinising 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 thing 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 15-2-1958 continuously upto the date of Exhibit F, viz. 9-2-1967, discharging his duties satisfactorily and that he holds high academic qualifications in Geology, it appears to us that the regularisation of the appointment of the respondent as Principal, School of Mines, Oorgaum with effect from 15-2-1958 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 it s executive power to make the temporary appointment and subsequently regularise the same. We are aware that if the regularisation 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 : [1965]1SCR360 , Channabasavaiah v. State of Mysore, 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 them did not rank as others they had rejected. Such a delaying with the public appointments is likely to create a feeling of distrust in the working of the Public Service Commission which is intended to 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 and equal protection before the law have any meaning and if our public institutions are to inspite that confidence which is expected of them we should be failing in our duty if we did not, even at the cost of considerable 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.'

The 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 deputation basis, when he was appointed on 17-8-1957 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 8th 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 regularised 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 Reddy, 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 Exhibits A and B, the Notification dated 25th September 1958 and 3rd April 1959 as they were not even qualified to seek the appointment even under the 1964 Cadre and recruitment Rules. It is necessary 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 Exhibits A and B and not having done so far very nearly 10 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 Exhibit 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 Art. 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 regularised. It is only under exceptional circumstances that regularisations could be resorted to and even that could be done only if the appointment of the local candidates ins not discriminatory or made without giving equal opportunity as required under Article 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 regularising 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.

22. Petitions dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //