STATE OF MYSORE & ANR. versus S.V.NARAYANAPPA

STATE OF MYSORE & ANR.

S.V.NARAYANAPPA

Augusl 22, 1966

[K. SUBBA RAO, C. J. A!'o:D J. M. SHF.LAT, JJ.j

Mysore Civil Servia Rules, 1958-Govemmenl Order daied 22nd S•pl. 1961-Loca/ candi®tes entit/.:.>d to have their stri·icts regule1rised under order-Break in servic.e after !st Jan. 1960-Efftct of.

The respon<lent joined Class III service of the Mysore Government in 1958 u local candidate. According tD the Mysore Civil Service Rules, 1958 local candidate meant temporary Oovenunent servant not ap-pointed regularly in accordance with the rule• of recruitment to that s«Vice. On September 22, 1961 tho Mysore Government paS!cd an order whereby under sub-cl. (i) of cl. 2 local candidates appointed befOl'e Dec. 31, 1959 were entitled to have their appoinlments reiUlariscd subject to certain conditions. Acoording to sui>d. (ii) of cl. 2 of the Order rbe services of local candidates were ID be regulasised with effect from the date of their appointmenr, from which their service was continuoua pnnided they were in service on !st January 1960 and continued to be in service at tho time their services were regularised. Sub-clause (iii) aaid that local service would count for purposes of lea....,, pension and increments but not for purposes of seniority, and that only the •enice from the dare of regularisation of the appointment in the particular depanment would count for seniority. Sub.clause (iv) laid down that breaks in ~rviee \\'Ould not be condoned even if such break<> were only fOf' short periods. There ~·as ·break of one day in the rcspondent'i service on March I, 1961. The Mysore Government terminated his 1e1Vice on July 4, 1963. The r .. pondent filed writ pelition before the High Coun claiming that he was entitled to have his appointment regularised under the aforesaid Government Order. The High Court held that the requirements of tho Order were that 1""'11 candidate Wti entitled to its benefit if ho joined service before Dec. 31, 1959 and was In aervice on two dates, namely I st January 1960 and 22nd September 1961. On this view the H.igb Coun allowed the respondent's pelition whereupon the State appealed to this Coun.

HELD : The High Court was wrong in its con~truction of !".Ub-cl. (ii) of cl. 2 of the Order.

On harmonious construction o( sub-cl. (ii) with the other sub-clauses of cl. 2 its proper interpretation would be that in order that the regularisation order may apply to particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January l, 1960 and continue to be in service without any break till the date of the order. Since the service af the respondHt was not continuous during this period be was not entitled to regularisa-tion of his appointment under the Order. (133 OJ

av1L APPELi.ATE JURISDICTION: Civil Appeal No. 1420 of 1966.

Appeal by special leave from the judgment and order dated October 21, 1965 of the Mysore High Court in Writ Petition No. 2173 of 1964.

S. T. Desai, B. R. L. lyenger and B. R. G. K. Achar, for the appellant.

R. B. Datar, Ani/ Kumar Sablok and B. P. Singh, for the respondent.

The Judgment of the Court was delivered by

Shelat, J. This appeal by special leave is against the Judg-ment and Order of the High Court of Mysore quashing the memo-rnndum dated July 4, 1963 whereby the State Government termi-nated the service of the respondent. The only question arising in thls appeal is one of interpretation of the Government Order No. GAD 46 SRR, dated September 22, 1961.

The respondent entered government service as an officiating computor in the Government Press on March I!, 1958 and con-tinued in that post until September I, 1958. He was thereafter appointeil from time to time in officiating capacity in different posts though in the same department until December 3, 1959 when he was appointed as proof examiner. He continued in that post until February 28, 1961. According to the appellants there was break in his service on March I, 1961 as his service was terminated on February 28, 1961 and he was once again appointed on March 2, 1961 as second division clerk (Industrial). He continued in that post until July 4, 1963 when the impugned order terminating his service was passed. The first of March 1961 on which it was said there was break in his service was holiday.

There is no dispute that the respondent was throughout work-ing in officiating capacity and was "local candidate" like several other such employees appointed by direct recruitment by Government instead of regular recruitment by the Public Service Commission of the State as required by the rules of Recruit-ment.

Rule 8(27 A) of the Mysore, Civil Service Rules, 1958 defines "local candidate" as meaning temporary Government servant not appointed regularly in accordance with the Rules of Recruit-ment to that service. Rule l(A) of the Mysore Government Servants' (Seniority) Rules, 1957 provides that those rules do not apply to person appointed as local candidate so long as he is treated as such. Jt further provides that where his appoint-ment is treated as regularised from any date, his seniority in the service shall be determined in accordance with these rules as if he had been appointed regularly in accordance with the Rules of

Recruitment to the post held by him on that day. Since the ap-pointment of local candidates as in the case of the respondent was not made by or through the Public Service Commission as required by the Rules, the State Government with view to re-gularise such appointments passed the said order dated Sep-tember 22, 1961.

The material portion of the said order runs as follows :-

(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 con-dition that the candidates were within the prescribed age limits and had the requisite qualifications at the tiir-: of their initial appointments;

(ii) The seniices 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 I st 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 the Writ Petition filed by the respondent against the im-pugned order dated July 4, 1963 terminating his service the res-pondent raised two points :-{i) that though he was local can-didate appointed from time to time to the aforesaid posts he was entitled to have his service regularised under the said order and (ii) that as he was entitled to be so regularised he was also entitled to the protect'on of Article 311(2) of the Constitution. Conse-quently, his service could not be terminated in the manner it was done by the impugned order. The contention of the State Govern-ment on the other hand was that the order of regularisation ·did not apply to the respondent as his service was not continuous as required by the said order and therefore there was no question of Article 311 being applicable to his case and the State Govern-ment was entitled therefore to terminate his service by the said order of July 4, 1963.

The High Court on an interpretation of the Order dated· September 22, 1961 repelled the Government's contentions and held that the respondent was entitled to have his service regu-larised with effect from the date his service was continuous prior to December 31, 1959 and that being so, the order terminating his service on the erroneous basis that he was temporary govern-· ment servant not entitled to the benefit of the aforesaid regulari-sation order was violative of Article 311. This interpretation meant that the appointment and service of the respondent were not only to be regularised but as result of such regularisation. the respondent had to be treated as permanent servant being entitled to the protection of Article 311 (2). The High Court arrived at this result on the interpretation it gave to the portion· of the said Order which we have set out above. The High Court observed that sub-clause (2) of clause 2 of the said Order provided for the fixation of the date with effect from which the appointment was deemed to have been made permanent and that the second part of that sub-clause laid down the conditions which if satisfied entitled the respondent for regularisation. According to the High Court the necessary conditions for such regularisa-tion were :-(a) that the local candidate should be in service on January 1, 1960 and (b) that he should continue to be in service at the time his service was to be regularised. The High Court further observed that what sub-clause (2) required was "not conti-nuity of service but that the services be continued at the time of !4e regularisation" and that the intention of the Government was not to lay down the condition of continuous service between December 31, 1959 and the date of the said Government order.. It then s>bserved :-

"When the Government order by fiction of the law provided for regularisation of services with effect from date anterior to 31-12-1959, the local candidates who satisfy the qualifications and conditions prescribed by sub-paras (i) and (ii) are deemed to have been perma-nently appointed with effect from date anterior to 31-12-1959. Where the local candidate possesses th~ qualifications prescribed in sub-para (i) of para 2, if his initial appointment was made before 31-12-1959,. he is entitled to have his appointment regularised pro-vided he was in service on !st January 1960 and is con,-tinued in service at the time of the G.0., notwithstand-ing any break in service between 31-12-1959 and 22-9-1961."• The High Court also held that sub-clause (iv) on which reliance· was placed by the Government had reference to break in service before December 31, 1959 and not during the period subsequent to that date. Thus, according to the High Court if local candidate

was initially appointed prior to December 31, 1959 and was in service on January l, 1960 and also on September 22, 1961 he was entitled to the benefit of the regularisation order. So long as he was in service on the two termini his service would have to be regularised irrespective of whether his service during the interval was continuous or not. The High Court also equated regularisation with permanence of service and therefore held that once local candidate's service was regularised he had to be treated as permanent servant.

Before we proceed to consider the construction placed hy the High Court on the provisions of the said order we may men-tion that in the High Court both the parties appear to have pro-ceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisa-tion would not mean that the appointment would have to be con-sidered to be pennanent as an appointment to be permanent waul4 still require confirmation. It seams that on account of this as-sumption on the part of both the parties the High Court equated regularisation with permanence.

We are however not called upon in this appeal to decide and we do not decide that question as Mr. Desai on behalf of the State Government assured us that the Government had come in appeal only in its anxiety to have the order interpreted by this Court as the construction placed by the High Court on the said order, if upheld, would have considerable repurcussions on the pros-pects of other State employees. He also assured us on behalf of the State Government that since the break in the service of the respondent during the material time was only of one day, riz., March I, 1961, assuming there was such break, the government would not do anything to adversely affect his service and would not take away the benefit which he acquired as result of the High Court's judgment, even if we were to disagree with the inter-pretation placed by the High Court on the said Order.

Coming now to the Order, sub-clause (i) of clause 2 pro-vides that all appointments to Class JI1 posts by direct recruitment made up to December 31, 1959 should be regularised provided the candidates satisfied the conditions as to age and qualifications at the time of their initial appointment. The controversy arises on the construction of sub-clause (ii). That sub-clause provides that the services of such candidates shall be regularised with effect from the date of their appointment from which their services are continuous provided they were in service on January I, 1960 and continue to be in service at the time their services are regularised. It is clear from the express words ased in this sub-clause that

continuity of service from January l, 1960 until the date of the order is condition prescribed for regularisation. In other words, candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September 22, 1961. This construc-B tion finds support from sub-clause (iii) which provides that local service prior to regularisation would be counted for the purposes of leave, pension and increments though not for seniority as seni-ority was to be fixed from the length of service calculated from · the date of regularisation. It is manifest that unless the 'local service was continuous such service could not be taken int, ac-count for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous ? The same considera-tion would also apply in the case of pension. It had therefore to be provided as has been done in sub-clause (iv) that break in service would not be condoned for period howsoever short. Continuity of service is thus condition for both sub-clauses 2 and 3. The High Court was therefore in error when it said that sub-clause (iv) did not relate to considerations under sub-clause (ii) or that it had reference only to break in service before De-cember 31, 1959. The High Court was also in error when it con-strued sub-clause (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to Decem-E ber 31, 1959 and that he had to be in service on the two dates, viz., January 1, 1960 and September 22, 1961 and that the service during the interval need not be continuous. If that construction were to be upheld it would resu)t in injustice, for local candidates. not recruited regularly and not iµ continuous service provided they were in service on the two relevant dates, viz., January 1, 1960 and September 22, 1961, would get seniority over candidates. regularly appointed after December 31, 1959 and whose service is continuous. Such result would manifestly be both unjust and improper and could hardly have been contemplated. There-fore the proper interpretation would be that in order that the regularisation order may apply to particular case the local can-didate must be initially appointed prior to December 31, 1959, he must be in service on January 1, 1960 and continue to be in senice without any break till the date of the said order. If his. service is regularised, his semce from the ·date of such regularisa-tion would be counted for seniority as against others who were recruited properly under the Rules of Recruitment. Und.er sub-Clause (iii) however if the service is continuous from January I, 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. For the reasons aforesaid the construction placed by the High Court cannot be sustained.

Though the construction which we are inclined to adopt is in support of the stand faken by the State Government, in view of the assurance given by counsel on behalf of the Government that this construction should not affect the regularisation of the respondent's service and its having been considered by the High Court as permanent, it is not necessary to interfere with the order passed by the High Court. The appeal consequently is dismissed. There will however be no order as to costs.

Appeal dismissed.