Partly allowed

P. C. Patel and Ors. v. Smt. T. H. Pathak and Ors.

Supreme Court22 Sept 19761976 INSC 230 · [1977] 1 S.C.R. 6771976 INSC 230

Case brief

AI extract

What is this about?

Appeal by regularly appointed employees challenging a High Court ruling that clerks appointed temporarily outside the Public Service Commission's purview were regular appointees not requiring regularisation under the 1970 Rules. The Supreme Court upheld that view but set aside the direction fixing seniority from initial appointment dates, leaving the matter to the State Government to re-examine.

What did the court decide?

Appeal dismissed; High Court's operative part modified so seniority fixation is left to the State Government to re-examine; parties left to bear their own costs.

P. C. Patel and Ors. versus Smt. T. H. Pathak and… — Service and Employment | Supreme Court (1977)

677

P. C. PATEL AND ORS.

SMT. T. H. PATHAK AND ORS.

¶6

September 22, ! 976

¶7

¶8

[A.N.RAY,CJ.,M. H.BEGANDP.N.SI·IINGHAL,JJ.J Civil service-Seniority-Irregular recruitme11t-Reg11/arisat io11-A ppoint_ mentsthrough Public Service Commission-Recr111tme11t throu[!h centrnltscd *recruitn1ent sclzenie.* Therespondents Nos.1to10who were Writ "Petitionersinthe High Court, were appointed as clerks between June, 1963 to January, 1967 on temporary basis and were promoted to higher posts thereafter. They c.ontcndedthatatth_c relevant time there wasnoruleororder requiringthatnppomtrnents tothell" posts shall bemadethrough Public Service Commission:TheGujaratGov.ern- ment issuedGujaratNon-Se_cretariat Clerks,. Clerk Typists_andTyptsls(Dtrect Recrnitment Procedure) Rules, 1970. Thereafter, by resolutwn dated 15-4-1971, it was statedthatseniority of the candida·tes who were to be selected for the postsofClerks,Clerktypists and typists shall be determined asif_their allot- mentorappointment wasfrom17-4-1970 trrespective of thequestinwhether theywere in service or not,andthattheirnamsshallb~arranged. in acommon seniority listinorder of merit in accordance with the pnnc1ples Jaid down m the Rules. TheWrit petitioners filed aWritPetition in theGujaratHigh Court feeling aggrieved by the said 1970 Rulesandthe 1971 resolution. .	B c D
TheWrit Petitioners contendedthrutthe Government should bedirect~dto treat their entire service as regularandthattheir seniority should hefixedon the basisofthe datesonwhich theyhadjoined their respectiveposK
TheState Government in its counter affidavit po'ntedoutthatthe Writ Petitioners werenotrecruited through proper channel;thateven though the centralisedrecruitn1entscheme wasin.existence and\Vasappli.:able with efrect fromJanuary, 1963, the Writ Petitioners did notcom~throughti1eemployment exchangesthattheir appointments were by way of a stop-gap arrangement. The State, however, admitted in its affidavitthatthe Writ Petiti0•1or' were not under the purviewoftheGujaratPublic Service Commission at the timeoftheir appointment. TheState contendedthatthe Writ Petitioners were irregularly appointed andthat1970 Rules were framedonhumanitarian considerations to regularise their appointmentsandthat, their seniority couldnotbe countedfrom thedatesoftheir appointment and could be counted only from 1 'lth April, 1970.	E F
TheHighCourtcame totheconclusionthatthe Centralised Recruitment Scheme was not applicable whentheWritPetitioners were appointed andthat the posts were alsonotwithinthepurviewofthe GujaTat Public Service Com- mission until March, 1969. TheHighCourttherefore, heldthatthe appoint- mentsofthepetitioners were regular and were not required to be regularised under the 1970 Rules.Italso heldthatthe State Government had no powerto .issuethecircularunderrnle 30ofthe Rules for allotment and fixationofa seniorityandthatthe instrnctions contained in the resolutionof197 l were not applicable to theWritPetitioners.TheHighCourtallowed the Writ Petition, struck down the seuiority list, and directed the StateGovernmentandthe Direc- torofCivil Supplies totreatthe servicesofthe petitioners as regularfromthe dateswhen they were appointed initially andnotto apply the instructi::Jns. con- tainedintheresolutionof1971tocompute their seniority. Theappellants, who claimed to have been appointed regularly from the begin- ningandwho contendthatthe appointmentsofthewrit petitioners were irregular filed appeal by Special Leave.Theappellants contended : -	G H
1.Thatthe 'initial appointmentoftheWritPetitioners was irregular, being in violationofthe centralise_d recruitment scheme, since the office

SUPREME COURT REPORTS

678

[1977] 1 S.C.R.

of. the Director of Civil Supplies became a part and parcel of the Directorate of Civil Supplies. and that the centralised recruitment scheme was applicable to the recruitment of the Writ Petitioners.

¶19

The appointment to the posts held by the Writ Petitioners were required to be made through Public. Service Commission, but as they were not made through P.S.C. the appointments were irregular.

¶20

¶21

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Dismissing the appeal with a modification,

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HELD: 1. The High Court has rightly negatived both the contentions of the appellants. The State in its affidavit bad admitted that the posts, the Writ Petitioners were not within under the purview of the Public Service Commission at the time of their appointment. The High Court has a-lso rightly held that by describing the ca'dre• in question as a "State Ca!.lre", it could not be said that the modified scheme was made applicable to the Directorate. It is clear from the scheme that it governed the recruitment to the regional offices and not to the offices of the Directorate. [680 C-E, F-G]

¶24

Rule 29 of the 1970 Rules can apply only if the initial appointment was irregular, i.e., if the Public Service· Commission was not consulted when the consultation was required and if the recruitment had not taken place through the Centralised Recruitment Scheme when it was necessary to do so. In the present case Rule 29 cannot apply because the appointments of the Writ Petitioners were regular. [681 G-H]

¶25

The view taken by the High Court is quite justified and does not call D for interference. [681 F]

¶26

The High Court, however, was not justified in directing that the ~eniority should be counted from the respective dates of the appointment of the Writ Petitioners. The High Court ought ta have left the matter to the State Govern-· ment to re-examine the question of fixing the seniority to give effect to their intention of ameliorating the lot of the writ petitioners. [682 A-Bl

¶27

E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1022 of 1975.

¶28

Appeal by Special Leave from the Judgment and Order dated 27-2-75 of the Gujarat High Court in Spl. Civil Appln. No. 767/74.

¶29

S. K. Dholakia and R. C. Bhatia, for the Appellants.

¶30

Hardayal Hardy, K. R. Nagaraja, S. K. Mehta and P. N. Purl, F for Respondents 2, 4, 5, 7-10.

¶31

R. N. Sachthey, for Respondent No. 11.

¶32

The Judgment of the Court was delivered by

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SHINGHAL, J.-This appeal by special leave is directed against a

¶34

G judgment of the Gujarat High Court dated February 28, 1975, in a writ petition filed by Smt. T. H. Pathak and nine others, who are now arrayed as respondent Nos. 1 to 10 and will hereafter be referred to as the writ pe!itioners. They were appointed as clerks or accounts. clerks from June 19, 1963 to January 12, 1967, on a temporary basis, in the office of the Director of Civil Supplies (Accounts), Gujarat, and were promoted to higher posts thereafter. They claimed that there

¶35

H was no rule or prder until March l, 1969, requiring that appointments on their posts shall be made through the Gujarat Public Service Commission, so that their appointments were outside the purview of the Commission and we.re regular. The State Government however made

¶36

P. c. PATEL v. SMT. T' H. PATHAK (Shinghal, J.)

679

•

the Gujarat Non-Secretariat Clerks, Clerk-typists and Typists (Direct Recruitment Procedure) Rules, 1970, hereinafter referred to as the Rules on April 17, 1970, and issued instructions for their enforcement, inclutling instructions. for determintion of their. seni(!rity: That was followed by .a resolutwn dated Apnl 15, 1971, m whtch 1t was stated that the seniority of the candidates who were to be selected for the posts of clerks, clerk-typists and typists under clause (i) (a) of rule 29, shall be determined from April 17, 1970, as if their allotment and/or appointment was _frnm that date irrespetive of the question whethr they were in servtce or not, and that thelf names shall be arranged m a common seniority list in order of merit, in accordance with the principles laid down in the Rules. The writ petitioners felt aggrieved against the prowsions of the Rules and the Government instruction, as well as the seniority list which was published thereunder on Apnl J 8, 1974. They prayed for a direction requiring the authorities concerned to treat their service as regular, for quashing the aforesaid resolution dated April 15, 1971, and for a direction that their seniority may be fixed on the basis of the dates on which they had joined their respective posts. The respondents to the writ petition traversed the contentions of the writ petitioners in their replies. The State Government stated in its reply that the writ petitioners were not recruited through proper channel even though the Centralised Recruitment Scheme was in 'existence and was applicable to their office with effect from January 21, 1963, that they did not come through the employment exchanges, that their appointments were by way of a stop-gap arrangement pending recruitment through Centralised Recruitment Scheme or the Public Service Commission, and that as they were "irregularly appointed" their services could be terminated at any time. It was pleaded that it was for that reason that the Government made a provision in rule 29 of the Rules, on humanitarian considerations, to regularise the appointments in accordance with the provisions of the Rules. It was accordingly contended that the writ petitioners could not claim seniority from the dates ·of their irregular appointments and their service, for purposes of seniority, could only be counted from April 17, 1970.

The High Court took the view that the Centralised Recruitment Scheme was not applicable when the writ petitioners were appointed in the Directorate of Civil Supplies (Accounts) or in the office of the Deputy Director of Civil Supplies (Accounts), and that their posts were also not within the purview of the Gujarat Public Service Commission until March 1, 1969. The High Court therefore held that the appointments of the writ petitioners were regular and were not required to be regularised under rule 29 of the Rules. It held that the State Government had no power ·to issue the circular under rule 30 of the Rules for "allotment" and fixation of seniority of the writ petitioners, and the instructions contained in the resolution dated April 15, 1971 were not applicable to them. It accordingly allowed the writ petition struck down the seniority list dated April 18, 1974, directed the Stat~ Government and the Director of Civil Supplies (Accounts) to treat the service of the writ petitioners as regular from the dates when they were

[1977] 1 S.C.R.

SUPREME COURT REPORTS

¶52

680

¶53

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A appointed initially, not to apply the instructions contained in the resolution dated April 15, 1971 to them, to compute their seniority from the dates of tht~ir respective initial appointments and to fix their seniority afresh on that basis. The appellants, who claim to have been appointed regularly from the very beginning, and challenge the appointments of the writ petitioners as irregular, feel aggrieved, and this is how the present appeal has come up for consideration before us.

¶55

¶56

It has been argued by counsel for the appellants that the initial appointments of the writ petitioners were irregular and the High Court erred in taking the view that rule 29 of the Rules was not applicable to them. This argument has been advanced on the grounds that 1he office of the Director of Civil Supplies (Accounts) became a part and parcel of the Directorate of Civil Supplies and appointments to the posts c to which the writ petitioners were initially appointed were therefore required to be made through the Public Service Commission, and that the Centralised Recruitment Scheme was made applicable to those· appointments in pursuance, at any rate, of the resolution dated July 9, 1964. We find that both these contentions have been examined by the High Court and it has giyen satisfactory reasons for taking the view that this was not so. It wm be enough to say that the Directorat'e D of Civil Suppl~es (Accounts) was not included in appendix B to the Scheme which formed part of the resolution elated November 21, 1960 by which certain posts were brought within the purview of the Public Service Commission. It has in fact been admitted in the a:fficl::ivit of K. K. Joshipura, Under Secretary to the State Government. dated September 4, 1974, that it was "true the office of the D.C.S.(A) was not under the rmrview of the Gujarat Public Service Commission at E the time of the appointment of the petitioners." There is therefore nothing wrong with the view which has prevailed with the High Court that the Directorate did not come und\ir the purview of the Public Service Commission until March 1, 1969.

¶57

As regards the Centralised Recruitment Scheme and the resolution of January 21, 1963, the High Court has again rightly held that the resolution applied to recruitment of clerks in district and regional F offices and as the Directorate of Civil Supplies (Accounts) was not 1 such an office, the Scheme did not apply to it. We havv gone through the other resolution dated July 9, 1964, which modified the Scheme, but here again the High Court has rightly taken the view that merely because of use of the expression "state cadre", it could not be said that the modified scheme was made applicable to the Dirctorate. We have gone' through the whole of the Scheme and we have no doubt that it G governed recruitment to district and regional offi.ces, and there is no justification for the argument that it become applicable for recruitment of clerks in the Directorate of Civil Supplies (Accounts) as well.

¶58

As it is, nothing has been shown to justify the view taken by the State Government that the initial appointments of the writ petitioners were irregular and had to be regularised in accordance with the proH visions of rule 29 of the Rules. The rule provides as follows,-

¶59

"29. Notwithstanding anything contained in these rules the following cases shall be regularised in the manner shown

¶60

·"

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P. c. PATEL v. SMT. T. H. PATHAK (Shinghal, J.) 681

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\ '

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below in relaxation of their upper age, provisions .of Re~ri.:it ment Rules concerned and/or rules for pre-service trammg :inade by Government in this behalf to the extent indicated below :-

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( 1) (a) Persons initially recruited otherwise than through the Gujarat Public Service Commissio!-1, or Cent.ralized Recruitment Scheme, as clerks, clerk-typists or typists in the offices to which the Rules apply, and who have rendered not less than 2 years' continuous service, as clerk or clerk-typist or typist, as the case may be, as on 31s~ Dce1'.1ber 1968 in one or more offices and who are contmumg m Goernment service as clerks, clerk-typists or typists, as the case ma):' be, on the date of this notification or such persons whose names are kept on the Waiting List for provisional appointment for the reason tha_t they had to be discharge~ for want of posts even though they had rendered 2 years· continuous service as on 31st December, 1968 shall be re-quired to appear at the special ,interv_iew an~/or the speial typing test to be held for them for th_eir select1:m for appomtment to the post of clerk, clerk-typist or typist, as the case may be."

¶66

Then follow the other sub-rules with which we are not concerned. The writ petitioners were initially recruited otherwise than through the Gujarat Public Service Commission and the Centralised Recruitment Scheme and they had rendered not less than two years' continuous service as clerk, clerk-typists or typists by December 31, 1968, but, as would appear from the history of their service, it could not be said that they were continuing in Government service as clerks, clerk-typists or typists on April 17, 1970, which wqs the date of the notification of the Rules. The State Government therefore again erred in thinking that their service was governed by rule 29 ( 1) (a). So when the appointments of the writ petitioners were not irregular, and they were not continuing in Government service as clerks, clerk-typists or typists on April 17, J 970, rule 30 of the Rules was also not applicable to them and it was not permissible for the authorities· concerned to determine their allotment and seniority under that rule. The view taken by the High Court is therefore quite justified and does not call for interference.

¶67

The write petitioners had put in severa: years of service, and had received promotions from time to time. Their appointments were however temporary all through. It _appears that the State Government thought of ameliorating their lot for that reason and attempted to do so by making the aforesaid rule 29 o~ the Rules. But, as has been shown, in doing so the State Government laboured unde~ the impression that the initial appointments of the writ petitioners were irregular, and had to be regularised. As this was not a correct premise, and as rule 29 is not really applicable to the writ petitioners for the reasons mentioned above, it would perhaps be advisable for the State Government to re-examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of the writ petitioners. That is however not a matter for this Court to decide. The

( 1977) 1 S.C.R.

SUPREME COURT REPORTS

¶77

682

¶78

.A High Court was therefore not justified in directing that the seniority of the writ petitioners should be computed on the basis that "their services with effect from the respective dates of their joining service as Clerks in the Directorate of Civil Supplies (Accounts) were regular and in accordance with law." As it would have been enough for the High Court to say that the State Government may re-examine the question of fixing the seniority of the writ petitioners and to take appropriate action to ameliorate their lot as temporary employees, the operative part of the impugned judgment of the High Court is modified to this extent. The appeal otherwise fails and is dismissed. In the circumstances of the case, we leave the parties to pay and bear their own costs.

P.H.P.

Appeal dismissed.

P. C. Patel and Ors. v. Smt. T. H. Pathak and Ors.

Case brief

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P. C. Patel and Ors. v. Smt. T. H. Pathak and Ors.

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