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A. P. M. MAYAKUTTY ETC.

v.

937

SECRETARY, PUBLIC SERVICE DEPARTMENT, ETC.

February 8, 1977

A

[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]

B

llllerstate senioritY, in equated posts consequent to the reorganfamion of

.State.~Whether scrvt~es rendered under Rule !O(a)(i)(l) of the Madras State

.and Subo_rd~nate Services Rules would count for the purpose of fixing the inter­

state se'!1or11y-Kerala Government order dated 10-5-63 based 011 the recom­

mendatzon of the Central Government dated 16-2-1963-Va/idity of.

The three appellants, who were appointed as temporary junior engineers in

.the Madras High Way Subordinate Service under mle !O(a)(i) (!) of the C

Madras State and Subordinate Services Rules on 13-6-1950, 6-6-1951 and

.8-6-1951 respectively,

on being selected by the Public

Service Commission and

again appointed to the same posts were· permitted by an order issued under rule

23(a) ibid to commence their probationary period with effect from 15-3-1953,

-4th July, 1954 and 18th July 1954 respectively. On 1-11-1956, on the re­

.organisation of States, they were allotted as junior engineers in the Kerala State

which was formed by .inclusion therein of parts of the States of Madras and

Travancore-Cochin.

For the purpose of fixing the

interstate seniority, several

.orders were passed, from time tOI time, both by the Central Government and D

the Government of Kerala. A provisional integrated gradation list of junior

engineers

was prepared by the

State Government in October 1962 giving the

.appellants ranks therein at serial Nos. 123, 132 and 145 respectively. On a

representation by the employees of the Travancore-Cochin area, the Govern­

ment

of India recommended three alternatives for the acceptance of the Kerala

Government

on 16-2-1963. They were : (!) The Officers allocated

to Kerala

from the former Madras· State may be allowed the benefit of emergency

service towardi seniority in the equated category if such service would have

·been regularised from the date of their emergency appointment and if it would E

have been counted for interstate seniority on November !, 1956 had these

.officers remained in Madras.

(2) The principles. laid down by the

Governmenu

-0f Madras in their order dated July 17, 1957 be accepted and (3) The Govern-

ment

of India would have no objection even if the State Government was to

adopt the rule that interstate seniority would be determined on the basis of the

length

of continuous service in the equated grade subject to the exclusion of

·service rendered in purely stop-gap or emergency arrangements and that on! y

short periods for which appointment was held under such arrangements should

be excluded. The Government

of Kerala passed an order on May

10, 1963 F

adopting the first two alternatives

but not the third. The writ petition filed by

the appellants

in the Kerala High Court challenging he said orders dated

, 10-5-1963 was rejected.

Jn appeal by special leave, the appellants contended :

( 1) The emergency service rendered under Rnle !O(a) (i) (1) of the Rules

.ongbt to be taken into account because snch service can be taken into account

under Rnle 23 (a) ibid (ii) Such service is not liable to be excluded by reason G

~ ··Of the directives issued earlier by the Government of India on 3rd April 1957

and 1st March 1962, (iii)

If

the appellants had remained in Madras, the tem­

porary sernce rendered by them would have been taken into account for fix­

ing their seniority and (iv) Such, service should conn! in view of the grant of

increments

to them from the date of their initial appointments in view of the

temporary service rendered by them having been counted

for the purpose of

eligibility

for promotion to the higher post of Assistant Engineers, they beinJ!

duly qualified to hold the posts of Junior Engineers, they having been permitted

to appear for departmental tests which are open only to the probationers, their H

service books having been opened from the date of their appointmfnt and the

concurrence

of the Public Service Commission having been obtained for conti-

nuing them in service after the expiry

of three months and again after the

.expiry of ooe year of their emergency service.

938 SUPREME COURT REPORTS [1977] 2 s.c.R.

A Dismissing the appeals, the Comt,

B

c

D

E

HEID : ( 1) A fact of fundamental importance which permeates every one

of these considerations is that the appellants were appointed under rule !O(a)

(i)(l) at the Madras State and Subordinate Services Rules. In face of the

proviiiOilll of these rules and the express terms of their appointment, to the

effect, "that appointments were under rule !O(a)(i)(l) purely temporary

neceiiitated on account of, the non-availability of regularly selected candidates,

conferring no claim for future appointment as junior engmeers aad they were

liable to be terminated

at any time without previous

notice", it is clear, that the

appointments were purely as a matter of stop-gap or emergency arrangement ·

and such serrice cannot be taken into account for the purpose of seniority from

the date of their initial appointment.

[941 E, H, 942 A]

(2) Clauses (iii) and (iv) of rule IO(a) reflect significantly on the nature of

the appointment held by the appellants and show that the appellants were

ap­

pointed initially on a uniquely precarious tenure. Such tenures hardly even

count for seniority in any system of service jurisprudence. [942-C-D]

(3) The fact that the appellants were qualified to hold the posts cannot, in

view of clause (iii) of rule lO(a) entitle them to count for the purpose of

seniority the period during which they served in a stop-gap or an emergency

arrangement.

[942 Bl

(4) The contention that if the appellants had remained in Madras their

entire service would have counted for the purpose of seniority

is without any

merit and

one of speculation as to what course the appellants' destiny would

have taken had they remained in Madras. The Government of Madras itself

did not trellt the entire service of the appellants as regular when they were

selected by the Public Service Commission. That parent government undoubt­

edly assigned to them attificial dates for fixing ~he commencement of ~eir pro­

bationary periods but such dates, though antenor to the dates of their actual

selection by the Public Service Commission, were quite subsequent to the dates

of their initial appointment. The services rendered by them under rule IO(a)

(i) ( 1) wer-c treated by the Government which appointed them as a matter of

stop-gap, emergency or fortuitous arrangement. [942 D-G]

(5) Tho concurrence

of the Public

Service Commission. to the continuance

of the appellants in the post filled by them, firs~ after the !lxp1ry ?f three mont~s

and then after the expiry of one year was obtame~ not with a. view to regularis­

ing the appointments· but for the purpose of meetmg the r<:qu!rements of. a pro­

vision under which such concurrence is necessary to obtam 1f an appomtmcn'

made \Tithout selection by the Public Service Commission is required for any

F rea~on to be continued beyond three months or a year. [943 E-F]

G

H

(6) In !he instant case, the initial appointment was not only made without

any reference to the Public Service Commission but the various rules and the

terms of the appointment show that the appellants were appointed purely as a

matter oJ' fortuitous or stop-gap arrangement. Their initial temporary services

cannot therefore be counted for the purpose of seniority.

[943 B-C]

C. P. Dfll/lodaran Nayar v. State of Karn/a [1974] 2 SCR 867, distinguished

and held not applicable.

CIVIL

APPELLATE JURISDICTION : Civil Appeal No. 841 of 1974.

Appeal by Special Leave from! the Judgment and Order dated

3~-~-1970 of the Kerala High Court in Writ Appeal No. 39/70 and

C1v1l Appeal No. 1575 of 1970.

Appeal by Special Le-ave from the Judgment and Order dated

22-12-1969 of the Kerala High C0urt in O.P. No. 211/65,

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A.P.M. MAYAKUTTY v. SECRETARY, P. s. DEPTT. (Chandrachud, J.) 939

V. Sivarama Nair and A. S. Nambiar for the Appellants in both

the Appeals. A

M. C. Bhandare and K. M. K. Nair for Respondent No. 1 in CA

841 and R. 2 in CA 1575/70.

(Mrs.) Shyamla Pappu and Girish Chandra for Respondent No. 1

in CA No. 1575/70.

K. S. Ramamurthi, N. Sudhakaran and P. K. Pillai for Respondent B

No. 45 in

CA 1575/70.

The Judgment of the Court was delivered by

CHANDRACHUD, J.-Since these two appeals involve identical ques­

tions,

we propose to state the facts of one of these only. The decision

in Civil Appeal No. 1575 of

1970'will govern the other appeal.

The three appellants were -appointed as temporary Junior Engineers

in the Madras High Way Subordinate Service under rule

lO(a) (i) (1)

of the Madras State and Subordinate Services Rules. Appellants 1

and 2 were appointed on June 6 and June 8, 1951 respectively while

the

thir_d appellant was •appointed on June 30, 1950. A few years

later they were appointed to the very same posts after selection by

the Public Service Commission and in course of time, orders were

issued under rule

23(a) of the aforesaid rules permitting them to

commence their probation from dates anterior to the dates of their

appointments after selection by the

Public Service Commission but

subsequent to the dates of their initial •appointments under rule

.IO(

a) (i) (1). The first appellant was permitted to commence. his

probationary period

on July 4, 1954, the second on July 18, 1954

and the third ori March 15, 1953.

On November 1, 1956, on the reorganisation of States, appellants

were allotted as Junior Engineers to the Kerala Srate which was

formed by inclusion therein of parts of the States of Madras and Tra­

vancore-Cochin. As in other States, so in Kerala, it became necessary

to

fix rules of

seniority governing employees drawn from different.

States, parts of which were integrated in Kerala. A conference of

Chief Secretaries of various States was held on May 18 and 19, 1956,

to consider problems arising out of reorganisation of States and the

consequent integration of services. Pursuant to the decision taken

in that Conference, the Government of

Kera1'a passed an order on

December 29, 1956 providing that the relative seniority as between

persons drawn from ·different States. and holding posts declared to be

equivalent shall

be determined by considering the length of continuous

service in the equated grade, whether such service

is temporary or

officiating, quasi permanent or permanent. The order, however,

expressly provided

that in the aforesaid determination, the period for

which an appointment

was held

"in a purely stop-gap or emergency

arrangement" was to be excluded. On April 3, 1957 the Govern­

ment of India issued a directive under section 117 of the States Re­

organisation Act stating that it was agreed that in determining the

relative seniority as between two persons holding posts declared as

equivalent to

ea.ch other and drawn from different States the length 12--206SCT /77

c

D

E

F

G

H

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940 SUPREME COURT REPORTS [19771 2 s.c.R..

A of continuous service, whether temporary or persnanent, in the parti­

cular grade should be taken into account, excluding "periods for

wllich an appointment is held in a purely stop-gap or fortuitous

arrangement." On April 2, 1958 the Government of Kerala issued

a clarificatory order stating that for computing length of continuous

service "only short periods for which an appointment was held in

purely stop gap or emergency appointment

will be

excluded." It issued

B another order on August

16, 1961 stating

&at one year of temporary

service

of Junior Engineers allotted from Madras would be excluded

for the purposes

of fixing their interstate seniority. Representations

were made against this order to the Government

of India which direlcted

by an order dated March 1, 1962 that services rendered under pro-

visional or emergency appointments

by the Travancore-Cochin or

~

Madras personnel prior to November 1, 1956 before regularisation -1'-

C of their 'appointments should be taken into account for the purposes

of deciding. interstate seniority, only if such service

is either regu­

larised, or

it is in a time-scale of pay and is reckoned for grant of

increments in the

time-scale. and is continuous.

O'n May 16, 1962

the Government of Kerala passed an order modifying its earlier orders

so

as to conform to the decision taken by the Government of India

on March 1, Consequ'ently, in October 1962 a provisional integ-

D rated

grad_ation list of Junior Engineers was prepared by the

State

Government giving to the appellants ranks therein at serial nos. 145,

137 and 123 respectively.

E

F

G

H

Employees d_rawn froni. the Travancore-Cochin area being evi­

dently

p~_ejudiced by the decision of the Kemla Government made

representations to the Government of India which, on February 16,

1963 recommended three alternatives for the acceptance of Kerala

Government. The first alternative thus recommended

was that the

officers allocated to

Kerala from the former Madras St'ate may be

allowed the benefit of emergency service towards seniority in the

equated category if such service would

h'ave been regularised from

the date of their emergency appointment and if it would have been

counted for interstate seniority on November 1, 1956, had these

officers remained in

M'adras. The second alternative was that the

principles laid down by the Government of Madras in their order

dated July 17, 1957 be accepted. By the third alternative it

was

stated that the Government of India would have no objection even

if the State Government was to adopt the rule that interstate seniority

would be determined on the basis of the length of continuous service

in the

equated grade subject to the exclusion of service rendered in

purely stop-gap or emergency arrangements and that only short

periods for which appointment

was held under such arrangements

should be excluded.

On May 10, 1963 the Government of Kerala

passed, an order adopting the first two alternatives but not the third.

The appellants thereafter field a writ petition in the Kerala High

Court which wa~ disposed of in December 1964 by directing them to

·file representations to the Government of India on the basis of a certain

decision rendered by the High Court earlier. The appellants accor­

dingly made representations and on those being rejected, they filed a

writ petition in the High Court in August 1965. That writ petition

having been dismissed, they have

filed this appeal by

SIJecial leave ..

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A.P.M. MAYAKUTTY v. SECRETARY, P. s. DEPTT. (Chandrachud, ].) 941

The question which arises for decision is whether the serviCes

rendilred by the appellants under rule lO(a) (i) (1) of the Madras State

and Subordinate Services Rules must be taken into account for the pur-

pose of

fixing their seniority in the service of the Kerala Government

as from November

1, 1956. It is urged on

behalf of the appellants

th•at the aforesaid service ought to be taken into account because

such service can be taken into account under rule 23, ~econdly be­

cause such service is not liable to be excluded by reason of the

directives issued earlier by the Government of India and thirdly

because if the appellants had remained in Madras, the temporary

service rendered by them would have been taken into account for

fixing. their seniority. Counsel for the appellants says that they were

granted increments from the date of their initial appointments, that

the temporary service rendered by them was counted for the purpose

of eligibility for promotion to the higher post of Assistant Engineers,

that they were duly qualified to hold the post of Junior Engineei:s,

that they were entitled and permitted to appear for departmental tests

which are open only to the probationers, that their service Qooks were

opened from the data of their initial appointments, and that the con­

currence of the Public Service Commission was obtained for conti-

nuing them in service after the expiry of three months and then again

after the expiry of one year. These facts and circumstances, accord­

ing to the appellants, would justify the counting of temporary service

rendered by them for the purpose of fixing their seniority.

A

B

c

D

Having given every consideratio11 to these matters we think it

impossible to accept the appeal. A fact of fundamental importance

which permeates every one of these considerations

is that the appel-

lants were

appointed under ru)e lO(a) (i) (1) of the Madras State E

and Subordinate Services Rules which runs thus :

"10. Temporary appointments.-(a) (i) (1) Where it is

necessary in the public interest owing to an emergency which

has arisen to

fill immediately a vacancy in a post borne on

the cadre of a service, class or category and there would

be

undue delay in making .such appointment in accordance

with these rules and the Special Rules, the appointing

authority may temporarily appoint a person, otherwise than

in accordance with the said rules."

This provision contemplates the making of temporary appointments

when it

is necessary in the .public interest to do so owing to an emer­

gency which has arisen for filling a vacancy immediately.

Such ap­

pointments, in terms, are permitted to made otherwise than in accor­

dance with the rules. The letters of appointment issued to the appel­

lants mention expressely tha·t they were appointed under rule lO(a)

(i )( 1), that the appointments were "purely temporary necessitated

on account of the non-availability of regularly selected candidates con­

ferring no claim for future appointmerit

as Junior Engineers .... and

that

the appointment is liable to be terminated at any time .without

previous notice." In face of the provisions of the rule and the terms

of the appointment it seems

to us clear that the appellants were appoin­

ted purely

as a matter of stop-gap or emergency arrangement.

Since

F

G

H

942 SUPREME COURT REPORTS [1977] 2 s.c.R.

A such service cannot be t•aken into account for purposes of seniority,

the appellants cannot contend that the entire service rendered by

them from the date of their initial appointment must count for pur­

poses of seniority.

B

c

D

E

F

G

H

.

Clause (iii) of rule. lO(a) makes this position clearer by provid­

mg that a person appomted under clause

(i) shall, whether or not

he possesses the qualifications prescribed for the service, be

repl'aced

as soon as possible by a member of the service or an approved candi-

date qualified to hold the post under the relevant rules. The fact

that the appellants were qualified

to hold the posts cannot, therefore,

entitle

them to count for: the purposes of seniority the period during

which they served ·in a stop-gap or emergency arrangement. Clause

(v) of rule lO(a) provides that a person appointed under clause (i)

shall not be regarded

as a probationer, that he is not entitled by

reason only of such appointment to any preferential claim to future

appointment to the service

•and that the services shall be liable to

be terminated at any time without notice and without assigning any

reason. These provisions reflect significantly on the nature

of the

appointment held by the appellants and show that the appellants

wete appointed initially on

•a uniquely precarious tenure. Such tenures

hardly ever count for seniority in any system of service jurispru­

dence.

It is now only necessary to consider the appellant's argument that

had they remained

in_ ¥adras, their entire service would have counted

for purposes

of seniority. In support of this argument reliance was

placed on the correspondence between the Governments of

Keral'a

and Madras, but neither that correspondence nor a certain order dated

June 11, 1960, which is at Ex. P-17 in the record, can avail the

appellants.

In a way of saying, the proof of pudding is in the eating.

It is needless to

specurate as to what course the appellants' destiny

would have taken had they remained

in Madras, because the Govern­

ment

of Madras itself did not treat the entire service of the appellants

as regular when they were selected by the

Public Service Commission.

That parent government undoubtedly assigned to them artificial dates

for fixing the commencement of their probationary periods but such

dates, though anterior to the dates of their actual selection by the

Public Service Commission, were quite subsequent to the dates of their

initial appointment. As stated earlier, the appellants were •appointed

initially in June 1951 and June 1950, but the Government of Maaras,

prior to the reorganisation of the States, had directed that their pro­

bationary periods should

be deemed to commence in July 1954 and

March 1953. This shows

th•at the services rendered by the appel­

lants under rule lO(a) (i) (1) were treated by the Government which

appointed them

as a matter of stop-gap, emergency or fortuitous

arrangement.

The decision

in C.

P. Damodaran Nayar v. State of Kerala(I)

on which the -appellants' counsel has placed reliance for showing that

temporary service of the kind rendered initially by the appellants can

(I) [1974] 2

S.C.R. 867.

+

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A.P.M. MAYAKUTTY v. SECRETARY, P. s. DEPTT. (Cha11drachud, !.) 943

be counted for the purposes of seniority has no application to the

instant case. One of the appellants in that case was selected as a

District Munsif by the Madras Public Service Commission and was

posted as such on May 26, 1951. He was in continuous service in

than post since his appointment but on being allotted to the State of

Kerala on November

1, 1956 his seniority was reckoned from

Octo­

ber 6, 1951 on the footing "that the said date was assigned to him

as the date of conunencement of his continuous service. Dealing

with the appeal arising out of the dismissal of his writ petition, this

Court held that the service rendered by the appellant after his initial

appointment

was neither emergency service nor was it a purely stop

gap or fortuitous arrangement. The distinguishing feature of

that

case, which is highlighted in the judgment of the Court, is that the

appellant therein

was

"appointed in a regular manner through the

Public Service Commission" and therefore his appointment could not

"by any stretch of imagination" be described as having been made to

fill a purely stop-gap or fortuitous vacuum (p. 876). In our case

the initial appointment

was not only made without any reference to

the

Public Service Commission but the various rules and the terms

of the appellants' appointment to which

we have

dmwn attention show

that the appellants were appointed purely

as a matter of fortuitous

or stop-gap arrangement. The concurrence of the

Public Service

Commission to the continuance of the appellants in the posts

filled by

them, first after the expiry of three months

and then after the i;;xpiry

of one year, was obtained not with a view to regularising the appoint­

ments since their inception but for the purpose of meeting the require­

ments

of a provision under which such concurrence is necessary to

obtain if an appointment made without selection by the

Public

Service Commission is required for any reason to be continued beyond

three months or a year.

For these reasons

we confirm the judgment of the High Court

and dismiss this appeal. There will be no order as to costs.

Civil Appeal No.

841 of 1974 will also stand dismissed but

with­

out an order of costs.

S.R.

Appeals dismissed.

A

B

c

D

E

F