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PETITIONER: STATE OF ORISSA ETC.

       Vs.

RESPONDENT: ARUN KUMAR PATNAIK & ANR. ETC.

DATE OF JUDGMENT15/04/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. KRISHNAIYER, V.R. UNTWALIA, N.L.

CITATION:  1976 AIR 1639            1976 SCR   59  1976 SCC  (3) 579

ACT:      Orissa Service  of Engineers  Rules, 1941, r. 19(a) and (b)-Scope of-Temporary  appointment on  contract  basis,  if could be  treated as temporary appointment for absorption in regular cadre.      Constitution  of   India,  1950,   Article  226-Service matters-Exercise of  jurisdiction by  High Court  after long delays of  12 years  in abject  disregard of consequences to service personnel-Propriety.

HEADNOTE:      In December,  1958,  the  appellant  was  appointed  by direct  recruitment  as  ’temporary  Assistant  Engineer  on contract basis’  for a  period of  three years’  and he took charge  on   January  19,  1959.  On  March  14,  1962,  the Government, after  consulting the  Public Service Commission and obtaining  its concurrence  passed an order regularising the appellant’s  service by  absorbing him  into the regular cadre of  an Assistant Engineer retrospectively from Jan 19, 1959, though temporarily. On Nov. 15, 1968, he was confirmed as Assistant  Engineer with  effect from  Feb. 27,  1961; in 1969, he  was confirmed as an Executive Engineer with effect from  Dec.  2,  1967;  and  in  1973,  he  was  promoted  as Superintending Engineer.  The respondent was appointed, also by direct  recruitment, on  provisional basis  on April  14, 1960 to  act as  temporary Assistant  Engineer. On  Nov. 15, 1968, he  was also  confirmed as Assistant Engineer but with effect from  May 2,  1962; and  in 1970, he was confirmed as Executive Engineer  with effect  from December  2, 1967. The respondent challenged  the appointment  of the  appellant as Assistant Engineer and his subsequent promotions and claimed seniority  over  him.  The  High  Court  quashed  the  order absorbing the  appellant into  the  regular  cadre  and  the subsequent promotions, holding the absorption to be contrary to the  Orissa Service  of Engineers  Rules, 1941, and hence invalid.      Allowing the appeal to this Court, ^      HELD: (1) By r. 6 of the Rules, recruitment to the rank of Assistant  Engineers can  be made  directly in compliance with rr.  8 to  15. The  appellant satisfied everyone of the

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qualifications prescribed by these rules and was selected by the Public  Service Commission in accordance with the rules. He was  recommended by  the Public Service Commission, under r. 13  and the  recommendation was  accepted by the Governor under r.  15.  He  was  thereafter  appointed  as  temporary Assistant Engineer  on contract  basic. But  his appointment was, in  terms, on  a temporary  basis and  the fact that he held his post on contract did not make his tenure other than temporary. The  subsequent course  of his career, within the contractual period itself, shows that he was granted all the facilities and  privileges which  are available to employees in the  regular cadre,  temporary or  permanent,  which  are generally not  available to  contractual employees.  He drew the same  pay as  any other employee in the regular cadre of Assistant Engineers  and he  was fitted  into the  same  pay scale. He  drew no  special benefits by reason of being on a contractual basis. [64 DG; 65 B-C]      (2)  Under   r.  19(a),  persons  appointed  by  direct recruitment are  required to  be on probation for two years, and under  r. 19(b),  notwithstanding anything  in cl.  (a), when a  temporary  Assistant  Engineer  is  selected  for  a permanent appointment  to the  service, the whole or part of the period  of his  temporary service  shall, if approved by the  Governor,   count  towards  the  prescribed  period  of probation. In  the present case, what the Government did was to count  the appellant’s temporary service from January 19, 1959 to March 14, 1962, as it was entitled to do towards his probationary period. The 60 State Government  selected him  for permanent appointment as an Assistant  Engineer and before doing so also obtained the concurrence of the Public Service Commission. [65 F-G; 64 F]      (3)  The   appellant’s  appointment   as  an  Assistant Engineer on  a temporary  basis was thus made on January 19, 1959, whereas  the respondent’s  appointment to act was made on April  14,  1960.  All  along  their  respective  service careers  extending   over  13   years,  the   appellant  was recognised as senior. [66 C]      Narayan Chandra  Parida v.  State of  Orissa and I.L.R. [1971] Cuttack 857, distinguished.      (4) The respondent is guilty of laches. The appellant’s appointment was  gazetted on March 14, 1962. On November 15, 1968, the  appellant and  the respondent  were confirmed  as Assistant Engineers  by a  common Gazette Notification which showed the appellant’s confirmation as on February 27, 1961, and that  of the respondent as on May 2, 1962. And yet, till May 29,  1973, when the writ petitions were file in the High Court,  the   respondent  did   nothing  except  to  file  a representation  to  the  Government  in  June,  1970  and  a memorial to  the Governor  in April,  1973. The  High  Court should not  have exercised its extraordinary jurisdiction in favour of the respondent who was unmindful of his rights for 12 years  and in  utter disregard  of consequences  to other service personnel.  In June,  1974, the High Court set aside an appointment  of March,  1962, of  a person  who  had,  in meantime, risen  to the rank of Superintending Engineer. [66 D-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeals Nos. 1739 to 1742 of 1974.      (Appeals by  special leave  from the judgment and order dated the  10-6-1974 of  the Orissa High Court at Cuttack in

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O.J.C. Nos. 462 and 463 of 1973).      G. Rath,  Advocate General,  Orissa, Gobind  Das and B. Parthasarathi, for  the appellants  and respondent-2  in CAs 1739-41/74.      V. S. Desai and Vinoo Bhagat, for respondent No. 1.      The Judgment of the Court was delivered by      CHANDRACHUD, J.  This is  a group  of 4 appeals arising out of  a judgment  dated June 10, 1974 of the High Court of Orissa. Civil  Appeals Nos.  1739 and  1740 are filed by the State of  Orissa while  Civil Appeals Nos. 1741 and 1742 are filed by  one T. C. Krishna Moorthy. Two writ petitions were filed in  the Orissa  High Court,  one by Arun Kumar Patnaik and the other by Niranjan Mishra for quashing certain orders and notifications  issued by  the Government  of  Orissa  in regard to  Krishna Moorthy’s  appointment  as  an  Assistant Engineer and  his subsequent  promotions  to  higher  posts. Patnaik and  Mishra challenged Krishna Moorthy’s appointment and prayed  that in  any event  they ought  to  be  accorded seniority over him.      By an order dated December 11, 1958 Krishna Moorthy and two others  were appointed as "temporary Assistant Engineers on contract basis for a period of 3 years". The appointments were made by direct recruitment on the recommendation of the Public Service Com- 61 mission which  held a  test and  a viva  voce examination in accordance with the Orissa Service of Engineers Rules, 1941. Krishna Moorthy took charge of the post on January 19, 1959. On September  13, 1960  which was during the currency of the contractual period  of 3  years, the  Government  of  Orissa informed him  that the  question of  absorbing  him  in  the regular establishment  of the  State’s  Engineering  Service will be  taken up  for consideration  on his completion of 2 years of service and in case he was absorbed, his absorption would be  given retrospective  effect from  the date  of his first appointment  as an  Assistant Engineer. The Government of orissa thereafter consulted the Public Service Commission and after  obtaining its  concurrence, it  passed  an  order dated March  14, 1962 regularising Krishna Moorthy’s service by absorbing  him in  the  regular  cadre  of  an  Assistant Engineer retrospectively  from January  19, 1959. That order is Annexure  II to the Writ Petitions. On September 21, 1962 Krishna  Moorthy  was  promoted  as  an  Executive  Engineer (Annexure III);  on November 15, 1968 he was confirmed as an Assistant  Engineer  with  effect  from  February  27,  1961 (Annexure IV);  on May  12, 1969  he  was  confirmed  as  an Executive Engineer with effect from December 2, 1967; and on November 23,  1973  he  was  promoted  as  a  Superintending Engineer (Annexure  VII), Patnaik  and Mishra challenged the validity of  the orders  at Annexures II, III, IV and VII to the writ petitions.      These are  the relevant  dates  in  regard  to  Krishna Moorthy’s appointment.  In regard  to  the  appointments  of Patnaik and Mishra, it would be enough to recapitulate facts relating to  Patnaik’s appointment,  because for the purpose of deciding  these appeals  there is  no distinction between those facts  and the  facts of  Mishra’s case.  On April 14, 1960 Patnaik  was appointed  "on provisional basis to act as temporary Assistant  Engineer" by  direct recruitment, which was about  a year  and  4  months  after  Krishna  Moorthy’s initial appointment  as a  temporary Assistant  Engineer  on contract basis.  On November  15, 1968 Patnaik was confirmed as an  Assistant Engineer  with effect from May 2, 1962. (It may be  recalled that  by an  order  of  even  date  Krishna Moorthy was  confirmed as  an Assistant Engineer with effect

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from February  27, 1961.)  On October  31, 1970  Patnaik was confirmed as an Executive Engineer with effect from December 2, 1967.  (It may  be  recalled  that  Krishna  Moorthy  was confirmed as an Executive Engineer with effect from the same date viz., December 2, 1967 though by an earlier order dated May 12, 1969).      On June  19, 1970 Patnaik filed a representation to the State Government claiming seniority over Krishna Moorthy. On April 16,  1973 Patnaik  filed a memorial to the Governor of Orissa for  restoration of  his seniority.  On May  29, 1973 Patnaik and  Mishra filed  writ petitions  in the High Court questioning the  validity of Krishna Moorthy’s absorption in the regular cadre by the order of March 14, 1962 as also his subsequent promotions  and seniority.  By a  Judgment  dated June 10,  1974 the  High Court  declared  Krishna  Moorthy’s absorption by  the notification of March 14, 1962 as invalid and quashed  the notifications  at Annexures II, III, IV and VII, thereby 62 also rendering  his promotions  as  Executive  Engineer  and Superintending Engineer and his confirmation as an Assistant Engineer illegal.  Krishna Moorthy’s seniority fell with his appointment. The correctness of the High Court’s judgment is challenged in these appeals by special leave.      In exercise  of the  powers conferred  by clause (b) of sub-sections (1) and (2) of section 241 of the Government of India Act,  1935, the  Governor of Orissa made rules for the regulation of  recruitment to and the conditions of service, pay,  allowances  and  pension  of  the  Orissa  Service  of Engineers. These  rules are  called the  Orissa  Service  of Engineers’ Rules,  1941. Rule  3 (b)  defines a  "Member  of Service" to  mean a  servant of  the Crown  (now  the  State Government), appointed  in a  substantive capacity under the provisions of  the Rules  to a  post in  the  cadre  of  the service. The  sanctioned strength  of this  Service consists under  Rule  4  of  one  Chief  Engineer,  2  Superintending Engineers, 7 Executive Engineers, 20 Assistant Engineers and 4 Assistant Engineers in leave and training reserve. By rule 5 all first appointments to the service are ordinarily to be made to  the rank  of an Assistant Engineer. Appointments to the rank  of Chief  Engineer,  Superintending  Engineer  and Executive Engineer are to be made ordinarily by the Governor after consultation  with the  Public Service  Commission  by promotion from  the next  lower post.  Promotion is  made by selection on  the basis of merit and seniority but seniority of itself  can confer no claim to promotion. Rule 6 provides that recruitment to the rank of Assistant Engineers shall be made partly by direct recruitment in accordance with rules 8 to 15 and partly by promotion in accordance with rules 16 to 18. Rule  8 prescribes  basic qualifications for appointment to any  post in the Orissa Service of Engineers while Rule 9 prescribes further  qualifications for appointment by direct recruitment. Rule  10 requires the Public Service Commission to announce  the number  of vacancies to be filled by direct appointment  and  to  invite  applications  from  candidates eligible for  appointment to  the service. Under the proviso to rule  10, temporary  Assistant Engineers appointed on the recommendation of  the Public  Service  Commission  are  not required to  compete with  other  candidates  for  permanent appointments when  such vacancies arise. By the same proviso temporary Assistant Engineers can, without further reference to the  Public Service Commission, be appointed to permanent posts according  to their  seniority and  record of  service unless the  Commission expressly specifies in any particular case that  a candidate’s case may be referred to them before

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the question  of his permanent appointment is taken up. Rule 12 requires  the  Public  Service  Commission  to  interview suitable candidates while rule 13 requires the Commission to prepare a  list of  selected candidates arranged in order of preference, the  number of  such candidates being ordinarily 1-1/3 times  the number  of vacancies to be filled by direct recruitment. The  final selection of the candidates is to be made by the Governor under Rule 15(a) from amongst those who have been  included in  the list submitted by the Commission or in  respect of  whom  a  report  has  been  submitted  in accordance with rule 14. The candi- 63 dates selected by the Governor are required by rule 15(b) to submit themselves for examination by a Medical Board.      Rule 19(a)  provides that  persons appointed  by direct recruitment shall  be on  probation for  2 years while those appointed by  promotion shall  undergo a  probation for  one year, provided  that the  Governor may  extend the period of probation in  any particular  case. At  any time  during the probationary period,  the Governor  can  dispense  with  the service of any officer appointed by direct recruitment after a month’s  notice and  he can  likewise revert  the promoted officer to  his substantive  appointment. Rule  19(b)  reads thus:           "Notwithstanding anything  in sub-rule  (a) when a      temporary  Assistant   Engineer  is   selected  for   a      permanent appointment  to the  service the whole of the      period of  his temporary  service or a portion thereof,      as the  case may  be shall approved by the Governor for      this purpose,  count towards  the prescribed  period of      probation.           Provided that such approval shall be given only in      respect of  a continuous  period of  temporary  service      under the Government of Orissa followed without a break      by appointment in permanent service."      Rule  20  prescribes  conditions  for  confirmation  by providing that  a probationer  shall  be  confirmed  in  his appointment he completes the prescribed period of probation, if he has passed the prescribed departmental examination and if  the   Governor  is   satisfied  that   he  is   fit  for confirmation. Rule  22 prescribes  the pay  scale for direct recruits to  the cadre  of Assistant  Engineers. Under  this rule, the  period of  probation counts  for the  purpose  of increment unless the probation is extended on account of the probationer’s failure  to give  a satisfactory  performance. Under rule 26(i), if officers are recruited by promotion and by  direct  recruitment  in  the  same  calendar  year,  the promotes  are   considered  as  senior  to  direct  recruits irrespective of the dates on which they were appointed. Rule 26(ii) provides  that subject to provisions of sub-rule (i), seniority of officers shall be determined in accordance with the order  in which  their names appear in the list prepared by the Commission.      We are unable to accept the High Court’s view which was also pressed  upon us  by the  learned counsel  appearing on behalf  of   Patnaik  and   Mishra  that  Krishna  Moorthy’s appointment under  the notification  of March  14, 1962  was contrary to  the rules and therefore he cannot be said to be a member  of any  of the  cadres of  the Orissa  Service  of Engineers. By rule 3(b), "Member of Service" means a servant of the  Government appointed in a substantive capacity under the provisions  of the  rules to  a post in the cadre of the service. The  first question  to be considered is whether on March  14,   1962  Krishna   Moorthy  was   appointed  in  a substantive capacity  to a  post in  the cadre of the Orissa

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Service  of   Engineers  and  secondly,  whether  the  State Government had  the power  under the  rules to  appoint  him retrospectively with  effect from  the date  of his  initial appointment i.e. from January 19, 1959. 64      The impugned  notification dated  March 14,  1962 reads thus:           "Shri T.  C. K.  Murty, Assistant  Engineer, P. H.      who was appointed as such on contract basis with effect      from 19-1-1959  is appointed as a temporary A.E. in the      regular Establishment  of the  P.H. Wing  until further      orders with effect from the same date." The terms  of this notification are too direct and simple to admit of  more than one construction and accordingly we must proceed on  the footing  that  on  March  14,  1962  Krishna Moorthy was  in fact  appointed as  an Assistant Engineer in the regular cadre of Assistant Engineers, though with effect from January  19, 1959  being the date on which he had taken charge of  his initial  appointment as a temporary Assistant Engineer on  contract basis.  The meaning  and effect of the notification was  never in doubt nor indeed the intention of the Government  to regularise  Krishna Moorthy’s appointment so as  to place  him in  one of  the regular  cadres of  the Orissa Service of Engineers.      But then, did the State Government have the power under the  rules   to  regularise  Krishna  Moorthy’s  appointment retrospectively ?  That is  the real  focus of  controversy. While resolving  this controversy  one must  disabuse  one’s mind of  the apparently  weighty consideration  that Krishna Moorthy was  appointed initially  on a  ’contract basis’. By rule 6,  recruitment to  the rank of Assistant Engineers can be made directly but such recruitment must comply with rules 8  to   15.  Krishna   Moorthy  satisfied  everyone  of  the qualifications prescribed  by this  fasciculous of rules and that is  undisputed. He  was qualified  under rule 6 and was eligible under  rule 9  to  be  appointed  as  an  Assistant Engineer in  the regular  cadre of  the  Orissa  Service  of Engineers. Applications  were duly  invited  by  the  Public Service Commission  under  rule  10  and  Krishna  Moorthy’s application fulfilled  the  requirements  of  rule  11.  The Commission considered  all the  applications and interviewed candidates who  were suitable  for the posts, as required by rule 12.  Krishna Moorthy appeared for the test and the viva voce examination  and was  selected by  the  Public  Service Commission. His  name  appeared  in  the  list  of  selected candidates prepared by the Commission under rule 13. Rule 14 has no  relevance. The final selection of the candidates was made by  the Governor,  as required by rule 15, from amongst those who  were  included  in  the  list  submitted  by  the Commission under  rule 13. On his selection by the Governor, Krishna  Moorthy  was  examined  by  the  Medical  Board  as required by  rule 15  and was  found medically  fit. It  was after  due   and  full   compliance  with  everyone  of  the conditions  and   formalities  that  his  appointment  as  a temporary Assistant  Engineer on contract basis was notified on Dec. 11, 1958.      The initial appointment of Krishna Moorthy being within the scope  of and  in conformity  with the  rules  governing direct recruitments to the cadre of Assistant Engineers, the only question  that requires  consideration is  whether  the rules permit retrospective regularization of an appointment. The terms of the initial appointment are relevant in 65 this  behalf   because  though  the  appointment  was  on  a ’contract  basis’,   it  was  also  expressly  described  as

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’temporary’. In  common parlance  it may  be incongruous  to describe a contractual appointment as temporary, because the appointment is  intended in the normal circumstances to last during the currency of the contract. But Service regulations have their  own semantics  and not  unoften,  not  only  are service rules  technical but  they have  their own technical vocabulary. Krishna  Moorthy’s initial  appointment must  be construed on  its own  terms  and  therefore  the  adjective ’temporary’ cannot  be dismissed  as a  mere adjunct. He was unquestionably  and  in  terms  appointed  as  an  Assistant Engineer on  a "temporary"  basis and  the fact that he held his post  on a  contract did  not make his tenure other than temporary. The  subsequent course  of his career, within the contractual period itself, shows that he was granted all the facilities and  privileges which  are available to employees in the  regular cadre, temporary or permanent, and which are generally not  available to  contractual employees.  He drew the same  pay as  any other employee in the regular cadre of Assistant Engineers and he was fitted into the same scale of pay. He  drew no  special benefits  by reason  of being on a contractual basis.  And when  during  the  currency  of  the contract he  wanted to  apply for  a post under the Union of India, his  application  was  not  forwarded  by  the  State Government for  the reason  that there  was a  "shortage  of technical personnel  in the State". His appointment was thus made truly  on  a  temporary  basis  and  the  question  for consideration resolves  itself into this: Can an appointment made on a temporary basis after compliance with the relevant rules be regularized retrospectively ?      If Krishna  Moorthy had  not been  recommended  by  the Public Service  Commission, different  considerations  might have arisen.  But he  was recommended by the Commission, the recommendation was  accepted by  the Governor  and the State Government appointed  him as  an  Assistant  Engineer  on  a temporary   basis   in   pursuance   of   the   Commission’s recommendation and  the Governor’s  selection. This is where Rule 19  plays an  important part.  Under clause (a) of that rule, persons  appointed by  direct recruitment are required to be on probation for 2 years. Under clause (b) of Rule 19, notwithstanding anything  in clause  (a), "when  a temporary Assistant Engineer  is selected  for a permanent appointment to the  service, the  whole of  the period  of his temporary service or  a portion  thereof, as  the case may be shall if approved by  the Government  for this purpose, count towards the prescribed  period of  probation". Krishna  Moorthy  was selected by the State Government for a permanent appointment as  an  Assistant  Engineer  and  before  implementing  that decision, the  State Government had obtained the concurrence of the  Public Service Commission. On such concurrence being obtained,  the   State  Government   issued   the   impugned notification dated  March 14,  1962  appointing  him  as  an Assistant Engineer,  though temporarily  and  until  further orders, with  effect from  January 19,  1959. The Government had the  power under rule 19(b) to count any part of Krishna Moorthy’s temporary service towards the prescribed period of probation and what it did was to count his temporary service from January 19, 1959 66 till March  14, 1962 towards the probationary period. He had by then  put in  more than three years’ service whereas rule 19 stipulates a normal probationary period of 2 years only.      In view  of  these  facts  and  considerations,  it  is impossible to  accept  the  submission  made  on  behalf  of Patnaik and  Mishra that Krishna Moorthy’s appointment under the notification  of March 14, 1962 is in any sense invalid.

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Consequently, his  subsequent promotions  and the  seniority accorded to him must also be upheld. The decision in Narayan Chandra Parida  v. State  of Orissa  and Ors.,(1)  on  which reliance  is  placed  to  deprive  Krishna  Moorthy  of  his seniority has no application, as in that case the petitioner was ranked  as a  junior to  a person  who was not at all in Government service when the petitioner was appointed. In the instant case,  Krishna Moorthy was appointed as an Assistant Engineer on  a temporary  basis on  January 19, 1959 whereas Patnaik and  Mishra were  appointed on April 14, 1960 to act as Assistant  Engineers on  a provisional  basis. All  along their respective  service careers,  extending over 13 years, Krishna Moorthy was recognized as senior to the other two.      It is  unnecessary to  deal at  length with the State’s contention that  the writ  petitions were  filed in the High Court after  a long  delay and that the writ petitioners are guilty of  laches. We  have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress. Krishna Moorthy’s appointment was gazetted on March 14, 1962 and it  is incredible  that his  service-horoscope  was  not known to his possible competitors. On November 15, 1968 they were all  confirmed  as  Assistant  Engineers  by  a  common Gazette notification  and that  notification showed  Krishna Moorthy’s confirmation  as of  February 27, 1961 and that of the other  two as  of May 2, 1962. And yet till May 29, 1973 when the  writ petitions  were filed,  the  petitioners  did nothing except to file a representation to the Government on June 19,  1970 and  a memorial  to the Governor on April 16, 1973.  The   High  Court   made  light   of  this  long  and inexplicable delay  with a casual remark that the contention was "without any force". It overlooked that in June, 1974 it was setting  aside an  appointment dated  March  1962  of  a person who  had in  the meanwhile  risen to  the rank  of  a Superintending Engineer. Those 12 long years were as if writ in water.  We cannot  but express  our grave concern that an extraordinary jurisdiction  should have  been  exercised  in such an  abject disregard  of consequences  and in favour of persons who  were unmindful  of their  so-called rights  for many long years.      For these  reason we  allow the  appeals, set aside the judgment  of  the  High  Court  and  direct  that  the  writ petitions shall stand dismissed. Patnaik and Mishra will pay to Krishna  Moorthy the  costs of the petitions and of these appeals which  we quantify at Rs. 2000. They will each pay a sum of  Rs. 1,000. There will be no order as to the costs of the Government. V.P.S.                                      Appeals allowed. 67