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PETITIONER: DIRECTOR OF PANCHAYAT RAJ & ANR.

       Vs.

RESPONDENT: BABU SINGH GAUR

DATE OF JUDGMENT18/11/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N. KHANNA, HANS RAJ

CITATION:  1972 AIR  420            1972 SCR  (2) 400  1972 SCC  (1) 227  CITATOR INFO :  F          1977 SC 355  (6)  F          1977 SC1267  (5)

ACT: Civil  Service-Temporary  Servants-Declared  to  be  holding posts   in  substantive  capacity-Posts  subsequently   made permanent--No orders of confirmation of individual officers- Termination on one month’s notice Legality-Fundamental  Rule 26(d) of Financial Hand Book, Vol.  II Part II-Scope.

HEADNOTE: The  respondents  were appointed temporarily  to  respective posts  and at the time of their appointment the  posts  were also  temporary. Sometime after, their appointments,  though temporary,  were  declared  to be  in  substantive  capacity within  the meaning of the order of the Governor  regarding, Fundamental  Rule  26(d) of the Financial Hand  Book  Volume III,  Part  11, with retrospective effect from the  date  of their  first  appointment.   These  posts  alongwith   other temporary posts, were subsequently made permanent.  However, the government did not consider the question of confirmation of the individual officers in these posts, the  respondents’ services  were terminated by one month’s notice as  provided in the rule for termination of the services of a  government servant  in temporary service.  The respondents  filed  writ petitions  challenging  the orders of termination  of  their services.  The High Court allowed these petitions.   Setting aside  the Orders of the High Court and dismissing the  writ petitions, HELD : Fundamental Rule 26(d) and the Order of the  Governor clearly show that they merely dealt with leave and increment and  the  order  has nothing to do with the  nature  of  the appointment.  That order did not convert the appointments of temporary   government   servants  either   into   permanent appointments  or into temporary appointment  in  substantive capacity in permanent posts.  For purposes other ’than those mentioned  in  the order their appointments continue  to  be temporary.   The  High  Court  proceeded  on  the  erroneous reasoning  that as the respondents were holding their  posts in  a substantive capacity though temporarily, they must  be held  to  have  been  holding those  permanent  posts  in  a

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substantive capacity. [405 C] (ii) A   temporary  government  servant  does   not   become Permanent  unless  he gets that capacity either  under  some rule  or he is declared or appointed by the government as  a permanent government servant.  At the time of the conversion of the temporary post,, into permanent posts the  government did  not  consider  the  question  of  confirmation  of  the officers  holding those posts.  And no rule has  been  shown under which the respondents can be considered as having been appointed either permanently or in a substantive capacity to permanent posts. [405 G] State  of  U.P.  v. Abdul Khalik, C. As  Nos  782  &  783/66 decided on April 30, 1969, applied. Purshotam Lal Dhingra v. The Union of India, [1958] S.C.R. 8 28  and State of Nagaland v. G. Vasantha,, A.I.R. 1970  S.C. 537, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 1011  and 1012 of 1966. 401 Appeals  by  special leave from the  judgments  and  decrees dated  February  12,  1965  and November  10,  1964  of  the Allahabad High Court in Special Appeals Nos. 298 of 1960 and 483 of 1962 respectively. G.   N.  Dixit and 0. P. Rana, for the appellants  (in  both the appeals). W.S.  Barlingay,  M. K. Pandey, S. K. Sabharwal  and  Ganpat Rai, for the respondents (in both the appeals). J.P. Goyal and R. K. Bhatt, for the intervener (in C.A.  No. 1012 of 1966). The Judgment of the Court was delivered by Hegde,  J.  These are appeals by special  leave.   A  common question  of law arises for decision in these  two  appeals. Hence  it  is  convenient to consider  them  together.   The material  facts are more fully set out in Civil  Appeal  No. 1012  of 1966.  We shall set out those facts in detail.   We shall  refer to the facts of Civil Appeal No. 1011  of  1966 thereafter, briefly. The  respondent  in  Civil Appeal No. 1012  of  1966,  Jugal Kishore Bhatt was appointed as the Sales-tax Officer on June 29,  1948  by  the  Governor of U.P.  At  the  time  of  his appointment  the posts of Sales-tax Officers were  temporary posts.  He joined the service in the Sales-tax department at Bareilly on July 15, 1948.  His appointment was on temporary basis.   He continued to serve in that department as  Sales- tax Officer until the year 1951 on temporary basis.  In that year the Government issued G.O. No. ST 419/X-941.  Paragraph 4  of that order provided that as the posts detailed in  the list  annexed to the G.O. are likely to last for  more  than three  years,  the Governor is pleased to declare  that  the appointments made to those posts will be deemed to have been made  in a substantive capacity and the  incumbents  thereof (shown  in the list) other than those who are  appointed  to officiate in leave vacancies shall be treated as holders  of those posts in a substantive capacity within the meaning  of the  order of the Governor regarding Fundamental Rule  26(d) of   the  Financial  Handbook,  Volume  II,  Part  II   with retrospective  effect from the date of their first  appoint- ments  to  those  posts.  The respondent  continued  in  the department  as Sales-tax Officer until 1953.  In  that  year the  Governor  of U.P. in exercise of the  powers  conferred upon  him by the provisions of Art. 309 of the  Constitution

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made the following rule:               "(1) Notwithstanding anything to the  contrary               in  any  existing  rules  and  orders  on  the               subject, the services of a Government  servant               in  temporary  service  shall  be  liable   to               termination at any time by notice in writing                402               given either by the Government servant to  the               appointing  authority  or  by  the  appointing               authority to the government servant.               (2)The  period  of such notice  shall  be  one               month given either by appointing authority  to               the  Government servant, or by the  government               servant to the appointing authority,  provided               that  in the case of notice by the  appointing               authority,  the latter may substitute for  the               whole or part of this period of notice, pay in               lieu  thereof; provided further that it  shall               be open to the appointing authority to relieve               a  government  servant without any  notice  or               accept notice for a shorter period without re-               quiring  the  government servant  to  pay  any               penalty in lieu of notice.               (3)   This  rule shall take  immediate  effect               and  shall  apply  to  all  persons  who   are               appointed   hereafter  in  a  civil  post   in               connection  with the affairs of Uttar  Pradesh               and  who are under the rule making control  of               the  Governor, but who do not hold a  lien  on               any permanent government post.               (4)   In  this rule "temporary service"  means               officiating  and  substantive  service  in   a               temporary  post. and officiating service in  a               permanent post, under the U.P. government.               (5)   Nothing in this rule shall apply to:               (a)   government servant engaged on contract;               (b)   government  servant  not in  whole  time               employment;               (c)   government    servant   paid   out    of               contingencies;               (d)   persons    employed   in    work-charged               establishments." Sometime  in February 1953, the respondent was  informed  by the  Commissioner  of Sales-tax, U.P. that  his  appointment would  terminate  on  March 31, 1953; but he  could  be  re- employed in the post but he will be subject to the rule  set out  earlier.  The respondent was asked to intimate  to  the Government  by March 23, 1953 whether he was prepared to  be reemployed  from  April  1, 1953 on  the  said  terms.   The respondent  signified his consent for reappointment  on  the terms  mentioned in the letter.  Thereafter he continued  in service up to March 31, 1954.  Subsequently his  appointment was extended for a period of one year from April 1, 1954  to March 31, 1955. 403 Meanwhile  by  G.O. No. ST-896/X-911 D/55  dated  April  27, 1955, the Governor was pleased to sanction the extension  of the posts of Sales-tax Officers up to March 31, 1956. On  May  22,  1956 the Governor was pleased  to  issue  G.O. No.ST-2562/x-911-A.  This G-O.is important. Hence  we  shall quote the same in full:               "G.O.  No.  ST 2562/X-911 dated May  22,  1956               from  the  Deputy Secretary to  Government  to               Commr.  Sales Tax.               Subject  : Conversion of sixty  one  temporary

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             posts of S.T.O. into permanent one.               With reference to your letter No. E-1-Cent-13-               13814/ST dated Feb. 13, 1956, I am directed to               convey  the  sanction of the Governor  to  the               conversion, w.e.f. April 1, 1955, of sixty one               temporary posts of S.T.0s, in the scale of Rs.               250-25-600 sanctioned for the S.T. Department,               the term of which was last extended upto March               31, 1956, in G.O. No. S.T. 896/X-911/55  dated               April 26, 1955 into permanent ones.  That G.O.               should   be  deemed  to  have  been   modified               accordingly.      Orders     regarding     the               confirmation  of individual officers in  these               posts will issue separately.               The  charge  on the above  account  should  be               debited  to the relevant primary  Units  under               the head "13-other taxes and Duties.   Charges               in connection with the U.P. Sales Tax Act 1948               in the budget." On May 1, 1958, the State Government terminated the services of  the  respondent by giving him one month’s  notice.   The respondent  represented against the notice  terminating  his service but his representation was rejected.  Thereafter  he challenged the order of his termination before the Allahabad High Court by means of a writ petition under Art. 226 of the Constitution.  His writ petition was accepted by the learned single  judge  and the impugned order was set  aside.   That order  was affirmed by a division bench.  Aggrieved by  that order, the government has brought this appeal. Now  turning to the facts in Civil Appeal No. 1011 of  1966, the   respondent  therein  was  appointed  as  a   temporary Panchayat Raj Inspector on June 6, 1949.  Officers appointed temporarily  under  the  Panchayat  Raj  scheme  were   also declared  to  hold their temporary posts  in  a  substantive capacity,  within the meaning of the order of  the  Governor regarding  Fundamental Rule 26(d) of the Financial  Handbook Vol. II, Part II with retrospective effect from the date  of their first appointment to those posts.  They were also made subject to the rule made under Art. 309 referred to earlier. The temporary posts under the Panchayat Raj Scheme 404 were  converted  into  Permanent  posts  subsequently.   The services of the respondent Babu Singh Gaur were  terminated, by  giving  him one month’s notice, on September  12,  1958. Babu Singh Gaur also challenged his termination by means  of a  writ petition under Art. 226 of the  Constitution  before the  Allahabad High Court.  His writ petition was  dismissed by  a  single judge but in appeal the Letters  Patent  Bench allowed  his  plea and set aside the  impugned  order.   The government has appealed against that order. It  is admitted that the respondents in both  these  appeals were  appointed temporarily.  At the time of  their  initial appointment,  the  posts to which they were  appointed  were also  temporary.   Sometime after their  appointment,  their appointments  though  temporary  were  declared  to  be   on substantive capacity within the meaning of the order of  the Governor regarding Fundamental Rule 26(d) Financial Handbook Vol. II, Part II with retrospective effect from the date  of their  first appointments to their posts.  Fundamental  Rule 26(d) says :               "If   a  government  servant’s  tenure  of   a               temporary  post  is  interrupted  by  duty  in               another   post   or  by   leave   other   than               extraordinary  leave  or by  foreign  service,               such duty, leave or foreign service counts for

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             increments in the time-scale applicable to the               temporary  post  if  the  government  servants                             returns  to the temporary post;  provi ded  that               the Government may, in any case where they are               satisfied that the leave was taken on  account               of  illness or for any other cause beyond  the               government  servants’  control,  direct   that               extraordinary  leave  shall  be  counted   for               increments under this clause."               The order of the Governor regarding rule 26(d)               reads thus:               "Under  this  rule if a  government  servant’s               tenure  of a temporary post is interrupted  by               leave, the leave counts for increments to  the               time-scale  applicable to the temporary  post,               but under clause (b) of this rule if a govern-               ment  servant officiating in a permanent  post               takes  leave  and returns to  his  officiating               tenure  of  that  post on the  expiry  of  the               leave, the leave does not count for increments               in  the time-scale applicable to that post  as               during  such  leave he is  treated  as  having               reverted to his substantive post, if any.  The               difference in the treatment accorded to  leave               granted  under  similar  circumstances  arises               from  the fact that appointments to  temporary               posts,  even  of short duration’  are  usually               made  in a substantive capacity.  But  neither               the practice of making almost all appointments               to  temporary post in a  substantive  capacity               nor  the difference of treatment to  which  it               gives rise is justified.  Therefore,  although               these  rules  as they stand admit  of  both  a               substantive appointments to temporary                405               posts should be made only in a limited  number               of  cases, as for example, when posts  are  to               all  intents and purposes quasi  permanent  or               when they have been sanctioned for a period of               not less than three years, or there is  reason               to  believe that they will not terminate  with               in   that   period.   In  all   other   cases,               appointment to temporary posts should be  made               in an officiating capacity only." It  is  clear  from the rules as well as the  order  of  the Governor  that they merely dealt with leave  and  increment. That  order  has  nothing  to do  with  the  nature  of  the appointment.  The fact ’,,hat for certain specified purposes those temporary appointments were to be considered to be  in a  substantive capacity, does not mean that  the  appointees were holding the posts in question in a substantive capacity for all purposes.  For purposes other than mentioned in  the order, their appointments continue to be temporary. The learned judges of the Letters Patent Bench thought  that as  Babu  Singh Gaur and Jugal Kishore  Bhatt  were  holding their  posts in a substantive capacity, though  temporarily, after  the  posts held by their, were made  permanent,  they must be held to have been holding those permanent posts in a substantive  capacity.  In our opinion this is an  erroneous reasoning.  The order which converted those temporary  posts into  permanent  posts  specifically  stated  that   "order- regarding  the confirmation of individual officers in  these posts will issue separately".  At the time of the conversion of temporary posts into permanent posts, the Government  did

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not consider the question as to who all should be confirmed. Obviously  the government wanted to consider  that  question separately. The  substantive capacity conferred on the officers  holding temporary  posts in the Sales-tax department as well  as  in the panchayat Raj department was for a specific purpose i.e. counting  leave  for  increment purpose, and  for  no  other purpose.  That order did not convert the appointments of the temporary  government servants in those  departments  either into  permanent appointments or into temporary  appointments in substantive capacity in permanent posts. A  temporary government servant does not become a  permanent Government servant unless he gets that capacity either under some rule be is declared or appointed by the Government as a permanent  government servant.  Our attention has  not  been invited  to  any  rule tinder  which  respondents  in  these appeals  can be considered as having been  appointed  either permanently or in a substantive capacity to permanent posts. All   along  they  continued  to  be  temporary   government servants whether the posts held by them were temporary posts or permanent posts. This Court in Purshotam Lal Dhingra v. The Union of India(1) considered in detail the nature of posts held by  government ser- (1)  [1958] S.C.R. 828. 406 vants.  Dealing with the question of substantive appointment of a person to a temporary post, this Court observed at  pp. 842 and 843    of the report :               "The  substantive appointment to  a  temporary               post,  under  the  rules,  used  to  give  the               servant   so   appointed   certain    benefits               regarding pay and leave, but was otherwise  on               the same footing as appointment to a temporary               post on probation or on an officiating  basis,               that  is to say, terminable by  notice  except               where  under the rules promulgated in 1949  to               which  reference will hereafter be  made,  his               service  had  ripened into what  is  called  a               quasi permanent service." In  State  of  Nagaland v. G. Vasantha(1),  this  Court  was called  the effect of Fundamental Rules.  In  these  appeals also we are concerned with those Rules.  After dealing  with the nature of the various appointments, this Court  observed :               "The position may, therefore, be submarised as               follows  :  In  the  absence  of  any  special               contract  the  substantive  appointment  to  a               permanent post gives the servant so  appointed               a  right  to hold the post  until,  under  the               rules he attains the age of superannuation  or               is  compulsorily retired after having  put  in               the prescribed number of years’ service or the               post  is abolished and his service  cannot  be               terminated  except  by way of  punishment  for               misconduct,  negligence, inefficiency  or  any               other  disqualification found against  him  on               proper  enquiry after due notice to  him.   An               appointment to a temporary post for a  certain               specified  period  also gives the  servant  so               appointed  a  right to hold the post  for  the               entire  period  of his tenure and  his  tenure               cannot  be  put an and to during  that  period               unless he is, by way of punishment,  dismissed               or removed from the service.  Except in  these

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             two   cases,  the  appointment  to   a   post,               permanent or temporary, on probation or on  an               officiating basis or a substantive appointment               to  a temporary post gives to the  servant  so               appointed no right to the post and his service               may  be  terminated  unless  his  service  had               ripened  into what is, in the  service  rules,               called a quasi-permanent service." In  State  of  Nagaland v. G. Vasantha(1),  this  Court  was called upon to decide the validity of termination of service of a government servant by giving him notice of  termination as prescribed in the relevant Rules.  Therein, the concerned government  servant had been appointed purely  on  temporary basis.   The  post  to which he was  appointed  was  also  a temporary first.  Sometime after his (1)  A.I.R. [1970] S.C. 537. 407 appointment  that post was converted into a permanent  post. But his services were terminated.  The question was  whether because of the conversion of the post into a permanent post, he ceased to be temporary government servant.  Reversing the decision of the High Court of Assam and Nagaland, this Court held  that the fact that the post which he was  holding  was converted  into a permanent post did not confer on  him  any additional right.  His service was terminable by giving  him the prescribed notice under the Rules. A  question  similar  to  the one  before  us  came  up  for consideration  before this Court in State of U.P.  v.  Abdul Khalik(1).   The  facts  of  that  case  were  substantially similar  to the facts in than appeals.  Therein  this  Court reversing the decision of the Allahabad High Court held that the service of the respondent therein was validly terminated by  giving  him one months notice.  Speaking for  the  Court Sikri J. (our present Chief Justice) observed :               "The  learned Counsel for the  State  contends               that the plaintiff was a temporary servant and               his services were liable to be terminated on a               months notice and the fact that he was holding               appointment as temporary substantive does  not               make  the  plaintiff  a  permanent  government               servant.   There is force in this  contention.               The learned Counsel for the plaintiff was  not               able to point out any material to show that  a               person who is appointed temporary  substantive               can  be  equated with a  permanent  government               servant. It is clear from the order dated  May               22,  1956, that only certain posts were,  made               permanent  while by the order  dated  December               12,  1957,  certain other  persons  were  made               permanent  government servants. The  plaintiff               cannot  claim  to be  a  permanent  government               servant  till lie is declared or appointed  as               such."      In  that case this Court had to consider the  scope  of the  rule  framed  by the Governor under  Art.  309  of  the Constitution.  In  our opinion, the ratio of  that  decision completely covers the point   under   consideration.    That decision was tried to be distinguished  on  the ground  that in  that case, only some out of the several temporary  posts had  been  converted into permanent posts,  whereas  in  the cases  before us all the temporary posts had been  converted into  permanent posts. We do not think this  difference  has any bearing on the ratio of that decision. The ratio of that decision is that a government servant temporarily  appointed does  not  get a right to the post merely because  the  post

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held by him is converted into a permanent post.      For  the  reasons  mentioned  above,  we  allow   these appeals, set aside the orders of the High Court and  dismiss the writ petitions; (1)  C.A.S. No,. 782 & 783/66 decided in April 30,1969. 408 but in the circumstances of the case, we direct the  parties to bear their own costs both in this Court as well as in the High Court. Before leaving these cases, we would like to impress on  the government  the hardship that is likely to be caused to  the respondents in these appeals.  Babu Singh Gaur was appointed as  far  back as 1949 and Jugal Kishore Bhatt  in  the  year 1948.  They have served the government for a very long time. At  this  late  stage  in their  lives,  it  would  be  very difficult  for  them to seek other  employment.   These  are eminently  fit cases where the government should find a  way to absorb them in its service. S. C.                              Appeals allowed. 409