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PETITIONER: STATE OF GUJARAT AND ANR.

       Vs.

RESPONDENT: P.J. KAMPAVAT AND ORS.

DATE OF JUDGMENT28/04/1992

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) PUNCHHI, M.M.

CITATION:  1992 AIR 1685            1992 SCR  (2) 845  1992 SCC  (3) 226

ACT:            Constitution of India, 1950:      Article     310-Contractual     appointments-Ministers’ establishment-Temporary appointment on the recommendation of Ministers-Power  of State to make  such  appointments-Source of.      Civil Service:      Bombay Civil Service Rules, 1959: Rules 2, 9(56), 33.      Temporary  appointments-Co-terminus  with the  term  of Ministers-Whether   incumbents  entitled   for   absorption- Termination Order-Prior notice-Whether necessary.

HEADNOTE:      The respondents were appointed in the State  Government Service  purely  on temporary basis,  co-terminus  with  the tenure of the Chief Minister and Ministers, with no right of absorption.  They also furnished undertaking to this effect. With  the change in Government, the respondents were  issued orders of termination.  They filed Writ Petitions before the High  Court challenging the termination orders and  claiming that they were entitled to be absorbed in service.  The High Court   granted  stay  and  directed  that  status  quo   be maintained  and the respondents continued in  service.   The High Court was of the opinion that they were entitled to the protection  of  Rule 33(1)(b) of the Bombay  Civil   Service Rules  and  since termination was ordered  without complying with the requirements of the said rule the termination order were  null and void.  It however ruled out the  question  of absorption.  However, taking an overall view of the  matter, the High Court directed that in lieu of reinstatement,  they may  be  paid salary from the date of termination  till  the date of judgment and for a further period of two months-that is in all for a period of two years.  Aggrieved against  the said  judgment,  the  State  Government  has  preferred  the present appeals by special leave.      Allowing the appeal, this Court,                                                        846      HELD : 1. The appointment of the respondents was a pure and simple contractual appointment and that such appointment is  outside the purview of the Bombay Civil  Service  Rules, 1959.   Since the tenure of the ministers at whose  instance and on whose recommendation they were appointed has come  to

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an  end, their service also came to an  end  simultaneously. No order of termination as such was necessary for putting an end to their service, much less a prior notice.  They  ought to go out in the manner they have come in. [853-C, D]      2.    It  is  evident from a  reading  of  the order of appointment that it was purely a contractual appointment co- terminus  with the tenure of the Ministers at  whose  choice and  instance  they  were appointed.   The  order  expressly stated  that they shall not get any right to appointment  in regular  cadre.   Their  services  were,  it  was  expressly stated,  liable to be terminated at any time without  giving any notice and/or without assigning any reason. Indeed, they were asked to furnish undertakings in the above terms  which they  did.  The order no doubt employs the words  ‘appointed as direct recruits on purely temporary basis’.  However, the order must be read as a whole and so read, it is clear  that the appointment of the respondent was made otherwise than in accordance  with  the  rules,  at  the  choice  and  on  the recommendation of the concerned Minister who wanted them  to serve in his establishment.  That the State has the power to make  such contractual appointment is recognised  by  clause (2) of Article 310. [849 H, 850 A-C]      3. Rules 9(56) and 33 of the Bombay Civil Service Rules have  no application to the instant case as the  respondents cannot be deemed to be temporary Government servants  within th meaning of the said rules inasmuch as the terms of  their appointment clearly amount to an otherwise provision  within the meaning of the Non-obstante clause ("except where it  is otherwise  expressed or implied") with which rule 2  begins. It  is evident that the terms of their appointment  and  the undertaking are clearly inconsistent with the said rules and in  particular  with  rule 33.  Rule33(1)(b)  and  the  term making  their tenure co-terminus with their minister  cannot go together. [853 B-F]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.  1826- 37 of 1992.      From  the  Judgment  and Order dated  7.9.1991  of  the Gujarat High Court in Special Civil Application Nos. 8627 to 8633 of 1989, 8635 to 8638                                                        847 of 1989 and 2937 of 1991.      D.A.  Dave,  Bimal Roy Jad and Anip  Sachthey  for  the  Appellants.      Anil Nauriya and Hemantika Wahi for the Respondents.      The Judgment of the Court was delivered by      B.P.  JEEVAN REDDY, J. Heard counsel for both  parties. Leave granted.      These  appeals  filed  by  the  State  of  Gujarat  are directed  against  the Judgment of a Division Bench  of  the Gujarat High Court allowing partly a batch of writ petitions filed by respondents 1 to 12.      In the year 1985, the Government of Gujarat thought  it expedient  to permit the Chief Minister and other  Ministers to  appoint  persons  of their choice  in  their  respective establishments.   Respondents  1  to  12  were   accordingly appointed  in the category  of  Clerk/Typists/Director/Peon. The  orders  of appointment issued to  the  respondents  are identical.   The  State has placed before us a copy  of  the Office  Order  dated  12.7.1985  issued  from  the   General Administration Department, Government of Gujarat relating to the appointment of some of the respondents.  The order reads

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as follows:          "The  following  persons are  appointed  as  direct          recruits on purely temporary basis in the office of          the Chief Minister with effect from 6.7.1985 (after          office  hours)  on the posts  shown  against  their          names.   Their  services  shall  be  liable  to  be          terminated at any time without giving any notice or          assigning  any reasons.  This appointment is for  a          limited  period  up  to the  tenure  of  Minister’s          establishment.   They  will not get any  right  for          absorption  in  regular cadres of  Sachivalaya  and          they  will  have to furnish an undertaking to  this          effect. ------------------------------------------------------------  Sr.  Name of         Post           Date           Remarks  No.  Employee                     of Birth ------------------------------------------------------------  1.     2.              3.            4.               5. ------------------------------------------------------------ 1.  Sh. P.J. Kampavat Clerk-Typist  20.5.55   Relaxation  is                                              given on upper                                               age limit.                                                   848 2 to 10 omitted.          2.  They  will  have to  furnish  physical  fitness          certificate from the Civil Surgeon immediately.          Out  of  the above, those appointed  on  class  III          posts,  are  not eligible for special  pay  whereas          those  appointed on class IV posts are eligible  to          get special pay as per rules."      In  December  1989, a new Government came  into  office following the General Elections to the Legislative Assembly. With  the exit of the Ministers in whose establishments  the respondents were appointed, the respondents were also issued orders  of  termination with effect  from  18.12.1989.   The orders  of termination are dated 10.12.1989 and  11.12.1989. Aggrieved by the said orders of termination the  respondents filed  a batch of writ petitions in the Gujarat  High  Court claiming  that they are entitle to be absorbed as  permanent employees   in   the  Service  of  the  State   of   Gujarat Alternatively  they  contended that the impugned  orders  of termination  are  bad being contrary to Rule  33  of  Bombay Civil  Service  Rules,  1959, as also  Section  25F  of  the Industrial  Disputes Act. Having filed the  writ  petitions, they  moved  application for staying the  operation  of  the termination  orders.  The Gujarat High  Court  directed  the status quo to be maintained which implied their  continuance in Service.  The State, however, carried the matter to  this Court  which vacated the said orders, with result  that  the respondents went out of the office.      The respondents’ case before the High Court of  Gujarat was  that  notwithstanding the terms  of  their  appointment orders  they  have  a right to continue  in  service.   They submitted that they served different ministers from time  to time (as per the particulars supplied by them) and that they were  really employed on account of their  past  experience. They relied upon certain instances in the composite State of Bombay  where similarly appointed persons were  absorbed  in Government service.  They invoked Articles 14 and 16 of  the Constitution besides Rules 33 of Bombay Civil Service Rules. The State, on the other hand, relied upon the terms of their appointment   and  contended  that  their  appointment   was contractual  in nature, co-terminus with the tenure  of  the concerned  Minister  under whom and at whose  instance  they were  appointed.  They have no right to claim absorption  or

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any  other right.  They must go along with their  Ministers, it was submitted.                                                   849      In the light of the rival contentions, the Gujarat High Court framed three questions for their consideration,  viz., (1)  whether  the  respondents  (State)  had   discriminated against  the petitioners by no absorbing them in  the  State service  and instead terminating their services by  impugned orders and whether the said action was violative of Articles 14  and 16 of the  Constitution.  (2) Whether  the  impugned termination  orders were contrary to BCS Rule 33 and  hence, they  were  null and void and the inoperative of  law.   (3) What  reliefs were the petitioners entitled.  On  the  first question, the High Court held against the writ  petitioners. It  was of the opinion that the writ petitioners  cannot  be directed to be absorbed in regular service inasmuch as their initial  entry itself was otherwise than in accordance  with the  Rules  and  also because  their  appointment  was  made exclusively on the recommendation of the concerned  Minister who  selected  persons  of  his  choice  to  serve  in   his establishment.  Such absorption, the High Court pointed out, may   amount   to  circumventing  the  Rules   relating   to recruitment   and  would  be  unjust  to  other   employees. Articles  14 and 16 of the Constitution do not come  to  the rescue  of the writ petitioners.  Further, it was held,  the Gujarat  Non-Secretariat Clerks and Clerks/Typist  (Training and  Examination)  Rules,  1970 do not  apply  to  the  writ petitioners.   On  the second question,  however,  the  High Court  was  of  the opinion that the  writ  petitioners  are entitled  to the protection of Rule 33 (1)(b) of the  Bombay Civil Service Rules; Since the termination has been effected without  satisfying the requirements of the said Rule,  they were  declared  to  be null and void.  On  the  question  of relief,  the High Court was of the opinion that granting  of relief  of  reinstatement would be of no help  to  the  writ petitioners inasmuch as even after such reinstatement  their services  can be terminated by paying one month’s salary  as contemplated  by  the proviso to Rule 33(1)(b)  of  the  BCS Rules.   Taking "a practical view of the matter"-to use  the language  of  the High Court-they directed that in  lieu  of orders of reinstatement, the writ petitioners shall be  paid the salary from the date of their termination up to the date of  Judgment  and  for  a  further  period  of  two   months thereafter-that is for a period of approximately two  years. The  correctness  of the said Judgment, insofar as  it  goes against the State is canvassed in these appeals.      It   is  evident  from  a  reading  of  the  order   of appointment  of  the writ petitioners that it was  purely  a contractual  appointment co-terminus with the tenure of  the Minister’s establishment, at whose choice and instance  they were appointed.  The order expressly stated that they  shall not get any                                                        850 right to appointment in regular cadre.  Their services were, it was expressly stated, liable to be terminated at any time without  giving  any  notice and/or  without  assigning  any reasons.   Indeed, they were asked to furnish  under-takings in  the  above  terms which they did.  The  order  no  doubt employs  the words "appointed as direct recruits  on  purely temporary  basis"-and these are the words  which  constitute the  sheet-anchor of the writ petitioners’  contention.   We are, however, of the opinion that the order must be read  as a whole and so read, it is clear that the appointment of the respondents/writ  petitioners  was made  otherwise  than  in accordance  with  the  rules,  at  the  choice  and  on  the

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recommendation of the concerned Minister who wanted them  to serve in his establishment.  That the State has the power to make  such contractual appointment is recognised  by  clause (2) of Article 310. clauses (1) and (2) of Article 310  read as follows:          "310. Tenure of office of persons serving the Union          or  a  State:-(1) Except as expressly  provided  by          this Constitution, every person who is a member  of          a  defence  service or of a civil  service  of  the          Union  of  an all-India service or holds  any  post          connected with defence or any civil post under  the          Union,  holds  office during the  pleasure  of  the          President,  and every person who is a member  of  a          civil  service of a State or holds any  civil  post          under  a State holds office during the pleasure  of          the Governor of the State.          (2)  Notwithstanding that a person holding a  civil          post under the Union or a State holds office during          the  pleasure of the President or, as the case  may          be,  of  the Governor of the  State,  any  contract          under  which  a  person, not being a  member  of  a          defence service or of an all-India service or of  a          civil service of the Union or a State, is appointed          under this Constitution to hold such a post may, if          the President or the Governor, as the case may  be,          deems it necessary in order to secure the  services          of a person having special qualifications, provided          for  the payment to him of compensation, if  before          the  expiration  of an agreed period that  post  is          abolished or he is, for reasons not connected  with          any misconduct on his part, required to vacate  the          post."      While  clause  (1) corresponds to  sub-section  (1)  of Section 240 of the                                                        851 Government  of India Act, 1935, clause (2) is practically  a re-production of sub-section (4).  Clause (1) declares  that unless otherwise provided by the Constitution, every  person holding  a post in defence service or civil service  or  any post connected with them holds office during the pleasure of the  President  and similarly every person holding  a  civil post  under the State holds the same during the pleasure  of the Governor of the State.  Clause (2) recognises the  power of  the  President/Governor to appoint a person to  a  civil post  (under the Union or the State) on contract.   However, the  person to be so appointed should not be a member  of  a defence  service  or  of an All-India  service  or  a  civil service  of the Union or the State.  The clause enables  the President/Governor to provide, if he thinks it necessary  to secure   the   services   of  a   person   having   specific qualifications  for payment to him compensation in case  the post is abolished before the expiry of the agreed period  or where  he is asked to vacate the post before the  expiry  of such period for reasons not connected with any misconduct on his  part.   In the case before us, of course, there  is  no such  provision  for compensation-apart from the  fact  that this  is not a case of termination before the expiry of  the period of the contract.  (For the purposes of this case,  it is unnecessary to examine the reasons for which  sub-section (4)  was enacted in Section 240 of the Government  of  India Act, 1935 and why was it repeated in Article 310).      In  the light of this clause it is idle to  contend  on the  part  of the respondents/writ  petitioners  that  their appointment is under the rules or that their appointment  is a  temporary appointment within the meaning of Bombay  Civil

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Service  Rules.   Rule 2 of the Bombay Civil  Service  Rules which  is  quoted in the judgment of the  High  Court  reads thus:          "except where it is otherwise expressed or implied,          these  rules apply to all members of  services  and          holders  of posts whose conditions of services  the          government  of Bombay are competent  to  prescribe:          Provided that they shall also apply to:-          "(a)   any   person  for  whose   appointment   and          conditions   of   employment  and   conditions   of          employment  special provision is made by  or  under          any law for the time being in force, and          (b)any person in respect of whose service, pay  and          allowances  and  pension  or any  of  them  special          provisions has been                                                        852          made  by an agreement made with him in  respect  of          any  matter not covered by the provisions  of  such          law or agreement."      The  High Court has relied upon the said rule  to  hold that  the writ petitioners are covered by clause (b) to  the proviso.   It has further held that the respondent  must  be deemed  to be holders of temporary posts within the  meaning of rule 9(56) which defines the expression temporary post to mean a post carrying a definite rate of pay sanctioned for a limited  time.   On  the above basis,  the  High  Court  has applied  Rule 33 which provides the mode of terminating  the service  of a temporary Government servant.  In  short,  the rule  provides  for a prior notice, the  duration  of  which depends  upon the length of service put in by the  temporary Government  servant.  We are, however, of the  opinion  that the  said  rules  have no  application  to  the  respondents herein  and  that  they cannot be  deemed  to  be  temporary Government  servants  within the meaning of the  said  rules inasmuch as the terms of their appointment clearly amount to an  otherwise  provision  within the  meaning  of  the  Non- obstante clause ("except where it is otherwise expressed  or implied")  with which rule 2 begins.  The  order  appointing the  respondents  expressly  states  not  only  that   their services shall be terminated at any time without giving  any notice and without assigning any reason but also that  their appointment  is for a limited period  co-terminus  with  the concerned  minister’s  tenure.   They  were  also  asked  to execute  an undertaking in the above terms which  they  did. It  is evident that the terms of their appointment  and  the undertaking are clearly inconsistent with the said rules and in  particular  with rule 33.  Rule 33 (1)(b) and  the  term making  their tenure co-terminus with their minister  cannot go  together.  Sub-rule (1) of rule 33 of the  Bombay  Civil Service  Rules may be set out at this stage, for the  reason that the High Court has rested its case on clause (b) of the said sub-rule.          "33.  (1)(a) The service of a temporary  government          servant shall be liable to termination at any  time          by  a  notice  in  writing  given  to  him  by  the          appointing authority.          (b) Where a temporary government servant has put in          service for a period exceeding one year the  period          of  such notice shall be one month and  where  such          government servant has put in service for one  year          or any period less than one year the period                                                        853          of such notice shall be one week.          Provided  that the services of any such  government          servant  may be terminated forthwith by payment  to

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        him  of a sum equivalent to the amount of  his  pay          plus  allowance for the period of the   notice  due          the  same  rates at which he was  drawing  pay  and          allowances  immediately before the  termination  of          his  service or as the case may be, for the  period          by  which  such notice falls short  of  the  notice          period."      For the reasons given above, we are of the opinion that the  appointment  of the respondents was a pure  and  simple contractual  appointment and that such appointment does  not attract  and  is  outside the purview of  the  Bombay  Civil Service  Rules, 1959.  Since the tenure of the ministers  at whose  instance  and  on  whose  recommendation  they   were appointed  has come to an end with 10.12.1989 their  service also came to an end simultaneously.  No order of termination as such was necessary for putting an  end to their  service, much  less  a  prior notice.  They ought to go  out  in  the manner they have come in.      The  appeal in accordingly allowed.  The  judgment  and the  order of the Gujarat High Court is set  aside.   Having regard  to the circumstances of the case, there shall be  no order as to costs. G.N.                                        Appeal allowed.                                                   854