Full Judgment Text
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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