Full Judgment Text
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PETITIONER:
STATE OF TAMIL NADU AND ANR. ETC.
Vs.
RESPONDENT:
E. PARIPOORNAM AND ORS.
DATE OF JUDGMENT19/08/1991
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAMASWAMI, V. (J) II
YOGESHWAR DAYAL (J)
CITATION:
1992 AIR 1823 1991 SCR (3) 618
1992 SCC Supl. (1) 420
ACT:
Tamil Nadu State and Subordinate Services Rules,
1955--Rules 35(1), 10(a)(i)(1), 22, 23(a)--lnter-se senior-
ity--Determination--Temporary service--Whether counted.
Civil Service--Inter-se seniority--Determination--Tempo-
rary service--- Whether counted.
Tamil Nadu State and Subordinate Services Rules,
1955--Rules10(a)(i)(1), 23(a)--Temporary service--Benefits
available indicated.
HEADNOTE:
The Government appointed temporary junior professors in
different law colleges in the State under Rule 10(a)(1)(1)
of the TamilNadu State and Subordinate Services Rules, 1955
during 1971-1982.
In 1979 the State Public Service Commission invited
applications for regular appointment of junior professors.
The temporary junior professors and others applied for the
posts. The Commission selected 25 candidates out of whom 21
were already working as temporary junior professors. On
16.8.1983, the selected candidates were arranged in the list
called "approved list" in the order of merit prepared by the
Commission which was approved by the Government on
9.12.1983.
On 27.6.1985 the State Government regularised the serv-
ices of the 21 junior professors with effect from ’the dates
of original appointments as temporary junior professors.
Some of the junior professors were promoted on 10.9.1986
and appointed as professors. The respondents challenged that
promotion before the. High Court contending that once the
temporary services were regularised retrospectively with
effect from the date of entry in the.. service, the seniori-
ty should he reckoned by glvlng the benefit of regularised
service notwithstanding the ranking in the approved list.
The High Court allowing the writ petitions directed the
Govern-
619
ment to make a proper order of promotion in the light of the
views expressed in the judgment, against which appeals were
made in this Court.
Allowing the appeals, this Court,
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HELD: 1. The order of regularisation of the services of
the candidates expressly States that the inter-se seniority
of the candidates would be in accordance with the rankings
in the approved list prepared by the Public Service Commis-
sion and will not be affected in any way by the date of
regularisation of services. When the order of regularisation
of temporary service itself denies such service for the
purpose of determining seniority, the Court cannot count
that service for the purpose of seniority. [625B-C]
2. Since the parties in these cases appeared for selec-
tion before the Public Service Commission for regular re-
cruitment as Junior professors, the list of approved candi-
dates prepared by the Public Service Commission in the order
of merit and accepted by the Government should be the basis
for the determining inter-se seniority. It is not open to
the parties to claim that their temporary service aS junior
professors upon regularisation should be counted for the
purpose of determining the seniority in the cadre. [625D-E]
3. Rule 10(a)(i)(1) provides for making of temporary
appointments. Such appointments are made otherwise than in
accordance with the procedure prescribed under the Rules.
[625H-626A]
4. In the instant case, the respondents were appointed
temporarily and otherwise than in accordance with the Rules.
They were later selected along with others for direct re-
cruitment by the Public Service Commission. They were not
entitled to count the temporary service for seniority. The
services rented by the applicants under Rule 10(a)(i)(1)
cannot be considered for the purpose of seniority as such
appointment is a matter of stop-gap, emergency or fortuitous
arrangement. Even though their temporary services have been
regularised, since regularisation was only for limited
purposes. [626A-C]
A.P.M. Mayakutty etc. v. Secretary, ’Public Service
Department etc., [1977] 2 SCR 937 at 942, followed.
5. The services rendered in the temporary post is avail-
able either for earning increments or for commencement of
probation. [625E-F]
620
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1339-40
of 1988.
From the judgment dated 7.7.1987 of the Madras High
Court in W.P. Nos. 9781 and 10545 of 1986.
G.L. Sanghi, P.P. Rao, R. Mohan, R. Perumal, V. Krishna-
murthy, M.N. Krishnamani, V. Sekhar, K.V. Vishwanathan, T.
Raja, S.R. Setia, P. Chaudhary, A. Mariarputham and M.A.
Krishnamurthy for the appearing parties.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. In these appeals by special
leave, the legality of the judgment of the Madras High Court
dated 7 July 1987 quashing the promotions made to the cadre
of professors in law colleges in the State of Tamil Nadu has
been called into question.
The appeals arise in the following circumstances: During
the period from 197 1 to 1982 the Government appointed
temporary junior professors in different law colleges in the
State. The appointments were made under Rule 10(a)(i)(1) of
the Tamil Nadu State and SubOrdinate Services Rules, 1955
(Viz. The. Preliminary and The General Rules) (hereinafter
called ’the Rules’). In 1979 the State Public Service Com-
mission invited applications for regular appointment of
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junior professors. The temporary junior professors and
others applied for the posts. The Public Service Commission
selected 25 candidates out of whom 21 were already working
as temporary junior professors. The selected candidates were
arranged in the list called "approved list’.’ in the order
of merit. The list was prepared by the Public Service Com-
mission on 16 August 1983. It was approved by the Government
’on 9 December 1983. On 27 June 1985 the State Government
made an order regularising the services of those 21 junior
professors. Their services were regularised with effect from
the dates of original appointments as temporary junior
professors.
On 10 September 1986 some of the junior professors were
promoted and appointed as professors in the law colleges.
That. promotion was challenged before the Madras High Court
on the ground that the claim of the seniors has been over-
looked’ It, was urged before the High Court that once the
temporary services have been regularised retrospectively
with effect from the date of entry in the service, the
seniority should be reckoned by giving the benefit of regu-
larised service
621
notwithstanding the ranking in the approved list prepared by
the Public Service Commission. The High Court accepted that
plea and queshed the promotion of professors and directed
the Government to make a proper order of promotion in the
light of the views expressed in the judgment.
The correctness of the judgment of the High Court has
been assailed in these appeals. We must first outline the
necessary statutory provisions bearing on the question
raised.
Section 10(a)(i)(1) provides as follows:
"10. Temporary appointments:
(a)(i)(1) Where it is necessary in the public
interest owing to an emergency which has
arisen to fill immediately a vacancy in a post
borne on the cadre of a service, class or
category and there would be undue delay in
making such appointment in accordance with
these rules and the Special Rules, the ap-
pointing authority may temporarily appoint a
person, otherwise than in accordance with the
said rules.
Rule 22 so far as relevant reads:
"Reservation of Appointments--Where the Spe-
cial Rules lay down that the principle of
reservation of appointments shall apply to any
service, class or category, selection for
appointment thereto shall with effect on and
from the 7th June 197.1, in cases such selec-
tion is made by the Commission, and 8th Novem-
ber 1971, in other cases, be made on the
following basis--
(a) The unit of selection for appointment, for
the purpose of this rule, shall be one hun-
dred, of which ,eighteen shall be reserved for
the Scheduled Castes and the Scheduled Tribes
and thirty-one shall be reserved for the
Backward Classes and the remaining fifty-one
shall be filled on the basis of merit.
(b) The claims Of members of the Scheduled
Castes and the Scheduled Tribes and the Back-
ward Classes shall also be considered for the
fifty-one appointments, which shall be filled
on the basis of merit; and where a candidate
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622
belonging to a Scheduled Caste, Scheduled
Tribe or Back’ ward Class is selected on the
basis of merit, the number of posts reserved
for the Scheduled Castes and the Scheduled
Tribes or for the BackWard Classes, as the
case may be, shall not in any way be affected.
XXXXX XXXX XXXX
Rule 23, so far. as material, is as follows:
"23(a)(i) Date of Commencement of probation
of persons first appointment temporarily--If a
person appointed temporarily either under
sub-rule (a) or sub-rule. (d) of rule 10 to
fill a vacancy in any service, class or cate-
gory otherwise than in accordance with the
rules governing appointment thereto, such
vacancy being a vacancy which may be filled by
direct recruitment, is subsequently appointed
to the service, class or category in accord-
ance with the rules, he shall commence his
probation; if any, in such category either
from the date of his first temporary appoint-
ment or from such subsequent date, as the
appointing authority may determine.
XXXXX XXXXX XXXXX
Provided that on the date so determined, the
person possesses all the qualifications pre-
scribed for appointment to the service, class
or category, as the case may be.
(ii) A person who commences probation under
clause (i) shall also be eligible to draw
increments in the time scale of pay applicable
to him from the date of commencement of his
probation. Where commencement of probation is
ordered from a date earlier than the date of
the order and if this has not been enabled by
relaxation of any rule, he shall draw incre-
ments, including arrears, in the time-scale Of
pay applicable to him from such’ earlier date.
The appointing authority shall include a
provision to this effect while issuing orders
in all such cases.
Rule 35 omitting immaterial words, is in these
terms:
"35(a) The seniority of a person in a service,
class or cate-
623
gory or grade shall unless he has been
reduced to a lower rank as a punishment, be
determined by the rank obtained by him in the
list of approved candidates drawn up by the
T.N.P.S.C. or other appointing authoritY, as
the case may be, subject to the rule of reser-
vation. where it applies. The date of com-
mencement of his probation shall be the date
on which he joins duty irrespective of his
seniority." ,
It is under these Rules the Public Service Commission invit-
ed applications for selecting candidates for direct recruit-
ment to the cadre of Assistant professors in Law. The Public
Service Commission prepared the list of selected candidates
by following the reservation provided under rule 22. The
list was approved by the State Government.’ Rule 35(a)
states that seniority of a person’ be determined by the rank
’obtained by him in the list of approved candidates drawn by
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the Public Service Commission subject to rule of reservation
where it applies.
The contention urged for the respondents, is. that since
their temporary service as junior professors were regula-
rised, the regularised service should count for the purpose
of determining, their seniority and not the rankings in the
select ,list approved by the Government. We find little
substance in it. The order of regularisation is in these
terms:
"ORDER DATED 27.6.1985
In G.O Ms. No. 2288 Education
dated 9.12.1983 the Government approved the
selection made by the Tamil Nadu Public Serv-
ice Commission of the 25 candidates mentioned
therein for appointment by direct recruitment
as Junior Professor in the Tamil Nadu ’Legal
Educational Service- These 25 candidates were
appointed temporarily as from their taking
charge ’in G.O. Ms. No. 897 Education dated
11.7. 1984.
2. The Government have however, decided to
appoint them, regularly with effect from, the
dates on which, they were declared fully
qualified to hold the post of Junior professor
in the Law Colleges in Tamil Nadu prior to
their selection by the Tamil. Public. Service.
Commission and appointment as Junior ,Profes-
sors,in Law Colleges with reference to their
selection. The Government accordingly direct
that the services of the 21 individuals men-
tioned in
624
the Annexure to this order as Junior Profes-
sors in the Tamil Nadu Legal Educational
Service, be regularised with retrospective
effect from the dates noted against them.
3. The inter-se seniority of the 21 candi-
dates.indicated in the annexure is in accord-
ance with the seniority fixed by the Tamil
Nadu Public Service Commission. The inter-se
seniority position will not be affected in any
way with reference to the dates ’of regulari-
sation mentioned in column 3 of the annexure.
4. Under Rule 23(a)(ii) of the General Rules
for State and Subordinate Services, the incum-
bents are eligible for increments from the
date of their regularisation as they are fully
qualified to hold the post on that date. The
increments already sanctioned to them, for
their services as temporary. junior professors
prior to regular appointment, is ratified.
XXXXX XXXXX ’ ’
The first paragraph of the order refers to the selection
of 25 candidates by the Public Service Commission for ap-
pointment as Junior Professors in the’ law colleges and
their appointment with effect from their’ taking charges.
The second paragraph of the order deals with the regularisa-
tion of the services of/21 candidates out of 25 appointed.
The Government directed that the services of the 21 Junior
Professors specified in the order be regularised with retro-
spective effect from the date noted against them. In the
third paragraph it is stated that the inter-se seniority of
the 21 candidates is in accordance with the seniority fixed
by the Public Service Commission and the inter-se seniority
position will not be affected in any way with reference to
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the dates of regularisation of their services. The paragraph
four of the order deals with the rights of the candidates to
draw increments under rule 23(a)(ii) in the service rendered
as temporary Junior Professors.
The High Court has stated that Rule 35(a) could not have
been properly invoked by the State Government after the
regularisation of :he services of the candidates and it
would be against the very concept of order of regularisa-
tion. It has been pointed out that by regularisaion the
period of temporary service has been converted into a period
of regular service and a deeming, fiction is introduced that
the candidates whose services have been regularised retro-
spectively must be
625
treated for all purposes as being in regular service from
the respective dates of regularisation.
In our opinion, the view. expressed by the. High Court
not only runs counter to the terms of the order of the.
regularisation but also is inconsistent with Statutory
principle of determining seniority under Rule 35(a). In the
first place the order of regularisation of the services ’of
the candidateS expressly states that the inter se seniority
of, the candidates would be in accordance with the rankings
in the approved list prepared by the Public Service Commis-
sion and will not be affected in any way by the date of
regularisation of services. When the’ order of regularisa-
tion of temporary service itself denies such service for the
purpose of determining seniority, the Court cannot count
that service for the purpose of seniority. Secondly, Rule
3.5(a) provides for determining the inter-se seniority of
the candidates selected by the Public Service Commission. It
states that the seniority of a person in a service, class or
category or trade shall be determined unless he has been
reduced to a lower rank as a punishment, by the rank ob-
tained by him in the list of approved candidates drawn by
the Public Service Commission or other appointing authority
as the case may be’. Since the parties in these cases ap-
peared for selection before the Public Service Commission
for regular recruitment as Junior Professors, the list of
approved candidates prepared by the Public Service ’Commis-
sion in the order.of merit and accepted by the Government
should be the basis for determining their inter-se seniori-
ty. It is not open to the parties to claim that their tempo-
rary service as Junior Professors upon regularisation should
be counted for the purpose of determining the seniority in
the cadre. There is no rule supporting such contention. The
services rendered in the temporary post is available either
for earning increments or for commencement of probation.
That would be clear from Rule 23(a). Consistent with the
Rule 23(a), the Government in the order of regularisation
has directed that the incumbents are eligible for increments
from the date of their regularisation as they are fully
qualified to hold the post on that date. The increments
already sanctioned to them during their services as tempo-
rary Junior Professors prior to.regular appointment has been
ratified by the said order. The High Court was plainly in
error in ignoring the statutory Rules and the terms and
conditions of the order of regularisation of services.
Apart from that, Rule 10(a)(i)(1) provides for making of
temporary appointments when it is necessary in the public
interest to do so owing to an emergency which has arisen for
filling a vacancy immediately. Such appointments are made
otherwise than in accor-
626
dance with the procedure prescribed under the Rules. In the
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instant case the respondents were appointed temporarily and
otherwise than in accordance with ’the Rules. They were
later selected along with others for direct ,recruitment.by
the Public Service CommisSion. They were not entitled to
count their temporary service for seniority. In A.P.M.
Mayakutty etc, v. Secretary, Public Service Department etc.,
[1977] 2 SCR 937 at 942 this Court observed that the serv-
ices rendered by the applicants under Rule 10(a)(i)(1)
cannot be considered for the purpose of seniority as such
appointment is a matter of stop-gap, emergency or fortuitous
arrangement. The present case cannot’ be an exception to
this principle even though their temporary services have
been regularised, since regularisation ’was only for limited
purposes.
In any view of the matter the decision of the High Court
cannot be sustained.
In the result the appeals are allowed and the impugned
judgment is set aside with no order as to costs.
V.P.R. Appeals allowed.
1
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627