# [1977] 2 S.C.R. 937

- **Citation:** [1977] 2 S.C.R. 937
- **Court:** Supreme Court of India
- **Decided:** 1977-02-08
- **Case number:** Civil Appeal No. 841 of 1974
- **Bench:** Y. V. Chandrachud, P. K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1977-2-s-c-r-937-7129
- **Pages:** 7

## Headnote

B
llllerstate senioritY, in equated posts consequent to the reorganfamion
of
.State.~Whether scrvt~es rendered under Rule !O(a)(i)(l) of the Madras State
.and Subo_rd~nate Services Rules would count for the purpose of fixing the interstate se'!1or11y-Kerala Government order dated 10-5-63 based 011 the
recommendatzon of the Central Government dated 16-2-1963-Va/idity of.
The three appellants, who were appointed as temporary junior engineers in
.the Madras High Way Subordinate Service under mle !O(a)(i) (!)
of the
C
Madras State and Subordinate Services Rules on 13-6-1950,
6-6-1951
and
.8-6-1951 respectively, on being selected by the Public Service Commission and
again appointed to the same posts were· permitted by an order issued under rule
23(a) ibid to commence their probationary period with effect from 15-3-1953,
-4th July, 1954 and 18th July 1954 respectively.
On
1-11-1956, on the re-
.organisation of States, they were allotted as junior engineers in the Kerala State
which was formed by .inclusion therein of parts of the States of Madras
and
Travancore-Cochin. For the purpose of fixing the interstate seniority, several
.orders were passed, from time tOI time, both by the Central Government and
D
the Government of Kerala.
A provisional integrated gradation list of junior
engineers was prepared by the State Government in October 1962 giving the
.appellants ranks therein at serial Nos. 123, 132 and 145 respectively.
On a
representation by the employees of the Travancore-Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala
Government on 16-2-1963. They were : (!) The Officers allocated to Kerala
from the former Madras· State may be allowed
the benefit of emergency
service towardi seniority in the equated category if such service would have
·been regularised from the date of their emergency appointment and if it would
E
have been counted for interstate seniority on November !, 1956 had
these
.officers remained in Madras. (2) The principles. laid down by the Governmenu
-0f Madras in their order dated July 17, 1957 be accepted and (3) The Government of India would have no objection even if the State Government was to
adopt the rule that interstate seniority would be determined on the basis of the
length of continuous service in the equated grade subject to the exclusion of
·service rendered in purely stop-gap or emergency arrangements and that on! y
short periods for which appointment was held under such arrangements should
be excluded.
The Government of Kerala passed an order on
May
10, 1963
F
adopting the first two alternatives but not the third.
The writ petition filed by
the appellants in the Kerala High Court challenging he said
orders dated
, 10-5-1963 was rejected.
Jn appeal by special leave, the appellants contended :
( 1) The emergency service rendered under Rnle !O(a) (i) (1) of the Rules
.ongbt to be taken into account because snch service can be taken into account
under Rnle 23 (a) ibid (ii) Such service is not liable to be excluded by reason
G
~
··Of the directives issued earlier by the Government of India on 3rd April 1957
and 1st March 1962, (iii) If the appellants had remained in Madras, the temporary sernce rendered by them would have been taken into account for fixing their seniority and (iv) Such, service should conn! in view of the grant of
increments to them from the date of their initial appointments in view of the
temporary service rendered by them having been counted for the purpose of
eligibility for promotion to the higher post of Assistant Engineers, they beinJ!
duly qualified to hold the posts of Junior Engineers, they having been permitted
to appear for departmental tests which are open only to the probationers, their
H
service books having been opened from the date of their appointmfnt and the
concurrence of the Public Service Commission having been obtained for continuing them in service after the expiry of three months and
again after the
.expiry of o

## Text

•
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'
A. P. M. MAYAKUTTY ETC.
v.
937
SECRETARY, PUBLIC SERVICE DEPARTMENT, ETC.
February 8, 1977
A
[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]
B
llllerstate senioritY, in equated posts consequent to the reorganfamion
of
.State.~Whether scrvt~es rendered under Rule !O(a)(i)(l) of the Madras State
.and Subo_rd~nate Services Rules would count for the purpose of fixing the interstate se'!1or11y-Kerala Government order dated 10-5-63 based 011 the
recommendatzon of the Central Government dated 16-2-1963-Va/idity of.
The three appellants, who were appointed as temporary junior engineers in
.the Madras High Way Subordinate Service under mle !O(a)(i) (!)
of the
C
Madras State and Subordinate Services Rules on 13-6-1950,
6-6-1951
and
.8-6-1951 respectively, on being selected by the Public Service Commission and
again appointed to the same posts were· permitted by an order issued under rule
23(a) ibid to commence their probationary period with effect from 15-3-1953,
-4th July, 1954 and 18th July 1954 respectively.
On
1-11-1956, on the re-
.organisation of States, they were allotted as junior engineers in the Kerala State
which was formed by .inclusion therein of parts of the States of Madras
and
Travancore-Cochin. For the purpose of fixing the interstate seniority, several
.orders were passed, from time tOI time, both by the Central Government and
D
the Government of Kerala.
A provisional integrated gradation list of junior
engineers was prepared by the State Government in October 1962 giving the
.appellants ranks therein at serial Nos. 123, 132 and 145 respectively.
On a
representation by the employees of the Travancore-Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala
Government on 16-2-1963. They were : (!) The Officers allocated to Kerala
from the former Madras· State may be allowed
the benefit of emergency
service towardi seniority in the equated category if such service would have
·been regularised from the date of their emergency appointment and if it would
E
have been counted for interstate seniority on November !, 1956 had
these
.officers remained in Madras. (2) The principles. laid down by the Governmenu
-0f Madras in their order dated July 17, 1957 be accepted and (3) The Government of India would have no objection even if the State Government was to
adopt the rule that interstate seniority would be determined on the basis of the
length of continuous service in the equated grade subject to the exclusion of
·service rendered in purely stop-gap or emergency arrangements and that on! y
short periods for which appointment was held under such arrangements should
be excluded.
The Government of Kerala passed an order on
May
10, 1963
F
adopting the first two alternatives but not the third.
The writ petition filed by
the appellants in the Kerala High Court challenging he said
orders dated
, 10-5-1963 was rejected.
Jn appeal by special leave, the appellants contended :
( 1) The emergency service rendered under Rnle !O(a) (i) (1) of the Rules
.ongbt to be taken into account because snch service can be taken into account
under Rnle 23 (a) ibid (ii) Such service is not liable to be excluded by reason
G
~
··Of the directives issued earlier by the Government of India on 3rd April 1957
and 1st March 1962, (iii) If the appellants had remained in Madras, the temporary sernce rendered by them would have been taken into account for fixing their seniority and (iv) Such, service should conn! in view of the grant of
increments to them from the date of their initial appointments in view of the
temporary service rendered by them having been counted for the purpose of
eligibility for promotion to the higher post of Assistant Engineers, they beinJ!
duly qualified to hold the posts of Junior Engineers, they having been permitted
to appear for departmental tests which are open only to the probationers, their
H
service books having been opened from the date of their appointmfnt and the
concurrence of the Public Service Commission having been obtained for continuing them in service after the expiry of three months and
again after the
.expiry of ooe year of their emergency service.
938
SUPREME COURT REPORTS
[1977] 2 s.c.R.
A
Dismissing the appeals, the Comt,
B
c
D
E
HEID : ( 1) A fact of fundamental importance which permeates every one
of these considerations is that the appellants were appointed under rule !O(a)
(i)(l) at the Madras State and Subordinate Services Rules.
In face of the
proviiiOilll of these rules and the express terms of their appointment, to the
effect, "that appointments were under rule !O(a)(i)(l)
purely temporary
neceiiitated on account of, the non-availability of regularly selected candidates,
conferring no claim for future appointment as junior engmeers aad they were
liable to be terminated at any time without previous notice", it is clear, that the
appointments were purely as a matter of stop-gap or emergency arrangement ·
and such serrice cannot be taken into account for the purpose of seniority from
the date of their initial appointment. [941 E, H, 942 A]
(2) Clauses (iii) and (iv) of rule IO(a) reflect significantly on the nature of
the appointment held by the appellants and show that the appellants were appointed initially on a uniquely precarious tenure. Such tenures hardly even
count for seniority in any system of service jurisprudence. [942-C-D]
(3) The fact that the appellants were qualified to hold the posts cannot, in
view of clause (iii) of rule lO(a) entitle them to count for the purpose of
seniority the period during which they served in a stop-gap or an emergency
arrangement. [942 Bl
(4) The contention that if the appellants had remained in
Madras
their
entire service would have counted for the purpose of seniority is without any
merit and one of speculation as to what course the appellants' destiny would
have taken had they remained in Madras. The Government of Madras itself
did not trellt the entire service of the appellants as regular when they were
selected by the Public Service Commission. That parent government undoubtedly assigned to them attificial dates for fixing ~he commencement of ~eir probationary periods but such dates, though antenor to the dates of their actual
selection by the Public Service Commission, were quite subsequent to the dates
of their initial appointment. The services rendered by them under rule IO(a)
(i) ( 1) wer-c treated by the Government which appointed them as a matter of
stop-gap, emergency or fortuitous arrangement. [942 D-G]
(5) Tho concurrence of the Public Service Commission. to the continuance
of the appellants in the post filled by them, firs~ after the !lxp1ry ?f three mont~s
and then after the expiry of one year was obtame~ not with a. view to regularising the appointments· but for the purpose of meetmg the r<:qu!rements of. a provision under which such concurrence is necessary to obtam 1f an appomtmcn'
made \Tithout selection by the Public Service Commission is required for any
F
rea~on to be continued beyond three months or a year. [943 E-F]
G
H
(6) In !he instant case, the initial appointment was not only made without
any reference to the Public Service Commission but the various rules and the
terms of the appointment show that the appellants were appointed purely as a
matter oJ' fortuitous or stop-gap arrangement. Their initial temporary services
cannot therefore be counted for the purpose of seniority. [943 B-C]
C. P. Dfll/lodaran Nayar v. State of Karn/a [1974] 2 SCR 867, distinguished
and held not applicable.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 841 of 1974.
Appeal by Special Leave from! the
Judgment and Order dated
3~-~-1970 of the Kerala High Court in Writ Appeal No. 39/70 and
C1v1l Appeal No. 1575 of 1970.
Appeal by Special Le-ave from the
Judgment and
Order dated
22-12-1969 of the Kerala High C0urt in O.P. No. 211/65,
•
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. '
~·.
•
A.P.M. MAYAKUTTY v. SECRETARY, P. s. DEPTT. (Chandrachud, J.) 939
V. Sivarama Nair and A. S. Nambiar for the Appellants in both
the Appeals.
A
M. C. Bhandare and K. M. K. Nair for Respondent No. 1 in CA
841 and R. 2 in CA 1575/70.
(Mrs.) Shyamla Pappu and Girish Chandra for Respondent No. 1
in CA No. 1575/70.
K. S. Ramamurthi, N. Sudhakaran and P. K. Pillai for Respondent
B
No. 45 in CA 1575/70.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-Since these two appeals involve identical questions, we propose to state the facts of one of these only.
The decision
in Civil Appeal No. 1575 of 1970'will govern the other appeal.
The three appellants were -appointed as temporary Junior Engineers
in the Madras High Way Subordinate Service under rule lO(a) (i) (1)
of the Madras State and Subordinate Services Rules.
Appellants 1
and 2 were appointed on June 6 and June 8, 1951 respectively while
the thir_d appellant was •appointed on June 30, 1950.
A few years
later they were appointed to the very same posts after selection by
the Public Service Commission and in course of time, orders
were
issued under rule 23(a) of the aforesaid rules permitting them
to
commence their probation from dates anterior to the dates of their
appointments after selection by the Public Service Commission but
subsequent to the dates of
their initial •appointments
under rule
.IO( a) (i) (1). The first appellant was permitted to commence. his
probationary period on July 4, 1954, the second on July 18,
1954
and the third ori March 15, 1953.
On November 1, 1956, on the reorganisation of States, appellants
were allotted as Junior Engineers to the Kerala Srate which
was
formed by inclusion therein of parts of the States of Madras and Travancore-Cochin.
As in other States, so in Kerala, it became necessary
to fix rules of seniority governing employees drawn
from different.
States, parts of which were integrated in Kerala.
A conference of
Chief Secretaries of various States was held on May 18 and 19, 1956,
to consider problems arising out of reorganisation of States and the
consequent integration of services.
Pursuant to the decision taken
in that Conference, the Government of Kera1'a passed an order on
December 29, 1956 providing that the relative seniority as between
persons drawn from ·different States. and holding posts declared to be
equivalent shall be determined by considering the length of continuous
service in the equated grade, whether such service is temporary or
officiating, quasi
permanent or
permanent.
The order,
however,
expressly provided that in the aforesaid determination, the period for
which an appointment was held "in a purely stop-gap or emergency
arrangement" was to be excluded.
On April 3, 1957 the Government of India issued a directive under section 117 of the States Reorganisation Act stating that it was agreed that in determining the
relative seniority as between two persons holding posts declared as
equivalent to ea.ch other and drawn from different States the length
12--206SCT /77
c
D
E
F
G
H
940
SUPREME COURT REPORTS
[19771 2 s.c.R..
A
of continuous service, whether temporary or persnanent, in the particular grade should be taken into account, excluding "periods for
wllich an appointment is held in a purely
stop-gap or fortuitous
arrangement."
On April 2, 1958 the Government of Kerala issued
a clarificatory order stating that for computing length of continuous
service "only short periods for which an appointment was held in
purely stop gap or emergency appointment will be excluded." It issued
B
another order on August 16, 1961 stating &at one year of temporary
service of Junior Engineers allotted from Madras would be excluded
for the purposes of fixing their interstate seniority.
Representations
were made against this order to the Government of India which direlcted
by an order dated March 1, 1962 that services rendered under provisional or emergency appointments by the Travancore-Cochin or
~
Madras personnel prior to November 1, 1956 before regularisation
-1
C
of their 'appointments should be taken into account for the purposes
of deciding. interstate seniority, only if such service is either regularised, or it is in a time-scale of pay and is reckoned for grant of
increments in the time-scale. and is continuous.
O'n May 16, 1962
the Government of Kerala passed an order modifying its earlier orders
so as to conform to the decision taken by the Government of India
on March 1,
Consequ'ently, in October 1962 a
provisional integD
rated grad_ation list of Junior Engineers was prepared by the State
Government giving to the appellants ranks therein at serial nos. 145,
137 and 123 respectively.
E
F
G
H
Employees d_rawn froni. the Travancore-Cochin area being evidently p~_ejudiced by the decision of the Kemla Government made
representations to the Government of India which, on February 16,
1963 recommended three alternatives for the acceptance of Kerala
Government.
The first alternative thus recommended was that the
officers allocated to Kerala from the former Madras St'ate may be
allowed the benefit of emergency service
towards seniority in
the
equated category if such service would h'ave been regularised from
the date of their emergency appointment and if it would have been
counted for interstate seniority on November 1, 1956, had
these
officers remained in M'adras.
The second alternative was that the
principles laid down by the Government of Madras in
their order
dated July 17, 1957 be accepted.
By the third alternative it was
stated that the Government of India would have no objection even
if the State Government was to adopt the rule that interstate seniority
would be determined on the basis of the length of continuous service
in the equated grade subject to the exclusion of service rendered in
purely stop-gap or emergency
arrangements and
that only
short
periods for which appointment was held under such
arrangements
should be excluded.
On May 10, 1963 the Government of Kerala
passed, an order adopting the first two alternatives but not the third.
The appellants thereafter field a writ petition in the Kerala High
Court which wa~ disposed of in December 1964 by directing them to
·file representations to the Government of India on the basis of a certain
decision rendered by the High Court earlier. The appellants accordingly made representations and on those being rejected, they filed a
writ petition in the High Court in August 1965. That writ petition
having been dismissed, they have filed this appeal by SIJecial leave ..
·,
A.P.M. MAYAKUTTY v. SECRETARY, P. s. DEPTT. (Chandrachud, ].) 941
The question which arises for decision is whether the serviCes
rendilred by the appellants under rule lO(a) (i) (1) of the Madras State
and Subordinate Services Rules must be taken into account for the purpose of fixing their seniority in the service of the Kerala Government
as from November 1, 1956.
It is urged on behalf of the appellants
th•at the aforesaid service ought to be taken into account because
such service can be taken into account under rule 23, ~econdly because such service is not liable to be
excluded by reason of
the
directives issued earlier by the Government of India and
thirdly
because if the appellants had remained in Madras, the
temporary
service rendered by them would have been taken into account for
fixing. their seniority.
Counsel for the appellants says that they were
granted increments from the date of their initial appointments, that
the temporary service rendered by them was counted for the purpose
of eligibility for promotion to the higher post of Assistant Engineers,
that they were duly qualified to hold the post of Junior Engineei:s,
that they were entitled and permitted to appear for departmental tests
which are open only to the probationers, that their service Qooks were
opened from the data of their initial appointments, and that the concurrence of the Public Service Commission was obtained for continuing them in service after the expiry of three months and then again
after the expiry of one year.
These facts and circumstances, according to the appellants, would justify the counting of temporary service
rendered by them for the purpose of fixing their seniority.
A
B
c
D
Having given every consideratio11 to these matters we think it
impossible to accept the appeal.
A fact of fundamental importance
which permeates every one of these considerations is that the appellants were appointed under ru)e lO(a) (i) (1) of the Madras State
E
and Subordinate Services Rules which runs thus :
"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
appointing
authority may temporarily appoint a person, otherwise than
in accordance with the said rules."
This provision contemplates the 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, in terms, are permitted to made otherwise than in accordance with the rules. The letters of appointment issued to the appellants mention expressely tha·t they were appointed under rule lO(a)
(i )( 1), that the appointments were "purely temporary necessitated
on account of the non-availability of regularly selected candidates conferring no claim for future appointmerit as Junior Engineers .... and
that the appointment is liable to be terminated at any time .without
previous notice." In face of the provisions of the rule and the terms
of the appointment it seems to us clear that the appellants were appointed purely as a matter of stop-gap or emergency arrangement. Since
F
G
H
942
SUPREME COURT REPORTS
[1977] 2 s.c.R.
A
such service cannot be t•aken into account for purposes of seniority,
the appellants cannot contend that the entire
service rendered
by
them from the date of their initial appointment must count for purposes of seniority.
B
c
D
E
F
G
H
.
Clause (iii) of rule. lO(a) makes this position clearer by providmg that a person appomted under clause (i) shall, whether or not
he possesses the qualifications prescribed for the service, be repl'aced
as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules.
The fact
that the appellants were qualified to hold the posts cannot, therefore,
entitle them to count for: the purposes of seniority the period during
which they served ·in a stop-gap or emergency arrangement.
Clause
(v) of rule lO(a) provides that a person appointed under clause (i)
shall not be regarded as a probationer, that he is not entitled by
reason only of such appointment to any preferential claim to future
appointment to the service •and that the services shall be liable to
be terminated at any time without notice and without assigning any
reason.
These provisions reflect significantly
on the nature of the
appointment held by the appellants and show that the
appellants
wete appointed initially on •a uniquely precarious tenure. Such tenures
hardly ever count for seniority in
any system of service
jurisprudence.
It is now only necessary to consider the appellant's argument that
had they remained in_ ¥adras, their entire service would have counted
for purposes of seniority.
In support of this argument reliance was
placed on the correspondence between the Governments of Keral'a
and Madras, but neither that correspondence nor a certain order dated
June 11, 1960, which is at Ex. P-17 in the record, can avail the
appellants.
In a way of saying, the proof of pudding is in the eating.
It is needless to specurate as to what course the appellants' destiny
would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants
as regular when they were selected by the Public Service Commission.
That parent government undoubtedly assigned to them artificial dates
for fixing the commencement of their probationary periods but such
dates, though anterior to the dates of their actual selection by the
Public Service Commission, were quite subsequent to the dates of their
initial appointment.
As stated earlier, the appellants were •appointed
initially in June 1951 and June 1950, but the Government of Maaras,
prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July 1954 and
March 1953.
This shows th•at the services rendered by the appellants under rule lO(a) (i) (1) were treated by the Government which
appointed them as a matter of stop-gap,
emergency or
fortuitous
arrangement.
The decision
in C. P. Damodaran Nayar v. State of Kerala(I)
on which the -appellants' counsel has placed reliance for showing that
temporary service of the kind rendered initially by the appellants can
(I) [1974] 2 S.C.R. 867.
+
•
<
.....
A.P.M. MAYAKUTTY v. SECRETARY, P. s. DEPTT. (Cha11drachud, !.) 943
be counted for the purposes of seniority has no application to the
instant case.
One of the appellants in that case was selected as a
District Munsif by the Madras Public Service Commission and was
posted as such on May 26, 1951.
He was in continuous service in
than post since his appointment but on being allotted to the State of
Kerala on November 1, 1956 his seniority was reckoned from October 6, 1951 on the footing "that the said date was assigned to him
as the date of conunencement of his continuous
service.
Dealing
with the appeal arising out of the dismissal of his writ petition, this
Court held that the service rendered by the appellant after his initial
appointment was neither emergency service nor was it a purely stop
gap or fortuitous arrangement.
The distinguishing feature of
that
case, which is highlighted in the judgment of the Court, is that the
appellant therein was "appointed in a regular manner through
the
Public Service Commission" and therefore his appointment could not
"by any stretch of imagination" be described as having been made to
fill a purely stop-gap or fortuitous vacuum (p. 876). In our case
the initial appointment was not only made without any reference to
the Public Service Commission but the various rules and the terms
of the appellants' appointment to which we have dmwn attention show
that the appellants were appointed purely as a matter of fortuitous
or stop-gap arrangement.
The concurrence of the Public Service
Commission to the continuance of the appellants in the posts filled by
them, first after the expiry of three months and then after the i;;xpiry
of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to
obtain if an appointment made without
selection by
the
Public
Service Commission is required for any reason to be continued beyond
three months or a year.
For these reasons we confirm the judgment of the High Court
and dismiss this appeal.
There will be no order as to costs.
Civil Appeal No. 841 of 1974 will also stand dismissed but without an order of costs.
S.R.
Appeals dismissed.
A
B
c
D
E
F