# DIRECTOR OF PANCHAYAT RAJ & ANR v. BABU SINGH GAUR

- **Citation:** [1972] 2 S.C.R. 400
- **Court:** Supreme Court of India
- **Decided:** 1971-11-18
- **Case number:** Civil Appeals Nos. 1011 ana 1012 of 1966
- **Bench:** K. S. Hegde, A. N. Grover, H. 'R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/director-of-panchayat-raj-anr-v-babu-singh-gaur-5663
- **Pages:** 9

## Headnote

Civil Servic~Temporary Servants-Declared to be holding posts in
substantive capacity-Posts s11bsequently 1nade permanent-No orde~s .of
confirmation -ol individual officers-Tennination on one month's notrceLegality-Fundamental Ruic 26(d) of Financial Hand Book, Vol. II• Part
II-Scope.
The respondents were appointed temporarily to thzir respective p6sts
.and at the -time of ,their appointment the posts were
also temporary.
Sometime after, therr 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
HI, Part JI, with retrospecth·e effect from the date of their first appointment. These posts alongwith other temporary posts, were subsequently
made permarient.
However, the govcrnmr:::nt did not c;onsider the ques·
tiorr of confirmation of the individual officers in these posts,
The respond.ents' services we're terminatod by one rμonth's notice as provided in the
rule for termination of the services of a government •crvant in temporary
service. The respondents filed writpetitions challenging the orders of termination of their services. The-High Court allowed these petitions. Setting ~ide the Orders of the High e"°rt and dismissing the writ petitions,
HELD :
Funoomental Rule 26(d) and the Order of the Governor
clearly show that they merely d"'1lt with leave and increment and the order
has nothing to do with the nantre 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 thau those mentioned in
the order their appointments continue to be tempornry. 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 substantive capacity. · [ 405 CJ
(ii) A temporary govern1ncnt servant does not becon1c permanent unless he gets that capacity either nuder some rule or he is declared or appointed bv the government a~ a· permanent govern111ent servant.
At the
tin1e of the conversion of the tc1nporary posts into vermanent posts
the
·government . did not consider the question of -confinuation of the officers
hol9ing those posts. And no rule has been shown under which the respondents can be considered ns having been appointed either pennancntly
or in a substantive capacity to permanent posts: [405 G]
St(lte of U.P. v. Abdul K'1alik. C. As. Nos. 782 & 783/66 decided
on April 30, 1969, applied.
\
. Pu1'~hotam Lal Dhingra v. The Union of India, fJ9581 S.C.R.
828
and Sti)te of Naga/and v. G. Vasantha, A.I.R. 19i0 S.C. 537. referred
~.
.

## Text

400
DIRECTOR OF PANCHAYAT RAJ & ANR.
v.
BABU SINGH GAUR
November 18, 1971
(K. S. HEGDE, A. N. GROVER AND H. 'R. KHANNA, JJ.]
Civil Servic~Temporary Servants-Declared to be holding posts in
substantive capacity-Posts s11bsequently 1nade permanent-No orde~s .of
confirmation -ol individual officers-Tennination on one month's notrceLegality-Fundamental Ruic 26(d) of Financial Hand Book, Vol. II• Part
II-Scope.
The respondents were appointed temporarily to thzir respective p6sts
.and at the -time of ,their appointment the posts were
also temporary.
Sometime after, therr 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
HI, Part JI, with retrospecth·e effect from the date of their first appointment. These posts alongwith other temporary posts, were subsequently
made permarient.
However, the govcrnmr:::nt did not c;onsider the ques·
tiorr of confirmation of the individual officers in these posts,
The respond.ents' services we're terminatod by one rμonth's notice as provided in the
rule for termination of the services of a government •crvant in temporary
service. The respondents filed writpetitions challenging the orders of termination of their services. The-High Court allowed these petitions. Setting ~ide the Orders of the High e"°rt and dismissing the writ petitions,
HELD :
Funoomental Rule 26(d) and the Order of the Governor
clearly show that they merely d"'1lt with leave and increment and the order
has nothing to do with the nantre 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 thau those mentioned in
the order their appointments continue to be tempornry. 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 substantive capacity. · [ 405 CJ
(ii) A temporary govern1ncnt servant does not becon1c permanent unless he gets that capacity either nuder some rule or he is declared or appointed bv the government a~ a· permanent govern111ent servant.
At the
tin1e of the conversion of the tc1nporary posts into vermanent posts
the
·government . did not consider the question of -confinuation of the officers
hol9ing those posts. And no rule has been shown under which the respondents can be considered ns having been appointed either pennancntly
or in a substantive capacity to permanent posts: [405 G]
St(lte of U.P. v. Abdul K'1alik. C. As. Nos. 782 & 783/66 decided
on April 30, 1969, applied.
\
. Pu1'~hotam Lal Dhingra v. The Union of India, fJ9581 S.C.R.
828
and Sti)te of Naga/and v. G. Vasantha, A.I.R. 19i0 S.C. 537. referred
~.
.
CIVIL APPELLATE JURISDICTION:
Civil Appeals Nos. 1011
ana 1012 of 1966 ..
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PANCHAYAT RAJ v. BABU SINGH (Hegde, J.)
401
Appeals by special leave from the judgments and decrees dated
February 12. 1965 and November 10, 1964 o~ the Allahabad
Hieh 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
Raf, 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 Jaw 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
Kishorc Bhatt was appointed as .Qte 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 appointments 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 Cdnstitution made the following rule:
"(!) 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
SUPREME COURT REPORTS
[1972] 2 S.C.R.
given either by the Governmep.t 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, provide_d. 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 requiring t!he 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 wholetime 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 lo the Government by March 23, ·
1953 whether he was prepared to be re-employed from April I,
1953 on the said terms. The respondent signified his consent for
re-appointment on the terms mentioned in the letter. Thereafter
he continued in service up to March 3 I, 1954. Subsequently his
appointment was extended for a period of one year from April 1,
1954 to March 31, 1955.
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PANCHAYAT RAJ v. BABU SINGH (Hegde, J.)
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 posts
of S.T.O. into permanent one.
With reference
to your letter
No. E-1-Cent-1313814/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.Os,
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.
~hould 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-C.
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
Ra1 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 o~der ~f the Governor regarding Fundamental Rule 26(d) of
the Fmancial 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
SUPREME COURT REPORTS
(1972] 2 S.C.R.
were converted into permanent posts subsequently. The services
of the respo_ndent 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
uμder Art. 226 of the Constitution before the Allahabad High
Court. His writ petition was dismissed by a single judge but in ap·
peal 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 fil'S't 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 increments in the
time-scale applicable to the temporary post if the government servants returns to the temporary post; provided
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 l·~ave counts
for increments to the time-scale applicable to th_t:__temporary post, but under clause (b) of this rule if a government 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 increc
ments 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 treatmerrt to which it gives ri&~ is
justified. Therefore, although these rules as they -stand
admit of both a substantive appointments to temporary·
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PANCHAYAT RAJ V. BABU SINGH (Hegde, J.)
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''Qf 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."
lt is clear frum the rules as well as the order of the Governor
that they merely dealt with leave and increment· That order ha>
nothing to do with the nature of the appointmen1. . The fact that
for •;ertain specified purposes those temporary appomtments were
to be considered to be in a substantive capacity, does not mean
that th~ appointees were holding !he posts in question in a substantiw 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 them 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
"orde:· 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 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
tempormy appointments in substantive capacity in permanent posts.
A ternporary government servant does not become a permanent
government servant unless he gets that capacity either under some
rule or he is declared or appointed by the government as a permanent government servant.
Our attention has not beer. invited to
any rule under which respondents in these appeals can be considered
ns ha\ing 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 pcists or permanent posts.
.
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rhis Court in Purshotam Lal Dhingra v. The Union of India(!)
con~i~ered i~-~ctail the nature of po1'.s held by government ser-
(1) [195R] S.C.R. RCS.
406
SUPREME COURT REPORTS
[1972] 2 S.C.R.
vants. Dealing with the question of subsantive appointment of a
person t? 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 appointmer.t 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 quasipermanent service."
In State of Naga/and v. G. Vasantha(1 ), this Court was called
the eJiecf of Fundamental Rules.
In these appeals also we are
.wnccrned with those Rul.es. After dealing with t!Je 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 speci_fied 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 end to
during that period unless he is, by way of.punishment,
dismissed or removed from the service. Except in these
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. V asantha('), this Court was called
upon tc decide the validity of termination of service of a goveminent servant by giving him notice of termination as prescribed
ili 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
fl) A.l.R. [1970] S.C. 537.
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PANCHAYAT RAJ v. BABU SINGH (Hegde, J.)
407
appointment that po§! 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 perma·
nent post did not confer on him any additional right. His service
was tenninable by giving him the prescribed notice under the Rules.
A question similar to the one before us came up for considera·
tion before this Court in State of U.P. v. Abdul Khalik( 1). The
facts of that case were substantially similar to the facts in these
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 hiin one month·s 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 month's 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 eijuated 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 Dec em bet 12, 19 5 7, certain other
persons were made permanent government servants. The
plaintiff cannot claim to be a permanent government
servant till he 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. ln
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 temp0rarily appointed does not get
a right to the post merely because the post held by him is converted
into a permanenb 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. Nos. 782 & 783/66 decided on April JO, 1969.
408
SUPREME COURT REPORTS
(1972] 2 S.C.R.
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 Co1.1rt.
Before leaving these cases, we would like to impress on the
government the hardship that is likely to be caused to the respon•
dents 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 sef'•ice.
·
S. C.
Appeals allowed.
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