# P. C. PATEL AND ORS v. SMT. T. H. PATHAK AND ORS

- **Citation:** [1977] 1 S.C.R. 677
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Case number:** Civil Appeal No. 1022 of 1975
- **Bench:** A. N. Ray, M. H. Beg, P. N. Si·Iinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-c-patel-and-ors-v-smt-t-h-pathak-and-ors-6941
- **Pages:** 6

## Headnote

Civil
service-Seniority-Irregular
recruitme11t-Reg11/arisat io11-A ppoint_
ments through Public Service Commission-Recr111tme11t throu[!h centrnltscd
recruitn1ent sclzenie.
The respondents Nos. 1 to 10 who were Writ "Petitioners in the High Court,
were appointed as clerks between June, 1963 to January, 1967 on temporary
basis and were promoted to higher posts thereafter. They c.ontcnded that at th_c
relevant time there was no rule or order requiring that nppomtrnents to thell"
posts shall be made through Public Service Commission: The Gujarat Gov.ernment issued Gujarat Non-Se_cretariat Clerks,. Clerk Typists _and Typtsls (Dtrect
Recrnitment Procedure) Rules, 1970. Thereafter, by resolutwn dated 15-4-1971,
it was stated that seniority of the candida·tes who were to be selected for the
posts of Clerks, Clerk typists and typists shall be determined as if_ their allotment or appointment was from 17-4-1970 trrespective of the questi~n whether
they were in service or not, and that their nam~s shall b~ arranged. in a common
seniority list in order of merit in accordance with the pnnc1ples Jaid down m the
Rules.
The Writ petitioners filed a Writ Petition in the Gujarat High Court feeling
aggrieved by the said 1970 Rules and the 1971 resolution.
.
The Writ Petitioners contended thrut the Government should be direct~d to
treat their entire service as regular and that their seniority should he fixed on the
basis of the dates on which they had joined their respective posK
The State Government in its counter affidavit po'nted out that the Writ
Petitioners were not recruited through proper channel; that even though the
centralised recruitn1ent scheme was in. existence and \Vas appli.:able with efrect
from January, 1963, the Writ Petitioners did not com~ through ti1e employment
exchanges that their appointments were by way of a stop-gap arrangement. The
State, however, admitted in its affidavit that the Writ Petiti0•1or' were not under
the purview of the Gujarat Public Service Commission at the time of their
appointment.
The State contended that the Writ Petitioners were irregularly
appointed and that 1970 Rules were framed on humanitarian considerations to
regularise their appointments and that, their seniority could not be counted from
the dates of their appointment and could be counted only from 1 'lth April, 1970.
B
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F
The High Court came to the conclusion that the Centralised Recruitment
Scheme was not applicable when the Writ Petitioners were appointed and that
the posts were also not within the purview of the GujaTat Public Service Commission until March, 1969.
The High Court therefore, held that the appointments of the petitioners were regular and were not required to be regularised
under the 1970 Rules. It also held that the State Government had no power to
.issue the circular under rnle 30 of the Rules for allotment and fixation of a
G
seniority and that the instrnctions contained in the resolution of 197 l were not
applicable to the Writ Petitioners. The High Court allowed the Writ Petition,
struck down the seuiority list, and directed the State Government and the Director of Civil Supplies to treat the services of the petitioners as regular from the
dates when they were appointed initially and not to apply the instructi::Jns. contained in the resolution of 1971 to compute their seniority.
The appellants, who claimed to have been appointed regularly from the beginning and who contend that the appointments of the writ petitioners were irregular
H
filed appeal by Special Leave. The appellants contended :
-
1. That the 'initial appointment of the Writ Petitioners was irregular, being
in violation of the centralise_d recruitment scheme, since the office
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
of. the Director of Civil Supplies became a part and parcel of the
Directorate of Civil Supplies. and that the
centralised recruitment
scheme was applicable to the recruitment of the Writ Petitioners.
2. The appointment to the pos

## Text

I
677
P. C. PATEL AND ORS.
v.
SMT. T. H. PATHAK AND ORS.
September 22, ! 976
[A. N. RAY, CJ., M. H. BEG AND P. N. SI·IINGHAL, JJ.J
Civil
service-Seniority-Irregular
recruitme11t-Reg11/arisat io11-A ppoint_
ments through Public Service Commission-Recr111tme11t throu[!h centrnltscd
recruitn1ent sclzenie.
The respondents Nos. 1 to 10 who were Writ "Petitioners in the High Court,
were appointed as clerks between June, 1963 to January, 1967 on temporary
basis and were promoted to higher posts thereafter. They c.ontcnded that at th_c
relevant time there was no rule or order requiring that nppomtrnents to thell"
posts shall be made through Public Service Commission: The Gujarat Gov.ernment issued Gujarat Non-Se_cretariat Clerks,. Clerk Typists _and Typtsls (Dtrect
Recrnitment Procedure) Rules, 1970. Thereafter, by resolutwn dated 15-4-1971,
it was stated that seniority of the candida·tes who were to be selected for the
posts of Clerks, Clerk typists and typists shall be determined as if_ their allotment or appointment was from 17-4-1970 trrespective of the questi~n whether
they were in service or not, and that their nam~s shall b~ arranged. in a common
seniority list in order of merit in accordance with the pnnc1ples Jaid down m the
Rules.
The Writ petitioners filed a Writ Petition in the Gujarat High Court feeling
aggrieved by the said 1970 Rules and the 1971 resolution.
.
The Writ Petitioners contended thrut the Government should be direct~d to
treat their entire service as regular and that their seniority should he fixed on the
basis of the dates on which they had joined their respective posK
The State Government in its counter affidavit po'nted out that the Writ
Petitioners were not recruited through proper channel; that even though the
centralised recruitn1ent scheme was in. existence and \Vas appli.:able with efrect
from January, 1963, the Writ Petitioners did not com~ through ti1e employment
exchanges that their appointments were by way of a stop-gap arrangement. The
State, however, admitted in its affidavit that the Writ Petiti0•1or' were not under
the purview of the Gujarat Public Service Commission at the time of their
appointment.
The State contended that the Writ Petitioners were irregularly
appointed and that 1970 Rules were framed on humanitarian considerations to
regularise their appointments and that, their seniority could not be counted from
the dates of their appointment and could be counted only from 1 'lth April, 1970.
B
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F
The High Court came to the conclusion that the Centralised Recruitment
Scheme was not applicable when the Writ Petitioners were appointed and that
the posts were also not within the purview of the GujaTat Public Service Commission until March, 1969.
The High Court therefore, held that the appointments of the petitioners were regular and were not required to be regularised
under the 1970 Rules. It also held that the State Government had no power to
.issue the circular under rnle 30 of the Rules for allotment and fixation of a
G
seniority and that the instrnctions contained in the resolution of 197 l were not
applicable to the Writ Petitioners. The High Court allowed the Writ Petition,
struck down the seuiority list, and directed the State Government and the Director of Civil Supplies to treat the services of the petitioners as regular from the
dates when they were appointed initially and not to apply the instructi::Jns. contained in the resolution of 1971 to compute their seniority.
The appellants, who claimed to have been appointed regularly from the beginning and who contend that the appointments of the writ petitioners were irregular
H
filed appeal by Special Leave. The appellants contended :
-
1. That the 'initial appointment of the Writ Petitioners was irregular, being
in violation of the centralise_d recruitment scheme, since the office
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
of. the Director of Civil Supplies became a part and parcel of the
Directorate of Civil Supplies. and that the
centralised recruitment
scheme was applicable to the recruitment of the Writ Petitioners.
2. The appointment to the posts held by the Writ Petitioners were required to be made through Public. Service Commission, but as they
were not made through P.S.C. the appointments were irregular.
Dismissing the appeal with a modification,
HELD: 1. The High Court has rightly negatived both the contentions of the
appellants. The State in its affidavit bad admitted that the posts, the Writ Petitioners were not within under the purview of the Public Service Commission
at the time of their appointment.
The High Court
has a-lso
rightly
held
that by describing the ca'dre• in question as a "State Ca!.lre", it could not be
said that the modified scheme was made applicable to the Directorate.
It is
clear from the scheme that it governed the recruitment to the regional offices
and not to the offices of the Directorate. [680 C-E, F-G]
2. Rule 29 of the 1970 Rules can apply only if the initial appointment
was irregular, i.e., if the Public Service· Commission was not consulted when
the consultation was required and if the recruitment had not taken place through
the Centralised Recruitment Scheme when it was necessary to do so.
In the
present case Rule 29 cannot apply because the appointments of the Writ Petitioners were regular. [681 G-H]
3. The view taken by the High Court is quite justified and does not call
for interference. [681 F]
4. The High Court, however, was not justified in directing that the ~eniority
should be counted from the respective dates of the appointment of the Writ
Petitioners. The High Court ought ta have left the matter to the State Govern-·
ment to re-examine the question of fixing the seniority to give effect to their
intention of ameliorating the lot of the writ petitioners. [682 A-Bl
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1022 of 1975.
F
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Appeal by Special Leave from the Judgment and Order dated
27-2-75 of the Gujarat High Court in Spl. Civil Appln. No. 767/74.
S. K. Dholakia and R. C. Bhatia, for the Appellants.
Hardayal Hardy, K. R. Nagaraja, S. K. Mehta and P. N. Purl,
for Respondents 2, 4, 5, 7-10.
R. N. Sachthey, for Respondent No. 11.
The Judgment of the Court was delivered by
SHINGHAL, J.-This appeal by special leave is directed against a
judgment of the Gujarat High Court dated February 28, 1975, in a
writ petition filed by Smt. T. H. Pathak and nine others, who are now
arrayed as respondent Nos. 1 to 10 and will hereafter be referred to
as the writ pe!itioners.
They were appointed as clerks or accounts.
clerks from June 19, 1963 to January 12, 1967, on a temporary basis,
in the office of the Director of Civil Supplies (Accounts), Gujarat, and
were promoted to higher posts thereafter.
They claimed that there
was no rule or prder until March l, 1969, requiring that appointments
on their posts shall be made through the Gujarat Public Service Commission, so that their appointments were outside the purview of the
Commission and we.re regular.
The State Government however made
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P. c. PATEL v. SMT. T' H. PATHAK (Shinghal, J.)
679
the Gujarat Non-Secretariat Clerks, Clerk-typists and Typists (Direct
Recruitment Procedure) Rules, 1970, hereinafter referred to as the
Rules on April 17, 1970, and issued instructions for their enforcement,
inclutling instructions. for determin~tion of their. seni(!rity:
That was
followed by .a resolutwn dated Apnl 15, 1971, m whtch 1t was stated
that the seniority of the candidates who were to be selected for the
posts of clerks, clerk-typists and typists under clause (i) (a) of rule 29,
shall be determined from April 17, 1970, as if their allotment and/or
appointment was _frnm that date irrespe~tive of the question wheth~r
they were in servtce or not, and that thelf names shall be arranged m
a common seniority list in order of merit, in accordance with the principles laid down in the Rules.
The writ petitioners felt aggrieved
against the prowsions of the Rules and the Government instruction~,
as well as the seniority list which was published thereunder on Apnl
J 8, 1974.
They prayed for a direction requiring the authorities concerned to treat their service as regular, for
quashing the
aforesaid
resolution dated April 15, 1971, and for a direction that their seniority
may be fixed on the basis of the dates on which they had joined their
respective posts.
The respondents to the writ petition traversed the contentions of
the writ petitioners in their replies. The State Government stated in
its reply that the writ petitioners were not recruited through proper
channel even though the Centralised Recruitment Scheme was in 'existence and was applicable to their office with effect from January 21,
1963, that they did not come through the employment exchanges, that
their appointments were by way of a stop-gap arrangement pending recruitment through Centralised
Recruitment Scheme or the
Public
Service Commission, and that as they were
"irregularly appointed"
their services could be terminated at any time. It was pleaded that it
was for that reason that the Government made a provision in rule 29
of the Rules, on humanitarian considerations, to regularise the appointments in accordance with the provisions of the Rules. It was accordingly contended that the writ petitioners could not claim seniority from
the dates ·of their irregular appointments and their service, for purposes
of seniority, could only be counted from April 17, 1970.
The High Court took the view that the Centralised Recruitment
Scheme was not applicable when the writ petitioners were appointed
in the Directorate of Civil Supplies (Accounts) or in the office of the
Deputy Director of Civil Supplies (Accounts), and that their posts
were also not within the purview of the Gujarat Public Service Commission until March 1, 1969. The High Court therefore held that the
appointments of the writ petitioners were regular and were not required
to be regularised under rule 29 of the Rules. It held that the State
Government had no power ·to issue the circular under rule 30 of the
Rules for "allotment" and fixation of seniority of the writ petitioners,
and the instructions contained in the resolution dated April 15, 1971
were not applicable to them. It accordingly allowed the writ petition
struck down the seniority list dated April 18, 1974, directed the Stat~
Government and the Director of Civil Supplies (Accounts) to treat the
service of the writ petitioners as regular from the dates when they were
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
appointed initially, not to apply the instructions contained in the resolution dated April 15, 1971 to them, to compute their seniority from
the dates of tht~ir respective initial appointments and to fix their seniority afresh on that basis.
The appellants, who claim to have been
appointed regularly from the very beginning, and challenge the appointments of the writ petitioners as irregular, feel aggrieved, and this is how
the present appeal has come up for consideration before us.
It has been argued by counsel for the appellants that the initial
appointments of the writ petitioners were irregular and the High Court
erred in taking the view that rule 29 of the Rules was not applicable
to them.
This argument has been advanced on the grounds that 1he
office of the Director of Civil Supplies (Accounts) became a part and
parcel of the Directorate of Civil Supplies and appointments to the posts
to which the writ petitioners were initially appointed were therefore
required to be made through the Public Service Commission, and that
the Centralised Recruitment Scheme was made applicable to those·
appointments in pursuance, at any rate, of the resolution dated July 9,
1964. We find that both these contentions have been examined by the
High Court and it has giyen satisfactory reasons for taking the view
that this was not so.
It wm be enough to say that the Directorat'e
of Civil Suppl~es (Accounts) was not included in appendix B to the
Scheme which formed part of the resolution elated November 21, 1960
by which certain posts were brought within the purview of the Public
Service Commission. It has in fact been admitted in the a:fficl::ivit of
K. K. Joshipura, Under Secretary to the
State Government. dated
September 4, 1974, that it was "true the office of the D.C.S.(A) was
not under the rmrview of the Gujarat Public Service Commission
at
the time of the appointment of the petitioners." There is
therefore
nothing wrong with the view which has prevailed with the High Court
that the Directorate did not come und\ir the purview of the Public
Service Commission until March 1, 1969.
As regards the Centralised Recruitment Scheme and the resolution
of January 21, 1963, the High Court has again rightly held that the
resolution applied to recruitment of clerks in district and
regional
offices and as the Directorate of Civil Supplies (Accounts) was not
1 such an office, the Scheme did not apply to it. We havv gone through
the other resolution dated July 9, 1964, which modified the Scheme,
but here again the High Court has rightly taken the view that merely
because of use of the expression "state cadre", it could not be said that
the modified scheme was made applicable to the Dirctorate. We have
gone' through the whole of the Scheme and we have no doubt that it
governed recruitment to district and regional offi.ces, and there is
no
justification for the argument that it become applicable for recruitment
of clerks in the Directorate of Civil Supplies (Accounts) as well.
As it is, nothing has been shown to justify the view taken by the
State Government that the initial appointments of the writ petitioners
were irregular and had to be regularised in accordance with the proH
visions of rule 29 of the Rules.
The rule provides as follows,-
\
"29. Notwithstanding anything contained in these rules
·"
the following cases shall be regularised in the manner shown
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P. c. PATEL v. SMT. T. H. PATHAK (Shinghal, J.)
681
below in relaxation of their upper age, provisions .of Re~ri.:it
ment Rules concerned and/or rules for pre-service trammg
:inade by Government in this behalf to the extent indicated
below :-
( 1) (a) Persons
initially
recruited
otherwise
than
through the Gujarat Public Service Commissio!-1, or Cent.ralized Recruitment Scheme, as clerks, clerk-typists or typists
in the offices to which the Rules apply, and who have rendered not less than 2 years' continuous service, as clerk or
clerk-typist or typist, as the case may be, as on 31s~ D~ce1'.1ber 1968 in one or more offices and who are contmumg m
Go~ernment service as clerks, clerk-typists or typists, as the
case ma):' be, on the date of this notification or such persons
whose names are kept on the Waiting List for provisional
appointment for the reason tha_t they had to be discharge~
for want of posts even though they had rendered 2 years·
continuous service as on 31st December, 1968 shall be re--
quired to appear at the special ,interv_iew an~/or the spe~ial
typing test to be held for them for th_eir select1~:m for appomtment to the post of clerk, clerk-typist or typist, as the case
may be."
Then follow the other sub-rules with which we are not concerned. The
writ petitioners were initially recruited
otherwise than
through the
Gujarat Public Service Commission and the Centralised Recruitment
Scheme and they had rendered not less than two years' continuous
service as clerk, clerk-typists or typists by December 31, 1968, but,
as would appear from the history of their service, it could not be said
that they were continuing in Government service as clerks, clerk-typists
or typists on April 17, 1970, which wqs the date of the notification of
the Rules.
The State Government therefore again erred in thinking
that their service was
governed by rule 29 ( 1) (a).
So
when the
appointments of the writ petitioners were not irregular, and they were
not continuing in Government service as clerks, clerk-typists or typists
on April 17, J 970, rule 30 of the Rules was also not applicable to
them and it was not permissible for the authorities· concerned to determine their allotment and seniority under that rule.
The view taken
by the High Court is therefore quite justified and does not call for interference.
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The write petitioners had put in severa: years of service, and had
received promotions from time to time.
Their appointments
were
however temporary all through. It _appears that the State Government
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thought of ameliorating their lot for that reason and attempted to do
so by making the aforesaid rule 29 o~ the Rules.
But, as has been
shown, in doing so the State Government laboured unde~ the impression that the initial appointments of the writ petitioners were irregular,
and had to be regularised. As this was not a correct premise, and as
rule 29 is not really applicable to the writ petitioners for the reasons
mentioned above, it would perhaps be advisable for the State GovernH
ment to re-examine the whole matter and to take appropriate action
to give effect to their intention of ameliorating the lot of the writ petitioners. That is however not a matter for this Court to decide.
The
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682
SUPREME COURT REPORTS
( 1977) 1 S.C.R.
High Court was therefore not justified in directing that the seniority
of the writ petitioners should be computed on the basis that "their
services with effect from the respective dates of their joining service
as Clerks in the Directorate of Civil Supplies (Accounts) were regular
and in accordance with law." As it would have been enough for the
High Court to say that the State Government may re-examine the question of fixing the seniority of the writ petitioners and to take appropriate
action to ameliorate their lot as temporary employees, the operative
part of the impugned judgment of the High Court is modified to this
extent.
The appeal otherwise fails and is dismissed.
In the circumstances of the case, we leave the parties to pay and
bear their own
costs.
P.H.P.
Appeal dismissed.
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