# STATE OF MYSORE & ANR v. S.V.NARAYANAPPA Augusl 22, 1966

- **Citation:** [1967] 1 S.C.R. 128
- **Court:** Supreme Court of India
- **Decided:** 1965-10-21
- **Case number:** Civil Appeal No. 1420 of 1966
- **Bench:** K. Subba Rao, C. J. A!'o:D J. M. SHF.LAT
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-mysore-anr-v-s-v-narayanappa-augusl-22-1966-3801
- **Pages:** 7

## Headnote

Mysore Civil Servia Rules, 1958-Govemmenl Order daied 22nd S•pl.
1961-Loca/ candi®tes entit/.:.>d to have their stri·icts regule1rised under
order-Break in servic.e after !st Jan. 1960-Efftct of.
The respon<lent joined Class III service of the Mysore Government in
1958 u a local candidate.
According tD the Mysore Civil Service Rules,
1958 a local candidate meant a temporary Oovenunent servant not appointed regularly in accordance with the rule• of recruitment
to
that
s«Vice.
On September 22,
1961 tho Mysore Government paS!cd an
order whereby under sub-cl. (i) of cl. 2 local candidates appointed befOl'e
Dec. 31, 1959 were entitled to have their appoinlments reiUlariscd subject
to certain conditions.
Acoording to sui>d. (ii) of cl. 2 of the Order
rbe services of local candidates were ID be regulasised with effect from
the date of their appointmenr, from which their service was continuoua
pnnided they were in service on !st January 1960 and continued to be
in service at tho time their services were regularised.
Sub-clause (iii)
aaid that local service would count for purposes of lea....,, pension and
increments but not for purposes of seniority, and that only the •enice
from the dare of regularisation of the appointment in the particular
depanment would count for seniority.
Sub.clause (iv) laid down that
breaks in ~rviee \\'Ould not be condoned even if such break<> were only
fOf' short periods.
There ~·as a ·break of one day in the rcspondent'i
service on March I, 1961.
The Mysore Government terminated his
1e1Vice on July 4, 1963.
The r .. pondent filed a writ pelition before
the High Coun claiming that he was entitled to have his appointment
regularised under the aforesaid Government Order. The High Court held
that the requirements of tho Order were that a 1""'11 candidate Wti
entitled to its benefit if ho joined service before Dec. 31, 1959 and was In
aervice on two dates, namely I st January 1960 and 22nd September 1961.
On this view the H.igb Coun allowed the respondent's pelition whereupon
the State appealed to this Coun.
HELD : The High Court was wrong in its con~truction of !".Ub-cl. (ii)
of cl. 2 of the Order.
On a harmonious construction o( sub-cl. (ii) with the other
subclauses of cl. 2 its proper interpretation would be that in order that
the regularisation order may apply to a particular case the local candidate
must be initially appointed prior to December 31, 1959, he must be
in service on January l, 1960 and continue to be in service without
any break till the date of the order. Since the service af the respondHt
was not continuous during this period be was not entitled to regularisation of his appointment under the Order. (133 OJ
av1L APPELi.ATE JURISDICTION: Civil Appeal No. 1420 of 1966.
128
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MYSORE v. NARAYANAPPA (She/at, !.)
129
Appeal by special leave from the judgment and order dated
October 21, 1965 of the Mysore High Court in Writ Petition
No. 2173 of 1964.
S. T. Desai, B. R. L. lyenger and B. R. G. K. Achar, for the
appellant.
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R. B. Datar, Ani/ Kumar Sablok and B. P. Singh, for the
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respondent.

## Text

STATE OF MYSORE & ANR.
v.
S.V.NARAYANAPPA
Augusl 22, 1966
[K. SUBBA RAO, C. J. A!'o:D J. M. SHF.LAT, JJ.j
Mysore Civil Servia Rules, 1958-Govemmenl Order daied 22nd S•pl.
1961-Loca/ candi®tes entit/.:.>d to have their stri·icts regule1rised under
order-Break in servic.e after !st Jan. 1960-Efftct of.
The respon<lent joined Class III service of the Mysore Government in
1958 u a local candidate.
According tD the Mysore Civil Service Rules,
1958 a local candidate meant a temporary Oovenunent servant not appointed regularly in accordance with the rule• of recruitment
to
that
s«Vice.
On September 22,
1961 tho Mysore Government paS!cd an
order whereby under sub-cl. (i) of cl. 2 local candidates appointed befOl'e
Dec. 31, 1959 were entitled to have their appoinlments reiUlariscd subject
to certain conditions.
Acoording to sui>d. (ii) of cl. 2 of the Order
rbe services of local candidates were ID be regulasised with effect from
the date of their appointmenr, from which their service was continuoua
pnnided they were in service on !st January 1960 and continued to be
in service at tho time their services were regularised.
Sub-clause (iii)
aaid that local service would count for purposes of lea....,, pension and
increments but not for purposes of seniority, and that only the •enice
from the dare of regularisation of the appointment in the particular
depanment would count for seniority.
Sub.clause (iv) laid down that
breaks in ~rviee \\'Ould not be condoned even if such break<> were only
fOf' short periods.
There ~·as a ·break of one day in the rcspondent'i
service on March I, 1961.
The Mysore Government terminated his
1e1Vice on July 4, 1963.
The r .. pondent filed a writ pelition before
the High Coun claiming that he was entitled to have his appointment
regularised under the aforesaid Government Order. The High Court held
that the requirements of tho Order were that a 1""'11 candidate Wti
entitled to its benefit if ho joined service before Dec. 31, 1959 and was In
aervice on two dates, namely I st January 1960 and 22nd September 1961.
On this view the H.igb Coun allowed the respondent's pelition whereupon
the State appealed to this Coun.
HELD : The High Court was wrong in its con~truction of !".Ub-cl. (ii)
of cl. 2 of the Order.
On a harmonious construction o( sub-cl. (ii) with the other
subclauses of cl. 2 its proper interpretation would be that in order that
the regularisation order may apply to a particular case the local candidate
must be initially appointed prior to December 31, 1959, he must be
in service on January l, 1960 and continue to be in service without
any break till the date of the order. Since the service af the respondHt
was not continuous during this period be was not entitled to regularisation of his appointment under the Order. (133 OJ
av1L APPELi.ATE JURISDICTION: Civil Appeal No. 1420 of 1966.
128
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MYSORE v. NARAYANAPPA (She/at, !.)
129
Appeal by special leave from the judgment and order dated
October 21, 1965 of the Mysore High Court in Writ Petition
No. 2173 of 1964.
S. T. Desai, B. R. L. lyenger and B. R. G. K. Achar, for the
appellant.
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R. B. Datar, Ani/ Kumar Sablok and B. P. Singh, for the
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respondent.
The Judgment of the Court was delivered by
Shelat, J. This appeal by special leave is against the Judgment and Order of the High Court of Mysore quashing the memornndum dated July 4, 1963 whereby the State Government terminated the service of the respondent. The only question arising
in thls appeal is one of interpretation of the Government Order
No. GAD 46 SRR, dated September 22, 1961.
The respondent entered government service as an officiating
computor in the Government Press on March I!, 1958 and continued in that post until September I, 1958. He was thereafter
appointeil from time to time in officiating capacity in different
posts though in the same department until December 3, 1959
when he was appointed as a proof examiner.
He continued in
that post until February 28, 1961. According to the appellants
there was break in his service on March I, 1961 as his service was
terminated on February 28, 1961 and he was once again appointed
on March 2, 1961 as a second division clerk (Industrial). He
continued in that post until July 4, 1963 when the impugned
order terminating his service was passed. The first of March
1961 on which it was said there was break in his service was a
holiday.
There is no dispute that the respondent was throughout working in officiating capacity and was a "local candidate" like
several other such employees appointed by direct recruitment by
Government instead of regular recruitment by the Public Service
Commission of the State as required by the rules of Recruitment.
Rule 8(27 A) of the Mysore, Civil Service Rules, 1958 defines
a "local candidate" as meaning a temporary Government servant
not appointed regularly in accordance with the Rules of Recruitment to that service.
Rule l(A) of the Mysore Government
Servants' (Seniority) Rules, 1957 provides that those rules do not
apply to a person appointed as a local candidate so long as he
is treated as such. Jt further provides that where his appointment is treated as regularised from any date, his seniority in the
service shall be determined in accordance with these rules as if he
had been appointed regularly in accordance with the Rules of
130
stlPRBMB COU!lT REPORTS
(1967] I S.CJl.
Recruitment to the post held by him on that day. Since the appointment of local candidates as in the case of the respondent
was not made by or through the Public Service Commission as
required by the Rules, the State Government with a view to regularise such appointments passed the said order dated September 22, 1961.
The material portion of the said order runs as follows :-
2.
(i) All appointments to Class III Direct Recruitment
Posts made by the local appointing authorities, both in
the old Mysore area (including Bellary District) and in
the other integrating areas up to 31st December 1959
(inclusive) may be regularised
subject to the condition that the candidates were within the prescribed age
limits and had the requisite qualifications at the tiir-: of
their initial appointments;
(ii) The seniices of local candidates shall be regularised
with effect from the date of their appointment, from
which their service is continuous provided they were
in service on I st January 1960 and continue to be
in service at the time their services are regularised.
(iii) The local service will count for purposes of leave,
pension and increments ............ but not for purposes
of seniority; only the service from the date of regularisation
of their appointments in the . particular department will
count for seniority;
(iv) Breaks in service will not be condoned even if such
breaks are only for short periods.
In the Writ Petition filed by the respondent against the impugned order dated July 4, 1963 terminating his service the respondent raised two points :-{i) that though he was a local candidate appointed from time to time to the aforesaid posts he was
entitled to have his service regularised under the said order and
(ii) that as he was entitled to be so regularised he was also entitled
to the protect'on of Article 311(2) of the Constitution. Consequently, his service could not be terminated in the manner it was
done by the impugned order. The contention of the State Government on the other hand was that the order of regularisation ·did
not apply to the respondent as his service was not continuous
as required by the said order and therefore there was no question
of Article 311 being applicable to his case and the State Government was entitled therefore to terminate his service by the said
order of July 4, 1963.
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MYSORE v. NARAYANAPPA (She/at, J.)
13t
The High Court on an interpretation of the Order dated·
September 22, 1961 repelled the Government's contentions and
held that the respondent was entitled to have his service regularised with effect from the date his service was continuous prior
to December 31, 1959 and that being so, the order terminating
his service on the erroneous basis that he was a temporary govern-·
ment servant not entitled to the benefit of the aforesaid regularisation order was violative of Article 311.
This interpretation
meant that the appointment and service of the respondent were
not only to be regularised but as a result of such regularisation.
the respondent had to be treated as a permanent servant being
entitled to the protection of Article 311 (2).
The High Court
arrived at this result on the interpretation it gave to the portion·
of the said Order which we have set out above. The High Court
observed that sub-clause (2) of clause 2 of the said Order provided
for the fixation of the date with effect from which the appointment
was deemed to have been made permanent and that the
second part of that sub-clause laid down the conditions which
if satisfied entitled the respondent for regularisation. According
to the High Court the necessary conditions for such regularisation were :-(a) that the local candidate should be in service on
January 1, 1960 and (b) that he should continue to be in service
at the time his service was to be regularised. The High Court
further observed that what sub-clause (2) required was "not continuity of service but that the services be continued at the time of
!4e regularisation" and that the intention of the Government
was not to lay down the condition of continuous service between
December 31, 1959 and the date of the said Government order..
It then s>bserved :-
"When the Government order by a fiction of the law
provided for regularisation of services with effect from
a date anterior to 31-12-1959, the local candidates who
satisfy the qualifications and conditions prescribed by
sub-paras (i) and (ii) are deemed to have been permanently appointed with effect from a date anterior to
31-12-1959. Where the local candidate possesses
th~
qualifications prescribed in sub-para (i) of para 2, if
his initial appointment was made before 31-12-1959,.
he is entitled to have his appointment regularised provided he was in service on !st January 1960 and is con,-
tinued in service at the time of the G.0., notwithstanding any break in service between 31-12-1959 and
22-9-1961."
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The High Court also held that sub-clause (iv) on which reliance·
was placed by the Government had reference to break in service
before December 31, 1959 and not during the period subsequent
to that date. Thus, according to the High Court if a local candidate
132
SUPREME COURT :REPORTS
[1967] I S CR.
was initially appointed prior to December 31, 1959 and was
in service on January l, 1960 and also on September 22, 1961
he was entitled to the benefit of the regularisation order. So long
as he was in service on the two termini his service would have
to be regularised irrespective of whether his service during the
interval was continuous or not. The High Court also equated
regularisation with permanence of service and therefore held that
once a local candidate's service was regularised he had to be treated
as a permanent servant.
Before we proceed to consider the construction placed hy
the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence.
Consequently it was never contended before the High Court that
the effect of the application of the said order would mean only
regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be pennanent as an appointment to be permanent waul4
still require confirmation. It seams that on account of this assumption on the part of both the parties the High Court equated
regularisation with permanence.
We are however not called upon in this appeal to decide and
we do not decide that question as Mr. Desai on behalf of the State
Government assured us that the Government had come in appeal
only in its anxiety to have the order interpreted by this Court
as the construction placed by the High Court on the said order,
if upheld, would have considerable repurcussions on the prospects of other State employees.
He also assured us on behalf
of the State Government that since the break in the service of the
respondent during the material time was only of one day, riz.,
March I, 1961, assuming there was such a break, the government
would not do anything to adversely affect his service and would
not take away the benefit which he acquired as a result of the
High Court's judgment, even if we were to disagree with the interpretation placed by the High Court on the said Order.
Coming now to the Order,
sub-clause (i) of clause 2 provides that all appointments to Class JI1 posts by direct recruitment
made up to December 31, 1959 should be regularised provided
the candidates satisfied the conditions as to age and qualifications
at the time of their initial appointment. The controversy arises
on the construction of sub-clause (ii). That sub-clause provides
that the services of such candidates shall be regularised with effect
from the date of their appointment from which their services are
continuous provided they were in service on January I, 1960 and
continue to be in service at the time their services are regularised.
It is clear from the express words ased in this sub-clause that
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MYSORE v. NARAYANAPPA (She/at, J.)
133
continuity of service from January l, 1960 until the date of the order
is a condition prescribed for regularisation. In other words,
a candidate claiming the benefit of this order has to satisfy that
he was initially appointed prior to December 31, 1959, that he
was in service on January 1, 1960 and continued in that service
till the date of the order, i.e., September 22, 1961. This construction finds support from sub-clause (iii) which provides that local
service prior to regularisation would be counted for the purposes
of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from
· the date of regularisation. It is manifest that unless the 'local
service was continuous such service could not be taken int, account for the purposes, in particular of pension and increments.
How would increments, for example, be granted unless the service
prior to such increments was continuous ? The same consideration would also apply in the case of pension. It had therefore
to be provided as has been done in sub-clause (iv) that a break
in service would not be condoned for a period howsoever short.
Continuity of service is thus a condition for both sub-clauses 2
and 3. The High Court was therefore in error when it said that
sub-clause (iv) did not relate to considerations under sub-clause
(ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed sub-clause (ii) to mean that the only thing it required was
that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates,
viz., January 1, 1960 and September 22, 1961 and that the service
during the interval need not be continuous. If that construction
were to be upheld it would resu)t in injustice, for local candidates.
not recruited regularly and not iμ continuous service provided
they were in service on the two relevant dates, viz., January 1,
1960 and September 22, 1961, would get seniority over candidates.
regularly appointed after December 31, 1959 and whose service
is continuous. Such a result would manifestly be both unjust
and improper and could hardly have been contemplated. Therefore the proper interpretation would be that in order that the
regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959,
he must be in service on January 1, 1960 and continue to be in
senice without any break till the date of the said order. If his.
service is regularised, his semce from the ·date of such regularisation would be counted for seniority as against others who were
recruited properly under the Rules of Recruitment. Und.er subClause (iii) however if the service is continuous from January I,
1960 to September 22, 1961, such service is to be taken into account
for purposes of leave, pension and increments but not for purposes.
of seniority. The construction which we are inclined to adopt
thus harmonises all the provisions of the
Order and besides
134
SUPREME COURT REPORTS
(1967] I S.C.R.
results in fairness to all the local candidates appointed by direct
recruitment whether regularly or otherwise. For the reasons
aforesaid the construction placed by the High Court cannot be
sustained.
Though the construction which we are inclined to adopt is
in support of the stand faken by the State Government, in view
of the assurance given by counsel on behalf of the Government
that this construction should not affect the regularisation of the
respondent's service and its having been considered by the High
Court as permanent, it is not necessary to interfere with the order
passed by the High Court. The appeal consequently is dismissed.
There will however be no order as to costs.
G.C.
Appeal dismissed.
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