# STATE OF ORISSA ETC v. ARUN KUMAR PATNAIK & ANR. ETC. April 15. 197.6

- **Citation:** [1976] Supp. 1 S.C.R. 59
- **Court:** Supreme Court of India
- **Decided:** 1973-05-29
- **Case number:** Civil Appeals Nos. 1739 to 1742 of 1974
- **Bench:** Y. V. Chandrachud, V. R. Krishna Iyer, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-etc-v-arun-kumar-patnaik-anr-etc-april-15-197-6-7192
- **Pages:** 8

## Headnote

&·
Orissa S~rvice of Engineers Rul~s, 1_941, r. 19(a) and (b)-Scope of-Tc111porary appointment on contract basts, if could be treated as temporary appoint1nent for absorption in rf(!gular cadre.
.
~a.nsfitution of India, 1950,
Article 226-Service
1~1atters-Exercise of
7urisdrct1on by High Court after long delays of 12 years in abject· disregard of
consequences to service personnel-Propriety.
c
In Dece1nber, 1958, the appeUant was appointed by direct recruitment as
'temporary Assistant Engiileer on contract basis' for a periOd of three yicars'
and he took charge on January 19, 1959. On March 14, :962, the Governntent, after consulting the Publi~ . Service. Commission and obtaining its concurrence passed an order regulans1ng the appellant's ser\· ice by absorbing him
into the regular cadre .of an Assistant Engineer retrospectively from Jan 19,
1959, though ten1porarily.
On Nov. 15, 1968, he was confirmed as Assistant
Engineer with effect from Feb. 27, 1961; in 1969, he was confirmed as an
D·
Executive Engineer with effect from Dec. 2, 1967; and in 1973, he was promoted as Superintending Engineer. The respondent was appointed, also by direct
rec,ruitment, on provisional basis on April 14, 1960 to act as temporary
Assistant Engineer.
On Nov. 15, 1968,, he was also confirmed as Assistant
Engineer but with effect from May 2, 1962; and in 1970, he was confirmed
as Executive Engineer with effect from December 2, 1967. The respondent
chaIIenged the appointment of the appellant as Assistant Engineer and his
subsequent promotions and claimed seniority over hin1.
The High Court quasht:d the order absorbing the appellant into the regular cadre· and the subsequent
E
promotions. holding the absorption to be contrary to the Orissa Service of
Engineers Rules, 1941, and hence invalid.
Allowing the appeal to this Court,
HELD: (1) By r. 6 of the Rules, recruitment to the rank of Assistant
Engineers can be made directly in compliance with rr. 8 to 15. The appellant satisfied everyone of the qualifications prescribed by these rules and \Vas
selected by the Public Service Commission in accordance,,, with the rules. He
F
v1as recomn1iended by the Public Service Commission, unde1· r. 13 and. 1he
recommendation was accepted by the Governor under r. 15': He was thereafter
appointed as temporary Assistant Engineer on contract basis. But his: appointment was, in terms, on a te1nporary basis and the fact that he held his post
on contract did not make his tenure other thah temporary.
The subsequent
course of his- career, within the contractual period itself, shows that he was
granted all the facilities and privileges which are available to employees in the
regular cadre, temporary or permanent, which are generally not available to conG
tractual c1np!oyees. He drew the· same' pay as any o1her employee in
the
regular cadre of Assistaht Engineers and he was fitted into the same pay scale.
He drew no special benefitsr by reason of being on a contractual basis.
[64 DG;
65 B·Cl
(2) Under r. 19(a), persons appointed by direct recruitment" are required
to be on probation for two years, and under r. 19(b), notwithstanding anything in cl. (a), when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole or part of the period of his tempoH:
rary service shall, if approved by the Governor, count towards the prescribed
period of probation. In the present case, what the Govern1nent did was to
count the appellant's temporary service from January
19
1
,
1959 to
March
14, 1962, as it was
en~itied to do towa1rds his probationary
period.
The
. o
E
60
SUPREME COURT REPORTS
[1976] SUPPLEMENTARY
State .Government selected him for pern1anent appoint.1nent as an Assistant
Engineer and before doing so also obtained the concurrence of the Public
Service Con1n1ission.
[65 F-G; 64 F]
.... .(3) The appellant's appointment as an Assistant Engineer on a temporary
basis was thus inade on Januar);' 19, 1959, v,.·hereas the respondent's appoint1nent

## Text

)
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59
STATE OF ORISSA ETC.
v.
ARUN KUMAR PATNAIK & ANR. ETC.
April 15. 197.6
[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]
&·
Orissa S~rvice of Engineers Rul~s, 1_941, r. 19(a) and (b)-Scope of-Tc111porary appointment on contract basts, if could be treated as temporary appoint1nent for absorption in rf(!gular cadre.
.
~a.nsfitution of India, 1950,
Article 226-Service
1~1atters-Exercise of
7urisdrct1on by High Court after long delays of 12 years in abject· disregard of
consequences to service personnel-Propriety.
c
In Dece1nber, 1958, the appeUant was appointed by direct recruitment as
'temporary Assistant Engiileer on contract basis' for a periOd of three yicars'
and he took charge on January 19, 1959. On March 14, :962, the Governntent, after consulting the Publi~ . Service. Commission and obtaining its concurrence passed an order regulans1ng the appellant's ser\· ice by absorbing him
into the regular cadre .of an Assistant Engineer retrospectively from Jan 19,
1959, though ten1porarily.
On Nov. 15, 1968, he was confirmed as Assistant
Engineer with effect from Feb. 27, 1961; in 1969, he was confirmed as an
D·
Executive Engineer with effect from Dec. 2, 1967; and in 1973, he was promoted as Superintending Engineer. The respondent was appointed, also by direct
rec,ruitment, on provisional basis on April 14, 1960 to act as temporary
Assistant Engineer.
On Nov. 15, 1968,, he was also confirmed as Assistant
Engineer but with effect from May 2, 1962; and in 1970, he was confirmed
as Executive Engineer with effect from December 2, 1967. The respondent
chaIIenged the appointment of the appellant as Assistant Engineer and his
subsequent promotions and claimed seniority over hin1.
The High Court quasht:d the order absorbing the appellant into the regular cadre· and the subsequent
E
promotions. holding the absorption to be contrary to the Orissa Service of
Engineers Rules, 1941, and hence invalid.
Allowing the appeal to this Court,
HELD: (1) By r. 6 of the Rules, recruitment to the rank of Assistant
Engineers can be made directly in compliance with rr. 8 to 15. The appellant satisfied everyone of the qualifications prescribed by these rules and \Vas
selected by the Public Service Commission in accordance,,, with the rules. He
F
v1as recomn1iended by the Public Service Commission, unde1· r. 13 and. 1he
recommendation was accepted by the Governor under r. 15': He was thereafter
appointed as temporary Assistant Engineer on contract basis. But his: appointment was, in terms, on a te1nporary basis and the fact that he held his post
on contract did not make his tenure other thah temporary.
The subsequent
course of his- career, within the contractual period itself, shows that he was
granted all the facilities and privileges which are available to employees in the
regular cadre, temporary or permanent, which are generally not available to conG
tractual c1np!oyees. He drew the· same' pay as any o1her employee in
the
regular cadre of Assistaht Engineers and he was fitted into the same pay scale.
He drew no special benefitsr by reason of being on a contractual basis.
[64 DG;
65 B·Cl
(2) Under r. 19(a), persons appointed by direct recruitment" are required
to be on probation for two years, and under r. 19(b), notwithstanding anything in cl. (a), when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole or part of the period of his tempoH:
rary service shall, if approved by the Governor, count towards the prescribed
period of probation. In the present case, what the Govern1nent did was to
count the appellant's temporary service from January
19
1
,
1959 to
March
14, 1962, as it was
en~itied to do towa1rds his probationary
period.
The
. o
E
60
SUPREME COURT REPORTS
[1976] SUPPLEMENTARY
State .Government selected him for pern1anent appoint.1nent as an Assistant
Engineer and before doing so also obtained the concurrence of the Public
Service Con1n1ission.
[65 F-G; 64 F]
.... .(3) The appellant's appointment as an Assistant Engineer on a temporary
basis was thus inade on Januar);' 19, 1959, v,.·hereas the respondent's appoint1nent to act was ntade on April 14, 1960.
All along their respective service
careers extending over 13 years, the appellant \Vas recognised as senior. [66 CJ
Narayan Chandra Parida v. State of Orissa and I.L.R. [19]1] Cuttack 857,
distinguished.
·
(4) The respondent is guilty of lachcs.
The appellant's appointment was
gazetted on March 14, 1962.
On November 15, 1968, the appellant and the
respohdent \\'ere confitmed as Assistant Engineers by a comrnon Gazette Notifi.
cation which showed the appel1ant's confirmation as on February 27, 1961,
and that of the respondent as on May 2, 1962.
And yet, till May 29 1973,
\Vhen the v.•rit petitions were filed in the High Court, the respoi:d~nt did
nothing except to file a representation to the Government in June, 1970 and
a memorial to the Governor in April, 1973. The High Court should not have
exercised its extraordinary jurisdictiop in favour of the respondent who was
un1nindful of his right& for 12 years and in utter disregard of coc.sequence:<S·
to other service personnel.
In June, 1974, the High Court set aside an appointn1ent of March, 1962, of a P'Crson who had, in meantime, risen to the' rank
of Superintending Ehgineer.
[66 D-G] .
CIVIL APPELLATE JURISDICTION :
Civil Appeals Nos. 1739 to
1742 of 1974.
)
(Appeals by special leave from the judgment and order dated the
10-6-1974 of the Orissa High Court at Cuttack in O.J.C. '.'los. 462
and 463 of 1973).
G. Rath, Advocate General, Orissa, Gobind Das and B. Parthasarathi, for the appellants and respondent-2 in CAs 1739-41 /74.
V. S. Desai and Vinoo Bhagat, for respondent No. 1.
F
The Judgment of the Court was delivered by
11
CHANDRACHUDr J.
This is a group of 4 appeals ansrng out
of a judgment dated June 10, 1974 of the High Court of Orissa.
Civil Appeals Nos. 1739 and 1740 are filed by the State of Orissa
while Civil Appeals Nos. 1741 and 1742 are filed by one T. C. Krishna
Moorthy. Two writ petitions were filed in the Orissa High Court, one
by Arun Kumar Patnaik and the other by Niranjan Mishra for quashing certain orders and notifications issued by the Government of
Orissa in regard to Krishna Moorthy's appointment as an Assistant
Engineer and his subsequent promotions to higher posts. Patnaik and
Mishra challenged Krishna Moorthy's appointment and prayed that
in any event they ought to be accorded seniority over him.
By an order dated December 11, 1958 Krishna Moorthy and two
others were appointed as "temporary Assistant -Engineers on contract
basis for a period of 3 years".
The appointments were made by
direct recruitment on the recommendation of the Public Service Corn-
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ORISSA r. A. K. PATNAIK (Chandrachud,J.)
61
mission which held a test and a viva voce examination in accordance
with the Orissa Service of Engineers Rules, 1941. Krishna Moorthy
took charge of the post on January 19, 1959.
On September 13,
1960 which was during the currency of the contractual period of 3
years, the Government of Orissa informed him that the question of
absorbing him in the regular establishment of the State's Engineering.
Service will be taken up for consideration on his completion of 2
years of service and in case he was absorbed, his absorption would
be given retrospective effect from the date of his first appointment as
an Assistant Engineer. The Government of Orissa thereafter consulted the Public Service Commission and after obtaining its concurrence,
it passed an order dated March 14,
1962
regularising
Krishna
Moorthy"s service by absorbing him in the regular cadre of an Assistant Engineer retrospectively from January 19, 1959. That order is
Annexure Il to the Writ Petitions. On September 21, 1962 Krishna
Moorthy was promoted as an Executive Engineer ( Annexure III) ;
on November 15, 1968 he was confirmed as an Assistant Engineer with
effect from February 27, 1961 (Annexure N); on May 12, 1969
he was confirmed a,<; an Executive Engineer with effect from December
2, 1967;··lmd on November 23, 1973 he was promoted as a Superin- ·
tending Engineer (Annexure YII), Patnaik and Mishra challenged the
validity of the orders at Annexures II, III, IV ... and VII to the writ
petitions.
These are the relevant dates in regard to Krishna Moorthy's
appointment.
In regard to the appointments of Patnaik and Mishra,
it would be enough to recapitulate facts relating to Patnaik's appointment, because for the purpose of deciding these appeals there is no
distinction between those facts and the facts of Mishra's case.
On
April 14, J 960 Patnaik was appointed "on provisional basis to act
as temporary Assistant Engineer" by direct recruitment, which was
about a year and 4 months after Krishna Moorthy's initial appointment as a temporary Assistant Ep.gineer on contract basis. On November 15, 1968 Patnaik was confirmed as an Assistant Engineer with
effect from May 2, 1962.
(It may be recalled that by an order of
even date Krishna Moorthy was confirmed as an Assistant Engineer
with effect from February 27, 1961 .. )
On October 31, 1970 Patnaik
was confirmed as an Executive Engineer with effect from December
2, 1967.
(It may be recalled that Krishna Moorthy was confirmed
as an Executive Engineer with effect from the same date viz., December 2, 1967 though by an earlier order dated May 12, 1969).
On June 19, 1970 Patnaik filed a representation to the
State
Government claiming seniority over Krishna Moor~hy. On April 16,
l 973 Patnaik filed a memorial to the Governor of Orissa for restoration of his seniority.
On May 29, 1973 Patnaik and Mishra filed
writ petitions in the High Court questioning the validity of Krishna
Moorthy"s absorption in the regular cadre by the order of March 14,
1962 as also his subsequent promotions and seniority. By a Judgment
dated June JO, 1974 the High Court declared Krishna Moorthy's
absorption by the notification of March 14, 1962 as invalid and
quashed the notifications at Annexures II, III, IV and VII, thereby
B
c
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F
G
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SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
A
-also.· renderi_ng his promotions as Executive Engineer and Superintendmg Engmeer and his confirmation as an Assistant Engineer illegal.
Krishna Moorthy's seniority fell with his appointment.
The correctness. of the High Court's judgment is challenged in these appeals by
special leave.
-B
G
H
In exercise of the powers conferred by clause (b) of sub-sections
(1) and (2) of section 241 of the Government of India Act, 1935,
the Governor of Orissa made rules for the regulation of recruitment
to and the conditions of service, pay, allowances and pension of the
Orissa Service of Engineers. These rules are called the Orissa
Service of Engineers' Rules, 1941.
Rule 3 (b) defines a "Member
of Service" to mean a servant of the Crown (now the State Government), appointed in a substantive capacity under the provisions of
the Rules to a post in the cadre of the service.
The
sanctioned
strength of this Service consists under Rule 4 of one Chid Engineer,
2 Superintending Engineers, 7 Executive Enginee~s,
20
Assistant
Engineers and 4 Assistant Engineers in leave and training reserve.
By rule 5 all first appointments to the service are ordinarily to be
made to the rank of an Assistant Engineer.
Appointments to the
rank of Chief Engineer,
Superintending Engineer and
Executive
Engineer are to be made ordinarily by the Governor after consultation with the Public Service Commission by promotion from the next
lower post.
Promotion is made by selection on the basis of merit
and seniority but seniority of itself can confer no clairn to promotion.
Rule 6 provides that recruitment to the rank of Assistant Engineers
shall be made partly by direct recruitment in accordance with rules
8 to 15 and partly by promotion in accordance with rules 16 to 18.
Rule 8 prescribes basic qualifications for appointment to any post in
the Orissa Service of Engineers while Rule 9 prescribes further qualifications for appointment by direct recruitment. Rnk 10 requires the
Public Service Commission to announce the number of vacancies to
be filled by direct appointment and to invite applications from candidates eligible for appointment to the service.
Under the proviso to
rule 10, temporary Assistant Engineers appointed on the recomm~n
dation of the Public Service Commission are not required to compete
with other candidates for permanent appointments when such vacancies arise.
By the same proviso temporary Assistant Engineers can,
without further reference to the Public
Service
Commission,
be
appointed to permanent posts according to their seniority and record
of service unless the Commission expressly specifies in any particular
case that a candidate's case may be referred to them before the question of his permanent appointment is taken up.
Rule 12 requires
the Public Service Commission to interview suifable candidates while
rule 13 requires the Commission to prepare a list of selected candidates
arranged in order of preference, the number of such candidates being
ordinarily 1-1 /3 times the number of vacancies to be filled by direct
recruitment.
The final selection of the candidates is to be made by
the Governor under Rule 15 (a) from amongst those who have been
included in the list submitted by the Commission or in respect of whom
a report has ·been submitted in accordance with rule 14. The candi-
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ORISSA v. A. K. PATNAIK (Chandrachud, !.)
63
dates selected by the Governor are required by rule 15 (b) to submit
A
themselves for examination by a Medical Board.
Rule 19(a) provides that persons appointed by direct recruitment
shall be on probation for 2 years while those appointed by promotion
shall undergo a probation for one year, provided that the Governor
may extend the period of probation in any particular case.
At any
time during the probationary period, the Governor can dispense with
B
the service of any officer appointed by direct recruitment after a
month's notice and he can likewise revert the promoted officer to his
substantive appointment.
Rule 19(b) reads thus:
"Notwithstanding anything in sub-rule (a) when a temporary Assistant Engineer is selected for a permanent appointment to the service the whole of the period of his temporary service or a portion thereof, as the case may be shall
II approved by the uovernor for this purpose, connt towards
the presc•ibed period of probation.
Provided that such approval shall be given only ;n respect of a continuous period of temporary service under the
Government of Orissa followed without a break by appointment in permanent service."
Rule 20 prescribes conditions for confirmation by providing that
a probationer shall be confirmed in his appointment if he completes
the. prescribed period of probation, if he has passed the prescribed
departmental examination and if the Governor is satisfied that he
c
D
is fit for confirmation.
Rule 22 prescribes the pay scale for direct
recruits to the cadre of Assistant Engineers.
Under this rule, the
E
period of probation counts for the purpose of increment unless the
probation is extended on account of the probationer's failure to give
a satisfactory performance. Under rule 26 (i), if officers are recruited
by promotion and by direct recruitment in the same calendar year,
the promotees are considered as senior to direct recruits irrespective
of the dates on which they were appointed.
Rule 26(ii) provides
that subject to provisions ,of sub-rule (i), seniority of officers shall be
F
determined in accordance with the order in whfch their names appear
in the list prepared by the Commission.
We are unable to accept the High Court's view which was also
pressed upon us by the learned counsel appearing on behalf of Patnaik
and Mishra that Krishna Moorthy's appointment under the notification of March 14, 1962 was contrary to the rules and therefore he
cannot be said to be a member of any of the cadres of the Orissa
Service of Engineers.
By rule 3 (b), "Member of Service" means a
servant of the Government appointed in a substantive capacity under
!he provisions of the rules to a post in the cadre of the service. The
first question to be considered is whether on March 14, 1962 Krishna
Moorthy was appointed in a substantive capacity to a post in the cadre
of the Orissa Service of Engineers and secondly, whether the State
Government had the power under the rules to appoint him retrospectively with effect from the date of his initial appointment i.e. from
Jannary 19, 1959.
G
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64
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
A
The impugned notification dated March 14, 1962 reads thus :
B
"Shri T. c .. K. Murty, Assistant Engineer, l'. H. who was
appointed as such on contract basis with effect from 19-11959 is appointed as a temporary A.E. in the regular Establishment of the P.H. Wing until further orders with effect
from the same date."
The terms of this notification are too direct and simple to admit of
more than one construction and accordingly we must proceed on the
footing that on March 14, 1962 Krishna Moorthy was in fact appointed as an Assistant Engineer in the regular cadre of Assistant Engineers,
,
though with effect from January 19, 1959 being the date on which
'
he had taken charge of his initial appointment as a temporary Assistant
C
Engineer on contract basis. The meaning and effect of the notification
was never in doubt nor indeed the in.tention ·of the Government to
regularise Krishna Moorthy's appointment so as to place him in one
of the regular cadres of the Orissa Service of Engineers.
D
E
F
G
B
But then, did the State Government have the power under the
rules to regularise Krishna Moorthy's appointment retrospectively ?
That is the real focus of controversy. While resolving this controversy
one must disabuse one's mind of the apparently weighty consideration
that Krishna Moorthy was appointed initially on a 'contract basis'.
By rule 6, recruitment to the rank of Assistant Engineers can be made
directly but such recruitment must comply with rules 8 to 15. Krishna
Moorthy satisfied everyone of the qualifications prescribed by this
fasciculous of rules and that is undisputed. He was qualified under
rule 6 and was eligible under rule 9 to he appointed as an Assistant
Engineer in the regular cadre of the Orissa Service of Engineers.
Applications were duly invited by the Public Service Commission
under rule 10 and Krishna Moorthy's application fulfilled the requirements of rule 11.
The Commission considered alt the applications
and interviewed candidates who were suitable for the posts, as required by rule 12. Krishna Moorthy appeared for the test and the viva
voce examination and was selected by the Public Service Commission.
His name appeared in the list of selected candidates prepared by the
Commission under rule 13.
Rule 14 has no relevance.
The final
selection of the candidates was made by the Governor, as required
by rule 15, from amongst those who were included in the list submitted
by the Commission under' rule 13. On his selection by the Governor,
Krishna Moorthy was examined by the Medical Board as required
by rule 15 and was found medically fit.
It was after due and full
compliance with everyone of the conditions and formalities that his
appointment as a temporary Assistant Engineer on contract basis was
notified on Dec. 11, 1958.
The initial appointment of Krishna Moorthy being within the scope
of and in conformity with the rules governing direct recruitments to
the cadre of Assistant Engineers, the only question that requires consideration is whether the rules permit retrospective regularization of an
2ppointmcnt.
The terms of the initial appointment are relevant in
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ORISSA v. A. K: PATNAIK (Chandrachud, J.)
65
this behalf because though the appointment was on a 'contract basis',
it was also expressly described as 'temporary'. In common parlance
it may be incongruous to describe a contractual appointment
as
temporary, because the appointment is intended in the normal circumstances to last during the currency of the contract. But Service regulatioJLS have their own semantics and not unoften, not only are service
rules technical but they have their own technical vocabulary. Krishna
Moorthy's initial appointment must be construed on its own terms and
therefore the adjective 'temporary' cannot be dismissed as :i. mere
adjunct.
He was unquestionably and in terms appointed as an Assistant Engineer on a "temporary" basis and the fact that he held his
post on a contract did not make his tenure other than temporary.
The subsequent course of his career, within the contractual period itself,
shows that he was granted all the facilities and privileges which are
available to employees in the regular cadre, temporary or permanent,
and which are gener<!!lly not available to contractnal employees. He
drew the same pay as any other employee in the regular cadre of
Assistant Engineers and he was fitted into the same scale of pay. He
drew no special benefits by reason of being on a contractual basis.
And when during the currency of the contract he wanted to apply for a
post under the Union of India_, his application was not forwarded by
the State Government for the reason that there was a "shortage of
technical personnel in the State".
His appointment was thus made
truly on a temporary basis ahd the question for consideration resolves
itself into this : Can an appointment made on a temporary basis after
compliance with the relevant rules be regularized retrospectively?
If Krishna Moorthy had not been recommended by the Public
Service Commission, different consideri!(ions might have arisen. But
he was recommended by the Commission, the recommendation was
accepted by the Governor and the State Government appointed him
as an Assistant Engineer on a temporary basis in pursuance of the
Commission's recommendation and the Governor's selection.
This is
where Rule 19 plays an important part.
Under clause (a) of that
rule, persons appointed by direct recruitment are required to be on
probation for 2 years.
Under clause (b) of Rule 19, notwithstanding
anything in clause (a), "when a temporary Assistant Engineer is
selected for a permanent appointment to the service, the whole of
the period of !Jis temporary service or a portion th~reof, as the case
may be shall if approved by the Government for this purpose, count
towards the prescribed period of probation".
Krishna Moorthy was
selected by the· State Government for a permanent appointment as
an Assistant Engineer and before implementing that decision, the State
Government had obtained the concurrence of the
Public
Service
Commission.
On such concurrence being obtained, the State Government issued the impugned notification dated March 14, 1962 appointing him as an Assistant Engineer, though temporarily and until further
orders, with effect from January 19, 1959.
The Government had
the power under rule 19 (b) to count any part of Krishna Moorthy's
temporary service towards the prescribed period of probation and
what it did was to count his temporary service from January 19, 1959
7-833SCin6
A
B
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SUPREME COURT REPORTS
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A
till March 14, 1962 towards the probationary period.
He had by
then put in more than three years' service whereas rule 19 stipulates
a normal probationary period of 2 years only.
B
c
D
E
F
G
H
In view of these facts and considerations, it is impossible to accept
the submission made on behalf of Patnaik and Mishra that Krishna
Moorthy's appointment under the notification of March 14, 1962 is
in any sense invalid.
Consequently, his subsequent promotions and·
the seniority accorded to hhn must also be upheld.
The decision in
Narayan Chandra Parida v. State of Orissa and Ors.,(') on which
reliance is placed to deprive Krishna Moorthy of his seniority has
no application, as in that case the petitioner was ranked as a junior
to a person who was not at all in Government service when the
petitioner was appointed. In the instant case, Krishna Moorthy was
appointed as an Assistant Engineer on a temporary basis on January 19,
1959 whereas Patnaik and Mishra were appointed on April 14, 1960
to act as Assistant Engineers on a provisional basis. All along their
respective service careers, extending over 13 years, Krishna Moorthy
was recognized as senior to the other two.
It is unnecessary to deal at length with the State's coutention that
the writ petitions were filed in the High Court after a long delay and
that the v.Tit petitioners are gnilty of !aches.
We have no doubt that
Patnaik and Mishra brought to the Court a grievance too stale to
merit redress.
Krishna Moorthy's
appointment was
gazetted on
March 14, 1962 and it is incredible that his service-horoscope was
not known to his possible competitors.
On November 15, 1968 they
were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthy's confirmation as
of February 27, 1961 and that of the other two as of May 2, 1962.
And yet till May 29, 1973 when the writ petitions were filed, the
petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16,
1973.
The High Court made light of this long and inexplicable delay
with a casual remark that the contention was "without any force".
It overlooked that in June, 1974 it was setting aside an appoinbnent
dated March 1962 of a person who had in the meanwhile risen to
the rank of a Superintending Engineer.
Those 12 long years were
as if writ in water.
We cannot but express our grave concern that
an extraordinary jurisdiction should have been exercised in such an
abject disregard of consequences and in favour of persons who were
unmindful of their so-called rights for many long years.
For these reason we allow the appeals, set aside the judgment of the
High Court and direct that the writ petitions shall stand dismissed.
Patnaik and Mishra will pay to Krishna Moorthy the costs of the
pUitions and of these appeals which we quantify at Rs. 2000.
They
will each pay a sum of Rs. 1,000. There will be no order as to the
costs of the Government.
V.P.S.
Appeals allowed.
(1) l.L.R. 1971 Cuttack 857.
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