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1976 (4) TMI 214
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....ity 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 Commission 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 or....
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....onfirmation 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. 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 Chief Engineer, 2 Superintending Engineers, 7 Executive Engineers, 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 b....
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....e during the probationary period, the Governor can dispense with 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 approved by the Governor for this purpose, count towards the prescribed period of probation. Provided that such approval shall be given only in 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 he completes the prescribed period of probation, if he has passed the prescribed departmental examination and if the Governor is satisfied that he is fit for confirmation. Rule 22 prescribes the pay scale for direct recruits to the cadre of Assistant Engineers. Under this rule, the period of probation co....
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....he regular cadres of the Orissa Service of Engineers. 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 be 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 all 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 Commis....
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....rwarded 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 and 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 considerations 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 his temporary service or a portion thereof, as the case may be shall if approved by the Government for this purpose, cou....