LexSTATE OF ORISSA ETC. versus ARUN KUMAR PATNAIK & ANR. ETC.
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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-Tc111- porary appointment on contract basts, if could be treated as temporary appoint- 1nent 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 Govern- ntent, after consulting the Publi~ . Service. Commission and obtaining its con- currence 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 promot- ed 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 quash- t: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 appel- lant 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: appoint- ment 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 con- G 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 any- thing in cl. (a), when a temporary Assistant Engineer is selected for a perma- nent appointment to the service, the whole or part of the period of his tempo- H: 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 appoint- 1nent 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) T
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