Holding

The appointments were pure contractual appointments outside the Bombay Civil Service Rules, and the termination was valid.

Summary

In 1985 the Gujarat Government permitted the Chief Minister and other ministers to appoint persons on a purely contractual basis, co‑terminus with the ministers' tenure and without any right of absorption. Twelve such appointees were terminated in December 1989 when a new government came to power. They filed writ petitions claiming entitlement to regular service and contending that the termination violated Rule 33 of the Bombay Civil Service Rules, 1959 and Articles 14 and 16 of the Constitution. The Gujarat High Court stayed the termination, held the orders void for non‑compliance with Rule 33, and awarded salary compensation, but did not order absorption. On appeal, the Supreme Court held that the appointments were contractual under Article 310(2) of the Constitution and fell outside the ambit of the Bombay Civil Service Rules; consequently the termination was valid and no notice was required. The appeal was allowed and the High Court judgment set aside.

Issues considered

Whether the respondents were temporary government servants covered by the Bombay Civil Service Rules and thus protected by Rule 33.
Whether the termination orders violated Articles 14 and 16 of the Constitution.
Whether the respondents were entitled to absorption in the regular state service.
Whether the appointments fell within the scope of Article 310(2) as contractual appointments.

Legislation cited

Bombay Civil Service Rules, 1959s. Rule 2, s. Rule 33, s. Rule 9(56)
Constitution of Indias. Article 310
Gujarat Non-Secretariat Clerks and Clerk‑Typist (Training and Examination) Rules, 1970
Industrial Disputes Act, 1947s. Section 25F

Subjects

contractual appointmenttemporary appointmentArticle 310Bombay Civil Service Rulesterminationabsorptioncivil service lawconstitutional law

Judgment

STATE OF GUJARAT AND ANR. A
v.
PJ. KAMPAVAT AND ORS.

APRIL 28, 1992
B,
{MADAN MOHAN PUNCHHI AND B.P. JEEVAN REDDY, JJ.)

--( Constitution of India, 1950:

Article 310--Contractual appointments-Ministers' establishment--
Temporary appointment on the recommendation of Ministers-Power of State c'
.,._ to make such appointmenti-Source of.
-r Civil Services:

Bombay Civil Service Rules, 1959: Rules 2, 9(56), 33.
D
Temporary appointments-Co-terminus with the term of Mini-
sters-Wliether incumbents entitled for absorption-Termination Order-Prior
notice-Whether necessary.
The respondents were appointed in the State Government Service
purely on temporary basis, co-terminus with the tenure of the Chief Minister E
and Ministers, with no right of absorption. They also furnished undertaking
to this effect. With the change in Government, the respondents were issued
orders· of termination. They filed Writ Petitions before the High Court
challenging the termination orders and claiming that they were entitled to be

- absorbed in service. The High Court granted stay and directed that status
quo be maintained and the respondents continued in service. The High F
Court was of the opinion that they were entitled to the protection of Rule
33(1)(b) of the Bombay Civil Service Rules and since termination was or-
dered without complying with the requirements of the said rule the termina-
tion order were null and void. It however ruled out the question of
absorption. However, taking an overall view of the matter, the High Court
directed that in lieu of reinstatement, they may be paid salary from the date G
of termination till the date of judgment and for a further period of two
months - that is in all for a period of two years. Aggrieved against the said
judgment, the State Government has preferred the present appeals by spe-
cial leave.

Allowing the appeal, this Court, H
845
846 SUPREME COURT REPORTS (1992) 2 S.C.R.

A HELD : 1. The appointment of the respondents was a pure and~
simple contractual appointment and that such appointment is outside the
purview of the Bombay Civil Service Rules, 1959. Since ~e tenure of the
ministers at whose instance and on whose recommendation they were
appointed has come. to an end, their service also came to an end simul-
B taneously. No order of tennination as such was necessary for putting an )--
end to their service, much less a prior notice. They ought to go out in the
manner they have come in. (853-C, D]

. 2. It is evident from a reading of the order of appointment that it
was purely a contractual appointment co-terminus with the tenure of the ....._
C Ministers at whose choice and instance they were appointed. The order ~
expressly stated that they shall not get any right to appointment in regular
cadre. Their services were, it was expressly statt:d, liable to be terminated-"('
at any time without giving any notice and/or without assigning any reason.
Indeed, they were asked to furnish undertakings in the above terms which
D they did. The order no doubt employs the words 'appointed as direct
recruits on purely temporary basis'. However, the order must be read as
a whole and so read, it is clear that the appointment of the respondent was
made otherwise than in accordance with the rules, at the choice and on the
recommendation of the concerned Minister who wanted tl~em to serve in
his e~~blishment. That the State has the power to make such contractual
E appointment is recognised by clause (2) of Article 310. (849 H, 850 A-CJ '-"""'(
3. Rules 9(56) and 33 of the Bombay Civil Service Rules have no
application to the instant case as the respondents cannot be deemed to be
temporary Government servants within the meaning of the said rules
inasmuch,.as U•e terms of their appointment clearly amount to an other-
F wise provision within the meaning of the Non-obstante clause (ftexcept
where it is otherwise expressed or impliedft) with which rule 2 begins. It is
evident that 'the terms of their appointment and the undertaking are
cl~ly inconsistent with the said rules and in particular with rule 33. Rule
3~(1)(1;») ar,id the term making their tenure co-terminus with their minister
G cannot go together. [853 B-FJ

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1826-37
of 1992.

From the Judgment and Order dated 7.9.1991 of the Gujarat High
H Court in Special Civil Application Nos. 8627 to 8633 of 1989, 8635 to 8638
,STA"(E OF GUJARAT v. PJ. KAMPAVAT [REDDY, J.] 847

of 1989 and 2937 of 1991. A
D.A. Dave, Bitnal Roy Jad and Anip Sachthey for the Appellants.

Anil Nauriya and Hemantika Wahl for the Respondents.

The Judgment of the Court was delivered by B
-.I B.P. JEEVAN REDDY, J. Heard oounsel. for both parties. Leave
granted.

These appeals-filed by the State of Gujarat are directed against the
Judgment of a Division Bench of the Gujarat High Court allowing partly C
a batch of writ petitions filed by respondents 1 to 12.

).- _ In the year 1985, the Government. of Gujarat thought it expedient to
permit the Chief Minister and other Ministers to appoint persons of their
choice in their respective establishments. Respondents 1 to 12 were accord- D
ingly appointed in the category of Clerk(fypists/Director/Peon. The orders
of appointment issued to the respondents are identical. _The State has
placed before us a copy of the Office Order dated 12.7.1985 issued from
the General Administration Department, Government of Gujarat relating
to the appointment of some of the respondents. The order reads as follows; E
"The following persons are appointed as direct recruit~ on
purely temporary basis in the office of the Chief Minister with
effect from 6.7.1985 (after office hours) on the posts shown
against their names. Their serivces shall be liable to be ter-
minated at any time without giving any notice or assigning any F
reasons. This appointment is for a limited period up to the
tenure of Minister's establishment. They will not get any right
for absorption in regular cadres of Sachivalaya and they will
have to furnish an undertaking to this effect.
Sr. Name of Post Date Remarks
G
No. Employee of Birth
1. 2. 3. 4. 5.
1. Sh. P J. Kampavat Clerk-Typist 20.5.55 Relaxation is given on
upper age limit.
;.-, H
848 SUPREME COURT REPORTS [1992] 2 S.C.R.

A 2 to 10 omitted.

2. They will have to furnish physical fitness certificate from the
Civil Surgeon immediately. Out of the above, those appointed
on class ill posts, are not eligible for special pay whereas those
appointed on class IV posts are eligible to get special pay as
B per rules."

In December 1989, a new Government came into office following the
General Elections to the Legislative Assembly. With the exit of the Mini-
sters in whose establishments the respondents were appointed, the respon-
C dents ~ere also issued orders of termination With effect from 18.12.1989.
.The orders of termination are dated 10.12.1989 and 11.12.1989. Aggrieved
by the said orders of termination the respondents filed a batch of writ
petitions in the Gujarat High Court claiming that they are entitled to be ·~ I

absorbed as permanent employees in the Service of the State of Gujarat.
D Alternatively they contended that the impugned orders of termination are
bad being contrary to Rule 33 of Bombay Civil Service Rules, 1959, as also
Section 25F of the Industrial Disputes Act. Having filed the writ petitions,
they moved application for staying the operation of the termination orders.
The Gujarat High Court directed the status quo to be maintained which
implied their continuance in Service. The State, however, carried the
E matter to this Court which vacated the said orders, with result that the
respondents went out of the office.

The respondents' case before the High Court of Gujarat was that
notwithstanding the terms of their appointment orders they have a right to
F continue in service. They submitted that they served different ministers
from time to time (as per the particulars supplied by them) and that they
were really employed on account of their past experience. They relied upon
certain instances in the composite State of Bombay where similarly ap-
pointed persons were absorbed in Government service. They invoked
Artieles 14 and 16 of the Constitution besides Rules 33 of Bombay Civil
G Service Rules. The State, on the other hand, relied upon the terms of their
appointment and contended that their appointment was contractual in
nature, co-terminus with the tenure of the concerned Minister under whom
and at· whose instance they were appointed. They have no right to claim
absorption or any other right. They must go along with their Ministers, it
H was submitted.
STATE OF GUJARAT v. PJ. KAMPAVAT [REDDY, J.] 849
)
In the light of the rival contentions, the Gujarat High Court framed A
three questions for their consideration, viz., (1) whether the respondents
{State) had discririlinated against the petitioners by no absorbing them in
the State service and instead terminating their seivices by impugned orders
and whether the said actfon. was violative of Articles 14 and 16 of the
Constitution. (2) Whether the impugned termination orders were contrary B
to BCS Rule 33 and hence, they were null.and.void and the inoperative of
law. (3) What reliefs were the petitioners entitled. On the first question,
the High Court held against the writ petitioners. It was of the opinion that
the writ petitioile_rs cannot be directed to be absorbed in regular service

- inasmuch as their initial entry itself was otherwise than in accordance with
the Rules and also because their appointmentwas made exclusively on the
recoOllilendation of the concerned Mmi.St~r who selected persons of his
choice to serve in his establishment. Such absotption, the High Court
C

pointed out, may amount to circumventing the Rules relating to recruit-
ment and would be unjust to other employees. Articles 14 and 16 of the
Constitution do not come to the rescue of the writ petitioners. Further, it D
was held, the Gujarat Non-Secretariat Clerks and Clerk!fypist (Training
and Examination) Rules, 1970 do not apply to the writ petitioners. On the
second question, however, the High Court was of the opinion that the writ
petitioners are entitled to the protection of Rule 33 (l)(b) of the Bombay
Civil Service Rules; Since. the termination has been effected without satis-
fying the requirements of the said Rule, they were declared to be null and E
void. On the question of ~elief, the High Court was of the opinion that
granting of relief of reinstatement would be of no help to the writ
petitioners inasmcuh as even after such reinstatement their services can be
terminated by paying one month's salary as contemplated by the proviso to

- Rule 33{1){b) of the BCS Rules. Taking "a practical view of the matter"-
to use the language of the High Court-they directed that in lieu of orders
of reinstatement, the writ petitioners shall be paid the salary from the date
F

of their termination up to the--tfate of Judgment and for a further period
of two months thereafter - that is for a period of approximately two years.
The correctness of the said Judgment, insofar as it goes against the State
is canvassed in these appeals. G

It is evident from a reading of the order of appointment of the writ
petitioners that it was purely a contractual appointment co-terminus with
the tenure of the Minister's establishment, at whose choice and instance
they were appointed.. The order expressly stated that they shall not get any H

.-
850 SUPREME COURT REPORTS [1992) 2 S.C.R.

A right to appointment in regular cadre. Their services were, it was expressly
stated, liable to be terminated at any time without.giving any notice and/or
without assigning any reasons. Indeed, they were asked to furnish under-
takings in the above terms which they did. The order no doubt employs the
words "appointed as direct recruits on purely tempc,rary basis" - and these
are the words which constitute the sheet-anchor of the writ petitioners'
B contention. We are, however, of the opinion that the order must be read
as a whole and so read, it is clear that the appointment of the respon-
dents/writ petitioners was made otherwise than in accordance with the
rules, at the choice and on the recommendation of the concerned Minister
who wanted them to serve in his establishment. That the State has the
c power to make such contractual· appointment is recognised by clause (2)
of Article 310. Clauses (1) and (2) of Article 310 read as follows:

"310. Tenure of office of persons serving the Union or a
State: -(1) Except as expressly provided by this Constitution,
every person who is a member of a defence service or of a civil
D service of the Union of an all-India service or holds any post
connected with defence or any civil post under the Union, holds
office during the pleasure of the President, and every person
who is a member of a civil service of a State or holds any civil
post under a State holds office during the pleasure of the
E Governor of the State.

(2) Notwithstanding that a person holding a civil post under
the Union or a State holds office during the pleasure of the
President or, as the case may be, of the Governor of the State,
F any contract under which a person, not being a member of a ...
defence service or of an all-India service or of a civil service of
the Union or a State, is appointed under this Constitution to
hold such a post may, if the President ~r the Governor, as the
case may be, deems it necessary in order to secure the services
of a person having special qualifications, provided for the
G payment to him of compensation, if before the expiration of an
agreed period that post is abolished or he is, for reasons not
connected with any misconduct on his part, required to vacate
the post."

H While clause (1) corresponds to sub-section (1) of Section 240 of the
STATE OF GUJARAT v. PJ. KAMPAVAT [REDDY, J.) 851

Government of India Act, 1935, clause {2) is practically a re~production of A
sub-section (4). Clause (1) declares that unless otherwise provided by the
Constitution, every person holding a post in defence service or civil service
or any post connected with them holds office during the pleasure of the
President and similarly every person holding a civil post under the State
holC:ls the same during the pleasure of the Governor of the State. Clause B
(2) recognises the power of the President/Governor to appoint a person to
-a civil post (under the Union or the State) on contract. However, the
person to be rn appointed should not be a member of a defence service or
of an All-India service or a civil service of the Union or the State. The
clause enables the President/Governor to provide, if he thinks it necessary
to secure the services of a person having specific qualifications for payment C
to him compensation in case the post is abolished before the expiry of the
agreed period or where he is asked to vacate the post before the -expiry of
such period for reasons not connected with any misconduct on his part. In
the case before us, of course, there is no such provision for compensation -
apart from the fact that this is not a case of termination before the expiry D
of the period of the contract. (For the purposes of this case, it is unnece~-
sary to examine the reasoµs for which sub-section (4) was enacted in
Section 240 of the Government of India Act, 1935 and why was it repeated
in Article 310).

In the light of this claiJse it is idle to contend on the part of the E
respondents/writ petitioners that their appointment is under the rules or
r that their appointment is a temporary appointment within the meaning of
Bombay Civil Service Rules. Rule 2 of the Bombay Civil Service Rules
which is,..quoted in the judgment of the High Court reads thus:

- "except where it is otherwise expressed or implied, these rules
apply to all members of services and holders of posts whose
conditions of services the government of Bombay are com-
F

petent to prescribe: Provided that they shall also apply to:-

"(a) any person for whose appointment and conditions of G
employment and conditions of employment special
provision is made by or under any law for the time being in
force, and

{b) any person in respect of whose service, pay and allowances
and pension or any of them special provisions bas been H
852 SUPREME COURT REPORTS [1992) 2 S.C.R.

A made by an agreement made with him in respect of any
matter not covered by the provisions of such Jaw or agree-
ment."

The High Court has relied upon the said rule to hold that the writ
peitioners are covered by c1ause (b) to the proviso. It has further held that
B the respondent must be deemed to be holders of temporary posts within
the meaning of rule 9(56) which defines the expression temporary post to
mean a post carrying a definite rate of pay sanctioned for a limited time.
On the above basis, the High Court.has applied Rule 33 which provides
the mode of terminatipg the service of a temporary Government servant.
c In short, the rule provides for a prior notice, the duration of which depends
upon the length of service put in by the temporary Government servant.
We are, hcfwever, of the opinion that the said rules have no application to
the respondents herein and that they cannot be deemed to be temporary
Government servants within the meaning of the said rules inasmuch as the
D terms of their appointment clearly amount to an otherwise provision within
the meaning of the Non-obstante clause ("except where it is otherwise
expressed or implied") with which rule 2 begins. The order appointing the
respondents expressly states not only that their services shall be terminated
at any time without giving any notice and without assigning any reason but
also that their appointment is for a limited period co-terminus with the
E concerned minister's tenure. They were also asked to execute. an undertak-
ing in the above terms which they did. It is evident that the terms of their
appointment and the undertaking are clearly inconsistent with the said
rules and in particular with rule 33. Rule 33 (l)(b) and the term making
their tenure co-terminus with their minister cannot go together. Sub-rule
(1) of rule 33 of the Bombay Civil Service Rules may be set out at this
F stage, for the reason that the High Court has rested its case on.clause (b)
......
of the said sub-rule.

G
"33. (l)(a) The service of a temporary government servant shall
be liable to termination at any time by a notice in writing given -·,.-.
to him by the appointing authority.

(b) Where a temporary government servant has put in service .
for a period exceeding one year the period of such notice shall
be one month and where such government servant has put in
H service for one year or any period less than one year the period
STATE OF GUJARAT v. PJ. KAMPAVAT [REDDY, J.] 853 ·

of such notice shall be one week. A
Provided that the services of any such government servant i:nay .
be terminated forthwith by payment to him of a sum equivalent
to the amount of his pay plus allowance for the period of the
notice due the same rates at which he was drawing pay and
allowances immediately before the terminatioR of his service or B
as the case may be, for the period by which such notice falls
short of the notice period."

For the reasons given above, we are of the opinion that the appoint-
ment of the respondents was a pure and simple contractual appointment C
and that such appointment does not attract and is outside the purview of
the Bombay Civil Service Rules, 1959. Since the tenure of the ministers at
whose instance and on whose recommendation they were appointed has
come to an end with 10.12.1989 their service also came to an end simul-
taneously. No order of termination as such was necessary for putting an
end to their :;ervice, much less a prior notice. They ought to go out in the D
manner they have come in.

The appeal in accordingly allowed. The judgment and the order of
the Gujarat High Court is set aside. Having regard to the circumstances of
the case, there shall be no order as to costs.

r G.N. Appeal allowed.

-