Judgement

SHALAT, J. : This appeal by special leave is against the judgment and Order of the High Court of Mysore quashing the memorandum, dated July 4, 1963 whereby the State Government terminated the service of the respondent. The only question arising in this appeal is one of interpretation of the Government Order No. GAD 46 SRR, dated September 22, 1961.

2. The respondent entered Government service as an officiating computor in the Government Press on March 11, 1958 and continued in that post until September 1, 1958. He was thereafter appointed 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 1, 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, 1961 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.

3. 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.

4. Rule 8 (27A) 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 1 (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. It 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 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.

5. 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 upto 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 time of their initial appointments;

(ii) The services 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 1st 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."

6. 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 protection of Art. 311 (2) of the Constitution. Consequently, his serv