2006 Supreme(SC) 88

2006(2) Supreme 221
Supreme Court of India
(From Bombay High Court)
K.G. Balakrishnan & G.P. Mathur, JJ.
Union Public Service Commission —Appellant
versus
Girish Jayanti Lal Vaghela & others —Respondents
Civil Appeal No. 933 of 2006
(Arising out of S.L.P. (Civil) No. 15714 of 2003)
Decided on 2-2-2006
Counsel for the Parties :
For the Appellant : G.E. Vahanvati, S.G., Ms. Binu Tamta, Shreekant N. Terdal and V.K. Verma, Advocates.
For the Respondents : B. Datta, A.S.G., K. Ramamurthy, Sr. Advocate, Imtiaz Ahmed, D.S. Mahra, Ravi Prakash, Prashant Chaudhary, Pardeep Gupta (for K.K. Mohan, Advocate), and Rajeev Sharma (for Rameshwar Prasad Goyal), Advocates.

Important point
Employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract.

Headnote:(i) Service Law—Central Civil Service (Classification, Control and Appeal) Rules—Rule 2(h)—Constitution of India—Articles 309 and 311(2)—Government servant—Respondent was engaged or hired on contract to work as Drugs Inspector for a period of six months from the date of joining or till a candidate selected by UPSC joined on regular basis, whichever was earlier—His contractual appointment was de hors the rules—Whether respondent could be held as a Government servant—(No)—Appointment being purely contractual, stage of acquiring the status of a Government servant had not arrived.

       Held : Employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally altered by the rule making authority, namely, the Government. There is no dispute that respondent No. 1 was engaged or hired on contract to work as Drugs Inspector for a period of six months from the date of joining or till a candidate selected by UPSC joined on regular basis, whichever was earlier. The contract further stipulated that even if a regularly selected candidate did not join, respondent No. 1 shall stand relieved on the expiry of six months. (Paras 15 and 16)

       It is neither pleaded nor there is any material to show that the appointment of respondent No. 1 had been made after issuing public advertisement or the body authorized under the relevant rules governing the conditions of service of Drugs Inspectors in the Union Territory of Daman and Diu had selected him. His contractual appointment for six months was de hors the rules. The appointment was not made in a manner which could even remotely be said to be compliant of Article 16 of the Constitution. The appointment being purely contractual, the stage of acquiring the status of a Government servant had not arrived. While working as a contractual employee respondent No. 1 was not governed by the relevant service rules applicable to Drugs Inspector. He did not enjoy the privilege of availing casual or earned leave. He was not entitled to avail the benefit of general provident fund nor was entitled to any pension which are normal incidents of a Government service. Similarly he could neither be placed under suspension entitling him to a suspension allowance nor he could be transferred. Some of the minor penalties which can be inflicted on a Government servant while they continue to be in Government service could not be imposed upon him nor he was entitled to any protection under Article 311 of the Constitution. In view of these features it is not possible to hold that respondent No. 1 was a Government servant. (Para 17)

       (ii) Service Law—Central Civil Service (Classification, Control and Appeal) Rules—Rule 2(h)—Government servant—Respondent was appointed as Drugs Inspector on short term basis on a fixed salary for a period of six months or till the date candidate selected by UPSC joined duty on regular basis, whichever was earlier—Appointment of respondent 1 was renewed after every six months with short breaks and it continued for over five years—Advertisement was issued by UPSC for making regular appointment—Respondent 1 had become overage by two years—He submitted an application for issuing him an age relaxation certificate—Whether respondent working on a short term contract basis could be said to be a Government servant eligible for relaxation of upper age limit—(No).

       Held : At the time when the UPSC issued the advertisement on 24.3.2001 for making regular selection on the post of Drugs Inspector, respondent No.1 was working on the said post on contract basis. As already stated, under the relevant recruitment rules for the post of Drugs Inspectors, the upper age limit for direct recruitment is 30 years, which is relaxable for Government servants upto 5 years in accordance with the instructions or orders issued by the Central Government. If respondent No.1 was a Government servant, he would be eligible for relaxation of upper age limit. The Tribunal has held that respondent No.1 was not a Government servant and was, therefore, not eligible for relaxation in upper age limit. This view of the Tribunal has been reversed by the High Court. The crucial question which requires consideration is whether a person working on a short term contract basis can be said to be a Government servant. (Para 4)

       Employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally altered by the rule making authority, namely, the Government. (Para 15)