Arun K. Mukherjea, J.@mdashThis is an appeal against a judgment and order dated August 10, 1965, of Basu, J. by which Basu, J. had discharged a Rule arising out of an application under Article 226 of the Constitution of India. The facts of the case are as follows:
2. Sometime in March 1948 the Petitioner was appointed as a probationer for the post of Assistant Conservator of Forests. He completed his course of training in the Superior Forest Service College at Dehra Dun and was appointed temporarily as an Assistant Conservator of Forests of the Andaman Forest Department with effect from April 1, 1950. On October 5, 1957, the Petitioner was promoted to officiate as Deputy Conservator of Forests, Middle Andamans. On November 28, 1960, the Petitioner''s name was shown in the second place in the seniority list of Deputy Conservator of Forests. On September 28, 1962, a notification was published in the Andaman and Nicobar Gazette where the names of some of the officers of the Andaman Forest Department, who had been confirmed against certain permanent class II posts indicated against their names were published. It appears that the Petitioner''s name had been omitted from, that list. Being aggrieved by this omission of his name, the Petitioner made a representation to the Secretary to the Government of India in which he contended that the omission of his name from the notification was illegal. In reply to this representation the Petitioner was informed by the Secretary to the Chief Commissioner, Andaman and Nicobar Islands in a letter dated December 26, 1962, that he had ''not been'' considered fit for confirmation as Assistant Conservator of Forests. By an order dated February 1, 1963, the Petitioner was reverted to the post of Assistant Conservator of Forests on an alleged ground of unsuitability. By an order of the same date, the Petitioner was transferred to Madras. On February 5, 1963, the Petitioner sent what he describes as a letter demanding justice to the Chief Commissioner, Andaman and Nicobar Islands, and to the Chief Conservator of Forests, Andaman and Nicobar Islands. In this letter he challenged the legality of the order of the reversion by which he had been reverted to the post of Assistant Conservator of Forests. He demanded that this order should be withdrawn or recalled. When the order was neither recalled nor withdrawn, the Petitioner made an application under Article 226 of the Constitution challenging the legality of the notification dated September 28, 1962, as well as the legality of the decision by which the Petitioner had been declared unfit for being made permanent in the post of Assistant Conservator of Forests and also the legality of the two orders dated February 1, 1963. The Petitioner prayed for quashing of the aforesaid notification, decision and orders.
3. Mr. Dutta, appearing for the Petitioner, contended before Basu, J. that the Petitioner should be deemed to have obtained a status of quasi-permanency according to the Central Civil Services (Temporary Service) Rules, 1949 (hereinafter referred to as the Temporary Service Rules) as he fulfilled all the conditions laid down in Rule 3 of those Rules and also because the Respondent had considered him fit for promotion to a higher post. Mr. Dutt contended that the notification dated September 28, 1962, offends against Article 16 of the Constitution and contravenes the provisions of Rule 7 of the Temporary Service Rules and that the two impugned orders infringed Article 311(2) of the Constitution. It was also argued that the impugned orders had not been made by the competent authority. Basu, J. rejected all the contentions of the Petitioner and discharged the Rule whereupon the present appeal was preferred.
4. The main contention of Mr. Dutta was based on the plea that the Petitioner should be deemed to have acquired a quasi-permanent Status under the provision of Rule 3 of the said Temporary Service Rules. In order to understand Mr. Dutta''s contention it is necessary to set out Rule 3 which is in the following terms:
A Government servant shall be deemed to be in quasi-permanent service:
(i) If he has been in continuous Government service for more than three years.
(ii) If the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi-permanent capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor-General may issue from time to time.
5. It is clear that Rule 3 speaks of two conditions the fulfilment of which is necessary before a person can be deemed to be in quasi-permanent service. Of these two conditions the Petitioner has fulfilled only the first condition mentioned in Clause (i) by having been in continuous Government service for more than three years. The Petitioner, however, has not fulfilled the second condition, as admittedly no declaration has yet been issued by the Government in terms of Clause (ii) of Rule 3. Mr. Dutta argued that it was not necessary for both the two conditions to be fulfilled. According to him, since the Petitioner had been in continuous Government service for more than three years that by itself would qualify him for the status of quasi-permanency. This argument of Mr. Dutta is completely contrary to the decision of the Supreme Court in the case of Champaklal Chimanlal Shah v. Union of India AIR 1964 S.C. 1855. In that case, an officiating Assistant Director in the office of the Textile Commissioner, whose appointment had been temporary and had not been declared quasi-permanent under Rule 3 of the Temporary Service Rules, was informed by the Government of India after he had put in five years'' service that his service would be terminated from a particular date. No cause was assigned for such termination and no opportunity was given to him of showing cause against such termination. The officer concerned filed a suit against the Union of India in which he claimed that he was a quasi-permanent employee under the Temporary Service Rules, 1949, so that no action under Rule 5 of the Temporary Service Rules could be taken against him, that is to say, his service could not be terminated at any time by a mere notice in writing and further that he was entitled to the protection of Article 311 of the Constitution. The main plea that was taken in defence in that suit was that Champaklal was not a quasi-permanent employee and was, therefore, hit by Rule 5 of the Temporary Service Rules. The suit having been decided in both the trial Court and the High Court of Bombay against Champaklal, he went up in appeal to the Supreme Court. It was contended on behalf of the Appellant that since there was no conjunction ''and'' between the two clauses in Rule 3 of the Temporary Service Rules, a Government servant must be deemed to be quasi-permanent if he complied with either of the two conditions mentioned in the two clauses. In other words, the Appellant sought to construe the Rule by actually reading the word ''or'' between the two clauses. On the other hand, it was argued on behalf of the Union of India that looking at the frame of the Rules, the two clauses were to be taken in conjunction and the word ''and'' should be implied between them. In deciding this question, the Supreme Court referred, among others, to two of its earlier decisions and also a decision of the Bombay High Court. It appears that in the case of
''Quasi-permanent service'' means temporary service commencing from the date on which a declaration issued under Rule 3 takes effect and consisting of periods of duty and leave other than extraordinary leave after that date.
Wanchoo, J., observes that since under Rule 2B quasi-permanent service begins from the date on which a declaration is issued under Rule 3,
it follows therefore that before a Government servant can be deemed to be in quasi-permanent service a declaration must be issued under the second sub-clause of Rule 3, for that is the sine qua non for the commencement of quasi-permanent service. Without such a declaration, quasi-permanent service cannot begin.
His Lordship also pointed out in the judgment that if the Appellant''s contentions that fulfilment of the first sub-clause would qualify a Government servant for the quasi-permanent status, were to be accepted, there would be complete irreconcilability between Rule 2B and Clause (i) of Rule 3. His Lordship, therefore, laid down in categorical terms that both the two sub-clauses must be read conjunctively and both the conditions must be fulfilled before a Government servant can be deemed to be in quasi-permanent service. It is not necessary for us here to refer to the other arguments with which Wanchoo, J., as his Lordship then was, fortifies his reasoning. So far as we are concerned, the case before us is completely covered by the findings of his Lordship which are binding on us and, if I may say with utmost respect, this is hardly a matter on which there could be a second opinion. And yet Mr. Dutta, appearing for the Appellant before us, advanced the argument that his client had qualified himself for quasi-permanent service by the mere fact of having been in service for more than three years. It was not that Mr. Dutta was not alive to his difficulty. He told us, as indeed he was bound to tell us that he could not succeed in his appeal unless he could succeed in showing that Champaklal''s case Supra did not apply. In trying to distinguish Champaklal''s case Mr. Dutta suggested that in Champaklal''s case the Supreme Court had interpreted Rule 3 on the basis that the word ''and'' did not occur between the two sub-clauses. Mr. Dutta, however, argued that the word ''and'' actually existed between these two sub-clauses and he went to the length of arguing that the insertion of the word ''and'' would make the two clauses disjunctive. This, with great respect to the Learned Counsel, is not an argument which we can persuade ourselves to accept. Whether two clauses are to be construed conjunctively or disjunctively is ordinarily decided by finding out whether the two clauses are connected by the word ''and'' or ''or''; if the word ''and'' is there, the two clauses are taken conjunctively; on the other hand, if the word ''or'' is there, the two clauses are taken disjunctively. There are sometimes special circumstances where even the existence of the word ''and'' is ignored and the clauses are taken disjunctively. Likewise, there may be certain special circumstances where despite the use of the word ''or'' the two clauses may be taken conjunctively. This is a case where the Supreme Court has construed the two clauses conjunctively on the basis that there is no connective ''and'' between the two clauses. Therefore, the addition of the word ''and'' can only strengthen the argument in support of construing the two clauses conjunctively. It seems to us to be a fantastic proposition that the addition of the word ''and'' would make two clauses disjunctive in a context where the two clauses have been construed conjunctively even without the word ''and''. That disposes of the main argument of Mr. Dutta. I shall briefly deal with two other arguments of Mr. Dutta.
6. Mr. Dutta argued that the notification dated October 5, 1963 by which certain officers were confirmed against certain vacancies in the permanent class II posts was in violation of Rule 7(2) of the Temporary Service Rules. This argument was based on the assumption that the Memorandum No. E/345/1390, dated September 13, I960, which has been annexed to the petition and which includes a list showing seniority of certain officers for confirmation in class II posts 1 was issued under Rule 7(2) of the Rules. That complaint is that one C. Padmanav who was below the Petitioner in the list contained in this memorandum of September 13, 1960, was confirmed by the notification of October 5, 1963, before the Petitioner who occupied a higher position in that list. This, according to Mr. Dutta, rendered the memorandum of October 5, 1963, bad and illegal. To understand the argument it is necessary to set out the full text of Rule 7 of the Temporary Service Rule. Rule 7 is in the following terms:
Rule 7. (1) Subject to the provisions of this Rule, a Government servant in respect of whom the declaration has been issued under Rule 3, shall be eligible for a permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filed from among persons in quasi-permanent service, in accordance with such instructions, as may be issued by the Governor-General in this behalf from time to time.
Explanation: No such declaration shall confer upon any person a right to claim a permanent appointment to any, post.
(2) Every appointing authority shall, from time to time after consultation with the appropriate Departmental Promotions Committee, prepare a list in order of precedence, of persons in quasi-permanent service who are eligible for permanent appointment. In preparing such a list, the appointment authority shall consider both the seniority and the merit of the Government servants concerned. All permanent appointments which are reserved under Sub-rule (1) under the control or any such appointing authority shall be made in accordance with such list.
Provided that the Government may order that permanent appointment to any grade or post may be made purely in order of seniority.
7. This argument of Mr. Dutta is completely without substance. All that Rule 7 lays down is this that in making temporary civil servants permanent they should be taken in order of precedence from a list prepared by the Departmental Promotions Committee. The list, however, is to be made only of persons who are in quasi-permanent service. Sub-rule (1) of Rule 7 says that no other person will be eligible for permanent appointment. Both Sub-rules (1) and (2) refer to the same class of persons. In fact, these two sub-rules together confirm the conclusion that we have already reached, viz., that only a person against, whom a declaration has been issued under Rule 3 of the said Rules can be described as a person in quasi-permanent service. The seniority list for confirmation in class II posts contained in the memorandum of September 13, 1960, is not at all a list made under the provisions of Rule 7. That list was prepared only for departmental convenience and was intended to fix seniority of certain class II officers. Reference may be made in this connection to the affidavit dated June 20, 1963, affirmed by Jagadish Chandra Varmah, Conservator of Forests Andaman and Nicobar Islands. Therefore, that list cannot be the foundation of any statutory right. It appears from a letter dated September 7, 1962, addressed by Government of India, Ministry of Food and Agriculture, to the Chief Commissioner, Andaman and Nicobar Islands, that the Petitioner was not recommended for appointment substantively to class II post by the relevant Departmental Promotions Committee. There was a recommendation made by that committee that appropriate vacancies might be kept vacant for Sarvashri B.A. Subramaniam and P.M. Thimayya and that their cases should be referred to the Committee again. The notification dated October 5, 1962, was published in conformity with the direction contained in the letter of the Government of India dated September 7, 1962, and in that notification the Petitioner''s name was omitted. Since there had been no declaration of quasi-permanency regarding the Petitioner at any stage and since the Petitioner was not also selected by the Departmental Promotions Committee for confirmation against permanent class II post, there has been no violation of Rule 7 of the Temporary Service Rule at all.
8. Mr. Dutta also made a complaint that the order dated February 1, 1963, in effect reduces the Petitioner in the order of seniority even among Assistant Conservators, because by another order on that date Thimayya who is described as the seniormost Assistant Conservator of Forests is transferred to Port Blair and asked to take over charge of the post of Deputy Conservator of Forests. Mr. Dutta''s argument is that Thimayya in any case was occupying a position below the Petitioner in the departmental seniority list contained in the memorandum of September 13, 1960. Thimayya like the Petitioner was also not confirmed in the rank of Assistant Conservator. Therefore, when Thimayya was described as the seniormost Assistant Conservator of Forests and was appointed Deputy Conservator by the order of February 1, 1963, the Petitioner was in effect superseded. In other words, the order of reversion passed on the Petitioner affected the Petitioner''s order of seniority as between the Petitioner and Thimayya. We are satisfied that there is no substance in this complaint either. It was argued before the learned Judge that Thimayya''s promotion was to take place on the date when Subramaniam was relieved of the post of Deputy Conservator of Forests. On February 1, 1963, when the order of reversion was passed, the Petitioner was still the Deputy Conservator of Forests. The Petitioner on that date could not be described as an Assistant Conservator, at least not until he had made over charge of his office in pursuance of the order of February 1, 1963. In these circumstances, on that date, it was not certainly erroneous to describe Thimayya as the seniormost Assistant Conservator in the field, for by that time all the other officers in the departmental seniority list contained in the memorandum of September 13, I960; had already been promoted. Therefore, there is no substance in this complaint, of the Appellant.
9. This disposes of all the arguments made by Mr. Dutta before us. Since all the contentions of Mr. Dutta have failed, we order as follows:
10. The appeal is dismissed. The order dated August 10, 1965, of Basu, J. is confirmed. There will be no order as to costs.
Sinha, C.J.
11. I agree.
