THE STATE OF GUJARAT AND OTHERS versus R.J. PATHAN AND OTHERS on 24 March 2022

780

SUPREME COURT REPORTS

[2022] 1 S.C.R.

ATHE STATE OF GUJARAT AND OTHERS

v.

R.J. PATHAN AND OTHERS

(Civil Appeal No. 1951 of 2022)

B

MARCH 24, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Service Law – Regularisation – Respondents were appointedin a temporary project – Initial appointment was for eleven monthsCon a fixed salary, which was continued from time to time – However,as the said unit was required to be closed which, as such, was atemporary unit, instead of putting an end to the services ofrespondents, the State Government thought it fit to transfer andplace them with the Indian Red Cross Society – At this stage, theDrespondents approached the High Court and challenged theirplacement with the Indian Red Cross Society – Single Judge dismissedthe writ petition – Respondents filed LPA – In 2011, Division Benchgranted interim relief and directed to maintain status quo andpursuant thereto respondents were continued in service with theGovernment – In 2021, when the said LPA was taken up for furtherEhearing, it was submitted by respondents that as they have workedfor 17 years, the State may be directed to absorb them and regularisetheir services – Accepting the submission, the Division Benchdirected the State to consider the cases of respondents for absorption/ regularisation and if required, by creating supernumerary posts –FOn appeal, held: While issuing such direction, the Division Benchof High Court did not consider the fact that the respondents werecontinued in service pursuant to an interim order – Division Benchalso did not appreciate that respondents were initially appointedfor eleven months and on a fixed salary and that too, in a temporaryunit created only for purpose of rehabilitation pursuant to anGearthquake – Posts on which respondents were appointed andworking were not sanctioned posts in any regular establishment ofthe Government – Therefore, no such direction could have beenissued by the Division Bench to absorb them in Government serviceand to regularise their services – Division Bench observed that evenwhile absorbing and / or regularising the services of respondents,H

the State Government may create supernumerary posts – Such adirection to create supernumerary posts is wholly withoutjurisdiction – Apparently, what weighed with the Division Benchwas that respondents were continued in service for a long time, i.e.,17 years – Division Bench however did not consider that out of 17years, respondents continued in service for 10 years pursuant tointerim order of the High Court – Even considering the decision inUmadevi*, the period for which employees continue in servicepursuant to interim order is to be excluded – High Court totallymissed the said aspect – Order passed by Single Judge of HighCourt dismissing the writ petition filed by respondents, accordinglyrestored.

Service Law – Regularisation – Umadevi* case – Whenapplicable – Held: The purpose and intent of the decision inUmadevi* was, (1) to prevent irregular or illegal appointments inthe future, and (2) to confer a benefit on those who had beenirregularly appointed in the past and who have continued for avery long time – The decision of Umadevi* may be applicable in acase where the appointments are irregular on the sanctioned postsin regular establishment – The same does not apply to temporaryappointments made in a project/programme.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. From the impugned judgment and order passedby the Division Bench of the High Court, it appears that what hasweighed with the High Court was that the respondents werecontinued in service for a long time, i.e., 17 years. However, theHigh Court has not considered that out of 17 years, therespondents continued in service for ten years pursuant to theinterim order passed by the High Court. Therefore, evenconsidering the decision of this Court in the case of Umadevi*,the period for which the employees have continued in servicepursuant to the interim order is to be excluded and not to becounted. The High Court totally missed the aforesaid aspect.[Para 7][787-G-H; 788-A]

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2. The decision of Umadevi* may be applicable in a casewhere the appointments are irregular on the sanctioned posts inregular establishment. The same does not apply to temporaryappointments made in a project/programme. [Para 8][788-C-D]

*State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :B[2006] 3 SCR 953 – held inapplicable.

3. No duty was cast upon the State to transfer therespondents to another establishment in a case where it is foundthat the employees are appointed in a temporary unit and on atemporary contractual basis and on a fixed term salary and onCclosure of the temporary unit, their services are not required.However, the State Government was gracious enough to placethe respondents in the Indian Red Cross Society, which therespondents did not accept. [Para 9][788-F-G]

4. From the impugned order passed by the Division BenchDof the High Court it appears that the High Court has observedthat in the peculiar facts and circumstances of the case, it isdirected that the order of absorption and regularisation and ifnecessary, by creating supernumerary posts, will not be treatedas a precedent in other cases. Even such a direction could nothave been passed by the Division Bench of the High Court asEthere were no peculiar facts and circumstances which warrantedthe above observation. No such order of absorption and/orregularisation even if required for creating supernumerary postsand not to treat the same as precedent could have been passedby the High Court in exercise of powers under Article 226 of theFConstitution of India. [Para 10][788-G-H; 789-A-B]

Narendra Kumar Tiwari v. State of Jharkhand (2018)8 SCC 238 : [2018] 9 SCR 412 – held inapplicable.

Case Law Reference

[2006] 3 SCR 953G[2018] 9 SCR 412

held inapplicable

Para 4.1

held inapplicable

Para 4.1

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1951of 2022.

From the Judgment and Order dated 18.02.2021 of the High Courtof Gujarat at Ahmedabad in Letters Patent Appeal No.2082 of 2011 inSpecial Civil Application No.17328 of 2011.

Ms. Deepanwita Priyanka, Adv. for the Appellants.

Kabir Hathi, Ms. Jesal Wahi, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 18.02.2021 passed by the High Court of Gujarat atAhmedabad in Letters Patent Appeal (for short, ‘LPA’) No. 2082/2011,by which the Division Bench of the High Court has allowed the saidLPA and directed the State to consider the cases of the respondents forregularisation sympathetically and if necessary, by creating supernumeraryposts, the State has preferred the present appeal.

2. The facts leading to the present appeal in a nut-shell are asunder:

2. The facts leading to the present appeal in a nut-shell are asunder:

That the respondents herein were appointed on contractual basisfor a period of eleven months on a fixed salary and on a particular project,namely, “Post-Earthquake Redevelopment Programme” of theGovernment of Gujarat. That the respondents herein were initiallyappointed for a period of eleven months in the year 2004 to the post ofdrivers. On closure of the project in which the respondents wereappointed, instead of terminating the services of the respondents herein,the State Government took a decision to place them inthe services ofIndian Red Cross Society. Instead of joining the duties in the Indian RedCross Society, the respondents approached the High Court by filing WritPetition No. 17328/2011 for regularisation of their services and absorptionin Government service. The original writ petitioners also challenged theirplacement with the Indian Red Cross Society.

2.1 The learned Single Judge vide order dated 25.11.2011 dismissedthe said writ petition by observing that the appointment of the originalwrit petitioners was only for eleven months on a fixed salary, which hasbeen continued from time to time, and the unit in which they were A

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Aappointed temporarily was a “Project Implementation Unit” only for thepurpose of rehabilitation pursuant to the earthquake for the “Post-Earthquake Redevelopment Programme” and they were not regularlyappointed on any permanent sanctioned posts in any establishment ofthe Government where the writ petitioners have any lien.

B2.2 Feeling aggrieved and dissatisfied with the order passed bythe learned Single Judge dismissing the writ petition, the respondentsherein – original writ petitioners preferred LPA No. 2082/2011 beforethe Division Bench of the High Court. By an interim order dated20.12.2011, respondents herein were continued in service with the StateGovernment and they were not even transferred to the Indian Red CrossCSociety. The said LPA came up for hearing before the Division Bench inthe year 2021. Before the Division Bench, it was submitted on behalf ofthe respondents herein – original writ petitioners that as they have beencontinuously working in the Government Departments and they havenot been transferred to Indian Red Cross Society and since they haveDby now working for seventeen years, the Government may be directedto consider the case for regularisation in the service as long period haspassed.

2.3 By the impugned judgment and order, the Division Bench ofthe High Court has directed the State/Department to consider the casesEof the respondents herein for absorption and regularisation sympatheticallyand if necessary, by creating supernumerary posts, solely on the groundthat the respondents herein – original writ petitions by now have workedfor seventeen years.

2.4 Feeling aggrieved and dissatisfied with the impugned judgmentFand order passed by the Division Bench of the High Court, the State haspreferred the present appeal.

3. Ms. Deepanwita Priyanka, learned counsel appearing on behalfof the State has vehemently submitted that the Division Bench of theHigh Court has committed a grave error in directing the State to considerGthe cases of the respondents for absorption/regularisation sympatheticallyand if necessary, by creating supernumerary posts.

3.1 It is submitted that the Division Bench of the High Court hasnot properly appreciated the fact that the respondents were initiallyappointed for a fixed period of eleven months on the posts of drivers andin the temporary project, only for the purpose of rehabilitation, pursuantH

to the earthquake, namely, “Post-Earthquake Redevelopment Programme”and they were never appointed in any regular establishment and/or inany sanctioned post in any regular establishment. It is submitted thattherefore they have no right to claim absorption/regularisation.

3.2 It is contended by the learned counsel appearing on behalf ofthe State of Gujarat that the Division Bench of the High Court has notproperly appreciated and/or considered the fact that after 2011, therespondents were continued pursuant to the interim order passed by theHigh Court. Therefore, when the respondents were continued in servicepursuant to the interim order passed by the High Court and the departmentcontinued them in compliance of the interim order passed by the HighCourt, thereafter it would not be open for the respondents to contendthat as they have worked for more than seventeen years (under theinterim order) and hence they are to be absorbed and/or regularised inservice.

3.3 Making the above submissions, it is prayed to allow the presentappeal.

4. The present appeal is opposed by Shri Kabir Hathi, learnedcounsel appearing on behalf of the respondents – original writ petitionersbefore the High Court.

4.1 Learned counsel appearing on behalf of the respondents hasheavily relied upon on the decision of this Court in the case of State ofKarnataka v. Umadevi (3), reported in (2006) 4 SCC 1, as well as,the subsequent decision of this Court in the case of Narendra KumarTiwari v. State of Jharkhand, reported in (2018) 8 SCC 238 (para7). Relying upon the above decisions, it is submitted that as the respondentshave worked for more than seventeen years as drivers with the StateGovernment, the Division Bench of the High Court has rightly directedthe State to consider their cases for absorption/regularisationsympathetically and if required, by creating supernumerary posts.

4.2 It is submitted that as the respondents are working as driverswith the State Government for seventeen years, they may be absorbedwith the State Government and their services may be regularised.

5. We have heard the learned counsel for the respective partiesat length.

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AAt the outset, it is required to be noted that the respondents herein– original writ petitioners were, as such, appointed in a temporary project,which was created only for the purpose of rehabilitation pursuant to theearthquake for “Post-Earthquake Redevelopment Programme”. All ofthem were initially appointed for a period of eleven months on a fixedsalary, which came to be continued from time to time till the requirementBin a particular project/unit – “Project Implementation Unit”. However,as the said unit was required to be closed which, as such, was a temporaryunit, instead of putting an end to the services of the respondents, theState Government thought it fit to transfer and place them with the IndianRed Cross Society. At this stage, the respondents approached the HighCCourt and challenged their placement with the Indian Red Cross Society.The learned Single Judge dismissed the said writ petition by observingas under:

“It is not in dispute that the petitioners, who are serving on a fixedterm and salary as per the terms of the contract of service withDrespondent Nos. 1 & 2, are now transferred to respondent No.4in view of administrative exigencies. Appointment of the petitionersis only for 11 months on a fixed salary which is continued fromtime to time and even the Unit on which the petitioners areappointed temporarily is a ‘Project Implementation Unit’ createdonly for the purpose of rehabilitation pursuant to the earth-quakeEfor ‘post earth-quake redevelopment programme’. Thus, the Unititself has temporary status and tenure to which the petitioners areappointed on a fixed term and salary. If the decision is taken bythe Authority to place their services with the Indian Red CrossSociety continued with salary, it cannot be said that any serviceFcondition under the Rule is violated inasmuch as none of thepetitioners is regularly appointed employee on any permanentsanctioned post on any establishment of the Government wherethe petitioners have any lien. Placement of the petitioners is neitherviolative of any statutory rule nor mala fide.”

G6. The order passed by the learned Single Judge dismissing thewrit petition was in the year 2011. The order passed by the learnedSingle Judge was challenged by the respondents by way of LPA. In theyear 2011, the Division Bench granted the interim relief and directed tomaintain status quo and pursuant to the said interim order, the respondentswere continued in service with the Government. In the year 2021, whenH

the said LPA was taken up for further hearing, it was submitted onbehalf of the respondents that as by now the respondents have workedfor seventeen years, the State may be directed to absorb them in theGovernment and their services may be regularised. By observing that asthe respondents have worked for a long time, i.e., for seventeen years,the Division Bench has directed the State to consider the cases of therespondents for absorption/regularisation and if required, by creatingsupernumerary posts. However, while issuing such a direction, the HighCourt has not at all considered the fact that the respondents werecontinued in service pursuant to the interim order passed by the HighCourt. The Division Bench has also not appreciated the fact and/orconsidered the fact that the respondents were initially appointed for aperiod of eleven months and on a fixed salary and that too, in a temporaryunit – “Project Implementation Unit”, which was created only for thepurpose of rehabilitation pursuant to the earthquake for “Post-EarthquakeRedevelopment Programme”. Therefore, the unit in which the respondentswere appointed was itself a temporary unit and not a regularestablishment. The posts on which the respondents were appointed andworking were not the sanctioned posts in any regular establishment ofthe Government. Therefore, when the respondents were appointed on afixed term and on a fixed salary in a temporary unit which was createdfor a particular project, no such direction could have been issued by theDivision Bench of the High Court to absorb them in Government serviceand to regularise their services. The High Court has observed that evenwhile absorbing and/or regularising the services of the respondents, theState Government may create supernumerary posts. Such a direction tocreate supernumerary posts is unsustainable. Such a direction is whollywithout jurisdiction. No such direction can be issued by the High Courtfor absorption/regularisation of the employees who were appointed in atemporary unit which was created for a particular project and that too,by creating supernumerary posts.

7. From the impugned judgment and order passed by the DivisionBench of the High Court, it appears that what has weighed with theHigh Court was that the respondents were continued in service for along time, i.e., seventeen years. However, the High Court has notconsidered that out of seventeen years, the respondents continued inservice for ten years pursuant to the interim order passed by the HighCourt. Therefore, even considering the decision of this Court in the caseof Umadevi (supra), the period for which the employees have continued AB

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Ain service pursuant to the interim order is to be excluded and not to becounted. The High Court has totally missed the aforesaid aspect.

8. Now, so far as the reliance placed upon the decision of thisCourt in the case of Umadevi (supra) and the subsequent decision ofthis Court in the case of Narendra Kumar Tiwari (supra), relied uponBby the learned counsel appearing on behalf of the respondents isconcerned, none of the aforesaid decisions shall be applicable to thefacts of the case on hand. The purpose and intent of the decision inUmadevi (supra) was, (1) to prevent irregular or illegal appointments inthe future, and (2) to confer a benefit on those who had been irregularlyappointed in the past and who have continued for a very long time. TheCdecision of Umadevi (supra) may be applicable in a case where theappointments are irregular on the sanctioned posts in regularestablishment. The same does not apply to temporary appointments madein a project/programme.

8.1 Even in the case of Narendra Kumar Tiwari (supra) also, itDwas a case of irregularly appointed employees. Even otherwise, in viewthe facts and circumstances of Narendra Kumar Tiwari (supra), thesaid decision shall not be applicable to the facts of the case on hand. Thecase before this Court was with respect to the employees working withthe State of Jharkhand which was created only on 15.11.2000 andEtherefore it was contended on behalf of the irregularly appointedemployees that no one could have completed ten years of service withthe State of Jharkhand on the cut-off date of 10.04.2006, which was thecut-off date fixed under the relevant rules of the State of Jharkhand.

9. Even otherwise, it is to be noted that though not required, theFState, instead of putting an end to the services of the respondents,graciously placed the respondents in the Indian Red Cross Society. Noduty was cast upon the State to transfer them to another establishmentin a case where it is found that the employees are appointed in a temporaryunit and on a temporary contractual basis and on a fixed term salary andon closure of the temporary unit, their services are not required. However,Gthe State Government was gracious enough to place the respondents inthe Indian Red Cross Society, which the respondents did not accept.

10. From the impugned order passed by the Division Bench of theHigh Court it appears that the High Court has observed hereinabovethat in the peculiar facts and circumstances of the case, it is directedHthat the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases.Even such a direction could not have been passed by the Division Benchof the High Court as there were no peculiar facts and circumstanceswhich warranted the above observation. No such order of absorptionand/or regularisation even if required for creating supernumerary postsand not to treat the same as precedent could have been passed by theHigh Court in exercise of powers under Article 226 of the Constitutionof India.

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11. In view of the above discussion and for the reasons statedabove, the impugned judgment and order passed by the Division Benchof the High Court is unsustainable and the same deserves to be quashedand set aside and is accordingly quashed and set aside. Order dated25.11.2011 passed by the learned Single Judge of the High Court in WritPetition No. 17328/2011 dismissing the writ petition filed by therespondents herein is hereby restored.

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12. The present appeal is accordingly allowed. However, thereDshall be no order as to costs.

Bibhuti Bhushan Bose

Appeal allowed.

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