VINOD RAVJIBHAI RAJPUT versus STATE OF GUJARAT & ORS. on 14 February 2020

SUPREME COURT REPORTS

[2020] 4 S.C.R.

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VINOD RAVJIBHAI RAJPUT

v.

STATE OF GUJARAT & ORS.

(Civil Appeal No. 1601 of 2020)

BFEBRUARY 14, 2020

[INDIRA BANERJEE AND A. S. BOPANNA, JJ.]

Service Law: Fresh appointment – Appellant was appointedpart time Gallery Attendant in 1995 and in 2002 was appointed asa full time Gallery Attendant against a sanctioned post – He servedCas a full time Gallery Attendant for almost 2 years after which hisservices were abruptly termination on 1.7.2004 on the ground thathis appointment as a full time Gallery Attendant was against thepolicy of the State Government of not making any fresh recruitmentdue to financial constraints – Appellant filed writ petition in HighDCourt – Single judge passed interim order restraining respondentauthorities from terminating the services of the appellant subject toresult of pending writ petition and clarified that the appellant couldif necessary be reverted as a part time employee – Pursuant thereto,respondent authorities reverted the appellant to the position of parttime employee – Appellant made representations and thereafterEaggrieved by inaction of concerned authorities to act on hisrepresentations, filed writ petition which were disposed of bydirecting the appellant to make representation to the concernedauthorities and directing authorities to decide his representation –On 18.12.2012, his services were terminated on the ground that itFwas impermissible to regularise him to the post of Gallery Attendantas he had not fulfilled certain conditions prescribed in GovernmentResolution dtd. 1.5.2007 – Appellant filed writ petition which wasdismissed observing that the appropriate remedy of appellant wasto initiate proceedings in accordance with 1947 Act – Division Benchallowed LPA no.635 of 2013 filed by appellant and directedGrespondents to reinstate the appellant to the post of full time attendant– However since appellant had not worked since 18.12.2012, hewas not granted back wages – Thereafter, he was duly appointedand he resumed his duties on 14.12.2013 – Appellant filed writpetition questioning the action of authorities in not granting the H

appellant the benefit of continuty of service from 25.07.2002 – Singlejudge allowed the writ petition holding that reinstatement includescontinuity of service – LPA – Division Bench set aside order ofsingle judge – In the instant appeal, the question for considerationwas whether the action of the Respondents in granting freshappointment to the Appellant with effect from 14.10.2013, in violationof the judgment dated 22.08.2013 of the Division Bench in LPA No.635 of 2013 directing the Respondents to reinstate him, is sustainablein law – Held: When the earlier Division bench clearly directedreinstatement of the Appellant, but without back wages and the saidjudgment has assumed finality and is binding on the Respondents,it was not open to the concerned authorities to give freshappointment to the Appellant with effect from 14.10.2013 – Appellanthas to be reinstated with continuity of service from the date of hisinitial appointment as full-time Gallery Attendant in July 2002, butwithout back wages for the period between 18.12.2012 to22.08.2013, when the Appellant did not work – Appellant shall,however, be entitled to differential salary, if any, between the postof full-time Gallery Attendant and part-time Gallery Attendant from25.07.2002 onwards, but not for the period between 18.12.2012 to22.08.2013, in view of the judgment and order of the Division Benchdated 22.08.2013 in LPA No. 635 of 2013 – Industrial DisputesAct, 1947.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. By the judgment and order of 22[nd] August 2013in Letters Patent Appeal No. 635 of 2013, the earlier Divisionbench had clearly directed reinstatement of the Appellant, butwithout back wages. The said judgment and order has assumedfinality and is binding on the Respondents. It was not open to theconcerned authorities to give fresh appointment to the Appellantwith effect from 14[th] October 2013. The Single Bench very rightlyallowed the writ petition. However, the only error that the SingleBench made, was in directing reinstatement of the Appellant withconsequential benefits, without clarifying that the reinstatementwould be with consequential benefits except back wages for theperiod from 18.12.2012 to 22.08.2013 when the Appellant hadnot worked. The Division Bench had decided Letters PatentNo.635 of 2016, after considering the Government Resolution ABC

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Adated 1[st] May 2007 of the Finance Department, which had beenissued in the wake of the directions of the Supreme Court in thecase of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors.The judgment and order in Uma Devi or the resolution dated 1[st]May 2007 adopted pursuant to the said judgment and order cannotbe retrospectively applied to the Appellant, who had duly beenBappointed full-time Gallery Attendant way back in 2002. The Rulesframed in 2005 cannot also have retrospective operation. [Paras28-30][673-B-H; C-H; 674-A]

2. In Letters Patent Appeal No. 635 of 2013, the DivisionBench held that the view taken by the Respondent AuthoritiesCwas unreasonable for reasons :- (i) It was not in dispute that theappellant was appointed as a part-time Gallery Attendant on 14[th]March, 1995; (ii) at that time post of full-time Gallery Attendantwas vacant; (iii) the name of the appellant had been forwarded bythe Employment Exchange and he had been interviewed; (iv)

Dthe appellant held a certificate of the Museum certifying hissincerity and honesty as Gallery Attendant; (v) on 25[th] July, 2002,the appellant had been appointed as a full-time Gallery Attendantwith the prior permission and sanction of the Director,Sangrahalaya Department, State of Gujarat. (vi) The order oftermination dated 1[st] July, 2004 was issued after permitting theEappellant to work as full-time regular Gallery Attendant for almosta period of two years. (vii) By the time the order of terminationhad been issued, the appellant had put in nine years and fourmonths of combined service as part-time employee and as full-time Gallery Attendant. (viii) The Single Judge had passed anFinterim order on being prima facie satisfied of the merits of thecase of the appellant. [Para 31][674-A-F]

3. After considering all the factors surrounding the initialappointment of the Appellant as part-time Gallery Attendant, hisservices as full-time Gallery Attendant, the interim order of theGSingle Bench and considering that the Appellant had renderedalmost seventeen years of service as a Gallery Attendant, BhujMuseum, the Division Bench had allowed the appeal of theAppellant, set aside the judgment and order of the Single Benchdated 2[nd] April 2013 and directed the Respondent Authorities to H

reinstate the Appellant to the post of full-time Gallery Attendantof Bhuj Museum forthwith, but without back wages, since theAppellant had not worked from 18[th] December 2012 till the dateof the judgment of the Division Bench. The Appellant has to bereinstated with continuity of service from the date of his initialappointment as full-time Gallery Attendant in July 2002, butwithout back wages for the period between 18.12.2012 to22.08.2013, when the Appellant did not work. [Paras 32-33][674-E-H; 675-A]

Secretary, State of Karnataka & Ors. v. Umadevi &Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 – referredto.

Case Law Reference

[2006] 3 SCR 953referred to

Para 29

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1601of 2020.

From the Judgment and Order dated 24.06.2016 of the High Courtof Gujarat at Ahmedabad in LPA No. 195 of 2016 in Special CivilApplication No. 5108 of 2014.

Bhargav Hasurhar, Anshul Narayan, Prem Prakash, Advs. forthe Appellant.

Aniruddha P. Mayee, A. Rajarajan, Ms. Hemantika Wahi, Advs.for the Respondents.

The Judgment of the Court was delivered by INDIRA BANERJEE, J.

1. Leave granted.

2. This appeal is against a judgment and order dated 24[th] June2016 passed by a Division Bench of the Gujarat High Court allowingLetters Patent Appeal No.195 of 2016 and setting aside an order dated14[th] September 2015 of the Single Bench allowing the Writ Petition beingSpecial Civil Application No.5108 of 2014 filed by the Appellant, holdingthat the Appellant was entitled to reinstatement including continuity ofservice and the benefits flowing from continuity of service.

3. The Appellant was appointed part-time Gallery Attendant ofBhuj Museum on 14[th] March 1995. His name had been forwarded for A

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Aconsideration by the concerned Employment Exchange.

4. On 25[th] July,2002, the Respondent No.2 passed an orderappointing the Appellant as a full-time Gallery Attendant in the pay-scale of Rs.2550-55-2660-60-3200, against a sanctioned Class IV vacantpost, after obtaining the sanction of the Director of the SangrahalayaBDepartment, State of Gujarat.

5. The Appellant served as a full-time Gallery Attendant of BhujMuseum for almost two years, after which his services were abruptlyterminated by an order dated 1[st] July 2004, passed by the RespondentNo.3.

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6. It appears that the order dated 1[st] July 2004, of termination ofthe services of the Appellant, was passed on the ground that the Appellanthad been appointed as full-time Gallery Attendant of Bhuj Museum,notwithstanding the policy of the State Government, of not making anyfresh recruitment, due to financial constraints.

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7. The Appellant filed a writ petition under Article 226 of theConstitution of India, being SCA No.7943 of 2004, in the High Court,whereupon a learned Single Judge passed an interim order dated 7[th] July2004, restraining the Respondent Authorities from terminating the servicesof the Appellant, pursuant to the notice dated 1[st] July 2004. This interimEorder was subject to the result of the pending writ petition and clarifiedthat the Appellant could, if necessary, be reverted as a part-time employee.

8. Pursuant to the interim order of the learned Single Judge dated7[th] July 2004, the Respondent Authorities passed an order dated 10[th]August 2004, reverting the Appellant to the position of a part-timeemployee.F

9. The Appellant filed an application being Civil ApplicationNo.7970 of 2004 in the pending writ petition for suspension of the orderdated 10[th] August 2004 whereby the Appellant had been reverted fromthe position of ad-hoc full-time employee to that of part-time employee.

10. By an order dated 17[th] March 2008, the learned Single Judgedisposed of the aforesaid application, without interfering with the impugnedorder dated 10[th] August 2004, holding that the order did not flout theinterim order dated 7[th] July 2004. The learned Judge observed that itwould be appropriate if the existing status of the Appellant was maintained,and any representation made by the Appellant to the authorities G

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concerned, given due consideration.

11. Pursuant to the aforesaid order dated 17[th] March 2008, theAppellant made a representation. The Appellant was, however, informedthat he could not be made a full-time employee, as he had not cleared hisSecondary School Certificate (SSC)/10[th] standard examination.

12. The Appellant argued that, at the time of issuance of the orderdated 25[th] July 2002 appointing the Appellant as full-time GalleryAttendant, the requisite educational qualification for appointment to thepost of a full-time Gallery Attendant was only 4[th] Standard Pass, and theAppellant had the aforesaid qualification.

13. In any case, while continuing to work as part-time employee,the Appellant successfully cleared the SSC examination. Thereafter, hemade two representations dated 30[th] December 2010 and 22[nd] April2012 informing the concerned authorities that he had cleared the SSCexamination and requesting that he be absorbed as a full-time GalleryAttendant.

14. Being aggrieved by the inaction of the concerned authoritiesto act on his representations, the Appellant filed a writ petition underArticle 226 of the Constitution of India, being Special Civil ApplicationNo.9910 of 2012 in the High Court. The writ petition was disposed of,by directing the Appellant to make a representation to the concernedauthorities. The concerned authorities were directed to decide therepresentation within a period of four months.

15. Thereafter, by an order dated 18[th] December 2012, the servicesof the Appellant were terminated on the ground that it was impermissibleto regularize the Appellant to the post of Gallery Attendant, as he hadnot fulfilled the requisite conditions as prescribed in the GovernmentResolution issued by the Finance Department on 1[st] May 2007.

16. One of the conditions, which according to the RespondentAuthorities, the Appellant had not fulfilled, was that he had not completedten years of service as on 10[th] February 2006, and even if he hadcompleted ten years of service, this was on the strength of the interimorder passed by the High Court.

17. The Appellant filed a writ petition being Special Civil ApplicationNo.16840 of 2012 in the High Court, challenging the order dated 18[th]December 2012 terminating his services. The learned Single Judge refusedto entertain the petition, observing that the appropriate remedy of the A

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AAppellant was to initiate proceedings in accordance with the provisionsof the Industrial Disputes Act, 1947.

18. Being aggrieved by the judgment of the Single Bench, theAppellant filed Letters Patent Appeal No.635 of 2013 before the DivisionBench. The Division Bench considered the relevant rules and regulationsBgoverning recruitment to the post in question, allowed the appeal anddirected the Respondents to reinstate the Appellant to the post of full-time Gallery Attendant of Bhuj Museum forthwith. However, since theAppellant had not worked from 18[th] December 2012 till the date of thejudgment and order, the Division Bench refrained from passing ordersfor back wages.C

19. Thereafter, an office order dated 14[th] October 2013 was issuedappointing the Appellant to the post of Gallery Attendant (Class IV) atKutch Museum, Bhuj in the pay band of Rs.4444-7440, Grade Pay ofRs.1300, with effect from the date of resumption of his duties. TheOffice Order noted that the Appellant resumed his duties on 14[th] OctoberD2013.

20. The Appellant filed a writ petition under Article 226 of theConstitution of India in the High Court being Special Civil ApplicationNo. 5108 of 2014 questioning the action of the Respondent Authoritiesin not granting the Appellant the benefit of continuity of service fromE25[th] July 2002. The said writ petition was allowed by the Single Bench,by an order dated 14[th] September 2015, the operative part whereof isset out hereinbelow:

“Thus, in view of the above, reinstatement includes thecontinuity of service, and accordingly, the petitioner is entitledFfor the benefits flowing from the continuity of service.”

21. Being aggrieved by the said judgment and order dated 14[th]September 2015, the Respondents filed an appeal being Letters PatentAppeal No.195 of 2016. The said appeal has been allowed by the DivisionBench of the High Court by the judgment and order impugned in thisGappeal, with the following observation:

“In view of the aforesaid discussion, we are of the opinionthat learned Single Judge has committed an error whileobserving that the petitioner is entitled to the benefits flowingfrom the continuity of service. Hence, the impugned order is quashed and set aside. The appeal is allowed. As the appealis allowed, no orders are passed on civil application.”

22. The short question in this appeal is, whether the action of theRespondents in granting fresh appointment to the Appellant with effectfrom 14[th] October 2013, in violation of the judgment and order dated22.08.2013 of the Division Bench in Letters Patent Appeal No. 635 of2013 directing the Respondents to reinstate him, is sustainable in law.

23. May be, as argued by learned Counsel on behalf of theRespondent Authorities, the order of appointment i.e. 14[th] October 2013does not bear any reference to the judgment and order of the DivisionBench, dated 22[nd] August 2013 in Letters Patent Appeal No.635 of 2013.However, the aforesaid judgment and order, against which there was noappeal, has assumed finality and is binding on the Respondents.

24. In exercise of powers conferred by the proviso to Article 309of the Constitution of India, and in supersession of all existing Rulesregulating recruitment to Class IV posts in the Secretariat and non-Secretariat offices of the Government of Gujarat, the Governor of Gujarathas framed Rules to provide for regulating recruitment to Class IV postsin inferior services, which is called “The Class IV Posts in InferiorServices in the Gujarat Secretariat and Non Secretariat OfficesRecruitment Rules, 2005”, hereinafter referred to as “the 2005 Rules”

25. Relying on the 2005 Rules, and in particular Rules 2 to 7 thereof,the Respondent Authorities have contended that the Appellant did nothave the requisite eligibility to be appointed full-time Gallery Attendantin 2002, as he had not passed the Secondary School CertificateExamination then. Rules 2 to 7 of the said Rules provide as under:- “2. Appointment to the posts of Class IV (in inferior service)in Secretariat and non-Secretariat offices of Government ofGujarat shall be made either

(i) by direct selection;

(ii) by transfer; or

(iii) by deputation.

3. To be eligible for appointment by direct selection to thepost mentioned in rule 2, a candidate shall:- AB

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SUPREME COURT REPORTS

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(i) not be less than 18 years and not more than 25 years ofage;

(ii) have passed Secondary School Certificate Examination;

(iii) possess skills relevant to the job as may be prescribed byGovernment from time to time;B

Provided that preference may be given to a candidate whopossesses the driving licence for light motor vehicles.

4. The candidate appointed in Class IV posts may betransferred in public interest to any other Class IV post inCinferior services in any Secretariat or non-Secretariat officein the State;

5. A candidate appointed by direct selection shall be onprobation for a period of six months;

6. A selected candidate shall be required to pass theDdepartmental examination and an examination in Gujaratior Hindi or both in accordance with the Rules prescribed bythe Government from time to time;

7. A candidate appointed by direct selection shall have toundergo such training according to his job and to pass suchEexamination as may be prescribed by the Government fromtime to time.”

26. On behalf of the Respondents, it was also argued that, theconditions for regularization of Class IV employees have been laid downin a Government Resolution dated 1[st] May 2007. For regularization, theFemployees needed to fulfill the following conditions:

(i) On 10[th] February, 2006, the employees should havecompleted ten years of service, putting in atleast 6 hours ofwork per day. The ten year period should not be on the strengthof any order of the Court or the Tribunal; G

(ii) The employees who had completed ten years of serviceshould have been appointed in accordance with recruitmentprocedure prevailing at the relevant point of time. In otherwords, their names should have been recommended by theEmployment Exchange, Social Welfare Authority etc.; H

(iii) At the time of temporary appointment, the employee shouldhave had the requisite eligibility for being appointed to theparticular post of Class IV and;

(iv) the appointment should have been sanctioned by acompetent authority and the appointment should have beenagainst a vacant post.

27. The Respondent Authorities have been contending that theAppellant had not fulfilled condition No.(i) of the Government Resolutiondated 1[st] May 2007, as he had not completed ten years of service as atemporary employee on 10[th] February 2006, but put in nine years andfour months of service. His continuance thereafter, was on the strengthof the order passed by the High Court.

28. By the judgment and order of 22[nd] August 2013 in LettersPatent Appeal No. 635 of 2013 referred to above, the earlier Divisionbench had clearly directed reinstatement of the Appellant, but withoutback wages. As observed above the said judgment and order has assumedfinality and is binding on the Respondents. It was not open to theconcerned authorities to give fresh appointment to the Appellant witheffect from 14[th] October 2013. The learned Single Bench very rightlyallowed the writ petition. However, the only error that the Single Benchmade, was in directing reinstatement of the Appellant with consequentialbenefits, without clarifying that the reinstatement would be withconsequential benefits except back wages for the period from 18.12.2012to 22.08.2013 when the Appellant had not worked.

29. The Appellant having been appointed full-time GallaryAttendant Group-IV with the approval of the Director, Sangrahalaya, bythe order dated 25.7.2002, his services could not have been terminatedafter almost two years, on the purported ground of a Government policykeeping permanent appointments in abeyance. The Division Bench haddecided Letters Patent No.635 of 2016, after considering the GovernmentResolution dated 1[st] May 2007 of the Finance Department, which hadbeen issued in the wake of the directions of the Supreme Court in thecase of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors.reported in (2006) 4 SCC 1.

30. The judgment and order in Uma Devi (supra) or the resolutiondated 1[st] May 2007 adopted pursuant to the said judgment and ordercannot be retrospectively applied to the Appellant, who had duly been A

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Aappointed full-time Gallery Attendant way back in 2002. The Rulesframed in 2005 referred to above, cannot also have retrospectiveoperation.

31. In Letters Patent Appeal No. 635 of 2013, the Division Benchheld that the view taken by the Respondent Authorities was unreasonableBfor the following reasons:-

(i) It was not in dispute that the appellant was appointed as apart-time Gallery Attendant on 14[th] March, 1995;

(ii) at that time post of full-time Gallery Attendant was vacant;

C(iii) the name of the appellant had been forwarded by theEmployment Exchange and he had been interviewed;

(iv) the appellant held a certificate of the Museum certifyinghis sincerity and honesty as Gallery Attendant;

(v) on 25[th] July, 2002, the appellant had been appointed as aDfull-time Gallery Attendant with the prior permission and sanctionof the Director, Sangrahalaya Department, State of Gujarat.

(vi) The order of termination dated 1[st] July, 2004 was issuedafter permitting the appellant to work as full-time regular GalleryAttendant for almost a period of two years.

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(vii) By the time the order of termination had been issued, theappellant had put in nine years and four months of combined serviceas part-time employee and as full-time Gallery Attendant.

(viii) The learned Single Judge had passed an interim orderon being prima facie satisfied of the merits of the case of theFappellant.

32. After considering all the factors surrounding the initialappointment of the Appellant as part-time Gallery Attendant, his servicesas full-time Gallery Attendant, the interim order of the Single Bench andconsidering that the Appellant had rendered almost seventeen years ofGservice as a Gallery Attendant, Bhuj Museum, the Division Bench hadallowed the appeal of the Appellant, set aside the judgment and order ofthe Single Bench dated 2[nd] April 2013 and directed the RespondentAuthorities to reinstate the Appellant to the post of full-time GalleryAttendant of Bhuj Museum forthwith, but without back wages, since theHAppellant had not worked from 18[th] December 2012 till the date of the VINOD RAVJIBHAI RAJPUT v. STATE OF GUJARAT & ORS.[INDIRA BANERJEE, J.]

judgment of the Division Bench.

33. In our considered opinion, the Appellant has to be reinstatedwith continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for theperiod between 18.12.2012 to 22.08.2013, when the Appellant did notwork. The Appellant shall, however, be entitled to differential salary, ifany, between the post of full-time Gallery Attendant and part-time GalleryAttendant from 25[th] July 2002 onwards, but not for the period between18.12.2012 to 22.08.2013, in view of the judgment and order of the DivisionBench dated 22.08.2013 in Letters Patent Appeal No. 635 of 2013.

34. The appeal is accordingly allowed. The judgment and order ofthe Division Bench, under appeal, is set aside and the judgment of theSingle Bench is restored with the modification that the Appellant shall bereinstated with consequential benefits, except arrears of wages for theperiod from 18.12.2012 till the date of order of the Division Bench, thatis, 22[nd] August 2013.

Devika Gujral

Appeal allowed.

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