The State Of Gujarat vs R.J. Pathan on 24 March, 2022


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Supreme Court of India

The State Of Gujarat vs R.J. Pathan on 24 March, 2022

Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

                                                                  REPORTABLE
                                    IN THE SUPREME COURT OF INDIA
                                    CIVIL APPELLATE JURISDICTION
                                    CIVIL APPEAL NO. 1951 OF 2022


         The State of Gujarat and others                                …Appellants

                                                Versus
         R.J. Pathan and others                                         …Respondents


                                                JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 18.02.2021 passed by the High Court of Gujarat at

Ahmedabad in Letters Patent Appeal (for short, ‘LPA’) No. 2082/2011, by

which the Division Bench of the High Court has allowed the said LPA

and directed the State to consider the cases of the respondents for

regularisation sympathetically and if necessary, by creating

supernumerary posts, the State has preferred the present appeal.

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

Signature Not Verified That the respondents herein were appointed on contractual basis
Digitally signed by R
Natarajan
Date: 2022.03.24

for a period of eleven months on a fixed salary and on a particular
16:28:13 IST
Reason:

project, namely, “Post-Earthquake Redevelopment Programme” of the
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Government of Gujarat. That the respondents herein were initially

appointed for a period of eleven months in the year 2004 to the post of

drivers. On closure of the project in which the respondents were

appointed, instead of terminating the services of the respondents herein,

the State Government took a decision to place them in the services of

Indian Red Cross Society. Instead of joining the duties in the Indian Red

Cross Society, the respondents approached the High Court by filing Writ

Petition No. 17328/2011 for regularisation of their services and

absorption in Government service. The original writ petitioners also

challenged their placement with the Indian Red Cross Society.

2.1 The learned Single Judge vide order dated 25.11.2011 dismissed

the said writ petition by observing that the appointment of the original

writ petitioners was only for eleven months on a fixed salary, which has

been continued from time to time, and the unit in which they were

appointed temporarily was a “Project Implementation Unit” only for the

purpose of rehabilitation pursuant to the earthquake for the “Post-

Earthquake Redevelopment Programme” and they were not regularly

appointed on any permanent sanctioned posts in any establishment of

the Government where the writ petitioners have any lien.

2.2 Feeling aggrieved and dissatisfied with the order passed by the

learned Single Judge dismissing the writ petition, the respondents herein

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– original writ petitioners preferred LPA No. 2082/2011 before the

Division Bench of the High Court. By an interim order dated 20.12.2011,

respondents herein were continued in service with the State Government

and they were not even transferred to the Indian Red Cross Society.

The said LPA came up for hearing before the Division Bench in the year

2021. Before the Division Bench, it was submitted on behalf of the

respondents herein – original writ petitioners that as they have been

continuously working in the Government Departments and they have not

been transferred to Indian Red Cross Society and since they have by

now working for seventeen years, the Government may be directed to

consider the case for regularisation in the service as long period has

passed.

2.3 By the impugned judgment and order, the Division Bench of the

High Court has directed the State/Department to consider the cases of

the respondents herein for absorption and regularisation sympathetically

and if necessary, by creating supernumerary posts, solely on the ground

that the respondents herein – original writ petitions by now have worked

for seventeen years.

2.4 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the Division Bench of the High Court, the State has

preferred the present appeal.

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3. Ms. Deepanwita Priyanka, learned counsel appearing on behalf of

the State has vehemently submitted that the Division Bench of the High

Court has committed a grave error in directing the State to consider the

cases of the respondents for absorption/regularisation sympathetically

and if necessary, by creating supernumerary posts.

3.1 It is submitted that the Division Bench of the High Court has not

properly appreciated the fact that the respondents were initially

appointed for a fixed period of eleven months on the posts of drivers and

in the temporary project, only for the purpose of rehabilitation, pursuant

to the earthquake, namely, “Post-Earthquake Redevelopment

Programme” and they were never appointed in any regular

establishment and/or in any sanctioned post in any regular

establishment. It is submitted that therefore they have no right to claim

absorption/regularisation.

3.2 It is contended by the learned counsel appearing on behalf of the

State of Gujarat that the Division Bench of the High Court has not

properly appreciated and/or considered the fact that after 2011, the

respondents were continued pursuant to the interim order passed by the

High Court. Therefore, when the respondents were continued in service

pursuant to the interim order passed by the High Court and the

department continued them in compliance of the interim order passed by

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the High Court, thereafter it would not be open for the respondents to

contend that as they have worked for more than seventeen years (under

the interim order) and hence they are to be absorbed and/or regularised

in service.

3.3 Making the above submissions, it is prayed to allow the present

appeal.

4. The present appeal is opposed by Shri Kabir Hathi, learned

counsel appearing on behalf of the respondents – original writ petitioners

before the High Court.

4.1 Learned counsel appearing on behalf of the respondents has

heavily relied upon on the decision of this Court in the case of State of

Karnataka v. Umadevi (3), reported in (2006) 4 SCC 1, as well as, the

subsequent decision of this Court in the case of Narendra Kumar Tiwari

v. State of Jharkhand, reported in (2018) 8 SCC 238 (para 7). Relying

upon the above decisions, it is submitted that as the respondents have

worked for more than seventeen years as drivers with the State

Government, the Division Bench of the High Court has rightly directed

the State to consider their cases for absorption/regularisation

sympathetically and if required, by creating supernumerary posts.

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4.2 It is submitted that as the respondents are working as drivers with

the State Government for seventeen years, they may be absorbed with

the State Government and their services may be regularised.

5. We have heard the learned counsel for the respective parties at

length.

At 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 the earthquake for “Post-Earthquake Redevelopment Programme”.

All of them were initially appointed for a period of eleven months on a

fixed salary, which came to be continued from time to time till the

requirement in a particular project/unit – “Project Implementation Unit”.

However, as the said unit was required to be closed which, as such, was

a temporary unit, instead of putting an end to the services of the

respondents, the State Government thought it fit to transfer and place

them with the Indian Red Cross Society. At this stage, the respondents

approached the High Court and challenged their placement with the

Indian Red Cross Society. The learned Single Judge dismissed the said

writ petition by observing as under:

“It is not in dispute that the petitioners, who are serving on a fixed term
and salary as per the terms of the contract of service with respondent Nos.

1 & 2, are now transferred to respondent No.4 in view of administrative
exigencies. Appointment of the petitioners is only for 11 months on a fixed

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salary which is continued from time to time and even the Unit on which the
petitioners are appointed temporarily is a ‘Project Implementation Unit’
created only for the purpose of rehabilitation pursuant to the earth-quake
for ‘post earth-quake redevelopment programme’. Thus, the Unit itself has
temporary status and tenure to which the petitioners are appointed on a
fixed term and salary. If the decision is taken by the Authority to place
their services with the Indian Red Cross Society continued with salary, it
cannot be said that any service condition under the Rule is violated
inasmuch as none of the petitioners is regularly appointed employee on
any permanent sanctioned post on any establishment of the Government
where the petitioners have any lien. Placement of the petitioners is neither
violative of any statutory rule nor mala fide.”

6. The order passed by the learned Single Judge dismissing the writ

petition was in the year 2011. The order passed by the learned Single

Judge was challenged by the respondents by way of LPA. In the year

2011, the Division Bench granted the interim relief and directed to

maintain status quo and pursuant to the said interim order, the

respondents were continued in service with the Government. In the year

2021, when the said LPA was taken up for further hearing, it was

submitted on behalf of the respondents that as by now the respondents

have worked for seventeen years, the State may be directed to absorb

them in the Government and their services may be regularised. By

observing that as the respondents have worked for a long time, i.e., for

seventeen years, the Division Bench has directed the State to consider

the cases of the respondents for absorption/regularisation and if

required, by creating supernumerary posts. However, while issuing such

a direction, the High Court has not at all considered the fact that the

respondents were continued in service pursuant to the interim order
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passed by the High Court. The Division Bench has also not appreciated

the fact and/or considered the fact that the respondents were initially

appointed for a period of eleven months and on a fixed salary and that

too, in a temporary unit – ”Project Implementation Unit”, which was

created only for the purpose of rehabilitation pursuant to the earthquake

for “Post-Earthquake Redevelopment Programme”. Therefore, the unit in

which the respondents were appointed was itself a temporary unit and

not a regular establishment. The posts on which the respondents were

appointed and working were not the sanctioned posts in any regular

establishment of the Government. Therefore, when the respondents

were appointed on a fixed term and on a fixed salary in a temporary unit

which was created for a particular project, no such direction could have

been issued by the Division Bench of the High Court to absorb them in

Government service and to regularise their services. The High Court has

observed that even while absorbing and/or regularising the services of

the respondents, the State Government may create supernumerary

posts. Such a direction to create supernumerary posts is unsustainable.

Such a direction is wholly without jurisdiction. No such direction can be

issued by the High Court for absorption/regularisation of the employees

who were appointed in a temporary unit which was created for a

particular project and that too, by creating supernumerary posts.

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7. From the impugned judgment and order passed by the Division

Bench of the High Court, it appears that what has weighed with the High

Court was that the respondents were continued in service for a long time,

i.e., seventeen years. However, the High Court has not considered that

out of seventeen years, the respondents continued in service for ten

years pursuant to the interim order passed by the High Court. Therefore,

even considering the decision of this Court in the case of Umadevi

(supra), the period for which the employees have continued in service

pursuant to the interim order is to be excluded and not to be counted.

The High Court has totally missed the aforesaid aspect.

8. Now, so far as the reliance placed upon the decision of this Court

in the case of Umadevi (supra) and the subsequent decision of this Court

in the case of Narendra Kumar Tiwari (supra), relied upon by the learned

counsel appearing on behalf of the respondents is concerned, none of

the aforesaid decisions shall be applicable to the facts of the case on

hand. The purpose and intent of the decision in Umadevi (supra) was,

(1) to prevent irregular or illegal appointments in the future, and (2) to

confer a benefit on those who had been irregularly appointed in the past

and who have continued for a very long time. The decision of Umadevi

(supra) may be applicable in a case where the appointments are irregular

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on the sanctioned posts in regular establishment. The same does not

apply to temporary appointments made in a project/programme.

8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a

case of irregularly appointed employees. Even otherwise, in view the

facts and circumstances of Narendra Kumar Tiwari (supra), the said

decision shall not be applicable to the facts of the case on hand. The

case before this Court was with respect to the employees working with

the State of Jharkhand which was created only on 15.11.2000 and

therefore it was contended on behalf of the irregularly appointed

employees that no one could have completed ten years of service with

the State of Jharkhand on the cut-off date of 10.04.2006, which was the

cut-off date fixed under the relevant rules of the State of Jharkhand.

9. Even otherwise, it is to be noted that though not required, the

State, instead of putting an end to the services of the respondents,

graciously placed the respondents in the Indian Red Cross Society. No

duty was cast upon the State to transfer them to another establishment

in a case where it is found that the employees are appointed in a

temporary unit and on a temporary contractual basis and on a fixed term

salary and on closure of the temporary unit, their services are not

required. However, the State Government was gracious enough to place

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the respondents in the Indian Red Cross Society, which the respondents

did not accept.

10. From the impugned order passed by the Division Bench of the High

Court it appears that the High Court has observed hereinabove that in

the peculiar facts and circumstances of the case, it is directed that 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

Bench of the High Court as there were no peculiar facts and

circumstances which warranted the above observation. No such order of

absorption and/or regularisation even if required for creating

supernumerary posts and not to treat the same as precedent could have

been passed by the High Court in exercise of powers under Article 226 of

the Constitution of India.

11. In view of the above discussion and for the reasons stated above,

the impugned judgment and order passed by the Division Bench of the

High Court is unsustainable and the same deserves to be quashed and

set aside and is accordingly quashed and set aside. Order dated

25.11.2011 passed by the learned Single Judge of the High Court in Writ

Petition No. 17328/2011 dismissing the writ petition filed by the

respondents herein is hereby restored.

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12. The present appeal is accordingly allowed. However, there shall

be no order as to costs.

………………………………J.

                                      [M.R. SHAH]


NEW DELHI;                            ………………………………..J.
MARCH 24, 2022.                       [B.V. NAGARATHNA]




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