Vinod Ravjibhai Rajput vs State Of Gujarat on 14 February, 2020


Supreme Court of India

Vinod Ravjibhai Rajput vs State Of Gujarat on 14 February, 2020

Author: Hon’Ble Ms. Banerjee

Bench: Arun Mishra, Hon’Ble Ms. Banerjee

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                                                                           REPORTABLE

                                     IN THE SUPREME COURT OF INDIA

                                       CIVIL APPELLATE JURISDICTION

                                     CIVIL APPEAL NO. 1601 OF 2020
                               (ARISING OUT OF SLP (C) NO. 27926 OF 2016)

               VINOD RAVJIBHAI RAJPUT                                      …...Appellant

                                                      versus

               STATE OF GUJARAT & ORS.                                    .…Respondents

                                               JUDGMENT

Indira Banerjee, J.

Leave granted.

2. This appeal is against a judgment and order dated 24 th June 2016

passed by a Division Bench of the Gujarat High Court allowing Letters

Patent Appeal No.195 of 2016 and setting aside an order dated 14 th

September 2015 of the Single Bench allowing the Writ Petition being

Special Civil Application No.5108 of 2014 filed by the Appellant, holding

that the Appellant was entitled to reinstatement including continuity of

service and the benefits flowing from continuity of service.

3. The Appellant was appointed part-time Gallery Attendant of Bhuj

Museum on 14th March 1995. His name had been forwarded for
Signature Not Verified

consideration by the concerned Employment Exchange.
Digitally signed by
JAYANT KUMAR ARORA
Date: 2020.02.14
16:56:16 IST
Reason:

4. On 25th July,2002, the Respondent No.2 passed an order
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appointing the Appellant as a full-time Gallery Attendant in the pay-

scale of Rs.2550-55-2660-60-3200, against a sanctioned Class IV vacant

post, after obtaining the sanction of the Director of the Sangrahalaya

Department, State of Gujarat.

5. The Appellant served as a full-time Gallery Attendant of Bhuj

Museum for almost two years, after which his services were abruptly

terminated by an order dated 1 st July 2004, passed by the Respondent

No.3.

6. It appears that the order dated 1st July 2004, of termination of the

services of the Appellant, was passed on the ground that the Appellant

had been appointed as full-time Gallery Attendant of Bhuj Museum,

notwithstanding the policy of the State Government, of not making any

fresh recruitment, due to financial constraints.

7. The Appellant filed a writ petition under Article 226 of the

Constitution of India, being SCA No.7943 of 2004, in the High Court,

whereupon a learned Single Judge passed an interim order dated 7 th July

2004, restraining the Respondent Authorities from terminating the

services of the Appellant, pursuant to the notice dated 1 st July 2004.

This interim order was subject to the result of the pending writ petition

and clarified that the Appellant could, if necessary, be reverted as a

part-time employee.

8. Pursuant to the interim order of the learned Single Judge dated 7 th

July 2004, the Respondent Authorities passed an order dated 10 th
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August 2004, reverting the Appellant to the position of a part-time

employee.

9. The Appellant filed an application being Civil Application No.7970

of 2004 in the pending writ petition for suspension of the order dated

10th August 2004 whereby the Appellant had been reverted from the

position of ad-hoc full-time employee to that of part-time employee.

10. By an order dated 17th March 2008, the learned Single Judge

disposed of the aforesaid application, without interfering with the

impugned order dated 10th August 2004, holding that the order did not

flout the interim order dated 7th July 2004. The learned Judge observed

that it would be appropriate if the existing status of the Appellant was

maintained, and any representation made by the Appellant to the

authorities concerned, given due consideration.

11. Pursuant to the aforesaid order dated 17th March 2008, the

Appellant made a representation. The Appellant was, however,

informed that he could not be made a full-time employee, as he had not

cleared his Secondary School Certificate (SSC)/10 th standard

examination.

12. The Appellant argued that, at the time of issuance of the order

dated 25th July 2002 appointing the Appellant as full-time Gallery

Attendant, the requisite educational qualification for appointment to the

post of a full-time Gallery Attendant was only 4 th Standard Pass, and the

Appellant had the aforesaid qualification.

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13. In any case, while continuing to work as part-time employee, the

Appellant successfully cleared the SSC examination. Thereafter, he

made two representations dated 30th December 2010 and 22nd April

2012 informing the concerned authorities that he had cleared the SSC

examination and requesting that he be absorbed as a full-time Gallery

Attendant.

14. Being aggrieved by the inaction of the concerned authorities to

act on his representations, the Appellant filed a writ petition under

Article 226 of the Constitution of India, being Special Civil Application

No.9910 of 2012 in the High Court. The writ petition was disposed of,

by directing the Appellant to make a representation to the concerned

authorities. The concerned authorities were directed to decide the

representation within a period of four months.

15. Thereafter, by an order dated 18 th December 2012, the services of

the Appellant were terminated on the ground that it was impermissible

to regularize the Appellant to the post of Gallery Attendant, as he had

not fulfilled the requisite conditions as prescribed in the Government

Resolution issued by the Finance Department on 1st May 2007.

16. One of the conditions, which according to the Respondent

Authorities, the Appellant had not fulfilled, was that he had not

completed ten years of service as on 10 th February 2006, and even if he

had completed ten years of service, this was on the strength of the

interim order passed by the High Court.

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17. The Appellant filed a writ petition being Special Civil Application

No.16840 of 2012 in the High Court, challenging the order dated 18 th

December 2012 terminating his services. The learned Single Judge

refused to entertain the petition, observing that the appropriate remedy

of the Appellant was to initiate proceedings in accordance with the

provisions of the Industrial Disputes Act, 1947.

18. Being aggrieved by the judgment of the Single Bench, the

Appellant filed Letters Patent Appeal No.635 of 2013 before the Division

Bench. The Division Bench considered the relevant rules and

regulations governing recruitment to the post in question, allowed the

appeal and directed the Respondents to reinstate the Appellant to the

post of full-time Gallery Attendant of Bhuj Museum forthwith. However,

since the Appellant had not worked from 18th December 2012 till the

date of the judgment and order, the Division Bench refrained from

passing orders for back wages.

19. Thereafter, an office order dated 14th October 2013 was issued

appointing the Appellant to the post of Gallery Attendant (Class IV) at

Kutch Museum, Bhuj in the pay band of Rs.4444-7440, Grade Pay of

Rs.1300, with effect from the date of resumption of his duties. The

Office Order noted that the Appellant resumed his duties on 14 th

October 2013.

20. The Appellant filed a writ petition under Article 226 of the

Constitution of India in the High Court being Special Civil Application No.
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5108 of 2014 questioning the action of the Respondent Authorities in

not granting the Appellant the benefit of continuity of service from 25 th

July 2002. The said writ petition was allowed by the Single Bench, by

an order dated 14th September 2015, the operative part whereof is set

out hereinbelow:

“Thus, in view of the above, reinstatement includes the
continuity of service, and accordingly, the petitioner is
entitled for 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 Patent

Appeal No.195 of 2016. The said appeal has been allowed by the

Division Bench of the High Court by the judgment and order impugned

in this appeal, with the following observation:

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

22. The short question in this appeal is, whether the action of the

Respondents in granting fresh appointment to the Appellant with effect

from 14th October 2013, in violation of the judgment and order dated

22.08.2013 of the Division Bench in Letters Patent Appeal No. 635 of

2013 directing the Respondents to reinstate him, is sustainable in law.
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23. May be, as argued by learned Counsel on behalf of the

Respondent Authorities, the order of appointment i.e. 14 th October 2013

does not bear any reference to the judgment and order of the Division

Bench, dated 22nd August 2013 in Letters Patent Appeal No.635 of 2013.

However, the aforesaid judgment and order, against which there was no

appeal, has assumed finality and is binding on the Respondents.

24. In exercise of powers conferred by the proviso to Article 309 of the

Constitution of India, and in supersession of all existing Rules regulating

recruitment to Class IV posts in the Secretariat and non-Secretariat

offices of the Government of Gujarat, the Governor of Gujarat has

framed Rules to provide for regulating recruitment to Class IV posts in

inferior services, which is called “The Class IV Posts in Inferior Services

in the Gujarat Secretariat and Non Secretariat Offices Recruitment

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 not

have the requisite eligibility to be appointed full-time Gallery Attendant

in 2002, as he had not passed the Secondary School Certificate

Examination 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 of Gujarat shall be made either

(i) by direct selection;

         (ii)     by transfer; or
                                                                         8

         (iii)    by deputation.

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

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

(ii) have passed Secondary School Certificate
Examination;

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

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

4. The candidate appointed in Class IV posts may be
transferred in public interest to any other Class IV post in
inferior services in any Secretariat or non-Secretariat
office in the State;

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

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

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

26. On behalf of the Respondents, it was also argued that, the

conditions for regularization of Class IV employees have been laid down

in a Government Resolution dated 1 st May 2007. For regularization, the

employees needed to fulfill the following conditions:

(i) On 10th February, 2006, the employees should have
completed ten years of service, putting in atleast 6 hours of
work per day. The ten year period should not be on the
strength of any order of the Court or the Tribunal;

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(ii) The employees who had completed ten years of service
should have been appointed in accordance with recruitment
procedure prevailing at the relevant point of time. In other
words, their names should have been recommended by the
Employment Exchange, Social Welfare Authority etc.;

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

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

27. The Respondent Authorities have been contending that the

Appellant had not fulfilled condition No.(i) of the Government Resolution

dated 1st May 2007, as he had not completed ten years of service as a

temporary employee on 10th February 2006, but put in nine years and

four months of service. His continuance thereafter, was on the strength

of the order passed by the High Court.

28. By the judgment and order of 22nd August 2013 in Letters Patent

Appeal No. 635 of 2013 referred to above, the earlier Division bench had

clearly directed reinstatement of the Appellant, but without back wages.

As observed above the said judgment and order has assumed finality

and is binding on the Respondents. It was not open to the concerned

authorities to give fresh appointment to the Appellant with effect from

14th October 2013. The learned Single Bench very rightly allowed the

writ petition. However, the only error that the Single Bench made, was

in directing reinstatement of the Appellant with consequential benefits,

without clarifying that the reinstatement would be with consequential

benefits except back wages for the period from 18.12.2012 to
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22.08.2013 when the Appellant had not worked.

29. The Appellant having been appointed full-time Gallary Attendant

Group-IV with the approval of the Director, Sangrahalaya, by the order

dated 25.7.2002, his services could not have been terminated after

almost two years, on the purported ground of a Government policy

keeping permanent appointments in abeyance. The Division Bench had

decided Letters Patent No.635 of 2016, after considering the

Government Resolution dated 1st May 2007 of the Finance Department,

which had been issued in the wake of the directions of the Supreme

Court in the case 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 resolution

dated 1st May 2007 adopted pursuant to the said judgment and order

cannot be retrospectively applied to the Appellant, who had duly been

appointed full-time Gallery Attendant way back in 2002. The Rules

framed in 2005 referred to above, cannot also have retrospective

operation.

31. In Letters Patent Appeal No. 635 of 2013, the Division Bench held

that the view taken by the Respondent Authorities was unreasonable for

the following reasons:-

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

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

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

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

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

(vi) The order of termination dated 1st July, 2004 was issued
after permitting the appellant to work as full-time regular
Gallery Attendant for almost a period of two years.

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

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

32. After considering all the factors surrounding the initial

appointment of the Appellant as part-time Gallery Attendant, his

services as full-time Gallery Attendant, the interim order of the Single

Bench and considering that the Appellant had rendered almost

seventeen years of service as a Gallery Attendant, Bhuj Museum, the

Division Bench had allowed the appeal of the Appellant, set aside the

judgment and order of the Single Bench dated 2 nd April 2013 and

directed the Respondent Authorities to reinstate the Appellant to the

post of full-time Gallery Attendant of Bhuj Museum forthwith, but

without back wages, since the Appellant had not worked from 18 th

December 2012 till the date of the judgment of the Division Bench.
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33. In our considered opinion, the Appellant has to be reinstated with

continuity of service from the date of his initial appointment as full-time

Gallery Attendant in July 2002, but without back wages for the period

between 18.12.2012 to 22.08.2013, when the Appellant did not work.

The Appellant shall, however, be entitled to differential salary, if any,

between the post of full-time Gallery Attendant and part-time Gallery

Attendant from 25th July 2002 onwards, but not for the period between

18.12.2012 to 22.08.2013, in view of the judgment and order of the

Division Bench dated 22.08.2013 in Letters Patent Appeal No. 635 of

2013.

34. The appeal is accordingly allowed. The judgment and order of the

Division Bench, under appeal, is set aside and the judgment of the

Single Bench is restored with the modification that the Appellant shall

be reinstated with consequential benefits, except arrears of wages for

the period from 18.12.2012 till the date of order of the Division Bench,

that is, 22nd August 2013.

……………………………J
[INDIRA BANERJEE]

……………………………J
[A.S. BOPANNA]

FEBRUARY 14, 2020;

NEW DELHI.



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