State of Gujarat vs R.J. Pathan Supreme Court Case 2022

State of Gujarat vs R.J. Pathan Supreme Court Case 2022 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


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
J U D G M E N T
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:
That the respondents herein were appointed on contractual basis
for a period of eleven months on a fixed salary and on a particular
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 “PostEarthquake 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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