SHREENIDHI KUMAR & ORS.versusUNION OF INDIA & ORS.

                 [2011] 15 (ADDL.) S.C.R. 404


A                SHREENIDHI KUMAR & ORS.
                               v.
                   UNION OF INDIA & ORS.
                (Civil Appeal No. 9893 of 2011)
                      NOVEMBER 17, 2011
B
            [R.M. LODHA AND H.L. GOKHALE, JJ.]

        SeNice Law:

c      Contract employment - Engagement of Subject Matter
  Experts (SMEs) in State of Bihar on contract basis for two
  years - Maximum age limit ranging from 37 to 42 years for
  different categories - Advertisement challenged as
  inconsistent with State Government Resolution dated
  18.7.2007 which provided 65years as maximum age limit for
0
  c,ontract employment - HELD: Resolution dated 18. 7.2007 is
  applicable in a case of delay in regular employment against
  sanctioned posts and in a case of requirement of employees
  for short period i.e. for few days or few months - Such
  appointment has to be for a short period and in no case
E exceeding one year - The period of employment exceeding
  12 months will not be covered by the Resolution - In the
  instant case, engagement of SMEs was for a period of two
  years and it was not against any sanctioned posts and, as
  such, Resolution dated 18. 7.2007 was not applicable - As a
F necessary corollary, the maximum age limit of 65 years
  provided in the Resolution is not available for employment
  exceeding one year in temporary schemes .

        The Department of Agriculture, Government of Bihar,
G by an advertisement dated 13.6.2009 invited applications
   for employment on contract basis for 4062 post of
   Subject Matter Expert (SME) under the Krishi Prasar
  .'Sudharikaran' Vojna for a period of two years. The age
   limit put for different categories ranged from 37 to 42
H                             404
 SHREENIOHI KUMAR & ORS. v. UNION OF INDIA & 405
                   ORS.
years. The said advertisement was challenged in a writ        A
petition before the High Court as inconsistent with the
Resolution dated 18.7.20007 issued by the Personnel and
Administrative Reforms Department, Govt. of Bihar which
provided the maximum age limit for employment on
contract basis as 65 years. The Single Judge of the High      B
Court directed the writ petitioners to approach the State
Government. On such a representation, the Director,
Department of Agriculture, Govt. of Bihar declined any
alteration in age limit mentioned in the advertisement. The
order of the Director was challenged in writ petitions        c
before the High Court. The Single Judge .of the High
Court by order dated 13.8.2009 quashed the order of the
Director and sent the matter back to the Agriculture
Production Commissioner to pass fresh order as regards
validity of the age limit clause in the advertisement and
                                                              0
to bring it in tune with the Resolution. However,
meanwhile, the employment list of SME was finalised on
10.8.2009. The names of the appellants appeared in that
list, but they were not given employment because of the
order dated 13.08.2009 passed by the Single Judge. The
appellants, therefore, challenged the order of the single     E
Judge in a Letters Patent Appeal before the Division
Bench of the High Court, which dismissed the appeal
holding that by finalisation of the Employment List dated
10.8.2009 no vested right accrued in favour of the
appellants.                                                   F
    Disposing of the appeal, the Court
     Held: 1.1. The Resolution dated 187.2007 provides for
procedure and guidelines for employment on contract
basis in two contingencies, namely, (i) in a case of delay G
in regular employment against the sanctioned posts, but
such appointment has to be for a short period and in no
case, exceeding cine year; and (ii) in case of requirement
of the employees to work for short period in temporary
schemes, i.e. for few days or for few months; it cannot H
    406    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A be few years. The employment period of 'two' years is
  little long to constitute 'short period' contemplated in para
  2(2) of the Resolution. The period of employment in
  temporary schemes exceeding 12 months, thus, will not
  be covered by the Resolution. As a necessary corollary,
B the maximum age limit of 65 years provided in para 2(8)
  of the Resolution is not available for employment
  exceeding one year in the temporary schemes. Any other
  view will be against all norms of public employment. [para
  13] [411-G-H; 412-A·D]
c      1.2. Insofar as the advertisement for appointment of
  SME to 4062 posts on contract basis under the Vojna is
  concerned, the employment period is for maximum two
  years. The Director was, thus, right when he observed in
  his order that the Resolution providing for upper age limit
D of 65 years was not applicable for employment on
  contract basis under the advertisement as the SMEs are
  not being employed against the approved posts and their
  employment was being done temporarily for two years.
  [para 14] [412-E-F]
E
       1.3. The orders dated 13-8-2009 and 23-3-2010
  passed by the Single Judge and the Division Bench,
  respectively, of the High Court are set-aside. However, in
  the circumstances of the case, it would not be in the
F interest of justice to unsettle the appointments of SME
  already made on 24.2.2010 against 4062 posts under the
  Vojna, since less than four months' contract period is left
  for those appointees as the maximum period of
  employment is two years. In case the posts of SME under
  the Vojna are required beyond two years from 24-2-2010,
G it is directed that the authorities concerned shall make
  fresh appointments in accordance with law. [para 15]
  [412-G-H; 413-A-B]

          CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 9893 of 2011.
 SHREENIDHI KUMAR & ORS. v. UNION OF INDIA & 407
                   ORS.
     From the Judgment & Order dated 23.3.2010 of the High         A
::ourt of Judicature at Patna in LPA No. 1310 of 2009.

     Nagendra Rai, Shantanu Sagar, Smarhar Singh, Abhishek
-Singh, Gopi Raman, Priti Roshani (for T. Mahipal) for the
 A.ppellants. ·
                                                                   B
    Ardhendumauli Kumar Prasad (for Gopal Singh) for the
•Respondents.

     The Judgment of the Court was delivered by

     R.M. LODHA, J. 1. Leave granted.
                                                                   c
      2. On July 18, 2007, a Resolution (for short "Resolution")
-was issued by the Personnel and Administrative Reforms
 Department, Government of Bihar providing for procedure and
 guidelines for employment on contract basis. Inter alia, it       D
 provided that employment on the contract basis will be done
 only against the sanctioned posts and on the basis of the
 advertisement. It further provided that employment on contract
 basis may be considered under any scheme for special
 proposal for short period only. In case of delay in regular       E
 employment against the permanent posts, the employment on
 contract basis can be made for short time and for maximum
 period of one year. It also provided that maximum age limit
 for employment on contract basis would be 65 years.
                                                                   F
     3. On June 13, 2009, an advertisement (hereinafter
referred to as "advertisement") was issued in the newspaper
"Hindustan" by the Department of Agriculture, Government of
Bihar inviting applications for employment on contract basis for
4062 posts of Subject Matter Expert (for short "SME") under
"Krishi Prasar Sudridhikaran Vojna (for short "Vojna"). The        G
advertisement provided for minimum qualification and also the
age limit - on 1.1.2008: 37 years for unreserved; 40 years for
extremely Backward and Backward Castes; 40 years for
women (unreserved, extremely Back and Backward) and 42
                                                                   H
    408     SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A years for SC/ST (Male and Female). The other details like
  reservation, basis of selection, period of employment etc. were
  also given in the advertisement along with the format of the
  application.

       4. The above advertisement was challenged by 13
8
  persons in a Writ Petition (being CWJC NO. 7366 of 2009)
  before the High Court of Patna. The Challenge was to clause
  (2) relating to age limit. The petitioners therein alleged that the
  age limit prescribed in the advertisement was inconsistent with
  the Resolution as the maximum age limit prescribed therein
C for employment on contract basis was 65 years.

       5. The Single Judge of the High Court, by his order dated
  July 13, 2009, while dealing with the challenge to the age limit
  prescribed in the advertisement directed the petitioners therein
D to approach the State Government (Agriculture Department)
  with a representation to reconsider clause (2) of the
  advertisement and make it in tune with the Resolution. The
  Single Judge also observed that while considering the
  representation, the authorities would bear in mind that the
E appointment on similar posts in agriculture department had not
  been made for over 15 years and the petitioners therein had
  become over-age during those years and considering these
  aspects, the authorities should fix the maximum age in clause
  (2) of the advertisement.
F      6. Consequent upon the order dated July 13, 2009 and the
  representation made by the persons who were petitioners in
  the Writ Petition before the High Court, the Director,
  Department of Agriculture, Government of Bihar (for short
  "Director'') reconsidered the whole issue and held that there
G was no question of alteration of age limit mentioned in the
  advertisement. The Director, in his order, observed as follows:

          "The afore stated application and record of the office have
          been perused. In resolution memo No. - 2401 dated
H         18.7.07 of Personnel and Administrative Reforms
SHREENIDHI KUMAR & ORS. v. UNION OF INDIA & 409
            ORS. [R.M. LODHA, J.]
    Department, the upper age limit of 65 years for the             A
    approved posts pertaining to employment on contract
    basis is against. At present expert in subject matter are
    not being employed against the approved post. This
    employment is being done temporarily for two years. By
    this employment of 4062 specialist in subject matter has        B
    to be done as per the scheme Krishi Prasar Sudharikaran
    Scheme, and this scheme is totally temporarily. In this
    scheme age limit for unreserved is 37 years for most
    backward and 40 years for backward females
    (unreserved, most backward and backward) 40 years and           c
    for SC & ST (male and female) 42 years has bee fixed by
    personnel and Administrative Reforms Department and the
    consent of the group of ministers has been granted. It has
    been issued vide departmental official order No. 75 dated
    6.1.1990. As per the scheme the specialist of subject           D
    matter have .been planned to be assigned numerous
    duties such as, scheme sponsored by the centre,
    preparat:on of list of macromode, isopomode/atma
    scheme, scheme to prepare the list of beneficiaries in
    seed expansion scheme, organising training at village
    level, technical assistance to the villagers, conduction and    E
    supervision of the work of seed production in agricultural
    areas, constitution of agricultural welfare group at village
    level and make arrangement for their training to collect
    specimen from the agriculturist for checking the soil quality
    and send the same to the labonitory and simultaneously          F
    send the examination report to the villagers, for selection
    of venues for farm field school, to arrange training during
    the period of travelling of F.F.S. and to collect the data of
    accounts and also to conduct other works assigned by the
    department of agriculture. Therefore,. there is no question     G
    of alteration of age limit mentioned in Memo No. PR-13448
    (Agri)9-10 Para 12" ."

     7. The above order passed by the Director came to be
challenged in two Writ Petitions before the High Court of Patna.    H
    410    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R


A The Single Judge of the High Court, vide order dated August
  13, 2009, quashed the order of the Director and sent the matter
  back to the Agriculture Production Commissioner, Bihar with
  a direction to him to pass fresh order in consultation with the
  Personnel and Administrative Reforms Department of the State
B Government about the validity of clause (2) of the advertisement
  to bring it in tune with the Resolution. It is not necessary to refer
  to other directions given in the order dated August 13, 2009.

       8. Before the order was passed by the Single Judge on
C August 13, 2009, as noticed above, in view of the order passed
  by the Director on July 23, 2009, the processing of the
  applications received pursuant to the advertisement was
  completed and the Employment List of SME was finalised on
  August 10, 2009. The present appellants are some of those
  whose names appeared in that list. However, these appellants
D were not given employment since immediately thereafter by the
  order dated August 13, 2009, the High Court had quashed
  the order passed by the Director and sent the matter back to
  the Agriculture Production Commissioner, Bihar for passing
  fresh order as noted above. The appellants, therefore,
E challenged the order of the Single Judge before the Division
  Bench in a Letters Patent Appeal.

       9. The Division Bench, after hearing the parties, dismissed
  the appeal on March 23,2010. The main reason given by the
F Division Bench in dismissing the appeal is that by finalisation
  of the Employment List dated August 10, 2009, no vested right
  has accrued in favour of the appellants. As regards the
  Resolution, the Division Bench observed that the Single Judge
  in his order had only interpreted the Resolution and directed
G the State Government. to act accordingly and the State
  Government has not challenged that order.

       10. One more fact needs to be noticed here that pursuant
  to the order of the Single Judge passed on August 13, 2009,
  the State Government altered the age limit for employment on
H contract basis for 4062 posts of SME under the Vojna;
 SHREENIDHI KUMAR & ORS. v. UNION OF INDIA & 411
            ORS. [R.M. LODHA, J.]
increased the age limit to 65 years and gave the employment         A
on that basis on February 24, 2010 for a period of two years.

     11. We have heard Mr. Nagendra Rai, learned senior
counsel for the appellants and Mr. A.K. Prasad for respondent
Nos. 3 and 5.
                                                                    B
    11. We shall reproduce relevant portion of para 2 of the
Resolution. It reads thus:

    "2. In the light ofthe above referred the State Government
     has taken the following decision for equalization of policy/   c
     guidelines for employment on the basis of contract.

    (1) Employment on the basis of contract will be done only
    against the sanctioned posts and these kinds of
    employment will be done only on the basis of
    advertisement.
                                                                    0

    (2) These kinds of employment will be done under any
    scheme for some special proposal and for short period
    only But in case of delay in regular appointment against
    the permanent created posts, this kind of employment can        E
    be made for short time. But this kind of employment
    against the permanent post will be done for maximum one
    year only.

    xxxxx           xx       xx    xx     xx
                                                                    F
    (8) Maximum age limit will be 65 years for employment on
    contact."

     13. The Resolution provides for procedure and guidelines
for employment on contract basis. It basically provides for         G
employment in the State on the contract basis in two
contingencies namely; (i) in case of delay in regular employment
against the sanctioned posts and (ii) in case of requirement
of the empif'fees to work for short period in temporary
schemes. The Resolution, accordingly, has to be considered          H
    412    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A being applicable to above two situations. If the regular
  employment against sanctioned posts has been delayed for
  one reason or the other, the employment can be made on
  contract basis. But such appointment has to be for a short
  period and in no case, exceeding one year. Similarly, if there
B is requirement of the employees to work in the temporary
  schemes for a short period then the employment on contract
  basis can be made. Although, time period of such employment
  is not stated in the Resolution. but the use of expression "short
  period only" is not without significance. The employment
c period of 'two' years is little long to constitute 'short period'
  contemplated in para 2(2) of the Resolution. 'Short period'
  referred to in para 2(2), in our opinion, means duration of few
  days or few months. It cannot be few years. The period of
  employment in temporary schemes exceeding 12 months, thus,
  will not be covered by the Resolution. As a necessary corollary,
0
  the maximum age limit of 65 years provided in para 2(8) of the
  Resolution is not available for employment exceeding one year
  in the temporary schemes. Any other view will be against all
  norms of public employment.

E        14. Insofar as the advertisement for appointment of SME
    to 4062 posts on contract basis under the Vojna is concerned,
    the employment period is for maximum two years. The Director
    was, thus, right when he observed in his order that the
    Resolution providing for upper age limit of 65 yecrs was not
F   applicable for employment on contract basis under the
    advertisement as the SMEs are not being employed against
    the approved posts and their employment was being done
    temporarily for two years.

G        15. We are, therefore, unable to uphold the order of the
    Single Judge dated August 13, 2009 and the order dated
    March 23, 2010 passed by the Division Bench. We set-aside
    these orders. Having held that, however, in our view, it would
    not be in the interest of justice to unsettle the ~pointments of
    SME already made on February 24, 2010 against 4062 posts
H
 SHREENIDHI KUMAR & ORS. v. UNION OF INDIA & 413
             ORS. [R.M. LODHA, J.)

under the Vojna now since less than four months' contract       A
period is left for those appointees as the maximum period of
employment is two years. In case the posts of SME under the
Vojna are required beyond two years from February 24, 2010,
we direct that the concerned authorities shall make fresh
appointments in accordance with law.                            B

     16. The appeal is disposed of accordingly.   No order as
to costs.

R.P.                                    Appeal disposed of.