THE STATE OF GUJARAT AND OTHERSversusR.J. PATHAN AND OTHERS

780                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 780               [2022] 1 S.C.R.


A                 THE STATE OF GUJARAT AND OTHERS
                                        v.
                         R.J. PATHAN AND OTHERS
                         (Civil Appeal No. 1951 of 2022)
B
                               MARCH 24, 2022
               [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
             Service Law – Regularisation – Respondents were appointed
      in a temporary project – Initial appointment was for eleven months
C     on a fixed salary, which was continued from time to time – 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
      respondents, the State Government thought it fit to transfer and
      place them with the Indian Red Cross Society – At this stage, the
D     respondents approached the High Court and challenged their
      placement with the Indian Red Cross Society – Single Judge dismissed
      the writ petition – Respondents filed LPA – In 2011, Division Bench
      granted interim relief and directed to maintain status quo and
      pursuant thereto respondents were continued in service with the
      Government – In 2021, when the said LPA was taken up for further
E     hearing, it was submitted by respondents that as they have worked
      for 17 years, the State may be directed to absorb them and regularise
      their services – Accepting the submission, the Division Bench
      directed the State to consider the cases of respondents for absorption
      / regularisation and if required, by creating supernumerary posts –
F     On appeal, held: While issuing such direction, the Division Bench
      of High Court did not consider the fact that the respondents were
      continued in service pursuant to an interim order – Division Bench
      also did not appreciate that respondents were initially appointed
      for eleven months and on a fixed salary and that too, in a temporary
      unit created only for purpose of rehabilitation pursuant to an
G     earthquake – Posts on which respondents were appointed and
      working were not sanctioned posts in any regular establishment of
      the Government – Therefore, no such direction could have been
      issued by the Division Bench to absorb them in Government service
      and to regularise their services – Division Bench observed that even
H     while absorbing and / or regularising the services of respondents,

                                       780
   THE STATE OF GUJARAT AND OTHERS v. R.J. PATHAN AND                   781
                        OTHERS

the State Government may create supernumerary posts – Such a            A
direction to create supernumerary posts is wholly without
jurisdiction – Apparently, what weighed with the Division Bench
was that respondents were continued in service for a long time, i.e.,
17 years – Division Bench however did not consider that out of 17
years, respondents continued in service for 10 years pursuant to
                                                                        B
interim order of the High Court – Even considering the decision in
Umadevi*, the period for which employees continue in service
pursuant to interim order is to be excluded – High Court totally
missed the said aspect – Order passed by Single Judge of High
Court dismissing the writ petition filed by respondents, accordingly
restored.                                                               C
      Service Law – Regularisation – Umadevi* case – When
applicable – Held: The purpose and intent of the decision in
Umadevi* 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          D
very long time – The decision of Umadevi* may be applicable in a
case where the appointments are irregular on the sanctioned posts
in regular establishment – The same does not apply to temporary
appointments made in a project/programme.
      Allowing the appeal, the Court                                    E
      HELD: 1. 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., 17 years. However, the
High Court has not considered that out of 17 years, the                 F
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*,
the period for which the employees have continued in service
pursuant to the interim order is to be excluded and not to be
                                                                        G
counted. The High Court totally missed the aforesaid aspect.
[Para 7][787-G-H; 788-A]



                                                                        H
782           SUPREME COURT REPORTS                    [2022] 1 S.C.R.


A           2. The decision of Umadevi* may be applicable in a case
      where the appointments are irregular on the sanctioned posts in
      regular establishment. The same does not apply to temporary
      appointments made in a project/programme. [Para 8][788-C-D]
           *State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
B          [2006] 3 SCR 953 – held inapplicable.
            3. No duty was cast upon the State to transfer the
      respondents 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
C     closure of the temporary unit, their services are not required.
      However, the State Government was gracious enough to place
      the respondents in the Indian Red Cross Society, which the
      respondents did not accept. [Para 9][788-F-G]
            4. From the impugned order passed by the Division Bench
D     of the High Court it appears that the High Court has observed
      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
E     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
F     Constitution of India. [Para 10][788-G-H; 789-A-B]
            Narendra Kumar Tiwari v. State of Jharkhand (2018)
           8 SCC 238 : [2018] 9 SCR 412 – held inapplicable.
                           Case Law Reference
      [2006] 3 SCR 953             held inapplicable     Para 4.1
G
      [2018] 9 SCR 412             held inapplicable     Para 4.1




H
   THE STATE OF GUJARAT AND OTHERS v. R.J. PATHAN AND                          783
                        OTHERS

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1951                      A
of 2022.
      From the Judgment and Order dated 18.02.2021 of the High Court
of Gujarat at Ahmedabad in Letters Patent Appeal No.2082 of 2011 in
Special Civil Application No.17328 of 2011.
         Ms. Deepanwita Priyanka, Adv. for the Appellants.                     B

         Kabir Hathi, Ms. Jesal Wahi, Advs. for the Respondents.
         The Judgment of the Court was delivered by
         M. R. SHAH, J.
                                                                               C
       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     D
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,   E
namely, “Post-Earthquake Redevelopment Programme” of the
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,      F
the State Government took a decision to place them inthe 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.                                   G

       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
                                                                               H
784            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A     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.
B            2.2 Feeling aggrieved and dissatisfied with the order passed by
      the learned Single Judge dismissing the writ petition, the respondents
      herein – 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
C     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
D     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
E     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
F     and order passed by the Division Bench of the High Court, the State has
      preferred the present appeal.
             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
G     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
H
   THE STATE OF GUJARAT AND OTHERS v. R.J. PATHAN AND                           785
                 OTHERS [M. R. SHAH, J.]

to the earthquake, namely, “Post-Earthquake Redevelopment Programme”            A
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          B
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 the High
                                                                                C
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
                                                                                D
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           E
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   F
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.
       4.2 It is submitted that as the respondents are working as drivers       G
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.
                                                                                H
786             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A            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
B
      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
C     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
D           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 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
E           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
F           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.”
G           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
H
   THE STATE OF GUJARAT AND OTHERS v. R.J. PATHAN AND                        787
                 OTHERS [M. R. SHAH, J.]

the said LPA was taken up for further hearing, it was submitted on           A
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
                                                                             B
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 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      C
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
                                                                             D
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        E
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
                                                                             F
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.
      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          G
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        H
788             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A     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
B     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
C     decision of Umadevi (supra) may be applicable in a case where the
      appointments are irregular 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
D     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
E     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
F     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,
G     the State Government was gracious enough to place 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
H     that the order of absorption and regularisation and if necessary, by creating
    THE STATE OF GUJARAT AND OTHERS v. R.J. PATHAN AND                      789
                  OTHERS [M. R. SHAH, J.]

supernumerary posts, will not be treated as a precedent in other cases.     A
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
                                                                            B
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         C
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.
       12. The present appeal is accordingly allowed. However, there
shall be no order as to costs.                                              D


Bibhuti Bhushan Bose                                      Appeal allowed.



                                                                            E




                                                                            F




                                                                            G




                                                                            H