Service Law – Direction for creations of posts – Impermissibility of – Held: Courts cannot direct for creations of posts – In the present case, the respondents were not in employment of the Government or holding a civil post or appointed against the cadre post in any of the Government establishment where the service conditions are governed/regulated by the statutory rules framed under the proviso to Article 309 – In absence of sanctioned post, the State cannot be compelled to create the post and absorb the persons who are continuing in service of the State – Therefore, the impugned direction of the High Court to reinstate after creating the posts and absorb the respondents based on their qualification is not sustainable in law – Impugned judgment set aside – Mahatma Gandhi National Rural Employment Guarantee Act, 2005 – Constitution of India – Article 309.
Allowing the appeals, the Court
HELD: 1.1 Single Judge and Division Bench in their impugned judgments have concurred with the finding that such of the employees who were discontinued by passing of the order dated 8th November, 2011 are not only entitled to reinstatement but deserve to be regularised in service after creation of post. What is being observed by the Division Bench of the High Court is not legally sustainable in law. The respondents were not in employment of the Government or holding a civil post and also not appointed against the cadre post in any of the Government establishment where the service conditions are governed/regulated by the statutory rules framed under the proviso to Article 309 of the Constitution. In fact, the respondents were engaged in a scheme and were paid honorarium and this Court does not find justification that as long as the scheme continues in the State of Tamil Nadu under the mandate of Mahatma Gandhi National Rural Employment Guarantee Act, 2005, at least there appears no reason to discontinue such persons who are working under the respective schemes undertaken by the Government in fulfilment of the object of the Act, 2005 unless the later found to be unsuitable for retention in service or has attained the age of superannuation. [Paras 46, 49 and 50][406-F; 407-E-G]
1.2 Such employees are not entitled for reinstatement and for regularization of service for the reason that if the order passed on 8th November, 2011 is not sustainable, the respondents and other similarly situated persons engaged could be restored on the same terms as they were placed before passing of the order dated 8th November, 2011. In other words, as their placement was extended for two years by order dated 21 st May, 2010 w.e.f. 1st June, 2010 to 31st May, 2012 at the best, such persons could have been allowed to continue upto 31 st May, 2012. In the absence of any further extension been granted, at least there was no right vested in favour of either of the person engaged to seek further continuance under the scheme thereafter. In absence of sanctioned post, the State cannot be compelled to create the post and absorb the persons who are continuing in service of the State. The direction of the High Court to reinstate after creating the posts and absorb the respondents based on their qualification is not sustainable in law and deserves outright rejection. [Paras 51, 54 and 57][408-A-C; 409-D; 410-D]
1.3 The justification has been tendered that such persons who have not been re-engaged by the State Government under its present policy dated 7th June, 2022 are entitled for their honorarium for the period from 1st December, 2011 to 31st May, 2012, it is made clear that such of the employees who have not joined pursuant to the scheme introduced by Government dated 7th June, 2022, they are always at liberty to accept their honorarium for the period of 6 months but as the Government has already offered them honorarium earlier, they are not entitled to any interest on the said principal amount. This Court is informed that the total amount as per the honorarium of MNP (Makkal Nala Paniyalargal/Village Level Workers) fixed at that time comes to Rs.25,851/-(1st December, 2011 to 31st May, 2012). If an application is filed, the State Government may at least remit the money into the bank account of the individual. It is made clear that such persons who have joined pursuant to the scheme introduced by the Government dated 7th June, 2022 in fulfilment of the object of the Act, 2005 shall remain co-terminous with the scheme and be allowed to continue as long as the scheme remain in force. At the same time, such persons who have not joined pursuant to the scheme dated 7th June, 2022, they are at liberty to accept their payments for the intervening period of 6 months from 1st December, 2011 to 31st May, 2012 of the principal amount of Rs.25,851/- to the MNP. On such application being filed, the appellants shall make over the money to such MNP through RTGS or any other mode after due verification within three months. The judgment impugned is set aside. [Paras 59,
60 and 62][411-C-G; 412-A]
Malathi Das (Retired) now P.B. Mahishy and Others Vs. Suresh and Others (2014) 13 SCC 249 : [2014] 3 SCR 637 – distinguished.
Nihal Singh and Others Vs. State of Punjab and Others (2013) 14 SCC 65 : [2013] 11 SCR 1 – held
inapplicable.
Divisional Manager Aravali Golf Club and Another Vs. Chander Hass and Another (2008) 1 SCC 683 : [2007]
12 SCR 1084; Maharashtra State Road Transport Corporation and Another Vs. Casteribe Rajya
Parivahan Karamchari Sanghatana (2009) 8 SCC 556 : [2009] 13 SCR 937 – relied on.
State of Gujarat and Others Vs. R.J. Pathan and Others (2022) 5 SCC 394; Secretary, State of Karnataka and Others Vs. Umadevi(3) and Others (2006) 4 SCC 1 : [2006] 3 SCR 953 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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