Service Law – Regularisation – Respondents were appointed in a temporary project – Initial appointment was for eleven months 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 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 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 – 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 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 while absorbing and / or regularising the services of respondents, the State Government may create supernumerary posts – Such 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 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.
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 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
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 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 counted. The High Court totally missed the aforesaid aspect. [Para 7][787-G-H; 788-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 : [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 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 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 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. [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.
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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