Service Law: Fresh appointment – Appellant was appointed part time Gallery Attendant in 1995 and in 2002 was appointed as a full time Gallery Attendant against a sanctioned post – He served as a full time Gallery Attendant for almost 2 years after which his services were abruptly termination on 1.7.2004 on the ground that his appointment as a full time Gallery Attendant was against the policy of the State Government of not making any fresh recruitment due to financial constraints – Appellant filed writ petition in High Court – Single judge passed interim order restraining respondent authorities from terminating the services of the appellant subject to result of pending writ petition and clarified that the appellant could if necessary be reverted as a part time employee – Pursuant thereto, respondent authorities reverted the appellant to the position of part time employee – Appellant made representations and thereafter aggrieved by inaction of concerned authorities to act on his representations, filed writ petition which were disposed of by directing the appellant to make representation to the concerned authorities and directing authorities to decide his representation – On 18.12.2012, his services were terminated on the ground that it was impermissible to regularise him to the post of Gallery Attendant as he had not fulfilled certain conditions prescribed in Government Resolution dtd. 1.5.2007 – Appellant filed writ petition which was dismissed observing that the appropriate remedy of appellant was to initiate proceedings in accordance with 1947 Act – Division Bench allowed LPA no.635 of 2013 filed by appellant and directed respondents to reinstate the appellant to the post of full time attendant – However since appellant had not worked since 18.12.2012, he was not granted back wages – Thereafter, he was duly appointed and he resumed his duties on 14.12.2013 – Appellant filed writ petition questioning the action of authorities in not granting the appellant the benefit of continuty of service from 25.07.2002 – Single judge allowed the writ petition holding that reinstatement includes continuity of service – LPA – Division Bench set aside order of single judge – In the instant appeal, the question for consideration was whether the action of the Respondents in granting fresh appointment to the Appellant with effect from 14.10.2013, in violation of the judgment dated 22.08.2013 of the Division Bench in LPA No.
635 of 2013 directing the Respondents to reinstate him, is sustainable in law – Held: When the earlier Division bench clearly directed reinstatement of the Appellant, but without back wages and the said judgment has assumed finality and is binding on the Respondents, it was not open to the concerned authorities to give fresh appointment to the Appellant with effect from 14.10.2013 – Appellant has to be reinstated with continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for the period between 18.12.2012 to 22.08.2013, when the Appellant did not work – Appellant shall, however, be entitled to differential salary, if any, between the post of full-time Gallery Attendant and part-time Gallery Attendant from 25.07.2002 onwards, but not for the period between 18.12.2012 to 22.08.2013, in view of the judgment and order of the Division Bench dated 22.08.2013 in LPA No. 635 of 2013 – Industrial Disputes Act, 1947.
Allowing the appeal, the Court
HELD: 1. By the judgment and order of 22nd August 2013 in Letters Patent Appeal No. 635 of 2013, the earlier Division bench had clearly directed reinstatement of the Appellant, but without back wages. The said judgment and order has assumed finality and is binding on the Respondents. It was not open to the concerned authorities to give fresh appointment to the Appellant with effect from 14th October 2013. The Single Bench very rightly allowed the writ petition. However, the only error that the Single Bench made, was in directing reinstatement of the Appellant with consequential benefits, without clarifying that the reinstatement would be with consequential benefits except back wages for the period from 18.12.2012 to 22.08.2013 when the Appellant had not worked. The Division Bench had decided Letters Patent No.635 of 2016, after considering the Government Resolution dated 1st May 2007 of the Finance Department, which had been issued in the wake of the directions of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. The judgment and order in Uma Devi or the resolution dated 1st May 2007 adopted pursuant to the said judgment and order cannot be retrospectively applied to the Appellant, who had duly been appointed full-time Gallery Attendant way back in 2002. The Rules framed in 2005 cannot also have retrospective operation. [Paras 28-30][673-B-H; C-H; 674-A]
2. In Letters Patent Appeal No. 635 of 2013, the Division Bench held that the view taken by the Respondent Authorities was unreasonable for reasons :- (i) It was not in dispute that the appellant was appointed as a part-time Gallery Attendant on 14th March, 1995; (ii) at that time post of full-time Gallery Attendant was vacant; (iii) the name of the appellant had been forwarded by the Employment Exchange and he had been interviewed; (iv) the appellant held a certificate of the Museum certifying his sincerity and honesty as Gallery Attendant; (v) on 25th July, 2002, the appellant had been appointed as a full-time Gallery Attendant with the prior permission and sanction of the Director, Sangrahalaya Department, State of Gujarat. (vi) The order of termination dated 1st July, 2004 was issued after permitting the appellant to work as full-time regular Gallery Attendant for almost a period of two years. (vii) By the time the order of termination had been issued, the appellant had put in nine years and four months of combined service as part-time employee and as fulltime Gallery Attendant. (viii) The Single Judge had passed an interim order on being prima facie satisfied of the merits of the case of the appellant. [Para 31][674-A-F]
3. After considering all the factors surrounding the initial appointment of the Appellant as part-time Gallery Attendant, his services as full-time Gallery Attendant, the interim order of the Single Bench and considering that the Appellant had rendered almost seventeen years of service as a Gallery Attendant, Bhuj Museum, the Division Bench had allowed the appeal of the Appellant, set aside the judgment and order of the Single Bench dated 2nd April 2013 and directed the Respondent Authorities to reinstate the Appellant to the post of full-time Gallery Attendant of Bhuj Museum forthwith, but without back wages, since the Appellant had not worked from 18th December 2012 till the date of the judgment of the Division Bench. The Appellant has to be reinstated with continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for the period between 18.12.2012 to 22.08.2013, when the Appellant did not work. [Paras 32-33] [674-E-H; 675-A]
Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (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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