THE GOVERNMENT OF TAMIL NADU AND ANR. ETC. ETC. versus TAMIL NADU MAKKAL NALA PANIYALARGAL AND ORS. ETC. ETC

Citation: [2023] 3 S.C.R. 390 · Decided: 11-04-2023 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Case Allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
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[2023] 3 S.C.R. 390
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THE GOVERNMENT OF TAMIL NADU AND ANR. ETC. ETC.
v.
TAMIL NADU MAKKAL NALA PANIYALARGAL AND ORS.
ETC. ETC.
(Civil Appeal No(s). 10563-10569 of 2017)
APRIL 11, 2023
[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
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
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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
THE GOVERNMENT OF TAMIL NADU v. TAMIL NADU
MAKKAL NALA PANIYALARGAL
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
time comes to

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