THE STATE OF GUJARAT AND OTHERS versus R.J. PATHAN AND OTHERS

Citation: [2022] 1 S.C.R. 780 · Decided: 24-03-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 1 S.C.R.
[2022] 1 S.C.R. 780
780
THE STATE OF GUJARAT AND OTHERS
v.
R.J. PATHAN AND OTHERS
(Civil Appeal No. 1951 of 2022)
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
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,
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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]
THE STATE OF GUJARAT AND OTHERS v. R.J. PATHAN AND
OTHERS
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SUPREME COURT REPORTS
[2022] 1 S.C.R.
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 ma

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