The State of Tamil Nadu has filed instant appeals contesting the High Court's Division Bench ruling which upheld a Single Judge's order.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 1056310569 OF 2017
THE GOVERNMENT OF TAMIL NADU
AND ANR. ETC. ETC. ….APPELLANT(S)
VERSUS
TAMIL NADU MAKKAL NALA
PANIYALARGAL AND ORS. ETC. ETC. ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 10570 OF 2017
J U D G M E N T
Rastogi, J.
1.The instant appeals have been preferred at the instance of
State of Tamil Nadu assailing the impugned judgment and order
passed by the Division Bench of the High Court dated 19
th
August,
2014 affirming order of the learned Single Judge dated 23
rd
1
January, 2012 in its jurisdiction under Article 226 of the
Constitution directing the State Government to create the posts
under the designation “Village Level Workers” which is called as
“Makkal Nala Paniyalargal” (hereinafter being referred to as “MNP”)
or by any other name but shall accommodate the persons who were
on the rolls of MNP on the date of issuance of G.O.M No. 86 dated
8
th
November, 2011 against any vacant post in the State
Government schools, village Panchayats, town Panchayats,
Municipalities, Corporations, Collector Office, village offices or any
other Government offices and undertakings of the Government of
Tamil Nadu throughout the State of Tamil Nadu, according to the
qualification possessed by each candidate, without reference to age
in their native, taluk or revenue District. It was further directed
that if any one of the MNP who could not be accommodated or is
ineligible, the State Government shall pay last drawn salary for the
period from 1
st
December, 2011 to 31
st
May, 2012.
2.The brief facts of the case culled out from the record and
relevant for the present purpose are that the Government of Tamil
Nadu introduced a scheme dated 2
nd
September, 1989 through the
2
Rural Development Department in the Budget speech of 19891990
providing employment to the educated youth in rural areas who
have completed 10
th
standard for various items of work in the
village panchayat that can be entrusted to the unemployed youth
and took a decision to implement the scheme at the village level and
to engage at least two village level workers one male and one
female who would be engaged in each of the village panchayats in
the State. Thus, a total of 25,234 workers were to be engaged
throughout the State on a monthly honorarium of Rs.200/ and it
entrusted separate responsibilities to male and female workers.
The Government also adopted a mechanism to be implemented at
the local area where the appointments are to be made for
male/female workers at village panchayat level for keeping the
transparency while making appointment of unemployed educated
youth.
3.It manifests from the record that persons were appointed
under the scheme introduced by the State Government under its
policy dated 2
nd
September, 1989. Later, the scheme was
disbanded by the Government by order dated 13
th
July, 1991 on the
3
premise that the appointments made of MNP are in no way helpful
for the execution of programmes at village level except causing
additional expenditure of Rs.6 crores per annum to the Government
and left the execution of various developmental activities concerned
through extension officers at block level.
4.In consequence thereof, the persons who were engaged as
MNP pursuant to policy decisions of the Government dated 2
nd
September, 1989, their services stood terminated/discontinued.
5.Again, by GO of the Rural Development and Panchayat Raj
Department (hereinafter referred to as “Department”) dated 24
th
February, 1997, the scheme was restored by the Government in the
Budget for the year 19961997 for providing employment to 25,000
youths on the terms and conditions earlier introduced pursuant to
Circular dated 2
nd
September, 1989, on an honorarium of Rs.500/
per month for two MNPs in each village panchayat(one male and
one female) for assisting in the maintenance of village assets and
libraries & implementation of adult literacy programme in villages.
6.The policy decision of the Government which was earlier
introduced by Order dated 2
nd
September, 1989 for all practical
4
purposes and later restored by the Government vide order dated
24
th
February, 1997 was again disbanded with immediate effect by
order dated 1
st
June, 2001. The Government again revived the
services of MNP and increased the honorarium from Rs.500/ per
month to Rs.750/ per month with an addition of Rs.50/ per
month as travelling allowance by order dated 12
th
June, 2006 with a
clear understanding that persons who are reengaged as MNP will
not be entitled for any payment from 1
st
June, 2001 to 31
st
May,
2006 as they were not in service.
7.At this point of time, in furtherance of order dated 12
th
June,
2006, the Department vide its order dated 5
th
December, 2006 came
out with a scheme to appoint those who were appointed as
Panchayat Assistants and Part Time Clerks working in village
Panchayat and that they will be switched over to scale of pay with
effect from 1
st
September, 2006. The Department issued a G.O.
dated 27
th
November, 2008 stating that the Government will
consider filling up 50% of vacant posts arising in the cadre of
Record Clerk/Office Assistant/Night Watchman and equivalent post
from MNP. The District Collectors were directed to prepare the
5
estimated available vacancies so that MNPs could be accommodated
to the extent possible.
8.It has come on record that in the interregnum period,
approximately 600 MNPs were absorbed in the State of Tamil Nadu
in various village panchayats as Office Assistants/Night watchman.
Pending absorption, by an order dated 21
st
May, 2010, the
Department directed the MNPs to continue for two years from 1
st
June, 2010 till 31
st
May, 2012.
9.Before their term could expire, the Government again issued
order dated 8
th
November, 2011 to disband MNPs with immediate
effect on the premise that that there is surplus staff in panchayat
units at village panchayat level to look after the works presently
being looked after by MNPs and, therefore, a decision was taken to
disband the post of MNP which will save approximately Rs.73
crores.
10.The order passed by the Government dated 8
th
November,
2011 pursuant to which the scheme was disbanded and in
consequence thereof, MNPs who were working stood
disengaged/terminated, came to be challenged by the MNPs
6
through their associations by filing of a writ petition before the High
Court under Article 226 of the Constitution.
11.The learned Single Judge of the High Court allowed the writ
petition by a common order dated 23
rd
January, 2012 and while
quashing the order dated 8
th
November, 2011 directed the State of
Tamil Nadu to reinstate the members of the associations who have
served as MNP. The order of the learned Single Judge came to be
challenged by the appellants in writ appeal which came to be
dismissed under the order impugned by judgment dated 19
th
August, 2014 with the following directions:
(i)The State Government is directed to consider creation of
posts either in the name of MNP or in any other name to
propagate the evils of consumption of liquor as contemplated
under Article 47 of the Constitution of India read with Rule
10(5) of the Tamil Nadu Liquor Retail Vending (in Shops and
Bars) Rules, 2003 for accommodating MNP.
(ii)If the same is not possible on any account, the State
Government shall accommodate the persons who were on
the rolls of MNP on the date of issuance of G.O.Ms No. 86
dated 8.11.2011 in any one of the vacant post in
Government schools, village Panchayats, town Panchayats,
Municipalities, Corporations, Village Offices, Taluk Offices
and Collector Offices and in various other Government
Offices and Undertakings of the Government of Tamil Nadu
throughout the State of Tamil Nadu, or in any post as may
be created for implementing the new schemes introduced in
20142015 Budget and accommodate the MNP, according to
the qualification possessed by each candidate, without
reference to age in their native Taluk or Revenue District.
7
(iii)The said exercise shall be commenced immediately and
completed on or before 31.10.2014.
(iv)If any one of the MNP who could not be accommodated
within the said period as stated supra, though they are
eligible to be accommodated, the State Government shall pay
last drawn salary, which they have lastly received, from
1.11.2014 till they are accommodated in any of the vacant or
newly created post.
12.At the same time, the finding recorded by the learned Single
Judge that the action of the State Government was per se mala fide
in passing the order dated 8
th
November, 2011 as directed in Para
33 was held to be unjustified and that became the subject matter of
challenge in appeals before this Court.
13.On the first date of hearing when the matter was listed, while
issuing notice on 23
rd
September, 2014, the operation of the
judgment and order dated 19
th
August, 2014 came to be stayed by
this Court.
14.It is brought to the notice of this Court that the State
Government has introduced the scheme dated 7
th
June, 2022 to
provide employment to the educated unemployed youth under the
Mahatma Gandhi National Rural Employment Guarantee Scheme to
engage one person for one panchayat to fill up on certain conditions
8
or such of the unemployed youth on priority who had discontinued
as MNP pursuant to order passed by the Government dated 8
th
November, 2011 on monthly wages of Rs.7500/ per month.
15.It is informed to this Court that majority of the persons who
were discontinued pursuant to the order dated 8
th
November, 2011
and who otherwise fulfil the conditions of eligibility have joined
under the scheme introduced by the Government dated 7
th
June,
2022. Out of the total number of 13,500 MNPs, majority of them
have joined and 489 MNPs have not opted the new policy despite
opportunity being afforded by this Court.
16.Learned counsel for the appellants submits that creation and
abolition of posts rests with the Government and is a matter of
Government policy, which can always be exercised in the interest
and necessity of internal administration and the Court would be the
least competent in the face of scanty material to decide whether the
Government acted bonafidely in creating a post or refusing to
create a post or its decision suffers from malice (legal or factual)
and as long as the decision to abolish the post is taken in good
faith, interference by the Court was not warranted.
9
17.The abolition of post is not a personal penalty against the
individual who has served and is an executive decision and the
Doctrine of Estoppel will not be applicable against the State in its
governmental, public or sovereign function and the only exception
is that where it is necessary to prevent fraud or manifest injustice.
18.Learned counsel further submits that these are not the
appointments made under the establishment of the State
Government against the cadre post whose service conditions are
governed by the service rules framed under proviso to Article 309 of
the Constitution. The present appointments are made only for the
purpose of providing employment to educated youth in rural areas
to work as MNP in implementation of various programmes at the
village level on an honorarium which has been revised from time to
time.
19.The appointments are although made through a process held
in the local area through the Committee constituted so that the
large number of candidates who are inclined to seek an
appointment, there must be some mechanism in place by which
candidates could be shortlisted to offer appointment. Such
10
appointments made have no corelation with the appointments
made by the State Government under its regular establishments in
terms of the recruitment rules which are prescribed for various
State/subordinate services. Thus, no right could have been
conferred/vested in favour of the individual and that apart, the
Government has reviewed the whole scheme by introducing
employment scheme for rural educated mass, to meet the
appointments earlier made and since they are discontinued by
order dated 8
th
November, 2011, the present Government
voluntarily came out with the scheme dated 7
th
June, 2022 to
consider such of the unemployed youth who had discontinued to
work in the village panchayat as MNP, for almost a decade by that
time, be given priority and may be engaged under the Central
Government scheme, which was framed under the Mahatma
Gandhi National Rural Employment Guarantee Act,
2005(hereinafter being referred to as the “Act 2005”) on an
honorarium of Rs. 7500/ per month and the State also voluntarily
came forward that as their appointment was earlier discontinued,
thus for a period of 6 months, i.e. 1
st
December, 2011 to 31
st
May,
11
2012, each of the employee who discontinued and is not interested
in seeking reengagement under the present scheme can always
accept his 6 months’ wages for the respective period.
20.Learned counsel submits that majority of them have received
their wages by this time but the miniscule of persons who are
contesting today, either have not encashed or have repaid the
money back to the Government and submits that those who are left
out and have not joined so far under the present scheme introduced
by the Government dated 7
th
June, 2022, although as per timelines
introduced, no fresh engagement can be made but earlier this Court
permitted the persons who were disengaged to join and become
member of the scheme, still the Government has kept it open and
the persons who would like to join, they are always at liberty to re
join in terms of the scheme introduced dated 7
th
June, 2022 and
those who are not inclined, can always accept their 6 months’
wages for the period from 1
st
December, 2011 to 31
st
May, 2012 at
any point of time from the Office of the District Collector if they
have not already received so far.
12
21.In support of the submissions, learned counsel has placed
reliance on the recent judgment of this Court in State of Gujarat
and Others Vs. R.J. Pathan and Others
1
wherein taking note of
the earlier judgment, this Court has expressed that appointments
which are made for a fixed term and on a fixed salary in a
temporary unit which was created for a particular project, they are
not entitled to seek regularization and if such a direction is issued
by the High Court for absorption/regularization of the employees
who were appointed in a temporary unit which was created for a
particular project, are held not in conformity with law and such
orders passed by the High Court for regularization, in the facts and
circumstances, have not been countenanced by this Court.
22.Per contra, learned counsel for the respondents, while
supporting the finding returned by the High Court under the
impugned judgment submits that their fate of appointment has
always been dependent upon elected Government in power. One
Government came with a scheme to provide employment the
1 2022(5) SCC 394
13
successive Government has disbanded the policy introduced by its
predecessors which appears to be only for political reasons.
23.The consistent policy which has come on record is in itself an
indicator to show that as and when decision was taken to abandon
or abolish the scheme, it was only for political reasons and not
based on any substantial or valid reason on record. In the given
facts and circumstances, the decision of the High Court in setting
aside the order dated 8
th
November, 2011 was valid and justified
and such impugned action of Government was indeed in violation of
Articles 14, 16 and 21 of the Constitution of India and rightly
interfered by the High Court under the impugned judgment.
24.Learned counsel further submits that there are consistent
judgments of this Court where the employees have been allowed to
continue for sufficient long time without the intervention of the
Court. This Court always comes forward to regularize such
employees who had worked uninterruptedly for sufficient long time
and that can be traced out from the judgment of this Court in the
case of Secretary, State of Karnataka and Others Vs. Umadevi
14
(3) and Others
2
which has been later followed by this Court in
Nihal Singh and Others Vs. State of Punjab and Others
3
and
further reiterated by this Court in Malathi Das(Retired) now P.B.
Mahishy and Others Vs. Suresh and Others
4
. Taking assistance
from the judgments of this Court, learned counsel submits that the
High Court has rightly, in the given facts and circumstances, set
aside the order dated 8
th
November, 2011 and in consequence
thereof, such of the employees who discontinued because of the
policy being disbanded/cancelled by the Government by order dated
8
th
November, 2011 in sequel deserve to be regularized either on the
post of MNP or any other post subject to availability. The High
Court was conscious of this fact that there are numerous number of
posts where the respondent employees are eligible and they can
easily be absorbed and thus, to protect their services which they
have rendered for sufficient long time, they have rightly been
considered for regularization. The finding which was recorded in
the first place by the learned Single Judge and confirmed on legal
2 2006(4) SCC 1
3 2013(14) SCC 65
4 2014(13) SCC 249
15
principles by the Division Bench of the High Court, at least at this
stage, needs no interference.
25.Learned counsel further submits that during the interregnum
period between June, 2009 and November, 2011 until the order
impugned came to be passed, the Government earlier came up with
a scheme that such of the employees who are serving as MNPs may
be absorbed into a regular post of Record Clerk/Office Assistant/
Night watchman or any other equal cadre post against 50% of
regular vacancies and by an order dated 1
st
June, 2009
approximately 600 MNPs were absorbed on various posts and since
this has been discontinued/disbanded by successive Government
by order dated 8
th
November, 2011, the respondents who were in
queue and waiting for their absorption were deprived of their
legitimate right of fair consideration and no reason was assigned by
the Government while passing the order dated 8
th
November, 2011
and merely because there was a change of guards, that in itself
would not be a ground to abandon the scheme which was in vogue
for a long time.
16
26.The Division Bench of the High Court took a conscious
decision to protect the rights, interests and service conditions of
such of the employees who have served for sufficient long time but
discontinued because of the policy of the rival political groups. But
the fact is that the employees became its victim and that appears to
be the reason for which the impugned order dated 8
th
November,
2011 came to be passed and after they have been contesting their
rights for almost more than a decade, at least, this Court in the
interest of justice, may not interfere, in the peculiar facts and
circumstances of the case.
27.Learned counsel, in alternative, submits that if this Court is
not inclined to consider their submission, at least the employees
who have not been able to take employment so far, may be
permitted to accept their 6 months’ honorarium for the period
between 1
st
December, 2011 and 31
st
May, 2012 which comes to
principal amount of Rs.25,851/ per MNP, at least, with a
reasonable interest, as may be considered to be appropriate, in the
facts and circumstances of the case.
17
28.We have heard learned counsel for the parties and perused the
material available on record.
29.If we look into the scheme originally introduced by the
Government by Order dated 2
nd
September, 1989, the object of the
scheme was to provide employment to the educated youth in rural
areas who have completed 10
th
standard in implementing several
programmes of the Government at the village level which require
continuous effort for successful completion. After Government has
identified such programmes, they can be entrusted to a village work
force of unemployed educated youth for better implementation. The
Government took a decision that there should be two village level
workers one male and one female who will be engaged in each of
the village panchayat. They will be called Makkal Nala
Paniyalargal(MNP) and be engaged on an honorarium of Rs.200/
per month in the first instance.
30.As far as how the appointment has to be made, a mechanism
was put in place that such employees who are in the age bracket of
18 to 30 years with educational qualification of 10
th
standard (and
those who are working in hill/tribal areas, their educational
18
qualification can be relaxed to 8
th
standard), their recruitment shall
take place through an advertisement in the local area and be
considered by a Committee for shortlisting the candidates to be
considered for appointment. The mechanism which was put in
place in the first instance, by order dated 2
nd
September, 1989 has
looked into various rough weather. It reveals from the record that
as and when there was change of political scenario, the successive
political party always disbanded/cancelled the policy decision of its
earlier Government in power which had introduced a scheme for
offering employment to the educated unemployed youth.
31.This can very well be noticed from the records that the Scheme
which was introduced by the Government for providing employment
to educated unemployed youth in rural areas dated 2
nd
September,
1989 came to be disbanded by the successive Government by order
dated 13
th
July, 1991 in consequence discontinued the service
rendered by such unemployed youth. Immediately thereafter, the
successive elected Government restored its policy by order dated
24
th
February, 1997 and provided employment to the educated
youth for rural development programmes in various schemes at the
19
village panchayat, be it for assisting in the maintenance of village
assets and libraries, implementation of adult literacy programme in
villages, for their social welfare and also to work for antiliquor
campaign. Such of the youth which put in place to get themselves
involved in the scheme introduced in the village panchayat came to
be disbanded by order dated 1
st
June, 2001. Later, it was again
introduced by order dated 12
th
June, 2006 and their honorarium
stood increased at later stages and their services stood extended by
order 21
st
May, 2010 for the period from 1
st
June, 2010 to 31
st
May,
2012. But it appears that there was a change of guard in the
interregnum period and immediately thereafter, the policy was
disbanded by order dated 8
th
November, 2011 which was the
subject matter of challenge before the High Court under Article 226
of the Constitution on behalf of the respondents.
32.It has to be noticed that for rural development, major focus of
planning had been productive absorption of underemployed and
surplus labour force of the rural sector. In order to provide direct
supplementary wageemployment to the rural poor, the Central
20
Government came with a legislation, namely, Act 2005, with salient
features as follows:
(i)The objective of the legislation is to enhance the livelihood
security of the poor households in rural areas of the country
by providing at least one hundred days of guaranteed wage
employment to every poor household whose adult members
volunteer to do unskilled manual work.
(ii)The State Government shall, in such rural areas in the State
and for such period as may be notified by the Central
Government, provide to every poor household guaranteed
wage employment in unskilled manual work at least for a
period of one hundred days in a financial year in accordance
with the provisions made in the legislation.
(iii)Every State Government shall, within six months from the
date of commencement of this legislation, prepare a scheme
to give effect to the guarantee proposed under the legislation.
(iv)The one hundred days of employment under the legislation
will be provided at the wage rate to be specified by the
Central Government for the purpose of this legislation. Until
such time a wage rate is specified by the Central
Government for an area, the minimum wage rate fixed by the
State Government under the Minimum Wages Act, 1948 for
agricultural labourers shall be considered as the wage rate
applicable to that area.
(v)If an eligible applicant is not provided work as per the
provisions of this legislation within the prescribed time limit,
it will be obligatory on the part of the State Government to
pay unemployment allowance at the prescribed rate.
(vi)A Central Employment Guarantee Council at the Central
level and State Employment Guarantee Councils at the State
level in all States where the legislation is made applicable
will be constituted for review, monitoring and effective
implementation of the legislation in their respective areas.
(vii)The Standing Committee of the District Panchayat, District
Programme Coordinator, Programme Officers and Gram
Panchayats have been assigned specific responsibilities in
21
implementation of various provisions of the legislation at the
Gram Panchayat, Block and District levels.
(viii)The Central Government shall establish a fund to be called
'National Employment Guarantee Fund' for the purposes of
this legislation. Similarly, the State Governments may
constitute State Employment Guarantee Funds.
(ix)Provisions for transparency and accountability, audit,
establishment of grievance and redressal mechanisms and
penalty of noncompliance are also envisaged.
(x)Provisions for Minimum features of Rural Employment
Guarantee Scheme and conditions for guaranteed Rural
Employment under a scheme and minimum entitlements of
labourers have been laid.
33.Finally, the Act was introduced to provide for the
enhancement of the livelihood and security of the poor households
in rural areas of the country by providing at least one hundred days
of guaranteed wage employment in the financial year to every poor
household whose adult members volunteer to do unskilled manual
work and for matters connected therewith or incidental thereto
under the Act 2005. The State of Tamil Nadu is also included in the
Schedule appended to the Act, 2005.
34.Such applicant who is the head of the household or its other
adult members who have applied for employment under the scheme
be termed as an applicant to join in the projects for the purpose of
22
providing employment to the applicants for the work taken up
under a project as defined under Section 2(n) of the Act, 2005. The
expression ‘scheme’ has been defined under Section 2(p) which
means a scheme notified by the State Government under sub
section (1) of Section 4.
35.Chapter II provides guarantee of employment in rural areas.
Section 3 refers to guarantee of rural employment to households,
the State Government has to provide to every household whose
adult members volunteer to do unskilled manual work not less than
one hundred days of such work in a financial year. It further
provides that every person who had done the work given to him
under the Scheme shall be entitled to receive wages at the wage rate
for each day of work on weekly basis or in any case not later than a
fortnight after the date on which such work is done.
36.Chapter III takes note of employment guarantee schemes and
unemployment allowance.
37.Section 4 provides that as for the purposes of giving effect to
the provisions of Section 3, every State has to issue a notification to
introduce a scheme for providing not less than one hundred days of
23
guaranteed employment in a financial year to every household in
the rural areas covered under the Scheme and whose adult
members, by application, volunteer to do unskilled manual work.
38.What will be the conditions for providing employment are
referred to under Section 5 of the Act, 2005. The wage rate is to be
fixed by the Central Government from time to time in terms of
Section 6. If an applicant for employment under the Scheme is not
provided such employment within fifteen days of receipt of the
application seeking employment, he shall be entitled to a daily
unemployment allowance in accordance with Section 7.
39.Chapter IV notifies implementing and monitoring authorities
at the central level by Central Employment Guarantee Council and
at the State level, by State Employment Guarantee Council as
referred to under Sections 10 and 12 of the Act, 2005.
40.After the Act, 2005 came into force, such States which are
notified in the Schedule as referred to under Section 1(3) of the Act,
2005 which includes the State of Tamil Nadu, the same was offered
to the educated unemployed youth primarily under the Act, 2005.
24
41.It has not been disputed that the scheme undertaken by the
State of Tamil Nadu under the Act, 2005 is still in force.
42.The practice adopted by the Government in the past of which a
detailed reference has been made from 1989 onwards and to be
more specific, after the introduction of Scheme for providing
employment to the educated unemployed youth to work in the
village panchayat by order dated 2
nd
September, 1989, it has
undergone a change at various stages and forms.
43.We cannot afford to lose democracy in our country by
permitting the political parties empowered to overrule the wisdom of
their political opponents with the use of State machinery.
44.So far as the object behind the scheme is concerned, it
appears to be very laudable and at least in the interest of poor
unemployed educated youth by providing them to serve on the
wages certified by the Government from time to time by providing
employment under the Scheme introduced by the State
Government, at least for not less than one hundred days
guaranteed in a financial year who volunteered to do unskilled
manual work. At the same time, while the policy decision of the
25
Government is always open to judicial review on the anvil of Article
14 of the Constitution and is ordinarily not to be interfered unless
that is attached with legal or factual malice of the Government,
however, in the instant case, the Division Bench of the High Court
has set aside the finding so far as the malice which was imputed by
the learned Single Judge in passing order dated 8
th
November, 2011
is concerned. After going through the records, we are of the view
that the order dated 8
th
November, 2011 might have been passed as
a policy decision of the Government but the seriatim of facts which
have come on record at least cannot be countenanced by this
Court.
45.The question which emerges for our consideration is whether
the order dated 8
th
November, 2011 is untenable in the eyes of law,
such employees who were discontinued are eligible for
reinstatement and regularization of service?
46.Learned 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 8
th
November, 2011 are not only entitled to reinstatement but deserve
26
to be regularised in service after creation of post.In our
considered view, what is being observed by the Division Bench of
the High Court is not legally sustainable in law.
47.There cannot be a quarrel with the proposition that the Courts
cannot direct for creations of posts. In the case of Divisional
Manager Aravali Golf Club and Another Vs. Chander Hass and
Another
5
, it has been held as under:
“15. The court cannot direct the creation of posts. Creation and
sanction of posts is a prerogative of the executive or legislative
authorities and the court cannot arrogate to itself this purely
executive or legislative function, and direct creation of posts in any
organisation. This Court has time and again pointed out that the
creation of a post is an executive or legislative function and it
involves economic factors. Hence the courts cannot take upon
themselves the power of creation of a post. Therefore, the
directions given by the High Court and the first appellate court to
create the posts of tractor driver and regularise the services of the
respondents against the said posts cannot be sustained and are
hereby set aside.”
48.Later, in Maharashtra State Road Transport Corporation
and Another Vs. Casteribe Rajya Parivahan Karamchari
Sanghatana
6
, this Court held as under:
“41. Thus, there is no doubt that creation of posts is not within
the domain of judicial functions which obviously pertains to the
executive. It is also true that the status of permanency cannot be
granted by the Court where no such posts exist and that executive
5 2008(1) SCC 683
6 2009(8) SCC 556
27
functions and powers with regard to the creation of posts cannot
be arrogated by the courts.”
49.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.
50.In fact, the respondents were engaged in a scheme and were
paid honorarium and we do find justification that as long as the
scheme continues in the State of Tamil Nadu under the mandate of
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.
51.But as already observed, such employees are not entitled for
reinstatement and for regularization of service for the reason that if
the order passed on 8
th
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
28
the order dated 8
th
November, 2011. In other words, as their
placement was extended for two years by order dated 21
st
May,
2010 w.e.f. 1
st
June, 2010 to 31
st
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.
52.So far as the impugned direction to the State Government for
their reinstatement and regularization is concerned, in our
considered view, it is completely misplaced and not sustainable in
law.
53.The Judgment of this Court relied upon in Secretary, State
of Karnataka and Others Vs. Umadevi (3) and Others (supra) is
in reference to such of the employees who were illegally/irregularly
appointed in the establishment of the Government and their service
conditions are governed under the statutory Rules framed but they
have not gone through the process of selection as provided under
their respective rules and were allowed to continue on adhoc basis
for almost more than a decade. This Court deprecated such
29
practice but as one time measure permitted the Government to
regularize such employees who are working against the sanctioned
post and permitted by the government without intervention of the
Court as referred to under Para 53 of the judgment. The same is
reproduced hereunder:
“53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained
in S.V. Narayanappa [(1967) 1 SCR 128] , R.N.
Nanjundappa [(1972) 1 SCC 409] and B.N. Nagarajan [(1979) 4
SCC 507] and referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might have been made
and the employees have continued to work for ten years or more
but without the intervention of orders of the courts or of tribunals.
The question of regularisation of the services of such employees
may have to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in the light
of this judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take steps to
regularise as a onetime measure, the services of
such irregularly appointed, who have worked for ten years or more
in duly sanctioned posts but not under cover of orders of the
courts or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts
that require to be filled up, in cases where temporary employees or
daily wagers are being now employed. The process must be set in
motion within six months from this date. We also clarify that
regularisation, if any already made, but not sub judice, need not
be reopened based on this judgment, but there should be no
further bypassing of the constitutional requirement and
regularising or making permanent, those not duly appointed as per
the constitutional scheme.”
54.At the same time, this Court further observed that 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.
30
55.In Nihal Singh and Others (supra) on which heavy reliance
has been placed, it was a case where appointments were made by
the State Government under Section 17 of the Police Act, 1861.
Since their appointments were under the Act, 1861 and were
allowed to continue for sufficient long time, which was not
considered to be illegal or irregular appointment, this Court
considered it appropriate to observe that as they are allowed to
continue for such a long term, they deserve regularization of
service. In the instant case, the respondents were never appointed
in the establishment of the Government against a regular
sanctioned post, in the absence whereof, judgment may be of no
assistance.
56.The later judgment in Malathi Das(Retired) Now P.B.
Mahishy(supra) which has been relied upon, it was a case where
the employees were working on daily wage basis serving in different
departments which are indeed Government establishments. At one
stage, the employees approached the High Court claiming
regularization of service and the High Court of Karnataka came to
their rescue and directed the State Government to regularize service
31
of such employees who are serving on a daily wage basis in
Government departments and finally the SLP was dismissed by this
Court. Thereafter, contempt petitions were filed before the High
Court and in two phases, the employees were regularized, in the
first and second phase of filing contempt petition by the
incumbents concerned. But few of the incumbents filed contempt
petition which appears to be the third phase, they were not
considered for regularization despite the order of the High Court
being confirmed by this Court on dismissal of the special leave
petition on the premise of the judgment of this Court in Secretary,
State of Karnataka and Others Vs. Umadevi (3) and
Others(supra). This Court was of the view that once the judgment
of the High Court has been affirmed and in two phases on filing
contempt petitions, employees have been regularized, there appears
no reason to deviate and take away the claim of rest of the
employees who are covered by the judgment of the High Court, may
be the reason that there was a change in law on the subject after
passing of the judgment of this Court in Secretary, State of
32
Karnataka and Others Vs. Umadevi (3) and Others(supra) and
this is not the factual matrix in the instant case.
57.We are of the considered view that 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.
58.This Court, in a recent judgment in State of Gujarat and
Others(supra) has considered the view expressed by us in paras 10
and 11 as follows:
“10. The Division Bench has also not appreciated the fact and/or
considered the fact that the respondents were initially appointed
for a period of eleven months and on a fixed salary and that too, in
a temporary unit — “Project Implementation Unit”, which was
created only for the purpose of rehabilitation pursuant to the
earthquake for “PostEarthquake Redevelopment Programme”.
Therefore, the unit in which the respondents were appointed was
itself a temporary unit and not a regular establishment. The posts
on which the respondents were appointed and working were not
the sanctioned posts in any regular establishment of the
Government.
11. Therefore, when the respondents were appointed on a fixed
term and on a fixed salary in a temporary unit which was created
for a particular project, no such direction could have been issued
by the Division Bench of the High Court to absorb them in
Government service and to regularise their services. The High
Court has observed that even while absorbing and/or regularising
the services of the respondents, the State Government may create
supernumerary posts. Such a direction to create supernumerary
posts is unsustainable. Such a direction is wholly without
jurisdiction. No such direction can be issued by the High Court for
33
absorption/regularisation of the employees who were appointed in
a temporary unit which was created for a particular project and
that too, by creating supernumerary posts.”
59.The justification has been tendered that such persons who
have not been reengaged by the State Government under its
present policy dated 7
th
June, 2022 are entitled for their
honorarium for the period from 1
st
December, 2011 to 31
st
May,
2012, we make it clear that such of the employees who have not
joined pursuant to the scheme introduced by Government dated 7
th
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. We are informed that the
total amount as per the honorarium of MNP fixed at that time
comes to Rs.25,851/(1
st
December, 2011 to 31
st
May, 2012). If an
application is filed, the State Government may at least remit the
money into the bank account of the individual.
60.We make it clear that such persons who have joined pursuant
to the scheme introduced by the Government dated 7
th
June, 2022
in fulfilment of the object of the Act, 2005 shall remain coterminus
34
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 7
th
June, 2022, they are at
liberty to accept their payments for the intervening period of 6
months from 1
st
December, 2011 to 31
st
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.
61.In our considered view, the judgment passed by the Division
Bench of the High Court for the reasons aforestated is not
sustainable and deserves to be set aside.
62.Consequently, the appeals succeed and are allowed. The
judgment impugned dated 19
th
August, 2014 is hereby set aside
with the observation aforestated. No costs.
63.Pending application(s), if any, shall stand disposed of.
……………………….J.
(AJAY RASTOGI)
35
……………………….J.
(BELA M. TRIVEDI)
NEW DELHI;
APRIL 11, 2023
36
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