No direction can be issued by High Court for absorption or regularization of temporary employees by creating supernumerary posts: Supreme Court

Read Judgment: The State of Gujarat And Others V. R.j. Pathan And Others 

Pankaj Bajpai

New Delhi, March 25, 2022: Finding that the employees-respondents were appointed in a temporary unit which was not a regular establishment and the posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government, the Supreme Court has held that no direction could have been issued by the High Court to absorb them in Government service and to regularize their services.

A Division Bench of Justice M.R Shah and Justice B.V Nagarathna further observed that a direction by the High Court to the State Government to create supernumerary posts was also unsustainable, as no such direction could be issued for absorption/regularization of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts.

The background of the case was that, R.J Pathan and Others (Respondents) were appointed on contractual basis for a period of eleven months on a fixed salary and on a particular project, namely, “Post-Earthquake Redevelopment Programme” of the Government of Gujarat. The respondents were initially appointed for a period of eleven months in the year 2004 to the post of drivers. On closure of the said project, the respondents were appointed, instead of terminating the services of the respondents, the State Government took a decision to place them in the services of Indian Red Cross Society. 

Instead of joining the duties in the Indian Red Cross Society, the respondents approached the High Court seeking regularization of their services and absorption in Government service. The Single Judge observed that the appointment of respondents was only for eleven months on a fixed salary, which had been continued from time to time, and the unit in which they were appointed temporarily was a “Project Implementation Unit” only for the purpose of rehabilitation pursuant to the earthquake for the “Post Earthquake Redevelopment Programme” and they were not regularly appointed on any permanent sanctioned posts in any establishment of the Government where the petitioners have any lien.

Thereafter, the Division Bench passed an interim order stating that the respondents would continue to be in service with the State Government and they were not even transferred to the Indian Red Cross Society. The Division Bench also directed the State/Department to consider the cases of the respondents for absorption and regularization sympathetically and if necessary, by creating supernumerary posts, solely on the ground that the respondents had worked for seventeen years. 

After considering the submissions, the Top Court found that as the respondents  worked for a long time, i.e., for seventeen years, the Division Bench had directed the State to consider the cases of the respondents for absorption/regularization and if required, to create supernumerary posts. 

However, while issuing such a direction, the High Court had not at all considered the fact that the respondents were continued in service pursuant to the interim order and the Division Bench had also not appreciated 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 “Post-Earthquake Redevelopment Programme”, added the Court. 

Speaking for the Bench, Justice Shah noted that though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society. 

No duty was cast upon the State to transfer them 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, added the Bench.

The Apex Court therefore clarified that no such order of absorption and/or regularization 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.