Regularisation Of Services | In The Absence Of Sanctioned Post, Govt Can't Be Compelled To Create Posts & Absorb Those In Service : Supreme Court

The Supreme Court, recently, reiterated that in absence of sanctioned posts, the State cannot be compelled to create posts and absorb people who are continuing in service of the State. It noted that Courts cannot direct for creation of posts.

A Bench comprising Justice Ajay Rastogi and Justice Bela M. Trivedi was deciding a case pertaining to reinstatement and regularisation of members of the Makkal Nala Paniyalargal (MNP) associations who had served as Village Level Workers (‘Makkal Nala Paniyalargal’) in the State of Tamil Nadu.

Factual Background

In 1989, the Tamil Nadu Government introduced a scheme providing employment to the educated youth in rural areas who had completed 10th standard, in village panchayat. A total of 25,234 MNPs (Makkal Nala Paniyalargal/Village Level Workers) were engaged throughout the State. In 1991, the scheme was disbanded by the Government. Consequently, the employment of the persons appointed under the scheme were terminated.

By a Government Order, in 1997, the scheme was restored and disbanded again in 2001. In 2006, the Government came up with a scheme to appoint those who were appointed as Panchayat Assistant and part time clerks; they would be switched over to any scale from 1st September, 2006. In 2008, the Government issued an order stating it would consider filling up 50% of vacant posts arising in the cadre of record clerk/office assistant/night watchman and equivalent post from MNP. About 600 MNPs were absorbed by the Government in village panchayats as officer assistants and night watchmen. Pending absorption the term of MNPs were extended by 2 years till 31st May, 2012. However, in the interim, on 8th November, 2011, the Government disbanded MNPs. The Government order was challenged before the Madras High Court, which was allowed by the Single Judge. The Division Bench affirmed the order passed by the Single Judge. On appeal, the Supreme Court issued notice and stayed the order of the High Court. The Apex Court was apprised that the State Government has introduced a scheme in 2022 to provide employment to the educated unemployed youth under the Mahatma Gandhi National Rural Employment Guarantee Scheme. Out of the 13,500 MNPs, most had joined the scheme and 489 MNPs had refused to take up the opportunity.

Analysis by the Supreme Court

The Court noted that in 2005 the Central Government came up with the National Rural Employment Guarantee Act to provide direct supplementary wage-employment to the rural people. It provided at least one hundred days of guaranteed wage employment in a financial year. The State of Tamil Nadu was included in the schedule of the Act. Under Section 3 of the Act, every State is required to introduce a scheme for provisioning not less than one hundred days of guaranteed employment in a financial year to every household in rural areas covered under the Scheme whose adult members volunteer to do unskilled manual labour. The Court noted that the benefit extended by the scheme of the State of Tamil Nadu under the 2005 Act is still in force.

The Court observed that the High Court had held that the employees who were discontinued by the Government order passed in 2011 disbanding the Government scheme are not only entitled to reinstatement but also deserve to be regularised in service after creation of post. Referring to a catena of judgments, the Apex Court opined that Courts cannot direct for creation of posts. The MNPs were not appointed against a cadre post; they were appointed under a scheme and were paid honorarium. The Court noted that MNPs were not entitled to reinstatement and for regularisation of service beyond the term of the scheme. It set aside the said finding of the High Court. However, the Apex Court granted MNPs who had not joined the 2022 scheme to accept their payment for the period from 1st December, 2011 (scheme disbanded) to 31st May, 2012 (initially scheme extended).

Case details

Government of Tamil Nadu And Anr Etc. v. Tamil Nadu Makkal Nala Paniyalargal And Ors Etc.| 2023 LiveLaw (SC) 294| Civil Appeal No. 10563-10569 of 2017| 11th April, 2023| Justice Ajay Rastogi and Justice Bela M. Trivedi

Service Law -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-direction of the High Court to reinstate after creating the posts and absorb the respondents based on their qualification is not sustainable in law- Para 54 to 57