Article 226 - High Court Cannot Direct Regularisation Of Temporary Employees By Creating Supernumerary Posts : Supreme Court

The Supreme Court observed that a High Court cannot direct regularisation of temporary employees by creating supernumerary posts.

"Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction", the bench comprising Justices MR Shah and BV Nagarathna observed while setting aside the Gujarat High Court direction to the State to consider the cases of some temporary employees for regularisation sympathetically and if necessary, by creating supernumerary posts.

In this case, the writ petitioners before the High Court 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 1 Government of Gujarat.

Before the Apex Court, the State contended that the writ petitioners were never appointed in any regular establishment and/or in any sanctioned post in any regular establishment and therefore they have no right to claim absorption/regularisation. On the other hand, the respondents contended, by relying on the decisions in State of Karnataka v. Umadevi (3), reported in (2006) 4 SCC 1, as well as, the subsequent decision of this Court in the case of Narendra Kumar Tiwari v. State of Jharkhand, reported in (2018) 8 SCC 238 (para 7),  that as they have worked for more than seventeen years as drivers with the State Government, the High Court has rightly directed the State to consider their cases for absorption/regularisation sympathetically and if required, by creating supernumerary posts.

The bench noted that the posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government. 

"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 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."

The court also rejected the contention relying on Umadevi case and observed:

The purpose and intent of the decision in Umadevi (supra) 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 (supra) 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.

The court noted that the High Court has directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases.

"Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation 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.", the bench observed while allowing the appeal.

Case details

State of Gujarat vs R.J. Pathan | 2022 LiveLaw (SC) 313 | CA 1951 OF 2022 | 24 March 2022

Coram: Justices MR Shah and BV Nagarathna

Counsel: Adv Deepanwita Priyanka for the State - appellant, Adv Kabir Hathi for respondents

Headnotes

Constitution of India, 1950 ; Article 226 -Regularization - High Court directed the State to consider the cases of some temporary employees for regularisation sympathetically and if necessary, by creating supernumerary posts - Such a direction is wholly without jurisdiction - No such order of absorption and/or regularisation 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. (Para 6,10)

Service Law - Regularization - State of Karnataka v. Umadevi (2006) 4 SCC 1 - The purpose and intent of the decision in Umadevi (supra) 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 (supra) 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. (Para 8)

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