Written by Shaurya Mahajan
Today, the Supreme Court in the case of State of Gujarat vs R.J. Pathan observed that a High Court cannot direct regularization of temporary employees by creating supernumerary posts.
The court noted – “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 regularization sympathetically and if necessary, by creating supernumerary posts.
In the present case the writ petitioners before the High Court were appointed on a 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 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/regularization.
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/regularization sympathetically and if required, by creating supernumerary posts.
The bench after hearing both the arguments gave the observation that the posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government.
The court further rejected the contention relying on Umadevi case and observed that the The 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.
It was further noted that 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.
Concludingly the court noted that the High Court’s order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases.