Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1601 OF 2020
(ARISING OUT OF SLP (C) NO. 27926 OF 2016)
VINOD RAVJIBHAI RAJPUT …...Appellant
versus
STATE OF GUJARAT & ORS. .…Respondents
J U D G M E N T
Indira Banerjee, J.
Leave granted.
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2. This appeal is against a judgment and order dated 24 June 2016
passed by a Division Bench of the Gujarat High Court allowing Letters
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Patent Appeal No.195 of 2016 and setting aside an order dated 14
September 2015 of the Single Bench allowing the Writ Petition being
Special Civil Application No.5108 of 2014 filed by the Appellant, holding
that the Appellant was entitled to reinstatement including continuity of
service and the benefits flowing from continuity of service.
3. The Appellant was appointed part-time Gallery Attendant of Bhuj
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Museum on 14 March 1995. His name had been forwarded for
Signature Not Verified
consideration by the concerned Employment Exchange.
Digitally signed by
JAYANT KUMAR ARORA
Date: 2020.02.14
16:56:16 IST
Reason:
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4. On 25 July,2002, the Respondent No.2 passed an order
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appointing the Appellant as a full-time Gallery Attendant in the pay-
scale of Rs.2550-55-2660-60-3200, against a sanctioned Class IV vacant
post, after obtaining the sanction of the Director of the Sangrahalaya
Department, State of Gujarat.
5. The Appellant served as a full-time Gallery Attendant of Bhuj
Museum for almost two years, after which his services were abruptly
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terminated by an order dated 1 July 2004, passed by the Respondent
No.3.
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6. It appears that the order dated 1 July 2004, of termination of the
services of the Appellant, was passed on the ground that the Appellant
had been appointed as full-time Gallery Attendant of Bhuj Museum,
notwithstanding the policy of the State Government, of not making any
fresh recruitment, due to financial constraints.
7. The Appellant filed a writ petition under Article 226 of the
Constitution of India, being SCA No.7943 of 2004, in the High Court,
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whereupon a learned Single Judge passed an interim order dated 7 July
2004, restraining the Respondent Authorities from terminating the
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services of the Appellant, pursuant to the notice dated 1 July 2004.
This interim order was subject to the result of the pending writ petition
and clarified that the Appellant could, if necessary, be reverted as a
part-time employee.
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8. Pursuant to the interim order of the learned Single Judge dated 7
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July 2004, the Respondent Authorities passed an order dated 10
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August 2004, reverting the Appellant to the position of a part-time
employee.
9. The Appellant filed an application being Civil Application No.7970
of 2004 in the pending writ petition for suspension of the order dated
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10 August 2004 whereby the Appellant had been reverted from the
position of ad-hoc full-time employee to that of part-time employee.
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10. By an order dated 17 March 2008, the learned Single Judge
disposed of the aforesaid application, without interfering with the
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impugned order dated 10 August 2004, holding that the order did not
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flout the interim order dated 7 July 2004. The learned Judge observed
that it would be appropriate if the existing status of the Appellant was
maintained, and any representation made by the Appellant to the
authorities concerned, given due consideration.
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11. Pursuant to the aforesaid order dated 17 March 2008, the
Appellant made a representation. The Appellant was, however,
informed that he could not be made a full-time employee, as he had not
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cleared his Secondary School Certificate (SSC)/10 standard
examination.
12. The Appellant argued that, at the time of issuance of the order
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dated 25 July 2002 appointing the Appellant as full-time Gallery
Attendant, the requisite educational qualification for appointment to the
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post of a full-time Gallery Attendant was only 4 Standard Pass, and the
Appellant had the aforesaid qualification.
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13. In any case, while continuing to work as part-time employee, the
Appellant successfully cleared the SSC examination. Thereafter, he
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made two representations dated 30 December 2010 and 22 April
2012 informing the concerned authorities that he had cleared the SSC
examination and requesting that he be absorbed as a full-time Gallery
Attendant.
14. Being aggrieved by the inaction of the concerned authorities to
act on his representations, the Appellant filed a writ petition under
Article 226 of the Constitution of India, being Special Civil Application
No.9910 of 2012 in the High Court. The writ petition was disposed of,
by directing the Appellant to make a representation to the concerned
authorities. The concerned authorities were directed to decide the
representation within a period of four months.
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15. Thereafter, by an order dated 18 December 2012, the services of
the Appellant were terminated on the ground that it was impermissible
to regularize the Appellant to the post of Gallery Attendant, as he had
not fulfilled the requisite conditions as prescribed in the Government
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Resolution issued by the Finance Department on 1 May 2007.
16. One of the conditions, which according to the Respondent
Authorities, the Appellant had not fulfilled, was that he had not
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completed ten years of service as on 10 February 2006, and even if he
had completed ten years of service, this was on the strength of the
interim order passed by the High Court.
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17. The Appellant filed a writ petition being Special Civil Application
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No.16840 of 2012 in the High Court, challenging the order dated 18
December 2012 terminating his services. The learned Single Judge
refused to entertain the petition, observing that the appropriate remedy
of the Appellant was to initiate proceedings in accordance with the
provisions of the Industrial Disputes Act, 1947.
18. Being aggrieved by the judgment of the Single Bench, the
Appellant filed Letters Patent Appeal No.635 of 2013 before the Division
Bench. The Division Bench considered the relevant rules and
regulations governing recruitment to the post in question, allowed the
appeal and directed the Respondents to reinstate the Appellant to the
post of full-time Gallery Attendant of Bhuj Museum forthwith. However,
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since the Appellant had not worked from 18 December 2012 till the
date of the judgment and order, the Division Bench refrained from
passing orders for back wages.
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19. Thereafter, an office order dated 14 October 2013 was issued
appointing the Appellant to the post of Gallery Attendant (Class IV) at
Kutch Museum, Bhuj in the pay band of Rs.4444-7440, Grade Pay of
Rs.1300, with effect from the date of resumption of his duties. The
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Office Order noted that the Appellant resumed his duties on 14
October 2013.
20. The Appellant filed a writ petition under Article 226 of the
Constitution of India in the High Court being Special Civil Application No.
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5108 of 2014 questioning the action of the Respondent Authorities in
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not granting the Appellant the benefit of continuity of service from 25
July 2002. The said writ petition was allowed by the Single Bench, by
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an order dated 14 September 2015, the operative part whereof is set
out hereinbelow:
“Thus, in view of the above, reinstatement includes the
continuity of service, and accordingly, the petitioner is
entitled for the benefits flowing from the continuity of
service.”
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21. Being aggrieved by the said judgment and order dated 14
September 2015, the Respondents filed an appeal being Letters Patent
Appeal No.195 of 2016. The said appeal has been allowed by the
Division Bench of the High Court by the judgment and order impugned
in this appeal, with the following observation:
“In view of the aforesaid discussion, we are of the opinion
that learned Single Judge has committed an error while
observing that the petitioner is entitled to the benefits
flowing from the continuity of service. Hence, the impugned
order is quashed and set aside. The appeal is allowed. As the
appeal is allowed, no orders are passed on civil application.”
22. The short question in this appeal is, whether the action of the
Respondents in granting fresh appointment to the Appellant with effect
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from 14 October 2013, in violation of the judgment and order dated
22.08.2013 of the Division Bench in Letters Patent Appeal No. 635 of
2013 directing the Respondents to reinstate him, is sustainable in law.
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23. May be, as argued by learned Counsel on behalf of the
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Respondent Authorities, the order of appointment i.e. 14 October 2013
does not bear any reference to the judgment and order of the Division
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Bench, dated 22 August 2013 in Letters Patent Appeal No.635 of 2013.
However, the aforesaid judgment and order, against which there was no
appeal, has assumed finality and is binding on the Respondents.
24. In exercise of powers conferred by the proviso to Article 309 of the
Constitution of India, and in supersession of all existing Rules regulating
recruitment to Class IV posts in the Secretariat and non-Secretariat
offices of the Government of Gujarat, the Governor of Gujarat has
framed Rules to provide for regulating recruitment to Class IV posts in
inferior services, which is called “The Class IV Posts in Inferior Services
in the Gujarat Secretariat and Non Secretariat Offices Recruitment
Rules, 2005”, hereinafter referred to as “the 2005 Rules”
25. Relying on the 2005 Rules, and in particular Rules 2 to 7 thereof,
the Respondent Authorities have contended that the Appellant did not
have the requisite eligibility to be appointed full-time Gallery Attendant
in 2002, as he had not passed the Secondary School Certificate
Examination then. Rules 2 to 7 of the said Rules provide as under:-
“2. Appointment to the posts of Class IV (in inferior
service) in Secretariat and non-Secretariat offices of
Government of Gujarat shall be made either
(i) by direct selection;
(ii) by transfer; or
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(iii) by deputation.
3. To be eligible for appointment by direct selection to the
post mentioned in rule 2, a candidate shall:-
(i) not be less than 18 years and not more than 25 years
of age;
(ii) have passed Secondary School Certificate
Examination;
(iii) possess skills relevant to the job as may be prescribed
by Government from time to time;
Provided that preference may be given to a candidate who
possesses the driving licence for light motor vehicles.
4. The candidate appointed in Class IV posts may be
transferred in public interest to any other Class IV post in
inferior services in any Secretariat or non-Secretariat
office in the State;
5. A candidate appointed by direct selection shall be on
probation for a period of six months;
6. A selected candidate shall be required to pass the
departmental examination and an examination in Gujarati
or Hindi or both in accordance with the Rules prescribed
by the Government from time to time;
7. A candidate appointed by direct selection shall have to
undergo such training according to his job and to pass
such examination as may be prescribed by the
Government from time to time.”
26. On behalf of the Respondents, it was also argued that, the
conditions for regularization of Class IV employees have been laid down
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in a Government Resolution dated 1 May 2007. For regularization, the
employees needed to fulfill the following conditions:
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(i) On 10 February, 2006, the employees should have
completed ten years of service, putting in atleast 6 hours of
work per day. The ten year period should not be on the
strength of any order of the Court or the Tribunal;
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(ii) The employees who had completed ten years of service
should have been appointed in accordance with recruitment
procedure prevailing at the relevant point of time. In other
words, their names should have been recommended by the
Employment Exchange, Social Welfare Authority etc.;
(iii) At the time of temporary appointment, the employee
should have had the requisite eligibility for being appointed
to the particular post of Class IV and;
(iv) the appointment should have been sanctioned by a
competent authority and the appointment should have been
against a vacant post.
27. The Respondent Authorities have been contending that the
Appellant had not fulfilled condition No.(i) of the Government Resolution
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dated 1 May 2007, as he had not completed ten years of service as a
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temporary employee on 10 February 2006, but put in nine years and
four months of service. His continuance thereafter, was on the strength
of the order passed by the High Court.
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28. By the judgment and order of 22 August 2013 in Letters Patent
Appeal No. 635 of 2013 referred to above, the earlier Division bench had
clearly directed reinstatement of the Appellant, but without back wages.
As observed above the said judgment and order has assumed finality
and is binding on the Respondents. It was not open to the concerned
authorities to give fresh appointment to the Appellant with effect from
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14 October 2013. The learned Single Bench very rightly allowed the
writ petition. However, the only error that the Single Bench made, was
in directing reinstatement of the Appellant with consequential benefits,
without clarifying that the reinstatement would be with consequential
benefits except back wages for the period from 18.12.2012 to
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22.08.2013 when the Appellant had not worked.
29. The Appellant having been appointed full-time Gallary Attendant
Group-IV with the approval of the Director, Sangrahalaya, by the order
dated 25.7.2002, his services could not have been terminated after
almost two years, on the purported ground of a Government policy
keeping permanent appointments in abeyance. The Division Bench had
decided Letters Patent No.635 of 2016, after considering the
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Government Resolution dated 1 May 2007 of the Finance Department,
which had been issued in the wake of the directions of the Supreme
Court in the case of Secretary, State of Karnataka & Ors. vs.
Umadevi & Ors. reported in (2006) 4 SCC 1.
30. The judgment and order in Uma Devi (supra) or the resolution
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dated 1 May 2007 adopted pursuant to the said judgment and order
cannot be retrospectively applied to the Appellant, who had duly been
appointed full-time Gallery Attendant way back in 2002. The Rules
framed in 2005 referred to above, cannot also have retrospective
operation.
31. In Letters Patent Appeal No. 635 of 2013, the Division Bench held
that the view taken by the Respondent Authorities was unreasonable for
the following reasons:-
(i) It was not in dispute that the appellant was appointed
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as a part-time Gallery Attendant on 14 March, 1995;
(ii) at that time post of full-time Gallery Attendant was
vacant;
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(iii) the name of the appellant had been forwarded by the
Employment Exchange and he had been interviewed;
(iv) the appellant held a certificate of the Museum certifying
his sincerity and honesty as Gallery Attendant;
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(v) on 25 July, 2002, the appellant had been appointed as a
full-time Gallery Attendant with the prior permission and
sanction of the Director, Sangrahalaya Department, State of
Gujarat.
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(vi) The order of termination dated 1 July, 2004 was issued
after permitting the appellant to work as full-time regular
Gallery Attendant for almost a period of two years.
(vii) By the time the order of termination had been issued, the
appellant had put in nine years and four months of combined
service as part-time employee and as full-time Gallery
Attendant.
(viii) The learned Single Judge had passed an interim order on
being prima facie satisfied of the merits of the case of the
appellant.
32. After considering all the factors surrounding the initial
appointment of the Appellant as part-time Gallery Attendant, his
services as full-time Gallery Attendant, the interim order of the Single
Bench and considering that the Appellant had rendered almost
seventeen years of service as a Gallery Attendant, Bhuj Museum, the
Division Bench had allowed the appeal of the Appellant, set aside the
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judgment and order of the Single Bench dated 2 April 2013 and
directed the Respondent Authorities to reinstate the Appellant to the
post of full-time Gallery Attendant of Bhuj Museum forthwith, but
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without back wages, since the Appellant had not worked from 18
December 2012 till the date of the judgment of the Division Bench.
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33. In our considered opinion, the Appellant has to be reinstated with
continuity of service from the date of his initial appointment as full-time
Gallery Attendant in July 2002, but without back wages for the period
between 18.12.2012 to 22.08.2013, when the Appellant did not work.
The Appellant shall, however, be entitled to differential salary, if any,
between the post of full-time Gallery Attendant and part-time Gallery
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Attendant from 25 July 2002 onwards, but not for the period between
18.12.2012 to 22.08.2013, in view of the judgment and order of the
Division Bench dated 22.08.2013 in Letters Patent Appeal No. 635 of
2013.
34. The appeal is accordingly allowed. The judgment and order of the
Division Bench, under appeal, is set aside and the judgment of the
Single Bench is restored with the modification that the Appellant shall
be reinstated with consequential benefits, except arrears of wages for
the period from 18.12.2012 till the date of order of the Division Bench,
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that is, 22 August 2013.
.................................J
[INDIRA BANERJEE]
.................................J
[A.S. BOPANNA]
FEBRUARY 14, 2020;
NEW DELHI.