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The Supreme Court has clarified that no direction can be issued by the High Court, in exercise of powers under Article 226 of the Constitution of India, 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.

With this view, Court set aside an order passed by the High Court of Gujarat allowing a Letter Patents Appeal (LPA) and directing the State to consider the cases of the respondent-employees for regularisation sympathetically and if necessary, by creating supernumerary posts.

RJ Pathan and a few others were appointed to the post of drivers on a contractual basis for a period of eleven months on a fixed salary in a particular project, namely, “Post-Earthquake Redevelopment Programme” of the Government of Gujarat.

On closure of the project, instead of terminating the services of the said employees, the State Government took a decision to place them in the services of the Indian Red Cross Society.

Instead of joining the duties in the Indian Red Cross Society, Pathan and others approached the High Court with a writ petition seeking regularisation of their services and absorption in Government service. They also challenged their placement with the Indian Red Cross Society.

After the said writ petition being dismissed by the High Court, an LPA was filed wherein by an interim order dated December 20, 2011, Pathan and others were continued in service and they were not even transferred to the Indian Red Cross Society.

When the said LPA came up for hearing in the year 2021, it was submitted on behalf of the original writ petitioners that as they have been continuously working in the Government Departments for the past seventeen years and they have not been transferred to the Indian Red Cross Society, the Government may be directed to consider the case for regularisation in the service as long period has passed.

The Division Bench, in turn, directed the State/Department to consider the cases of the respondents for absorption and regularisation, solely on the ground that they had worked for seventeen years.

Thereafter, the state of Gujarat approached the Top Court assailing said direction issued to them.

A bench of Justices MR Shah and BV Nagarathna was of the opinion that while issuing such a direction, the High Court had not at all considered the fact that the respondents were continued in service pursuant to their interim order.

The bench noted that out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court.

"The Division Bench has also not appreciated the fact and/or considered 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...., the unit in which the respondents were appointed was itself a temporary unit and not a regular establishment. The posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government...", held the Court,

It was further held that the observation made by the High Court that while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts, was unsustainable and wholly without jurisdiction.

The bench was further of the opinion that while the State graciously placed the respondents in the Indian Red Cross Society, no duty was cast upon it to transfer them to another establishment in a case where the employees were appointed in a temporary unit and upon closure of the said unit, their services were not required.

Case Title: The State of Gujarat and others v. R.J. Pathan and others