Shreenidhi Kumar & Ors vs Union Of India & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9893 OF 2011 [ARISING OUT OF S.L.P. (C) NO. 11878 OF 2010 ]

SHREENIDHI KUMAR & OTHERS ... APPELLANT(S)

Versus

UNION OF INDIA AND OTHERS ... RESPONDENT(S)

J U D G M E N T

R.M. LODHA, J.

Leave granted.

2. On July 18, 2007, a Resolution (for short "Resolution")

was issued by the Personnel and Administrative Reforms

Department, Government of Bihar providing for procedure and

guidelines for employment on contract basis. Inter alia, it

provided that employment on the contract basis will be done

only against the sanctioned posts and on the basis of the

advertisement. It further provided that employment on

contract basis may be considered under any scheme for

special proposal for short period only. In case of delay in

regular employment against the permanent posts, the

employment on contract basis can be made for short time and

for maximum period of one year. It also provided that

maximum age limit for employment on contract basis would be

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65 years.

3. On June 13, 2009, an advertisement (hereinafter referred

to as "advertisement") was issued in the newspaper

"Hindustan" by the Department of Agriculture, Government of

Bihar inviting applications for employment on contract basis

for 4062 posts of Subject Matter Expert (for short "SME")

under "Krishi Prasar Sudridhikaran Yojna (for short

"Yojna"). The advertisement provided for minimum

qualification and also the age limit - on 1.1.2008: 37

years for unreserved; 40 years for extremely Backward and

Backward Castes; 40 years for women (unreserved, extremely

Back and Backward) and 42 years for SC/ST (Male and Female).

The other details like reservation, basis of selection,

period of employment etc. were also given in the

advertisement along with the format of the application.

4. The above advertisement was challenged by 13 persons in a

Writ Petition (being CWJC NO. 7366 of 2009) before the High

Court of Patna. The Challenge was to clause (2) relating to

age limit. The petitioners therein alleged that the age

limit prescribed in the advertisement was inconsistent

with the Resolution as the maximum age limit prescribed

therein for employment on contract basis was 65 years.

5. The Single Judge of the High Court, by his order dated

July 13, 2009, while dealing with the challenge to the age

limit prescribed in the advertisement directed the

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petitioners therein to approach the State Government

(Agriculture Department) with a representation to reconsider

clause (2) of the advertisement and make it in tune with the

Resolution. The Single Judge also observed that while

considering the representation, the authorities would bear

in mind that the appointment on similar posts in agriculture

department had not been made for over 15 years and the

petitioners therein had become over-age during those

years and considering these aspects, the authorities

should fix the maximum age in clause (2) of the

advertisement.

6. Consequent upon the order dated July 13, 2009 and the

representation made by the persons who were petitioners in

the Writ Petition before the High Court, the Director,

Department of Agriculture, Government of Bihar (for short

"Director") reconsidered the whole issue and held that

there was no question of alteration of age limit mentioned

in the advertisement. The Director, in his order,

observed as follows:

"The afore stated application and record of the office have been perused. In resolution memo No. - 2401 dated 18.7.07 of Personnel and Administrative Reforms Department, the upper age limit of 65 years for the approved posts pertaining to employment on contract basis is against. At present expert in subject matter are not being employed against the approved post. This employment is being done temporarily for two years. By this employment of 4062 specialist in subject matter has to be done as per the scheme Krishi Prasar Sudharikaran Scheme,

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and this scheme is totally temporarily. In this scheme age limit for unreserved is 37 years for most backward and 40 years for backward females (unreserved, most backward and backward) 40 years and for SC & ST (male and female) 42 years has bee fixed by personnel and Administrative Reforms Department and the consent of the group of ministers has been granted. It has been issued vide departmental official order No. 75 dated 6.1.1990. As per the scheme the specialist of subject matter have been planned to be assigned numerous duties such as, scheme sponsored by the centre, preparation of list of macromode, isopomode/atma scheme, scheme to prepare the list of beneficiaries in seed expansion scheme, organising training at village level, technical assistance to the villagers, conduction and supervision of the work of seed production in agricultural areas, constitution of agricultural welfare group at village level and make arrangement for their training to collect specimen from the agriculturist for checking the soil quality and send the same to the laboratory and simultaneously send the examination report to the villagers, for selection of venues for farm field school, to arrange training during the period of travelling of F.F.S. and to collect the data of accounts and also to conduct other works assigned by the department of agriculture. Therefore, there is no question of alteration of age limit mentioned in Memo No. PR-13448 (Agri)9-10 Para 12"."

7. The above order passed by the Director came to be

challenged in two Writ Petitions before the High Court of

Patna. The Single Judge of the High Court, vide order dated

August 13, 2009, quashed the order of the Director and sent

the matter back to the Agriculture Production Commissioner,

Bihar with a direction to him to pass fresh order in

consultation with the Personnel and Administrative Reforms

Department of the State Government about the validity of

clause (2) of the advertisement to bring it in tune with the

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Resolution. It is not necessary to refer to other

directions given in the order dated August 13, 2009.

8. Before the order was passed by the Single Judge on

August 13, 2009, as noticed above, in view of the order

passed by the Director on July 23, 2009, the processing of

the applications received pursuant to the advertisement was

completed and the Employment List of SME was finalised on

August 10, 2009. The present appellants are some of those

whose names appeared in that list. However, these

appellants were not given employment since immediately

thereafter by the order dated August 13, 2009, the High

Court had quashed the order passed by the Director and sent

the matter back to the Agriculture Production Commissioner,

Bihar for passing fresh order as noted above. The

appellants, therefore, challenged the order of the Single

Judge before the Division Bench in a Letters Patent Appeal.

9. The Division Bench, after hearing the parties, dismissed

the appeal on March 23,2010. The main reason given by the

Division Bench in dismissing the appeal is that by

finalisation of the Employment List dated August 10, 2009,

no vested right has accrued in favour of the appellants. As

regards the Resolution, the Division Bench observed that the

Single Judge in his order had only interpreted the

Resolution and directed the State Government to act

accordingly and the State Government has not challenged

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that order.

10. One more fact needs to be noticed here that

pursuant to the order of the Single Judge passed on August

13, 2009, the State Government altered the age limit for

employment on contract basis for 4062 posts of SME under

the Yojna; increased the age limit to 65 years and gave the

employment on that basis on February 24, 2010 for a period

of two years.

11. We have heard Mr. Nagendra Rai, learned senior

counsel for the appellants and Mr. A.K. Prasad for

respondent Nos. 3 and 5.

11. We shall reproduce relevant portion of para 2 of

the Resolution. It reads thus:

"2. In the light of the above referred the State Government has taken the following decision for equalization of policy/guidelines for employment on the basis of contract.

(1) Employment on the basis of contract will be done only against the sanctioned posts and these kinds of employment will be done only on the basis of advertisement.

(2) These kinds of employment will be done under any scheme for some special proposal and for short period only But in case of delay in regular appointment against the permanent created posts, this kind of employment can be made for short time. But this kind of employment against the permanent post will be done for maximum one year only.

x xx xx xx xx xx xx

(8) Maximum age limit will be 65 years for employment on contact."

13. The Resolution provides for procedure and

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guidelines for employment on contract basis. It basically

provides for employment in the State on the contract basis

in two contingencies namely; (i) in case of delay in regular

employment against the sanctioned posts and (ii) in case of

requirement of the employees to work for short period in

temporary schemes. The Resolution, accordingly, has to be

considered being applicable to above two situations. If the

regular employment against sanctioned posts has been delayed

for one reason or the other, the employment can be made on

contract basis. But such appointment has to be for a short

period and in no case, exceeding one year. Similarly, if

there is requirement of the employees to work in the

temporary schemes for a short period then the employment on

contract basis can be made. Although, time period of such

employment is not stated in the Resolution, but the use of

expression "short period only" is not without significance.

The employment period of 'two' years is little long to

constitute 'short period' contemplated in para 2(2) of the

Resolution. 'Short period' referred to in para 2(2), in our

opinion, means duration of few days or few months. It

cannot be few years. The period of employment in temporary

schemes exceeding 12 months, thus, will not be covered by

the Resolution. As a necessary corollary, the maximum age

limit of 65 years provided in para 2(8) of the Resolution is

not available for employment exceeding one year in the

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temporary schemes. Any other view will be against all norms

of public employment.

14. Insofar as the advertisement for appointment of

SME to 4062 posts on contract basis under the Yojna is

concerned, the employment period is for maximum two years.

The Director was, thus, right when he observed in his

order that the Resolution providing for upper age limit of

65 years was not applicable for employment on contract basis

under the advertisement as the SMEs are not being employed

against the approved posts and their employment was being

done temporarily for two years.

15. We are, therefore, unable to uphold the order of

the Single Judge dated August 13, 2009 and the order dated

March 23, 2010 passed by the Division Bench. We set-aside

these orders. Having held that, however, in our view, it

would not be in the interest of justice to unsettle the

appointments of SME already made on February 24, 2010

against 4062 posts under the Yojna now since less than four

months' contract period is left for those appointees as the

maximum period of employment is two years. In case the

posts of SME under the Yojna are required beyond two years

from February 24, 2010, we direct that the concerned

authorities shall make fresh appointments in accordance with

law.

16. The appeal is disposed of accordingly. No order

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as to costs.

.....................J. (R.M. LODHA)

......................J. (H.L. GOKHALE)

NEW DELHI NOVEMBER 17, 2011.