State of T.N. vs T.N. Makkal Nala Paniyalargal

CIVIL APPEAL NO(S). 10563­10569 OF 2017

THE GOVERNMENT OF TAMIL NADU AND ANR. ETC. ETC. ….APPELLANT(S)

VERSUS

TAMIL NADU MAKKAL NALA PANIYALARGAL AND ORS. ETC. ETC. ….RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). 10570 OF 2017

JUDGMENT

Rastogi, J.

1. The instant appeals have been preferred at the instance of

State of Tamil Nadu assailing the impugned judgment and order

passed by the Division Bench of the High Court dated 19 th August, Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2023.04.11 18:15:08 IST Reason:

2014 affirming order of the learned Single Judge dated 23 rd

1 January, 2012 in its jurisdiction under Article 226 of the

Constitution directing the State Government to create the posts

under the designation “Village Level Workers” which is called as

“Makkal Nala Paniyalargal” (hereinafter being referred to as “MNP”)

or by any other name but shall accommodate the persons who were

on the rolls of MNP on the date of issuance of G.O.M No. 86 dated

8th November, 2011 against any vacant post in the State

Government schools, village Panchayats, town Panchayats,

Municipalities, Corporations, Collector Office, village offices or any

other Government offices and undertakings of the Government of

Tamil Nadu throughout the State of Tamil Nadu, according to the

qualification possessed by each candidate, without reference to age

in their native, taluk or revenue District. It was further directed

that if any one of the MNP who could not be accommodated or is

ineligible, the State Government shall pay last drawn salary for the

period from 1st December, 2011 to 31st May, 2012.

2. The brief facts of the case culled out from the record and

relevant for the present purpose are that the Government of Tamil

Nadu introduced a scheme dated 2nd September, 1989 through the

2 Rural Development Department in the Budget speech of 1989­1990

providing employment to the educated youth in rural areas who

have completed 10th standard for various items of work in the

village panchayat that can be entrusted to the unemployed youth

and took a decision to implement the scheme at the village level and

to engage at least two village level workers ­ one male and one

female ­ who would be engaged in each of the village panchayats in

the State. Thus, a total of 25,234 workers were to be engaged

throughout the State on a monthly honorarium of Rs.200/­ and it

entrusted separate responsibilities to male and female workers.

The Government also adopted a mechanism to be implemented at

the local area where the appointments are to be made for

male/female workers at village panchayat level for keeping the

transparency while making appointment of unemployed educated

youth.

3. It manifests from the record that persons were appointed

under the scheme introduced by the State Government under its

policy dated 2nd September, 1989. Later, the scheme was

disbanded by the Government by order dated 13 th July, 1991 on the

3 premise that the appointments made of MNP are in no way helpful

for the execution of programmes at village level except causing

additional expenditure of Rs.6 crores per annum to the Government

and left the execution of various developmental activities concerned

through extension officers at block level.

4. In consequence thereof, the persons who were engaged as

MNP pursuant to policy decisions of the Government dated 2 nd

September, 1989, their services stood terminated/discontinued.

5. Again, by GO of the Rural Development and Panchayat Raj

Department (hereinafter referred to as “Department”) dated 24 th

February, 1997, the scheme was restored by the Government in the

Budget for the year 1996­1997 for providing employment to 25,000

youths on the terms and conditions earlier introduced pursuant to

Circular dated 2nd September, 1989, on an honorarium of Rs.500/­

per month for two MNPs in each village panchayat(one male and

one female) for assisting in the maintenance of village assets and

libraries & implementation of adult literacy programme in villages.

6. The policy decision of the Government which was earlier

introduced by Order dated 2nd September, 1989 for all practical

4 purposes and later restored by the Government vide order dated

24th February, 1997 was again disbanded with immediate effect by

order dated 1st June, 2001. The Government again revived the

services of MNP and increased the honorarium from Rs.500/­ per

month to Rs.750/­ per month with an addition of Rs.50/­ per

month as travelling allowance by order dated 12th June, 2006 with a

clear understanding that persons who are re­engaged as MNP will

not be entitled for any payment from 1st June, 2001 to 31st May,

2006 as they were not in service.

7. At this point of time, in furtherance of order dated 12 th June,

2006, the Department vide its order dated 5 th December, 2006 came

out with a scheme to appoint those who were appointed as

Panchayat Assistants and Part Time Clerks working in village

Panchayat and that they will be switched over to scale of pay with

effect from 1st September, 2006. The Department issued a G.O.

dated 27th November, 2008 stating that the Government will

consider filling up 50% of vacant posts arising in the cadre of

Record Clerk/Office Assistant/Night Watchman and equivalent post

from MNP. The District Collectors were directed to prepare the

5 estimated available vacancies so that MNPs could be accommodated

to the extent possible.

8. It has come on record that in the interregnum period,

approximately 600 MNPs were absorbed in the State of Tamil Nadu

in various village panchayats as Office Assistants/Night watchman.

Pending absorption, by an order dated 21st May, 2010, the

Department directed the MNPs to continue for two years from 1 st

June, 2010 till 31st May, 2012.

9. Before their term could expire, the Government again issued

order dated 8th November, 2011 to disband MNPs with immediate

effect on the premise that that there is surplus staff in panchayat

units at village panchayat level to look after the works presently

being looked after by MNPs and, therefore, a decision was taken to

disband the post of MNP which will save approximately Rs.73

crores.

10. The order passed by the Government dated 8 th November,

2011 pursuant to which the scheme was disbanded and in

consequence thereof, MNPs who were working stood

disengaged/terminated, came to be challenged by the MNPs

6 through their associations by filing of a writ petition before the High

Court under Article 226 of the Constitution.

11. The learned Single Judge of the High Court allowed the writ

petition by a common order dated 23 rd January, 2012 and while

quashing the order dated 8th November, 2011 directed the State of

Tamil Nadu to reinstate the members of the associations who have

served as MNP. The order of the learned Single Judge came to be

challenged by the appellants in writ appeal which came to be

dismissed under the order impugned by judgment dated 19 th

August, 2014 with the following directions:­

(i) The State Government is directed to consider creation of posts either in the name of MNP or in any other name to propagate the evils of consumption of liquor as contemplated under Article 47 of the Constitution of India read with Rule 10(5) of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003 for accommodating MNP.

(ii) If the same is not possible on any account, the State Government shall accommodate the persons who were on the rolls of MNP on the date of issuance of G.O.Ms No. 86 dated 8.11.2011 in any one of the vacant post in Government schools, village Panchayats, town Panchayats, Municipalities, Corporations, Village Offices, Taluk Offices and Collector Offices and in various other Government Offices and Undertakings of the Government of Tamil Nadu throughout the State of Tamil Nadu, or in any post as may be created for implementing the new schemes introduced in 2014­2015 Budget and accommodate the MNP, according to the qualification possessed by each candidate, without reference to age in their native Taluk or Revenue District.

7

(iii) The said exercise shall be commenced immediately and completed on or before 31.10.2014.

(iv) If any one of the MNP who could not be accommodated within the said period as stated supra, though they are eligible to be accommodated, the State Government shall pay last drawn salary, which they have lastly received, from 1.11.2014 till they are accommodated in any of the vacant or newly created post.

12. At the same time, the finding recorded by the learned Single

Judge that the action of the State Government was per se mala fide

in passing the order dated 8th November, 2011 as directed in Para

33 was held to be unjustified and that became the subject matter of

challenge in appeals before this Court.

13. On the first date of hearing when the matter was listed, while

issuing notice on 23rd September, 2014, the operation of the

judgment and order dated 19th August, 2014 came to be stayed by

this Court.

14. It is brought to the notice of this Court that the State

Government has introduced the scheme dated 7 th June, 2022 to

provide employment to the educated unemployed youth under the

Mahatma Gandhi National Rural Employment Guarantee Scheme to

engage one person for one panchayat to fill up on certain conditions

8 or such of the unemployed youth on priority who had discontinued

as MNP pursuant to order passed by the Government dated 8 th

November, 2011 on monthly wages of Rs.7500/­ per month.

15. It is informed to this Court that majority of the persons who

were discontinued pursuant to the order dated 8 th November, 2011

and who otherwise fulfil the conditions of eligibility have joined

under the scheme introduced by the Government dated 7 th June,

2022. Out of the total number of 13,500 MNPs, majority of them

have joined and 489 MNPs have not opted the new policy despite

opportunity being afforded by this Court.

16. Learned counsel for the appellants submits that creation and

abolition of posts rests with the Government and is a matter of

Government policy, which can always be exercised in the interest

and necessity of internal administration and the Court would be the

least competent in the face of scanty material to decide whether the

Government acted bonafidely in creating a post or refusing to

create a post or its decision suffers from malice (legal or factual)

and as long as the decision to abolish the post is taken in good

faith, interference by the Court was not warranted.

9

17. The abolition of post is not a personal penalty against the

individual who has served and is an executive decision and the

Doctrine of Estoppel will not be applicable against the State in its

governmental, public or sovereign function and the only exception

is that where it is necessary to prevent fraud or manifest injustice.

18. Learned counsel further submits that these are not the

appointments made under the establishment of the State

Government against the cadre post whose service conditions are

governed by the service rules framed under proviso to Article 309 of

the Constitution. The present appointments are made only for the

purpose of providing employment to educated youth in rural areas

to work as MNP in implementation of various programmes at the

village level on an honorarium which has been revised from time to

time.

19. The appointments are although made through a process held

in the local area through the Committee constituted so that the

large number of candidates who are inclined to seek an

appointment, there must be some mechanism in place by which

candidates could be shortlisted to offer appointment. Such

10 appointments made have no co­relation with the appointments

made by the State Government under its regular establishments in

terms of the recruitment rules which are prescribed for various

State/subordinate services. Thus, no right could have been

conferred/vested in favour of the individual and that apart, the

Government has reviewed the whole scheme by introducing

employment scheme for rural educated mass, to meet the

appointments earlier made and since they are discontinued by

order dated 8th November, 2011, the present Government

voluntarily came out with the scheme dated 7th June, 2022 to

consider such of the unemployed youth who had discontinued to

work in the village panchayat as MNP, for almost a decade by that

time, be given priority and may be engaged under the Central

Government scheme, which was framed under the Mahatma

Gandhi National Rural Employment Guarantee Act,

2005(hereinafter being referred to as the “Act 2005”) on an

honorarium of Rs. 7500/­ per month and the State also voluntarily

came forward that as their appointment was earlier discontinued,

thus for a period of 6 months, i.e. 1 st December, 2011 to 31st May,

11 2012, each of the employee who discontinued and is not interested

in seeking re­engagement under the present scheme can always

accept his 6 months’ wages for the respective period.

20. Learned counsel submits that majority of them have received

their wages by this time but the miniscule of persons who are

contesting today, either have not encashed or have repaid the

money back to the Government and submits that those who are left

out and have not joined so far under the present scheme introduced

by the Government dated 7th June, 2022, although as per timelines

introduced, no fresh engagement can be made but earlier this Court

permitted the persons who were disengaged to join and become

member of the scheme, still the Government has kept it open and

the persons who would like to join, they are always at liberty to re­

join in terms of the scheme introduced dated 7 th June, 2022 and

those who are not inclined, can always accept their 6 months’

wages for the period from 1st December, 2011 to 31st May, 2012 at

any point of time from the Office of the District Collector if they

have not already received so far.

12

21. In support of the submissions, learned counsel has placed

reliance on the recent judgment of this Court in State of Gujarat

and Others Vs. R.J. Pathan and Others1 wherein taking note of

the earlier judgment, this Court has expressed that appointments

which are made for a fixed term and on a fixed salary in a

temporary unit which was created for a particular project, they are

not entitled to seek regularization and if such a direction is issued

by the High Court for absorption/regularization of the employees

who were appointed in a temporary unit which was created for a

particular project, are held not in conformity with law and such

orders passed by the High Court for regularization, in the facts and

circumstances, have not been countenanced by this Court.

22. Per contra, learned counsel for the respondents, while

supporting the finding returned by the High Court under the

impugned judgment submits that their fate of appointment has

always been dependent upon elected Government in power. One

Government came with a scheme to provide employment the

1 2022(5) SCC 394

13 successive Government has disbanded the policy introduced by its

predecessors which appears to be only for political reasons.

23. The consistent policy which has come on record is in itself an

indicator to show that as and when decision was taken to abandon

or abolish the scheme, it was only for political reasons and not

based on any substantial or valid reason on record. In the given

facts and circumstances, the decision of the High Court in setting

aside the order dated 8th November, 2011 was valid and justified

and such impugned action of Government was indeed in violation of

Articles 14, 16 and 21 of the Constitution of India and rightly

interfered by the High Court under the impugned judgment.

24. Learned counsel further submits that there are consistent

judgments of this Court where the employees have been allowed to

continue for sufficient long time without the intervention of the

Court. This Court always comes forward to regularize such

employees who had worked uninterruptedly for sufficient long time

and that can be traced out from the judgment of this Court in the

case of Secretary, State of Karnataka and Others Vs. Umadevi 14 (3) and Others2 which has been later followed by this Court in

Nihal Singh and Others Vs. State of Punjab and Others3 and

further reiterated by this Court in Malathi Das(Retired) now P.B.

Mahishy and Others Vs. Suresh and Others4. Taking assistance

from the judgments of this Court, learned counsel submits that the

High Court has rightly, in the given facts and circumstances, set

aside the order dated 8th November, 2011 and in consequence

thereof, such of the employees who discontinued because of the

policy being disbanded/cancelled by the Government by order dated

8th November, 2011 in sequel deserve to be regularized either on the

post of MNP or any other post subject to availability. The High

Court was conscious of this fact that there are numerous number of

posts where the respondent employees are eligible and they can

easily be absorbed and thus, to protect their services which they

have rendered for sufficient long time, they have rightly been

considered for regularization. The finding which was recorded in

the first place by the learned Single Judge and confirmed on legal

2 2006(4) SCC 1 3 2013(14) SCC 65 4 2014(13) SCC 249

15 principles by the Division Bench of the High Court, at least at this

stage, needs no interference.

25. Learned counsel further submits that during the interregnum

period between June, 2009 and November, 2011 until the order

impugned came to be passed, the Government earlier came up with

a scheme that such of the employees who are serving as MNPs may

be absorbed into a regular post of Record Clerk/Office Assistant/

Night watchman or any other equal cadre post against 50% of

regular vacancies and by an order dated 1st June, 2009

approximately 600 MNPs were absorbed on various posts and since

this has been discontinued/disbanded by successive Government

by order dated 8th November, 2011, the respondents who were in

queue and waiting for their absorption were deprived of their

legitimate right of fair consideration and no reason was assigned by

the Government while passing the order dated 8 th November, 2011

and merely because there was a change of guards, that in itself

would not be a ground to abandon the scheme which was in vogue

for a long time.

16

26. The Division Bench of the High Court took a conscious

decision to protect the rights, interests and service conditions of

such of the employees who have served for sufficient long time but

discontinued because of the policy of the rival political groups. But

the fact is that the employees became its victim and that appears to

be the reason for which the impugned order dated 8 th November,

2011 came to be passed and after they have been contesting their

rights for almost more than a decade, at least, this Court in the

interest of justice, may not interfere, in the peculiar facts and

circumstances of the case.

27. Learned counsel, in alternative, submits that if this Court is

not inclined to consider their submission, at least the employees

who have not been able to take employment so far, may be

permitted to accept their 6 months’ honorarium for the period

between 1st December, 2011 and 31st May, 2012 which comes to

principal amount of Rs.25,851/­ per MNP, at least, with a

reasonable interest, as may be considered to be appropriate, in the

facts and circumstances of the case.

17

28. We have heard learned counsel for the parties and perused the

material available on record.

29. If we look into the scheme originally introduced by the

Government by Order dated 2nd September, 1989, the object of the

scheme was to provide employment to the educated youth in rural

areas who have completed 10th standard in implementing several

programmes of the Government at the village level which require

continuous effort for successful completion. After Government has

identified such programmes, they can be entrusted to a village work

force of unemployed educated youth for better implementation. The

Government took a decision that there should be two village level

workers ­ one male and one female ­ who will be engaged in each of

the village panchayat. They will be called Makkal Nala

Paniyalargal(MNP) and be engaged on an honorarium of Rs.200/­

per month in the first instance.

30. As far as how the appointment has to be made, a mechanism

was put in place that such employees who are in the age bracket of

18 to 30 years with educational qualification of 10 th standard (and

those who are working in hill/tribal areas, their educational

18 qualification can be relaxed to 8th standard), their recruitment shall

take place through an advertisement in the local area and be

considered by a Committee for shortlisting the candidates to be

considered for appointment. The mechanism which was put in

place in the first instance, by order dated 2 nd September, 1989 has

looked into various rough weather. It reveals from the record that

as and when there was change of political scenario, the successive

political party always disbanded/cancelled the policy decision of its

earlier Government in power which had introduced a scheme for

offering employment to the educated unemployed youth.

31. This can very well be noticed from the records that the Scheme

which was introduced by the Government for providing employment

to educated unemployed youth in rural areas dated 2 nd September,

1989 came to be disbanded by the successive Government by order

dated 13th July, 1991 in consequence discontinued the service

rendered by such unemployed youth. Immediately thereafter, the

successive elected Government restored its policy by order dated

24th February, 1997 and provided employment to the educated

youth for rural development programmes in various schemes at the

19 village panchayat, be it for assisting in the maintenance of village

assets and libraries, implementation of adult literacy programme in

villages, for their social welfare and also to work for anti­liquor

campaign. Such of the youth which put in place to get themselves

involved in the scheme introduced in the village panchayat came to

be disbanded by order dated 1st June, 2001. Later, it was again

introduced by order dated 12th June, 2006 and their honorarium

stood increased at later stages and their services stood extended by

order 21st May, 2010 for the period from 1st June, 2010 to 31st May,

2012. But it appears that there was a change of guard in the

interregnum period and immediately thereafter, the policy was

disbanded by order dated 8th November, 2011 which was the

subject matter of challenge before the High Court under Article 226

of the Constitution on behalf of the respondents.

32. It has to be noticed that for rural development, major focus of

planning had been productive absorption of underemployed and

surplus labour force of the rural sector. In order to provide direct

supplementary wage­employment to the rural poor, the Central

20 Government came with a legislation, namely, Act 2005, with salient

features as follows:­

(i) The objective of the legislation is to enhance the livelihood security of the poor households in rural areas of the country by providing at least one hundred days of guaranteed wage employment to every poor household whose adult members volunteer to do unskilled manual work.

(ii) The State Government shall, in such rural areas in the State and for such period as may be notified by the Central Government, provide to every poor household guaranteed wage employment in unskilled manual work at least for a period of one hundred days in a financial year in accordance with the provisions made in the legislation.

(iii) Every State Government shall, within six months from the date of commencement of this legislation, prepare a scheme to give effect to the guarantee proposed under the legislation.

(iv) The one hundred days of employment under the legislation will be provided at the wage rate to be specified by the Central Government for the purpose of this legislation. Until such time a wage rate is specified by the Central Government for an area, the minimum wage rate fixed by the State Government under the Minimum Wages Act, 1948 for agricultural labourers shall be considered as the wage rate applicable to that area.

(v) If an eligible applicant is not provided work as per the provisions of this legislation within the prescribed time limit, it will be obligatory on the part of the State Government to pay unemployment allowance at the prescribed rate.

(vi) A Central Employment Guarantee Council at the Central level and State Employment Guarantee Councils at the State level in all States where the legislation is made applicable will be constituted for review, monitoring and effective implementation of the legislation in their respective areas.

(vii) The Standing Committee of the District Panchayat, District Programme Coordinator, Programme Officers and Gram Panchayats have been assigned specific responsibilities in

21 implementation of various provisions of the legislation at the Gram Panchayat, Block and District levels.

(viii) The Central Government shall establish a fund to be called 'National Employment Guarantee Fund' for the purposes of this legislation. Similarly, the State Governments may constitute State Employment Guarantee Funds.

(ix) Provisions for transparency and accountability, audit, establishment of grievance and redressal mechanisms and penalty of noncompliance are also envisaged.

(x) Provisions for Minimum features of Rural Employment Guarantee Scheme and conditions for guaranteed Rural Employment under a scheme and minimum entitlements of labourers have been laid.

33. Finally, the Act was introduced to provide for the

enhancement of the livelihood and security of the poor households

in rural areas of the country by providing at least one hundred days

of guaranteed wage employment in the financial year to every poor

household whose adult members volunteer to do unskilled manual

work and for matters connected therewith or incidental thereto

under the Act 2005. The State of Tamil Nadu is also included in the

Schedule appended to the Act, 2005.

34. Such applicant who is the head of the household or its other

adult members who have applied for employment under the scheme

be termed as an applicant to join in the projects for the purpose of

22 providing employment to the applicants for the work taken up

under a project as defined under Section 2(n) of the Act, 2005. The

expression ‘scheme’ has been defined under Section 2(p) which

means a scheme notified by the State Government under sub­

section (1) of Section 4.

35. Chapter II provides guarantee of employment in rural areas.

Section 3 refers to guarantee of rural employment to households,

the State Government has to provide to every household whose

adult members volunteer to do unskilled manual work not less than

one hundred days of such work in a financial year. It further

provides that every person who had done the work given to him

under the Scheme shall be entitled to receive wages at the wage rate

for each day of work on weekly basis or in any case not later than a

fortnight after the date on which such work is done.

36. Chapter III takes note of employment guarantee schemes and

unemployment allowance.

37. Section 4 provides that as for the purposes of giving effect to

the provisions of Section 3, every State has to issue a notification to

introduce a scheme for providing not less than one hundred days of

23 guaranteed employment in a financial year to every household in

the rural areas covered under the Scheme and whose adult

members, by application, volunteer to do unskilled manual work.

38. What will be the conditions for providing employment are

referred to under Section 5 of the Act, 2005. The wage rate is to be

fixed by the Central Government from time to time in terms of

Section 6. If an applicant for employment under the Scheme is not

provided such employment within fifteen days of receipt of the

application seeking employment, he shall be entitled to a daily

unemployment allowance in accordance with Section 7.

39. Chapter IV notifies implementing and monitoring authorities

at the central level by Central Employment Guarantee Council and

at the State level, by State Employment Guarantee Council as

referred to under Sections 10 and 12 of the Act, 2005.

40. After the Act, 2005 came into force, such States which are

notified in the Schedule as referred to under Section 1(3) of the Act,

2005 which includes the State of Tamil Nadu, the same was offered

to the educated unemployed youth primarily under the Act, 2005.

24

41. It has not been disputed that the scheme undertaken by the

State of Tamil Nadu under the Act, 2005 is still in force.

42. The practice adopted by the Government in the past of which a

detailed reference has been made from 1989 onwards and to be

more specific, after the introduction of Scheme for providing

employment to the educated unemployed youth to work in the

village panchayat by order dated 2nd September, 1989, it has

undergone a change at various stages and forms.

43. We cannot afford to lose democracy in our country by

permitting the political parties empowered to overrule the wisdom of

their political opponents with the use of State machinery.

44. So far as the object behind the scheme is concerned, it

appears to be very laudable and at least in the interest of poor

unemployed educated youth by providing them to serve on the

wages certified by the Government from time to time by providing

employment under the Scheme introduced by the State

Government, at least for not less than one hundred days

guaranteed in a financial year who volunteered to do unskilled

manual work. At the same time, while the policy decision of the

25 Government is always open to judicial review on the anvil of Article

14 of the Constitution and is ordinarily not to be interfered unless

that is attached with legal or factual malice of the Government,

however, in the instant case, the Division Bench of the High Court

has set aside the finding so far as the malice which was imputed by

the learned Single Judge in passing order dated 8 th November, 2011

is concerned. After going through the records, we are of the view

that the order dated 8th November, 2011 might have been passed as

a policy decision of the Government but the seriatim of facts which

have come on record at least cannot be countenanced by this

Court.

45. The question which emerges for our consideration is whether

the order dated 8th November, 2011 is untenable in the eyes of law,

such employees who were discontinued are eligible for

reinstatement and regularization of service?

46. Learned Single Judge and Division Bench in their impugned

judgments have concurred with the finding that such of the

employees who were discontinued by passing of the order dated 8 th

November, 2011 are not only entitled to reinstatement but deserve

26 to be regularised in service after creation of post. In our

considered view, what is being observed by the Division Bench of

the High Court is not legally sustainable in law.

47. There cannot be a quarrel with the proposition that the Courts

cannot direct for creations of posts. In the case of Divisional

Manager Aravali Golf Club and Another Vs. Chander Hass and

Another5, it has been held as under:­

“15. The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and the first appellate court to create the posts of tractor driver and regularise the services of the respondents against the said posts cannot be sustained and are hereby set aside.”

48. Later, in Maharashtra State Road Transport Corporation

and Another Vs. Casteribe Rajya Parivahan Karamchari

Sanghatana6, this Court held as under:­

“41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive

5 2008(1) SCC 683 6 2009(8) SCC 556

27 functions and powers with regard to the creation of posts cannot be arrogated by the courts.”

49. The respondents were not in employment of the Government

or holding a civil post and also not appointed against the cadre post

in any of the Government establishment where the service

conditions are governed/regulated by the statutory rules framed

under the proviso to Article 309 of the Constitution.

50. In fact, the respondents were engaged in a scheme and were

paid honorarium and we do find justification that as long as the

scheme continues in the State of Tamil Nadu under the mandate of

Act, 2005, at least there appears no reason to discontinue such

persons who are working under the respective schemes undertaken

by the Government in fulfilment of the object of the Act, 2005

unless the later found to be unsuitable for retention in service or

has attained the age of superannuation.

51. But as already observed, such employees are not entitled for

reinstatement and for regularization of service for the reason that if

the order passed on 8th November, 2011 is not sustainable, the

respondents and other similarly situated persons engaged could be

restored on the same terms as they were placed before passing of 28 the order dated 8th November, 2011. In other words, as their

placement was extended for two years by order dated 21 st May,

2010 w.e.f. 1st June, 2010 to 31st May, 2012 at the best, such

persons could have been allowed to continue upto 31 st May, 2012.

In the absence of any further extension been granted, at least there

was no right vested in favour of either of the person engaged to seek

further continuance under the scheme thereafter.

52. So far as the impugned direction to the State Government for

their reinstatement and regularization is concerned, in our

considered view, it is completely misplaced and not sustainable in

law.

53. The Judgment of this Court relied upon in Secretary, State

of Karnataka and Others Vs. Umadevi (3) and Others (supra) is

in reference to such of the employees who were illegally/irregularly

appointed in the establishment of the Government and their service

conditions are governed under the statutory Rules framed but they

have not gone through the process of selection as provided under

their respective rules and were allowed to continue on ad­hoc basis

for almost more than a decade. This Court deprecated such

29 practice but as one time measure permitted the Government to

regularize such employees who are working against the sanctioned

post and permitted by the government without intervention of the

Court as referred to under Para 53 of the judgment. The same is

reproduced hereunder:­

“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128] , R.N. Nanjundappa [(1972) 1 SCC 409] and B.N. Nagarajan [(1979) 4 SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above­referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one­time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”

54. At the same time, this Court further observed that in absence

of sanctioned post, the State cannot be compelled to create the post

and absorb the persons who are continuing in service of the State. 30

55. In Nihal Singh and Others(supra) on which heavy reliance

has been placed, it was a case where appointments were made by

the State Government under Section 17 of the Police Act, 1861.

Since their appointments were under the Act, 1861 and were

allowed to continue for sufficient long time, which was not

considered to be illegal or irregular appointment, this Court

considered it appropriate to observe that as they are allowed to

continue for such a long term, they deserve regularization of

service. In the instant case, the respondents were never appointed

in the establishment of the Government against a regular

sanctioned post, in the absence whereof, judgment may be of no

assistance.

56. The later judgment in Malathi Das(Retired) Now P.B.

Mahishy(supra) which has been relied upon, it was a case where

the employees were working on daily wage basis serving in different

departments which are indeed Government establishments. At one

stage, the employees approached the High Court claiming

regularization of service and the High Court of Karnataka came to

their rescue and directed the State Government to regularize service

31 of such employees who are serving on a daily wage basis in

Government departments and finally the SLP was dismissed by this

Court. Thereafter, contempt petitions were filed before the High

Court and in two phases, the employees were regularized, in the

first and second phase of filing contempt petition by the

incumbents concerned. But few of the incumbents filed contempt

petition which appears to be the third phase, they were not

considered for regularization despite the order of the High Court

being confirmed by this Court on dismissal of the special leave

petition on the premise of the judgment of this Court in Secretary,

State of Karnataka and Others Vs. Umadevi (3) and

Others(supra). This Court was of the view that once the judgment

of the High Court has been affirmed and in two phases on filing

contempt petitions, employees have been regularized, there appears

no reason to deviate and take away the claim of rest of the

employees who are covered by the judgment of the High Court, may

be the reason that there was a change in law on the subject after

passing of the judgment of this Court in Secretary, State of

32 Karnataka and Others Vs. Umadevi (3) and Others(supra) and

this is not the factual matrix in the instant case.

57. We are of the considered view that the direction of the High

Court to reinstate after creating the posts and absorb the

respondents based on their qualification is not sustainable in law

and deserves outright rejection.

58. This Court, in a recent judgment in State of Gujarat and

Others(supra) has considered the view expressed by us in paras 10

and 11 as follows:­

“10. 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 — “Project Implementation Unit”, which was created only for the purpose of rehabilitation pursuant to the earthquake for “Post­Earthquake Redevelopment Programme”. Therefore, 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.

11. Therefore, when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services. 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

33 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.”

59. The justification has been tendered that such persons who

have not been re­engaged by the State Government under its

present policy dated 7th June, 2022 are entitled for their

honorarium for the period from 1st December, 2011 to 31st May,

2012, we make it clear that such of the employees who have not

joined pursuant to the scheme introduced by Government dated 7 th

June, 2022, they are always at liberty to accept their honorarium

for the period of 6 months but as the Government has already

offered them honorarium earlier, they are not entitled to any

interest on the said principal amount. We are informed that the

total amount as per the honorarium of MNP fixed at that time

comes to Rs.25,851/­(1st December, 2011 to 31st May, 2012). If an

application is filed, the State Government may at least remit the

money into the bank account of the individual.

60. We make it clear that such persons who have joined pursuant

to the scheme introduced by the Government dated 7 th June, 2022

in fulfilment of the object of the Act, 2005 shall remain co­terminus

34 with the scheme and be allowed to continue as long as the scheme

remain in force. At the same time, such persons who have not

joined pursuant to the scheme dated 7th June, 2022, they are at

liberty to accept their payments for the intervening period of 6

months from 1st December, 2011 to 31st May, 2012 of the principal

amount of Rs.25,851/­ to the MNP. On such application being

filed, the appellants shall make over the money to such MNP

through RTGS or any other mode after due verification within three

months.

61. In our considered view, the judgment passed by the Division

Bench of the High Court for the reasons afore­stated is not

sustainable and deserves to be set aside.

62. Consequently, the appeals succeed and are allowed. The

judgment impugned dated 19th August, 2014 is hereby set aside

with the observation afore­stated. No costs.

63. Pending application(s), if any, shall stand disposed of.

……………………….J. (AJAY RASTOGI)

35 ……………………….J. (BELA M. TRIVEDI) NEW DELHI;

APRIL 11, 2023

36