Can employees appointed for fixed period in temporary unit be absorbed/regularised by creating supernumerary posts? SC answers

Supreme Court: In the case where the Gujarat High Court had ordered the absorption of persons employed in a temporary unit, by creating supernumerary posts, the bench of MR Shah* and BV Nagarathna, JJ has held that no such direction can be issued by the High Court 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.

In the present case, 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 “Post-Earthquake 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.

The Court, hence, observed that 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, by creating supernumerary posts. It was held that such a direction is wholly without jurisdiction.

What has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. In such circumstances as well, the Court noticed that the High Court totally missed out on the aspect that the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted.

Not only this but though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society, which the respondents did not accept.

“No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required.”

Considering all the aforementioned aspects, the Court set aside the decision of the High Court.

[State of Gujarat v. RJ Pathan, CIVIL APPEAL NO. 1951 OF 2022, decided on 24.03.2022]


*Judgment by: Justice MR Shah


Counsels

For State: Advocate Deepanwita Priyanka

For Respondents: Advocate Kabir Hathi

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