VINOD RAVJIBHAI RAJPUTversusSTATE OF GUJARAT & ORS.

664                      [2020]REPORTS
               SUPREME COURT    4 S.C.R. 664                  [2020] 4 S.C.R.


A                        VINOD RAVJIBHAI RAJPUT
                                         v.
                         STATE OF GUJARAT & ORS.
                          (Civil Appeal No. 1601 of 2020)
B                             FEBRUARY 14, 2020
             [INDIRA BANERJEE AND A. S. BOPANNA, JJ.]
              Service Law: Fresh appointment – Appellant was appointed
      part time Gallery Attendant in 1995 and in 2002 was appointed as
      a full time Gallery Attendant against a sanctioned post – He served
C
      as a full time Gallery Attendant for almost 2 years after which his
      services were abruptly termination on 1.7.2004 on the ground that
      his appointment as a full time Gallery Attendant was against the
      policy of the State Government of not making any fresh recruitment
      due to financial constraints – Appellant filed writ petition in High
D     Court – Single judge passed interim order restraining respondent
      authorities from terminating the services of the appellant subject to
      result of pending writ petition and clarified that the appellant could
      if necessary be reverted as a part time employee – Pursuant thereto,
      respondent authorities reverted the appellant to the position of part
      time employee – Appellant made representations and thereafter
E
      aggrieved by inaction of concerned authorities to act on his
      representations, filed writ petition which were disposed of by
      directing the appellant to make representation to the concerned
      authorities and directing authorities to decide his representation –
      On 18.12.2012, his services were terminated on the ground that it
F     was impermissible to regularise him to the post of Gallery Attendant
      as he had not fulfilled certain conditions prescribed in Government
      Resolution dtd. 1.5.2007 – Appellant filed writ petition which was
      dismissed observing that the appropriate remedy of appellant was
      to initiate proceedings in accordance with 1947 Act – Division Bench
      allowed LPA no.635 of 2013 filed by appellant and directed
G
      respondents to reinstate the appellant to the post of full time attendant
      – However since appellant had not worked since 18.12.2012, he
      was not granted back wages – Thereafter, he was duly appointed
      and he resumed his duties on 14.12.2013 – Appellant filed writ
      petition questioning the action of authorities in not granting the
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                                        664
 VINOD RAVJIBHAI RAJPUT v. STATE OF GUJARAT & ORS.                       665


appellant the benefit of continuty of service from 25.07.2002 – Single   A
judge allowed the writ petition holding that reinstatement includes
continuity of service – LPA – Division Bench set aside order of
single judge – In the instant appeal, the question for consideration
was whether the action of the Respondents in granting fresh
appointment to the Appellant with effect from 14.10.2013, in violation
                                                                         B
of the judgment dated 22.08.2013 of the Division Bench in LPA No.
635 of 2013 directing the Respondents to reinstate him, is sustainable
in law – Held: When the earlier Division bench clearly directed
reinstatement of the Appellant, but without back wages and the said
judgment has assumed finality and is binding on the Respondents,
it was not open to the concerned authorities to give fresh               C
appointment to the Appellant with effect from 14.10.2013 – 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 – Appellant shall,
                                                                         D
however, be entitled to differential salary, if any, between the post
of full-time Gallery Attendant and part-time Gallery Attendant from
25.07.2002 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 LPA No. 635 of 2013 – Industrial Disputes
Act, 1947.                                                               E
      Allowing the appeal, the Court
       HELD: 1. By the judgment and order of 22nd August 2013
in Letters Patent Appeal No. 635 of 2013, the earlier Division
bench had clearly directed reinstatement of the Appellant, but
without back wages. The said judgment and order has assumed              F
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 14th October 2013. The 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         G
consequential benefits, without clarifying that the reinstatement
would be with consequential benefits except back wages for the
period from 18.12.2012 to 22.08.2013 when the Appellant had
not worked. The Division Bench had decided Letters Patent
No.635 of 2016, after considering the Government Resolution
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666           SUPREME COURT REPORTS                      [2020] 4 S.C.R.


A     dated 1st 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.
      The judgment and order in Uma Devi or the resolution dated 1st
      May 2007 adopted pursuant to the said judgment and order cannot
      be retrospectively applied to the Appellant, who had duly been
B
      appointed full-time Gallery Attendant way back in 2002. The Rules
      framed in 2005 cannot also have retrospective operation. [Paras
      28-30][673-B-H; C-H; 674-A]
            2. In Letters Patent Appeal No. 635 of 2013, the Division
      Bench held that the view taken by the Respondent Authorities
C     was unreasonable for reasons :- (i) It was not in dispute that the
      appellant was appointed as a part-time Gallery Attendant on 14th
      March, 1995; (ii) at that time post of full-time Gallery Attendant
      was vacant; (iii) the name of the appellant had been forwarded by
      the Employment Exchange and he had been interviewed; (iv)
D     the appellant held a certificate of the Museum certifying his
      sincerity and honesty as Gallery Attendant; (v) on 25th 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. (vi) The order of
      termination dated 1st July, 2004 was issued after permitting the
E     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 Single Judge had passed an
F     interim order on being prima facie satisfied of the merits of the
      case of the appellant. [Para 31][674-A-F]
            3. 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
G     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 judgment and order of the Single Bench
      dated 2nd April 2013 and directed the Respondent Authorities to

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 VINOD RAVJIBHAI RAJPUT v. STATE OF GUJARAT & ORS.                          667


reinstate the Appellant to the post of full-time Gallery Attendant          A
of Bhuj Museum forthwith, but without back wages, since the
Appellant had not worked from 18th December 2012 till the date
of the judgment of the Division Bench. 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
                                                                            B
without back wages for the period between 18.12.2012 to
22.08.2013, when the Appellant did not work. [Paras 32-33]
[674-E-H; 675-A]
      Secretary, State of Karnataka & Ors. v. Umadevi &
      Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 – referred
      to.                                                                   C

                     Case Law Reference
[2006] 3 SCR 953                referred to               Para 29
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1601
of 2020.                                                                    D
      From the Judgment and Order dated 24.06.2016 of the High Court
of Gujarat at Ahmedabad in LPA No. 195 of 2016 in Special Civil
Application No. 5108 of 2014.
      Bhargav Hasurhar, Anshul Narayan, Prem Prakash, Advs. for
                                                                            E
the Appellant.
       Aniruddha P. Mayee, A. Rajarajan, Ms. Hemantika Wahi, Advs.
for the Respondents.
      The Judgment of the Court was delivered by
      INDIRA BANERJEE, J.                                                   F

      1. Leave granted.
       2. This appeal is against a judgment and order dated 24th June
2016 passed by a Division Bench of the Gujarat High Court allowing
Letters Patent Appeal No.195 of 2016 and setting aside an order dated       G
14th 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
                                                                            H
Bhuj Museum on 14th March 1995. His name had been forwarded for
668             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A     consideration by the concerned Employment Exchange.
             4. On 25 th July,2002, the Respondent No.2 passed an order
      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
B     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
      terminated by an order dated 1st July 2004, passed by the Respondent
      No.3.
C            6. It appears that the order dated 1st 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.
D            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,
      whereupon a learned Single Judge passed an interim order dated 7 th July
      2004, restraining the Respondent Authorities from terminating the services
      of the Appellant, pursuant to the notice dated 1st July 2004. This interim
E     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.
           8. Pursuant to the interim order of the learned Single Judge dated
      7 July 2004, the Respondent Authorities passed an order dated 10th
       th

      August 2004, reverting the Appellant to the position of a part-time
F     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 10th August 2004 whereby the Appellant had been reverted from
      the position of ad-hoc full-time employee to that of part-time employee.
G            10. By an order dated 17th March 2008, the learned Single Judge
      disposed of the aforesaid application, without interfering with the impugned
      order dated 10th August 2004, holding that the order did not flout the
      interim order dated 7th 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
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 VINOD RAVJIBHAI RAJPUT v. STATE OF GUJARAT & ORS.                               669
               [INDIRA BANERJEE, J.]

concerned, given due consideration.                                              A
                                                         th
       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 cleared his
Secondary School Certificate (SSC)/10th standard examination.
       12. The Appellant argued that, at the time of issuance of the order       B
dated 25th July 2002 appointing the Appellant as full-time Gallery
Attendant, the requisite educational qualification for appointment to the
post of a full-time Gallery Attendant was only 4 th Standard Pass, and the
Appellant had the aforesaid qualification.
      13. In any case, while continuing to work as part-time employee,           C
the Appellant successfully cleared the SSC examination. Thereafter, he
made two representations dated 30th December 2010 and 22nd 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.                                                                       D
       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             E
authorities. The concerned authorities were directed to decide the
representation within a period of four months.
       15. Thereafter, by an order dated 18th 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          F
not fulfilled the requisite conditions as prescribed in the Government
Resolution issued by the Finance Department on 1st May 2007.
      16. One of the conditions, which according to the Respondent
Authorities, the Appellant had not fulfilled, was that he had not completed
ten years of service as on 10th February 2006, and even if he had
                                                                                 G
completed ten years of service, this was on the strength of the interim
order passed by the High Court.
       17. The Appellant filed a writ petition being Special Civil Application
No.16840 of 2012 in the High Court, challenging the order dated 18th
December 2012 terminating his services. The learned Single Judge refused
to entertain the petition, observing that the appropriate remedy of the          H
670            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


A     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
B     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, since the
      Appellant had not worked from 18th December 2012 till the date of the
      judgment and order, the Division Bench refrained from passing orders
      for back wages.
C
            19. Thereafter, an office order dated 14th 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
      Office Order noted that the Appellant resumed his duties on 14 th October
D     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. 5108 of 2014 questioning the action of the Respondent Authorities
      in not granting the Appellant the benefit of continuity of service from
E     25th July 2002. The said writ petition was allowed by the Single Bench,
      by an order dated 14th 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
F           for the benefits flowing from the continuity of service.”
            21. Being aggrieved by the said judgment and order dated 14th
      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
G     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
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 VINOD RAVJIBHAI RAJPUT v. STATE OF GUJARAT & ORS.                             671
               [INDIRA BANERJEE, J.]

      quashed and set aside. The appeal is allowed. As the appeal              A
      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
from 14th October 2013, in violation of the judgment and order dated
22.08.2013 of the Division Bench in Letters Patent Appeal No. 635 of           B
2013 directing the Respondents to reinstate him, is sustainable in law.
      23. May be, as argued by learned Counsel on behalf of the
Respondent Authorities, the order of appointment i.e. 14th October 2013
does not bear any reference to the judgment and order of the Division
Bench, dated 22nd August 2013 in Letters Patent Appeal No.635 of 2013.         C
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-           D
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”
                                                                               E
      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:-
                                                                               F
      “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                                                     G
      (iii) by deputation.
      3. To be eligible for appointment by direct selection to the
      post mentioned in rule 2, a candidate shall:-

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672            SUPREME COURT REPORTS                        [2020] 4 S.C.R.


A           (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;
B
            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
C           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
D           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
E           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
      in a Government Resolution dated 1st May 2007. For regularization, the
F     employees needed to fulfill the following conditions:
            (i) On 10 th 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;
G           (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.;
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 VINOD RAVJIBHAI RAJPUT v. STATE OF GUJARAT & ORS.                          673
               [INDIRA BANERJEE, J.]

      (iii) At the time of temporary appointment, the employee should       A
      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.                                                B
       27. The Respondent Authorities have been contending that the
Appellant had not fulfilled condition No.(i) of the Government Resolution
dated 1st May 2007, as he had not completed ten years of service as a
temporary employee on 10th February 2006, but put in nine years and
four months of service. His continuance thereafter, was on the strength     C
of the order passed by the High Court.
       28. By the judgment and order of 22nd 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       D
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 14th 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           E
consequential benefits except back wages for the period from 18.12.2012
to 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      F
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 Government
Resolution dated 1st May 2007 of the Finance Department, which had
been issued in the wake of the directions of the Supreme Court in the       G
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
dated 1st May 2007 adopted pursuant to the said judgment and order
cannot be retrospectively applied to the Appellant, who had duly been
                                                                            H
674            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


A     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
B     for the following reasons:-
             (i) It was not in dispute that the appellant was appointed as a
      part-time Gallery Attendant on 14th March, 1995;
            (ii) at that time post of full-time Gallery Attendant was vacant;

C          (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;
             (v) on 25th July, 2002, the appellant had been appointed as a
D     full-time Gallery Attendant with the prior permission and sanction
      of the Director, Sangrahalaya Department, State of Gujarat.
            (vi) The order of termination dated 1st July, 2004 was issued
      after permitting the appellant to work as full-time regular Gallery
      Attendant for almost a period of two years.
E
            (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
F     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
G     service as a Gallery Attendant, Bhuj Museum, the Division Bench had
      allowed the appeal of the Appellant, set aside the judgment and order of
      the Single Bench dated 2nd April 2013 and directed the Respondent
      Authorities to reinstate the Appellant to the post of full-time Gallery
      Attendant of Bhuj Museum forthwith, but without back wages, since the
H     Appellant had not worked from 18th December 2012 till the date of the
 VINOD RAVJIBHAI RAJPUT v. STATE OF GUJARAT & ORS.                              675
               [INDIRA BANERJEE, J.]

judgment of the Division Bench.                                                 A
       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      B
any, between the post of full-time Gallery Attendant and part-time Gallery
Attendant from 25th 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         C
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, that
is, 22nd August 2013.
                                                                                D

Devika Gujral                                                 Appeal allowed.




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