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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1601  OF 2020 (ARISING OUT OF SLP (C) NO. 27926 OF 2016)

VINOD RAVJIBHAI RAJPUT                       …...Appellant

versus

STATE OF GUJARAT & ORS.                     .…Respondents

J U D G M E N T

Indira Banerjee, J.

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 14 th

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 Bhuj

Museum  on  14th March  1995.  His  name  had  been  forwarded  for

consideration by the concerned Employment Exchange.

4. On  25th July,2002,  the  Respondent  No.2  passed  an  order

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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

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.

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.   

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 7th July

2004,  restraining  the  Respondent  Authorities  from  terminating  the

services of the Appellant, pursuant to the notice dated 1st July 2004.

This interim 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 7th

July  2004,  the  Respondent  Authorities  passed  an  order  dated  10th

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August  2004,  reverting  the  Appellant  to  the  position  of  a  part-time

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.  

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 concerned,  given due consideration.    

11. Pursuant  to  the  aforesaid  order  dated  17th 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

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 4th Standard Pass, and the

Appellant had the aforesaid qualification.

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13. In any case, while continuing to work as part-time employee, 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.

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

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

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 completed ten years of  service,  this  was on the strength of  the

interim order passed by the High Court.

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17. The Appellant filed a writ petition being Special Civil Application

No.16840 of 2012 in the High Court, challenging the order dated 18 th

December  2012  terminating  his  services.  The  learned  Single  Judge

refused to entertain the petition, observing that the appropriate remedy

of  the  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 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.

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  14th

October 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.

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5108 of 2014  questioning the action of the Respondent Authorities  in

not granting  the Appellant the benefit of continuity of service from 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  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 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 quashed and set aside.  The appeal is allowed. As the

appeal 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

2013 directing the Respondents to reinstate him, is sustainable in law.

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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.

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-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”

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:-

“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

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(iii) by deputation.

3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall:-

(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;

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 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 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  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

employees needed to fulfill the following conditions:

(i) On  10th 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;

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(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.;  

(iii) At the time of temporary appointment, the employee should 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.

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

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 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 consequential

benefits  except  back  wages  for  the  period  from  18.12.2012  to

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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  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  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

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 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;

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(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 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.   

(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 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 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  Appellant  had  not  worked  from  18th

December 2012 till the date of the judgment of the Division Bench.

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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 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 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.

.................................J                [INDIRA BANERJEE]

.................................J                [A.S. BOPANNA]

FEBRUARY 14, 2020; NEW DELHI.