# THE GOVERNMENT OF TAMIL NADU AND ANR. ETC. ETC v. TAMIL NADU MAKKAL NALA PANIYALARGAL AND ORS

- **Citation:** [2023] 3 S.C.R. 390
- **Court:** Supreme Court of India
- **Decided:** 2023-04-11
- **Case number:** Civil Appeal Nos. 1056310569 of 2017
- **Bench:** Ajay Rastogi, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-government-of-tamil-nadu-and-anr-etc-etc-v-tamil-nadu-makkal-nala-36890
- **Pages:** 23

## Headnote

Service Law - Direction for creations of posts -
Impermissibility of - Held: Courts cannot direct for creations of
posts - In the present case, the respondents were not in employment
of the Government or holding a civil post or 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 - 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 - Therefore, the
impugned direction of the High Court to reinstate after creating the
posts and absorb the respondents based on their qualification is
not sustainable in law - Impugned judgment set aside - Mahatma
Gandhi National Rural Employment Guarantee Act, 2005 -
Constitution of India - Article 309.
Allowing the appeals, the Court
HELD: 1.1 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 8th November, 2011 are not only entitled to reinstatement
but deserve to be regularised in service after creation of post.
What is being observed by the Division Bench of the High Court
is not legally sustainable in law. 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. In fact, the respondents were
engaged in a scheme and were paid honorarium and this Court
does not find justification that as long as the scheme continues in
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the State of Tamil Nadu under the mandate of Mahatma Gandhi
National Rural Employment Guarantee 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. [Paras 46, 49 and 50][406-F; 407-E-G]
1.2 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 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. 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. 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. [Paras
51, 54 and 57][408-A-C; 409-D; 410-D]
1.3 The justification has been tendered that such persons
who have not been re-engaged 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, it is made clear that such of the employees who have not
joined pursuant to the scheme introduced by Government dated
7th 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. This Court is
informed that the total amount as per the hono

## Text

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[2023] 3 S.C.R. 390
390
THE GOVERNMENT OF TAMIL NADU AND ANR. ETC. ETC.
v.
TAMIL NADU MAKKAL NALA PANIYALARGAL AND ORS.
ETC. ETC.
(Civil Appeal No(s). 10563-10569 of 2017)
APRIL 11, 2023
[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
Service Law - Direction for creations of posts -
Impermissibility of - Held: Courts cannot direct for creations of
posts - In the present case, the respondents were not in employment
of the Government or holding a civil post or 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 - 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 - Therefore, the
impugned direction of the High Court to reinstate after creating the
posts and absorb the respondents based on their qualification is
not sustainable in law - Impugned judgment set aside - Mahatma
Gandhi National Rural Employment Guarantee Act, 2005 -
Constitution of India - Article 309.
Allowing the appeals, the Court
HELD: 1.1 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 8th November, 2011 are not only entitled to reinstatement
but deserve to be regularised in service after creation of post.
What is being observed by the Division Bench of the High Court
is not legally sustainable in law. 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. In fact, the respondents were
engaged in a scheme and were paid honorarium and this Court
does not find justification that as long as the scheme continues in
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the State of Tamil Nadu under the mandate of Mahatma Gandhi
National Rural Employment Guarantee 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. [Paras 46, 49 and 50][406-F; 407-E-G]
1.2 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 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. 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. 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. [Paras
51, 54 and 57][408-A-C; 409-D; 410-D]
1.3 The justification has been tendered that such persons
who have not been re-engaged 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, it is made clear that such of the employees who have not
joined pursuant to the scheme introduced by Government dated
7th 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. This Court is
informed that the total amount as per the honorarium of MNP
(Makkal Nala Paniyalargal/Village Level Workers) fixed at that
THE GOVERNMENT OF TAMIL NADU v. TAMIL NADU
MAKKAL NALA PANIYALARGAL
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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. It is
made clear that such persons who have joined pursuant to the
scheme introduced by the Government dated 7th June, 2022 in
fulfilment of the object of the Act, 2005 shall remain co-terminous
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. The judgment impugned is set aside. [Paras 59,
60 and 62][411-C-G; 412-A]
Malathi Das (Retired) now P.B. Mahishy and Others
Vs. Suresh and Others (2014) 13 SCC 249 : [2014] 3
SCR 637 - distinguished.
Nihal Singh and Others Vs. State of Punjab and Others
(2013) 14 SCC 65 : [2013] 11 SCR 1 - held
inapplicable.
Divisional Manager Aravali Golf Club and Another Vs.
Chander Hass and Another (2008) 1 SCC 683 : [2007]
12 SCR 1084; Maharashtra State Road Transport
Corporation and Another Vs. Casteribe Rajya
Parivahan Karamchari Sanghatana (2009) 8 SCC 556
: [2009] 13 SCR 937 - relied on.
State of Gujarat and Others Vs. R.J. Pathan and Others
(2022) 5 SCC 394; Secretary, State of Karnataka and
Others Vs. Umadevi(3) and Others (2006) 4 SCC 1 :
[2006] 3 SCR 953 - referred to.
Case Law Reference
[2006] 3 SCR 953
referred to
Para 24
[2013] 11 SCR 1
held inapplicable
Para 24
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[2014] 3 SCR 637
distinguished
Para 24
[2007] 12 SCR 1084
relied on
Para 47
[2009] 13 SCR 937
relied on
Para 48
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1056310569 of 2017.
From the Judgment and Order dated 19.08.2014 of the High Court
of Madras in WP Nos. 18163 of 2013, 18048 of 2014, WA No. 696 of
2012, WP No.11937 of 2012, WA No.697 of 2012 and WP Nos. 11936
and 22969 of 2012.
With
Civil Appeal No.10570 of 2017.
Jaideep Gupta, V. Krishnamoorthy, Sr. Advs., D. Kumanan, Shaikh
F. Kalia, Ms. Divya Singh, Vinodh Kanna B., Advs. for the Appellants.
P Wilson, Sr. Adv., Sureshan P., Deepak Joshi, Bhupender Singh,
Joseph Sebastian, R. Nedumaran, Apoorv Malhotra, Ms. Sapna Pillai,
Ms. Aishwarya Mishra, Ms. Arunima Dwivedi, P. C. Chandrashekhar,
Ms. Pinky Pawar, Aakas Pathak, Naresh Kumar, S. Nandakumar, Ms.
Deepika Nandakumar, Anand Murthi Rao, Rajeev Gupta, Mohd.
Nizamuddin Pasha, Shivendra Pandey, Lzafeer Ahmad, A. Raja Rajan,
Subham Kothari, Prashant Padmanabhan, Padam Priya, Akhileshwar
Jha, Ms. Kajal Kumari, Raja Sanoor P., K. S. Selvan, K. Paari Vendhan,
Ms. Haripriya Padmanabhan, Raghunatha Sethupathy B, Ms. Priya R,
Ms. Ishita Chowdhury, Ms. Pariksha, S. Sabari Bala Pandian, Avinash
Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
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 19th August, 2014
affirmingorder of the learned Single Judge dated 23rd 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 byany other name but shall
accommodate the persons who were on the rolls of MNP on the date of
THE GOVERNMENT OF TAMIL NADU v. TAMIL NADU
MAKKAL NALA PANIYALARGAL
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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 oris ineligible, the
State Government shall pay last drawn salary for the period from
1stDecember, 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 theRural
Development Department in the Budget speech of 1989-1990 providing
employment to the educated youth in rural areas who have completed
10thstandard 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 andto 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 13th July, 1991 on the 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 2nd
September, 1989, their services stood terminated/discontinued.
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5. Again, by GO of the Rural Development and Panchayat Raj
Department (hereinafter referred to as "Department") dated 24th
February, 1997, the scheme was restored by the Government in the
Budget for the year 1996-1997 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 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
thehonorarium 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 re-engaged
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 12th June,
2006, the Department vide its order dated 5th 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 1stSeptember,
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 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 Departmentdirected
the MNPsto continue for two years from 1st 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
THE GOVERNMENT OF TAMIL NADU v. TAMIL NADU
MAKKAL NALA PANIYALARGAL [AJAY RASTOGI, J.]
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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 8th 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 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 23rd 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 19th 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 2014-2015
Budget and accommodate the MNP, according to the
qualification possessed by each candidate, without reference
to age in their native Taluk or Revenue District.
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(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 malafide 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 7th 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 or such of the
unemployed youth on priority who had discontinued as MNP pursuant to
order passed by the Government dated 8th 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 8th November, 2011 and
who otherwise fulfil the conditions of eligibility have joined under the
scheme introduced by the Government dated 7th 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
THE GOVERNMENT OF TAMIL NADU v. TAMIL NADU
MAKKAL NALA PANIYALARGAL [AJAY RASTOGI, J.]
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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.
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 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. 1st December, 2011 to 31st May, 2012, each of the employee
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who discontinued and is not interested in seeking re-engagement 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 theminiscule 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 7th 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.
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 successive Government has
disbanded the policy introduced by its predecessors which appears to be
only for political reasons.
THE GOVERNMENT OF TAMIL NADU v. TAMIL NADU
MAKKAL NALA PANIYALARGAL [AJAY RASTOGI, J.]
1 2022(5) SCC 394
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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
hadworked 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(3) and Others2 which has been
later followed by this Court in Nihal Singh and Others Vs. State of
Punjaband 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 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
2 2006(4) SCC 1
3 2013(14) SCC 65
4 2014(13) SCC 249
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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 8th 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.
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 8th 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.
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
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educated youth for better implementation. The Government took a decision
that there should be two village level workers-one male and one femalewho 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 10th standard (and those
who are working in hill/tribal areas, their educational 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
2nd 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
Schemewhich was introduced by the Government for providing
employment to educated unemployed youth in rural areas dated 2nd
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 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 anti-liquor 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
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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
wage-employment to the rural poor, the Central 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
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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
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 thefinancial 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 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
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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
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.
41. It has not been disputed that the scheme undertaken by the
State of Tamil Nadu under the Act, 2005 isstill 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.
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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
Government is always open to judicial reviewon 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 8th November, 2011 is concerned. After
going through the records, weare 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 recordat
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 8th November,
2011 are not only entitled to reinstatement but deserve 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:-
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"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.