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REPORTABLE

IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE  JURISDICTION

   CIVIL APPEAL NO. 9893 OF 2011         [ARISING OUT OF S.L.P. (C)  NO. 11878 OF 2010 ]     

SHREENIDHI KUMAR & OTHERS ...   APPELLANT(S)

                     Versus

UNION OF INDIA AND OTHERS ...   RESPONDENT(S)

         J U D G M E N T R.M. LODHA, J.

Leave granted.

2. On July 18, 2007, a Resolution (for short “Resolution”)  

was  issued  by  the  Personnel  and  Administrative  Reforms  

Department, Government of Bihar providing for procedure and  

guidelines for employment on contract basis.  Inter alia, it  

provided that employment on the contract basis will be done  

only against the sanctioned posts and on the basis of the  

advertisement.   It  further  provided  that  employment  on  

contract  basis  may  be  considered  under  any  scheme  for  

special proposal for short period only.  In case of delay in  

regular  employment  against  the  permanent  posts,  the  

employment on contract basis can be made for short time and  

for maximum  period of one year.  It also provided that  

maximum age limit for employment on contract basis would be

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65 years.  

3.  On June 13, 2009, an advertisement (hereinafter referred  

to  as  “advertisement”)    was  issued  in  the  newspaper  

“Hindustan” by the Department of Agriculture, Government of  

Bihar inviting applications for employment on contract basis  

for 4062 posts of Subject Matter Expert (for short ”SME”)  

under  “Krishi  Prasar  Sudridhikaran  Yojna  (for  short  

“Yojna”).   The  advertisement  provided  for  minimum  

qualification  and also the age limit - on 1.1.2008: 37  

years for unreserved; 40 years for extremely Backward and  

Backward Castes; 40 years for women (unreserved, extremely  

Back and Backward) and 42 years for SC/ST (Male and Female).  

The  other  details  like  reservation,  basis  of  selection,  

period  of  employment  etc.  were  also  given  in  the  

advertisement along with the format of the application.

4. The above advertisement was challenged by 13 persons in a  

Writ Petition (being CWJC NO. 7366 of 2009) before the High  

Court of Patna.  The Challenge was to clause (2) relating to  

age limit.  The petitioners therein alleged that the age  

limit prescribed in the advertisement   was inconsistent  

with  the  Resolution  as  the  maximum  age  limit  prescribed  

therein for employment on contract basis  was 65 years.

5. The Single Judge of the High Court, by his order dated  

July 13, 2009, while dealing with  the challenge to the age  

limit  prescribed  in  the  advertisement  directed  the

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petitioners  therein  to  approach  the  State  Government  

(Agriculture Department) with a representation to reconsider  

clause (2) of the advertisement and make it in tune with the  

Resolution.   The  Single Judge  also observed  that while  

considering the representation, the authorities would bear  

in mind that the appointment on similar posts in agriculture  

department  had  not  been  made  for  over  15  years  and  the  

petitioners therein   had  become over-age   during   those  

years   and  considering  these  aspects,  the   authorities  

should  fix  the  maximum  age  in  clause  (2)  of  the  

advertisement.

6. Consequent upon the order dated July 13, 2009 and the  

representation made by the persons who were petitioners in  

the Writ  Petition before  the High  Court, the   Director,  

Department of Agriculture, Government of Bihar (for  short  

“Director”)  reconsidered  the  whole  issue  and  held  that  

there was no question of alteration of age limit mentioned  

in  the  advertisement.    The   Director,  in  his  order,  

observed as follows:

“The  afore  stated  application  and  record  of  the  office have been perused.  In resolution memo No. -  2401 dated 18.7.07 of Personnel and Administrative  Reforms Department, the upper age limit of 65 years  for the approved posts pertaining to employment on  contract basis is against.  At present expert in  subject matter are not being employed against the  approved  post.  This  employment  is  being  done  temporarily for two years.  By this employment of  4062 specialist in subject matter has to be done as  per the scheme Krishi Prasar Sudharikaran Scheme,

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and this scheme is totally temporarily.  In this  scheme age limit for unreserved is 37 years for most  backward   and  40  years  for  backward  females  (unreserved, most backward and backward) 40 years  and for SC & ST (male and female) 42 years has bee  fixed  by  personnel  and  Administrative  Reforms  Department and the consent of the group of ministers  has  been  granted.   It  has  been  issued  vide  departmental official order No. 75 dated 6.1.1990.  As per the scheme the specialist of subject matter  have  been planned to be assigned numerous duties  such as, scheme sponsored by the centre, preparation  of list of macromode, isopomode/atma scheme, scheme  to  prepare  the  list  of  beneficiaries  in  seed  expansion  scheme,  organising  training  at  village  level,  technical  assistance  to  the  villagers,  conduction  and  supervision  of  the  work  of  seed  production  in  agricultural  areas,  constitution  of  agricultural welfare group at village level and make  arrangement for their training to collect specimen  from the agriculturist for checking the soil quality  and  send  the  same  to  the  laboratory  and  simultaneously send the examination report to the  villagers, for selection of venues for farm field  school, to arrange training during the period of  travelling  of  F.F.S.  and  to  collect  the  data  of  accounts and also to conduct other works assigned by  the department of agriculture.  Therefore, there is  no question of alteration of age limit mentioned in  Memo No. PR-13448 (Agri)9-10 Para 12”.”

7. The above order  passed  by the Director came to be  

challenged in two Writ Petitions before the High Court of  

Patna.  The Single Judge of the High Court, vide order dated  

August 13, 2009, quashed the order of  the Director and sent  

the matter back to the Agriculture Production Commissioner,  

Bihar  with  a  direction  to  him  to  pass  fresh  order  in  

consultation with the Personnel and Administrative Reforms  

Department of the State Government about the validity of  

clause (2) of the advertisement to bring it in tune with the

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Resolution.   It  is  not  necessary  to  refer  to  other  

directions given in the order dated August 13, 2009.

8. Before  the  order   was  passed  by  the  Single  Judge  on  

August 13, 2009, as noticed above, in view of the order  

passed by the Director on July 23, 2009, the processing of  

the applications received pursuant to the advertisement was  

completed and the Employment List of  SME was finalised on  

August 10, 2009.  The present appellants are some of those  

whose  names  appeared  in  that  list.   However,  these  

appellants  were  not  given  employment  since  immediately  

thereafter by the  order dated  August 13, 2009, the  High  

Court had quashed the order  passed by the Director and sent  

the matter back to the Agriculture Production Commissioner,  

Bihar  for  passing  fresh  order  as  noted  above.   The  

appellants, therefore, challenged the order of the Single  

Judge  before the Division Bench in a Letters Patent Appeal.

9. The Division Bench, after hearing the parties, dismissed  

the  appeal on  March 23,2010.  The main reason given by the  

Division  Bench  in  dismissing  the  appeal  is   that  by  

finalisation of the Employment List  dated August 10, 2009,  

no vested right has accrued in favour of the appellants. As  

regards the Resolution, the Division Bench observed that the  

Single  Judge  in  his  order  had  only  interpreted  the  

Resolution  and  directed  the  State  Government  to  act  

accordingly and  the State Government has not challenged

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that order.

10. One  more  fact  needs  to  be  noticed  here   that  

pursuant to the order of the Single Judge passed on August  

13, 2009, the State Government altered the age limit for  

employment on contract basis for 4062 posts of SME  under  

the Yojna; increased the age limit to 65 years and gave the  

employment on that basis on February 24, 2010 for a period  

of two years.

11. We  have  heard  Mr.  Nagendra  Rai,  learned  senior  

counsel  for  the  appellants  and  Mr.  A.K.  Prasad  for  

respondent  Nos. 3 and 5.

11. We shall reproduce relevant portion of  para 2 of  

the Resolution.  It reads thus:

“2. In the light of the above referred the State  Government  has  taken  the  following  decision  for  equalization of policy/guidelines for employment on  the basis of contract. (1) Employment  on  the  basis  of  contract  will  be  done  only  against  the  sanctioned  posts  and  these  kinds of employment will be done only on the basis of  advertisement. (2) These kinds of employment will be done under  any scheme for some special proposal and for short  period  only   But  in  case  of  delay  in  regular  appointment against the permanent created posts, this  kind of employment can be made for short time.  But  this kind of employment against the permanent post  will be done for maximum one year only.

x    xx    xx     xx          xx     xx       xx

(8) Maximum  age  limit  will  be  65  years  for  employment on contact.”

13. The  Resolution  provides  for  procedure  and

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guidelines for employment on contract basis.  It basically  

provides for employment in the State  on the contract basis  

in two contingencies namely; (i) in case of delay in regular  

employment against the sanctioned posts and (ii) in case of  

requirement of the employees to work for short period in  

temporary schemes.  The  Resolution, accordingly, has to be  

considered being applicable to above two situations. If the  

regular employment against sanctioned posts has been delayed  

for one reason or the other, the employment can be made on  

contract basis.  But such appointment has to be for a short  

period and in no case, exceeding one year.   Similarly, if  

there  is  requirement  of  the  employees  to  work  in  the  

temporary schemes for a short period then the employment on  

contract basis can be made.  Although, time period of such  

employment is not stated in the Resolution, but the use of  

expression “short period only” is not without significance.  

The employment period of 'two' years is  little long to  

constitute 'short period' contemplated in para 2(2) of the  

Resolution.  'Short period' referred to in para 2(2), in our  

opinion,  means  duration  of  few  days  or  few  months.   It  

cannot be few years.  The period of employment in temporary  

schemes exceeding 12 months, thus, will not be covered by  

the Resolution.  As a necessary corollary, the maximum age  

limit of 65 years provided in para 2(8) of the Resolution is  

not  available  for  employment  exceeding  one  year  in  the

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temporary schemes.  Any other view will be against all norms  

of public employment.  

14. Insofar as the advertisement for appointment of  

SME  to  4062  posts  on  contract  basis  under  the  Yojna  is  

concerned, the employment period is for maximum two years.  

The  Director  was, thus, right when he observed in his  

order that the Resolution providing for upper age limit of  

65 years was not applicable for employment on contract basis  

under the advertisement as the SMEs are not being employed  

against the approved posts and their employment  was being  

done temporarily for two years.

15. We are, therefore,  unable to uphold the order of  

the Single Judge dated August 13, 2009 and the order dated  

March 23, 2010 passed by the Division Bench.  We set-aside  

these orders.  Having held that, however, in our view, it  

would not be in the interest of justice to unsettle the  

appointments   of  SME  already  made  on  February  24,  2010  

against 4062 posts under the Yojna now since less than four  

months' contract period is left for those appointees as the  

maximum period of employment is two years. In  case  the  

posts of SME under the  Yojna are required beyond two years  

from  February  24,  2010,  we  direct  that  the  concerned  

authorities shall make fresh appointments in accordance with  

law.    

16. The appeal is disposed of accordingly.   No order

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as to costs.     

                .....................J.

                    (R.M. LODHA)

              ......................J.

                  (H.L. GOKHALE)

  NEW DELHI    NOVEMBER 17, 2011.