Municipal Corporation Of Delhi vs Gobind Ram
1983 Latest Caselaw 58 Del

JUDGMENT

S.B. Wad, J.

1. This is a second appeal against the order of Shri J.D. Kapoor, Addl. District Judge, Delhi dated 19th September, 1981. Through the said appellate order the Additional District Judge held that the respondent should be deemed to have been confirmed automatically in the post of lineman/wireman after he has completed one year service. The learned Judge further held that the Deputy Commissioner was not competent to remove the respondent and the proper authority was the Commissioner of the Corporation.

2. The respondent was appointed as a lineman/wireman in the temporary post on 9-12-1961. His services were terminated under Rule 5 of the Central Civil Services (Temporary Services) Rule 1949 by the Deputy Commissioner Shri N.N. Tandon, on 1-9-1965. The respondent filed a suit against his termination. The Trial Court held that the termination was valid. As stated above the First Appellate Court upset that order and passed the impugned order.

3. The first question is whether the respondent became a quasi permanent employee of the Corporation. It is well settled in law that the status of quasi permanency or permanency (confirmation) should be expressly conferred by the employer unless there is an express rule for automatic confirmation. The appointment order of the respondent states :

"The appointment is temporary. He can however, be considered for confirmation after atleast one year's satisfactory service provided a permanent post is available."

The appointment order nowhere states that the respondent would be automatically confirmed after the one year. What it states is that he would be entitled for consideration after one year satisfactory service. There is no substance in the respondent's contention that he had acquired the status of quasi permanent. The First appellate court had definitely erred in law in coming to a conclusion that there was automatic confirmation of the respondent. The position regarding the status of the respondent on the date of the termination of service, therefore, was that he was a temporary employee of the Corporation and his service could be terminated under Rule 5.

4. Having held that the respondent was automatically confirmed, the Appellate court has proceeded to examine whether his termination by the Deputy Commissioner was valid or not. As I have stated, the basic assumption of the appellate court was wrong. Section 95 of the Corporation Act

only deals with disciplinary actions and punishments ensuing from such a disciplinary action. In the present case, the termination of service of the respondent was under Rule 5 of the GSS (Temporary Service) Rules. It has been held by the large number of authorities that such termination is not removal by way of disciplinary action or punishment.

5. The question then agitated is that under Section 92 of the Corporation Act, it must be presumed that all appointments are made by the Commissioner. It is submitted by the respondent, who appears in person, that under Section 491 no delegation of the power of appointment can be made. The submission is misconceived. First of all the power of appointment is essentially in the realm of the executive action or the administrative action and there is no bar for delegation of such a power. Actually, in fact, such delegation was made to the Deputy Commissioner. In L.P.A. 98 of 1972 decided by this Court on 24th July, 1981 a similar question was raised in regard to Section 95. It was pointed out by this Court that in 1958 itself delegation of such a power was made to the Deputy Commissioner. Similar delegations were subsequently made and by the time the respondent's termination was considered such powers were still delegated to the Deputy Commissioner. If, therefore, the employees like the respondent could be appointed by Deputy Commissioner no objection can be taken to his termination by the Deputy Commissioner. In fact in the present case the respondent has contended that he was appointed by Administrative Officer, who is admittedly subordinate of the Deputy Commissioner. What is important in all such cases is to see as to which Authority has actually made the appointment. If the competence of such an authority is itself challenged that may go to the root of the matter and may even annul the appointment of a person. The respondent on the one hand claims that his appointment is valid although was made by the Administrative Officer (which according to his submission should be an appointment only by the Commissioner) and on the other hand claims that the removal can only be by the Commissioner. The argument is thus self defeating and is misconceived. In Rama Nand Singh v. State of Bihar, 1982 F.L.R. page 95, the Supreme Court has held that the actual authority which has appointed a person is the relevant authority for the purposes of the removal.

6. For the reasons stated above, appeal is allowed. The order of the First Appellate court is set aside. On the facts of the case I do not find it necessary to pass any order as regards cost.