Harish Kumar vs Registrar, Delhi High Court And ...
1990 Latest Caselaw 136 Del

JUDGMENT

S.B. Wad, J.

(1) The petitioner, who was working as a Sweeper in the Delhi High Court, has, through this writ petition, challenged the order dated 31.3.87, terminating his service under Rule 5(1) of the C.C.S. (Temporary Service) Rules, 1965.

(2) The petitioner was appointed as a Sweeper in November 1972. His appointment was extended each time for every three months till his services were terminated on 1.12.78. He was re-appointed on 3.11.79. His services were continued each time for a period of three months till he was removed from service by the impugned order.

(3) The petitioner's submission is that although he was working in the High Court for the last 15 years, he was not confirmed even though the permanent regular posts were available. He further submits that his termination of service under Rule 5(1) of the said rules is illegal as he cannot be treated as a temporary employee. He also submits that since he was working for 15 years in the High Court his services could be terminated only on a proper enquiry, with an opportunity of being heard given to him.

(4) In the counter affidavit filed by the High Court, it is submitted that the petitioner was never confirmed by the High Court and was still only a temporary servant, who could be removed under Rule 5(1) of the said rules. Since it is termination under the said rules, no reason need be assigned for such termination. It is submitted in the counter affidavit that the staff of the High Court is governed by rules framed by the Chief Justice in exercise of powers conferred by Article 229 of the Constitution of India and there is nothing in the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972, so framed, that casts an obligation on respondent No. 2 of compulsorily confirming a temporary employee after a fixed period of continuous service. A temporary employee can only be made permanent by the appointing authority against a permanent post after making an assessment of the service record of the employee. In order to counter the allegation of the petitioner that his services were terminated because of his absence from duty without leave, it is submitted in the counter affidavit that the said fact has no relevance as the said absence was regularised by the competent Authority by granting leave to the petitioner for the said period of absence. However, at the time of the arguments, the respondents submitted a detailed chart in support of their submission that the petitioner was absenting without leave right from his initial appointment and was orally warned for the same. His services were terminated in 1978 precisely for the same reason. In reply, counsel for the petitioner submits that in every case of the absence from duty, the same had been sanctioned by the respondents. The further submission is that if the alleged absence has been treated by the respondents as unsatisfactory service or misconduct, it was necessary to hold a regular departmental proceeding even if it is assumed that the petitioner was a temporary employee. The counsel reiterates the submission that the petitioner has to be treated as a permanent employee since he has put in more than 15 years service and had in any case put in continuous service since 1979.

(5) Rule (9) of the Establishment Rules, 1972, provides that appointments to the posts in Clas. Iv, mentioned in Schedule I shall be made by the Registrar of the High Court unless the Chief Justice otherwise directs. Schedule Ii of the said Rules provides for the minimum qualifications prescribed for appointment to the posts and their mode of appointment. Sweepers and other Class Iv employees are not included in the Ii Schedule. Thus, there are no minimum qualifications prescribed for the post of Sweeper nor the mode of appointment prescribed by the Rules. In case of Class I, Class Ii and Class Iii employees, who are referred to in Schedule Ii, Rule (8) prescribes the nature of appointment. This rule prescribes that the appointment shall be initially on probation, ordinarily for a duration of one year. The expiry of the period of probation shall not result in automatic confirmation. The Rule also lays down that any appointment, other than substantive appointment, may be terminated at any time without assigning reasons.

(6) It is, thus, seen that the appointment, confirmation and removal from service is entirely within the discretion of the Registrar (unless the Chief Justice himself makes an order). It is quite strange that there are no service rules uniformly regulating the conditions of service of Sweepers (and the Class Iv Employees) in regard to appointment, seniority and confirmation. I am told by the counsel for the respondents that the appointments arc made on the recommendations of the Chief Justice and the Judges of this Court and the higher officers in the Registry. There is no standard procedure for selection. The question of appointment is, thus, left to the ad-hoc decision of the Registrar. The appointment of the petitioner is termed in the impugned order as a 'temporary appointment'. Temporary appointment with three months' extension every time is unknown to any service law. Even in industrial and labour law such short-term appointments are frowned at and are treated as an 'unfair labour practice'. In government service and in public undertakings the appointments, even of Class Iv employees, are made through the Employment Exchange. This provides for an independent channel of recruitment, based on merit and qualification. The manner of appointment and the short duration of appointment are not objective or rational and are, thus, open to the criticism of arbitrariness. Short-term appointments have resulted into strange phenomenon of a person continuing in service for 15 years only on short appointments of three months at a time without confirmation."

(7) In 1977 the then Chief Justice placed the question of confirmation of Class Iv employees before the Administrative Committee. At that time confirmation of 30 Class Iv employees was pending, In its meeting dated 8.11.77 the Administrative Committee decided that the case of confirmation of Class I V employee may be taken up after he has completed seven years of service. Since the appointments are made as officiating or temporary appointments without a probation, and are made only for three months at a time, it is difficult to understand as to when an employee can be said to have completed seven years of service. There are no rules of seniority nor any seniority list is maintained for the sweepers (and for other Class Iv employees). On inquiring from the counsel for the respondents whether any confirmation of the sweepers/Class Iv employees were made after the decision of the Administrative Committee dated 8.11.77, the counsel staled that the question of confirmation was never taken up. We have, thus, 15 sweepers who are recruited from 1977 to 1982, who although have completed seven years of service are not yet confirmed. As a matter of fact, title case of their confirmation was not even taken up once by the Administration. Even assuming that there was a break in service of the petitioner, he was appointed again in 1979 and had, thus, completed seven years fresh service in 1986, i.e. one year prior to the termination of his service. Admittedly, on the date of the termination of the service of the petitioner there were 20 permanent posts still vacant. There are no special qualifications prescribed for the appointment to the post of sweeper, except that he should bean Indian citizen and be medically fit. The appointment is also made by the Competent Authority, viz. the Registrar. Considering these facts, it cannot be said that the petitioner is a temporary employee, as is normally understood in government service where there are regular rules in regard to appointments with provision for the period of probation and confirmation regulated by the rules. Where the service rules and the appointment order provide for a period of probation, the law is that there is no automatic confirmation on the completion of the probation period. A specific order is required to be issued for that purpose. But whereas in case of the Class Iv employees of the Delhi High Court the appointment is not on any probation, it cannot be said that there is no automatic confirmation after seven years period, as prescribed by the Administrative Committee.

(8) Such short term appointments resulting into break of service and denial of other service benefits has been declared by the Supreme Court as being violative of Articles 14 & 16 of the Constitution of India. In Ratan Lal & Others v. State of Haryana, , tde Supreme Court found that the State of Haryana was appointing teachers for quite some time on ad hoc basis for short periods such as six months and renew them after a break of service. The Supreme Court held, "These ad-hoc teachers are unnecessarily subjected to an arbitrary 'hire and fire' policy. These teachers, who constitute the bulk of the educated unemployed, are compelled to accept these jobs on an ad hoc basis with miserable conditions of service. The Government appears to be exploiting the situation. This is not a sound personnel policy............ The policy of 'ad-hocism' followed by the State Government for a long period has led to breach of Article 14 and 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer." The said observations of the Supreme Court apply with equal vigour to the sorry state of affairs in regard to the Class Iv employees of the High Court. If the State Government is expected to be a model employer, so is the High Court. But it has a still higher duty. The judicial standards which are applied by the Court while exercising judicial function should not be given a go-bye while acting in administrative capacity.

(9) In Narendra Chadha v. Union of India, , certain persons were promoted in violation of the rules, but continued in such posts for more than 15 years. The Supreme Court held that such persons cannot be treated as being regularly appointed to that post and can be reverted. But in a case where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation, it would be certainly unjust to hold that they have no sort of a claim to such post and could be reverted unceremoniously or treated as persons not belonging to the service, particularly where the Government is endowed with the power to relax the rules to avoid unjust results. Incase of sweepers (and other Class Iv employees) of this Court, who are working for long periods of more than 10 years, it would be unjust to hold that they have no claim to such posts or could be thrown out under Rule 5(1) of the C.C.S. (Temporary Service) Rules, 1965.

(10) The petitioner was appointed in 1972 and his services were terminated in 1978, but he was re-appointed in 1979. In the light of the practice of appointing employees for three months at a time, without support of any statutory rules, absence of any rational method of selection and termination of service and absence of any seniority list maintained for the Class Iv employees for the purposes of promotion, the normal concept of break in service is completely out of place and the employees like petitioner cannot be deprived of the benefit of long service like six years prior to 1978. As the Supreme Court has observed, power of relaxation of rules is available only to get over the unjust results and I am sure no specific direction would be necessary to be given to the respondents for correcting the wrong done.

(11) From the discussion above, it is clear that the petitioner cannot be treated merely as a temporary employee and invoking rule 5(1) of the C.C.S. (Temporary Service) Rules, 1965, as also the consequent termination of service is illegal. As a matter of law, the petitioner was and is entitled to be confirmed against the permanent post available.

(12) In the counter-affidavit the respondents have tried to describe the termination of the petitioner as a discharge simplicitor. But, when the persons subsequently appointed as sweepers are still continuing in the service, the termination of the services of the petitioner cannot be described as discharge simplicitor. In case of discharge simplicitor the rule is that the last employee goes first.

(13) In the counter affidavit it is asserted that the petitioner used to frequently absent himself from service without permission. As stated above, a detailed chart was presented at the time of arguments. If the respondents are serious about this assertion, it would mean that the petitioner is being removed for the misconduct of absenting himself without leave or permission. In such a case, a regular departmental proceeding will have to be initiated against the petitioner with full right of hearing, as in the case of major penalty. It would not make much of a difference if the petitioner is a permanent or a temporary employee if any misconduct is alleged against him.

(14) For the reasons stated above the writ petition is allowed. The termination order dated 31.3.87 is quashed. The petitioner shall be entitled to all the consequential benefits.

(15) This writ petition serves almost like a "public interest litigation" to bring to light certain disturbing aspects of the High Court's administration, particularly in regard to Class Iv employees. There are over 220 employees falling under this category, totalling about l/3rd of the High Court's administrative strength. There are 24 permanent posts of sweepers (frash) and only four are confirmed. There are at least 15 sweepers (frash) who have completed seven years' service who should have been made permanent, but are still temporary. Similarly, there are 22 permanent posts of sweepers (who are not called Trash') and six temporary posts. As against this only six are confirmed, although there are still 16 permanent vacancies. Sweepers arc appointed only temporarily although 13 of them have completed seven years of service. Ten of them have been appointed on ad-hoc basis although some of those posts are permanent and some are temporary. There is one permanent post of Gestetner operator and one temporary post. Although the incumbent has completed more than seven years service, he is still kept as temporary and the other person is appointed on ad-hoc basis. There are 11 permanent posts of 'Daftari'. Only one of them is confirmed. Six of them have already completed seven years service, but are still kept on temporary basis. There are 27 posts of 'Ushers'. Only 16 are confirmed. There are six of them who have completed seven years service but are still kept temporary. Against three posts ad-hoc appointments are made. Out of 105 permanent posts of Peons' only 41 are confirmed. There are about 40 peons who have completed seven years service, but are still working in temporary capacity. Although permanent posts are available about 20 peons are working on ad-hoc basis. Although a permanent post is available and one 'Mali' has completed seven years' service, he is still kept temporary. So also is the 'Chowkidaar'.

(16) During the course of the arguments the respondents also submitted that there are 47 peons working on 'daily wages'. So also, two Class Iii employees are working on daily wages. Their appointments and removal are also done on ad-hoc basis, without any rules. There is no sanction from the Delhi Administration for making any daily wage appointments. Naturally the funds meant for other purposes are diverted for payment of salary to them. According to the law laid down by the Supreme Court, any person working in a position for more than 240 days has to bs treated as a person regularly appointed. This practise of appointing daily wagers is bound to create number of administrative problems.

(17) This is a most depressing state of affairs. In 1977 the Administrative Committee had recommended that the confirmations should be done after seven years' service. Although it is not clear as to what is the basis for laying down seven years service as the minimum period for confirmation, even the said administrative direction has not be implemented. I, therefore, direct the Registrar, respondent No. 1, to pass immediate orders confirming the petitioner and all other Class Iv employees who have completed seven years service. Since their services have been continued for seven years and more, it must be assumed that their services are satisfactory.

(18) As stated above, the conditions of service of over 200 employees of the High Court are governed not by any statutory rules, but by sheer administrative discretion. There are no rules regarding appointment, confirmation, seniority or promotion. The result is that ad-hocism is writ large in this regard. There are complaints of favoritism also. The grievance is not only at the level of Class Iv employees. There is a grievance of the Judges of this Court that only the recommendations of the Chief Justice and influential judges are respected by the Registrar. This state of affairs is not only harmful to the administration of this Court, but to the judicial committee between the judges of this Court. I would suggest the following steps for putting the house in order :- (I)Statutory rules should be framed for appointment (including qualification and mode of appointment), confirmation, seniority and promotion of Class Iv employees; (ii) The power of appointment should be taken away from the Registrar. Appointments, confirmations, etc. should be made by the Chief Justice on the recommendation of three judges of this Court; (iii) The recruitment should be done through the Employment Exchange; and (iv) Since it is a very important matter, generally affecting the administration of this Court, it may be placed before the Administrative Committee, as was done in 1977 by the then Chief Justice. If need be, the Full Court may also be summoned for this purpose.

(19) The writ petition is allowed with costs. Rule is made absolute Counsel fee Rs. 1,000.00.