Sunita Srivastava vs Union Of India & Anr.
2000 Latest Caselaw 412 Del

ORDER

A.K. Sikri, J.

1. Petitioner graduated from Delhi University and also holds diploma in Typing and Shorthand. She applied for the post of Steno-cum-Typist in response to advertisement dated 15.1.94 issued by Respondent No. 2, namely, Export Credit Guarantee Corporation of India Ltd. (hereinafter referred to as Respondent Corporation). Written test and Typing test were conducted on 8.10.94. Petitioner undertook the said tests. Thereafter she received letter dated 18.10.94 informing her to appear before the Interview Board on 11.11.94. List of successful candidates was declared by respondent No. 2 for appointment to the post of Steno-cum-typist. Name of the Petitioner, however, appeared in the waiting list at Serial No. 9 for general category candidate for appointment in Delhi region.

2. Petitioner was, however, taken in the employment of respondent-corporation w.e.f. 1.8.95 for a period of three months i.e. upto October, 1995. Since parties are at dispute about the circumstances under which the petitioner got the appointment and intimately face termination, it would be better to state the respective versions.

3. The petitioner admits that her name appeared in the waiting list. However, she has averred in the petition that as one Mr. Chandra Mohan selected against permanent post did not join the duty, petitioner was directed to join the services as Steno-cum-typist w.e.f. 1.8.95 against the existing one permanent post and in these circumstances she joined the duties against the permanent post. She, however, admits that she was given the appointment for 90 days but was given assurances that her services shall be regularised. The services of the petitioner continued even after 90 days but giving artificial break which was only on paper as by changing the name of the petitioner from Sunita to Son. In this way she worked with the respondents upto 30.7.97. Due to efficiency shown by her, Regional Office, Delhi even recommended the case of her regularisation vide letters dated 3.6.97 and 16.7.97. However, on 31.7.97 when she went to the office for their daily duty, she was not allowed to join the duties and aggrieved against this oral order of termination she personally met the respondents and thereafter submitted representations on 12.8.97, 5.9.97, 20.10.97 to recall the order of termination. Respondent-Corporation vide letter dated 16.6.97 informed the petitioner that termination order cannot be withdrawn and her services cannot be regularised. She again submitted representation dated 16.10.97 in response to which she received letter dated 28.10.97 asking her to contact Regional Office at Delhi. However, on contacting Regional Office at Delhi she was given evasive reply and she again submitted representation dated 22.1.98. In reply she received letter dated 10.2.98 asking her to submit her proof of employment which she did However, she was not taken back in the employment and instead one Sh. Sant Lal, a fresher was appointed in her Place. In these circumstances, she was constrained to file the present writ petition.

4. On the other hand as per the version of the respondents, since the petitioner was ranked 9th in the waiting list of general category candidates and as the employment had to be offered in order of ranking, the petitioner was never offered employment on the said permanent posts which had been advertised as her turn to get the appointment as per the aforesaid rank did not mature at all. However, on coming to know from Delhi Office of the respondent-corporation that there were some temporary vacancies of three months duration, she approached the concerned Branch Manager and offered to work in temporary capacity. In these circumstance, she employed on temporary basis w.e.f. 1.8.95 for a period of three months i.e. upto October, 1995. Her appointment had come to an end by October, 1995. However, etitioner in connivance with some officers of the Delhi Office of the Corporation wanted her employment to be extended beyond three months. As the Delhi Regional Office did not have any authority to extend the employment, with the help of said officers, she took fresh temporary appointment with the respondent-corporation under fictitious name for a period of three months, thus seeking to deceive and defraud the respondent-corporation. The Petitioner worked in her name and under assumed names in the following manner:

       (i)       Sunita    August 1995 to October 1995
       (ii)      Snigdha   November 1995 to January 1996
       (iii)     Sunita    February 1996 to April 1996
       (iv)      Shashi    May 1996 to July 1996
       (v)       Sunita    August 1996 to October 1996
       (vi)      Soni      November 1996 to January 1997
       (vii)     Sunita    February 1997 to April 1997
       (viii)    Soni      May 1997 to July 1997

 

5.   According to the respondent-corporation, therefore, the petitioner  is guilty of playing fraud upon the respondent-corporation in connivance  with certain officials of the Delhi Office of Respondent-corporation (which  may have  included the then Regional Manager). In the month of July, 1997,  the Regional  Manager,  who seems to have either permitted  the  petitioner  to 

continue under fictitious and false names or did notice the said action; went on leave before his retirement from service and another officer was deputed by the corporation to take charge of the Delhi Office. It is submitted that it was this officer who detected the fraud being committed by the petitioner on the corporation and immediately informed the Head Office of the Corporation and the petitioner was cautioned and warned that action will be taken against her for impersonation if she did not forthwith cease and desist from such actions. It is submitted however that no action was taken against the petitioner for her illegal and wrong acts of working under fictitious names as it would have badly affected her entire career and on humanitarian grounds. The petitioner, thereafter, on discovering that her impersonation had been revealed, stopped coming for work to the office. It is also submitted that the Corporation did not take any action against the Officer Incharge of the office during the relevant period as he was on the verge of retirement from service and it may have been difficult to prove his direct involvement in the above deception. It is submitted that as the wrong acts had been put to an end and the parties responsible had been removed from being able to continue the same the Corporation decided to treat the matter as closed. Letters dated 16.9.97, 28.11.97 and 12.8.98 referred to by the petitioner in the writ petition are not orders either terminating her service or rejecting her representations against the alleged termination as alleged. A perusal of said documents would show that by the said letters the Head Office of the corporation had merely informed the petitioner that there were no vacancies in the clerical cadre and in absence of such vacancies her request for appointment to the post of Steno typist could not be entertained. It was, however, pointed out that in case there was any vacancy at a later time she would be permitted to sit for the competitive exam for selection. Thus the said letters have no relevance to the present dispute.

6. It is also stated by the respondents that the Head Office of the corporation has not received any such alleged letters dated 3.6.97 and 16.7.97 from the Regional Office, Delhi, recommending her regularisation as alleged and no such letters were sent by the said office as the officers in the said office clearly knew that no such recommendations can be made in violation of the prescribed norms for appointment of clerical staff. It is submitted that the said letters dated 3.6.97 and 16.7.97 are nothing but mere fabrications by the petitioner for the purpose of this case. In the counter-affidavit it has been denied by the respondents that on 31.7.97 any person by the name of Sunita was working in the Delhi Office. It is stated that as the relevant period of three months of employment of the person named Soni was coming to an end on 31.7.97, the petitioner being aware of her exposure, did not attempt to obtain any further employment with the Corporation. It is submitted that in the facts and circumstances, it cannot be said that the petitioner's services were terminated by any oral order. Respondent Corporation has also denied that the Corporation has appointed any Mr. Sant Lal or any one else to the permanent vacancy after the date from which the petitioner stopped working under the name of Soni on 31.7.97.

7. I have considered the submissions of both sides and gone through the relevant records.

The claim of the petitioner that one Chandra Mohan did not join the duties and, therefore, she was appointed against permanent vacancy appears to be wrong. Had is been so she would have been given permanent employment instead of giving appointment for three months. Admittedly, there is no such letter of appointment. On the other hand admittedly she was appointed for a period of three months only and that is why she had been asking for regularisation. Moreover she has herself produced the letters of the respondent-corporation to the effect that her request for regularisation cannot be considered in the absence of any permanent vacancy. There were persons above her in the waiting list who could not get the appointment and, therefore, her claim that she was appointed against permanent vacancy is clearly false. Admittedly, petitioner was appointed for a period of three months which was expiring in October,1995. Further, even as per the petitioner's admission thereafter she worked by changing her name from Sunita to Soni. The averments have been made by respondents in the counter-affidavit wherein it is stated that petitioner conspired and managed to get the employment and worked after October,1995 under different names. The reason is obvious. Delhi Regional Office did not have authority to extend the employment beyond three months and, therefore, some persons in Delhi Regional Office allowed her to continue under fictitious names. Once this is the factual position, the petitioner cannot be entitled to any relief in this petition due to various reasons.

8. First, she managed to get the extension by working under assumed/ fictitious names and therefore, she clearly played a fraud upon the respondents. It is, of course, in connivance with the officers of Delhi Regional Office but she was not only party but beneficiary as well. Thus a person who is guilty of deceiving and defrauding the respondent-corporation and getting the appointment on that basis cannot be given the advantage of her own wrong.

9. Secondly, on the basis of written test and interview etc, she could not make her mark and cannot be appointed on regular basis as Steno-cum-typist. Her name appeared only in the waiting list and her turn for appointment did not mature. Acceding to the prayer of the petitioner to reinstate and regularise her in service would amount to giving her appointment eve when she has not been successful in getting the same on the basis of written test ant interview. This is clearly not permissible.

10. Thirdly, even for working on ad hoc basis under the assumed names for the period mentioned by her, she cannot get any advantage as Delhi Regional Office was not authorised to extend the employment. For this purpose, respondent/corporation has even produced the relevant recruitment rules. Rule-9 stipulates the authority is empowered to appoint and it mentions that in the case of Class-III, the appointing authority is General Manager. Thus any appointment by Regional Manager in Delhi Regional Office was without any authorisation and it would not confer any right upon the petitioner.

11. Fourthly, insofar as temporary appointment is concerned, it has been stated in Rule-8 that temporary appointment in no case shall be for more than six months at a time that too when general or specific directions are issued by Chairman and Managing Director in this respect from time to time. Rule 8(3) further stipulates that no person of such temporary appointment shall be entitled to absorption. It reads as under :

"No person appointed under sub-regulation (1) above shall by reason of such appointment be entitled to absorption in the service of the Corporation or claim preference for recruitment to any post".

12. It had been repeatedly emphasised by the Courts that when there are recruitment rules for appointment of personnel to various posts, the Government Authorities/Undertaking are supposed to make appointment strictly after following these rules and back door entries are not permitted.

13. Mr. Sarvesh Bisharia, learned counsel for the petitioner contended that the petitioner having worked for more than 240 days, her oral termination without following the mandatory provisions of Section 25F of the Industrial Disputes Act is void ab initio and, therefore, she was entitled to reinstatement with back wages and in support of his submissions, he cited the judgment of Apex Court in the case of Management of MCD Vs. Prem Chand Gupta & Anr. 1999 (7) Scale 526. He also contended that once petitioner had worked for more than 240 days she was entitled to regularisation and in support of this submission reliance is placed upon the judgment in the case of Secretary H.S.E.B. Vs. Suresh & Ors. etc.etc. 1999 (2) Scale 315. At the outset it may be stated that no such plea is taken in the writ petition filed by the petitioner and such a plea was orally advanced. In any case, when the petitioner has worked beyond three months unauthorisedly, without any proper permission from the competent authority at Head Office as Delhi Office had no power or authority to extend the period of temporary appointment and when such extension is the result of fraud by working under fictitious names, petitioner cannot be allowed to plead nonobservance of formalities prescribed under Section 25F of the Industrial Disputes Act, namely, issuing of notice or giving notice, pay and retrenchment compensation. Such provisions are not available for those who obtained or continued in the employment by adopting fraudulent means and completing 240 days in process. Not only this even on facts the provisions of Section 25F are not applicable inasmuch as even under assumed names the petitioner's engagement was coming to end on 31.7.97 and it is categorically stated in the counter-affidavit that when the petitioner discovered that her impersonation had been revealed, she stopped coming for work to the office and did not seek any further extension. May be she was apprehensive that action would be taken against her by the respondent corporation once this impersonation is detected. Therefore, it is not a case of termination of her services by the respondent-corporation and for this reason also provisions of Section 25F are not applicable. As far as judgment of Supreme Court in the case of Secretary, HSEB (supra) is concerned. it was a case under Contract Labour (Regulation and Abolition) Act, 1970 where on facts the Labour Court returned the findings by stating that the work was of perennial nature and the contract was sham and camouflage. This judgment has not application in the present case. On the other hand there are number of judgments of Supreme Court to the effect that merely because a person has worked on casual basis for 240 days would not entitle him/her to be regularised in job de-hors the Recruitment Rules (Ref: Delhi Development Horticulture Employees Union Vs. Delhi Admn. ; Director, Institute of Management Development. U.P. Vs. Smt. Pushpa Srivastava ; J & K Public Service Commission and Others Vs. Dr. Narender Mohan and Others .

14. It was lastly contended by the petitioner's counsel that after terminating her services, one Shri Sant Lal was taken in employment in her place and, therefore, this action of the respondent-corporation was illegal and contrary to dicta laid down by the Supreme Court in the case of State of Haryana and Others etc. etc. Vs. Piara Singh and Others etc. etc., wherein Supreme Court has held that one ad hoc daily wage employee should not be replaced by another daily wage employee. This authority also would not come to the aid of the petitioner who continued to work after initial appointment of three months fraudulently and under assumed names. Further even this contention is based on factually wrong hypothesis inasmuch as it is specifically denied by the respondent-corporation that it had not appointed any Sant Lal or anyone else after the date when the petitioner stopped working under the name of Soni on 31.7.97. During the course of arguments, Mr. Bharat Sangal, learned counsel for the respondent-corporation produced the original record to show that there was only one Sant Lal who worked as Chaprasi-cum-peon.

In view of the aforesaid discussion, this petition fails and is, accordingly, dismissed.