Central Tibetan Schools ... vs Vinod Kumar
2010 Latest Caselaw 2259 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P. (C.) No. 2834/2010

%                            Date of Decision: 28.04.2010

Central Tibetan Schools Administration                  .... Petitioner
                     Through Mr. Anil Srivastav, Advocate.

                                       Versus

Vinod Kumar                                                    .... Respondent
          Through                      Mr. N.L. Bareja, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                    YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                          NO
3.     Whether the judgment should be reported in                      NO
       the Digest?



ANIL KUMAR, J.

*

The petitioner, Central Tibetan Schools Administration has

challenged the order dated 5th November, 2009 passed by Central

Administrative Tribunal, Principal bench, New Delhi in T.A

No.813/2009 titled as Sh.Vinod Kumar v. Central Tibetan Schools

Administration, quashing of order dated 4th April, 1996 and directing

the petitioner to reinstate the respondent, however, declining the prayer

of respondent for grant of wages and other consequential benefits

during the intervening period.

The respondent had filed a writ petition in the High Court against

the termination of his services first as a UDC by order dated 11th April,

1990 and later his services as a LDC by order dated 4th April, 1996

without conducting any enquiry and only by payment of one month's

salary in lieu of notice. In the writ petition filed by the respondent, he

had sought quashing of both the orders with a direction for payment of

salary, increments and all other allowances and benefits from the date

of termination till the payment of amounts allegedly due to him with

interest at the rate of 18% per annum. The respondent had also prayed

for regularization and confirmation of his services with effect from 11th

May, 1990, the date from which he had reverted from the post of UDC

to LDC.

This is not disputed that the respondent was appointed as a UDC

on ad hoc basis in the petitioner society which is an autonomous

organization under the Ministry of Human Resource Development. This

is also not disputed that respondent was again appointed on ad hoc

basis as a LDC after determination of his services by order dated 11th

April, 1990 as a UDC. His appointment as a LDC was for a period of six

months from 18th May, 1990 which was extended for several years by

six months each. This is also admitted that during the period of his ad

hoc appointment for six months each from time to time, he was called

for an interview on 23rd August, 1992 and he was issued an offer of

appointment as a LDC by order dated 28th August, 1992. This was also

purely on temporary basis, but likely to continue and it was accepted by

the respondent and the petitioner had issued an order dated 4th

September, 1992 and the respondent was appointed as a LDC from 26th

August, 1992 till further orders. The probation period of the respondent

was also extended upto 25th August, 1995 by order dated 2nd March,

1995.

The services of the respondents were terminated by order dated

4th April, 1996 by giving one month's salary in lieu of notice which was

challenged by the respondent by filing a writ petition which was

transferred to the Central Administrative Tribunal, Principal Bench,

New Delhi. The Administrative Tribunal while disposing of the

application of the respondent referred to the Central Tibetan Schools

Administration Appointment, Promotion & Seniority etc. Rules, 1975

and noted that though there is a provision under Rule 9 for making ad

hoc appointment wherever necessary but there is a distinction between

the initial appointment as a probationer of a regular direct recruitee and

a person appointed on probation on trial on ad hoc basis and in both

the cases, there is a period of probation. Whereas probation is two years

for a regular appointee with a maximum period of extension of three

years, but no outer limit has been prescribed in case of ad hoc

appointee engaged on trial. Referring to Rule 11, it was held that after

completion of three years of satisfactory service, an employee is eligible

for being declared as quasi permanent which is subject to seniority as

per the CCS Rules on the subject.

The Tribunal also noticed that on the ground of unsatisfactory

performance or conduct, Rule 12 contemplates for discharge of a

probationer with a month's notice or month's salary in lieu thereof. Sub

Rule 3 of Rule 12 cover both the categories of probationers covered

under sub Rule 10 which prescribes the period of probation for person

appointed as probationer of a regular direct recruit and a person

appointed on probation on trial on ad hoc basis. The Tribunal has set

aside the order of termination dated 4th April, 1996 by giving one

month's notice noticing that the order had been passed without giving

any reasons and without affording any opportunity to the respondent,

which was in violation of principles of natural justice and the

fundamental right as guaranteed under Articles 14 and 16 of the

Constitution of India. Though the respondent had challenged his

termination order dated 11th April, 1990 as a UDC, but the termination

order dated 11th April, 1990 as a UDC was upheld on the premise that

appointment of the respondent as UDC was purely on ad hoc basis and

had been terminated within the prescribed period of two years.

The Tribunal also noticed that no post in petitioner's organization

is permanent because of the temporary status and the plea of the

petitioner that no employee of the petitioner can claim permanent

status. Relying on Rule 11 and the fact that a quasi permanent status

was conferred upon the respondent after an interview and various other

formalities, distinction was carved out between purely ad hoc

appointees and quasi permanent appointees which is also substantiated

from the language of letter of appointment of the respondent.

Considering sub para (iii) of memorandum dated 25th August, 1992

about the appointment of the respondent along with the provision of

Rule 10(i), it has been held that the probation could not have been

extended beyond a period of three years which period expired on 25th

August, 1995 in the case of respondent and the right of the petitioner to

terminate the services through a summary order would be limited only

for a period of three years and after the expiry of three years, the

summary procedure could not be justified especially in view of the fact

that the allegation of unsatisfactory performance has not been proved

and thus has set aside the order of termination dated 4th April, 1996

summarily discharging the respondents.

The learned counsel for the petitioner has reiterated the pleas and

contentions raised before the Tribunal and the reliance has been placed

on clause 3 of the memorandum dated 25th August, 1992 contemplating

that even after the trial period for as long as the employee holds the

appointment in temporary capacity, an appointment could be

terminated at any time by one month's notice given by the petitioner

without assigning any reason.

The learned counsel for the petitioner has, however, not been able

to dispute that no employee is permanently appointed in petitioner's

organization and offered appointment is in the temporary capacity. In

the circumstances, the distinction carved out under the rules that is

appointment as a probationer of a regular direct recruitee under Rule

2(iii) read with Rule 10(1) and an employee appointed on probation on

trial on ad hoc basis under Rule 2(g) read with Rule 10 (2) cannot be

obliterated. The distinction between a probationer of a regular direct

recruit and a probationer on trial on ad hoc basis will also have

different ramifications after completion of their probation and as far as

the procedure for their termination is concerned.

This is admitted that the respondent was appointed as an ad hoc

LDC initially for a period six months on 18th May, 1990 and this period

of six months was extended for several years by six months each. Later

in 1992, he was called for interview and besides interviewing him his

original certificate, mark sheet, testimonials regarding date of birth,

educational qualifications, experience etc were considered and only

thereafter an offer of appointment as a LDC was made by order dated

28th August, 1992. Apparently the order of appointment on ad hoc basis

as a LDC dated 18th May, 1990 was different from offer of appointment

as a LDC by order dated 28th August, 1992 on temporary basis, but

likely to continue. In the circumstances, though the appointment as an

ad hoc LDC could be terminated by merely giving one month's notice or

salary for one month in lieu thereof, the appointment as a LDC though

on temporary basis, but which continued could not be terminated

merely by one month's notice or salary in lieu thereof especially in view

of the allegation made against the respondent for his alleged

unsatisfactory performance. The termination of the respondent in the

circumstances was not only motivated by the unsatisfactory

performance, but the foundation for the termination is the alleged

unsatisfactory performance of the respondent. The allegation of

unsatisfactory performance by the respondent is also utterly vague as

nothing has been disclosed to demonstrate or show prima facie that the

performance of the respondent was not satisfactory and his services

were liable to be terminated. In the circumstances, the termination of

the services of the respondent shall also be stigmatic and could not

resorted to taking shelter under the appointment memorandum

contemplating that the appointment of the respondent was temporary

and could be terminated at any time. The order of termination of the

respondent which is stigmatic in nature is, therefore not in consonance

with the rules, principles of natural justice and does not confirm to the

safeguards provided to the employees under the Constitution of India.

The order of termination dated 4th April, 1996 therefore, cannot be

sustained and the order of the Tribunal setting aside the order of

termination dated 4th April, 1996 cannot be faulted in the facts and

circumstances of this case.

While setting aside the order of termination of the respondent, the

Tribunal has not granted wages and other consequential benefits during

the intervening period. This decision of the Tribunal has not been

challenged by the respondent as no writ petition has been filed by the

respondent. Thus though the respondent is entitled for quashing of

order dated 4th April, 1996 terminating his services and on quashing of

said order he would be entitled for reinstatement, he shall not be

entitled for wages and other consequential benefits during the

intervening period.

The order setting aside the termination order dated 4th April,

1996 was passed on 5th November, 2009 by the Central Administrative

Tribunal, Principal Bench directing the petitioner to issue an order of

reinstatement within a period of three months, however, no such

reinstatement order has been issued by the petitioner. The present writ

petition in the facts and circumstances is dismissed and, therefore, the

petitioner is liable to issue the order of reinstatement of the respondent

forthwith.

With these directions, the writ petition is dismissed, however,

parties are left to bear their own cost.

ANIL KUMAR, J.

April 28, 2010                                  MOOL CHAND GARG, J.
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