Delhi Jal Board vs Anish Kumar
2010 Latest Caselaw 5706 Del

R-81
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment reserved on : 13.12.2010
%                          Judgment delivered on: 15.12.2010

+       R.S.A.No.94/2000 & C.M.Nos.842/2000 & 11043/2004

DELHI JAL BOARD                                 ...........Appellant
                          Through:    Ms.Kanika Agnihotri &
                                      Ms.Shikha Tandon, Advocates.
                    Versus

ANISH KUMAR                                     ..........Respondent
                          Through:    Mr.Ashok Aggarwal, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

      1. Whether the Reporters of local papers may be allowed to
         see the judgment?

      2. To be referred to the Reporter or not?                Yes

      3. Whether the judgment should be reported in the Digest?
                                                               Yes

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

27.11.1999 which has reversed the finding of the trial judge dated

31.5.1996. Vide judgment dated 31.5.1996 the suit of the plaintiff

Anish Kumar seeking permanent injunction had been dismissed.

Vide impugned judgment dated 27.11.1999 the suit was decreed.

2. Briefly stated the factual matrix of the case are as follows:

(i) Plaintiff was selected for the post of Sewer Cleaning Machine

(SCM) driver in the pay scale of Rs.950-1400 by the defendant

MCD/defendant corporation after sponsorship of his name by the

employment exchange. Six candidates were selected; name of the

plaintiff was at Sl.No.5. Plaintiff was posted as SCM driver with

effect from 4.1.1990; appointment letter was issued by the Joint

Director (CSE 1st), Town Hall, Delhi.

(ii) Plaintiff was the only candidate sponsored by the

employment exchange; other candidates were departmental

appointees. The appointments were temporary but the

appointment of the plaintiff was against a vacant post.

(iii) Plaintiff had been attending to his duties regularly, diligently

and honestly; there was no adverse entry against him.

(iv) On 17.9.1990 plaintiff was served with an office order dated

10.9.1990 informing him that his services including those of Babu

Ram and Bimal Kumar had been terminated and they would be

relieved with effect from 30 days from the issuance of the said

order i.e. with effect from 10.10.1990. This order was issued by

Mr.R.S.Godboley, Administrative Officer. Said order is illegal and

violative of Section 95 of the Delhi Municipal Corporation Act

(hereinafter referred to as 'the DMC Act').

(v) In this order of removal of the plaintiff, Chander Pal Singh at

Sl.No.6 was allowed to continue in service; policy of the

department was discriminatory; no reasonable opportunity of

hearing had been afforded to the plaintiff before inflicting such a

severe punishment upon him. Present suit was accordingly filed.

(vi) Defendant had contested the suit. It was stated that eight

persons were appointed although there were five vacancies; three

persons were selected in excess. Their services were discontinued.

Services of junior most SCM drivers were discontinued by giving

30 days notice. No person junior than the plaintiff had been

allowed to continue. Services of the plaintiff had been

discontinued in accordance with the Rules and Regulations of the

Department; suit is liable to be dismissed.

(vii) On the pleadings of the parties following issues were framed:

(i) Whether the office order dt.10.9.1990 terminating the services of the plaintiff was illegal, unlawful and discriminatory, if so, to what effect?

(ii) Whether the plaintiff is entitled to the relief claimed?

(iii) Relief.

(viii) Trial judge held that the plaintiff has been appointed purely

against a temporary post. The office order dated 28.12.1989 had

been signed by the Administrative Officer under the authority of

the Director. The order terminating his services on 10.9.1990 had

been issued by R.S.Godboley, Administrative Officer again under

the authority of the Director. It was thus clear that both the orders

i.e. the order appointing the plaintiff and the order terminating him

had been issued by the Administrative Officer who was acting

under the authority of the Director. Plaintiff has no substantive

right to any post. Suit was dismissed.

(ix) In appeal the impugned judgment reversed the finding of the

trial judge. Testimony of PW1 & DW1 was re-appreciated. It was

held that DW1 has admitted in his cross examination that the

plaintiff Anish Kumar was appointed against a vacant post. His

services were terminated in suspicious circumstances as the plea

of the defendant was contrary; on the face of it the order of

terminating his services i.e. Ex.P-6 was discriminatory and illegal.

3. This is a second appeal. The following substantial question of

law were formulated on 9.2.2007 which read as follows:

1. Whether the services of the respondent be validly terminated?

2. Whether the respondent has got any substantial right to continue in the post?

4. On behalf of the appellant it has been urged that the

judgment of the trial judge is illegal and arbitrary.

Plaintiff/defendant was appointed through the employment

exchange on a temporary post and this was clear from his

appointment letter which states that his services could be

terminated after giving him 30 day notice which was given to him.

He has no substantive right to the post of SCM driver.

5. Counsel for the appellant has placed reliance upon a

judgment of the Supreme Court reported in AIR 1992 SC 1593

State of Punjab & Ors. vs. Surinder Kumar & Ors., JT 2008 (3) SC

221 Divisional Manager, Aravali Golf Club & Anr. vs. Chander Hass

& Anr. and another judgment of the Apex Court reported in (2010)

5 SCC 475 Md.Ashif & Ors. vs. State of Bihar & Ors. It is

submitted that an adhoc appointee cannot as a matter of right seek

selection to a substantive post. A post can also not be created

where there is no vacancy.

6. Arguments have been countered. It is submitted that the

impugned judgment suffers from no infirmity. Court has

appreciated all the contentions which have now been urged before

this court and after a re-appreciation of the oral and documentary

evidence held that the plaintiff is entitled to a decree in his favour.

Department was blowing hot and cold; it was not clear of its stand;

suit of the plaintiff was rightly decreed.

7. Counsel for the respondent has placed reliance upon AIR

1979 SC 429 The Manager, Government Branch Press & Anr. vs.

D.B.Belliappa, AIR 1986 SC 1626 Jarnail Singh & Ors. vs. State of

Punjab & Ors., AIR 1983 SC 494 Ajit Singh & Ors. vs. State of

Punjab & Anr. and (1992) 2 LLJ 460 (Delhi) Lt. Col.A.K.Dogra

(Retd) vs. Indian Railway Construction Company Ltd. & Anr. to

support his submission that admittedly the record of the

respondent was unblemished; there being no complaint against

him; it was a fit case for regularization; his service could not have

been terminated in the manner in which it had been done so.

8. Record has been perused.

9. Ex.P-4 dated 28.12.1989 is the appointment letter issued to

the plaintiff/respondent Anish Kumar. It clearly states that the

appointee has been appointed temporarily to the post of SCM

driver in the pay scale of 950-20-1150-EB-25-1400 with usual

allowances on the terms and conditions attached and printed

overleaf. Clause 2 of the condition printed overleaf clearly states

that the employee can be terminated by giving a 30 day notice.

This appointment letter had been issued by G.K.Malik,

Administrative Officer (G) under the authority of the Director

(A&P). Ex.P-5 dated 4.1.1990 is the posting order posting Anish

Kumar at Najafgarh zone, shown against a vacant post. There is no

doubt that in Ex.P-5 posting of Anish Kumar makes a reference to a

vacant post but the department has explained this to be a

typographical error. It has relied upon the terms and conditions of

the employment of the plaintiff which are clearly stipulated in Ex.P-

4 which gives option to the Department to terminate his services

by giving a 30 day notice as the appointment of the appointee were

purely temporary. In the written statement, the defence of the

department all-along had been that eight persons had been

appointed against five vacancies; three persons had been selected

in excess; thereafter in view of their non-requirement, their

services were discontinued.

10. Anish Kumar had been appointed as a SCM driver in terms of

the office order dated 28.12.1989; he along with seven other

persons was selected against five vacant posts; these officials were

recruited in excess of the sanctioned posts on the basis of wrong

information regarding vacant posts of SCM drivers. The junior

most SCM drivers were discontinued vide office order dated

10.9.1990 by giving them a 30 day notice. This document is Ex.P-

6. PW-1 the plaintiff has admitted that he was a General category

candidate. He has admitted that his appointment was on a

temporary basis. DW1 was an official witness of the defendant

department; he has deposed that eight persons were recruited as

SCM drivers; in his cross-examination he admitted that he has not

brought the record in the court to show that how many vacancies

fall in the general category and how many in the category of

SC/ST. This version had been relied upon in the impugned

judgment to draw a conclusion that department had deliberately

not produced the record to shield and protect their own acts. It is

relevant to point out that it was also not the case of the plaintiff

that he had been appointed against a vacant post. In his cross

examination PW1 had admitted that he knew that his appointment

was on a temporary post. It was not against a sanctioned vacancy.

11. The law regarding regularization of employees has been

authoritatively laid down by a Constitutional Bench of Apex Court

reported in (2006) 4 SCC 1 Secretary, State of Karnataka & Ors.

vs. Uma Devi (3) & Ors. A distinction between an irregularity and

an illegality in the making of an appointment has been drawn;

where the due process of appointment had been deviated from, the

Court can regularize the same. This decision was followed by the

Supreme Court in (2009) 6 SCC 611 Mohd.Abdul Kadir & Anr. vs.

Directorate General of Police, Assam & Ors. where the court held

that the employees who were recruited in connection with a

scheme could not claim continuance or regularization in service

even if they had worked on an adhoc basis for as long as two

decades. In the judgment of Divisional Manager, Aravali Golf Club

(supra) the Supreme Court had held that the creation and sanction

of posts is the prerogative of the Executive or the Legislative

Authorities and the Court cannot arrogate itself to this executive or

legislative function and direct the creation of posts in any

organization.

12. Admittedly, in this case there was no sanctioned post against

which the respondent had been appointed. It was a temporary

post. He had been terminated in accordance with the terms and

conditions of his appointment. His appointing officer and

terminating officer as evident from Ex.P-4 and Ex.P-6 were both by

the Administrative Officer under the direction of the Director. The

respondent had no substantive right to continue in the post.

Judgments relied upon by the counsel for the respondent have no

applicability in this factual scenario. The findings in the impugned

judgment holding otherwise are liable to be set aside. Appeal is

allowed. Suit of the plaintiff stands dismissed. Pending

applications are disposed of.

INDERMEET KAUR, J.

DECEMBER 15, 2010 rb