Union Of India & Ors vs Mrs.Neelam
2010 Latest Caselaw 1546 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.834/2010
%

                        Date of Decision: 19.03.2010


Union of India & Ors                                 .... Petitioners
                   Through Mr.A.K.Bhardwaj, Advocate


                                  Versus


Mrs.Neelam                                                .... Respondent
                     Through    Nemo.


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              NO
       in the Digest?



ANIL KUMAR, J.

*

The petitioner, Union of India through the Secretary, Ministry of

Health and Family Welfare has challenged the order dated 4th February,

2009 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in O.A No.1870/2008 titled Mrs.Neelam v. Union of India

and ors setting aside the order dated 11th August, 2008 terminating the

appointment of the respondent and holding that the appointment of the

respondent as Fumigation Worker pursuant to the advertisement dated

25th September, 2003 was made for the said post regularly and could

and her appointment to the said post could not be terminated.

Brief facts to comprehend the controversies are that pursuant to

an advertisement dated 25th September, 2003, respondent applied for

the post of Fumigation Worker. After considerable period, after the

respondent had applied for the said post, she was directed by

communication dated 15th February, 2007 to appear for interview

before the petitioners on 26th February, 2007. The communication

dated 15th February, 2007 had specified that the appointment to the

post of Fumigation Worker will be temporary initially and the

respondent will be put on probation and will be regularized as per the

rules and regulations of the petitioners.

Pursuant to the selection to the post of Fumigation Worker in the

pay scale of Rs.2550-5-2660-60-3200/- the respondent was appointed

and was put on probation for a period of one year. The respondent was

directed to report for duty to the Airport Health Officer, Palam Airport,

Delhi. The respondent had accepted the terms and joined on 27th

February, 2007. On joining, the respondent was medically examined

and police verification was also got done and thereafter, respondent

continued to work as a Fumigation Worker and completed the period of

probation of one year on 27th February, 2008. According to the

respondent, after completion of the period of one year she was deemed

to be a regular employee of the petitioners.

The services of the respondent were, however, terminated by

order dated 11th August, 2008 without disclosing any reason and

without giving any show cause notice or giving a hearing to the

respondent as to why her services were liable to be terminated. This

was not disputed by the petitioners that the respondent had completed

her period of probation. It is also pertinent to note that by letter dated

5th March, 2007 the Airport Health Officer in a communication

addressed to the police authorities had stipulated that the respondent

has been appointed as a Fumigation Officer on regular basis.

After the services of the respondent were terminated without

disclosing any reason, the respondent filed an application under Right

to Information Act dated 13th August, 2008. Pursuant to the application

filed by the respondent under Right to Information Act, it was disclosed

that the entire process of the selection has been declared to be

invalid/illegal and, therefore, the respondent could not continue as a

Fumigation Worker even after completion of her probation period and,

therefore, by a simple order of termination his services had been

terminated. It was pleaded by the petitioners that for the post

advertised in 2003 selection could not be conducted in the year 2007.

The petitioners also disclosed that the selection for the post advertised

in 2003 was done in 2007 as the post of Fumigation Worker was cleared

by the screening committee in the year 2007 and consequently a new

advertisement ought to have been issued for filing up the post of

Fumigation Worker. Regarding completion of the period of probation, it

was asserted that it shall not entitle respondent for any relief.

Aggrieved by the order of termination of her services, the

respondent filed the original application before the Central

Administrative Tribunal which was allowed by the Principal Bench by

order dated 4th February, 2009. The Tribunal noted the pleas and

contentions of the parties. It was noticed that the respondent is an OBC

candidate and was fully eligible and opted for the same and she was

appointed in accordance with the rules and regulations. It had also

been noted that two vacant posts of Fumigation Workers had accrued

on 31st March, 2001 and another post had become available on 31st

January, 2002 before the advertisement for filling the post was given on

25th September, 2003.

The Tribunal also relied on Union of India & Ors v. Narender

Singh, (2008) 1 SCC (L&S) 547; Jaswant Singh & Ors v. State of M.P &

Ors, 2002 SCC (L&S) 1128 to hold that though there was no mistake in

decision in appointment of the respondent as the posts were available

prior to the advertisement given in 2003, therefore, filling the post in

2007 will not be a mistaken decision and in any case the services of the

respondent who was appointed after due selection and on completion of

her probation period, could not be simply terminated without giving any

reasons or without giving any reasonable opportunity to her. The

Tribunal also noted that the reason now given before the Tribunal by

the petitioners could not be accepted and supplement no reasons given

in the termination order and later on, The Tribunal also relied on

Mohinder Singh Gill v. Chief Election Commissioner, New Delhi (1978) 1

SCC 405 in support of this plea.

We have heard the learned counsel for the petitioners. The

learned counsel has not been able to deny that before the advertisement

was given in 2003, three clear vacancies had occurred for which the

selection was done and after proper selection the respondent was

appointed as a Fumigation Worker in accordance with rules. Initially

the respondent was appointed on probation for a period of one year

which was completed successfully by the respondent which expired on

27th February, 2008. The probation period after 27th February, 2008

was not extended by the petitioner and consequently by letter dated

11th August, 2008 without disclosing any reason and without giving any

hearing to the respondent, her services could not be terminated.

The learned counsel for the petitioner has also not been able to

show that the vacancies which had occurred prior to 2003 which were

notified and the advertisement for which was made could not be done

without the prior approval of the selection committee. In fact the

selection was made only after approval was given by the relevant

committee. Filing up of the vacancy was duly notified and the process of

selection was initiated only after the approval from the screening

committee and, therefore, the reason that there was a considerable gap

between the advertisement and selection process cannot be construed

against the selection of the respondent. The learned counsel for the

petitioners have not shown any rule or decision of the screening

committee that the advertisement for filling the post could be given only

after approval from the screening committee.

In any case in the facts and circumstances for termination of the

services of the respondent, a pre decisional hearing was required and

the petitioners cannot be permitted to supplement the decision of

termination without given any reasons, by giving reasons later on as

has been noted by the Tribunal.

In the totality of facts and circumstances, the learned counsel for

the petitioner has failed to show any illegality or irregularity in the order

of the Tribunal dated 4th February, 2009 which shall necessitate any

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India.

The writ petition is therefore, in the facts and circumstances is

without any merit and it is dismissed.

ANIL KUMAR, J.

MARCH 19, 2010                                    MOOL CHAND GARG, J.
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