Union Of India And Ors vs Devender Kumar
2015 Latest Caselaw 1540 Del

$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of hearing and order: February 23, 2014.
+     W.P.(C) 4826/2014
      UNION OF INDIA AND ORS
                                                                ..... Petitioner
                  Through:              Mr. Anuj Aggarwal Advocate
                  versus
      DEVENDER KUMAR
                                                              ..... Respondent
                          Through:      Mr. Pradeep Kumar, Advocate
    CORAM:
    HON'BLE MR. JUSTICE KAILASH GAMBHIR
    HON'BLE MR. JUSTICE I.S.MEHTA
                         ORDER

%                      23.02.2015
KAILASH GAMBHIR, J. (Oral)

1. By this petition filed under Article 226 of the Constitution of India, the

petitioner seeks to challenge the order dated 21.02.2014 passed by learned

Central Administrative Tribunal, Principal Bench, New Delhi in O.A.No.

179/2011 whereby the learned Tribunal has allowed the Original Application

preferred by the respondent.

2. Assailing the order dated 21.02.2014, the learned counsel for the

petitioner submits that the learned Tribunal has failed to appreciate the fact that

the respondent was engaged as part time casual labourer and therefore he had

no vested right to occupy this post. He further submits that the complete ban

was imposed by the petitioners for appointing casual labourers after 1.9.1993

and the instructions to this effect were not being followed at certain Post

Offices and realising this fact, the Postal Directorate had issued fresh directions

vide letter No. 4-4/2009/PCC dated 19.11.2010 thereby notifying a complete

ban on the engagement of casual labourers w.e.f. 1.12.2010. It is in compliance

of the said directions of Postal Directorate, he submits that the services of the

respondent were dispensed with on 10.4.2011. The learned counsel for the

petitioner thus submits that it was the policy decision taken by the Government

putting a complete ban on engagement of casual labourer on or after 1.9.1993,

based on which fresh instructions were issued by the Postal Directorate on

19.11.2010 and therefore, the petitioners had rightly taken a decision to

dispense with the services of the respondent on the post of part time casual

labourer. He further submits that the learned Tribunal has failed to appreciate

the fact that the respondent can not take the benefit of the error committed by

the petitioner department which was subsequently rectified by the Department

by issuing a fresh notification dated 19.11.2010. He also argued that the

respondent has no legal right to claim appointment on the post of Gramin Dak

Sewak when he had no right to continue on the same.

3. We have heard the submissions made on behalf of both the parties and

given our thoughtful consideration to the arguments advanced by them.

4. The respondent was initially engaged as part time casual labourer in

Krishna Nagar Head Post Office (KNHPO for short) w.e.f. 15.1.1996. While he

was working in the said capacity, Chief Post Master KNHPO had issued an

Employment Notice dated 15.09.2008 inviting applications from casual

labourers/part time employees of the KNHPO, who were willing to be

appointed against two vacant posts of Gramin Dak Sewak. The conditions

which were required to be fulfilled for such an appointment are reproduced

herein:-

"i) Applicant should have rendered service as Casual Labourer/Part Time Casual Labour for complete one year;

(ii) Applicant's engagement should have been made

through Employment Exchange; and

iii) Applicant should possess the educational qualification of VIIIth pass. But the applicant with Xth class qualification will be prepared. (SIC)"

5. The respondent fulfilled the aforesaid conditions and applied for one of

two vacant posts of Gramin Dak Sewak vide his application dated 22.09.2008.

This respondent was selected on the said post. On his selection, the senior post

master, Krishna Nagar, HO got all the pre-appointment formalities of

verification of character, antecedents and medical examination done during

March 2009. The concerned Deputy Commissioner of Police had verified his

character antecedents and certified the same to be satisfactory. Before giving

an appointment to the respondent on the said post, the Senior Postmaster vide

his letter dated 29.04.2009 sought the approval of SSPOs. In this letter, the

senior postmaster stated that due to shortage of Group D staff, office was

facing lot of hardship. Again, the Senior Postmaster KNHPO vide his letter

dated 03.07.2010 addressed to the Assistant Director in the Recruitment Office

of the CPMG Delhi Circle stated that as per letter received from DPS(P),

permission for filling up of two posts of Gramin Dak Sewak was given vide

Estt./MISC-01/DA-IV/06 dated 17.05.2007. It is thus not in dispute that the

respondent was duly selected on the post of Gramin Dak Sewak and he had

fulfilled all the pre-appointment formalities but the appointment letter could not

be issued in his favour for want of approval of the Competent Authority. The

respondent had thus filed the application before the learned Central

Administrative Tribunal raising the grievance that the petitioners have illegally

and arbitrarily not issued the appointment letter after he was duly selected for

the post of Gramin Dak Sewak.

6. On appreciation of the contentions raised by both the parties, learned

Tribunal took a view that the termination of the respondent as a part time

casual labourer is absolutely illegal and arbitrary. Before taking this view the

learned Tribunal had considered the legal principles laid down by the Hon'ble

Supreme Court in the case of The Secretary, State of Karnataka and Others

vs. Uma Devi and Ors., 2006 (4) SCC 1 and State of Uttaranchal vs. Sunil

Kumar Singh Negi, 2008 (2) SCC 205 and Rajendra vs. State of

Maharashtra, 2008 (3) SCC 90.

7. With regard to the other claim of the respondent regarding his

appointment as Gramin Dak Sewak/ packer is concerned, the learned Tribunal

directed the petitioners to offer him an appointment to the said post

immediately as the respondent had already completed the pre-appointment

formalities. The learned Tribunal also directed that in case there are no

vacancies of Gramin Dak Sewak packers in Laxmi Nagar Post Office under the

Krishna Nagar Head Office, he can be appointed against any other existing

vacancy under the Senior Postmaster, Krishna Nagar Head Office.

8. As far as the contentions raised by the learned counsel for the petitioner

are is concerned, the same are in fact reiteration of the arguments raised by the

petitioner before the learned Tribunal. Indisputably, the respondent was

appointed as a part time casual labourer w.e.f. 15.1.1996 and he remained in

service on the said post till 10.04.2011 when his services were sought to be

terminated. This order of termination was issued by the petitioner without even

serving a show cause notice or disclosing any reasons to terminate the

respondent. To say that the petitioner became wise in the year 2010 to realise

that there was a complete ban put up by the Government to engage part time

casual labourer, by notification issued in the year 1993 would amount to

putting at risk the entire service career of the respondent, who was nowhere at

fault and remained in uninterrupted service for a period of more than fifteen

years. It is a settled legal position that abrupt cancellation of appointment

without giving reasons and without hearing the concerned is violative of

principles of natural justice. In this context the learned tribunal has rightly

placed reliance on the decision of this Court in the matter of State of

Uttaranchal Vs. Sunil Kumar Singh Negi (Supra), wherein it has been held by

the Hon'ble supreme Court that one of the statutory requirement of natural

justice is to spell out the reasons for the order made. The relevant part of the

said judgment reads as under:-

"11. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made."

9. Again, in Rajendra Vs. State of Maharashtra (Supra), the Hon'ble

Supreme Court held as under:-

It is really strange that it should have dawned on the second respondent that the approval granted earlier was wrongly given only after 17 months. It was not as if the appointment was made keeping the second respondent in dark about it. The second respondent was informed by the letter dated 7.2.2001 about the advertisement given as also the appointment made. Along with this communication dated 7.2.2001, the Managing Committee had sent the proposal in the proper form and the other papers regarding the whole selection process starting from the advertisement to the list of employees. This also included a copy of the roster which would have given the complete idea to the second respondent about the nature of the post as also the manner in which the appellant came to be selected. In pursuance of the above communication the approval came to be granted

by the second respondent by its order dated 17.3.2000. Therefore, the action taken after about 17 months on 30.5.2002 of withdrawing the approval appears to be high handed. The only reason given in the communication dated 30.5.2002 is that the appointment made on 17.3.2001 is unlawful and is completely against the settled position of law and, therefore, it stood cancelled. In our opinion this is a totally incorrect action on the part of the authorities. No reasons have been given in this order. Very strangely even the subsequent letters sent on behalf of the appellant and the Managing Committee of the school were also not replied to nor were the reasons informed. We totally disapprove of this abrupt action and that too without hearing the petitioner and further not giving the reasons for the same"

10. The learned Tribunal is thus correct in taking a view that since the

aforesaid termination was without any notice to him and was in flagrant

violation of principles of natural justice, therefore he was entitled to all

consequential benefits including back wages from the date of his termination

from the date of his retirement. We find no infirmity in the reasoning given by

learned Central Administrative Tribunal.

11. Even with regard to the second relief claimed by the respondent which

was allowed by learned Tribunal, we find no tangible reason to interfere with

the same. One of the conditions for appointment to the said post of Gramin Dak

Sewak was that the applicant should have rendered service as a casual

labourer/part time casual labourer for complete one year and despite fulfilling

other conditions, this condition was duly fulfilled by the respondent. Not only

this, the respondent had also completed all the pre-appointment formalities

before being appointed on the said post of Gramin Dak Sewak, and he was also

medically certified to be fit to be appointed on the said post. The petitioner has

not come forward to give any reason much less the cogent one as to why the

respondent was not given an appointment letter on the said post when he had

fulfilled all the eligibility conditions and other formalities for appointment to

the said post of Gramin Dak Sewak.

12. In view of the aforesaid discussion, we find no merit in the present

petition and the same is accordingly dismissed. Resultantly, the petitioners are

directed to comply with the directions given by learned Central Administrative

Tribunal in the impugned order dated 21.02.2014 within a period of two

months from the date of this order.

13. With aforesaid directions, the present petition stands disposed of.

KAILASH GAMBHIR, J

I.S. MEHTA, J FEBRUARY 23, 2015 pkb