Suman Taneja vs District & Sessions Judge Delhi & ...
2019 Latest Caselaw 4914 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of Decision: 15.10.2019

+                      LPA 532/2016

SUMAN TANEJA                                             ..... Appellant
                          Through:     Mr. R. K. Saini, Mr. Ankit Singh and
                                       Ms.Bhavna Jain, Advocates.

                          versus

DISTRICT & SESSIONS JUDGE DELHI & ORS                      ..... Respondents

                          Through:     Ms. Avnish Ahlawat, Standing
                                       Counsel GNCTD with Mr. Nitesh Kr.
                                       Singh, Ms. Palak Rohmetra and Ms.
                                       Laveena Arora, Advocates.
      CORAM:
      HON'BLE MR. JUSTICE VIPIN SANGHI
      HON'BLE MR. JUSTICE SANJEEV NARULA

SANJEEV NARULA, J. (Oral):

1. The present appeal under Clause X of the Letters Patent is directed against the order dated 06.04.2016 passed in W.P.(C) No. 3965/2003 titled as Smt. Suman Taneja v. District & Sessions Judge, Delhi &Anr whereby learned Single Judge has dismissed the writ petition of the Appellant, filed for seeking quashing of the action of the Respondents in terminating the services of the Appellant under Rule 5(i) of Central Civil Services (Temporary Service) Rules [CCS(TS) Rules], 1965.

2. The facts leading to the filing of the present appeal are that the Appellant

was appointed by the Respondent as Lower Division Clerk through the Employment Exchange w.e.f. 08.09.1995. The memorandum dated 01.09.1992 setting out the terms and conditions of the appointment was issued to the Appellant, and consequent to her acceptance, an order dated 14.09.1992 was issued whereby Appellant was appointed as Lower Division Clerk in the pay scale of Rs.950-1500 plus usual allowances on temporary basis, subject to terms and conditions mentioned in the Office Memorandum dated 01.09.1992.

3. It is the case of the Appellant that she has worked with utmost sincerity and devotion to duty, and there was no cause for complaint. She proceeded on maternity leave from 15.12.1999 to 27.4.2000 and joined duty on 28.4.2000. Thereafter, she had been taking leave, mostly on medical grounds in connection with the illness of self and child. She claimed that on some occasions, the absence was necessitated for reasons beyond her control and such period of leave was supported by leave applications and medical certificates.

4. Respondents, however, rejected Appellant‟s request for leave from 16.07.2000 to 30.11.2000; 1.07.2002 to 03.07.2002, and; 01.08.2002 to 06.12.2002. Memorandums dated 21.12.2001 and 08.08.2002, were issued directing Appellant to submit her explanation as to why disciplinary action be not taken against her for allegedly remaining absent from duty unauthorisedly. She was on leave from 02.08.2002 on medical grounds, and all the leave applications were supported by Medical Certificates and last leave extension was sought on account of illness from 12.11.2002 to 06.12.2002, which was intimated to the Respondent vide leave application

dated 14.11.2002.

5. Appellant was then shocked to receive the letter dated 13.11.2002 whereby Respondents invoked sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter, "Temporary Service Rules") and terminated her services w.e.f. "the date of expiry of period of one month from the date on which the notice is served, or as the case may be tendered to her". Appellant filed Writ Petition No. 3965/2003 alleging that the termination was arbitrary and mala fide. She also contended that Respondent could not have taken recourse to the CCS (TS) Rules since the so-called inefficiency/unauthorized absence was the real and actual foundation for passing of the order of termination. The order being penal in nature, it cannot be sustained, as the appropriate procedure under CCS (CCA) Rules 1965 had not been followed, and rather Respondents resorted to summary procedure under Sub-Rule (1) of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965, which was unlawful.

6. The learned Single Judge considered the submissions of the Appellant and after taking note of Rule 5(1) of the Central Civil Service (Temporary Service) Rules, 1965, dismissed the petition inter alia holding that the aforesaid Rules do not postulate any enquiry prior to passing of the termination order in case a temporary government servant is not found suitable for the job. It was held that since the Appellant was a temporary employee, the termination by the Respondent cannot be faulted with. The order dismissing the writ petition has been impugned in the present appeal.

7. We have heard Mr. R.K. Saini, learned Counsel for the Appellant and Ms.

Avnish Ahlawat, Standing Counsel GNCTD at considerable length.

8. Mr. Saini contends that it was mandatory for the Respondents to have taken action against the Appellant under CCS (Conduct) Rules after following the procedure laid down in CCS (CCA) Rules, 1965 rather than terminating her service under Rule 5(1) of Temporary Service Rules. Respondents have deliberately chosen to take action under the Temporary Service Rules with a view to get rid of the Appellant. Appellant‟s representation dated 01.12.2002 against the notice of termination, was wrongly rejected vide order dated 17.12.2002 passed by the learned District & Sessions Judge, Delhi. Subsequently, vide letter dated 03.01.2003 i.e. after her termination, the period of service w.e.f. 05.12.2000 to 11.04.2002; 01.07.2002 to 11.09.2002 and 16.09.2002 to 14.12.2002 was treated as dies- non.

9. Mr. Saini also strenuously argued that learned Single Judge has failed to appreciate the peculiar facts of the case which demanded a just and practical approach rather than a rigid and technical view. He argued that the Appellant was appointed against a permanent post, and had worked for nearly more than 10 years before she was terminated under the provisions of the Central Civil Services (Temporary Service) Rules, 1965. He submitted that for all intents and purposes, the Appellant should be treated as a permanent employee, at par with her counterparts who were appointed along with the Appellant and have been confirmed by the office of the District & Sessions Judge, Delhi Lower Division Clerks in the pay scale of Rs.950-1500(pre- revised) and Rs. 3050-4590 (revised) vide order dated 16.01.2004. But for the termination order, under the Temporary Service Rules, the Appellant

would have been confirmed. He submitted that merely because there was an administrative delay on the part of the Respondents in issuing the order of confirmation, the Appellant should not be placed in a disadvantageous position. The approach of the Respondent in invoking the provisions of Temporary Service Rules was unlawful and it was incumbent upon the Respondent to have followed the procedure laid down in CCS (CCA) Rules 1965, before dispensing with the Appellant‟s service. Since the same was not done, the action of the Respondent is illegal and contrary to principles of natural justice. Rather, the Appellant was liable to be confirmed with effect from 08.09.1995 after completion of three years of service as had been done in the case of her counterparts. Since the Respondents had not taken timely action for issuing the confirmation orders, the action of the Respondents is arbitrary, irrational and liable to be set aside.

10. Mr. Saini further elaborated on the plea of prejudice by referring to the provisions of CCS (CCA) Rules, and argued that under the procedure laid down under the aforesaid rules, the Respondents are bound to follow the mechanism of issuing of charge sheet, and giving an opportunity to the Appellant to defend herself in respect of such charges by conduct of a proper enquiry. He submitted that the Respondent would also have to first identify whether the charges leveled against the Appellant would invite a major or minor penalty, followed by a departmental inquiry. Thereafter, even if the Appellant was to be found guilty of the charge, it would have not necessarily resulted in the termination or dismissal from service. He submitted that the justification for passing of the impugned order was on account of unauthorized absence which could, at the highest, be construed as an act of

„misconduct‟ on the part of the Appellant and that could possibly result in award of minor penalty.

11. Ms. Avnish Ahlawat, on the other hand, argued that the Appellant‟s appointment was temporary in nature. Appellant remained continuously absent from duty from 05.12.2000 to 11.04.2002 and 01.07.2002 to 11.09.2002 and thereafter from 16.09.2002 to 14.12.2002. Even prior to December 2000, she has been absenting from duty in spite of the fact that her leave was not sanctioned. Her application for earned leave for the period 16.07.2000 to 30.11.2007 was rejected by the leave sanctioning authority. Similarly, even her earlier leave request from the period from 16.07.200 to 31.07.2000 was rejected. Repeated memos were issued to her asking her to report for duty and submit explanation for her absence, however, the same did not have any effect on her. Ms. Avnish Ahlawat further submitted that since the Appellant, a temporary civil servant, had been going on leave too frequently and had also been absenting herself from duty without leave, the termination of services under Rule 5 was not only permissible in law, but also justified, as the work and conduct of the Appellant was not up to the mark. Even after the issuance of the letter of termination on 13.11.2002, Appellant did not join her services and instead submitted her representation for revocation of the termination order which was rejected looking at her past conduct.

12. We have given thoughtful consideration to the submissions advanced by the learned counsels for the parties.

13. First and foremost, it is necessary to take note of the terms of the

memorandum that govern the conditions of the service of the Appellant. The memorandum dated 01.09.1992, inter alia, specifies that the job offered to the Appellant is for a "temporary post" and Appellant‟s appointment is purely "temporary", and will not confer any title to the permanent employment. The relevant portion of the said memorandum reads as under:

"A. MEMORANDUM

Sh./Miss/Mrs. SUMAN KHARBANDA registered candidate of Employment Exchange, is offered a temporary post of Lower Division Clerk in the following terms and conditions:-

1. The post is in Class-III (non-gazetted) and carries a scale of Pay Rs. 950-1500. He/She will be given initial pay of Rs. 950/- in the scale plus other allowances as admissible under the rules.

2. The appointment is purely temporary and until further orders it will not confer any title to permanent employment."

(Emphasis supplied)

14. The terms of appointment do not specify any length of service, and it is thus evident that the appointment of the Appellant was for a temporary post and the nature of her appointment was also temporary. Though Mr. Saini has argued that the Appellant‟s appointment was against a permanent and sanctioned post, however, such an argument is untenable for two reasons. Firstly, there is no material shown to the Court that the statement made in the memorandum dated 01.09.1192 is contrary to the factual position. Secondly, even if there was any such permanent sanctioned post, the fact remains that the Appellant was appointed only in a temporary capacity. It is well settled law that a temporary employee who has continued in the

employment for a significant length of time would not be entitled to claim the status of a permanent employee merely on the ground of continued long- term employment. The nature of appointment i.e. whether it is "temporary" or "permanent" is matter of status, which cannot be conferred by mere passage of time on its own. Until the employer by a conscious and positive act decides to change the status of the employee from "temporary" to "permanent", the status remains the same.

15. The original appointment was against a temporary post and the Appellant was a temporary employee. It is thus not open to the Court to treat the Appellant as a permanent employee, as the very nature of Appellant‟s appointment, did not confer any right on her to claim permanent status. Thus, she could not seek the rights and privileges which are conferred under the service rules on an employee enjoying permanent status. It is not as if the Appellant, who accepted the offer of appointment in terms of the memorandum was not aware of the nature of her employment and the status conferred upon her. She accepted the employment with open eyes and elected to work as a temporary employee. Appellant‟s counterpart may have been confirmed in 2004, however, that does not vest any right in the Appellant, as she continued to be a temporary employee till the date of her termination. Appellant knew the nature of her employment and her appointment was only to a temporary post. Appellant has sought to argue that since she worked for a considerable length of time, she should be treated to be a permanent employee. This argument is also fallacious as the Appellant is misconstruing her employment to be of permanent nature. The Supreme Court, recently, in Durgabai Deshmukh Memorial Senior

Secondary School & Anr. Vs. J.A.J. Vasu Sena&Anr (citation), while considering the question of deemed confirmation of employees who work on probation in the context of Rule 105 of 1973 Rules, has held that the employees cannot claim deemed confirmation of service without the issuance of the order of confirmation. The same principle would apply here. It cannot be disputed that till such time a temporary employee is not confirmed, he/she would be governed by the terms of Central Civil Services (Temporary Service) Rules, 1965. Respondents had earlier issued memos asking the Appellant to give an explanation as to why disciplinary action be not taken against her for remaining absent from duty unauthorisedly. However, that cannot be interpreted as conferment of any right or privilege to the Appellant to claim that her termination under the Temporary Service Rules is illegal, or that the Respondents were bound to proceed against her under the CCS (CCA) Rules. That being the position, the Appellant‟s argument that she could only be discharged by following the procedure under Central Civil Services (CCA) Rules is misconceived. The said Rules would not apply to the Appellant and the Respondents were well within their rights to resort to the provisions of the „Temporary Service Rules‟.

16. Since the letter of termination does not specify any reason and is non- stigmatic in nature, the Court need not delve into the reasons behind issuance of such termination. Nevertheless, since both of the counsels have addressed arguments relating to Appellant‟s unauthorised absence, it would be apposite to consider the same. The facts of the case certainly reveal that the Appellant has shown scant regard to her service. She remained unauthorisedly absent and had repeatedly and habitually for long spells been

taking leave.

17. Appellant was directed to report on duty vide memo dated 21.12.2001. She did not join her duty or give any explanation, and accordingly, another memo dated 08.08.2002 was issued. This time again, instead of joining duty or submitting an explanation, she moved an application for grant of further leave, notwithstanding the fact that her urgent leaves itself were not sanctioned. Thus, the Appellant‟s performance not being satisfactory, there were sufficient reasons for the Respondent to dispense the services of the Appellant. If the appointing authority was not satisfied with the performance of the Appellant, there was no reason for them to order her confirmation. The Appellant only seems to be concerned about her rights, but has shown scant concern for her obligations as an employee. Her repeated and long leaves, obviously, would have caused disruption of the working of the office she was serving in. The employer is not obliged to continue to keep such an employee in employment. Respondents thus were justified in not finding her suitable for the post. Since, in absence of the order of confirmation, the Appellant did not acquire the status of a permanent employee, the Respondents were not obliged to initiate enquiry against the Appellant and could have resorted to terminate her services under the Temporary Service Rules.

18. Thus, having regard to the facts and reasons noted above, we do not find any merit in the present appeal. There is no justification to interfere with the

order passed by the learned Single Judge and accordingly the present appeal is dismissed with no order as to cost.

SANJEEV NARULA, J

VIPIN SANGHI, J OCTOBER 15, 2019 ss