REPORTAB

LE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5797 OF 2008

(Arising out of SLP (C) No. 14337 of 2006)

K. Alex …

Appellant

VERSUS

Delhi State Mineral Dev. Corpn. …

Respondent

J U D G M E N T

TARUN CHATTERJEE,J.

1.Leave granted.

2.This appeal is directed against the judgment and order

dated 22nd of February, 2006 in LPA No. 366 of 2006 of the

High Court of Delhi at New Delhi whereby the Division Bench

of the High Court had affirmed the decision of the learned single

judge dismissing the Writ Petition of the appellant whereby he

sought to challenge the termination of his services from the

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Delhi State Mineral Development Corporation (in short, “The

Corporation”) as illegal, unjust and arbitrary.

3.The brief facts leading to the filing of this appeal may be

summarized as under :-

4.The appellant was appointed as a heavy vehicle driver by

the Corporation on temporary basis on 3

rd

of November, 1987 in

the pay scale of Rs.1400-2600/-. By an order dated 23

rd

of

January, 1989, the services of the appellant were regularized

with effect from the date of his appointment. In 1992, the

Corporation retrenched some of its employees on the ground of

reduced activities of the Corporation. Accordingly, a Circular

dated 27

th

of August, 1992 was issued to this effect along with a

list of retrenched employees to be redeployed in Delhi

Administration or any other undertakings/corporations under the

control of Delhi Administration. In the said list, the name of the

appellant appeared at serial No. 48. It was the case of the

appellant that the Corporation, instead of redeploying the

appellant as per the policy abovementioned, terminated his

services by an order dated 13

th

of July, 1993 under sub-rule (1)

of Rule 5 of the Central Civil Services (Temporary Service)

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Rules, 1965 (in short “the CCS Rules”) read with Rule 7 (ii) of

the Staff Service Rules of DSIDC, 1978.

5.Feeling aggrieved, the appellant approached the High

Court of Delhi challenging the aforesaid order of termination as

illegal, unjust and arbitrary. By an order dated 15

th

of December,

2005, the learned single judge, while holding that the termination

of services of the appellant treating him as a temporary employee

was not proper, dismissed the writ petition on the ground that on

abolition of post, the appellant had no right to continue in

service. Against this decision of the learned single judge of the

High Court, the appellant filed a Letters Patent Appeal, which

was, however, dismissed by the judgment and order dated 22

nd

of

February, 2006. It is this decision of the High Court, which is

impugned in this appeal on grant of leave.

6.We have heard the learned counsel for the parties and

examined the impugned judgment of the Division Bench of the

High Court as well as of the learned Single Judge and the other

materials on record including the re-deployment policy of the

Corporation. Before we deal with the respective submissions of

the learned counsel for the parties, we deem it expedient at this

stage to reproduce the relevant provisions of the CCS Rules and

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the Staff Service Rules of DSIDC, which are required to be

considered for a proper decision of this appeal.

7.As already noted, the Corporation had terminated the

services of the appellant under sub-rule (1) of Rule 5 of the CCS

Rules read with Rule 7(ii) of the Staff Service Rules of DSIDC,

1978, sub-rule (1) of Rule 5 of the CCS Rules, 1965 may be

reproduced as under: -

“5 Termination of Temporary Service

(i)(a) The services of a temporary Government

servant who is not in quasi permanent

service shall be liable to termination at any

time by a notice in writing given either by

the Government servant to the authority or

by the appointing authority to the

Government servant.

(b) The period of such notice shall be one month;

provided that the services of any such Government

servant may be terminated forthwith and on such

termination the Government servant shall be

entitled to claim a sum equivalent to the amount of

pay plus allowance for the period of the notice at

the same rates at which he was drawing then

immediately before the termination of his services

or, as the case may be terminated forthwith and

on such termination the Government servant shall

be entitled to claim a sum, equivalent to the

period of the notice at the same rates at which he

was drawing them immediately before the

termination of his services or, as the case may be,

for the period by which such notice falls short of

one month.”

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Rule 7 (ii) of the Staff Service Rules, DSIDC reads as

under :-

“Matters not specifically covered in these service

rules shall be governed by the provisions of the

corresponding Rules and Regulations applicable

to central Government employees.”

Rule 3 (iv) of the staff service rules is yet another relevant

provision and may be reproduced as under:-

“Temporary Employee who has not completed 3

years of continuous service in the corporation”

8.Keeping the aforesaid provisions in mind, let us now

examine the submissions of the learned counsel for the parties.

The learned counsel for the appellant argued at the first instance

that the termination of the services of the appellant by the

Corporation was illegal and arbitrary inasmuch as the policy of

re-deployment of retrenched employees published by Circular

dated 27

th

of August, 1992 was not at all given effect to in

the case of the appellant. The learned counsel for the appellant

further submitted that the services of the appellant were

terminated under Rule 5 of the CCS rules, even though the

appellant was a regular employee. It was further submitted by the

learned counsel for the appellant that the Corporation had a

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policy of redeploying retrenched employees and in accordance

with its policy, the name of the appellant was included at Serial

No. 48 in the list of retrenched employees to be re-deployed but

the Corporation redeployed all the employees except the

appellant. The learned counsel for the appellant finally

contended that the services of the appellant were terminated

when the appellant was 35 years old i.e. at the time when the

services of the appellant was terminated, he had already crossed

the age at which, he could not have sought public employment

and accordingly, this aspect was totally ignored by the High

Court while affirming the order of termination passed against the

appellant.

9.The submissions put forward by the learned counsel for

the appellant, as noted hereinabove, were hotly contested by the

learned counsel for the Corporation. The learned counsel for the

Corporation further submitted that the termination of the services

of the appellant had become necessary in view of the peculiar

facts and circumstances of the case, which were beyond the

control of the Corporation and no discrimination could be

attributed to it because the services of the appellant were

terminated, being the junior most at the place of alternate

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employment provided by the Corporation. The learned counsel

for the Corporation also argued that the services of the appellant

were never confirmed and the regularization, if there be any, did

not mean confirmation in view of the express stipulation in

Regulation 3(iii) which provides that the employee would be

confirmed if the management is satisfied with his performance

during the period of his probation. On the question of re-

deployment of the appellant, it was argued by the learned

counsel for Corporation that no orders were received from the

Delhi Administration regarding the appellant’s re-deployment

after 27

th

of August, 1992 till the date of his termination and

therefore, no discrimination could be alleged by the appellant.

10.In the light of the above submissions, the question that

needs to be decided in this appeal is whether it was arbitrary and

illegal on the part of the Corporation not to implement its re-

deployment policy in the case of the appellant, even though his

name appeared at Serial No.48 in the list of retrenched

employees to be redeployed and when all but the appellant were

redeployed. Before we answer this question, we deem it

appropriate to reproduce the findings of the High Court on this

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question while affirming the decision of the learned single judge,

which are as under: -

“……..When the service of an employee is

terminated on closure of a project or for some

other reason, there is no right in that employee to

get re-employment in some other organization.

The only right which the employee has is to get

closure compensation under Section 25-FFF of

the Industrial Disputes Act, if he is a workman.

It is submitted that some other employees

were employed by different government

departments but in our opinion that was not a

matter of right but on humanitarian

consideration. The petitioner was at any event the

junior most operator and cold not claim to be re-

employed as of right……..”

11.Having examined closely the above findings of the High

Court in the light of the materials on record and the factual

matrix of this case, we find that it is true that when the services

of an employee are terminated on closure of a project or for some

other reason, the employee cannot seek re-employment in some

other organization as of right. But it cannot be ignored that the

present case is not so much about the appellant’s right to hold

the post on abolition of post but about the appellant’s right to

claim re-deployment in terms of the policy of the Corporation

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particularly when the policy was implemented in respect of all

the other employees who were retrenched and similarly placed.

12.Out of the list of 275 retrenched employees, only the

services of the appellant were terminated. Therefore, it is

difficult to conceive how in the single case of the appellant only,

his services could not be restored. This, in our view, is

discriminatory in nature and violative of the right to equality.

The explanation thus offered viz., that the appellant was junior

most cannot find our approval and cannot be accepted. In any

view of the matter and considering this long course of time, a

single post has certainly fallen vacant where the appellant can

very well be accommodated. Even if we hold that the closure of

Bhatti Mines and reduction in the activities in Gujranwala mines,

as held by the learned single judge, forced the Corporation to

terminate the services of the appellant, even then, the irresistible

conclusion must be that out of the list of 275 retrenched

employees, only the appellant’s services were terminated.

13.It is also seen that all the persons, whose names were

mentioned in the list of retrenched employees to be redeployed,

were absorbed either in Delhi Administration or any other

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undertakings/ corporations under the control of Delhi

Administration while some of them were retained in the

Corporation itself. It is only the appellant who was left out. This

action on the part of the Corporation, therefore, cannot be

accepted and accordingly, arbitrary and illegal.

14.There is another aspect of this matter. As noted herein

earlier, the learned counsel for the appellant submitted before us

that the termination of the services of the appellant by the

Corporation under sub-rule (1) of Rule 5 of the CCS Rules was

illegal and arbitrary because the appellant was a regular

permanent employee whereas the said rules would be applicable

to only temporary employees.

15.From the materials available on record, we have observed

that the services of the appellant were regularized by an Office

Order dated 23

rd

of January, 1989 with effect from the date of his

appointment i.e. 4

th

of November, 1987. Therefore, it is clear

that the appellant was not a temporary employee but a regular

employee, even if we hold that his services were not confirmed

under Regulation 3(iii). Even otherwise, the appellant could not

be equated with temporary employees because Rule 3(iv) of

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DSIDC (Staff Service Rules), 1978 defines a temporary

employee to mean “one who has not completed three years of

continuous services in the Corporation” whereas in the present

case, the appellant had already completed more than 5 years of

continuous service. Even the learned single judge in his

judgment has, at one stage, held that the appellant was not a

temporary employee. The learned single judge had gone to the

extent of saying that even if it is assumed that the corporation

wrongly applied sub-Rule (1) of Rule 5, then also, the decision

of termination cannot be said to be illegal because on an overall

conceptus of facts, there was no need of such personnel because

the work in the Corporation was reduced and the personnel were

rendered surplus. It also observed that the re-deployment could

not have been claimed as of right and the appellant could not

allege any discrimination because the appellant was the junior

most in the category of HEMM Operators.

16.We have already noted herein earlier that we are not

convinced with the explanation offered by the Corporation for

not redeploying the appellant, his termination must be held to be

arbitrary and unjust. Even otherwise, the Corporation could not

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terminate the services of the appellant by resorting to the

Temporary Service Rules and on this ground also, the

termination of the appellant was illegal and invalid and is liable

to be quashed.

17.For the reasons aforesaid, the judgments of the Single

Judge as well as of the Division Bench of the High Court are

liable to be quashed and are, accordingly, set aside and the

appeal is thus allowed. The Corporation is directed to reinstate

the appellant with immediate effect in any organization under the

Delhi Administration or absorb him within the Corporation

itself. In view of the peculiar facts of this case, no back wages

are allowed and no order as to costs.

…………………………J.

[ TARUN CHATTERJEE ]

NEWDELHI: …………………………

J.

September 23, 2008 [ HARJIT SINGH

BEDI ]

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