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 3rd of November, 1987 in

the  pay  scale  of  Rs.1400-2600/-.   By  an  order  dated  23rd 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 27th 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 13th 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 15th 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 22nd 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 27th 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  27th 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 23rd of January, 1989 with effect from the date of his

appointment i.e.  4th 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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