Kamlesh vs Union Of India Through Secretary, … on 20 January, 2020


Supreme Court of India

Kamlesh vs Union Of India Through Secretary, … on 20 January, 2020

Author: S. Abdul Nazeer

Bench: S. Abdul Nazeer, Sanjiv Khanna

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                                                                              NON-REPORTABLE



                                      IN THE SUPREME COURT OF INDIA

                                       CIVIL APPELLATE JURISDICTION

                                         CIVIL APPEAL NO.2535 OF 2011


         KAMLESH                                                           … APPELLANT

                                                       VERSUS

         UNION OF INDIA THROUGH SECRETARY
         DEPARTMENT OF POST & ORS.                                         … RESPONDENTS



                                                  JUDGMENT

S. ABDUL NAZEER, J.

1. In this appeal, appellant has challenged the legality and correctness of the

order dated 29.08.2008, whereby the High Court of Delhi has dismissed the C.M.

Application No. 8277 of 2008, arising out of W.P.(C) No. 9282 of 2004.

2. The appellant was appointed as Extra Departmental Employee (for short

‘EDE’) at village Pooth Kalan Post Office, on provisional basis. The order of the

appointment of the appellant is as under:

Signature Not Verified

Digitally signed by
ASHWANI KUMAR
Date: 2020.01.20
17:03:22 IST
Reason:

“DEPARTMENT OF POSTS
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Office Of The Sr. Superintendent Of Post Offices Delhi North Delhi-

54

Memo No. A2/142 dated at Delhi 54 the 13.7.92
Whereas the post of EDPM Pooth Kalan PO has become vacant
and it is not possible to make regular appointment to the said post
immediately. The undersigned has decided to make provisional
appointment to the said post for a period from 30.3.92 after noon
regular appoint is made.

Miss Kamlesh d/o Shri Sardar Singh, H. No. 147 Pooth Kalan,
Delhi – 41 is offered the provisional appointment. She should clearly
understand that the provisional appointment will be terminated when
regular appointment is made and she shall have no claim for
appointment to any post.

The undersigned also reserves the right to terminate the
provisional appointment at any time before the period mentioned in
para 1 above without notice and without assigning any reason thereof.

Miss Kamlesh will be governed by the EDA (Conduct and
Service) Rules 1964 as amended from time to time and all other rules
and orders applicable to EDA.

In case the above conditions are acceptable to Miss Kamlesh,
she should sign the duplicate copy of this memo and return the same
to the undersigned immediately.

Sd/-

Sr. Supdt. Of Post Offices
Delhi North Dn. 110 054.”

3. On the basis of an order passed by the Central Administrative Tribunal (for

short ‘the Tribunal’) dated 05.02.2003, the appellant made a representation for

regularization of service with benefits of seniority. This representation was

rejected by the third respondent, by order dated 28.04.2003. The appellant

challenged the said order by filing O.A. 1736 of 2003 before the Tribunal. The

Tribunal dismissed the said O.A. by order dated 07.05.2004. The respondent

passed an order on 20.05.2004 discontinuing the service of the appellant with
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immediate effect. In the meantime, the appellant filed W.P. No. 9282 of 2004,

challenging the legality and correctness of the order passed by the Tribunal dated

26.05.2004. Thereafter, the appellant also challenged the order of discontinuation

of her service dated 20.05.2004, by filing an application in the writ petition. In the

said case, the question for consideration was whether the appointee can seek

regularization by reason of prolonged service. After considering this question in

detail, the Court dismissed the writ petition by order dated 08.07.2004. Thereafter,

the appellant filed a Review Application, against the said order which was also

dismissed by the High Court on 03.12.2004.

4. The appellant filed a Special Leave Petition seeking leave to challenge the

orders of the High Court dated 08.07.2004 and 03.12.2004. The Special Leave

Petition was dismissed by this Court on 28.03.2008 granting liberty to the

appellant to approach the High Court for appropriate reliefs. Accordingly, the

appellant filed a Miscellaneous Application No. 8277 of 2008 in Writ Petition No.

9282 of 2004. The High Court by the impugned order has dismissed the

miscellaneous application.

5. On 14.03.2011, this Court passed an order directing reinstatement of the

appellant to the post of EDE, where she was working before her termination and

further, she was directed to be paid on the same basis as other similarly situated

employees are being paid on regular basis.

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6. We have heard learned counsel for the parties.

7. It is clear from the order of appointment of the appellant that she was

provisionally appointed to the post of EDE. It was clarified in the appointment

order itself that the provisional appointment will be terminated when regular

appointment is made and that she shall have no claim for appointment to any post.

The Tribunal has dismissed her claim for regularization by holding that she was not

entitled to regularization of her service. The Division Bench of the High Court has

again considered the contentions of the appellant in detail. While rejecting the

review petition filed by the appellant, the Court has observed as under:

“The petitioner had filed Original Application before the Central
Administrative Tribunal seeking regularization, which was dismissed
by the Tribunal. Against the order, he preferred writ petition, which
was dismissed by us vide our order dated 8.7.2004. While dismissing
the writ petition on merits, in the last para we also noted the statement
of the learned counsel for the respondent that after the discontinuation
of the petitioners they were replaced by regular incumbents who had
joined the services. The petitioner thereafter filed review application
pointing out that the aforesaid statement of the counsel for the
respondent was not correct as no regular incumbents had joined. This
review petition was also dismissed on 3.12.2004 clearly observing that
even if the aforesaid statement of the counsel for the respondent is not
correct and is not taken on record, it did not have any bearing on the
merits of the decision in so far as prayer of the petitioner for
regularization is concerned. The review petition was dismissed vide
said order dated 3.12.2004. It appears that the petitioner challenged
the orders passed in the writ petition as well as in the review petition
by filing Special Leave Petition in the Supreme Court. In that SLP,
order dated 28.3.2008 is passed by the Supreme Court dismissing the
SLP. In the opening para of the said order the Supreme Court took
note of the observations made in para 11 of the orders passed in the
writ petition wherein the statement of the respondent to the effect that
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regular incumbents have been appointed who have joined is noted.
After taking note of that para, submission of the learned counsel for
the petitioner is noted that he wanted to rely upon certain information
obtained by him under the Right to Information Act and taking note of
this submission the Supreme Court observed that the petitioner could
approach the High Court for this purpose to pass appropriate orders in
accordance with law. It is under these circumstances present review
petition is filed but the submission remains the same, namely, there are
no appointments on regular basis and no regular incumbents have
replaced the petitioner after their services were terminated. It is clear
from the narration of events mentioned above that this was precisely
the submission in the review petition also which was dismissed on
3.12.2004. Therefore, no fresh plea is taken on the basis of which
second review petition would be maintainable. We accordingly
dismiss the review petition.”

8. We do not find any error in the order impugned in this appeal. However, the

appellant shall be permitted to continue to hold the post of EDE till regular

appointment is made to the said post. She is not entitled for any back wages. With

these observations, the appeal is dismissed without orders as to costs.

……………………………J.

(S. ABDUL NAZEER)

……………………………J.

(DEEPAK GUPTA)
New Delhi;

January 20, 2020.



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