K. ALEXversusDELHI STATE MINERAL DEV. CORPN.

,1                         (2008] 13 S.C.R. 945


                             K. ALEX                                A
                                 v.
               DELHI STATE MINERAL DEV. CORPN.
                  (Civil Appeal No.5797 of 2008)

                          SEPTEMBER 23, 2008
                                                                    B
      [TARUN CHATTERJEE AND HARJlT SINGH -BEDI, JJ.]

           Service Law:
            Re-deployment of retrenched employees - Policy of,
      adopted by employer-Corporation - Appellant, one such re-     c
      trenched employee - Employer implemented its re-deploy-
      ment policy in case of all retrenched employees exceptAp-
      pellant - Services of Appellant were terminated - Held: Ter-
      mination was arbitrary, unjust, discriminatory and violative of
      right to equality - Reasoning that Appellant was junior-most D
      cannot be accepted - Even otherwise, Appellant was not a
      temporary employee and the employer could not have termi-
      nated him by resorting to the Temporary Service Rules - Di-
      rection to employer to reinstate Appellant with immediate ef-
      feet - Central Civil Services (Temporary Service) Rules, 1965 E
      - r. 5 - Staff Service Rules of OS/DC, 1978 - r.3.
              The Respondent-Corporation had retrenched some
        of its employees including Appellant. Pursuant to a policy
       decision, it issued a list of such retrenched employees
       for re-deployment in Delhi Administration or undertakings/ F
       corporations under the control of Delhi Administration. In
     · the said list, the name of App_ellant appeared at serial No.
       48. However, the Corporation, instead of re-deploying
       Appellant as per the policy abovementioned, terminated
       his services under sub-rule (1) of Rule 5 of the Central G
       ·civil Services (Temporary Service) Rules, 1965 read with
•      Rule -'1 (ii) of the Staff Service Rules of DSIDC, 1978 .
           Appellant filed writ petition challenging his order of
                                   945                              H
   946       SUPREME COURT REPORTS             [2008] 13S.C.R.


A termination as illegal, unjust and arbitrary. The High Court,
  while holding that the termination of Appellant by 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 and thus
B affirmed the order of termination passed against him.
        The questions which arose for consideration in the
  present appeal were as to i) 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
c though his name appeared at Serial No.48 in the list of
  retrenched employees to be redeployed and when all but
  the appellant were re-deployed and that in any event ii)
  whether the services of Appellant could not be terminated
  under Rule 5 of the CCS rules, since he was a regular
D employee.
         Allowing the appeal, the Court
        HELD:1.When the services of an employee are ter-
  minated on closure of a project or for some other reason,
E the employee cannot seek re-employment in some other
  organization as of right. But the present case is not so
  much about the appellant's right to hold the post on abo-
  lition of post but about the appellant's right to claim re-
  deployment in terms of the policy of the Corporation par-
F ticularly when the policy was implemented in respect of
  all the other employees who were retrenched and simi-
  larly placed. [Para 11) [952,F-G]
        2.1. Out of the list of 275 retrenched employees, only
  the services of the appellant were terminated. Therefore,
G it is difficult to conceive how in the single case of the ap-
  pellant only, his services could not be restored. This is
  discriminatory in nature and violative of the right to equal-   ~
  ity. The explanation offered viz., that the appellant was
  junior most cannot be accepted. In any view of the matter
H and considering this long course of time, a single post
           K. ALEX v. DELHI STATE MINERAL DEV. .          947
                          CORPN.

has certainly fallen vacant where the appellant can very· A
well be accommodated. [Para 12] [952,H; 953,A-B]
      2.2. Also all ·the persons, whose names were men-
tioned in the list of_ retrenched employees to be rede-
ployed, were absorbed either in Delhi Administration or
any other undertakings/ corporations under the control 8
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, there-
fore, cannot be accepted and accordingly, arbitrary and
illegal. [Para 13] [953,D-E]                                 C
    · 3. There is another aspect of this matter. The services
 of the appellant were regularized by an Offi~e Order dated
 23rd of January, ·1989 with effect from the date of his ap-
 pointment i.e. 4th of November, 1987. Therefore, it is clear
                                                                 0
 that the appellant was not a temporary employee but a regular
 employee, even if it is held that his services were not con- .
 tirmed. Even otherwise, the appellant could not be equated
 with temporary employees because Rule 3(iv) of DSIDC
 (Staff s·ervice Rules), 1978 defines a temporary employee to .E
 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 con-
 tinuous service. [Paras 14, 15] [953,E; 953,G-H; 954,A·B]
     4. The explanation offered by the Corporation for not F
redeploying the appellant is not convincing, hence, his.
termination must be held to be arbitrary and unjust. Even
otherwise, the Corporation could not terminate the ser-
vices of the appellant by r.esorting to the Temporary Ser-
vice Rules and on this ground also, the termination of the G
appellant was illegal and invalid and is liable to be
quashed. The Corporation is directed to reinstate the ap.
pellant with immediate effect in any organization under
the Delhi Administration .or absorb him within the Corpo-
ration itself. [Paras 16, 17] [954,E-G]
                                                           H
     948       SUPREME COURT REPORTS                   [2008) 13 S.C.R.


A         CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5797
     of 2008

          From the Order dated 221212006 of the High Court of Delhi
     at New Delhi in l.P.A. No. 366 of 2006

B         M.N. Krishnamani, Ranjit Sharma and Debasis Misra for             \.
     the Appellant.

          Gau rang kanth, Rahul Kumar and Ambar Qamaruddin for
                            ,,
     the Respondents.

c          The Judgment of the Court was delivered by

           TARUN CHATTERJEE, J. 1. Leave granted.
        2. Tllis 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
D
  the High Court had affirmed the decision of the learned single            l-
  judge dismissing the Writ Petition of the appellant whereby he
  sou9ht to challenge the termination of his services from the Delhi
  State Mineral Development Corporation (in short, "The Corpo-
  ration") as illegal, unjust and arbitrary.
i=
         3. The brief facts leading to the filing of this appe:al .may be
     summarized as under :-                                    '

        4. The appellant was appointed as a heavy vehicle driver
  by the Corporation on temporary basis on 3rc1 of November, 1987
F in the pay scale of Rs.1400-2600/-. By an order dated 23'd of
  January, 1989, the services of the appellant were regularized
                                                                                 .....
  with effect from the date of his appointment. In 1992, the Cor-
  poration retrenched some of its employees on the ground of
  reduced activities of the Corporation;Accordingly, a Circular
G dated 27tt• of August, 1992 was issued to this effect along with
  a list of mtrenched employees to be redeployed in Delhi Ad-
  ministration 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 ap-
H pellant that the Corporation, instead of redeploying the appel-
                       K. ALEX v. DELHI STATE MINERAL DEV.              949
                          CORPN. [TARUN CHATTERJEE, J.]
.. )        lant as per the policy abovementioned, terminated his services A
 •
            by an order dated 13th of July, 1993 under sub-rule (1) of Rule 5
            of the Central Civil Services (Temporary Service) Rules, 1965
            (in short "the CCS Rules") read with Rule 7 (ii) of the Staff Ser-
            vice Rules of DSIDC, 1978.

       -I         5. Feeling aggrieved, the appellant approached the High B
            Court of Delhi challenging the aforesaid order of termination as
            illegal, unjust and arbitrary. By an order dated 15th of Decem-
            ber, 2005, the learned single judge, while holding that the termi-
            nation of services of the appellant treating him as a temporary
            employee was not proper, dismissed the writ petition on the c
            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 Ap-
'~          peal, which was, however, dismissed by the judgment and or-
            der dated 22nd of February, 2006. It is this decision of the High 0
 ~'
:t    i     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      E
            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 the Staff Service Rules of DSIDC, which are required to be
                                                                               F
 ..   ~
            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) ofthe Staff Service Rules of DSIDC,
            1978, sub•rule (1) of Rule 5 of the CCS Rules, 1965 may be'
                                                                              G
            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
                                                                               H
    950       SUPREME COURT REPORTS                    [2008] 13 S.C.R.

                                                                            .(
A         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
B         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
c         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
D         termination of his services or, as the case may be, for
          the period by which such notice falls short of one month."        ..
          Rul,e 7 (ii) of the Staff Service Rules, DSIDC reads as under:-
                                                                                  •
          "Matters not specifically covered in these service rules
E         shallbe 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:-
F
          "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.
G The learned counsel for the appellant argued at the first instance
   that the termination of the services of the appellant by the Cor-
  .poration was illegal and arbitrary inasmuch as the policy of re-
   deployment of retrenched employees published by Circular
   dated 271h of August, 1992 was not at all given effect to in the
H case of the appellant. The learned counsel for the appellant fur-
                          K. ALEX v. DELHI STATE MINERAL DEV.              951
          )                                                 -
                             CORPN. [TARUN CHATTERJEE, J.]

               ther submitted that the services of the appellant were terminated A
               under Rule 5 of the CCS rules, even though the appellant was a
               regular employee. It was further submitted by the learn'ed coun-
~
               sel for the appellant that the Corporation had a policy of rede-
 '
.'             ploying retrenched employees and in accordance with its policy,
          ~
               the name of the appellant was included at Serial No. 48 in the B
               list of retrenched employees to be re-deployed but the Corpe-
j              ration redeployed all the employees except the appellant. The
~
               learned counsel for the appellant finally contended that the ser-
               vices of the appellant were terminated when the appellant was
               35 years old i.e. at the time when the services of the appenant   c
               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 D
               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 be- E
               yond 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 em-
               ployment provided by the Corporation. The learned counsel for
     j.
          ~    the Corporation also argued that the services of the appellant F
               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-de-
                                                                                  G
               ployment of the appellant, it was argued by the learned counsel
               for Corporation that no orders were received from the Delhi
          ·~   Administration regarding !he appellant's re-deployment after 2?1h
               of August, 1992 till the date of his termination and therefore, no
               discrimination could be alleged by the appellant.
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      952       SUPREME COURT REPORTS                 [2008] 13 S.C.R.
                                                                           1



 A        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
  B employees to be redeployed and when all but the appellant were
    redeployed. Before· we answer this question, we deem it ap-
    propriate to reproduce the findings of the High Court on this
    question while affirming the decision of the learned single judge,
    which are as under: -
 c          "........ 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-
  D         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
  E         most operator and cold not claim to be re-employed as
            of right. . ...... "

           11. Having exam med closely the above findings of the High
    Court in the light of the materials on record and the factual ma-
- F trix of this case, we find that it is true that when the services of   ,.   4.

    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
  G the post on abolition of post but about the appellant's right to
    claim re-deployment in terms of the policy of the Corporation
    particularly when the policy was implemented in respect of all
    the other employees who were retrenched and siinifarty pTaced.
          12. Out of the list of 275 retrenched employees, only the
  H services of the appellant were terminated. Therefore, it is diffi-
                                                                                 •
                        K. ALEX v. DELHI STATE MINERAL DEV.                 953
     ),
                           CORPN. [TARUN CHATTERJEE, J.]

             cult to conceive how in the single case of the appellant only, his A
             services could not be restored. This, in our view, is discrimina-
             tory in nature and violative of the right to equality. The explana-
             ti on thus offered viz., that the ap'pellant 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 B
             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 conclu- c
             sion 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,
     i       were absorbed either in. Delhi Administration or any other un- D
             dertakings/ corporations under the control of Delhi Administra-
             tion 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.                                                E
                   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 per-       F
             manent employee whereas the said rules would be applicable
             to only temporary employees.
                     15. From the materials available on record, we have ob-
             served that the services of the appellant were regularized by an
                                                                              G
             Office Order dated 23rc1 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 appel-
                                                                              H

..
    954      SUPREME COURT REPORTS                 [2008] 13 S.C.R.


A lant could not be equated with temporary employees because
  Rule 3(iv) of DSIDC (Staff Service Rules), 1978 defines a tem-
  porary 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
B 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 corpo-
  ration wrongly applied sub-Rule (1) of Rule 5, then also, the
c decision of termination cannot be said to be illegal because on
  an overall conceptus of facts, there was no need of such per-
  sonnel because the work in the Corporation was reduced and
  the personnel were rendered surplus. It a!so observed that the
  re-deployment could not have been claimed as of right and the
D appellant could not allege any discrimination because the ap-
  pellant 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
E be arbitrary and unjust. Even otherwise, the Corporation could
  not terminate the services of the appellant by resorting to the
  Temporary Service Rules and on this ground also, the termina-
  tion of the appellant was illegal and invalid and is liable to be
  quashed.
F        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
G 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.
    B.B.B.                                        Appeal allowed.