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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

J U D G M E N T

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:

“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.