om:103-cl-2013-jul — If a GDS employee is working as a substitute for a regular employee, the services of such substitute employee cannot be terminated if he is working as a substitute GDS employee for more than 3 years

If a GDS employee is working as a substitute for a regular employee, the services of such substitute employee cannot be terminated if he is working as a substitute GDS employee for more than 3 years — This chunk discusses two court cases (OA No. 673 of 2010 and WP(C) No. 17727 of 2004) in which the respondents were directed to keep the applicant's name on the list of discharged/displaced GDS at th... — Facts : The two OAs are similar and hence disposed of by a common order. The Applicant in O.A. No. 286 of 2006 was initially appointed as a substitute GDS MD, MC in Bagahi Kumbhapur vide R-4 whose services were terminated as R-4 appointment was found to be irregular and the Applicant was appointed on provisional basis. R-4 moved the court in which he won and the Applicant was hence discharged. Thereafter, the Applicant was appointed to the Post of GDS MD, MC at Seruka Saiyad Raja Chandauli. However, all of a sudden the Applicant's services were terminated on 10th March, 2006. Hence he filed this OA to set aside the termination Order, dated 10-3-2006 and to continue him in that post as GDS MD, MC at Chandauli Post Office. The Respondents submit that the Applicant had not completed three years of service in the said post and relying on the judgment of High Court of Delhi, dated 13-2-2006, wherein guidelines were given to regularize provisionally appointed GDS employees with prolonged service but not selected and appointed as per GDS Recruitment Rules. The Applicant has also filed a rejoinder reiterating his earlier stand. The Applicant submits that he had put in 9 years of service and after he continued as a substitute for some times, his services, thereafter is provisional and possessed all trappings of provisional appointment such as verification, medical examination, Fidelity Bond and cash deposit. He was recently issued a charge-sheet which is possible because of his provisional appointment. The Respondent quoted the Order, dated 17-8-1998 of SDI (P) Chandauli wherein it is stated that the appointment of the Applicant shall be in the nature of contract terminable at any time. The Respondents quoted similar termination in other cases. The Respondents even though state that the appointment of the Applicant is a stopgap measure, it is a case of provisional appointment for a period of six years after the initial stopgap arrangement. They relied on the judgment of Apex Court in Rudra Kumar Sain v. Union of India [ (2000) 8 SCC 25 ], wherein the Apex Court explained in detail as to what is the nature of stopgap arrangement. The Respondents sustained their position to state that the appointment of the Applicant is only a stopgap arrangement. In the case of K. Sivakumar GDS MD (Retrenched), the Ernakulam Bench in O.A. No. 673 of 2010 held that the Respondents in that OA were directed to keep the name of the Applicant in that OA in the list of discharged / displaced GDS at the time of discharge after 3 years and consider his case subject to his fulfilling the necessary condition for appointment as GDS. The above case when referred to High Court which is reported in WP (C) No. 17727 of 2004, the High Court of Kerala held that the petitioner therein had been continuing for almost seven years in that post and no others have any superior claim. The Applicant therein is to be considered as an approved candidate for all purposes. The case of the Applicant herein is fully supported by that judgment. Even though the Respondents relied on one of the judgments of High Court of Delhi, no details of the facts are available. As a matter of fact, the judgment of Supreme Court in Rudrakumar Jain referred to above eclipses the stopgap theory when the engagement is for a substantial period. In view of the above, the Applicant had established his appointment to be continuous as provisional appointee. In view of the above, it was held: