Plea to treat officer at par with the other colleagues upheld by the court: Delhi High Court
The Delhi High Court, in a matter, upheld the plea of the petitioners filed to be placed at par and demanded equal treatment like all his batch-mates as per Central Civil Service (Temporary Services) Rules, 1965. The same was observed in a recent matter of Kamlesh Singh Kushwaha v. The Director (RL) and Ors. [W.P. (C) 3248 /2019]. The proceedings of the above case were held on 10th September 2021, and the proceedings were presided by a division bench, consisting of Justice Rajiv Shakdher &amp; Justice Talwant Singh. The comprehensive facts of the case concerning are as follows. The writ petition had been filed impugning the order of the Central Administrative Tribunal. As per petitioners, he was re-instated in the service, of which he was terminated after 10 years of service. However, the reinstatement was contended to be in violation with the Recruitment Rules as instituted under Central Civil Service (Temporary Service) Rules, 1965. The petitioner also submitted that that the order was passed after hearing the submissions advanced by learned counsel for the respondents and those submissions were also recorded and considered in the said order by Central Administrative Tribunal. Thus, it could not be said that the respondents did not get the opportunity to defend themselves. The tribunal considered that petitioners had given 10 years of services without any complaint. Further his work wasn’t even unsatisfactory to endorse his disqualification from the service. The Tribunal ordained that “there is no allegation of any misconduct against the petitioner which makes it undesirable to permit him to continue to serve the respondent. Accordingly, we direct the respondents to, without prejudice to the rights and contentions of either of the parties, reinstate the petitioner in service forthwith.” The matter was again reinstituted in the Delhi High Court. The court, after observing the facts, evidences scrutinized and hearing the counsels, opined that “Insofar as the petitioner’s grievance is concerned, that respondents have taken steps, in the interregnum, which are detrimental to his interest, the Tribunal, inter alia, will examine this grievance as well, and grant relief, if it falls within the purview of the pending OA. In case, the grievance articulated by the petitioner does not fall within the purview of the pending OA, the petitioner will have liberty to file a separate action, as per law.”
12W.P.(C) 3248 2019 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 10.09.2021 KAMLESH SINGH KUSHWAHA Through: Mr. Bimlesh K. Singh Adv. ..... Petitioner THE DIRECTORAND ORS. ..... Respondents Through: Mr. Amit Sinha for Mr. R.V. Sinha Sr. G.C Mr. A.S.Singh & Mr. Sharanya Sinha Advs. HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH RAJIV SHAKDHER J.: PHYSICAL COURT HEARING] CM APPL. 30653 2021 The substantive prayers made in the application are as follows: the aforesaid writ petition “a) allow the present application and grant early Virtual physical hearing direct the respondent to treat the petitioner at par with any other Chemical Assistants of batch 2008 and also send them for special “instrumental training” along with other Chemical Assistants ” 2. Mr. Bimlesh K. Singh who appears for the applicant petitioner has broadly taken us through the backdrop in which the writ petition came to be filed in this Court. W.P.(C) 3248 2019 Accordingly the prayer made for early hearing is allowed. Insofar as the other prayer is concerned which is that the petitioner should be treated at par with his batchmates and sent for special ‘instrumental training’ is an aspect qua which observations are made The application is accordingly disposed of. W.P.(C) 3248 2019 & CM No. 14907 2021in Review Application preferred by the Union of India in respect of the order dated 23.07.2018. By the order dated 23.07.2018 the Original Application preferred by the petitioner had been allowed and he had been directed to be reinstated in service from which he was terminated after about 10 years of service on the ground that when he was appointed he was not qualified in terms of the Recruitment Rules. This wisdom has dawned on the respondent after 10 years of the petitioner rendering service. The respondent had then preferred writ petitions before this court in the present case as well as other connected cases being WP(C) Nos. 10235 2018 10239 2018 10240 2018 & 10241 2018. The said writ petitions were initially taken up on 27.09.2018. On that day the submission advanced on behalf of the respondents herein was that in case the petitioners herein are reinstated the said respondents would have the right to take fresh action W.P.(C) 3248 2019 after putting the petitioner herein to notice and after conducting fresh enquiry. We may observe that the termination of the services of the petitioner herein had taken place without any enquiry against him by resort to the Central Civil ServiceRules 1965. Subsequently on 28.09.2018 respondents sought to withdraw the writ petitions with liberty to prefer a review application. Consequently the respondents herein preferred their review application before the Tribunal which has been allowed by the impugned order. The ground on which the review application has been allowed is that the initial order allowing the Original Application had been passed without granting an opportunity to the respondent to file their The submission of the petitioner is that the petitioner has been left high and dry on account of the sudden termination of services without any prior notice or hearing on the ground that the petitioner did not meet the eligibility criteria when the petitioner was appointed 10 years ago. The petitioner submits that with passage of time the petitioner has become over age and would not be able to take up any employment and he has a family to support. He further submits that the respondents could not have kept the sword hanging on the petitioner s head and arbitrarily invoked the power under the Central Civil Service Temporary Service) Rules 1965 to terminate the services of the petitioner without any prior notice or hearing. The petitioner submits that the order dated 23.07.2018 was passed after hearing the submissions advanced by learned counsel for the respondents and those submissions are also recorded and considered in the said order. Thus it could not be said that the respondents did not get the opportunity to defend themselves. The further submission is that even if the Original Applications were to be restored and heard the services of the petitioner be protected in the meantime. Considering the aforesaid pleas we prima facie find merit in the submission of learned counsel for the petitioner. Pertinently the petitioner had been serving the respondent for about 10 years without any complaint. It was not that his working was found unsatisfactory on account of the alleged lack of qualification experience in terms of the Recruitment Rules. There is no allegation of any misconduct against the W.P.(C) 3248 2019 petitioner which makes it undesirable to permit him to continue to serve the respondent. Accordingly we direct the respondents to without prejudice to the rights and contentions of either of the parties reinstate the petitioner in service forthwith. We however make it clear that such reinstatement shall not create any equity in favour of the petitioner and shall not be construed as an expression of the view of this Court on the merits of the dispute. The same shall not entitle the petitioner to claim any back wages from the date of his termination till date. He shall however be allowed to discharge his duties henceforth and shall be paid the salary accordingly. This order shall continue to operate either till the disposal of the present writ petition or till the disposal of the Original Application whichever is earlier and the same shall merge with the orders that may be passed finally by the Court Tribunal. In the meantime we make it clear that the pendency of this petition shall not come in the way of the Tribunal hearing the Original Application and deciding the case. Neither party shall seek nor be granted any undue adjournment by the Tribunal. List on 08.11.2019”. 6.1. As would be evident on a plain reading of the aforesaid extract of this Court’s order dated 01.04.2019 a direction has been issued to the Central Administrative Tribunal to continue with the hearing of the original application i.e. OA No.2457 2018. 6.2. Counsel for the parties inform us that the pleadings are complete in the aforementioned OA and the matter is ripe for hearing. 6.3. As is apparent from the record the petitioner had approached the Tribunal by filing the aforementioned OA to assail the order of termination dated 12.06.2018.6.4. The basic grievance of the petitioner was that after he had been in service for nearly 10 years he was removed from service based on the investigation conducted by the Directorate General of Vigilance in 2009 W.P.(C) 3248 2019 writ petition. No.2457 2018. directions: concluding that there was a doubt with regard to his qualification. 6.5. The Tribunal in the first round agreed with the petitioner and via order dated 23.07.2018 passed in the aforementioned OA had set aside the order of removal as also the consequential orders. It appears that thereafter the respondents preferred a review application qua the aforementioned order dated 23.07.2018 which was allowed by the Tribunal vide order dated 22.02.2019. It is against this order which is dated 22.02.2019 that the petitioner has instituted the instant Having regard to the fact that the Tribunal is hearing the original application of the petitioner once again in our view the best course forward would be to allow the completion of hearing in that matter i.e. OA 7.1. Therefore the writ petition is disposed of with the following The Tribunal is requested to dispose of the original application i.e. O.A. No. 2457 2018 at the earliest though not later than 2 months from the date of receipt of a copy of the order. ii) Pending disposal of the aforementioned OA the interim directions issued by this Court vide order dated 01.04.2019 will continue to operate. In case the Tribunal were to pass an order which is adverse to the interest of the petitioner the interim directions contained in the order dated 01.04.2019 will operate for further 4 weeks commencing from the date of the order. Insofar as the petitioner’s grievance is concerned that respondents have taken steps in the interregnum which are detrimental to his interest the Tribunal inter alia will examine this grievance as well and grant relief W.P.(C) 3248 2019 if it falls within the purview of the pending OA. In case the grievance articulated by the petitioner does not fall within the purview of the pending OA the petitioner will have liberty to file a separate action as per law. iv) Parties and or their counsel will appear before the Registrar of the Tribunal on 17.09.2021 to enable the matter being placed before the concerned bench for appropriate orders. 7.2. As addendum to what we have said in paragraph 7.1 above we may observe that the petitioner’s grievance appears to be that he is not placed at par with officers in his batch i.e. 2008 batch therefore it may be possible to grant this relief to the petitioner in the pending OA as part of consequential relief provided the petitioner succeeds in the main matter. The writ petition and the pending application are disposed of in the aforesaid terms. All concerned will act on the digitally signed copy of this order. RAJIV SHAKDHER J TALWANT SINGH J SEPTEMBER 10 2021 nk Click here to check corrigendum if any W.P.(C) 3248 2019 