Once the position in law is as aforesaid, i.e. that by interim order none can be permitted to occupy a public office and once the balance of convenience is in favour of the respondents and not in favour of the petitioner, inasmuch as the petitioner if ultimately succeeds can always be reinstated to the same position. Such was the verdict declared in the case of Wg. Cdr. Nidhi Badhani vs. Union of India & Ors., W.P.(C) 5871/2021 while dismissing a similar petition and the particular case also laid the premise for the Delhi High Court to follow in the case of WG CDR Kusum Thakuri and others v. Union Of India [W.P.(C) 5913/2021 & CM APPL. 18644-46/2021]. The case was adjudged by a two judge bench comprising Justice Navin Chawla and Justice Asha Menon on 11th June 2021.
The facts of the case are as follows. The petitioners were commissioned as Short Service Commissioned Officers (SSC). The respondent released an HR Policy on January 16, 2019, outlining the requirements for such officers to be considered for a Permanent Commission. The petitioners were considered for Permanent Commission in 2019 and 2020 under the specified policy. They were considered again in 2021, but were judged unfit for the grant of the Permanent Commission on all three occasions. The petitioners petitioned the learned Tribunal on 03.06.2021, expressing common pleas, after being aggrieved by the order dated 24.05.2021 declining to award Permanent Commission. The petitioners’ learned counsel claims that the petitioners’ request for a Permanent Commission was denied unfairly and without explanation. She claims that even if the petitioners are ultimately given relief, they may face bias based on seniority and rank.
After an in depth perusal of the facts and arguments resented, the court was of the opinion that there is no infirmity in the orders impugned and hence the petition was dismissed. The court relied on the judgment passed in the case of Wg. Cdr. Nidhi Badhani vs. Union of India & Ors., W.P.(C) 5871/2021 and the exact words as quoted by the court are, “As noted hereinabove, the petitioners approached the learned Tribunal only on 03.06.2021. The petitioners have also participated in the consideration process for grant of Permanent Commissions in terms of the HR Policy of 2019. Therefore, prima facie there appears to be not only considerable delay in filing of the petitions before the learned Tribunal but also the petitioners may be considered as estopped from challenging the retrospective application of the HR Policy of the respondents, having participated in the selection process in terms thereof.”