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Delhi High Court dismissed the petition and held that the Court in exercise of power under Article 226 of Constitution of India does not substitute its view for the view of the competent authority.

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Title: RABINDRA KUMAR SAHA versus UNION OF INDIA & ORS.

Judgment delivered on: 18th July, 2023

+ W.P.(C) 9118/2023 & CM APPL. 34697/2023

CORAM:  HON’BLE MR. JUSTICE SANJEEV SACHDEVA

      HON’BLE MR. JUSTICE MANOJ JAIN

Introduction

The fact that the petitioner’s term has been reduced alone does not mean that the decision was not made with the organization’s best interests in mind.  The Delhi High Court denied the plea and ruled that, in using its powers granted by Article 226 of the Indian Constitution, the court cannot substitute its own judgement for that of the appropriate authorities.

Facts of the case

The petitioner requests the quashing of the decision dated 09.06.2023, among other things, on the grounds that it is against the posting policies issued by the respondent on 14.05.1999 and 15.01.2013. Additionally, the petitioner asks the respondent to issue a directive allowing him to keep his position as Chief Engineer (P) at Project Chetak.

By the impugned order dated 09.06.2023, petitioner has been posted to Headquarters, Director General Border Road (DGBR) at New Delhi.

The petitioner challenges the ruling on the grounds that the petitioner’s posting duration was reduced from the customary tenure of two to three years. Furthermore, it is argued that the correct and mandated posting and transfer procedure was not followed in this particular instance. The petitioner’s claims that the proper posting procedure requires the suggestion of posting at his level to be routed via the Additional Director General (HQs) for determination at the level of DGBR.

Analysis of the court

It is a well-established legal principle that the Court, when exercising its powers under Article 226 of the Indian Constitution, does not replace the opinion of the competent authority with its own. The decision was made by the appropriate authority, the DGBR, taking into account organisational restrictions and organisational interest. The fact that the petitioner’s term has been reduced on its own does not mean that the decision was not made with the organization’s best interests in mind.

The posting policy, which the petitioner also cites, states that postings must take organisational needs into account and that these needs would take precedence over all other factors.

Given the structure of the organisation, the officer’s personal interests will take a back seat to organisational and functional requirements, which will take precedence over all other factors. There is no question that the Director General of Border Road is the senior and most competent authority with regard to posting. The contested posting order was issued by the Director General Border Road, or DGBR, of the relevant authority.

The competent authority has taken into account both the petitioner’s representation and the ADG (North-West)’s proposal, but due to organisational limitations, he has chosen not to recall either and has rejected the representation.

Additionally, we reject the claim made by the petitioner’s knowledgeable attorney that the proper procedure was not followed. The Director General Border Roads has final say in all matters.

It is not implied that the responsible authority did not take into account all pertinent factors and organisational interest only because it is claimed that the suggestion for the posting was not routed through the ADG (HQs). It is also undisputed that the ADG (HQs) recommendations are not binding on the DGBR, the final decision authority, as the DGBR is a superior authority to the ADG (HQs). It is also undisputed that the DGBR has the authority to reject the ADG’s recommendations.

We believe that the decision made by the competent authority, the DGBR, does not require interference even if there was a procedural error in not passing the file through the ADG (HQs), given that the DGBR has already considered the recommendation and representation and taken a decision in the organization’s best interest. The respondent’s argument that the file should not be sent to ADG (HQs) and that correct procedure has already been followed is, of course, unaffected by this.

we find that no malafide can be attributed to the respondent and impugned posting order does not warrant any interference by this Court.

Merely because there is an instance of an officer whose posting orders have been repeatedly changed citing organizational interest would not imply that in the case of the petitioner, organizational interest has not been kept in mind.

we find that there is no infirmity in the posting order or that the same warrants interference in exercise of power under Article 226 of Constitution of India. We find no merit in the petition.

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Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal

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Title: LT COL PRAVAL PETER RETD & ORS. versus UNION OF INDIA & ORS.

Reserved on: 14th July, 2023

Pronounced on: 18 th July, 2023

+ W.P.(C) 3042/2023 & CM APPL. 11815/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. JUSTICE SATISH CHNADRA SHARMA

    HON’BLE MR. JUSTICE SANJEEV NARULA

Introduction

Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal, Keeping in mind the principles outlined in the judgment of Squadron Leader Neelam Chahar and also keeping in mind a more prudent redressal path for petitioner which is more efficient and effective.

Facts of the case

The petitioners, who were ‘premature retirees’ from the Indian Army and Air Force, held Permanent Commissions before their early retirement. According to them, their retirement pension and other perks were Due to their failure to fulfil the required twenty years of service, which is a requirement for getting a full pro-rata service pension, it was unjustly denied to them.

The Petitioners were allegedly forced to retire early after successfully completing 10 years of service, but before reaching the twenty-year milestone, due to reasons beyond their control. Despite the fact that this early exit was approved by the appropriate authority, the petitioners argued that the respondents had conveniently ignored the pre-commissioning military training and reserve service periods, which when taken into account would total more than the required twenty years of service for the grant of a service pension. They should be qualified for the pension because these periods were essential and contributed to their overall service time.

The Petitioners demand service pension, even on a pro rata basis, due to them on reason of their early retirement, based on the afore-noted inconsistencies in computation of their service periods and application of criteria for providing benefits to them.

They had previously filed a writ petition [W.P.(C) 11893/2021], but due to the nature of the reliefs requested, it was rejected by order dated October 22, 2021, with the liberty to continue agitating the subject by launching a public interest lawsuit [“PIL”].

Petitioners elucidated their personal interest in the matter and urged the Court to consider their case within the ambit of the aforesaid writ petition, rather than as a PIL.

The policy dated February 19, 1987, which reportedly served as the basis for Respondents’ decision to deny benefits of pro-rata pension and other benefits like pension commutation and ex-servicemen status, was among the policies that Petitioners sought to have declared invalid in the instant petition in the nature of a PIL. They also sought a writ of certiorari to overturn the existing policy, non-statutory pension regulations, and other related instructions.

Analysis of the court

According to Regulation 34 of the Pension Regulations for the Army, 2008, which stipulates a minimum qualifying service of twenty years as a prerequisite for officers to receive service or retiring pension, the impugned communication, dated April 24th, 2019, cited in the aforementioned prayer clause, is Respondents’ decision.

Respondents claim that because the Petitioners are considered premature retirees, they are not eligible to benefit from Ministry of Defence policy dated 19th February, 1987.

It is important to emphasise at this point that the Petitioners fall under the purview of the Armed Forces Tribunal Act, 2007, and have access to a specialised forum for airing their complaints, the Armed Forces Tribunal (the “AFT”). However, the Petitioners opted to file a writ petition before this Court given to the ambiguity surrounding AFT’s ability to consider issues about the constitutionality of subordinate legislations, including rules, regulations, notices, and circulars.

Fortunately for the Petitioners, a recent decision by the full bench of this Court in Squadron Leader Neelam Chahar v. Union of India and Others, W.P.(C) 9139/2019, has clarified the issue surrounding the competence of the AFT to entertain petitions challenging circulars, statutory rules, regulations, and policies. The court held that the Armed Forces Tribunal is competent to hear the challenge to the vires of the subordinate legislations, rules, regulations, notification.

We feel that the AFT, given its specialised character, would provide a more swift determination for the Petitioners’ complaints given the recent clarification provided by the judgement mentioned above and taking into account the larger circumstances. There is no question that the Petitioners have a direct, personal interest in the issue, which usually precludes using a PIL. We are also aware that the petitioners who filed the current PIL did so with the freedom provided by a coordination bench, and that their perception of our decision to refer their case to the AFT may be unjust given that they have been exploring legal options since 2021 without receiving any redress.

However, our understanding relating to the jurisdiction of the AFT, has evolved in the wake of the judgment referenced above. Therefore, it becomes prudent to steer the Petitioners towards a path of redressal that is more fitting, efficient, and effective i.e., the AFT.

The current PIL is dismissed, together with any related ongoing petitions. The Petitioners are given the freedom to express the complaints made in their petition before the Armed Forces Tribunal while keeping in mind the guidelines provided in the aforementioned Squadron Leader Neelam Chahar judgement.

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Delhi High Court set aside the Show cause notice and allowed the writ of mandamus as DG’s displeasure is not a penalty stated in Rule11 of the CCS (CCA) Rules, 1965

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Title: RAJDEEP CHOWDHARY Versus UNION OF INDIA AND ORS.

Reserved on: April 25, 2023

Pronounced on: July 14, 2023

+ W.P.(C) 8135/2019

CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT

     HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Introduction

Delhi High Court set aside the Show cause notice and allowed the writ of mandamus directing the promotion of petitioner to the post of Deputy Commandant, if found eligible.

Facts of the case

The petitioner asserts that while employed by the 66th Battalion of the BSF as Assistant Company Commandant, he was also administratively searching for two more platoon jobs. An FIR with the number 306/2012, under Sections 8/221/29/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was filed in Jaisalmer, Rajasthan on August 8, 2012, alleging the arrest of four civilians in Jaisalmer City with 8 kg of heroin and $4.35 million in Indian currency that had been smuggled from Pakistan during the previous night of August 4, 2012, to August 5, 2012.

Inspector General (IG) (Head Quarter), BSF, Jodhpur directed a staff court of inquiry to look into how the heroin entered the specified region. Nothing indicated any carelessness or laziness on the part of those in charge.

The Deputy Inspector General (DIG) SHQ, BSF advised the IG (HQ) that the investigation was finished and that no one should be held accountable until the investigation is over or the incidence has been verified by the police in light of the aforementioned inquiry report dated 6.11.2012.

The IG (HQ) on 30.05.2013 advised action against the petitioner for his involvement in failing in appropriate dominance, disregarding the report dated 06.11.2012 and suggestion of the DIG (SHQ) dated 10.12.2012. The petitioner herein was one of six BSF employees who were subject to the disciplinary process, and the DIG, BSF, recorded evidence against them on December 14, 2013.

After reviewing the material, the relevant DIG wrote his observations dated 09.04.2015 and noted that there was no evidence to support the accusation brought against the petitioner.

In the current appeal, the petitioner expresses his unhappiness about receiving a show cause notice from the DIG on May 12, 2016, even though the DG had already made the statements indicated above on April 9, 2015.

Analysis of the court

This Court notes that a staff court of inquiry was launched against the petitioner and other BSF officials in response to the filing of FIR No. 306/2012 under Sections 8/221/29/25 of the NDPS Act, and in an opinion dated November 6, 2012, it was determined that no one in charge acted carelessly or laxly.

Being dissatisfied with the recommendations, the IG recommended action against the petitioner and ROE and Addl. ROE were recorded. Although the petitioner was advised to be dismissed for the relevant offence in the Court of Enquiry dated 10.12.2012 and Recommendations dated 09.04.2015, he was still served with a Show Cause Notice dated 12.5.2016 for a preliminary intended transfer of the DG’s dissatisfaction. The petitioner submitted a response on May 18, 2016, in response to the aforementioned Show Cause Notice from May 12, 2016, and on June 24, 2016, he submitted a request asking for a promotion from April 1, 2014. However, the petitioner’s 18 May 2016 reply to the aforementioned Show Cause Notice of 12 May 2016 was denied by decision dated 22 July 2017 and he was informed of the DG’s “Displeasure”.

Now, the issue that has to be decided by this Court is whether the petitioner may be denied the promotion owing to the DG’s “displeasure”, especially after the case brought against him has been recommended to be dropped. This Court has reviewed the Minutes of DPC Meeting dated 19.02.2014 and 19.02.2015, where the “pendency of ROE” and not “displeasure” is cited as the grounds for continuing the petitioner’s case.

The petitioner bases his argument on the ruling in O.P. Nimesh (Supra), in which the petitioner, a DIG (Medical) in the BSF, requested promotion to the rank of IG (Medical) effective the day his subordinate received promotions. In the aforementioned matter, this Court made notice of two reasons for consideration: first, the DPC had indicated that the petitioner had received two grades below benchmark in the DPC’s APAR for the year 2012–2013; second, the DG’s “displeasure” statement was also cited in detail.

Both the petitioner in O.P. Nimesh (Supra) and the petitioner in front of this court have cited an OM from the Ministry of Home Affairs dated March 27, 2015, which states that “displeasure” is not a penalty stated in Rule 11 of the CCS (CCA) Rules.

In O.P. Nimesh (Supra), this Court held that “displeasure” was not a barrier to the petitioner’s promotion there and ordered the respondents to hold a review DPC and evaluate the petitioner’s case in accordance with the rules because the aforementioned OM dated 27.03.2015 had already been notified when DPC in the said case was held on 15.07.2015.

In our perspective, the petitioner was originally given the all-clear in 2012 itself. However, disciplinary process against the petitioner started on June 8, 2013, and the DIG made statements stating on April 9, 2015 that there was no proof shown against the petitioner based on the evidence presented. Reading through copies of the minutes from the DPC meetings on 19.02.2014 and 19.02.2015 reveals that his case was not taken into consideration for promotion because of the phrase “Due to pending ROE.”

Relevantly, the petitioner received the DG’s “displeasure” via a show cause notice from the DIG on 12.05.2016. In his reply on 05.06.2016 to the aforementioned Show Cause Notice from 12.05.2016, the petitioner conveyed the DG that there was no direct or indirect implication against him in the FIR in question. However, vide order dated 22.07.2016, the DIG rejected petitioners request dated 24.06.2016 conveying him DG’s “displeasure”.

The OM dated 27.03.2015, which specifies that “displeasure” is not a penalty stated in Rule11 of the CCS (CCA) Rules, 1965, has previously been made known. Moreover, “displeasure” has not been recorded against the name of the petitioner in the minutes of meetings that were conducted on February 19 and 20, 2014 and 2015, respectively. Additionally, respondents have not proven that the petitioner’s APARs in 2014 and 2015 fell short of the benchmark, which would have prevented him from being promoted.

The DPC played a significant role in assessing the cases of applicants for promotion, as observed by the Honourable Supreme Court and this Court in a number of rulings. A applicant’s overall effort, performance, and assiduity must also be taken into consideration in addition to the APARs for the pertinent years, particularly when a candidate is being overlooked while his or her juniors are receiving promotions.

In our considered opinion, petitioner case stood deferred for promotion in the years 2014 and 2015 due to pendency of ROE and having been given clean chit, he deserves to get promotion from the date it actually became due to him. 

In view of above-said, the present petition is allowed. In the light of OM dated 27.03.2015, the Show Cause Notice dated 12.05.2016 and order dated 22.07.2016 conveying “displeasure” by the respondents, are set aside. Naturally, if the petitioner meets the requirements, he will be elevated from Assistant Commandant to Deputy Commandant with effect from April 1, 2014, the date his juniors were promoted, and will get all related perks.

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Delhi High Court Dismissed the writ petition and upheld the verdict of the Central Administrative Tribunal, Principal Bench, New Delhi

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Title: Hansraj vs Commissioner of police & Anr.

Judgment delivered on: July 12, 2023

 + W.P.(C) 6490/2021

CORAM: HON’BLE MR. JUSTICE V. KAMESWAR RAO

    HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

Introduction

Delhi High Court dismissed the writ petition filed against the order of the Central Administrative Tribunal, Principal Bench, New Delhi (‘Tribunal’, for short) in Original Application No.4666/2014 (‘OA’, for short) whereby the Tribunal has dismissed the OA filed by three persons including the petitioner herein.

Facts of the case

The ruling dated March 10, 2014, which allowed the petitioner(s) to argue that their training period should be counted when they were promoted to Head Constable (Assistant Wireless Operator) (‘HC (AWO)’, was challenged in the OA by the petitioner(s) therein was rejected for the purpose of increment(s).

The petitioner Hansraj (who filed this case) was first hired as a constable on August 7, 1991, and on August 7, 2000, he was elevated (absorbed) to the position of HC (AWO) in the Delhi Police’s Communication Unit. The appointment of Radio (Wireless) and MT Staff is governed by Rule 17 of the Delhi Police (Appointment and Recruitment) Rules, 1980 (the “Rules of 1980,” for short), and the appointment of AWOs and Teleprinter Operators (HC) is governed by Rule 17-B(IV). The appointment of Assistant Wireless Operator Grade-III (HC) and Teleprinter Operator Grade-III (HC) in the Delhi Police is covered by Standing Order No. 223/86, which is in line with Rule 17-B(IV) of the modified Rules, 1986, read in conjunction with Rule 13(ii) of the Rules of 1980. Following completion of the VHR R.T. Course Grade-III and six months of radio operator experience, confirmed (Matriculate) Constables were to be given the opportunity to be promoted to the coveted position.

According to the office order, a preliminary selection test was held, and those who received 33% or higher on each paper were chosen to enrol in the AWOs / Teleprinter Operator (HC) programme for a total of nine months, including three months of practical training, in batches. The constables are expected to take a test administered by the Trade Test Board, designated by the Commissioner of Delhi Police, after completing the AWO/TPO Grade-III Course, and they must receive the appropriate score in accordance with Standing Order No. 223/86.

According to Rules from 1980, the names of the constables chosen by the DPC are listed on List B (Technical) in the order of their seniority in the rank of Constable in their respective categories A promotion order is then issued in accordance with Rule 7 of the Rules of 1980.

Analysis of the court

The order dated March 10, 2014, which was based on the petitioner/applicants’ representations on October 8, 2013 and November 27, 2013, was challenged before the Tribunal. In their representations, they requested that the training period for promotion to the post of HC (AWO) be counted for the purpose of increment(s) in the scale of the concerned post.

AWO/Teleprinter Operator (HC) Course for a period of nine months, including three months of practical training in batches according to the merit list, followed by AWO/Teleprinter Operator (HC) Course for a period of nine months, including three months of practical training in batches according to the merit list, which is also followed by a test conducted by the Trade Test Board, may be stated here. According to the respondents’ position, which was noted above, it is clear that the final promotion order to the post

Accordingly, promotion orders are issued and the chosen constables are added to List B (Technical) in the order of their seniority. Direct recruiting does not follow the aforementioned process. There is unquestionably no reason to calculate the training time for the purpose of awarding increment(s), much less on the post of Head Constable, when the constable is still in the training phase and has not been officially or by an order promoted to that position. Only after receiving an order of promotion as HC (AWO) would a constable begin serving in the position of head constable. The petitioner’s claim that the training duration is not taken into account for the purpose of increment(s) in the grade of Constable

In other words, the petitioner was working as a constable during the training period rather than a Head Constable; as a result, the time would only be relevant for the purpose of awarding an increase on the position of Constable and not Head Constable. We previously discussed the respondents’ position on why a directly hired HC (AWO) / Teleprinter Operator is entitled to the scale of Head Constable; specifically, that the straight recruit Head Constable must complete training after being hired as HC (AWO) / Teleprinter Operator.

The Madras High Court’s ruling in Nuclear Power Corporation & Anr. (supra), in which OMs dated October 22, 1990 and March 31, 1992 were mentioned, is not applicable to the facts of this case, especially in light of the position under the Rules of 1980. In the aforementioned instance, the Department of Atomic Energy; Madras Atomic Power Project, an enterprise of the Government of India, issued an invitation for applications to the post of Stipendiary Trainees under several employment categories. A number of applicants were chosen and hired as stipendiary trainees with combined monthly compensation. The trainees were assimilated and assigned to the regular positions of Tradesman-B, bearing the normal time scale of pay, and Apprentice after successfully completing the training term.  In accordance with how well they performed during the training time, they were also granted one or two increments. According to the DoP&T’s OM dated October 22, 1990, a person who is chosen for a regular appointment and who must complete training before officially taking over the post may be treated as working for the purpose of receiving raises during the training period, whether they are receiving pay or a stipend. The benefit in question was given starting on October 1, 1990. A second OM, issued March 31, 1992, extended the same benefit to government employees who had received the training on or after January 1, 1986, with real benefits beginning on October 1, 1990. This OM was the one that came after the first.

Here, it is not the case. As a matter of fact, the aforementioned OMs apply to the position of HC (AWO)/Teleprinter Operator when the appointment is made through direct recruiting, but not to the position of HC (AWO) when the appointment is made through promotion.

 Therefore, we believe that the Tribunal’s decision to dismiss the OA cannot be criticised. We find no justification for interfering with the Tribunal’s contested order. The writ petition is rejected because it lacks any merit.

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Delhi High Court held that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools.

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Title: BHARAT MATA SARASWATI BAL MANDIR SENIOR SECONDARY SCHOOL vs VINITA SINGH AND ORS.

Date of Decision: 07th July, 2023

+ LPA 601/2022 & CM APPLs. 45446-45447/2022

CORAM: HON’BLE MR. JUSTICE MANMOHAN HON’BLE MS. JUSTICE MINI PUSHKARNA

Introduction

Delhi High Court dismissed the appeal filed against the judgement dated 14th December, 2021, whereby the writ petition filed by three teachers seeking payment of 7th Central Pay Commission (hereinafter referred to as ‘7th CPC’) has been allowed and held that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues.

Facts of the case

The pertinent information is that respondents 1 through 3 have been regularly employed by the appellant institution. Respondent No. 5/Directorate of Education (DOE) issued a notification on October 17, 2017, requesting that all private recognised schools adopt the recommendations of the 7th CPC. Respondents 1 to 3 sought this Court by filing a writ case after the appellant school refused to extend the benefit of the 7th CPC. By the impugned judgement on 14th December 2021, the learned Single Judge found that the respondents 1 through 3 herein were entitled to arrears of their benefits/salaries beginning on January 1, 2016, and also required the school to give them in accordance with the 7th CPC’s rules. Hence, the current appeal has come to be filed by the school.

Analysis of the court

The Delhi High court held that the writ petition filed by the three teachers was maintainable as it involves a public law element, inasmuch as, the original writ petitioners were seeking the implementation of Section 10(1) of the Delhi School Education Act, 1973 (DSE Act, 1973)

In reality, the writ petitioners sought implementation of the circular/order/notification dated October 17, 2017 issued by DOE requiring the schools to pay teachers’ wages in line with the 7th CPC through the underlying writ petition. In reality, the Supreme Court has unequivocally stated the following in the case of St. Mary’s Education Society (Supra):

“75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.”

Hence the present writ was maintainable.

This Court further believes that, given the recurrent nature of the claim, the writ petition submitted by the original writ petitioners is not precluded by laches or delay.

In Union of India v. Tarsem Singh (supra), the Supreme Court itself said by way of an example that remedy should be given regardless of delay if the problem relates to pay payment as it does not impact third party rights.

Furthermore, because the decision in Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation (above) deals with a matter of a higher grade pay scale in the following promotional post, which is not the situation in the present issue, it is of no use to the appellant.

To sum up, it should be stated once again that the respondents in the writ case requested the payment of their entire salaries in accordance with the 7th CPC’s recommendations. According to Section 10 of the DSE Act, a recognised private school’s pay scale and allowances, medical services, pension, gratuity, provident fund, and other permitted benefits must not be less than those of the employees in the same position at the public school. According to a statement from the DOE dated October 17, 2017, all recognised schools are required to follow the 7th CPC’s recommendations in compliance with the DSE Act, 1973. at light of this, it is unquestionable that instructors at unassisted private schools are entitled to the same pay and benefits as emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues.

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