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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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Patna High Court disposed of writ petition advising the petitioner to file a detailed representation before the respondent

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TITLE: Nageshwar Choudhary v. The State Of Bihar & Ors.

Decided on: 11-07-2023

CWJC No: 6981/2014

Coram: HONOURABLE MR. JUSTICE PURNENDU SINGH 

Facts of the case:

In the present writ petition the petitioner has prayed for following relief: 

“(i) Whether the respondents are justified in not paying the pensionary dues of the petitioner though they are fully aware that every employee is entitled for their pensionary dues? 

(ii) Whether the respondents are justified in not releasing the Provident fund of the petitioner through the petitioner retired on 31.07.2012.

(iii) Whether the petitioner can be allowed to face starvation due to inaction on the part of the respondents? 

(iv) Whether the act of the Respondents in not releasing the pensionary dues of the petitioner is not an arbitrary act?”

Learned counsel appearing on behalf of petitioner informs this Court that petitioner had superannuated on 31.07.2012 from the post of Lineman, while he was working in Fatuha-Phulwari Sharif Gramin Vidyut Sahkari Samiti Limited, Patna, which was registered under the Cooperative/Society Registration Act. He further submits that the licence of the society was, later on, cancelled on 06.11.1999. The petitioner seeks to file a detailed representation before the Registrar, Cooperative Societies, Department of Cooperative, Government of Bihar, Patna (Respondent No.3). 

Analysis of the court and decision:

In view of the above submission, the petitioner, if so advised, may file a detailed representation before the respondent no.3, who is required to verify the records relating to the petitioner from the concerned Cooperative Society, where the petitioner was employed and take a final decision with respect to the claim, as has been made in the present writ petition as well as in any representation, which is pending before him on behalf of the petitioner within a period of six weeks and direct the concerned person to make payment within stipulated period fixed by him. 

With the above observations and directions, the present writ petition stands disposed of.

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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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Writ petition filed in contrary to termination of membership in the society – stands dismissed by Punjab High court

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 TITLE: Maninder Pal v Chandigarh Sector 16 Co-operative House Building Society Ltd. and Others

Decided On-: May 17, 2023

CWP No. 11685 of 2009 (O&M)

CORAM: Hon’ble Justice Mr. Jaishree Thakur  

INTRODUCTION-  The current writ petition was submitted in accordance with Articles 226 and 227 of the Indian Constitution, asking that a writ in the nature of a Mandamus be issued, ordering the respondents to permit the petitioner to continue to be a member of the respective society.

FACTS OF THE CASE-

The petitioner was the original member of the first respondent society, Chandigarh Sector 16 Cooperative House Building Society Limited (hereinafter referred to as “the Society”), which was registered under the terms of the Punjab Cooperative Societies Act, 1961, as it applied to the Union Territory of Chandigarh, and which had a share certificate number of 75 dated 28.02.2002 (Annexure P-4). She gave the Society a total deposit of Rs. 7,96,000/- for the purpose of paying the land and building costs for the category “B” flat. She repeatedly contacted the Society to inquire about the status of the apartment and any outstanding debts, but she was ignored. a dated legal notice 07.08.2007 and a reminder dated 27.08.2007 were served to the Society via Regd. A.D., but the petitioner never heard back from the Society. After learning that the Society would begin turning over the possession of flats on September 5, 2007, the petitioner’s husband made a trip to the respondent’s office on September 6, 2007, but that too ended in failure.

The petitioner then filed a revision petition in opposition to the order dated 19.11.2008 (Annexure P/16) expelling him from the respondent Society, which was also denied by the Advisor to the Administrator, U.T. Chandigarh, in an order dated 18.03.2009.

The current petition was submitted out of resentment over the petitioner’s membership in the respondent—Society being terminated.

COURT ANALYSIS AND DECISION

The petitioner’s knowledgeable attorney will argue that the petitioner was one of the Society’s founding members and that he or she actually paid the sum of Rs. 7,96,000/- towards the demand made for the allocation of a B-Category flat in the Society. The petitioner had a membership that included Share Certificate No. 75 and Folio No. 106. Despite the petitioner making several trips to the Society’s office, the flat was not assigned to her. It is argued that the lack of a notice prior to the membership cancellation violates natural justice’s rules and principles.In light of this, a writ petition has been filed, asking that the orders that have been made merit being overturned, restoring the petitioner’s membership, and allowing her to pay the outstanding dues as a result.

Contrarily, knowledgeable counsel representing the respondents would argue that there is no defect with the orders thus passed and that the Society was forced to expel the petitioner from membership in the Society because she was a defaulter because there was no other course of action. She was allegedly given several chances to pay off the Society’s unpaid debts, but she declined to do so. Numerous notices were sent out, and even though they demanded payment of the outstanding balance, the petitioner neglected to respond. As such, the petitioner does not deserve any relief

The court held “In a cooperative society, it is the responsibility and duty of each and every member of the society to contribute his money in time for construction of the dwelling unit and without contributing the amount, a project cannot be completed. The appellant has failed to deposit the amount legally due to her. Thus, the expulsion of the appellant from the society is valid”

Writ petition – dismissed

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Permit cannot be denied on the basis of petitioner’s family members owing money: Patna High Court

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TITLE: Shobha Singh v. The State of Bihar & Ors.

Decided on: 08-07-2023

CWJC No: 8178/2022

Coram: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY 

Facts of the case:

The present writ petition is filed for the following reliefs:-

“1. That this is an application to pass appropriate writ or writs, order or orders, direction or directions in the nature of Mandamus directing upon the Respondents No.3 & 4 to grant/issue the permanent stage carriage permits for the route Aurangabad to Patna, Gandhi Maidan ViaAurangabad, Arwal, Pali, Bihta, Jagdev Patha at route no. 969 on bus no. BR-26PA-0101 and bus no. BR-02PB-0101 up and down trip daily which has been considered in the Magadh Regional Transport Authority (M.R.T.A., Gaya) Gaya in the Agenda No.5 dated 15.09.2021 at Sl. 8 and 9. Which is running under BSRTC.”

It is a case of the learned counsel for the petitioner that the petitioner has applied for renewal of licence and the authorities have rejected the same on the ground that the husband of the petitioner is due an amount of Rs. 4,27,821/- and, therefore, the renewal of the licence to the petitioner cannot be granted. Learned counsel for the petitioner has stated that the said action of the respondents is contrary to the provisions of the Motor Vehicle Act and also the judgement of the Hon’ble Supreme Court in the case of Mithilesh Garg and Ors. Vs. Union of India (UOI) and Ors. reported in 1992 1 SCC 168. Further, the learned counsel has stated that the official respondents are relying on letter no. 9004 dated 06.09.1991 to reject the renewal of the petitioner. Learned counsel has also stated that the said letter no. 9004 dated 06.09.1991 on which much reliance has been placed by the official respondents was subject matter of a CWJC No. 3096 of 1996 before this Hon’ble Court and this Hon’ble Court vide order dated 23.08.1996 has set aside the said letter. 

In the counter-affidavit filed by the respondents, it is specifically stated that the husband of the petitioner was due a sum of Rs. 4,27,821/- and, therefore, as per the letter no. 9004 dated 06.09.1991, the authorities are well within their rights to reject the renewal of the petitioner if any family member of the petitioner is due amounts to the department. Learned counsel for the respondents has prayed for dismissal of the writ petition. 

Analysis of the court and decision:

Admittedly, in the present case the petitioner has applied for renewal of the licence to the authorities concerned and the same was rejected vide impugned order dated 15.09.2021 (Annexure-I). A perusal of the impugned order shows that the authorities have rejected the application of the petitioner for renewal of the licence solely on the ground that her husband is due a sum Rs. 4,27,821/- to the department and, therefore, being a family member the application of the petitioner cannot be considered. Reliance has been placed on letter No. 9004 dated 06.09.1991 to contend that if any member of the family is due any amounts to the department, the application of the petitioner for renewal cannot be considered. Admittedly, in this case a perusal of the order dated 23.08.1996 passed in CWJC No. 3096 of 1996, the very same letter No. 9004 dated 06.09.1991 has been challenged and this Hon’ble Court has held as under; “However, learned Government Pleader No. 9 when questioned, he could not satisfy me whether in view of the Motor Vehicle Act and the Rules made thereunder such direction could have been issued by the State Transport Commissioner to the effect that the petitioner’s application for renewal of the permit shall not be granted or the grant of permit shall be cancelled even if the petitioner is himself not a defaulter but any of his family members is and/or are defaulters in respect of other permits granted in their favour which he has not concerned. Regarding the above position, the court is of the opinion that the impugned order cancelling permit for non-payment of tax by other members of the family in respect of other vehicles cannot be sustained in law. Accordingly, this writ petition is allowed and the impugned order as contained in Annexure-8 is quashed.” 

Learned counsel for the respondents has fairly stated that the above order of the learned Single Judge in CWJC No. 3096 of 1996 has attained finality as no appeal has been filed by the department against the said order. 

Having regard to the above facts, this Court has to necessarily set aside the impugned order holding that the petitioner cannot be made liable for the dues, if any of any of the family members of the petitioner for renewal of the permit. Therefore, the impugned order is set aside, the official respondents are directed to consider the application of the petitioner afresh on its own merits without taking into consideration that any of the family members are due any amounts to the department. This order does not debar the department from taking necessary action for recovery of any amounts from the family members of the petitioner. It is made clear that the renewal of the permit of the petitioner cannot be rejected on the sole ground that any of the family members are due some amount. With the above direction, this writ petition is allowed to the extent indicated.

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