Sandeep Kumar Chaudhary vs Union Of India And Ors

Praveen Mahajan, Member (A)

The facts of the case are that the applicant was appointed as Constable (Exe.) in Delhi Police on 05.01.2010 in the Grade Pay of Rs.2000/-. The applicant, after completing his probation period, was confirmed as Constable (Exe.) by the respondents w.e.f.05.01.2012.  It  is  stated  that  in  pursuit  of  better  career opportunities the  applicant  applied  for  the  post  of Primary Teacher in Kendriya Vidyalaya Sangathan (KVS) which carried the pay scale of Rs.4200/-. The applicant applied for the said post through proper channel which was forwarded by the competent authority on 30.09.2013. The applicant cleared the examination and was selected as Primary Teacher in KVS w.e.f. 08.09.2014.

Vide his application dated 18.09.2014, the applicant requested for extension of time to join duty as Primary Teacher in KVS, Thakkolam which request was acceded to. He was permitted to join on or before 05.11.2014.

In pursuance of the above appointment, the applicant submitted his technical resignation to the respondents and was relieved from Delhi Police w.e.f.03.11.2014. In the said order it was specifically mentioned that the lien of the applicant has been kept in Delhi Police for a period of two years as per Rules (i.e. Rule 26 (GOIs, Decision No.1) of CCS (Pension) Rules, 1972.

The applicant states that after getting the assurance that his lien in Delhi Police has been protected/kept for two years, he took a decision to join his new assignment as Primary Teacher, Kendriya Vidyalaya, CISF, Thakkolam, Chennai on 05.11.2014.

Since the applicant was not able to adjust at KVS, Thakkolam and because of other extenuating/mitigating circumstances he preferred an application dated 29.12.2014 (after 1 ½ months) to the respondents requesting that he may be allowed to re-join as Constable (Exe.) in Delhi Police in terms of the order dated 31.10.2014. Therein the applicant pointed out that his lien had been retained in Delhi Police for a period of two years vide order dated 31.10.2014.

The respondents vide their letter dated 28.05.2015 were of the opinion that the lien of the applicant has been kept/protected wrongly and that his lien should be cancelled. Vide their letter dated 09.07.2015, the respondents sought opinion/suggestion from the DOP&T wherein it was mentioned that the lien of the applicant in Delhi Police had been kept "inadvertently" and that it could not have been done in terms of Appendix VII of CCS (Pension) Rules, 1972 which stipulates that "No lien/quasi permanent status of the govt. servant concerned will be retain in his parent cadre. All his connection with the government will be severed on his release for appointment in an enterprise and he will not be allowed to revert to his parent cadre."

In pursuance of above, the respondents issued a corrigendum dated 06.01.2016 and order dated 06.01.2016 whereby they cancelled the lien qua the applicant in Delhi Police as per Appendix VII of CCS (Pension) Rules rejecting his application dated 29.12.2014. The applicant states that this action of the respondents is in violation of Principles of Natural Justice as no show cause notice was given to him before issuing the impugned order dated 06.01.2016 as well as the corrigendum dated 06.01.2016

Being aggrieved with this action of the respondents, the applicant has sought the following reliefs :-

"(A) Quash and set aside the Appendix 7 of CCS (Pension) Rules 1971 to limited extent as mentioned in Para 1 of the OA. And

(B) Quash and set aside order dated 06.01.2016 and corrigendum dated 06.01.2016, where under the lien period of 2 years provided to the Applicant was cancelled by the respondents and the request of the Applicant to allow him to rejoin as Constable (Exe.) in Delhi Police has been turned down by the respondents. And

(C) Direct the respondents to allow the Applicant to rejoin as Constable (Exe.) in Delhi Police in pursuance of their own order dated 31.10.2014 and accord the Applicant with all other consequential benefits. And

(D) Award cost in favor of the Applicant and against the respondents.

(E) Pass  any  order,  further  orders,  as  this  Hon"ble Tribunal may deem fit and proper, in view of the facts and circumstances of the case and in the interest of justice."

In the counter filed on behalf of the respondents, it is not disputed that the applicant took prior permission from the Department vide order dated 30.09.2013 to accept his technical resignation w.e.f.02.11.2014 to join his new place of appointment or before 05.11.2014. The respondents submit that the technical resignation was accepted vide order dated 31.10.2014 and the applicant was relieved from Delhi Police on 03.11.2014 at his own request. It is averred that when the application dated 29.12.2014 for rejoining was received from the applicant, his case was processed. The respondents were directed to follow the rules as per Appendix VII of CCS (Pension) Rules 1972, since his lien was "inadvertently" kept in their department. The respondents submit that it is well settled law that if any mistake is committed by a Department, no right can be claimed on the basis thereof as held by the Hon"ble Apex Court in K.V.Rajalakshmiah Settee & Ors. Vs. State of Mysore & Ors. AIR 1967 SC, 993. In view of the same, the lien which was "inadvertently" kept has been cancelled and the applicant has been informed accordingly.

During the course of arguments, learned counsel for the applicant Shri Sourabh Ahuja emotionally argued that the applicant left Police Department with a clear understanding that his lien with the parent department stood protected. Drawing attention to the order dated 31.10.2014, the learned counsel stated that in the said order the respondents have categorically ordered that the lien of the applicant will be kept in Delhi Police for a period of two years as per Rule 26 of CCS (Pension) Rules, 1972. The Government (being a model employer) cannot now be allowed to wriggle out of their promise made to the applicant. He argued that the applicant joined his new assignment only on this categoric assurance, and is now only requesting the respondents to honor their promise and allow him to rejoin his parent organisation as Constable (Exe.).

He submitted that the respondents have failed to appreciate the circumstances under which  the  applicant  had  to  withdraw  his  earlier  request for joining the KVS. He explained that the reasons for doing so were many one of these being that the salary disbursed to him as Primary Teacher in KVS was much less than the salary drawn by him in Delhi Police and it has become very difficult for him to sustain himself and his family on this meagre salary. The learned counsel mentioned that he has also challenged the validity  of  Appendix  VII  of  CCS  (Pension)  Rules  1972  to  the limited extent wherein it is laid down that no lien/quasi permanent  status  of  a  government  servant  concerned  will  be retained in his parent cadre. He argued that this condition in itself arbitrary and is violative of Article 14 and 16 of the Constitution of India.

Shri Sourabh Ahuja drew attention of the court to Rule 30 of Delhi Police (Appointment & Recruitment) Rules, 1980 wherein it has been mentioned that the respondent is empowered to relax any of the provisions of the said Rules. The said rule reads as under :-

"30. Power to relax :- When the Administrator is of the opinion that it is necessary or expedient to do so, he may, by order, for reasons to be recorded in writing, relax any of the provisions of these Rules with respect to any class, category of persons or posts or in an individual case."

He also referred to Rule 88 of CCS (Pension) Rules 1972 which enables the respondents to relax any Rule/appendix etc. which causes undue hardship in any particular case. The extract of the same is reproduced below :-

"88. Power to relax:

Where any Ministry or Department of the government is satisfied that the operation of any of these rules, causes undue hardship in any particular case, the Ministry or Department, as the case may be, may, by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner:

Provided that no such order shall be made except with the concurrence of the Department of Personnel and Administrative Reforms."

Rebutting these averments strongly, the learned counsel for the respondents, Ms. Sumedha Sharma argued that the plea taken by the applicant in the OA is not at all tenable since Appendix VII CCS (Pension) Rules, 1972 clearly mentions that the lien can be kept only for Central Govt. Deptt./State Govt. Deptt. The Kendriya Vidyalya Sangathan being an autonomous body, the benefit being claimed by the applicant cannot be made available to him or to any other government servant. She stated that FR 30 relied upon by the applicant is also not applicable in his case since the so called relaxation is available only for employees of Delhi Police which the applicant has ceased to be.

We have considered the arguments of learned counsel for the parties and perused the pleadings and documents available on record.

The facts are not in dispute. The only issue which remains to be adjudicated is whether the applicant can be allowed to avail the benefit of retention of lien in his parent department despite the specific terms and conditions laid down in Appendix VII of CCS (Pension) Rules, 1972.

At the outset, we are not convinced with the arguments put forth by the applicant to quash Appendix 7 of CCS (Pension) Rules, 1972 as being violative of Article 14 & 16 of Constitution of India. It is the prerogative of the government to lay down necessary norms and guidelines for effective functioning of a government department which cannot be altered or tampered with, to suit individual convenience. Having said so, the fact remains that the applicant chose to join the KVS only after receiving categoric assurance from the respondents that his lien will be kept in Delhi Police for a period of two years as per Rule 26 of the CCS (Pension) Rules, 1972. He took a tentative step to explore better career prospects after receiving this order from his parent department. Not having found the circumstances conducive, the applicant now seeks to exercise the option of reverting back to Delhi Police. If the applicant had been explained the conclusive consequences of his technical resignation, he may not have taken this irreversible step of leaving his parent organisation. Both (the respondents and the applicant) are now wiser after the event. However, it is not fair that the applicant alone should be made to suffer for the so called "inadvertent" mistake of the respondents.

In view of the particular facts of this case, we feel that the respondents cannot be allowed to back track from the terms of their order dated 31.10.2014. We therefore direct the respondents to allow the applicant to rejoin as constable in Delhi Police in pursuance of their own order dated 31.10.2014 with all other consequential benefits. The OA is allowed and the impugned order and corrigendum, both dated 06.01.2016 are quashed and set aside.