Central Administrative Tribunal - Delhi
Rajender Singh vs Comm. Of Police on 29 November, 2022
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Item No.38/C-6 OA No. 1047/2019
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1047/2019
Reserved on : 29.11.2022
Pronounced on : 23.12.2022
Hon'ble Mr. Manish Garg, Member (J)
Rajender Singh (Aged about 36 years)
S/o Sh. Nandram Gurjar
r/o Village & PO Bolkhera, Tehsil Kaman,
District Bharatpur, Rajasthan 321022
...Applicant
(By Advocate: Mr. S.N. Sharma)
Versus
Commissioner of Police
Police Headquarter
I.P. Estate, ITO
New Delhi-110002
...Respondent
(By Advocate: Mr. Sameer Sharma)
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Item No.38/C-6 OA No. 1047/2019
ORDER (ORAL)
In the present OA, the applicant is seeking the following reliefs:
"(i) Quash the impugned Order dt.
12.2.2019.
(ii) Direct the respondent to reinstate/region the applicant in service with all consequential benefits.
(iii) Any other order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of the case may also be passed in favour of the applicant."
2. The sum and substance of the case of the applicant is that the applicant retired on Indian Army on 03.03.2017.
Thereafter, the applicant applied in Rajasthan Police for post of Constable and also in Delhi Police in March 2017. The applicant joined Delhi Police on 02.05.2018 and had undergone for training. Thereafter, having qualified written test by Rajasthan Police, he was also called vide Office Order dated 28.09.2018 to bring NOC from Delhi Police. The Competent Authority of Delhi Police vide office order dated 08.04.2018 relieved him to join his new assignment. The Office Order dated 08.04.2018 reads as under:
3Item No.38/C-6 OA No. 1047/2019
"ORDER
Consequent upon the selection for the post of Constable Genl. Duty in Rajasthan Police in it Pay Scale of Rs. 5200- 20200 with Grade Pay of Rs. 2400/- vide Letter No.6635-39 dated 28.9.2018 issued by Supdt. of Police, Bharatpur Rajasthan, the technical resignation tendered by R/Ct. (Exe.) Rajender Singh No. 38018/PTC, PIS No. 28182751 is hereby accepted and he is relieved from the services of Delhi Police with immediate effect with the direction to join his new assignment.
He was appointed in Delhi Police as temporary Constable (Exe.) on 2.05.2018 (AN) vide DNo. 24 dated 02.05.2018. He has submitted an Indemnity Bond to this effect that he will serve his employer for a period of 5 (five) years from the date of appointment in Delhi Police as Constable, failing which he would pay the capitation charges in Lump Sum as well as difference of revised Capitation charges on the basis of revision of pay scale in accordance with 7 Central Pay Commission report to Delhi Police as admissible as per rule 5 (f) of Delhi Police (Appointment & Recruitment) Rules-1980.
He will clear his all accounts in Delhi Police and deposit all Government articles/belongings in his possession including Appointment Card, identity Card, CGHS Card and uniform articles etc. before he proceeds to join his new assignment. He will record his Final departure report in the Daily Diary of D.O. PTS Jharoda Kalan, Delhi after getting N.O.C. from all concerned.
(ROMIL BAANIYA) II Principal, Police Training School Jharoda Kalan, Delhi.
CG No. No. 2273-2373/SIP Br./PTS/JK Dated, Delhi, the 4.10.2018"
3. It is also seen from the record that a NOC was also issued on 08.04.2018, which reads as under:
"This office has No objection in case of Recruit constable(Exe.) Rajender Singh, Belt No. 38018/PTC, Platoon No. 21, Batch No. 112 undergoing his basic training at PISIJK, New Delhi for his relieving from the department, in case he will be selected for the post of Constable in Rajasthan Police"4
Item No.38/C-6 OA No. 1047/2019
4. Later, it is noticed that the case of the applicant was rejected by the Rajasthan Police on the basis of having more than two children, in consonance with their policy vide Office Order dated 05.10.2018 (Annexure A-6). Against the said rejection, the applicant had filed a Writ Petition (C) No. 3391/2019 before the Hon'ble High Court of Rajasthan. The same was dismissed as withdrawn on 05.03.2019, with the following order:
"Counsel for the petitioner seeks permission to withdraw the writ petition with liberty to take his remedy elsewhere in accordance with law. Permission as sought is granted.
The writ petition is dismissed as withdrawn with liberty as prayed for."
5. Thereafter, On 08.10.2018 the applicant has made an application to Delhi Police to rejoin his duties (Annexure A-7), interalia contending that:-
"It is requested that I Rajinder Singh, Platon No. 2, Belt No. 38018/PTC. In pursuance of my selection in Rajasthan during Police, I have given technical resignation but during documents verification due to 03 children, my candidature have been rejected therefore I want to rejoin in Delhi Police. Please given me a chance."5
Item No.38/C-6 OA No. 1047/2019
6. The aforesaid application of the applicant came to be dismissed vide Impugned Order dated 12.02.2019 (Annexure A- which reads as under:
"To Shri Rajender Singh S/o Sh. Nandram Gurjar Village- Bolkheda, Teh. & Police Station- Kama, District-Bharatpur, Rajasthan Subject: Application submitted by Ex. R/Constables (Exe.) Rajender Singh No. 38018/PTC (PIS No. 28182751 for re-joined in Delhi Police.
With refer to your application dated 8.10.2018 the matter regarding re-joining Delhi Police has been examined in consultation with LA to CP, Delhi in Police Headquarters. As you were not confirmed in the service at the time of acceptance of your resignation hence cannot enjoy the benefit of lien. Further you were also not a permanent employee of Delhi Police, without. Confirmation, your request for re-joining/withdrawal of technical resignation cannot be permitted. Hence, your application is rejected.
(MICHI PAKU) IPS Principal, Police Training School Jiaroda Kaian, Delhi."
7. The Learned counsel for the applicant argued that aforesaid Impugned Order dated 12.02.2019 is bad in law as it is non speaking and has been passed without any reason.
Further, it has been submitted that the respondents failed to consider the fact that NOC issued by the respondents was 6 Item No.38/C-6 OA No. 1047/2019 subject to selection of the applicant. Since, he was not selected, therefore, it cannot be regarded that he is not entitled to re-join the duties in Delhi Police. He laid emphasis on the word "Selection" as mentioned in NOC. Further, it is stated that he is an ex-serviceman and he has not concealed any fact. To butterest his argument, Learned counsel for applicant relied upon the decision of the Hon'ble Supreme Court in A.P. Public Service Commission Hyderabad & Anr. Vs. B. Sarat Chandra Ors. The operative para of the said judgment read as under:-
"If the word 'selection' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva-voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon and fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are 7 Item No.38/C-6 OA No. 1047/2019 eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the Rule making authority."
8. He further relies upon a judgment of Hon'ble Supreme Court in Mohd. Rashid Vs. Director, Local Bodies, New Secretariat and Ors. Para 12 and 13 thereof read as under:
"12. From the above information placed on record, we find that the Recruitment Rules providing 50% quota to be filled úp by promotion failing which by direct recruitment and another 50% by deputation quota failing which by direct recruitment are being followed by the municipal bodies.
13. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12-9-2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India, a Constitution Bench of. this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under: (SCC pp. 50-51, para
7)
7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied.8
Item No.38/C-6 OA No. 1047/2019 Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the Comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwahat; Neelima Shangla v.
State of Haryana or Jatinder Kumar v. State of Punjab".
9. Per contra, Learned counsel for respondents contends that on the request of applicant dated 01.10.2018, he has been granted N.O.C. wherein it was stipulated that Respondent has no objection in relieving Applicant from the department, in case he will be selected for the post of Constable in Rajasthan Police. There is no connection between N.O.C. issued by Delhi Police and his rejection by Rajasthan Police as he was rejected by Rajasthan Police on the ground of having 03 children whereas prescribed limit of children was two. He has further contended that there is no rule or provision under law, where he can be re-employed. As per the Rules, once NOC has been issued and he has been relieved 9 Item No.38/C-6 OA No. 1047/2019 from the duties, he cannot be allowed to rejoin, in terms of the Office Order dated 04.10.2018 which has been highlighted as under:-
"ORDER Consequent upon the selection for the post of Constable Genl. Duty in Rajasthan Police in it Pay Scale of Rs. 5200-20200 with Grade Pay of Rs. 2400/- vide Letter No.6635-39 dated 28.9.2018 issued by Supdt. of Police, Bharatpur Rajasthan, the technical resignation tendered by R/Ct. (Exe.) Rajender Singh No. 38018/PTC, PIS No. 28182751 is hereby accepted and he is relieved from the services of Delhi Police with immediate effect with the direction to join his new assignment.
He was appointed in Delhi Police as temporary Constable (Exe.) on 2.05.2018 (AN) vide DNo. 24 dated 02.05.2018. He has submitted an Indemnity Bond to this effect that he will serve his n... employer for a period of 5 (five) years from the date of appointment in Delhi Police as Constable, failing which he would pay the capitation charges in Lump Sum as well as difference of revised Capitation charges on the basis of revision of pay scale in accordance with 7 Central Pay Commission report to Delhi Police as admissible as per rule 5 (f) of Delhi Police (Appointment & Recruitment) Rules-1980.
He will clear his all accounts in Delhi Police and deposit all Government articles/belongings in his possession including Appointment Card, identity Card, CGHS Card and uniform articles etc. before he proceeds to join his new assignment. He will record his Final departure report in the Daily Diary of D.O. PTS Jharoda Kalan, Delhi after getting N.O.C. from all concerned.
(ROMIL BAANIYA) II Principal, Police Training School Jharoda Kalan, Delhi.
CG No. SIP/OBNo. 2273-2373/SIP Br./PTS/JK Dated, Delhi, the 4.10.2018"
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10. He further relies upon decision of the Hon'ble High Court of Delhi in Satya Dev Lal Vs. L.G.Delhi & Anr. Para 4 and 11 thereof read as under:-
"4. Petitioner, Ms. Satya Dev Lal joined Delhi Police as an Assistant Sub-Inspector (Woman) in the year 1994. Unfortunately for her, she married a Constable in Delhi Police in the year 1995. Being two ranks junior to his wife, petitioner's husband, had ego issues. By mutual consent the couple obtained a divorce in the year 1998. Petitioner re-married the next year, but unfortunately her husband and in- laws had a problem of her working and compelled her to submit a resignation in the year 2002 which was not accepted as she was counselled by her senior officers not to resign and at least serve to earn a pension. Family circumstances in the house of the in-laws compelled her to submit a resignation for a second time in the year 2004 which again was rejected and seniors counselling her to serve at least to earn a pension. Situation in the house reached a nadir compelling petitioner to submit a resignation for the third time on November 07, 2005 which was accepted by the Competent Authority and acceptance was communicated to the petitioner on January 06, 2006.
11. A vested right is a right which can be enforced by law. It means a right which has been acquired and not a right which is created by a judicial verdict or by an executive action pursuant to a discretionary power No further arguments from the respondents." [
11. Heard learned counsels for the parties and perused the record.
Analysis
12. It is not disputed that after retirement from Indian Army on 03.03.2017 the applicant joined on 02.05.2018 in the 11 Item No.38/C-6 OA No. 1047/2019 category of Ex-Serviceman. Thereafter, he also qualified for Rajasthan Police and was called vide Office Order dated 28.09.2018 to bring NOC from Delhi Police. Accordingly, the Competent Authority of Delhi Police vide Office Order dated 08.04.2018, relieved the applicant to join his new assignment.
Since, he was not given appointment in light of the existing rules as prevalent for appointment of applicant in the category of Ex-serviceman in Rajasthan Police for the purpose of re-
employment, the case of the applicant was rejected vide Office Order dated 04.10.2018 by the Rajasthan Police. Thereafter, the applicant made an application for rejoining/re-
employment in Delhi Police which was rejected by an Office Order dated 12.09.2019, which is subject matter of challenge in this OA. The Learned counsel for the applicant has impressed upon this Tribunal to state that the process of selection was not complete, therefore, he is entitled to re-
employment or rejoining and, as such, the Impugned order dated 12.09.2019 is bad in law.
12.1 There appears to be a fallacy in argument of learned counsel for the applicant to contend that the word "Selection"
is to be understood in context of the final act of "Selecting candidates" with preparation of list of appointees followed by issue of letter of offer. In the present factual scenario, the 12 Item No.38/C-6 OA No. 1047/2019 present case is not of a "Selection", but it is a case of resignation on his own violation with a view to have better career prospects, inasmuch as, he chose to resign from the services of Delhi Police as Ex-serviceman for the objective to be at his home state i.e. Rajasthan. It is also matter of fact that the applicant resigned from service for gaining employment in Rajasthan Police after taking NOC and also the Delhi Police by virtue of the Office Order dated 08.04.2018 having accepted his resignation and relieved him from service. It is also noticeable that at the time of order of acceptance/relieving the applicant, he himself had submitted an Indemnity Bond to the effect that he will serve his new employer for a period of 5 (five) years from the date of appointment in Delhi Police as Constable, failing which he would pay the capitation charges in Lump Sum as well as difference of revised Capitation charges on the basis of revision of pay scale in accordance with 7th Central Pay Commission report to Delhi Police as admissible as per Rule 5 (f) of Delhi Police (Appointment & Recruitment) Rules-1980. In the present case, it is established that there was no compelling reasons for tendering the resignation as the applicant had resigned for seeking a better opportunity at a better place of his own choice. It is also noticeable that even apart from the Order of rejection by 13 Item No.38/C-6 OA No. 1047/2019 Rajasthan Police, the applicant had filed a Writ Petition (C) No. 3391/2019 before the Hon'ble High Court of Rajasthan. The same was dismissed as withdrawn on 05.03.2019.
12.2 In the decision rendered by Hon'ble High Court of Delhi, in "Mandeep Singh Vs. UOI & Ors., WP(C) No. 8937/2020", while dealing with similar issue, the Hon'ble Division Bench has held as under:-
"13. The essential conditions to be satisfied for being permitted to withdraw resignation are, (i) that such withdrawal should be in public interest; (ii) the resignation should have been tendered for, some compelling reason and the request for withdrawal should have been made as a result of a, material change in the circumstance which compelled the personnel to tender the resignation; (iii) the conduct of the personnel in the intervening period should not be improper; (iv) the period of absence from duty should not be of more than 9o days and the post is still available.
XXX
20. In our view, tendering and acceptance of resignation from secure employment has an element of finality and irrevocability thereto. The provision for withdrawal of resignation has been made, to take care of resignations submitted under a grave and sudden provocation, which compels the government employee to forego the security of employment and which grave and sudden provocation was at that moment wrongly assessed of having a permanency, and which did not turn out to be so.
21. On the contrary, the entire conduct of the petitioner shows that the decision of the petitioner was a well thought out one. The petitioner submitted the letter of resignation on 3rd December, 2017, when posted at Delhi which is envisaged as a preferred posting and hot when posted in a hard 14 Item No.38/C-6 OA No. 1047/2019 area. The petitioner did not in the letter dated 3rd December, 2017, seek discharge immediately but on or before 28th February, 2018. The petitioner, after nearly 10 days, on 11th December, 2017, in anticipation of his resignation being accepted, sought repatriation from NSG to respondents BSF. The petitioner was not discharged on 28th February, 2018 as had been sought by him and waited patiently till the acceptance letter dated 3 rd April, 2018. A period of four months elapsed between the letter of resignation and discharge and the petitioner during the said time did not change his mind. It is thus, not a case of the resignation being owed to any gravity or suddenness but of a well planned out resignation.
XXX
24. The petitioner appears to be using the employment of respondents BSF as a hop-on and hop-off service wherefrom he can hop-off whenever he desires and hope back on whenever he wishes. XXX
26. However, at the same time, the literal interpretation in its application has to permit some play. Thus, in a case where withdrawal of resignation is made, leaving enough and a reasonable amount of time for a decision to be taken thereon but nevertheless there is a delay in taking decision, owing to the said delay, the Rule cannot be permitted to be defeated. However the said play in consideration/interpretation of the provision / policy cannot extend to cases where it is found that the withdrawal of resignation is submitted leaving no time for the authorities concerned to take a decision thereon.
XXX
33. The counsel for the petitioner has also contended that once the law permits the withdrawal of resignation, the same should be allowed.
34. In this respect, the counsel for the respondents BSF is correct that Rule 26(4) of the CCS (Pension) Rules as well as the Policy do not confer any right. The word used is, may .The discretion is still with 15 Item No.38/C-6 OA No. 1047/2019 the government and unless the discretion exercised is found to have been exercised in violation of the Rule / Policy or in a mala fide manner, no ground for interference is made out.
35. We also find that the Supreme Court recently in Union of India Vs. Subrata Das MANU/SC/0109/2019 was concerned with requests for withdrawal of earlier requests for Premature Separation from Service of the personnel of Indian Air Force, governed by the Human Resource Policy dated 5th August, 2011. It was held (i) entry into and departure from the service of Air Force is in terms of the Air Force Act, 1950 and Rules framed thereunder and is not a matter which lies at the sweet will of the member of the Air Force; (ii) the organizational efficiency of the armed forces of the Union is of paramount importance; (iii) in interpreting the provisions of the Policy including the withdrawal of a request for premature separation, it is necessary to emphasize that an officer who is granted premature separation takes away an existing vacancy which could have been provided to another officer of the Air Force; (iv) permitting an absolute right to withdraw from the approved premature separation may, it is apprehended, lead to the use of premature separation from service as a tool to escape transfers to sensitive appointments; (v) the right to withdraw a request for premature separation from an armed force is not absolute or unconditional and is not a matter of right; a withdrawal can be permitted only by way of exception and on extreme compassionate grounds; and, (vi) administrative judgment of the authorities of the Air Force is not to be lightly interfered with."
13. In light of the above observation, it can be said that the matter of appointment for Category of ex-serviceman is a concession and cannot be claimed as a matter of right contrary to Rules/Policy. It is also equally true that the option for re-employment in the category of Ex-servicemen, even if, available cannot be exercised by the applicant twice.
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14. In light of the above observations, the present OA is devoid of any merit and hence dismissed. No order as to costs.
(Manish Garg) Member (J) /daya/