Central Administrative Tribunal - Delhi
Sandeep Dabas vs Gnctd on 4 March, 2024
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Item No.31 (C-4) O.A. No. 3599/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.3599/2023
This the 4th day of March, 2024
Hon'ble Dr. Anand S. Khati, Member (A)
1. Sandeep Dabas
S/o Rajender Singh Dabas
Aged about 39 years
R/o VPO-Ladpur, Delhi- 81
Presently posted as TGT English,
GBSSS, Prashant Vihar, Delhi-85,
Group-'B'
2. Priya
D/o Jagdish Chander Dabas
W/o aged about 39 years,
R/o Flat No.172, Pkt.4,
Sector-24, Rohini, Delhi-110085
Presently posted as TGT (English)
GSKV Nithari (1412093, Delhi-86
Group-'B'
3. Yashpal Rana
S/o Attar Singh
Aged about 39 years
R/o H.No.96, Mungeshpur, Delhi-39
Presently posted as PGT (History), GBSSS, Chandpur,
village,Delhi-81,
Group-'B'
... Applicants
(By Advocate:- Mr. Ranjit Sharma)
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Item No.31 (C-4) O.A. No. 3599/2023
Versus
1. The Govt. of N.C.T, Delhi
Through the Principal Secretary, Education,
Old Secretariat
Sham Nath Marg, New Delhi-54.
2. Directorate of Education
Govt. of N.C.T, Delhi
Old Secretariat, Delhi-54.
3. Municipal Corporation of Delhi
Through the Commissioner
At Civic Centre, JLN Marg,
New Delhi-02.
... Respondents
(By Advocate: Ms. Anupama Bansal with Mr. Ritank Kumar)
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Item No.31 (C-4) O.A. No. 3599/2023
O R D E R (ORAL)
In the current OA, the applicants are seeking to get covered under Old Pension Scheme (OPS) on the grounds that the requisition of advertisement of vacancies was made by the Municipal Corporation of Delhi (MCD) in August, 2003 and hence, in view of the orders of this Tribunal in OA No. 3735/2018, they should also get covered under the Old Pension Scheme.
2. Learned counsel for the applicants states that the notification dated 22.12.2003 mandates the application of the NPS w.e.f. 01.01.2004 and since the NPS came into the effect from 01.01.2004, vacancies advertised prior to it will be governed by the Old Pension Scheme, the cut-off date of 22.12.2003 which mandates implementation of NPS w.e.f. 01.01.2004 would be irrelevant. He further states that the requisition of advertised vacancies was made by the MCD in August, 2003 itself. The requisition was acted upon by the DSSSB with the result that the vacancies were advertised on 30.12.2003, which is self-explanatory that the process of recruitment started well before 22.12.2003.
3. The applicants have impugned an internal document, which on specific query of learned counsel for the respondents, were clarified by the learned counsel for the 4 Item No.31 (C-4) O.A. No. 3599/2023 applicants that the same document has been made available to the applicants by the Principal of the School. The noting gives the impression that the applicants request for conversion from New Pension Scheme to Old Pension Scheme has been rejected by the respondents.
4. Learned counsel for the respondents vehemently opposes this impression and states that no formal communication has been made to the applicants in this regard. He further submits that mere file noting cannot be treated as an impugned order which was not even conveyed to the applicants and hence, the OA is void ab initio and doesn't fulfil the characteristics as per the statute. He draws strength to his contention vide ratio laid down in the judgment of Hon'ble Supreme Court of India dated 30.08.2022 in CIVIL APPEAL NO. 5876 OF 2022 (ARISING OUT OF S.L.P. (C) NO. 20839 OF 2021) in the matter of MAHADEO & ORS. versus SMT. SOVAN DEVI & ORS. and highlights the following paras:-
"14. It is well settled that inter-departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right. This Court examined the said question in a judgment reported as Omkar Sinha v. Sahadat Khan. Reliance was placed on Bachhittar Singh v. State of Punjab to hold that merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government, two things are necessary. First, the order has to be expressed in the name of the Governor as 5 Item No.31 (C-4) O.A. No. 3599/2023 required by clause (1) of Article 166 and second, it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up, the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. The said judgment was followed in K.S.B. Ali v. State of Andhra Pradesh, and Dyna Technologies Pvt. Ltd. v. Crompton Greaves Limited. In Bachhittar Singh, it has been held as under:
"8. What we have now to consider is the effect of the note recorded by the Revenue Minister of PEPSU upon the file. We will assume for the purpose of this case that it is an order. Even so, the question is whether it can be regarded as the order of the State Government which alone, as admitted by the appellant, was competent to hear and decide an appeal from the order of the Revenue Secretary. Article 166(1) of the Constitution requires that all executive action of the Government of a State shall be expressed in the name of the Governor. Clause (2) of Article 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor. Clause (3) of that article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business. What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the Governor. But with that point we shall deal later. What we must first ascertain is whether the order of the Revenue Minister is an order of the State Government i.e. of the Governor. In this connection we may refer to Rule 25 of the Rules of Business of the Government of PEPSU which reads thus:
"Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department. Copies of such standing orders shall be sent to the Rajpramukh and the Chief Minister."
According to learned counsel for the appellant his appeal pertains to the department which was in charge of the Revenue Minister and, therefore, he could deal with it. His decision and order would, according to him, be the decision and order of the State Government. On behalf of the State reliance was, however, placed on Rule 34 which required certain classes of cases to be submitted to the Rajpramukh and the Chief Minister before the issue of orders. But it was 6 Item No.31 (C-4) O.A. No. 3599/2023 conceded during the course of the argument that a case of the kind before us does not fall within that rule. No other provision bearing on the point having been brought to our notice we would, therefore, hold that the Revenue Minister could make an order on behalf of the State Government.
9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
xxx xxx xxx
11. We are, therefore, of the opinion that the remarks or the order of the Revenue Minister, PEPSU are of no avail to the appellant."
15. This Court in Municipal Committee v. Jai Narayan & Co. held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of an opinion by the particular individual. It was held as under:
"16. This Court in a judgment reported as State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. It was held as under:
"24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or 7 Item No.31 (C-4) O.A. No. 3599/2023 even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.
(See State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493, Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705)."
17. Thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law."
16. The basis of the claim of the writ petitioner is a letter written by the Secretary of the Soldier Welfare Department to the District Collector, Udaipur on 19.03.1971 for allotment of land. The Rules contemplate that if the possession is not taken within 6 months, the allotment shall be deemed to have been cancelled. Firstly, the inter-departmental communication dated 19.03.1971 cannot be treated to be a letter of allotment. Alternatively, even if it is considered to be a letter of allotment, the writ petitioner could not claim possession on the basis of such communication after more than 30 years in terms of the Rules applicable for allotment of land to the disabled ex-servicemen.
17. The disabled ex-serviceman had not taken any action for almost 27 years after the so-called letter of allotment during his life time. It appears that the writ petitioner was appointed at the office of Director General of NCC and thereafter, the process of possession was initiated by her. Still further, the alternative land was allotted to the writ petitioner on the strength of the interim orders passed by the Court from time to time calling upon the officers of the State in Court. The proceedings show an extra interest taken by the High Court, and not in respect of mere allotment of land but also of the land which was once allotted and is now close to the National Highway. The manner in which the matter has been dealt with by the High Court under the guise of help to disabled ex- serviceman is wholly unwarranted. 8
Item No.31 (C-4) O.A. No. 3599/2023
18. Therefore, we find that the writ petition filed by the writ petitioner is wholly misconceived, mischievous with collateral motives and may be having the patronage of the officers/officials.
19. Consequently, the appeal is allowed. The order passed by the High Court is set aside with no order as to costs."
5. Considering the background of this matter, respondent No. 1 is directed to treat this OA as a representation from the applicants and dispose of the same by passing a reasoned and speaking order preferably within six weeks from the date of receipt of a certified copy of this order.
6. Accordingly, the OA is disposed of with the above directions. No Costs.
[ (Dr. Anand S. Khati) Member (A) /dhruv/