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Vimlesh Kumar Tiwari And Ors vs Union Of India And Ors on 13 October, 2020

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Asha Menon

$~19.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 5212/2020
       VIMLESH KUMAR TIWARI AND ORS            ..... Petitioners
                   Through: Mr. Ankur Chhibber & Mr.
                            Anshuman Mehrotra, Advs.

                                    Versus

       UNION OF INDIA AND ORS                   ..... Respondents
                      Through: Ms. Suman Chauhan, Adv.
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
       HON'BLE MS. JUSTICE ASHA MENON
                ORDER

%               13.10.2020
[VIA VIDEO CONFERENCING]

1. The seven petitioners, in service of the respondents Indo-Tibetan Border Police Force (ITBP), claim the same relief as granted to others, stated to be similarly placed as the petitioners herein, vide Pawan Kumar Sharma Vs. Union of India 2019 SCC OnLine Del 7077, Annexure-P4 to this writ petition.

2. The representations of the petitioners for grant of the said relief have been rejected, reasoning that Pawan Kumar Sharma supra is a judgment in personam and not in rem.

3. The petition came up first before this Court on 13th August, 2020, when being prima facie of the opinion that once the petitioners are similarly situated as the petitioners in Pawan Kumar Sharma supra, in service jurisprudence the petitioners would be entitled to the same emoluments as W.P.(C) 5212/2020 Page 1 of 4 ordered to be paid to those similarly placed, the counsel for the respondents ITBP appearing on advance notice was given an opportunity to obtain instructions and file counter affidavit limited to why Pawan Kumar Sharma supra is a judgment in personam and why the petitioners herein are not entitled to the benefit thereof as sought.

4. No counter affidavit has been filed.

5. The counsel for the respondents ITBP states that though the petitioners herein are found to be similarly situated as the petitioners in Pawan Kumar Sharma supra but the Department of Personnel and Training (DoPT), Ministry of Personnel, Pensions and Public Grievances has instructed the respondents ITBP to treat the judgment in Pawan Kumar Sharma supra as a judgment in personam and to not extend the benefit thereof to anyone else. The counsel for the respondents ITBP thus states that either DoPT should be impleaded as respondent in this petition, to appear before this Court to disclose why Pawan Kumar Sharma supra has been instructed to be treated as a judgment in personam, or adjournment be given to enable her to obtain instructions from DoPT.

6. The respondents ITBP, inspite of opportunity having not filed counter affidavit and particularly for the reasons stated, we are not inclined to grant any further time. If the respondents ITBP and the Ministry of Home Affairs were acting in terms of instructions of DoPT, counter affidavit, after taking instructions if any from DoPT, should have been filed.

7. This Court, vide Pawan Kumar Sharma supra held that by accepting the technical resignation pursuant to selection as Head Constable by way of direct recruitment, the earlier period of service is not wiped out and has to be W.P.(C) 5212/2020 Page 2 of 4 counted for the purposes of seniority, fixation of pay etc. Axiomatically the petitioner in Pawan Kumar Sharma supra was held entitled to grant of the benefit of Assured Career Progression Scheme (ACP Scheme), with effect from the original date of appointment to the post from which technical resignation was submitted, and consequential benefits ordered to be paid.

8. The counsel for the petitioners has also referred us to State of Uttar Pradesh Vs. Arvind Kumar Srivastava (2015) 1 SCC 347 laying down that normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons should be treated alike by extending same benefit, since not doing so would amount to discrimination and be violative of Article 14 of the Constitution of India; however laches, delays and acquiescence were held to be exceptions to the said rule. Considering that Pawan Kumar Sharma supra was pronounced on 15th February, 2019 and this petition has been filed soon thereafter, it cannot be said that the petitioners herein have slept over their rights, amounting to acquiescence and waiver of the right.

9. The petition is thus entitled to be allowed.

10. The impugned orders dated 25th November, 2016, 13th August, 2018 and 13th December, 2019, of rejection of the representations of the petitioners and orders dated 12th January, 2018 and 2nd September, 2019 withdrawing the benefit of first ACP granted to petitioners No.3 & 6, are set aside and direction is issued to the respondents ITBP to grant to each of the petitioners the benefit of ACP Scheme with effect from the original appointment of each of the petitioners to the post from which technical resignation was submitted, with consequential fixation of pay and arrears;

axiomatically, Modified Assured Career Progression (MACP) benefits on completion of 20 and 30 years of service be also conferred accordingly; the consequential orders be issued and arrears be paid to the petitioners within 12 weeks from today, failing which the respondents ITBP would be liable to pay simple interest at 6% per annum on the said sum, till the date of payment.

11. The petition is disposed of with no order as to cost.

RAJIV SAHAI ENDLAW, J ASHA MENON, J OCTOBER 13, 2020 'pp' W.P.(C) 5212/2020 Page 4 of 4