Central Administrative Tribunal - Delhi
Prem Singh vs East Delhi Municipal Corporation ... on 23 December, 2022
1
OA No. 2914/2017
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2914/2017
Order reserved on: 18.11.2022
Order pronounced on: 23.12.2022
Hon'ble Mr. Manish Garg, Member (J)
Sh. Prem Singh, Age 59, (Mate) Group-C,
S/o Man Singh,
R/o Shani Bazar Gali,
Johripur, Delhi-110094.
...Applicant
(By Advocate: Mr. L.K.Giri with Ms. Saroj)
Versus
1. East Delhi Municipal Corporation
Through its Commissioner,
Udyog Sadan, Patparganj Industrial Area,
Delhi-110092.
2. Addl. Commissioner (Engg.) East,
East Delhi Municipal Corporation
Udyog Sadan, Patparganj Industrial Area,
Delhi-110092.
3. Addl. Commissioner-I,
East Delhi Municipal Corporation
Udyog Sadan, Patparganj Industrial Area,
Delhi-110092.
4. Executive Engineer M(I),
Shahdara North Zone
MCD, Delhi.
... Respondents
(By Advocate : Ms. Sangeeta Rai with
Ms. Dimpi Vaid)
2
OA No. 2914/2017
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
" i. Set aside the impugned order passed by the respondents.
ii. Direct the respondents to allow the applicant to re-join the post, with all consequential benefits with monetary benefits from retrospective effect.
iii. award compensation for harassing the applicant intentionally and costs of the proceedings/litigation and iv. pass any other order/direction(s) which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case, in the interest of justice."
2. Brief Facts:
2.1 Applicant was appointed as Mate in the MCD in the year 1982 and lastly posted under Respondent No.4.
2.2 On 10.02.2012 the applicant submitted his resignation due to the reason to contest the election of MCD. His case was accepted by the competent authority and an office order dated 3 OA No. 2914/2017 14.03.2012 was issued by the department and a copy of the same was also conveyed to the applicant.
2.3 As prescribed under Rule 26(4)(i) of CCS (Pension) Rules,1972 after resigning from any post, if the employee/applicant wants to re-join at the same post he/she can apply for the same post after fulfilling the requisite conditions.
2.4 On 18.04.2012 applicant made a representation to allow him to rejoin his duties on usual conditions.
2.5 On 30.04.2012 his case was forwarded to the competent authority for consideration but no decision has been taken till date.
2.6 Applicant approached this Tribunal by filing OA No.3556/2013 for redressal of his grievance.
This Tribunal vide order dated 14.10.2014 allowed the OA by directing the respondents to decide the re-joining representation dated 18.04.2012 within 90 days. The respondents vide order dated 4 OA No. 2914/2017 24.03.2015 disposed of the representation dated 18.04.2012 of the applicant by giving the reason that the rejoining representation is filed after more than 90 days and also by taking the view that "contesting election, cannot at any stretch of imagination, be construed as a compelling reasons for a Government servant where he is supposed to keep himself away from involving in political activities"...... The period between the resignation becoming absolute and the date from which the person could have been allowed to join duty in case of allowing the withdrawal of the resignation (i.e. between 14.03.2012 and a date subsequent to 14.08.2012 the date of application), in the case of the present applicant Mr. Prem Singh, being more than 90 days, the application also merits rejections under Rule 26(4) (iii) of CCS (Pension) Rules, 1972. The representation of Sh. Prem Singh dated 14.08.2012 is accordingly disposed of." 2.7 Applicant again filed OA No.1494/2015 challenging the order dated 24.03.2015. This 5 OA No. 2914/2017 Tribunal after giving due consideration to the fact and circumstances of the case observed that the rejoining letter was of dated 18.04.2012 and not 14.08.2012 and it was observed that order dated 14.03.2015 does not stand scrutiny of law and liable to be set aside and directed the defendant to decide the representation within three months and OA was allowed. Thereafter, respondents did not pass any order even after expiry of almost 3 months and applicant filed contempt petition. In compliance of Tribunal's order dated 03.02.2017 passed in OA No.1494/2015 respondents passed impugned order dated 01.08.2017 rejecting the representation dated 18.04.2012 of the applicant. Hence this OA.
3. Per contra, learned counsel for the respondents vehemently opposed the submissions of the applicant and contended that the appointing authority after reconsidering the representation of the applicant passed the order dated 01.08.2017 which was duly sent to the applicant. It is 6 OA No. 2914/2017 submitted that the action of the respondents is just, proper and bonafide and in accordance with rules, instructions and there is no reason or justification for this Tribunal to entertain this application under it extra-ordinary power of judicial review. Thus, the OA deserves to be dismissed being devoid of any merit.
4. Heard learned counsel for the parties and perused the material on record and written submissions of learned counsel for applicant.
5. Learned counsel for applicant in his written submissions submitted that the department in the identical situation and in the same election contested by one person namely Mr. Beer Sain who also lost the election was allowed to join the duty by the Competent Authority/respondents and the applicant was not allowed to re-join the duty.
6. Analysis:
6.1 In this regard, learned counsel relied on the judgment of Hon'ble Supreme Court in the matter 7 OA No. 2914/2017 of Rushibhai Jagdischandra Pathak vs. Bhavnagar Municipal Corporation has held that the discrimination would be violation of Article 14 of the Constitution of India. Relevant part of the order reads as under:
"15. We are also inclined to grant interest to the appellants on the arrears at the rate of 7% per annum, which would be payable with effect from 1st September 2017. We have fixed the said date for grant of interest as the respondent-Corporation has accepted the interpretation of the Scheme rendered on 16th August 2016 in the Writ Petition preferred by Mukeshbhai Jaswantrai Joshi. Normally, and as a model employer, on accepting the said decision, the respondent-Corporation should have uniformly applied and granted the benefit to all its similarly situated employees affected by the order dated 28th October 2010. This would have avoided unnecessary litigation before the courts, as was held in State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others, (2015) 1 SCC 347:
"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently..........."8 OA No. 2914/2017
6.2. Learned counsel for applicant submits that the case is squarely covered by the judgment passed in the case of Nirmal Verma vs. MCD & ors. and Rutuja Latke vs. Municipal Corporation of Greater Mumbai & ors., wherein Hon'ble Bombay High Court directed to the NMC to allow the Rutuja Latka to contest in the BMC election after accepting the resignation of the petitioner. The case is pending before the Hon'ble High Court and the next date of hearing is 08.12.2022.
7. Learned counsel for respondents has relied upon the judgment of Hon'ble High Court in Directorate of Education vs. Manisha Sharma, WP (C) No.8494/2015 dated 28.11.2019. The relevant part of the order reads as under:
"13. None of the conditions spelt out in Rule 26 (4)
(i) to (iv) of the CCS (Pension) Rules stand attracted in the present case. There is no "material change"
in the circumstances which originally compelled the Respondent to tender her resignation. In the present case, the Respondent voluntarily resigned because she wanted to contest elections. Unless she resigned, she would not have been qualified to contest elections. Having resigned, and on that basis having contesting the election, she cannot be heard to say that she was under any compulsion. Once the resignation has been accepted and acted upon, there is no question of permitting a person 9 OA No. 2914/2017 who resigned to withdraw such a resignation. It is a different matter if after having resigned, the Respondent did not contest the MCD elections at all and in those circumstances sought to rejoin service by seeking to withdraw her resignation.
14. The Court is unable to agree with the reasoning in Nirmal Verma v. MCD (supra) that since there was no misconduct on the part of the candidate, she should be permitted to withdraw her resignation. What was not noticed in Nirmal Verma v. MCD (supra) is the fact that the resignation had already been acted upon and that Rule 26 (4), in any event, did not stand attracted.
15. In State of Haryana v. Ram Kumar Mann (supra), it was held that merely because the government may have permitted some people to withdraw their resignations would not per se give the right to another person to seek to withdraw a resignation that had already been acted upon. It was observed as under:
"3. The question, therefore, is: whether the view taken by the High Court is correct in law? It is seen that the respondent had voluntarily resigned from the service and the resignation was accepted by the Government on May 18, 1982. On and from that date, the relationship of employer and the employee between the respondent and the State ceased and thereafter he had no right, whatsoever, either to claim the post or a right to withdraw his resignation which had already became effective by acceptance on May 18, 1982. It may be that the Government for their own reasons, given permission in similar case, to some of the employees mentioned earlier, to withdraw their resignations and had appointed them. The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation.10 OA No. 2914/2017
The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis- appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similar circumstanced person claim equality under Section 14 for reinstatement? Answer is obviously „No‟. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle lion to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never made a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus with all consequential benefits."
xxx xxx xxx
18. It was further held in paragraph 15 as under:
"15. The only reason which has been given by the petitioner for submitting resignation was that he wanted to contest the election to the Haryana Legislative Assembly. This cannot be said to be a compelling or over-whelming reason to submit the resignation. After the same is accepted, the incumbent has to show that the resignation may be allowed to be withdrawn as he had submitted his resignation under some compelling circumstances. According to the learned Counsel for the petitioner, the compelling circumstances have to be for withdrawing the resignation after the same has been accepted. We do not agree with the learned Counsel. According to our considered view, the petitioner, who alleges himself to be belonging to a poor family i.e. being a member of Scheduled Caste and is wholly and solely dependent on his service, would not have, as a reasonable and prudent person, thought of resigning his service only for the purpose of contesting the election. At least this ground 11 OA No. 2914/2017 could not be accepted to be covered under the expression "over-whelming/compelling reasons." As observed above, the compelling/over-whelming reasons are to be seen at the time the incumbent puts in his resignation."
8. Conclusion:
In the light of the aforesaid submissions and discussions of the respective counsel for parties, this Tribunal is of the considered view that the present OA is liable to be dismissed in the light of observations made by Hon'ble High Court of Delhi in Directorate of Education vs. Manisha Sharma (supra), as highlighted above. Therefore, the present OA is devoid of merit and is accordingly dismissed. There shall be no order as to costs.
(Manish Garg) Member (J) /sd/