Dr. Mrs. Nirmal Sharma vs The Chief Secretary, National ...
2006 Latest Caselaw 1677 Del

JUDGMENT

J.M. Malik, J.

1. The petitioner is posted as Assistant Professor with DIPSAR. On 3.7.2006 she sought permission to apply in the University of Libya as she was offered the post of Associate Professor in Pharmacognosy. She sent reminders dated 26.7.2006 and 27.7.2006 but these did not ring the bell. She also informed that she wanted to leave for foreign assignment on urgent basis and the same was due for 14.9.2006 The said foreign assignment was for one year. She also applied for extraordinary leave without pay. Her husband is posted as a reader with Moti Lal Nehru College under the Delhi University. Her husband also got foreign assignment in Libya. He was granted requisite permission from Delhi University. Her husband was granted extraordinary leave without pay. Her husband has already left for Libya on 14.9.2006 leaving behind their two small children and the petitioner herself.

2.The petitioner received reply letters dated 31.8.2006 and 28.8.2006 which run as follows:

Annexure D-1

GOVERNMENT OF NATIONAL CAPITAL TERRIROTY OF DELHI INSTITUTE OF PHARMACEUTICAL SCIENCE & RESEARCH PUSH VIHAR, SECtor III, NEW DELHI 17.

No: PH-1(303)/99/Estt./2005/Vol.-II/6384

Dated: 31.8.2006

Reference your letter dated 17.8.2006 regarding sanction of Extra Ordinary Leave, it is to be informed that your applications submitted earlier in this regard has already been forwarded to DTTE. As and when the decision/approval taken by the DTTE authorities in your case is received the same will be conveyed to you immediately. You are advised not to give reminders to this office and also not to write letters to the DTTE authorities directly. As a Govt. servant you are reminded that you cannot approach the higher authorities directly and you should send your letters and applications though proper channel. This issues with the approval of the Principal, DIPSAR.

(Dr. B.P. Srinivasan) HOO, DIPSAR

To

Dr.(Mrs.) Nirmal Sharma, Asstt. Prof.

Annexure D-2

GOVERNMENT OF NATIONAL CAPITAL TERRItorY OF DELHI DIRECtorATE OF TRAINING AND TECHNICAL EDUCATION MUNI MAYA RAM MARG, PITAM PURA DELHI 88.

F. No. 2(313)/98-SB/Vol-III/1236Dtd:28.8.2006

To, Dr.(Mrs.) Nirmal Sharma, Asstt. Professor, Delhi Institute of Pharmaceutical Sciences and Research, Pushp Vihar, New Delhi.

Sub: Application of Dr.(Mrs.) Nirmal Sharma, Asstt. Prof. Delhi Institute of Pharmaceutical Sciences & Research, for grant of E.O.L.

Madam, With reference to your different applications forwarded by Principal, DIPSAR through his letter No. Ph-1(303)/99/Estt./Vol-II-6246 dated 7.8.2006, on the subject noted above the Competent has desired to submit the details on the following points:

1. Has she directly applied for the post.

2. Has she requested for grant of EOL to join the post.

3. The reason for not following the prescribed rules for applying for foreign assignment.

Yours faithfully, (O.P. Shukla) DEPUTY DIRECtor(SB)

F.No. 2(313)/98-SB/Vol-III Copy forwarded for information and necessary action to the Principal, DIPSAR, ref. to his letter mentioned above dated 7.8.2006.

(O.P. Shukla) DEPUTY DIRECtor(SB)

3. Under these circumstances, the present writ was filed with the prayer to issue writ of mandamus or appropriate direction thereby directing the respondents to issue extraordinary leave as required by petitioner for a period of one year and in the meantime, the job of petitioner be directed to be secured as she has apprehension that her job may be effected in case the petitioner leaves for foreign assignment, annexure D-1 and D-2 dated 31.8.2006 and 28.8.2006 respectively be quashed as being hyper technical as the same are issued with a view to stop the petitioner to approach the higher authorities which cannot be restrained in the present facts and circumstances of the case. It is further prayed that family difficulties of the petitioner should be considered and she would be granted the requisite permission to join her husband in the above said foreign country.

4. Respondents 1 to 3 have filed the short affidavit. They have raised three objections. Learned Counsel for the respondent has drawn my attention towards Rule 41 of Employment of Near Relatives of Swamy's - Establishment and Administration, book. Rule 3 runs as follows:

(3) Prior permission/intimation necessary for accepting employment in foreign organizations - Acceptance of employment in any of the following categories of foreign organizations in India by any member of family of a Government servant would be subject to prior permission or prior intimation, etc., as the case may be:

(1) Foreign missions and related organizations like United States International Communications Agency, British Council, Co-operative for American Relief Everywhere, Catholic Relief Services etc.

(2) International organizations, namely, UN and other related organizations or any other similar body of which India is a member.

5. I see no merit in this objection.It is clear that prior intimation was given to the respondents by the petitioner vide letter dated 3.7.2006 and reminders dated 26.7.2006 and 27.7.2006. I find no force in this argument.

6. Secondly, my attention was drawn towards Rule 4 which runs as follows:

Applications not in response to advertisements or circulars not to be forwarded It has been decided that applications from Government servants for employment elsewhere, submitted otherwise than in response to advertisement or circulars inviting applications, should not be forwarded.

7. Learned Counsel for the petitioner contended that Rule 4 is only a rule of caution, this is not mandatory rule. He also pointed out that her application stands already forwarded as is apparent from the above said letter dated 31.8.2006. It must be borne in mind that the petitioner has received the above said offer from the Great Socialist Libyan Jamahiriya General People's Committee i.e. The foreign Govt. itself. Since the offer is coming from the foreign govt. itself, the requirement of advertisement or circular pales into insignificance. The respondents have not picked up a conflict with the facts of this case, which is also supported by petitioner's affidavit. Again it is difficult to fathom as to why this urgent matter is being procrastinating. The attitude of respondents smacks of arbitrariness. Knowing well that her husband has left for a foreign country without his wife and children this was the right time for the respondents to be magnanimous. While dealing with such like applications national interest should be kept in mind. Consequently, it appears that this objection was raised merely for the sake of cavil. I therefore, pin no importance with the same.

8. Lastly, it was submitted that Rule 8 Clause 4 which runs as follows, was not complied with:

(i) xxxxxxxx

(ii) xxxxxxxx

(iii) xxxxxxxx

(iv) in the case of Government servants who seek/secure employment in a foreign country through open advertisements/through their own sources the existing instructions as are applicable to those who seek employment in the private sector within the country will continue to apply.

9. This rule is not applicable to the present case because the petitioner is engaged by the Government and not by a private sector.

10. In the light of above said discussion the writ petition succeeds. The respondents are directed to grant Extraordinary Leave without pay to the petitioner within a week from the date of this order otherwise it should be deemed to have been granted. Her job will stand secured and her foreign trip for a year from the day when she actually leaves India will not invite any adverse remarks or action. She is allowed to join the above said foreign job and join her husband, subject to petitioner's filing an affidavit with the Court regarding her pay scale, total emoluments, time of assignment, accompanied with a copy of assignment letter within a week. No order as to costs.