Shri Vijay Kumar Singh vs Union Of India & Ors.
2008 Latest Caselaw 1459 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        WP (C) No.7115 of 2002


%                                         Date of decision: 27.08.2008


SHRI VIJAY KUMAR SINGH                                ...PETITIONER
                     Through:            Dr. L.S. Chaudhary,
                                         Mr. Ajay Chaudhary &
                                         Mr. D. Mathew, Advocates with
                                         Petitioner in person.


                                    Versus


UNION OF INDIA & ORS.                          ...RESPONDENTS
                            Through:     Ms. Sonia Mathur with
                                         Mr. Pankaj Prasad, Advocates.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?             No

2.        To be referred to Reporter or not?              No

3.        Whether the judgment should be
          reported in the Digest?                         No

SANJAY KISHAN KAUL, J. (Oral)

1. Rule DB.

2. At the request of the learned counsels for the parties, the

petition is taken up for final disposal.

3. The petitioner was appointed as a Constable (GD) in ITBP on

2.4.1990. The Enforcement Directorate of ITBP issued a

Memorandum dated 12.4.1991 in terms whereof the period

spent on completion of course was to be treated as a period

on duty. The object of the same is explained in the following

terms:

"Dated: 12.04.91

Memo

Sub: Regarding arrangement of seats for training of Paramedical employees in courses like diploma in pharmacy, Lab-technicians & radiographer.

We are in constant touch with various Institution of the country for past several years for the purpose of excellent training of our paramedical employees. In some of the institutions we have been allotted seats permanently; but, it has been observed that the eligibility conditions of these institutions do not suit our paramedical employees as a result of which we could not properly make use of the seats reserved. The eligibility conditions for admission into diploma course in pharmacy in the institutes of U.P. Government were suitable to our paramedical employees and we had send our six paramedical employees for pharmacy diploma course in last session (1989-90).

In the next attempt we have been informed that the next admissions for this course would be based on competitive entrance examination. Therefore, they are unable to provide reservation of seat for us in this course. We are unable to get needful co-operation from the institutes of state of this kind.

In order to over come the above mentioned difficulties it has been decided that all those paramedical employees who want to do a diploma course in pharmacy and who have not passed any medicine related course from any out side institute, they can pursue a diploma course in pharmacy from any recognized institute within India by getting a seat on the basis of either a competitive selection test or through any other medium provided they have completed at least 3 years of departmental service, basic training and basic medicine course and have a direct relation to the paramedical cadre.

If any paramedical employee pursues a diploma course in pharmacy by obtaining a seat in accordance with para 2, the duration of course pursued by him

shall be treated as a period spend on duty in accordance with CRPF Rules 26 (c) his Head of office shall obtain a bond/undertaking from him that he shall serve the ITBP for a period of not less than 5 yrs. after completion of the course. The bond of like type shall also be obtained from those paramedical employees who will go to pursue courses like diploma in pharmacy, Lab technician, radiographer and any other course on the reserved sits availed through efforts of the department."

(emphasis supplied)

4. The petitioner was appointed as a Constable (Medic) after

completing his Basic Medics Course in October 1995 and

sought permission to undertake a two year diploma course in

Pharmacy from M.S. Ramaiah College, Bangalore in terms of

the aforesaid Memorandum dated 12.4.1991. The request of

the petitioner was favourably considered in terms of the

communication dated 24.11.1998 and a movement order

was issued.

5. The petitioner completed the two years Pharmacy Course

with first division along with practical training of 500 hours

duration as part of compulsory requirement for award of the

diploma certificate and reported back to duty on 14.6.2001,

the next day after completing the course. The petitioner, is,

however, aggrieved by the impugned order of respondent

No.3 dated 7.12.2001 whereby part of the period of diploma

course was not treated as period spent on duty contrary to

the Memorandum dated 12.4.1991. The relevant portion of

the said Memorandum reads as under:

      SRL.                PERIOD                     TREATMENT OF THE
     NO.                                                    PERIOD
1.             4.12.98 to 13.12.99             Pharmacy       course    period
                                               regularized as duty in terms of
                                               provisions contained in CRPF
                                               Rule 26 (c), FR-9(6)(b)(I) &
                                               GDI (6) below FR-9
2.             4.12.99 to 20.5.2000            (169) days regularized as
                                               earned      leave    (pharmacy
                                               course period)
3.             21.5.2000 to 30.6.2000          (41) days regularized as HPL
                                               (pharmacy course period)
4.             1.7.2000 to 30.7.2000           (30) days regularized as
                                               Earned      leave    (pharmacy
                                               course period)
5.             31.7.2000 to 20.11.2000         (113) days regularized as HPB
                                               (HPL)     (pharmacy      course
                                               period)
6.             21.11.2000 to 21.2.2001         (93) days regularized as EOL
                                               (absent period.)
7.             22.2.2000 to 15.3.2001          (22)    days    E/L    (Hospital
                                               Training)
8.             16.3.2001 to 19.5.2001          (65)    days    HPL    (Hospital
                                               Training)
9.             20.5.2001 to 13.6.2001          (25) days EPL (Absent Period)

2. Besides above, the 30 days period w.e.f. 13.8.2001 to 11.9.2001 availed as E.L. by the individual is also regularized as under: in view of above casualty.

13.8.2001 to 28.8.2001 (15) days Earned Leave 28.8.2001 to 11.9.2001 (15) days EOL as LKD"

6. Learned counsel for the petitioner submits that the

impugned order dated 7.12.2001 is ex facie contrary to the

Memorandum dated 12.4.1991.

7. Learned counsel for the respondents has been unable to

justify the impugned Memorandum but contends that even if

the two years course period is treated as on duty, the six (6)

months period training thereafter should not be treated as

on duty as the respondents did not give permission for the

same.

8. Learned counsel for the petitioner, on the other hand, has

pointed out that the training was an essential part of the

course and the petitioner could not have been awarded the

diploma certificate without completion of the training period.

The relevant communication of the Pharmacy College in this

behalf is as under:

"M.S. RAMAIAH COLLEGE OF PHARMACY M.S. Ramaiah Nagar, M.S. R.I.T. Post, Bangalore-56054.

Ref No.MSRCP/1062001 Date: 20.02.2001

To, The Commandant 18th Battalion ITB Police, Post Matli, District Uttar Kashi (U.P.)

Sir,

Subject: Permission for Hospital Training

Sri VIJAY KUMAR SINGH was a student of this college studied 2 years D. Pharm course from 1998-2000. He has completed his II D. Pharm Course during October 2000, result of which is announced during January 2001 and he has passed in I Class.

He has to undergo D. Pharm Part II Course that is Pharmacy training for 500 hours in 3 months period and then only he will be awarded his Diploma Certificate.

For information.

Thanking you, Yours faithfully, Sd/-

(Prof. V. Madhavan) Principal Seal of:

M.S. RAMAIAH COLLEGE OF PHARMACY"

(emphasis supplied)

9. In our considered view, the action of the respondents is

totally unsustainable. The training being an essential part of

the Diploma course without which the petitioner could not

have been granted the diploma certificate, the period spent

in the said training has to be treated as one on duty. It must

be kept in mind that the Memorandum dated 12.4.1991 was

issued as the respondents were in need of such persons who

are qualified and the incentive of treating the period as on

duty was given for the same. It is in these circumstances

that the request of the petitioner to complete the course had

been considered favourably.

10. A further relief sought for by the petitioner is for

reimbursement of the expenses incurred by him during the

course. The averment in this behalf has been made in para

15 of the writ petition while stating that similarly situated six

other persons have been granted the benefit. The relevant

portion reads as under:

"15. That the petitioner submitted a representation dated 22.3.2002 to the respondent no.3 requesting that the period spent on diploma course should be treated as the period spent on duty and full salary for this period was rightly paid to him. The petitioner also claimed the reimbursement of the expenses incurred by him on the said course. The petitioner also staked his claim for his appointment to the post of SI (Pharmacist) as has been done in the case of other similarly circumstanced six persons whose particulars are given below:

Srl No.          Post                    Name                Battalion
   1.       SI/Pharmacist          Sher Singh          Base Hospital, Delhi
                                                       (Training)
   2.              -do-            Gautam          Ram Area Head office,
                                   Saukata             Tara Devi


    3.              -do-          Ram Singh           6th Battalion
   4.              -do-          Manohar Singh       23rd Battalion
   5.              -do-          Raghubir    Singh   15th Battalion
                                 Taulia
   6.              -do-          Kishan Singh        Regional
                                                     headquarter,
                                                     Garhwal (Dehradun)

              The    respondent     no.3    forwarded    the    said

representation to the respondent no.2; but, no reply has been given to the petitioner so far. A copy of the said representation is annexed hereto and marked as Annexure-P/12."

11. In response to the same in para 15 of the counter affidavit it

is stated as under:

"15. The contents of para 15 are denied because the period of training as well as the absence period of the Petitioner was correctly regularized. As regards the representation is concerned, it is submitted that the Petitioner has submitted an application on 26.11.2002 for withdrawal of his representation regarding regularization of his Training absence period. The bills regarding fee and tuition fee have not been submitted by the Petitioner till date. It is further submitted that the stake of the Petitioner for appointment as S.I./Pharmacists is not tenable as there is no provision exists in the Recruitment Rules for the appointment of a person merely by passing the Diploma Course. The personnel named in this para were never appointed by virtue of their passing the Diploma course. In fact all these personnel appeared in an open recruitment rally held at ITBP Tigri Camp, New Delhi in November/December 1992 and after going through the normal recruitment process viz. 1 star Test, professional test and interview etc. and after successfully passing the recruitment test they were given offer of appointment and appointed as S.I./Pharmacist after tendering the technical resignation from their previous appointment. The Petitioner may also appear in the open recruitment rally as and when it is held."

12. The aforesaid shows that there is no denial either of similar

benefits being extended to other persons or of the petitioner

not being entitled to the said benefit. What is stated is that

the petitioner has not submitted the relevant bills for

payment but the said bills already stand forwarded to the

respondents as per the various communications of the

petitioner. The petitioner is, thus, entitled to the

reimbursement of the amount spent on the course.

13. Learned counsel for the petitioner points out that the

petitioner has not earned his promotion as the petitioner was

not treated on duty for the period of six (6) months when he

was carrying out the training in the Pharmacy course. The

petitioner addressed a letter dated 25.10.2000 to the

Commandant of the Battalion pointing out that the second

year of the diploma would be completed only in January-

February 2001 and thereafter compulsory training would be

required to be taken from some hospital. The diploma

certificate could be issued only thereafter. A request was

made to permit the petitioner to complete the course and

the practical training. The certificate issued by the

Pharmacy College dated 20.2.2001 referred to aforesaid was

subsequently forwarded.

14. The request of the petitioner, however, did not find favour

with the respondents in term of memorandum dated

15.3.2001 on the ground that the petitioner was to complete

the course within a period of two (2) years of seeking

permission and he ought to have taken permission to

proceed for hospital training. The memorandum was replied

to by the petitioner on 25.4.2001, once again, emphasizing

that the completion of hospital training was an essential part

of the two (2) year diploma course and the diploma

certificate could not have been issued without completing

the said training. The subsequent representation was also

made on 19.6.2002 pointing out that the petitioner had

joined on 14.6.2001 immediately on completion of hospital

training, which was from 22.2.2001 to 13.6.2001. The

repeated reminders elucidated no positive response.

15. The facts and circumstances of the case show that the on

completion of the course the declaration of result was

delayed as apparent from the representation and that is the

reason there was some delay in completion of hospital

training. The petitioner reported the very next date after

completion of the hospital training. It is not in dispute that

the petitioner would not have been issued the diploma

certificate without completion of hospital training. The

sanction for attending to the course must be read in that

context as it can hardly be expected that the petitioner

should rejoin back on completion of course without hospital

training and deprive himself of the diploma certificate. The

petitioner took care even to write to the Commandant at the

relevant stage and thus the action of the respondents in

insisting that the petitioner must join back cannot be

sustained. The period spent by the petitioner on training has

to be treated on duty.

16. The result of the aforesaid is that the petitioner being

treated on duty would be entitled for consideration of

promotion on the said basis. The promotion would take

effect from the date when six other persons were so

promoted in case on consideration he is found fit for

promotion.

17. A writ of mandamus is issued directing the respondents to

consider the total period the petitioner spent while

completing the course including the training period as on

duty and the consequent emoluments payable to the

petitioner which have not been so paid be remitted to the

petitioner within a period of three (3) months from today.

Thus, the amount is payable for the said period as on duty

without any deduction. The amount having been

unreasonably detained, the petitioner shall also be entitled

to interest on the amount from the due date till date of

payment @ 9 per cent per annum (simple interest). The

petitioner is also held entitled to reimbursement of expenses

spent on completing the course which should also be

remitted within the same period of time.

18. The case of the petitioner for promotion should be

considered at par with six other persons as the petitioner is

to be treated on duty for the full period of the course

including the training period of the course and the date of

promotion would take effect from the date when the other

six persons were so promoted. The necessary action in this

behalf be taken within a period of three (3) months from

today. The petitioner on promotion would also be entitled to

all consequential reliefs including monetary benefits.

19. The petition is allowed with costs quantified at Rs.5,000.00.

SANJAY KISHAN KAUL, J.

AUGUST 27, 2008                             MOOL CHAND GARG, J.
b'nesh