Union Of India vs Shri Devendra Kumar Singh & Ors.
2010 Latest Caselaw 1236 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

              W.P. (C.) No.1294/2010 & CM No. 2707/2010

                         Date of Decision: 04.03.2010

Union of India                                             .... Petitioner
                          Through N.S. Dalal, Advocate

                                   Versus

Shri Devendra Kumar Singh & Ors.                         .... Respondents
                   Through Nemo
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                 NO
3.    Whether the judgment should be reported in             NO
      the Digest?


ANIL KUMAR, J.

*

The petitioner, Union of India through Secretary, Cabinet

Secretariat has challenged the order dated 6th May, 2009 passed in OA

1936/2008 titled Sh. Devendra Kumar Singh Vs. Union of India by the

Central Administrative Tribunal, Principal Bench, New Delhi holding

that the requirement of CCS (Pension) Rule 26 Sub-Rule (2) are met and

allowing the original application and setting aside the order dated 15th

October, 2007 passed by the petitioner whereby the request of

respondent No. 1 for counting the service in the office of Prasar Bharti

& Doordarshan w.e.f. 1st May, 1990 to 4th October, 2003 was rejected.

The admitted facts are that the respondent No. 1 was working as

a technical officer on direct recruitment basis w.e.f. 7th October, 2003

and he claimed the period of past service w.e.f. 1st May, 1990 to 4th

October, 2003 be counted for all purposes. The plea of the respondent

No. 1 was rejected on the ground that since his application had not

been forwarded through proper channel, his past service could not be

computed under the Rules.

The respondent No. 1 had applied for the post of technical officer

in the Aviation Research Centre, Director General of security under the

Cabinet Secretariat while working as an Engineering Assistant in the

Doordarshan Maintenance Centre, Gwalior. On his selection to the post

of technical officer, the respondent No.1 was relieved from Doordarshan

on 4th October, 2003 and he joined his new position on 7th October,

2003, however, he was allowed a lien for two years on his previous

post. The respondent No. 1 had sought counting of his past service on

the plea that the service has been continuous throughout and and as

he had been relieved properly and his resignation by Prasar Bharti and

Doordarshan was in terms of CCS (Pension) Rule 26(2). The relevant

Rule 26(2) CCS (Pension) Rules is as under:-

"(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies."

The learned counsel for the petitioner has contended that the

case of the respondent No. 1 does not fall within the purview of the

exception clause of Rule 26 (2) as it had not been made through proper

channel with permission of the Controlling Authority.

The respondent No.1 had admitted that the application was made

by him directly and not routed through his erstwhile employer,

however, according to respondent No. 1, it was on account of peculiar

circumstances at that time as the respondent No. 1 had to apply within

15 days and he was undergoing training at IIT Kanpur as a sponsored

candidate from Doordarshan and as only 5 to 6 days were left in the

deadline and considering the postal delays, he had applied directly,

however, the intimation was sent by him to his office at Gwalior

immediately and a NOC (No Objection Certificate) was also requested.

The request of the respondent No. 1 was responded by OM dated 6th

September, 1999 asking the respondent No. 1 to give an undertaking

regarding deposit of amount of Rs. 2 lacs as per the bond before leaving

the present post.

The Tribunal had considered the pleas of the petitioners which

has been raised before this Court also and has held that in view of clear

Govt. of India instruction regarding exemption from payment of the sum

undertaken in the bond, the response to the communication of the

respondent No. 1 dated 6th September, 1999 would not negate the no

objection communicated issued to respondent No. 1. Reliance has also

been placed on the certificate dated 29th August, 2005 issued by Station

Engineer certifying that respondent No. 1 had been working from

August, 1990 to 7th December, 1999 and in view of the first

respondent's appointment in the Cabinet Secretariat, the office has no

objection for the purpose of his continuity in the service.

The learned counsel for the petitioner has not been able to refute

that though the respondent No. 1 had submitted the application directly

but there were bonafide circumstantial compulsion. This is also not

disputed that the authorities were duly informed and the

communication dated 6th September, 1999 issued by Station Engineer,

DMC, Gwalior was a virtual NOC. If that be so, the learned counsel

has not been able to show how the requirement of CCS (Pension) Rule

26(2) are not met. There was no specific mention in the advertisement

regarding the application of existing employees being routed through

their employers only.

For the foregoing reasons and taking into consideration of the

facts and circumstances, there are no grounds to interfere with the

order of the Tribunal dated 6th May,2009 in OA No. 1936/2008 titled as

Sh. Devendra Kumar Singh Vs. Union of India. No such illegality or

irregularity has been pointed out which will require interference by this

Court in exercise of its writ jurisdiction in the facts and circumstances

of the case. The writ petition is therefore without any merit and it is

dismissed. All the pending application are also disposed of.

ANIL KUMAR, J.

March 04, 2010                                MOOL CHAND GARG, J.
'rs'