Shailender Kumar And Ors vs Delhi High Court (Through ...
2012 Latest Caselaw 2932 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment reserved on: 30.04.2012
                                           Judgment pronounced on: 03.05.2012

+      W.P.(C) 2520/2012

       SHAILENDER KUMAR AND ORS                                                   ..... Petitioner


                                            versus

       DELHI HIGH COURT (THROUGH REGISTRAR
       GENERAL) AND ANR                                                        ..... Respondents

Advocates who appeared in this case:
For the Petitioner   : Mr R. K. Saini
For the Respondent   : Mr Rajiv Bansal for R-1, Ms Urvashi Malhotra for Ms Avnish Ahlawat for
                       Respondent No. 2

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. Pursuant to an advertisement issued by the District Judge-I and Sessions

Judge, Delhi, the petitioners applied for appointment to the post of Lower Division

Clerk (LDC) in the District and Sessions Court, Delhi. The petitioners were issued

offers of appointment dated 15.09.2003, 15.11.2003 and 12.12.2003 respectively.

On their accepting the offers vide letters dated 01.10.2003, 04.12.2003 and

22.12.2003 respectively, they were medically examined on 31.10.2003, 10.12.2003

and 02.01.2004 respectively. Verification report with respect to character was

received by 09.02.2004 in respect of petitioner No. 1, on 02.01.2004 in respect of

petitioner No. 2 and on 29.01.2004 in respect of petitioner No. 3. The petitioners

joined service on 20.02.2004, 16.02.2004 and 11.02.2004 respectively. Some of

the candidates, who were issued appointment letters on the same dates on which

such letters were issued to the petitioners, joined on or before 31.12.2003 because

their medical examination had been conducted and verification report of their

character and antecedents had been received by that time. It is alleged that these

candidates were junior to petitioner No. 1 while one Amit Badoni is junior to

petitioner No. 2, as per the list prepared by the respondents, which is based on the

rank of the candidates in the merit list.

2. Government of India promulgated a new pension scheme which was applied

to those who entered the Government service on or after 01.01.2004. That scheme

was also adopted by Government of NCT of Delhi vide order dated 19.07.2006.

As a result of implementation of the said scheme, those who joined Government

service on or before 31.12.2003, are governed by CCS (Pension) Rules, 1972,

whereas those who entered the Government service on or after 01.01.2004 are

governed by the new pension scheme introduced by the Government. The

petitioners submitted a representation seeking applicability of CCS (Pension)

Rules, 1972 to them, on the ground that they were offered appointment in the year

2003, though on account of unavoidable delays not attributable to them, they could

not join on or before 31.12.2003. Their representation having been rejected, the

petitioners are before this Court by way of this writ petition.

3. The main contention of the petitioners is that the offer of appointment having

been made to them prior to 01.01.2004 and their inability to join the post by

31.12.2003 not being attributable to any lapse on their part, the benefit of

CCS(Pension) Rules, cannot be denied to them, particularly, when this was

extended to those who were selected simultaneously with them but were able to

join on or before 31.12.2003, on account of their medical examination and police

verification having been completed by that date. In our view, the contention is

devoid of any merit. The Government was well within its right in discontinuing the

applicability of CCS (Pension) Rules, 1972 and applying a new pension scheme to

those who were to join the service after promulgation of the new pension scheme.

It was for the Government to decide, in its wisdom, as to whether it wanted to

apply the new pension scheme to those who had entered service on or after

01.01.2004 or to those who were offered appointment on or after 01.01.2004. The

Government having decided to discontinue the applicability of CCS (Pension)

Rules and to extend the new pension scheme to all those who were to join service

on or after 01.01.2004, irrespective of the date on which offer of appointment was

made to them, the petitioners do not have any legal right to claim applicability of

CCS(Pension) Rules, 1972 to them. It is not as if the new pension scheme has been

introduced after the petitioners had joined service of the Government. The

petitioners were not in the service of the Government prior to 01.01.2004 and,

therefore, they had no right to the posts of LDC in District Sessions Court, when

the new scheme was promulgated by the Government. Thus, this is not a case of

service condition of the employees being varied by the Government to their

detriment. Even if the petitioners could not join the service on or before 31.12.03

on account of no fault on their part that would make no difference since the

relevant date is the date of joining the service and not the date on which the

employment was offered to them. If we accept the contention that the offer of

appointment having been made to the petitioners prior to 01.01.2004, they are

entitled to be governed by CCS (Pension) Rules, that would be contrary to the

terms of the scheme framed by the Government. We must take note of the fact that

there has necessarily to be some timelag between the making of offer for

appointment and the selected candidate joining the service of the Government

because medical examination and police verification must necessarily precede the

joining of service by him. If the medical examination of some persons who are

offered employment along with the petitioners was conducted and/or their police

verification was done before the medical examination and/or police verification of

the petitioners and consequently, those persons were able to join service on or

before 31.12.2003 no benefit on that account accrues to the petitioners since

completion of medical examination and police verification depends upon a lot of

factors including the place where the candidate is residing, the hospital in which he

is to be medically examined, the date fixed by that hospital for medical

examination, the time taken by the concerned police official in verification of the

antecedents etc. If a person is offered employment say in last week of December,

2003, he cannot claim benefit of CCS (Pension) Rules because some time is

necessarily required for his medical examination and police verification and,

therefore, it will not be possible for him to join the service of the Government on or

before 31.12.2003.

4. We would like to note here that the petitioners have not challenged the

decision of the Government to apply the new pension scheme to those who joined

Government service on or after 01.01.2004. They are not seeking quashing of the

said scheme on the ground that it could not have been applied to the employees

who were offered employment on or before 31.12.2003. They only want to be

treated at par with those who had joined on or before 31.12.2003, despite the fact

that they are not similarly situated in the sense that they came to join the

Government service after 31.12.2003.

5. The learned counsel for the petitioners has relied upon the decision of this

Court in the case of Government of NCT of Delhi & Anr v. Dr. Pawan Kumar N.

Mali & Ors. dated 03.02.2011 in WP(C) No. 5983/2010, in support of his

contention that having been offered employment prior to 01.01.2004, the

petitioners are entitled to be governed by CCS (Pension) Rules, 1972. A perusal of

the judgment would show that in the above-referred case, a written examination

had been held for recruitment to 13 posts of Medical Officers in Directorate of ISM

& H, on 10.02.2002. The result was published on 28.09.2002 and 04.02.2002. The

recommendation letters dated 18.10.2002 were sent to the persons who were

selected by U.P.S.C. for the said post. The selected candidates accepted the offer

of appointment and their medical examination was also conducted. Three out of

the 13 officers joined the Department on 20.01.2003. However, before the

remaining 10 Medical Officers could join the Department, some Doctors, who were

appointed on contractual basis, filed a writ petition against the order of the

Tribunal, which had dismissed their claim for regularization. Vide order dated

23.02.2003, this Court directed the Department to maintain status quo with regard

to the doctors who were appointed on contractual basis. As a result, the

respondents were not allowed to join duties in the Directorate of ISM&H in 2003.

Ultimately, the writ petitions of the doctors, who were appointed on contractual

basis, were dismissed in August, 2005 and subsequent to dismissal of those writ

petitions, the respondents joined their duties with the petitioners. The respondents

submitted representations seeking parity with the three Medical Officers who had

joined prior to 01.01.2004. The Tribunal having decided in their favour,

Government filed the writ petition challenging the order of the Tribunal,

contending that it was not on account of any fault of the Government, but on

account of "status quo" order granted by the Court that the respondents could not

be assigned duties. Dismissing the writ petition, this Court, inter alia, held as

under:

"We have heard the learned counsel for the parties in detail. It is well settled that an order of Court cannot prejudice anyone (actus curiae neminem gravabit). This position has been explained by the Supreme Court, in ONGC v. Assn. of Natural Gas Consuming Industries, AIR 2001 SC 2796, where it was held that an interim order of the court cannot enure beyond the life of the substantive proceeding, when the litigant, ultimately loses on the merits of the case, and that the maxim entitles the succeeding party to be put back into a position which existed, at the time when no interim order subsisted. In Karnataka Rare Earth v. Senior Geologist, Deptt. of Mines and Geology, (2004) 2 SCC 783 it was held by the Supreme Court that when on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have

been if the interim order of the court would not have been passed. As also observed in the case of Sunil Kumar Sharma v. State of U.P. and Ors. 2002 (4) AWC 3172, where it was held that interim orders of the Court cannot prejudice or non-suit a party against whom it is issued unless it attains finality. Passing of an ad-interim order is generally by way of exception to the general rule that no order be passed against a person without hearing and it is on the basis of equity of preserve 'situation' so that final relief is not lost. But granting relief or passing a decree on the basis of something done under ad-interim order will amount to granting undue advantage over the other party.

The respondents were duly selected after a written examination and interview, and intimation about their selection was given to them by the Union Public Service Commission pursuant to which the petitioners had offered them appointment which was accepted by the respondents. Once the Offer of Appointment was accepted by the respondents and their medical examination was also done, merely because they were not given placement on account of continuation of the doctors who were appointed on contractual basis in respect of whom the status quo order was passed, it cannot be held that there was no appointment of such doctors or that they have to be treated differently than some of the doctors who were selected along with the respondents, but who had been given placement and appointment on account of availability of the

posts. The status quo order in respect of the doctors on contractual basis which was ultimately vacated and the writ petition was dismissed, will not prejudice the respondents.

Similarly, if the new pension scheme is applicable to new recruits from 1st January, 2004, the respondents could not be termed as new recruits as the offers of Appointment were sent to them much prior 1st January, 2004 and was also accepted by them and pursuant to which they were also asked to undergo the medical examination and they were found to be fit. The only factor is that they were not given placement in different hospitals as the doctors who were appointed on contractual basis were continuing on account of the status quo order granted in their favor by the court which was ultimately vacated.

In the circumstances, the status quo order passed in favor of the doctors who were appointed on contractual basis cannot prejudice the respondents.

In the circumstances, the Tribunal's order directing the computation of period during which they were not placed in the hospital for the purpose of increments and for seniority cannot be termed to be illegal or contrary to law. For the same reasons, since the respondents were recruited prior to 1st January, 2004 the Pension Scheme of 1972 shall be applicable to them and not the new pension scheme applicable from 1st January, 2004 to the new recruits.

6. However, in the case before us, there was no order passed by any Court

restraining the respondents from making appointments to the post of LDC in

District & Sessions Court. They were in a position to join service soon after their

medical examination and police verification was complete. On the other hand, in

the case of Dr. Pawan Kumar N. Mali (supra), relief was granted to the

petitioners, primarily applying the principle that the order of the Court cannot

prejudice anyone. Had there been no stay order in that case, the respondents in that

case would have joined service prior to 01.01.2004, since not only the offer of

appointment had been made to them, even their medical examination had been

conducted well before the cut-off date of 01.01.2004. They were prevented from

joining service, only because of stay order granted by the Court. On the other

hand, none of the petitioners before this Court could have been allowed to join

service prior to 01.01.2004 since the character verification in respect of all the three

petitioners was received after 31.12.2003. This judgment, therefore, cannot be

applied to the case before us.

7. This is not the case of the petitioners that their inability to join on or before

31.12.2003 was attributable to any negligence or lapse on the part of the

respondents. If inability of the petitioners to join service on or before 31.12.2003

is not attributable to the respondents or to any order passed by a Court and was

only on account of the time taken by the Hospital/Police in conducting medical

examination and police verification, the petitioners cannot claim parity with the

petitioners in the case of Dr. Pawan Kumar N.Mali (supra).

8. For the reasons given in the preceding paragraphs, we find no merit in the

writ petition and the same is hereby dismissed.

V.K.JAIN, J

BADAR DURREZ AHMED, J

MAY 03, 2012 BG/'sn'