Niraj Kumar Rajput vs Union Of India & Anr.
2012 Latest Caselaw 2960 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision: 04.05.2012

+      WP(C) No.1887/2012 & CM Nos.4119/2012 & 5675/2012

Niraj Kumar Rajput                                  ...    Petitioner

                                  versus
Union of India & Anr.                               ...    Respondents

Advocates who appeared in this case:

For the Petitioner        : Col.(Retd.) S.R.Kalkal, Advocate
For Respondents           : Mr.Anuj Aggarwal, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

1. The petitioner has sought the quashing of order dated 29th

February, 2012 stipulating that on the completion of the approved term

of deputation in the National Security Guard (hereinafter referred to as

the „NSG‟), the petitioner of Headquarter NSG (Accounts Branch) is

relieved to his parent Department, i.e. BSF, Headquarter New Delhi on

29th February, 2012 and that he has been struck off the strength of the

Headquarter NSG w.e.f. 1st March, 2012. The petitioner was also

sanctioned 61 days earned leave from 1st March, 2012 to 30th April,

2012. The order also contemplates that after availing the leave, he

would report to the DIG (Estt.), BSF Dte, New Delhi-03 for further

duties.

2. The writ petition was filed on behalf of the petitioner on 28th

March, 2012 and it came up for hearing before this Court on 30th

March, 2012. On 30th March, 2012, the learned counsel for the

petitioner got the matter adjourned on the ground that he wishes to

amend the writ petition and implead the Director General, BSF, the

petitioner‟s parent department, as party to the present petition.

3. Though the petitioner had not filed an application on 30th March,

2012 for the amendment of the writ petition and for impleadment of the

Director General, BSF, however, the petitioner was permitted to amend

the writ petition and to file the amended petition along with the

amended memo of parties within two days as was prayed by the learned

counsel for the petitioner and the matter was therefore, listed for

preliminary consideration on 9th April, 2012.

4. The petitioner, however, filed an application, being CM

No.4242/2012, seeking amendment to the memo of parties only. Since

by order dated 30th March, 2012, the petitioner was permitted to amend

the petition, therefore, the application was dismissed as infructuous on

9th April, 2012. Since the learned counsel for the petitioner had filed the

memo of parties without filing the amended writ petition, therefore, on

9th April, 2012, the matter was adjourned to 20th April, 2012 at the

request of the learned counsel for the petitioner to file the amended writ

petition. On 20th April, 2012 the Division Bench did not assemble, and

therefore, the matter was adjourned to 24th April, 2012. The petitioner,

thereafter, filed an application for amendment of the writ petition, being

CM No.4902/2012. Though the Court had permitted the amendments

in the writ petition considering the nature of submissions made by the

learned counsel for the petitioner on 30th March, 2012, however, since

the application was filed and the amendment sought were categorically

detailed in para 5 of the application, the application was allowed and

the petitioner was again permitted to file the amended writ petition

incorporating the amendments sought by the petitioner.

5. Even before filing the application for amendment of the writ

petition, the learned counsel for the petitioner had filed a writ petition

dated 6th April, 2012, where the specific amendments sought by the

petitioner were not incorporated. Therefore, the learned counsel for the

petitioner was permitted to withdraw the alleged amended writ petition

dated 6th April, 2012 with liberty to file a proper and complete amended

writ petition.

6. The matter was thereafter, taken up on 1st May, 2012, however, it

was adjourned at the request of the learned counsel for the petitioner,

and thereafter it has been taken up for hearing today. Learned counsel

for the petitioner, today, again insists that the petitioner is entitled for

the relief claimed on the ground that the various persons in the NSG as

detailed in Annexure-A at page 39 of the writ petition, have been given

the extension. Merely because a number of other personnel have been

given extension of deputation period for one more year, would not

entitle the petitioner for extension, unless the relevant rule permitting

deputation beyond five years is amended and approved. Mere proposal

for amendment, which is pending consideration for considerable time,

would not entitle the petitioner for extension of deputation for one more

year beyond the period of one year in the facts and circumstances.

7. The plea of the learned counsel for the petitioner is also that the

petitioner has an old mother who is suffering from cancer in the Gall

Bladder since 2009 and is under continuous treatment on the advice of

the doctors of the All India Institute of Medical Sciences (AIIMS) and

now is under direct treatment at (AIIMS). The petitioner also relied on

the medical certificates issued by AIIMS in 2009 and Dr. Susheela

Tewari Govt. Hospital, Haldwani, District Nainital in December, 2011.

8. Perusal of the certificates produced by the petitioner, however,

reveal that the prescription produced by the petitioner in respect of the

treatment of his mother from AIIMS are of the year 2009 of the Out-

patient department. The latest medical papers of the mother of the

petitioner, filed by the petitioner, is that of Dr. Susheela Tewari, Govt.

Hospital, District Nainital, dated 17th December, 2011. In other words,

nothing has been placed on record by the petitioner, despite repeated

opportunities to do so, to demonstrate the nature of the treatment the

petitioner‟s mother is currently undergoing at AIIMS. All that has been

placed before the Court shows that the petitioner‟s mother was operated

for cancer of the gall bladder some years ago, and that she is now an

out patient. Till 17th December, 2011, she was being treated at a

Government Hospital at Haldwani in Nainital when she was referred to

AIIMS for, "follow up". Nothing has been filed to show the nature of the

"follow up", if any, at AIIMS.

9. Despite the repeated queries from this Court, the learned counsel

for the petitioner has failed to file any documents in support of his plea

to show that the mother of the petitioner is still undergoing treatment at

AIIMS. Instead of replying to our queries on this aspect, learned

counsel for the petitioner, however, has kept on insisting that since a

number of other persons have been granted extension of tenure of

deputation for the 6th year and extension for one more year is pending

approval from the concerned authorities, therefore, the petitioner is

entitled for extension of his period of deputation for the 6th year. It has

also been contended that the respondents cannot adopt a pick and

chose policy which could lead to discrimination.

10. Learned counsel for the petitioner has also urged that the

Director General, BSF, cannot exercise his powers as Head of the

Parental Department in an arbitrary manner so as to transfer the

petitioner from Delhi where the petitioner‟s mother is being treated for

cancer.

11. Learned counsel for the petitioner is unable to show any

documents on the basis of which it can be inferred that the petitioner is

entitled for extension of his deputation tenure for the 6th year in

accordance with the rules. Learned counsel has also failed to show or

annex any record of her current medical status or treatment that she is

undergoing at present at AIIMS. In the circumstances, the petitioner is

not entitled for extension of deputation for one more year on any of the

grounds raised by him.

12. This Court has endeavoured to appreciate the case of the

petitioner on repeated occasions. So much so, that we granted

opportunities to the learned counsel for the petitioner to amend the writ

petition and to produce appropriate documents, which has not been

done. In these circumstances, when this Court expressed its

dissatisfaction in the manner in which the petition has been handled,

the counsel for the petitioner states that he does not wish to argue

anything further. This has been recorded at the instance of the learned

counsel for the petitioner.

13. Learned counsel has then stated that he does not wish to

continue with the argument not only in this case, but in future also he

would not appear before this court. Such a statement by the learned

counsel for the petitioner is clearly not in the best traditions of the Bar.

It is an expression of the counsel‟s personal dissatisfaction towards this

Court which is unacceptable. Learned counsel for the petitioner then

states that he has not shown any disrespect to this Court. However,

the conclusion drawn by this Court is to the contrary, based on the

conduct of the learned counsel for the petitioner. Mr. Kalkal is a

retired Army Officer who regularly appears in matters concerning the

armed forces before this Court. He has taken up the profession of law

after his retirement and does not appear to practice in any other branch

of law. In this matter, Mr. Kalkal appears to have adopted a style which

merely consists of aggressive repetition and heckling. He has refused to

place any relevant records which might go to demonstrate the current

state of the petitioner‟s mother‟s health and the medical necessity for

his mother to remain at Delhi. We are also convinced that what has

emboldened Mr. Kalkal to take this approach, and, on finding that it is

not succeeding, to state that he will not appear before this Court in

future, is merely the fore-knowledge that one of us is due for retirement

soon after the court reopens after the summer break, which would

naturally occasion the dissolution of this Division Bench. Such

conduct is to be deprecated, and we record our displeasure. Such an

approach on the part of counsel is neither helpful to his client, nor to

himself, nor does it promote the cause of justice.

14. In the entirety of the facts and circumstances, the petitioner is

not entitled to the reliefs claimed by him, i.e., extension of his

deputation for a further period of one year, i.e., for the 6th year; and

that he should not be repatriated to the BSF HQs, his parent

department. The petitioner is also not entitled to continue on account

of the alleged treatment of the mother of the petitioner at the AIIMS as

no record has been produced by the petitioner despite opportunity to

him.

15. The writ petition is, therefore, dismissed. All the pending

applications are also disposed of.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

May 04, 2012 vk