Govt. Of Nct Of Delhi & Ors. vs Sandeep Yadav
2013 Latest Caselaw 1510 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of Decision : April 03, 2013
+                           W.P.(C) 2633/2012
       GOVT. OF NCT OF DELHI & ORS.              ..... Petitioners
                Represented by: Ms.Anjana Gosain, Advocate.
                                       versus
       SANDEEP YADAV                                    ..... Respondent
                Represented by:        Mr.Sourabh Ahuja, Advocate.
       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.

1. Respondent Sandeep Yadav filed OA No.3811/2010 challenging orders dated January 29, 2009 and February 04, 2009 requiring him to deposit two months' salary in lieu of notice pertaining to his technical resignation from service and `75,437/- towards capitation charges.

2. His grievance against the two orders was that having joined service as a Constable with the Delhi Police on August 09, 2007 he got selected as a Primary Teacher in MCD in the month of October 2007. After processing his case further, Delhi Subordinate Services Selection Board (DSSSB) forwarded his name to MCD which offered him appointment in the month of January 2009 requiring him to submit a technical resignation.

3. In paragraphs 4.9 to 4.12 of the Original Application, Sandeep Yadav pleaded as under:-

"4.9. That it is relevant to mention here that for the same selection of Teacher in MCD, some other similarly situated persons like the applicant also applied namely one Sh. Constable (Driver) Kapil Kumar Yadav, No.9093/PR (PIS No.280080046) and he has been given NOC without any two months salary and without any capitation charges

by the DCP, Control Room vide order dated 3.2.2009 (Annexure A/8) and therefore, whole action of the respondents is discriminatory.

4.10 That in another case of Constable Dalbir Singh No.1105/New Delhi (PIS No.28060972) who was selected as Grade-II (DASS)/Head Clerk in GNCT of Delhi was also given NOC without any deposit or loss two months salary or capitation charges vide order dated 14.8.2008 (Annexure A/9) by the Addl. Dy.Commissioner of Police, New Delhi.

4.11 That in another case of Constable (Exe.) Harish Kumar No.3620/DAP (PIS No.28071486) who was also applied along with the applicant in the selection of Teacher in MCD and was selected, he has been given NOC without any deposit or loss of two month salary and capitation charges vide order dated 2.2.2009 (Annexure A-10) by the Dy.Commissioner of Police, 4th Bn., DAP, Delhi.

4.12 That in another case of Ct.(Ex.) Sunil Chhikara No.539/DAP, the Joint Commissioner of Police, vide order dated 26.6.2008 (Annexure A/11) issued NOC to join in other department to the post of Social Security Assistant, without any deposit or loss of capitation charges."

4. Apart from seeking parity with the four persons whose particulars were given in paras 4.9 to 4.12 of the Original Application he pleaded that under Sub-section 2 of Section 25 of the Delhi Police Act 1978 and clause (f) of Rule 5 of the Delhi Police (Appointment and Recruitment) Rules 1980, he was entitled to a waiver of the two amounts.

5. Responding to the averments made in paragraph 4.9 to 4.12 of the Original Application, in the counter affidavit filed, the petitioner pleaded as under:-

"4.9 That the contents of para No.4.9 of the OA are wrong and denied. Const.(Dvr.) Kapil Kumar No.9093/PCR was appointed in Delhi Police on 10.3.2008. On selection as Primary Teacher in MCD Education Department on

29.1.2009, he made his request to the department and hence his technical resignation was accepted vide order dated 3.2.2009 as per rule, since the Const.(Dvr.) had applied for the said post prior to join Delhi Police. However, as per rules he had submitted an indemnity bond to this effect that he will serve his new assignment for a period of 5 years and if he leaves his new assignment before the expiry of five years he would pay the capitation charges to Delhi Police in lump sum.

4.10 That the contents of para No.4.10 of the OA are wrong and denied in view of that the applicant has raised the points about the matter of Const.Dalbir Singh No.1105/ND was enlisted in Delhi Police on 23.3.2006 and had applied for the post of Grade-II (DASS) Head Clerk in Govt. of NCT, Delhi before joining the Delhi Police. He had tendered notice on 23.6.2008 along with appointment letter issued by the Director of Education, GNCT of Delhi for acceptance of his resignation and relieving him from Delhi Police as he was directed by the new employer to join on or before 18.08.2008. He had also submitted an indemnity bond he will serve his new assignment at least 5 years and if he leaves his new assignment before the expiry of five year he would pay the capitation charges to Delhi Police in lumpsum.

4.11 That in reply to the contents of para No.4.11 of the OA is admitted to the extent that the resignation of Ex.Const.Harish Kumar No.3620/DAP was accepted without taking capitation charges and two months salary by DCP 4th Bn DAP but this was the lapse on the part of the disciplinary authority concerned. However, the disciplinary authority is directed to explain in this regard and the responsibility of erring police officials (Dealing Hand) is to be fixed.

4.12 That in reply to the contents of para 4.12 of the OA is devoid of merits. Const.Sunil Chhikara No.5639/DAP has applied for the post of Social Security Assistant in Employees Provident Fund Organization, Ministry of Labour, GOI, Delhi before joining Delhi Police. As per

opinion sought from PHQ he was relieved after executing an indemnity bond on stamp paper worth Rs.100/- but the applicant had applied for the said post through proper channel nor obtained prior permission for the same."

6. Relief has been granted to Sandeep Yadav by the Tribunal.

7. On May 04, 2012 limited show-cause notice was issued pertaining to two months' salary. As regards refund of capitation fee, the writ petition was dismissed.

8. Our job is simple. To consider Sub-Section (2) of Section 25 of the Delhi Police Act 1978 for the reason we are not concerned with the interpretation of Rule 5(f) of the Delhi Police (Appointment and Recruitment) Rules 1980 which pertains to refund of capitation charges.

9. Sub-section 2 of Section 25 of the Delhi Police Act 1978 reads as under:-

"(2) A police officer of subordinate rank who intends to resign from police service shall give to the appointing authority notice in writing to that effect and shall not be permitted to withdraw himself from duty unless he has been granted permission to resign by such authority and two months have elapsed from the date on which he tendered his resignation;

Provided that the appointing authority may at his discretion, permit a Head Constable or a constable to withdraw himself from duty on his crediting to the Government two months' pay in lieu of notice."

10. A perusal of the sub-Section would reveal that a police officer of subordinate rank who intends to resign from police service shall give to the Appointing Authority a notice in writing to that effect and shall not be permitted to withdraw himself from duty unless he has been granted permission to resign by such Authority and two months have elapsed from

the date on which he tendered his resignation. Meaning thereby, resignation has to be with permission and further such a permission cannot be to leave the service unless two months elapses from the date of the notice and the resignation. The proviso empowers the Appointing Authority, by vesting a discretion, to permit a Head Constable or a Constable to resign forthwith provided two months' pay in lieu of notice is credited in the Government account.

11. Thus, the petitioner seems to be prima facie misreading the discretionary power and so has the Tribunal.

12. But we do not interfere for the reason the response of the petitioners to paras 4.9 to 4.12 of the Original Application, are wishy washy; in any case do not deny the positive assertion made that four other similarly situated persons were permitted to leave forthwith without deposit of two months' salary.

13. We only wish that there were better pleadings in response by the petitioner.

14. The amount involved is a petty sum of `30,000/-

15. Clarifying on the legal position, but noting the response of the petitioners to para 4.9 to 4.12 of the Original Application, keeping in view the petty sum involved, we dismiss the writ petition but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE APRIL 03, 2013 dk