Rakesh Tiwari vs Union Of India & Ors.
2015 Latest Caselaw 2169 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment delivered on March 13 , 2015

+     Review Pet.No.579/2014 in W.P (C) No. 8815/2014

      RAKESH TIWARI                                       ..... Petitioner
                   Through:              Ms. Jyoti Singh Senior Advocate
                                         with Ms. Tinu Bajwa and
                                         Mr.Sameer Sharma, Advocates
                           versus

      UNION OF INDIA & ORS.                             ..... Respondents
                    Through:             Mr.Dev P. Bhardwaj, CGSC for
                                         Union of India
      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE NAJMI WAZIRI

                               JUDGMENT

% KAILASH GAMBHIR, J.

1. By this application filed under Section 114 of the CPC, the

petitioner seeks review of the order dated 12.12.2014 passed by this

Court, whereby the Writ Petition filed by the petitioner was dismissed.

2. The grievance raised by the petitioner in the instant application is

that when the Writ Petition was listed on 12.12.2014, gross

misrepresentation was made by the respondents by stating that the

petitioner stood relieved on 8.12.2014 and also that a reliever had already

joined in his place at Base Hospital, ITBP on 11.12.2014. It is the case of

the petitioner that he was not relieved on 8.12.2014 and accordingly, he

wrote a letter dated 12.12.2014 to the IG, Headquarters (IGHQ)

intimating him about the stand taken by the Commandant before this

Court. In reply to this communication, the IGHQ informed the petitioner

that he could not have been relieved prior to 12.12.2014 as the DG, ITBP

had issued an order only on 12.12.2014 confirming the fact that the

transfer order of the petitioner will stand. The petitioner has taken a stand

that the Commandant had no power to relieve the petitioner in absence of

an order from the DG, ITBP and owing to this reason, no order was

personally served upon him relieving him prior to 12.12.2014.

3. Contesting the present application, the respondents in their reply

have taken a stand that pursuant to the order issued by the Ministry of

Home Affairs, the Personnel Branch ITBP, the transfer orders dated

3.12.2014 were issued to Dr. Rakesh Tiwari - petitioner and Dr. Vinita

Tiwari, petitioner's wife, thereby transferring them to Composite

Hospital, ITBP. Dr. Vinita Tiwari alongwith her husband - the petitioner

met the Union Home Secretary on 4.12.2014 to request the latter for

deferment of their transfer citing the ground of education of their

children. The Union Home Secretary, after considering the said request,

agreed to defer the transfer of Dr. Vinita Tiwari till 31.03.2015 so as to

enable her children to complete the current academic session. However,

apropos the transfer of the petitioner, the decision remained unchanged. A

separate order dated 5th December, 2014 was passed by the Ministry of

Home Affairs to this effect and a copy of the said order was duly

endorsed to DG, ITBP. It is further the stand of the respondents that in

compliance of the transfer order dated 3.12.2014 of ITBP Headquarters

and ITBP approval letter dated 8.12.2014 issued by the DG, the petitioner

was issued a movement/relieving letter dated 8.12.2014 by the

Commandant, Base Hospital, ITBP but since it was not received by the

petitioner, it was posted to him through Speed Post on 8.12.2014 and was

delivered to him on 9.12.2014. It is furthermore the stand of the

respondents that one Dr. Harvinder Singh, Anaesthetist joined ITBP Base

Hospital, New Delhi on 11.12.2014. The respondents further averred that

the relieving order of ITBP dated 12.12.2014 on which the petitioner has

placed reliance would have no relevance as the decision of the Union

Home Ministry apropos the petitioner's transfer remained unchanged.

Based on these averments, the stand of the respondents is that there was

no misrepresentation on behalf of the respondents on 12.12.2014.

4. The petitioner has refuted the stand taken by the respondents in his

rejoinder, wherein he has referred to a Memorandum dated 12.12.2014

issued by the IG, ITBP to the Commandant, Base Hospital seeking

explanation from him for relieving the petitioner on 8.12.2014 in defiance

of the advice of the Competent Authority. The petitioner contends that the

relieving/movement order was never received by him and the averment of

the respondents that the petitioner had refused to receive the same is

grossly wrong as the same was never served upon him and the signatures

of the dispatcher and other personnel, obtained on the Receipt Register of

the Base Hospital were not done in his presence or with his knowledge.

The petitioner also took a stand that Dr. Harvinder Singh was not his

reliever and his vacancy at the Base Hospital, ITBP still subsists even

after Dr. Harvinder Singh having joined the Hospital.

5. We have heard the learned counsel for the parties.

6. The Writ Petition preferred by the petitioner, seeking quashing of

his transfer order dated 3.12.2014 was dismissed by this Court vide order

dated 12.12.2014 finding no merit in the same. At the time of preliminary

hearing of the matter on 12.12.2014, Mr. Dev P. Bhardwaj, the learned

Standing Counsel for the respondents appeared on advance notice and

apprised the Court that the petitioner stood relieved on 8.12.2014 and

since he refused to accept the relieving order, the same was dispatched to

him through Speed Post. Counsel also informed the Court that in place of

the petitioner, the incumbent who was posted to Delhi had already joined

on 11.12.2014. As per the petitioner, the respondents grossly

misrepresented the facts as he was neither relieved on 8.12.2014 nor had

the incumbent joined in his place, on 11.12.2014.

7. When notice in this review application was issued by this Court

vide order dated 24.12.2014, it was made amply clear to both the parties

that in case any misrepresentation is found to have been made in the

matter by either of the parties, then serious consequences shall follow.

The petitioner, who was transferred to Chandigarh is averse to join his

new place of posting on account of family constraints. Vide order dated

03.12.2014, the petitioner and his wife were transferred to Chandigarh

and on the representation made by the petitioner's wife to the Secretary,

Ministry of Home Affairs, he had agreed to reverse the decision apropos

the transfer of the petitioner's wife but maintained the decision in the

petitioner's case. A fresh order dated 5th December, 2014 was passed by

the Ministry of Home Affairs, copy of which was endorsed to the DG,

ITBP. This decision of the Ministry of Home Affairs was known to the

petitioner and therefore, he was expecting a fresh relieving order to be

issued by the Competent Authority. By an Office Memorandum dated 8th

December, 2014, Dr. K.K. Mukherjee, IG/Director (Medical) passed a

direction to the Commandant, Base Hospital, New Delhi to immediately

relieve the petitioner so that he could join his new place of posting at CH

Chandigarh, ITBP and asked for a compliance report to be submitted to

all concerned. In this letter, the IG/Director (Medical) also mentioned that

this has the approval of DG, ITBP. Based on the said Office

Memorandum, the Commandant, Base Hospital, ITBP, issued a separate

order relieving the petitioner on 8.12.2014 (FN) from Base Hospital, New

Delhi, thereby posting him to Composite Hospital, ITBP, Chandigarh and

simultaneously, struck off his name from the strength of Base Hospital,

ITBP. Copy of this letter was endorsed by Commandant, Base Hospital to

the Director (Medical), Directorate General ITB Police Force, Inspector

General and other higher officers. As per the respondents, this letter was

not received by the petitioner and therefore, the same was sent through

Speed Post on the same date and it was delivered to him on 9.12.2014.

The respondents have placed on record the proof of the same. The

petitioner, on the other hand, has disputed the receipt of this letter and

also the authority of the Commandant, Base Hospital to issue a relieving

order in the absence of any directions from the DG, ITBP, which

directions were issued only on 12.12.2014.

8. Before us is a case where the petitioner is reluctant to join his new

post at CH Chandigarh and the respondents have shown great haste in

issuing the relieving order dated 8.12.2014 without even waiting for

necessary directions from the DG, ITBP. The Office Memorandum dated

12.12.2014 issued by the IG, HQ to Dr. Subedar, CMO (SG),

Commandant, Base Hospital, ITBP called for reasons for relieving Dr.

Rakesh Tiwari (the petitioner) on 8.12.14 (FN), ignoring/defying the

orders/advice of the Competent Authority about waiting for further orders

and an explanation as to why such orders were not complied with for

other Doctors on their relieving earlier.

9. This Office Memorandum refers to a telephonic message received

by the DG from the office of Home Secretary on 05.12.14 that Drs. Tiwari

have met the Home Secretary and that their relieving on transfer to CH,

Chandigarh be postponed till receipt of further orders, which order was

also conveyed to Dr. Subedar by the DIG (Pers), Dte. General on the same

date over telephone. In compliance of the MHA order, the Directorate

further conveyed this decision to all concerned including the

Commandant, Base Hospital vide its order No. 4205 dated 12.12.2014.

The IG/Director (Medical) and the Commandant, Base Hospital were

perhaps in a great rush to ensure immediate transfer of the petitioner to

Chandigarh without awaiting further orders from the Dte. General and to

this extent, their conduct needs to be deprecated. The petitioner, on the

other hand, also does not appear to the Court as a willing officer as he was

relentlessly trying to prolong his posting at Base Hospital, Delhi. Despite

the decision of the Home Secretary, Ministry of Home Affairs dated

5.12.2014, thereby deferring the transfer of the petitioner's wife and

maintaining his stand on the transfer of the petitioner, there was quite

some degree of reluctance and resistance on his part to proceed to his new

place of posting. It is not the case of the petitioner that he was not aware

of the decision taken by the Home Secy. on 5.12.12, refusing to change

the decision in so far as the petitioner's transfer was concerned. If it was

so, then for what great reason was he avoiding the relieving order. The

relieving order dated 8.12.2014 was sent to him through Speed Post. In

the instant case, service of the relieving order to the petitioner through

Speed Post is presumed in the light of the evidence placed on record.

Therefore, in view of the aforesaid facts, we are of the considered opinion

that neither the conduct of the petitioner nor of the respondents is worthy

of appreciation as both of them were not assiduous in placing the correct

facts before the Court. The petitioner and the officers of the defendants

would be well-advised to be particularly careful, dutiful and diligent

before a Court of law.

10. Equity will always decline relief in cases where both parties have

schemed to circumvent the law and we will not, as Lord Kenyon once

said, sit here to take an account between two robbers on Hounslow Heath.

11. With the aforesaid observations, we dismiss the Review Petition as

we find no ground to review our order dated 12.12.2014. No orders as to

costs.

KAILASH GAMBHIR (JUDGE)

NAJMI WAZIRI, J (JUDGE) March 13, 2015 pkb