S.K. Giri vs Union Of India And Ors
2016 Latest Caselaw 773 Del

$~R-35
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 23013/2005
                                                Decided on : 02.02.2016
IN THE MATTER OF:
S.K. GIRI                                             ..... Petitioner
                         Through: Mr. R.V. Sinha with Mr. A.S. Singh,
                         Advocates

                         versus

UNION OF INDIA AND ORS                         ..... Respondents
                    Through: Ms. Barkha Babbar, CGSC

CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE SUNIL GAUR

HIMA KOHLI, J. (Oral)

1. The petitioner, who, at the time of filing the present petition,

was working on the post of a Sub Inspector in the respondent/CISF,

has raised a two fold grievance in the present petition. Firstly, a writ

of mandamus has been sought against the respondents for not

crediting earned leaves of 180 days in his leave account earned by him

prior to his illegal removal from service. Secondly, the petitioner had

prayed for directions to the respondents to post him in the newly

constituted Fire Service Cadre and to consider him for promotion in

the said cadre at par with similarly placed officers.

2. It is considered necessary to recapitulate the facts of the case

which are as follows. On 16.12.1997, the petitioner was recruited as a

Security Guard under the respondent/CISF. Between 21.6.1976 to

28.8.1976, the petitioner had attended a Fireman Course at Durgapur

and had qualified in the said course. In September, 1981, the

petitioner was promoted as a Head Constable. In the year 1983, the

petitioner was charge-sheeted for an incident that had occurred at the

Rourkela Steel Plant at Orissa on 25.1.1983, when as per the

respondents, while he was on duty, a large number of persons had

entered the plant in the late hours of the day and were found illegally

removing coal from there. In an inquiry that was conducted, the

aforesaid misconduct was proved against the petitioner and a penalty

of removal from service was inflicted on him by the Disciplinary

Authority on 23.4.1984.

3. Aggrieved by the said order, the petitioner had filed a writ

petition in the High Court, which was dismissed vide judgment dated

11.11.1986. The petitioner had challenged the aforesaid decision by

filing an appeal before the Supreme Court, registered as Civil Appeal

No.7456/1995, which was allowed vide judgment dated 21.8.1995

with an observation that the punishment awarded was severely

disproportionate and deserved to be set aside. As a result, the

petitioner was directed to be reinstated and was held entitled to salary

and all other benefits w.e.f. 1.1.1995, with further directions that the

period from 24.4.1984 upto the date of his reinstatement would be

treated as in continuity of service and the petitioner's salary would be

re-fixed.

4. Consequently, the petitioner was reinstated by the respondents

and was granted all the benefits, to which he was entitled. He had

continued to remain in service till 31.5.2006, when he superannuated

on the post of a Sub Inspector. A few months short of his

superannuation, the petitioner had filed the present petition for

seeking directions to the respondents to credit the leave of 180 days

earned by him prior to his illegal removal from service and to post him

in the Fire Service Cadre.

5. Mr. Sinha, learned counsel for the petitioner states at the outset

that the relief for crediting the earned leave of 180 days has been

rendered infructuous as during the pendency of the present petition,

the respondents have on their own credited the leave in the

petitioner's leave account. The second relief with regard to non-

posting of the petitioner in the Fire Service Cadre, however survives

for consideration in this petition.

6. We have perused the stand taken by the respondents in the

counter affidavit. As per the respondents, fire fighting training was

imparted to volunteers of the security wing to handle fire fighting

equipment/accessories, etc., for the smooth running of the Fire Wing

inducted in public sector undertakings and for dealing with any fire

emergencies. Prior to 12.01.1991, the said training was however of no

consequence for purpose of absorption/promotion etc.

7. On 12.1.1991, a separate Fire Service Cadre came up following

the notification of its Recruitment Rules. As per the said Recruitment

Rules, for the initial constitution of a separate Fire Service Cadre,

options from fire trained security wing personnel (Non-Gazetted) were

required to be exercised within a period of six months from the date of

notification of the Recruitment Rules in the Gazette, i.e., between

12.1.1991 to 11.7.1991. Vide letter dated 22.04.1991, options were

called from fire trained executive personnel for considering their case

for absorption in the separate Fire Service Cadre.

8. Pertinently, when the aforesaid letter was issued by the

respondents inviting options, the petitioner had been removed from

service and therefore he could not have exercised his option. Such of

the personnel in the respondent/CISF, who had exercised their option

within the prescribed period, were considered by the respondents and

those found fit, were absorbed in the Fire Service Cadre w.e.f.

14.10.1991. Prior thereto, when the approved Recruitment Rules for

creating a separate Fire Service Cadre were under the process of being

notified, a Circular dated 23.11.1990 was issued by the respondents

for obtaining options from the fire trained security wing personnel, but

the said options were kept in abeyance to await notification of the

Recruitment Rules.

9. Six years down the line, in the year 1997, keeping in view the

fact that a large number of vacancies were existing in the Fire Service

Cadre, the respondents decided to consider the options exercised in

response to the Circular dated 23.11.1990 and vide letter dated

23.03.1997, fresh willingness was asked for from the fire trained

executive personnel. Pertinently, by then the dismissal order passed

against the petitioner had been set aside by the Supreme Court, vide

judgment dated 21.8.1995 and he had been reinstated in service.

10. Though a letter dated 23.12.1997 was circulated by the

Directorate General, CISF to all the Commandants to consider cases

for absorption in the Fire Service Cadre, subject to suitability and to

summon the service particulars in respect of the personnel mentioned

in the list enclosed with the said letter and obtain their consent, the

petitioner did not approach the respondents with any representation

for being considered at that point in time by explaining that he could

not have applied in response to the Circulars dated 23.11.1990 or

22.4.1991 as at that stage, he was not on the rolls, having been

dismissed from service.

11. As per the respondents, the personnel who had given their fresh

willingness, were considered and those found fit on merits were

absorbed retrospectively in the Fire Service Cadre, i.e., w.e.f.

14.10.1991, in the equivalent rank that they were holding at the time

of exercising their option in the Executive wing.

12. Learned counsel for the respondents urges that the petitioner

was ineligible for being considered for absorption in the Fire Service

Cadre as the option had been exercised by the personnel between

23.11.1990 to 11.7.1991 and during the said period, he had been

removed from service. The said explanation is unfounded for the

reason that the petitioner's orders of removal from service had been

washed away by the Supreme Court much later, vide judgment dated

21.8.1995. However, the petitioner had been reinstated in service

thereafter and had he applied in response to the letter dated

23.12.1997 circulated by the respondents, he would have been well

entitled for being considered on merits for absorption in the Fire

Service Wing of the respondents and such an application could

certainly not have been turned down by the respondents merely

because the petitioner was not in a position to exercise the option

between 23.11.1990 to 11.7.1991. But for reasons best known to the

petitioner, he had elected not to submit any representation to the

respondents at the relevant time for being considered for appointment

in the Fire Service Cadre. Instead, the petitioner had belatedly

submitted representations dated 21.8.2001 and 30.5.2002 for being

absorbed in the Fire Service Cadre.

13. Admittedly, an actionable cause of action had accrued in favour

of the petitioner after his reinstatement in the year 1996-97. Having

failed to receive any positive response from the respondents, the

petitioner ought to have agitated his grievance promptly by

approaching the Court within a reasonable time reckoned from the

year 1997. However, he opted to remain silent from 1997 right upto

2005 i.e. for almost seven years and filed the present petition on the

eve of his superannuation.

14. Given the above facts and circumstances, we are of the opinion

that having failed to exercise his right which was available to the

petitioner immediately upon his reinstatement pursuant to the

judgment dated 21.8.1995, pronounced by the Supreme Court or at

least in the year 1997 when the respondents had issued a Circular

dated 23.12.1997 for considering cases for absorption in the Fire

Service Cadre, there is no justification for him to have remained a

silent spectator. The petitioner has slept over his rights for too long.

There is an unexplained and inordinate delay on the part of the

petitioner in seeking his legal remedies. Delay and latches is an

important factor which weighs with the Court while exercising its

discretion under Article 226 of the Constitution of India.

15. We are further informed that after his reinstatement, the

petitioner was granted two promotions, firstly to the post of Assistant

Sub-Inspector and later on, to the post of Sub Inspector at which post

he had finally superannuated. The petitioner having superannuated on

31.5.2006 on the post of a Sub Inspector and having admittedly

received all the benefits to which he is entitled, by way of re-fixation

of salary, continuity of service and credit of leave encashment, the

matter ought to rest there.

16. We are, therefore, not inclined to grant any further relief to the

petitioner of posting him in the Fire Service Cadre as prayed for. The

petition is dismissed, while leaving the parties to bear their own costs.

(HIMA KOHLI) JUDGE

(SUNIL GAUR) JUDGE FEBRUARY 02, 2016/sk/ap/rkb