Delhi High Court
Union Of India & Ors vs Parulben Kishore Mansatar And Anr on 24 July, 2019
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 24.7.2019
% W.P.(C.) No. 8843/2017
UNION OF INDIA & ORS. ..... Petitioners
Through: Mr. Anil Soni, CGSC.
Versus
PARULBEN KISHORE MANSATAR AND ANR.
.....Respondents
Through: Mr. M.S.Rao, proxy counsel for Mr.
Vijay Verma, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
VIPIN SANGHI, J. (ORAL)
1. The Union of India has preferred the present petition to assail the order
dated 25.1.2017 passed by the Central Administrative Tribunal, Principal
Bench, New Delhi, in O.A.No. 198/2015. The Tribunal has allowed the
Original Application preferred by the respondents, and directed the respondents
i.e. petitioners herein to permit the applicant to withdraw his resignation by
exercising the power vested in the Government under Rule 38 of the
CCS(Pension) Rules.
2. The brief background facts of the case are that the respondent no. 2 was
serving as a Sepoy Grade 'D' in the Department of Customs and Central Excise
vide order dated 23.12.1994. He got married on 26.2.1995. He tendered his
unconditional resignation on 18.1.2010. His resignation was accepted on
5.2.2010, and he was relieved from government service. Thereafter, the
respondent no. 2 represented to the petitioner on 15.12.2010 for grant of
permission to rejoin the service on the ground that he had tendered his
resignation without proper application of mind. He pleaded his precarious
financial conditions on the ground that he has to support his family consisting
of himself, his wife, two daughters and two sons. He explained that he had
tendered his resignation on a representation by his uncle to join a gas agency
business, but after his resignation, the same did not fructify and he was left
without any income.
3. The respondents/petitioners herein rejected the request on the ground
that the same was made beyond 90 days. The relevant Rule applicable to the
respondent is contained in Rule 26(4) of the CCS (Pension) Rules, which reads
as follows:-
"(4) The appointing authority may permit a person to
withdraw his resignation in the public interest on the following
conditions, namely:-
(i) that the resignation was tendered by the Government
servant for some compelling reasons which did not involve any
reflection on his integrity, efficiency or conduct and the request for
withdrawal of the resignation has been made as a result of a
material change in the circumstances which originally compelled
him to tender the resignation;
(ii) that during the period intervening between the date on
which the resignation became effective and the date from which the
request for withdrawal was made, the conduct of the person
concerned was in no way improper;
(iii) that the period of absence from duty between the date on
which the resignation became effective and the date on which the
person is allowed to resume duty as a result of permission to
withdraw the resignation is not more than ninety days;
(iv) that the post, which was vacated by the Government servant
on the acceptance of his resignation or any other comparable post,
is available." (emphasis supplied)
4. The aforesaid Rule shows that the appointing authority may permit the
person to withdraw his resignation in public interest provided the conditions
enumerated in Clause (4) (i) to (iv) are satisfied. The reason why the
respondent's application was sought to be rejected was that it was made beyond
the period of 90 days, and did not satisfy the condition contained in Clause (iii)
aforesaid.
5. It appears that the respondent first approached the Gujarat Bench of the
Tribunal, before which the petitioner stated that the petitioner would be able to
reconsider the matter in the light of the provisions contained in Rule 88 of the
CCS (Pension) Rules. Rule 88 of the said Rules provides for relaxation, and
the same reads as under:-
"88. Power to relax
Where any Ministry or Department of the Government is
satisfied that the operation of any of these rules, causes undue
hardship in any particular case, that Ministry or Department, as
the case may be, may, by order for reasons to be recorded in
writing, dispense with or relax the requirements or that rule to
such extent and subject to such exceptions and conditions as it
may consider necessary for dealing with the case in a just and
equitable manner:
Provided that no such order shall be made except with the
concurrence of the [Department of Pension & Pensioner's
Welfare]."
6. The DoPT, however, refused to grant permission for relaxation of the
Rules for the reason taken note of hereinabove. The Tribunal has allowed the
Original Application taking into consideration the circumstances of the
respondent.
7. The submission of Mr. Soni, Ld. CGSC is that the Tribunal has exceeded
its jurisdiction, since the power to relax is vested in the Government, and it was
not for the Tribunal to exercise the said power on its own. Sympathy and
compassion could not have driven the Tribunal to override the Rules, since it
would set a bad precedent and there are no judicial unmanageable standards for
exercise of the discretion by the Court/Tribunal for grant of relaxation.
8. On the other hand, the learned counsel for the respondent submits that
after the impugned order was passed, the petitioner approached the Tribunal for
extension of time for compliance. In that regard M.A/100/2169/2017 was
moved by the petitioner which came up before the Tribunal on 4.8.2017. On
that date it was stated on behalf of the petitioners that they are in the process of
implementing the order of the Tribunal, and they are not trying to challenge the
order before the higher forum. Respondent has placed on record the order dated
4.8.2017 passed by the Tribunal. It is only thereafter the present petition was
filed by the petitioner on or before 22.9.2017.
9. We have considered the submissions of learned counsels and perused the
impugned order.
10. In our view, the order passed by the Tribunal cannot legally be sustained
since the Tribunal had no jurisdiction to itself exercise the power of relaxation
under Rule 88 of the CCS(Pension) Rules. At the highest, the Tribunal could
have required the Government to consider the aspect of grant of relaxation in
the facts of the case.
11. We would have interfered with the impugned order in the aforesaid
circumstances, but for the fact that the petitioner had represented before the
Tribunal-when it sought extension of time on 4.8.2017, that it was in the
process of implementing the order passed by the Tribunal granting relief to the
respondent. On that representation, the time was extended by two months.
The petitioner, thus, took advantage of that order granting extension of time
and evaded the wrath of the Tribunal which it could have faced for non
compliance of the impugned order.
12. It is unbecoming of the Union of India to make a representation before
the Tribunal that it is complying with the order passed by it, and after making
such representation and deriving benefit therefrom, to assail the order passed by
the Tribunal before this court. The petitioner has made a disclosure in the list
of dates that the time for compliance has been extended by the Tribunal vide
order dated 4.8.2017, but the order passed by the Tribunal itself has not been
placed on record by the petitioner.
13. For the aforesaid reasons, while ruling that the impugned order is illegal,
and shall therefore not constitute a precedent for the Tribunal in any other case,
we refuse to interfere therewith in the circumstances noted hereinabove. The
petitioner should comply with the order passed by the Tribunal positively
within the next four weeks. In case there is non-compliance, the respondent
shall become entitle to deemed reinstatement with the right to receive salary for
the period thereafter.
14. The petition stands disposed of accordingly.
Dasti.
VIPIN SANGHI, J.
RAJNISH BHATNAGAR, J.
JULY 24, 2019
ib/jitender
