Delhi High Court
Rajni Parmar vs Director General Armed Forces ... on 24 December, 2020
$~VC- 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th December, 2020
+ W.P. (C) 11149/2020
RAJNI PARMAR .....Petitioner
Through: Mr. Yash Mishra with Ms. Nidhi
Jaswal, Mr. Ruchi Kohli and
Mr. Pronoy Chatterjee, Advocates
versus
DIRECTOR GENERAL ARMED FORCES MEDICAL
SERVICES & ORS. .....Respondents
Through: Mr. Jivesh Kumar Tiwari, Senior
panel counsel
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
RAJIV SAHAI ENDLAW, J.
CM APPL. No.34786/2020 (Exemption from filing certified
copies and legible copies of the documents along with accurate
margins)
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
W.P. (C) 11149/2020, CM APPL. No.34785/2020 (for stay of the
order dated 17th December, 2020 passed by the respondent No.1)
3. The petitioner, a Junior Hindi Translator with the respondent
No.1 Director General Armed Forces Medical Services (DGAFMS)
and being a civilian employee, has filed this petition impugning the
order dated 17th December, 2020 and seeking a direction to the
respondents to consider the case of the petitioner on compassionate
grounds at the post of Junior Hindi Translator at Respondent no. 3
Armed Forces Medical Store Depot (AFMSD) Delhi Cantt., which is
stated to be lying vacant.
4. The petitioner, being a civilian employee, has the remedy of
approaching the Central Administrative Tribunal ('CAT') and has in
the past in fact approached the CAT and the counsel for the
petitioner also does not controvert the same. However his contention
is that the petitioner "can always approach the High Court under
Article 226 of the Constitution of India".
5. Undoubtedly so, but it is also a settled principle of law that
the High Court, in exercise of discretion under Article 226, will not
entertain a petition under Article 226 when the statutory alternate
remedy is available. Reference in this regard may be made to
Sudhana Lodh Vs. National Insurance Co. Ltd. (2003) 3 SCC 524,
U.P. State Bridge Corporation Ltd. Vs. U.P. Rajya Setu Nigam S.
Karamchari Sangh (2004) 4 SCC 268, A.P. Foods Vs. S. Samuel
(2006) 5 SCC 469 and Bela Rani Bhattacharyya Vs. Union of
India (2014) 213 DLT 1 (DB).
6. The petitioner in the present case was issued a Movement
Order dated 12th May, 2017 asking her to move from Delhi to
AFMSD Lucknow. We are aghast that the petitioner has been able to
stall her order of transfer/movement for the last more than 3 ½ years;
first by approaching the CAT in OA 1695/2017, which application
was eventually withdrawn, and thereafter by filing W.P.(C)
5331/2017 and W.P.(C)1304/2018 in this court and thereafter, again
by filing another miscellaneous application before the CAT.
7. The counsel for the petitioner does not dispute that the job of
the petitioner is transferrable. What shocks us is that a transferable
employee has been able to, by abusing the process of the court, stall
transfer for so long. The counsel for the petitioner however contends
that since there is a vacancy at Delhi, the petitioner, owing to her
family circumstances, should be posted against that vacancy.
However he again agrees that merely because there is a vacancy,
there is no right to be appointed at that vacancy.
8. As far as the family circumstances of the petitioner are
concerned, the same are not found by us to be of such nature which
any of the other government employee, also desiring to be posted at
Delhi, would not have. The petitioner cannot claim a right to remain
posted at Delhi.
9. The counsel for the petitioner then states that vide the
impugned order the petitioner has been asked to join at AFMSD
Lucknow and that her representation for being posted against the
vacancy would be considered thereafter. He contends that the
petitioner will join at AFMSD Lucknow but a direction for decision
on her representation in a time bound manner be granted. However
when we asked the counsel for the petitioner, whether the petitioner
is willing to give an undertaking to this court that she will join at
AFMSD Lucknow, it is conveniently said that the counsel has no
instructions.
10. In the circumstances, since there is no certainty of the
petitioner still joining at AFMSD Lucknow, the question of issuing
any direction for time bound decision of the representation, after the
petitioner has joined at AFMSD Lucknow, also cannot be given.
11. The petition is found to be in abuse of the process of the
Court.
12. At this stage, the counsel for the petitioner states that the
petitioner is willing to join at AFMSD Lucknow within two weeks
of the transfer order being issued. He states that the transfer order
has not been issued till now and without the transfer order, the
petitioner cannot proceed to Lucknow.
13. The counsel for the respondents, after taking telephonic
instructions, states that the transfer order has already been issued.
14. The counsel for the petitioner states that on the basis of the
said statement, the petitioner will join at AFMSD Lucknow on or
before 30th December, 2020.
15. The undertaking of the petitioner that she will, on or before
30th December, 2020, join at AFMSD Lucknow, is accepted and the
petitioner, through counsel, is made aware of the consequences of
breach of undertaking given to the Court. Subject to the petitioner
complying with the undertaking and performing her duties at
AFMSD Lucknow, the writ petition be treated as a representation of
the petitioner for being transferred from AFMSD Lucknow to a unit
in Delhi and the said representation be decided on or before 31 st
March, 2021.
16. The petition is disposed of in terms of the above.
RAJIV SAHAI ENDLAW
(JUDGE)
ASHA MENON
(JUDGE)
DECEMBER 24, 2020/mw
