Delhi High Court
Lokesh Kumar Arya And Ors vs Union Of India And Ors on 4 September, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th September, 2020.
+ W.P.(C) 5968/2020
LOKESH KUMAR ARYA AND ORS ..... Petitioners
Through: Mr. Ankur Chhibber, Mr. Anshuman
Mehrotra, Mr. Harsh Dhankar and
Mr. Nikunj Arora, Advs.
Versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Arun Bhardwaj, CGSC with Mr.
Abhishek Sharma and Mr. Nikhil
Bhardwaj, Advs. for UOI.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
RAJIV SAHAI ENDLAW, J.
CM APPL. 21576/2020 (for exemption).
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
W.P.(C) 5968/2020
3. The three petitioners, being the personnel of the respondents Indo
Tibetan Border Police Force (ITBP), have filed this petition (a) impugning
the orders dated 15th January, 2020 and 31st January, 2020 whereby 3rd
Cadre Review/Restructuring of Group 'B' & 'C' service of General Duty
(GD) Cadre and Non - GD Cadre of the respondents ITBP has been
approved; and, (b) seeking mandamus to the respondents ITBP to carry out
a holistic Cadre Review, keeping in mind creation of promotional avenues in
the Education and Stress Counsellor (ESC) cadre, in order to overcome
stagnation.
4. The counsel for the respondents ITBP appears on advance notice.
5. We have enquired from the counsels, what is the right of the
petitioners to have a cadre restructured/designed in the manner as suggested
by the petitioners in the petition. It has also been enquired, whether there is
any right of retention of the same cadre, as on the date of joining the service.
6. The counsel for the petitioners has contended that though there is no
right to retention of the cadre as on the date of joining of service but the
Department of Personnel & Training (DoPT) has vide several Office
Memorandums (OMs) and in the Monograph published in this regard,
prescribed the criteria, parameters/principles and objectives of cadre review
and the contention of the petitioners is that the impugned exercise of cadre
review has not been done in accordance therewith and is liable to be set
aside and fresh cadre review directed.
7. We have further enquired from the counsels, whether it falls in the
domain of the Court, even if finds cadre review done to have been not done
in accordance with DoPT OMs and the Monograph, to, on its own, carry out
the corrections in the cadre and to prescribe/lay down the cadre. Prima facie
it appears that the same is a policy matter and cannot be in the domain of the
Court. We have thus also enquired, whether there are any judgments
whereby the Court, while interfering with the cadre review exercise, on its
own has corrected/laid down the cadre or prescribed the cadre to be in a
particular design.
8. The counsel for the petitioners has drawn our attention to Ajay
Suryavanshi Vs. Union of India 2015 SCC OnLine Del 8950 and has
contended that this Court in the said judgment, upon finding various errors
in the cadre review exercise done and which errors are highlighted in the
judgment running into 24 pages, directed the respondents to carry out cadre
review exercise, considering the concerns expressed in the judgment and the
data provided by the petitioners therein and keeping in mind the salient
features as laid down in the said judgment.
9. We have enquired from the counsel for the respondents ITBP, that if
ultimately a direction for the respondents ITBP to carry out cadre review
exercise, if required after considering the case of the petitioners and after
applying the principles laid down in the cited judgment, has to be issued,
why should this petition be kept pending and be not disposed of today itself,
directing the respondents ITBP to treat this writ petition as a representation
of the petitioners against the impugned cadre review and to, after giving an
opportunity of hearing to the petitioners and if find any merit therein, review
the cadre review already done and/or to make corrections/modifications
thereto.
10. The counsel for the respondents ITBP has fairly stated that though his
instructions were to accept notice and file counter affidavit but he has no
objection to the petition being disposed of today itself, in the fashion
aforesaid, so that the merit, if any found in the grievances made in the
petition, can be redressed expeditiously.
11. We have also enquired from the counsel for the petitioners, whether
the petitioners were given a hearing before the impugned cadre review
exercise.
12. The answer is in the negative.
13. We accordingly dispose of this petition by directing the respondents
ITBP to, within four weeks hereof as sought, review the cadre exercise
impugned in this petition, by treating the writ petition as a representation of
the petitioners and by granting a personal hearing to the senior most Deputy
Commandant (ESC Cadre) in ITBP and the petitioners, and in which hearing
the petitioners and the said Deputy Commandant shall have a right to place
further relevant data for consideration of the respondents and to, thereafter,
if find any merit, review the cadre review already undertaken and/or to make
corrections/modifications therein and, if not finding any merit in the claim
of the petitioners, pass an order, giving reasons for rejecting the various
claims/representations of the petitioners. It is further clarified that in the said
exercise, the parameters/principles laid down by the Courts in the judgments
relating to cadre review as well as the OMs and Monograph of DoPT, be
followed.
14. It is further clarified that the review, if required, so ordered, would not
suspend or come in the way of the operation of the cadre review already
done/undertaken.
15. The petition is disposed of.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J.
SEPTEMBER 4, 2020
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