Delhi High Court
Sravan Bagaria And Anr vs Union Of India And Ors on 17 February, 2022
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17.02.2022
+ W.P.(C) 1338/2022 & CM No.3863/2022
SRAVAN BAGARIA AND ANR ......Petitioners
Through : Mr M.K. Bhardwaj, Advocate.
versus
UNION OF INDIA AND ORS ......Respondents
Through : Mr Vikram Jetly, Adv. for R-1 & R-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
[Physical Court Hearing/Hybrid Hearing (as per request]
RAJIV SHAKDHER, J. (ORAL):-
1. Pursuant to our last order dated 21.01.2022, Mr Vikram Jetly, who
appears on behalf of respondent nos.1 and 2/UOI, has reverted with
instructions.
1.1 Mr Jetly says that he would have no objection, if the matter is
remanded to the Central Administrative Tribunal [in short "the Tribunal"]
for a decision on merits.
1.2. For the purposes of convenience and completeness, the order dated
21.01.2022 is extracted hereafter:
"1. This writ petition is directed against an interlocutory order
dated 24.12.2021, passed by the Central Administrative Tribunal
[in short, the "Tribunal"] in OA No.2978/2021.
1.1. Concededly, the aforesaid order is passed qua the interim
relief that the petitioners had sought in the O.A.
1.2. A perusal of the impugned order shows that, in the first
instance i.e., on 22.12.2021, the Tribunal had directed
maintenance of status quo vis-a-vis the petitioners. This order
was, however, vacated, via the impugned order.
1.3. The observations recorded in the impugned order, which
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By:VIPIN KUMAR RAI
Signing Date:20.02.2022
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led to the Tribunal vacating its earlier order dated 22.12.2021,
read as follows :
"...Sh. Gyanendra Singh, learned counsel for Respondent
Nos. 1 and 2 submits that the continuance of the interim
order would be adverse to public interest.
In view of the submissions made by the learned counsels for
the parties and the facts and circumstances, the continuance
of the interim order is no longer required. The same is
accordingly vacated..."
2. According to us, a bare perusal of the impugned order of
the Tribunal shows that there is no discussion on various issues
raised by the petitioners.
2.1. Before us, Mr M K Bhardwaj, who appears on behalf of the
petitioners, has raised several issues, which, broadly, can be
paraphrased as follows:
(i) Firstly, there are 20 officers in the seniority list, who
have not done hard posting.
(ii) The petitioner no.1, who belongs to 2001 batch of Delhi,
Andaman& Nicobar. Lakshadweep, Daman and Diu, Dadra
and Nagar Haveli Civil Services (DANICS) officers, has
done a stint at Lakshadweep between February 2003 and
February 2006. Likewise, petitioner no.2, who, belongs to
2010 batch of DANICS officers, has also done his stint at
Lakshadweep, which spanned between March 2013 and
May 2016.
(iii) Rule 12 of the National Capital Territory of Delhi,
Andaman and Nicobar Islands, Lakshadweep, Daman &
Diu and Dadra & Nagar Haveli (Civil Service) Rules, 2003(
" 2003 Rules"), contained in notification dated 6.8.2003,
issued by the Ministry of Home Affairs ["MHA"], notified
the following concerning posting:
"12. Posting:-
Every member of the Service allocated to an
Administration shall, unless he is appointed to an ex-
cadre post, or is otherwise not available for holding a
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Signing Date:20.02.2022
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duty post owing to the exigencies of the public
service, be posted against a duty post under the
Administration by the Administrator concerned."
(iiia) Based on the aforementioned Rule, the submission made is
that a person could be transferred to a place only if a post was
available. In conjunction with this, our attention has been drawn
to the counter-affidavit filed on behalf of the respondents in
another O.A. i.e., O.A. No.404/2021. The relevant paragraph of
the said counter-affidavit i.e., paragraph 11 is extracted hereafter:
"11. That as per the provisions of the DANICS Rules, 2003
(as amended in 2009 and further amended in 2015), the
total number of identified posts and number of officers
presently posted in each UT segment, is furnished as under:
Sl. Union Territories JAG-I + JAG-II SG + EG
No.
Total Number of Total Number of
Identified officers Identified officers
Posts presently Posts presently
working working
(iiib) It is argued that, in Lakshadweep, only one [1] post
of JAG-I and JAG-II is identified, and as per the above
table, two [2] officers were detailed against said post.
Insofar as Selection Grade and Entry Grade posts were
concerned, thirteen [13] posts were identified, against
which nine [9] officers were slotted.
2.2 It is contended by Mr Bhardwaj that apart from this aspect,
other aspects had to be taken into account as well as articulated in
the OA.
3. On the other hand, Mr Vikram Jetly, who appears on behalf
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of respondent nos.1 and 2/UOI, has drawn our attention to the
order dated 9.12.2021 passed by the MHA, Government of India.
In particular, our attention has been drawn to paragraphs 7 and
3.1 Mr Jetly says that the rules provide that a transfer can be
made in the interest of administration and in furtherance of public
interest, notwithstanding the provision made in Rule 12 of the
2003 Rules.
3.2. It is Mr Jetly's contention that the order dated 9.12.2021
was passed keeping these aspects in mind.
4. Having heard learned counsel for the parties, prima facie,
we are of the view that the submissions and counter-submissions,
which have been advanced before us require consideration by the
Tribunal.
4.1. The Tribunal has passed a cryptic order, which does not
discuss or deal with any of the issues that have been raised before
us and are embedded in the OA filed by the petitioner.
4.2. Mr Jetly says that he will require two weeks to revert with
instructions.
4.3. We have indicated to Mr Jetly that we are, prima facie, of
the view that the matter needs to be remitted to the Tribunal.
5. At request of Mr Jetly, list the matter on 17.2.2022.
6. In the meanwhile, the respondents will maintain status quo
vis.-s.-vis. the petitioners."
2. Accordingly, the interlocutory order dated 24.12.2021 passed by the
Tribunal is set aside, and the matter is remanded to the Tribunal for a fresh
decision.
2.1 The parties and/or their counsels will appear before the concerned
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bench of the Tribunal on 25.02.2022.
2.2. The Tribunal will endeavour to dispose of the petitioners‟ O.A. i.e.,
O.A. No.2978/2021, at the earliest. In the meanwhile, status quo directed by
us on 21.01.2022 during the pendency of the writ petition, will continue to
operate.
2.3 In case the Tribunal is not able to dispose of the petitioners‟ O.A. at
the earliest, the respondents will have the liberty to approach the Tribunal
for modifying, varying or vacating the aforementioned status quo order
dated 21.01.2022.
2.4. Needless to add, the observations made by us in our order dated
21.01.2022 will not impact the merits of the case. The parties will be free to
raise their contentions before the Tribunal.
3. In the meanwhile, to hasten the proceedings, Mr Jetly says that he will
file a reply to the O.A. i.e., O.A. No.2978/2021, filed before the Tribunal.
4. Furthermore, for the purposes of record, we may indicate that on
21.01.2022, Mr Vikram Jetly‟s name was inadvertently recorded in the
cause title as „Girish Jetly‟.
4.1 The record will stand corrected to this extent.
5. Parties will act based on the digitally signed copy of this order.
6. The writ petition is disposed of in the aforesaid terms. Consequently,
pending application shall stand closed.
RAJIV SHAKDHER, J
TALWANT SINGH, J
FEBRUARY 17, 2022
aj
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By:VIPIN KUMAR RAI
Signing Date:20.02.2022
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