Delhi High Court
Rajesh Kapoor vs Office Of The Ld. Principal ... on 31 May, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: May 31, 2022
+ W.P.(C) 2323/2022, CM APPL. 12369/2022
RAJESH KAPOOR ..... Petitioner
Through: Mr. Sholab Arora, Adv.
versus
OFFICE OF THE LD. PRINCIPAL DISTRICT
AND SESSIONS JUDGE ..... Respondent
Through: Mrs. Avnish Ahlawat, SC, GNCTD
(Services) with Mr. N. K. Singh,
Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
CM APPL. 12369/2022 (by respondent seeking condonation of
13 days delay in filing the counter affidavit)
For the reasons stated in the application, the same is allowed and
delay of 13 days in filing the counter affidavit is condoned.
Application is disposed of.
W.P.(C) 2323/2022
1. This petition has been filed with the following prayers:-
"a) Issue a writ of certiorari, or any other appropriate
writ or direction, for declaring the Impugned Circular
[i.e. the Circular dated 04.08.2018 bearing number
Admn-II/Cir./2018/49266- 50066 issued by the Office
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of the Respondent] as unconstitutional and null &
void;
b) Issue a writ of certiorari, or any other appropriate
writ or direction, for setting aside the Impugned Order
[i.e. the Order dated 31.01.2022 passed by the Office
of the Respondent rejecting the application of the
Petitioner seeking grant of Earned Leave for a period
of 30 days (from 21.03.2022 to 19.04.2022)];
c) Issue a writ of mandamus, or any other appropriate
writ or direction, directing the Office of the
Respondent to allow the application of the Petitioner
seeking grant of Earned Leave for a period of 30 days
for his travel to Harare (Zimbabwe);
d) Pass any other order or direction in favour of the
Petitioner in the interest of justice."
2. The challenge in this petition is to the order dated January 31,
2022 („Impugned Order‟, hereinafter) of the respondent, whereby the
respondent has rejected the application of the petitioner for grant of
Earned Leave („EL‟, for short) for a period of 30 days, by referring to
a circular dated August 04, 2018 bearing No. Admn-
II/Cir./2018/49266-50066 („Impugned Circular‟, hereinafter), which
stipulates a court staff can be allowed to visit a foreign country only
during Summer Vacations, Winter Vacations, Public Holidays and in
case of any exigency.
3. At the outset, I may briefly narrate the factual background as
set out in the writ petition. The petitioner herein holds the post of
Senior Personal Assistant in the Court of ASJ-01, Special
Judge/POCSO, North-West District, Rohini Courts, Delhi. The wife
of the petitioner is in the employment of the Ministry of External
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Affairs, Government of India, posted as an Attach‟e in the Embassy of
India, at Harare, Zimbabwe, where she is residing with their daughter,
aged 17 years. On September 13, 2021, the petitioner filed an
application with the office of the respondent seeking grant of EL for a
period of 30 days to visit his family in Harare, Zimbabwe, to provide
assistance to his daughter for her admission to an educational
institution. In response thereto, on September 20, 2021, the office of
the respondent sought certain documents and an affidavit from the
petitioner.
4. Further, on November 18, 2021 the respondent again sought an
affidavit/undertaking from the petitioner. On December 10, 2021, the
office of the respondent passed an order whereby the application of the
respondent was rejected by referring to the impugned circular. On
December 13, 2021, the petitioner addressed a letter to the office of the
respondent stating that the said order is not a speaking order, and is
discriminatory, as leave was granted to another member of the Court
staff for travelling abroad. He requested his application be considered
again. In response thereto, the office of the respondent passed an order
dated December 18, 2021 rejecting the request of the petitioner
without assigning any reasons. On January 02, 2022, the petitioner
challenged the impugned circular and the orders dated December 10,
2021 and December 18, 2021 before this Court by way of a Writ
Petition bearing No. W.P.(C) 139/2022, which was disposed of on
January 12, 2022 by stating as under:-
"It is agreed that the petitioner shall, on deciding to go
to Zimbabwe, apply to the competent authority one
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month before his travel to that country specifying the
number of days (also month) for which he wants to
avail the leave. On receipt of such request, the
competent authority within two weeks keeping in view
the exigencies shall decide the request and
communicate the decision to the petitioner."
5. On January 18, 2022, in pursuance of the order of this court,
the petitioner applied for grant of EL for a period of 30 days, from
March 21, 2022 to April 19, 2022. On January 24, 2022 the office of
the respondent addressed a letter to the petitioner requiring him to
provide the details of the proposed admission of his daughter and
whether the latter‟s presence was required for the said admission, to
which the petitioner replied vide letter dated January 25, 2022. On
January 31, 2022, the office of the respondent passed the impugned
order.
6. Mr. Sholab Arora, learned counsel for the petitioner has, at the
outset, tried to alleviate the apprehensions of this Court on the
admissibility of the present petition with regard to a possible delay in
challenging the impugned circular. He has submitted that the cause of
action with respect to challenging the constitutionality of a
law/circular arises only when the actual effect is felt by an aggrieved
person. In this regard, he has placed reliance on two judgments; first of
the Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of
India, AIR 2004 SC 2321, and second of this Court in Jayaswals
NECO Ltd. v. Union of India, WP(C) 10480/2005 and connected
matters, decided on July 02, 2007. Further, by relying upon the
judgments of the Apex Court in Tukaram Kana Joshi v. MIDC,
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(2013) 1 SCC 353, and Vidya Devi v. State of Himachal Pradesh,
(2020) 2 SCC 569, he contended that even assuming there is some
delay, the same can be condoned as "the cause of substantial justice
deserves to be preferred", especially when the constitutionality of a
law/circular is in question.
7. Mr. Arora submitted that the service / employment of the
petitioner is regulated by the Delhi District Courts Establishment
(Appointment & Conditions of Service) Rules, 2012 („Rules of 2012‟,
hereinafter). No provisions exist in the said Rules that govern leaves
during service / employment. Rule 42 of the Rules of 2012 states that
the conditions of service of the members of the Service for which no
express provision is made in the Rules, shall be determined by the
rules applicable to members of the state civil services in the state
holding equivalent grade posts. He stated that the Central Civil
Services (Leave) Rules, 1972 („CCS Leave Rules‟, hereinafter) are
applicable to such equivalent state civil service employees, and as
such, the entitlement of the petitioner to EL is governed by the CCS
Leave Rules mutatis mutandis. Rule 26 of the CCS Leave Rules
specifically stipulates inter alia that "the leave account of every
Government servant...who is serving in a Department...shall be
credited with earned leave, in advance, in two instalments of 15 days
each on the first day of January and July of every calendar year."
8. Mr. Arora submitted that the impugned order and circular are
in violation of Article 14 of the Constitution of India, as they unfairly
discriminate between those Delhi District Court employees who wish
to travel abroad and those who wish to travel within India. Merely
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because an employee wishes to travel abroad and states so in his
application for grant of leave, the impugned circular requires the
employee to show exigency for his travel abroad. However, that is not
the case if an employee wishes to travel within India. Under Article 14
of the Constitution, for a classification to be reasonable, it must be
based on an intelligible differentia and the differentia must have a
reasonable nexus with the object sought to be achieved. The object of
the impugned circular as stated therein, is to prevent "disruption in the
smooth functioning of the court/office work". He contended that the
mischief the impugned circular purports to rectify is actuated by
absence of employee(s), regardless of where such employee travels to,
be it abroad or within the country. It cannot be said that an employee
who wishes to travel abroad will somehow impose extra burden on the
court administration by merely travelling to another country, as all
employees are entitled to an equal number of EL. Mr. Arora stated that
by restricting its ambit to only those employees who wish to travel
abroad, the impugned circular is highly under-inclusive, and hence, the
same falls foul of Article 14 of the Constitution of India. In this regard,
he has placed reliance upon the judgment in the case of State of Tamil
Nadu v. National South Indian River Interlinking Agriculturist
Association, 2021 SCC OnLine SC 1114. It is also his contention that
the there is no reasonable justification to disentitle an employee from
grant of leave merely because the employee wishes to travel abroad, as
it is not the case that the employee is seeking some extra benefit or
privilege, in terms of resources or number of leaves, on account of
his/her travel to a foreign country. Therefore, from an administrative
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point of view, no additional burden is imposed on the court
administration merely because the petitioner wishes to travel abroad.
9. He would further submit, by relying upon the Judgment in the
case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248, it is a
settled position of law that the right to travel abroad is a fundamental
right protected under Article 21 of the Constitution of India. It also
encompasses within its scope, the right of a person to meet his/her
family, which, in the facts of the present case, protects the right of the
petitioner to visit a foreign country to meet his family. It is the
submission of Mr. Arora that the interplay of the aforesaid two rights,
i.e., the right to travel abroad and the right of a person to meet his
family was appreciated by the Supreme Court in Satish Chandra
Verma v. Union of India, Civil Appeal No. 3802 of 2019 decided on
April 09, 2019, wherein, the Apex Court permitted an IPS Officer to
travel abroad to meet his family, as he had paid leaves credited to his
account, though the competent authority had rejected his application
for grant of leave on the ground that a departmental proceeding was
pending against him. Relevant part of the said judgment is reproduced
as below:-
"The right to travel abroad is an important basic
human right for it nourishes independent and self-
determining creative character of the individual, not
only by extending his freedoms of action, but also by
extending the scope of his experience. The right also
extends to private life; marriage, family and friendship
are humanities which can be rarely affected through
refusal of freedom to go abroad and clearly show that
this freedom is a genuine human right. (See: Mrs.
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Maneka Gandhi v. Union of India and Anr.
MANU/SC/0133/1978 : (1978) 1 SCC 248). In the said
judgment, there is a reference to the words of Justice
Douglas in Kent v. Dulles MANU/USSC/0234/1958 :
357 US 116 which are as follows: Freedom to go
abroad has much social value and represents the basic
human right of great significance. In the instant case,
the Appellant who is a member of the All India Services
has paid leave to his credit and has applied to go to
U.S.A. and France to visit members of his family who
are residing there. On an earlier occasion this Court
permitted him to travel to U.S.A. in the year 2017 and
he promptly came back. We are of the opinion that
pendency of departmental proceedings cannot be a
ground to prevent the Appellant from travelling
abroad. In view of the above, we are of the opinion that
there is no reason for the Government of India to
refuse permission to the Appellant to travel abroad. It
is submitted by Ms. Indira Jai Singh that the Appellant
intends to go to U.S.A. and France between the period
28.04.2019 and 01.06.2019. The Respondents are
directed to permit the Appellant to travel during the
said period."
10. That apart, he has contended by relying upon the Judgment of
the Supreme Court in Justice K.S. Puttaswamy (Retd.) and Anr. v.
Union of India and Anr. (2019) 1 SCC 1, that any restriction on
Article 21 will have to pass the proportionality test, which mandates
the following conditions be satisfied: -
1. The action / restriction must be sanctioned by a law
i.e., legislation [Legality];
2. The action / restriction must be in pursuance of a
legitimate aim [Legitimacy]; and
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3. The action / restriction must be the „least intrusive
measure‟ [Narrow Tailoring].
11. These three conditions, are conjunctive in nature, and
necessarily need to be fulfilled for a restriction to be valid and
constitutional. Mr. Arora has endeavoured to analyse whether the
restriction imposed by the impugned circular fulfils the
aforementioned three conditions. As regards legality, he stated that
there is no provision either in the Rules of 2012 or the CCS Leave
Rules which authorises the office of the respondent to impose any such
restriction as has been done by the impugned circular. Therefore,
according to him, this condition has not been fulfilled. Regarding
legitimacy, he stated that the object of the impugned circular is to
prevent "disruption in the smooth functioning of the court/office work.
There cannot be any demur to the legitimacy of such an aim. The issue
is whether the restriction imposed by the office of the respondent is the
„least intrusive measure‟.
12. Regarding narrow tailoring, he submitted that Sub-rule 2 of
Rule 7 of the CCS Leave Rules stipulates that "when the exigencies of
public service so require, leave of any kind may be refused or revoked
by the authority competent to grant it". Therefore, the refusal of leave
has been made an exception, and leave can be refused when "the
exigencies of public service so require" - which can possibly be in
case of a scarcity of staff. However, the impugned circular makes the
refusal of leave a norm by implicitly presuming that there will always
be scarcity of staff, and put the burden on the employee to show
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exigency in order to avail leave. It is his contention that what is
stipulated in Rule 7 of the CCS Leave Rules is the „least intrusive
measure‟, and not what has been stipulated in the impugned circular.
Therefore, the third condition is also not fulfilled. Further, he
submitted that Rule 7 of the CCS Leave Rules has been interpreted by
the Government of India in an Office Memorandum dated March 27,
2001 bearing number 14028/3/2000-Estt(L) issued by the Department
of Personnel and Training („DoPT, for short‟). The relevant portion of
the aforementioned Office Memorandum is as follows:
"A suggestion has been made to the Government that
as one of the institutional mechanisms to allow
Government servants to periodically free themselves
from the routine stresses of service life and thus help
them avoid falling prey to various stress related
diseases, they may be compelled to avail of at-least 15
days earned leave during a calendar year. Though
implementation of the suggestion in this manner is not
feasible on account of the provisions of service rules,
the basic idea underlying the suggestion is un-
exceptionable. Under the extant provisions of CCS
(Leave) Rules, 1972, leave cannot be claimed as a
matter of right. When the exigencies of the public
service so require, discretion to refuse or revoke leave
of any description is reserved to the authority
empowered to grant it. However, as emphasized in the
instructions issued by this Department from time to
time. such provisions have been made in the Rules
because it is not possible to let all those who want
leave at a particular time to have it at that time and
there is a limit beyond which depletion of staff cannot
be permitted without dislocating the working of an
establishment. These instructions are not intended to
be used as in effect to abridge the leave entitlements of
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the staff. It is indeed desirable in the interest of the
public services -that government servants take leave at
suitable intervals and return to work relaxed and
refreshed. It has also been laid down that the leave
sanctioning authorities may encourage government
servants to take leave periodically, preferably
annually, and in case where all applications for leave
cannot, in the interest of public service, be granted at
the same time, the leave sanctioning authority should
draw up phased programme for the grant of leave to
the applicants by turn with due regard to the principles
enunciated. Leave is, accordingly, not to be ordinarily
denied to any employee, especially in the last 10 years
of his career. Periodical availment of leave is in the
interest of the Government as well as the Government
servants."
The aforesaid Office Memorandum, according to Mr. Arora,
has been relied upon by the Supreme Court in Kakali Ghosh v. Chief
Secretary, Andaman and Nicobar Administration, (2014) 15 SCC
300, while granting a continuous Child Care Leave of 730 days to the
appellant therein.
13. That apart, he stated that the impugned circular is in conflict
with Rule 7 of the CCS Leave Rules, and under the hierarchy of laws,
if a purely administrative circular/executive instruction is in conflict
with certain rules / regulations, it is bad in law.
14. He would further submit that the word „exigency‟ in the
impugned circular has to be given a liberal interpretation, and traveling
to another country for meeting one‟s family and providing parental
assistance to one‟s daughter during her admission process must be
considered as „exigency‟. Given that the family of the petitioner
permanently resides abroad, he will never be able to meet his family as
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going abroad for a short stint of one week during the Winter Vacation
or two weeks in the Summer Vacation will not be economically
feasible and viable for him. Therefore, he stated that it is imperative
that the petitioner either avails his EL or clubs his EL with the
vacations to go abroad and meet his family.
15. Regarding the reason of „scarcity of staff‟ quoted in the
impugned order, it is submitted that no such reason was mentioned in
the orders dated December 10, 2021 and December 18, 2021 which
were challenged by the petitioner in the earlier writ petition bearing
WP(C) 139/2022. According to him, it is highly improbable that there
is a sudden scarcity of staff in a span of one month. The office of the
respondent has used this pretext to merely create a semblance of
„public exigency‟ and to make the impugned order look like a
speaking order, as a specific plea was taken by the petitioner in the
earlier writ petition that the impugned orders therein were not speaking
in nature. It is stated that no details have been given by the respondent
to justify this claim, and as per the knowledge of the petitioner, various
court employees are being granted leaves.
16. Regarding the third reason invoked in the impugned order,
i.e., that the petitioner had availed a leave of about three years from
2017 to 2020, Mr. Arora would state that the same was an unpaid
leave which was availed by the petitioner to stay with his family, as his
wife during that period was posted in Canada. This is an irrelevant
consideration; even in terms of the impugned circular, as the history of
leaves availed before has nothing to do with the consideration of the
present application for grant of leave.
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17. He has further submitted that the reliance placed by the
respondent during the proceedings on a circular dated August 03, 2016
of this court, which stipulates that no judicial officer shall go on a
foreign visit during working days, is misplaced as the constitutionality
of that circular has not been adjudicated yet, and the same has no
bearing on a question of validity of the impugned circular. He stated
that in any case, the circular of August 03, 2016 was passed by the
administrative side of this court, and as such, is not a judicial order
having precedential value.
18. That apart, he stated that one Hemlata Sharma, Senior Judicial
Assistant, presently posted in the District Courts, Rohini, Delhi has
recently been allowed leave for a long period, for the fifth time, and
she has been allowed to travel abroad. Therefore, according to him, the
impugned order deserves to be set aside as it inter alia, flies in the
teeth of the principle of parity. He seeks the prayers as made in the
writ petition.
19. A counter affidavit has been filed by the respondent, wherein
it is stated that the circular dated August 04, 2018 has been passed by
the learned District and Sessions judge, (HQ) in furtherance of the
directions of this Court vide order dated August 03, 2016, by virtue of
which, all staff members have been directed to move applications for
grant of permission to travel abroad only during summer and winter
vacations, public holidays and in case of any exigency.
20. Ms. Avnish Ahlawat, Standing Counsel, GNCTD (Service)
appearing on behalf of the respondent would state that the petitioner
had moved an application dated September 13, 2021 for sanction of
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EL for 30 days w.e.f. January 03, 2022 to February 01, 2022 to visit
Harare, Zimbabwe for the purpose of admitting his daughter to a new
school. The application of the petitioner was incomplete in terms of
the circular dated August 14, 2018, and was returned to the petitioner
with remarks to remove the objections and furnish the requisite
information. Thereafter, the petitioner moved another application dated
November 09, 2021 after removing the objections, but the application
was also not complete. Accordingly, the said application was also
returned in original to the petitioner with remarks on November 18,
2021, as the earlier objections were not removed and the application
dated September 13, 2021 was not submitted in original. Subsequently,
the petitioner moved another application dated November 27, 2021
after removal of objections raised by the respondent on November 18,
2021. However the application lacked the details of the proposed visit
and the reasons for it.
21. She has stated that the applications dated September 13, 2021,
November 09, 2021 and November 27, 2021 were duly considered by
the competent authority and in view of the circular dated August 04,
2018 and the history of his previous journeys abroad (details of which
have been provided in page 3 of the counter affidavit), the respondent
declined the request of the petitioner to grant him permission to visit
Harare, Zimbabwe. The petitioner was informed accordingly vide
letter dated December 10, 2021. Thereafter, the petitioner moved
another application dated December 13, 2021, which was again
declined by the respondent for the aforementioned reasons. The
petitioner was informed of the decision on December 18, 2021.
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22. Thereafter, upon the order of this court dated January 12, 2022
in WP(C) 139/2022, the petitioner preferred another application on
January 18, 2022 to visit Harare, Zimbabwe from March 16, 2022, and
requesting for grant of 30 days EL w.e.f. March 21, 2022 to April 19,
2022, for admitting his daughter to a new school for her 12 th grade and
to meet his family members, who have been residing there since
December 2020. On January 24, 2022, the petitioner was asked to
submit the details of the proposed admission of his daughter and also
to inform whether his presence is mandatory for the admission.
However, the petitioner failed to show any exigency and has only
replied that he wants to assist his wife in securing admission for his
daughter. Ms. Ahlawat has submitted that the wife of the petitioner is
capable to complete all the required formalities for the admission of
their daughter since she has been working as an attaché in the Indian
Embassy in Harare, Zimbabwe and she may seek the assistance of her
office also, if required.
23. She has also stated that the petitioner was required to furnish
elaborate and detailed information on the following aspects, as per
established procedure and rules:-
1. Itinerary and details of the proposed visit.
2. Purpose of all the foreign visits and the period for
which permission has been taken.
3. Details of schools in which the daughter of the
petitioner intends to take admission.
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4. Whether the facility of online enrolment /
admission process is available for the earmarked
school.
5. Whether there are any other family members of the
petitioner available to pursue the admission process of
his daughter.
6. Expenses which are to be incurred on the proposed
travel of the petitioner along with the relevant
documents.
7. Details of the petitioner‟s last visit to Canada.
8. Details of income from all sources and bank
transactions of the petitioner and his wife during his
previous visits, and any potential income from the
proposed visit, along with all relevant documents.
Ms. Ahlawat stated that none of this information was
elaborated on by the petitioner and whatever information was
furnished was non-specific, evasive and vague.
24. She would state that keeping in view the circular dated August
04, 2018, unsatisfactory reasons furnished by the petitioner, acute
shortage of staff in the establishment of the respondent and the fact
that the petitioner was already allowed more than three years leave
from 2017 to 2020, the respondent had no choice but to decline the
request of the petitioner.
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25. It is submitted that the circular of August 04, 2018 was in the
backdrop of the disruption of smooth functioning of the court/office,
caused by the frequent requests of staff members to travel abroad. The
right to travel abroad of the staff, including that of the petitioner, has
not been infringed or affected, as it is possible to avail
permission/leave to travel abroad during court vacations and also in
case of any exigency.
26. As regards the argument of parity made by Mr. Arora
referring to the case of Hemlata Sharma, Senior Judicial Assistant, it is
stated that, her case was on a totally different footing, inasmuch as, she
was granted permission to travel abroad on the ground of health issues
of her son, who was hospitalised in Dublin, Ohio, United States of
America.
ANALYSIS / CONCLUSION:
27. Having heard the learned counsel for the parties and perused
the record, in substance, the challenge in this petition is to the circular
dated August 04, 2018, and the order dated January 31, 2022 issued by
the office of the respondent on the ground that the same are
unconstitutional and null and void.
28. The challenge in the petition to the impugned circular / order
has been made by the petitioner broadly on the following grounds:-
i. The impugned order and circular are in violation of
Article 14 and 21 of the Constitution of India.
ii. The circular has no foundation in any of the rules.
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iii. The impugned order dated January 31, 2022 passed
by the respondent rejecting the application of the
petitioner for grant of EL for the period of thirty days
i.e., March 21, 2022 to April 19, 2022, is by way of a
non-speaking order and as such is non-est.
iv. That the petitioner has been discriminated inasmuch
as one officer namely Hemlata Sharma, Senior
Judicial Assistant posted in District Courts, Rohini,
was allowed EL for fifth time to travel abroad.
v. The ground of scarcity of staff, given as the reason to
reject the leave of the petitioner, has no basis.
29. Before I deal with the submissions advanced by the learned
counsel for the parties, it is necessary to reproduce the circular dated
August 04, 2018 as under:-
"It is being noticed that staff members often send
applications seeking permission to visit abroad without
any exigency which causes disruption in the smooth
functioning of the court/office work.
Therefore, in order to ensure smooth functioning of the
court/office work all the staff members are directed to
move such applications for grant of permission to visit
abroad only during Summer Vacations, Winter
Vacations, Public Holidays and in case of any exigency
only.
No such application for grant of permission to visit
abroad except on the basis of aforesaid conditions shall
be entertained by this office henceforth......."
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30. I may also state that this petition is a second round of litigation
of the petitioner inasmuch as, the earlier petition being W.P.(C)
139/2022, was disposed of in terms of the directions as noted in
paragraph 4 above.
31. Pursuant thereto, the respondent has passed an order dated
January 31, 2022 wherein the following has been stated:-
"With reference to your letters dated 18.01.2022 &
25.01.2022 (advance copy), on the subject cited above, I
am directed to inform you that the Ld. Principal District
& Sessions Judge (HQs), Delhi, has been pleased to
decline your request to visit Harare (Zimbabwe), w.e.f.
16.03.2022 (at night hours) to 19.04.2022, in view of the
circular dated 04.08.2018, as the reply furnished by you
in reference of this office's letter 24.01.2022, does not
reflect satisfactory reasons. Furthermore, this
establishment is already undergoing scarcity of staff and
you have already availed leaves more than 3 years
during the period 2017 to 2020, for visiting abroad."
32. On a perusal of the impugned circular dated August 04, 2018,
it is clear, the same stipulates, the staff can apply for grant of
permission to travel abroad only during summer vacations, winter
vacations, public holidays and in case of any exigency. The circular is
not a complete bar from travelling abroad. It also contemplates that in
case of exigency, an employee can seek permission to go abroad even
if it is not during summer vacations, winter vacations and public
holidays. Insofar as order dated January 31, 2022 is concerned, the
request of the petitioner was rejected on three grounds; firstly, it does
not show any satisfactory reason; secondly, there is a scarcity of staff;
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thirdly, he has already availed leaves of more than three years during
the period 2017 to 2020 for travelling abroad.
33. With the above preface, I proceed to decide the submissions
made by learned counsel for the parties. The first plea of Mr. Arora is
that the impugned order violates Article 14 and Article 21 of the
Constitution of India. It was his submission that the impugned circular
discriminates between those District Court employees who wish to
travel abroad and those who wish to travel within India. In other
words, a person travelling abroad has to show an exigency whereas a
person, who is travelling within India, is not required to show any such
exigency. The plea is without merit, in view of the CCS (Leave) Rules
on which reliance has been placed by the counsel for the petitioner
himself, more specifically, Rule 7, which stipulates in no uncertain
terms that leave cannot be claimed as a matter of right. The Rule, in
fact contemplates when the exigencies of public service so require,
leave of any kind may be refused or revoked by the authority
competent to grant it. In other words, even a leave sought to travel
within India can be denied/ revoked in the event of an exigency.
Hence, there is no violation of Article 14 of Constitution of India, as
alleged by the counsel.
34. Insofar as the plea of Mr. Arora by relying upon the Judgment
in the case of Maneka Gandhi (supra), that the impugned circular
violates Article 21 of the Constitution of India is concerned, the same
is without merit. A reading of the impugned circular would show that a
staff member can, in fact, travel abroad during summer vacations,
winter vacations, public holidays and in case of any exigency. In other
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words, it is not a case where foreign travel per se has been prohibited /
banned or in view of the circular, one is unable to travel abroad. In
fact, the judgment in the case of Maneka Gandhi (supra) has no
applicability in the case in hand, as in that case the issue was the
impounding of the passport of the petitioner, resulting in violation of
her right to travel under Article 21 of the Constitution of India.
35. The plea of learned counsel for the petitioner that there is no
intelligible differentia and reasonable nexus between the impugned
circular and the object sought to be achieved is also without merit. It is
a conceded case that the petitioner is an employee of a District Court.
The Courts, supported by the staff appointed, discharge an important
public function of rendering justice to the people. It is to ensure that
this important public function of rendering justice to litigants is
unhindered, that the impugned circular is issued which contemplates
that an employee working in a District Court can apply for permission
to travel abroad only during summer vacations, winter vacations,
public holidays and in case of any exigency. Further, objective behind
the circular is, as travelling abroad, is always for a larger duration, (in
this case the petitioner sought leave for thirty days) such visits must be
undertaken during the summer, winter and public holidays. The
exceptions to summer, winter and public holidays is, if there is an
exigency (subject to the satisfaction of the competent authority), the
employee can travel abroad. In any case, the underlying rule is that an
employee cannot seek permission to go abroad by availing leaves, as a
matter of right. Clearly, there is an objective sought to be achieved by
the impugned circular. Hence, this plea is rejected.
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36. That apart, it is the stand of the respondent that the impugned
circular dated August 04, 2018 was passed in furtherance of the
directions issued by this Court vide order dated August 03, 2016 which
states the following:-
"Dated 03/08/2016
From
The Registrar General
Delhi High Court
New Delhi.
1. The District & Sessions Judge (HQs), Tis Hazari
Courts, Delhi
2. The District & Sessions Judge, South, Saket Courts,
Delhi
3. The District & Sessions Judge, North-West, Rohini
Courts, Delhi
4. The District & Sessions Judge, South-East, Saket
Courts, Delhi
5. The District & Sessions Judge, South-West, Dwarka
Courts, Delhi
6. The District & Sessions Judge, East, Karkardooma
Courts, Delhi
7. The District & Sessions Judge, Shahdara,
Karkardooma Courts, Delhi
8. The District & Sessions Judge, New Delhi District,
PHC, Delhi
9. The District & Sessions Judge, North, Rohini Courts,
Delhi
10. The District & Sessions Judge, West, Tis Hazari
Courts, Delhi
11.The District & Sessions Judge, North-East,
Karkardooma Courts, Delhi
12. The Principal Judge (HQs), Family Courts, Dwarka,
Delhi
13.The Chairperson, Delhi Judicial Academy, Dwarka,
Delhi.
Sub: Directions regarding foreign visit
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Sir/Madam,
I am directed to say that it has been observed that the
judicial officers are requesting for grant of permission
for making foreign visits by availing leave during Court
working days. Hon'ble the Chief Justice has taken a
serious view of the matter and has been pleased to order
that in future there shall not be any foreign visit during
working days.
I am, therefore, to request you to kindly bring the above
directions of Hon'ble the Chief Justice to the notice of
all the judicial officers under your respective control,
for strict compliance.
Yours faithfully
(Dinesh Kr.Manchanda)
Assistant Registrar (Gaz.)
For Registrar General"
37. The above directions are issued to District Judges of all
District Courts in Delhi. In other words, the said circular has
applicability to all the employees of all District Courts in Delhi. The
plea of the learned counsel for the petitioner that there is no foundation
in any of the rules, (the Rules of 2012 and CCS (Leave) Rules), which
permits the respondent to impose any restriction on its employees to
travel abroad is also misplaced. The CCS (Leave) Rules, more
specifically, Rule 7 thereof, reads as under:-
"7. Right to leave (1) Leave cannot be claimed as of
right. (2) When the exigencies of public service so
require, leave of any kind may be refused or revoked by
the authority competent to grant it, but it shall not be
open to that authority to alter the kind of leave due and
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applied for except at the written request of the
Government servant."
The aforesaid Rule clearly stipulates that leave cannot be
claimed as a matter of right. In exigency of public service, leaves of
any kind can be refused by the authority competent to grant it. The
provision empowers the competent authority to stipulate the conditions
where an employee can be denied leave.
38. Insofar as the reliance placed by the learned counsel for the
petitioner on the judgment in the case of Satish Chandra Verma
(supra) is concerned, the said judgment has no applicability, as in that
case, the petitioner was denied permission to make a foreign visit on
the ground that he is involved in a criminal case and departmental
inquiries were pending against him. In that fact situation, the Central
Administrative Tribunal denied interim relief, which order was
confirmed by the High Court stating that impugned action cannot be
faulted as the permission to travel abroad was denied owing to lack of
vigilance clearance. The Supreme Court held as under:-
".....The right to travel abroad is an important basic
human right for it nourishes independent and self-
determining creative character of the individual, not
only by extending his freedoms of action, but also by
extending the scope of his experience. The right also
extends to private life; marriage, family and friendship
are humanities which can be rarely affected through
refusal of freedom to go abroad and clearly show that
this freedom is a genuine human right. (See: Mrs.
Maneka Gandhi v. Union of India and Another (1978) 1
SCC 248). In the said judgment, there is a reference to
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the words of Justice Douglas in Kent v. Dulles 357 US
116 which are as follows:
"Freedom to go abroad has much social value and
represents the basic human right of great
significance."
In the instant case, the appellant who is a member
of the All India Services has paid leave to his
credit and has applied to go to U.S.A. and France
to visit members of his family who are residing
there. On an earlier occasion this Court permitted
him to travel to U.S.A. in the year 2017 and he
promptly came back.
We are of the opinion that pendency of
departmental proceedings cannot be a ground to
prevent the appellant from travelling abroad...."
39. From the above, it is clear that the petitioner therein was
denied the right to travel abroad only on the ground of pendency of
departmental proceedings which is not the case here. Hence, the said
judgment is distinguishable.
40. Insofar as the reliance placed by the counsel for the petitioner
on the judgment of Government of Andhra Pradesh and Ors. v. P.
Laxmi Devi,(2008) 4 SCC 720 to contend that if a pure administrative
circular/executive instruction is in conflict with certain rules and
regulations, former would be bad in law. There is no dispute on the
proposition of law laid down in the said judgment, but Mr. Arora has
not pointed out any statutory rule which has been violated by the
impugned circular of August 04, 2018. A reference has been made by
learned counsel for the petitioner on the judgment of the Supreme
Court in Kakali Ghosh (supra). Suffice to state that the said judgment
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was with regard to a female employee seeking child care leave for a
period of two years. It was in that factual situation that the Supreme
Court held that a woman employee can seek uninterrupted 730 days
child care leave in one stretch. In paragraphs 12 and 13 the Apex
Court held as under:-
"12. On perusal of circulars and Rule 43-C, it is
apparent that a woman government employee having
minor children below 18 years can avail CCL for a
maximum period of 730 days i.e. during the entire
service period for taking care of up to two children. The
care of children is not for rearing the smaller child but
also to look after any of their needs like examination,
sickness, etc. Sub-rule (3) of Rule 43-C allows a woman
government employee to combine CCL with leave of any
other kind. Under sub-rule (4) of Rule 43-C leave of the
kind due and admissible to a woman government
employee including commuted leave not exceeding 60
days; leave not due up to a maximum of one year, can be
applied for and granted in continuation with CCL
granted under sub-rule (1). From a plain reading of
sub-rules (3) and (4) of Rule 43-C it is clear that CCL
even beyond 730 days can be granted by combining
other leave if due. The finding of the High Court is
based neither on Rule 43-C nor on guidelines issued by
the Central Government. The Tribunal was correct in
directing the respondents to act strictly in accordance
with the guidelines issued by the Government of India
and Rule 43-C.
13. In the present case, the appellant claimed for 730
days of CCL at a stretch to ensure success of her son in
the forthcoming secondary/senior examinations
(10th/11th standard). It is not in dispute that the son was
a minor below 18 years of age when she applied for
CCL. This is apparent from the fact that the competent
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authority allowed 45 days of CCL in favour of the
appellant. However, no reason has been shown by the
competent authority for disallowing rest of the period of
leave."
The instant case is not that of child care leave.
41. I must state that the impugned circular does not restrict an
employee having an exigency, seeking permission to travel abroad
when it is not summer vacations, winter vacations or public holidays.
The request of the petitioner for sanction of thirty days EL between
March 21, 2022 to April 19, 2022 was denied vide the impugned
order, as the request of the petitioner did not reflect satisfactory
reasons inasmuch as he has sought the leave on the ground of helping
his wife in admitting their daughter to a new school and meeting his
family members. Furthermore, the establishment/court was undergoing
a scarcity of staff and the petitioner had already availed leaves for
more than three years during the period 2017-2020 for travelling
abroad.
42. Moreover, the petitioner is working as a Senior Personal
Assistant posted in the Court of Sh. Bhupinder Singh, Ld. ASJ-01,
Special Judge / POCSO, North-West District, Rohini Courts, Delhi,
which is an important position, and was thus, rightly denied the
permission.
43. Learned counsel for the petitioner has also pleaded
discrimination inasmuch as one employee namely Hemlata Sharma has
been granted permission to visit abroad, five times. Suffice to state, it
is the case of the respondent that she was permitted to go abroad on the
ground of the health condition of her son who was hospitalised.
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Clearly there was an exigency for the administration to allow the
officer to go abroad. The parity sought is clearly misplaced.
44. I do not see any merit in the petition. The same is dismissed.
No costs.
V. KAMESWAR RAO, J
MAY 31, 2022/jg
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