Dalip Kumar v Union of India and others

Delhi High Court

6 May 2013

W.P. (C) 916 / 2012

Bench

Pradeep Nandrajog, V. Kameswar Rao

The Judgment was delivered by : Pradeep Nandrajog, J.

1. Petitioner Dalip Kumar was enrolled as a Constable by Delhi Police on May 01, 1990 and while still under probation, and as a matter of fact when undergoing training, stopped reporting for the training. He claimed to have fallen sick. The Commissioner of Police was probably of the view that he was feigning sickness and on September 14, 1990, his services were terminated. He filed OA No.1946/1991 before the Central Administrative Tribunal which was disposed of on June 03, 1997, directing an inquiry to be made with respect to the correctness and truth of the medical record relied upon by Dalip Kumar.

2. Inspector Amarjeet Singh of the Vigilance Branch of Delhi Police conducted a detailed inquiry and opined that notwithstanding medical papers submitted by Dalip Kumar were genuine but the same did not indicate grave illness of a nature which incapacitated him to complete the training. On September 25, 1997, Dalip Kumar’s representation against his services being terminated was rejected. He filed OA No.2487/1997 which was disposed of by the Tribunal on September 14, 2000, directing as under:-

“7. The application, therefore, succeeds and is accordingly allowed. The impugned order dated 23.9.1997 is set aside and the respondents are directed to restore the applicant to service forthwith and permit him to undergo training when the next batch for training starts. He will not, however, be entitled to emoluments for the period between his date of termination and reinstatement. This should be done within three months from the receipt of this order. In the facts and circumstances of the case, the parties shall bear their own costs.”

3. Declining emoluments to be paid between the date of Dalip Kumar’s services being terminated and he being reinstated, unfortunately the Tribunal did not indicate as to whether the period interregnum would be treated as spent on duty for purposes of pensionary benefits, service rendered for purposes of promotion and in particular whether Dalip Kumar would be entitled to notional increments for the period in question. With the implementation of the Assured Career Progression Scheme in the year 1999, issue pertaining to Dalip Kumar being entitled to an in situ promotion on rendering 12 years service was also not touched upon.

4. It is apparent that a time bomb started ticking. Dalip Kumar, who was reinstated in service, started claiming: (i) Seniority as a Constable as per his merit position when selection was made in the year 1990; (ii) To give him notional increments so that on rejoining he would receive salary equivalent to his juniors; (iii) To grant him ACP benefit on May 01, 2012 treating him as having completed 12 years service; (iv) Promote him to the rank of Head Constable; and (v) To direct intervening period as spent on duty for all intents and purposes.

5. Since the department declined the request Dalip Kumar filed OA No.2440/2009 which has been dismissed by the Tribunal vide impugned order dated February 18, 2011.

6. The reasoning of the Tribunal is: ‘Res-judicata’. With reference to the decision of the Supreme Court reported as (2001) 1 SCC 73 S.B.I. Vs. Ram Chandra Dubey 2000 Indlaw SC 3793, the Tribunal held that a relief prayed for but not granted is deemed to have been rejected. The Tribunal has thereafter noted the prayers made in OA No.2487/1997; and we do likewise. The prayers made in OA No.2487/1997 read as under:-

“(i) To set aside the impugned order of termination dated 28.8.1990 at Annexure A-1 and direct the respondents to reinstate the applicant in service w.e.f. 28.8.1990 with all consequential benefits including pay and allowances and continuity of service, seniority and promotion.

(ii) To set aside the impugned order at Annexure A-2.

(iii) Any other relief which the Hon’ble Court deems fit in the circumstances of the OA may also be awarded to the applicant.”

7. Thereafter, the Tribunal has noted the direction issued vide order dated September 14, 2000 while disposing of OA No.2487/1997 as per the concluding (paragraph 7) of the order, contents whereof have already been noted by us in paragraph 2 above.

8. The destination reached by the Tribunal is obvious. The Tribunal has held that in OA No.2487/1997 while praying for a direction to be issued to reinstate him in service, Dalip Kumar had prayed for all consequential benefits including pay and allowances, continuity of service, seniority and promotion. These prayers were neither accepted nor rejected save and except prayer for pay and allowances was specifically rejected; and thus the Tribunal opined that the others would be deemed to be rejected and law declared in Ram Chandra Dubey’s case 2000 Indlaw SC 3793 (supra) would be attracted.

9. Contention urged by learned counsel for the petitioner is that order dated September 14, 2000 disposing of OA No.2487/1997 only rejects the prayer for grant of emoluments for the period between the date services of Dalip Kumar were terminated till he was reinstated and thus the other prayers are required as deemed to be allowed.

10. No rule of law or a precedent has been shown to us by learned counsel for the petitioner that if four prayers are made and one is granted; one is specifically rejected and the other two are neither accepted nor specifically rejected, the other two would be required to be deemed to have been allowed.

11. On the contrary the law is that if a prayer is made and the same is not allowed, it shall be deemed to have been rejected. This would mean that if four prayers are made, out of which one is specifically granted and the second is specifically denied and as regards the third and the fourth the judicial verdict is silent, the third and the fourth would be deemed to have been denied, and to this extent we do not find any fault with the reasoning of the Tribunal.

12. It has to be kept in mind that Dalip Kumar had not completed his training along with his batch mates in the year 1990. After reporting for training for a few days he stopped reporting for training. He proved being unwell and we do not wish to comment upon the earlier decisions of the Tribunal which did not even go into the issue whether the sickness was of a kind that Dalip Kumar could not even report for training. We do not wish to comment upon the Tribunal not even considering whether Dalip Kumar could undertake the non-strenuous part of the training i.e. Classroom Lectures pertaining to learning procedures pertaining to compliance with procedures of the law by constables, such as recording daily diary entries pertaining to departure and arrival; taking sealed exhibits to the forensic laboratories and obtaining receipts for delivery thereof and likewise bringing back the exhibits with reports of experts, taking rukko’s etc.

13. But the fact of the matter remains that vide decision dated September 14, 2000 the Tribunal had directed Dalip Kumar to undergo training when the same commenced for the next batch.

14. The factual situation is of a kind where Dalip Kumar’s seniority cannot be fixed as per Rule 22 of the ‘Delhi Police (Appointment & Recruitment) Rules, 1980’. It is a breakdown situation and thus Dalip Kumar would be entitled to seniority above the batch with whom he completed training. His emoluments would require to be fixed ignoring the period interregnum he being dismissed from service till he was reinstated and he would not be entitled to any benefit for said period for whatever purpose.

15. We had toyed with the idea whether we could, as an exceptional circumstance, direct the period in question to be treated as service rendered for pensionable service, but do not take the idea any further because full pensionable service as of the law today is 20 years service, which the petitioner would in any case render performing actual duties.

16. The writ petition is dismissed but without any orders as to costs.

Petition dismissed