SHAILNDRA KUMAR Vs HIGH COURT OF DELHI -Judgment by Delhi High Court
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 17363/2022, CM APPL. 55265-55266/2022
SHAILNDRA KUMAR ….. Petitioner
Through: Mr. R. K. Tarun, Mr. Rohit Shukla and Mr. Abhay Solanki, Advocates
versus
HIGH COURT OF DELHI ….. Respondent
Through: Mr. Gaurav Dhama and Ms. Malvika Raghavan, Advocates
% Date of Decision: 11th January, 2023
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MR. JUSTICE SAURABH BANERJEE
J U D G M E N T
SAURABH BANERJEE, J: (ORAL)
1. The petitioner, after joining the services as Stenographer Grade-III (now Personal Assistant) in the office of the Principal District and Sessions Judge (HQs.), Tis Hazari Courts, Delhi on 02.03.2009, was transferred to the Establishment of High Court of Delhi (hereinafter referred to as �Delhi High Court�) as �Personal Assistant� on diverted capacity on 15.01.2015.
2. Accordingly, the Delhi High Court vide its Office Order dated 24.03.2015 appointed the petitioner as a Personal Assistant on deputation basis. Since then the Delhi High Court was continuing the petitioner as a Personal Assistant in the Delhi High Court by issuing further Office Order(s) to that effect from time to time. However, as the last term of deputation of petitioner was coming to an end on 23.03.2022, the petitioner vide representation dated 14.02.2022 voluntarily sought absorption in the Delhi High Court and the Delhi High Court in response thereto, vide its Memorandum No. 4511/Estt.I/E-IV/DHC dated 22.03.2022 apprised the petitioner of having acceded to his request of absorption dated 14.02.2022, however, mentioning that the same was subject to his furnishing an undertaking to the effect that he will not claim seniority in the cadre of Personal Assistant prior to the date of his absorption and on absorption, his services in the Delhi High Court will be governed by The Delhi High Court Establishment (Appointment and Conditions of Services) Rules, 1972 and his seniority will be counted from the date of his absorption.
3. The petitioner, in response thereto, immediately on the very next day, i.e. 23.03.2022, willingly submitted his undertaking in compliance of the aforesaid Memorandum dated 22.03.2022, stating as under:-
�In view of the above, without prejudice to my rights and contentions, I am furnishing this undertaking that I will not claim seniority in the cadre of Personal Assistant prior to the date of absorption, in compliance of the conditions of joining.�
Not stopping, in continuation of his aforesaid undertaking, the petitioner, once again on 23.03.2022 itself, further willingly undertook by virtue of another fresh undertaking that �� �on absorption, my services in this Court will be governed by the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972 and my seniority will be counted from the date of absorption� in compliance of Memorandum No. No. 4511/Estt.I/E-IV/DHC dated 22.03.2022 and specifically submitted that the aforesaid was not mentioned in his earlier undertaking due to �inadvertence�.
4. Although all formalities qua the Memorandum dated 22.03.2022 stood complied by the petitioner, for reasons unknown, the petitioner once again willingly submitted a fresh undertaking dated 30.03.2022 vide which he sought to withdraw his earlier �letters/undertakings dated 23.03.2022� and instead undertook as under:-
�I undertake that I will not claim seniority in the cadre of Personal Assistant prior to the date of absorption and on absorption, my services in this Court will be governed by the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972 and my seniority will be counted from date of absorption.�
5. In the meanwhile, the Delhi High Court vide its order No. 418/Estt.I/E-IV/DHC dated 01.04.2022 absorbed the petitioner with effect from 23.03.2022 as a Personal Assistant. Subsequently, the Accounts Branch, Delhi High Court issued a Pay Fixation Order bearing Endst. No.106/A-20/Acctts.I/DHC dated 21.04.2022 in the name of the petitioner.
6. Irrespective of the above, surprisingly, on 26.04.2022, the petitioner filed an application under The Right to Information Act, 2005, requesting the Delhi High Court to provide copies of all Office Notings and Communications which were issued in connection with his representation letter dated 14.02.2022.
7. Thereafter, being aggrieved by the imposition of the onerous condition of taking away his seniority, petitioner filed the present writ petition for setting aside and quashing the undertaking dated 30.03.2022, mandated from him in pursuance of office memorandum No. 4511/ESTT.I/E-IV/DHC dated 22.03.2022 to the extent the condition of not claiming seniority in the cadre of Personal Assistant prior to the date of his absorption and for grant of all consequential benefits including seniority, promotion, pay and allowances, advance increments etc. To be noted that, it is at this stage that the petitioner has for the first time alleged that upon withdrawal of his earlier undertakings dated 23.03.2022 as he was left with no other alternative, he was compelled to give a fresh undertaking dated 30.03.2022, which ultimately deprived him of his seniority. This, in fact, is the basis of the present writ petition.
8. A perusal of the writ petition reveals otherwise, as the petitioner, after making request for absorption in the Delhi High Court on 14.02.2022, without any coercion, demur or protest willingly gave not one but two similar kind of undertakings on 23.03.2022 itself and then once again on 30.03.2022. Despite thereto, the same petitioner, by virtue of the present writ petition, for the first time contends that he was compelled to give fresh undertaking on 30.03.2022 having withdrawn both his undertakings dated 23.03.2022.
9. We are, prima facie of the opinion that the said contention in the present writ petition is an afterthought, primarily, as the petitioner is seeking to withdraw his undertaking dated 30.03.2022 after he has already been absorbed by the Delhi High Court as a Personal Assistant in the Delhi High Court vide its Office Order dated 01.04.2022. Had the petitioner sought to withdraw his undertaking(s) before being absorbed by the Delhi High Court vide its order No. 418/Estt.I/E-IV/DHC dated 01.04.2022, the situation would certainly have been different. But, alas, today the petitioner has missed the bus by miles and thus he cannot be allowed to resile from his own undertakings by taking a contrary stand, moreover, as the said undertakings form the fulcrum on which his request for absorption in the Delhi High Court has been acceded to. The whole essence of issuing an Office Order dated 01.04.2022 by the Delhi High Court absorbing the petitioner is based on his undertakings dated 23.03.2022 and 30.03.2022.
10. When the matter was listed before this Court on 20.12.2022, the petitioner sought adjournment to rely upon certain relevant judgments on the issue of maintainability of the present writ petition. Pursuant thereto, learned counsel for petitioner has filed and relied upon Popatrao Vyankatrao Patil vs. The State of Maharashtra & Ors1., ABL International Ltd. & Anr. vs. Export Credit Guarantee Corporation of India Limited & Ors.2 and Smt. Gunwant Kaur & Ors. vs. Municipal Committee, Bhatinda3 to contend that the High Court under Article 226 of The Constitution of India is well within its power of entertaining any writ petition involving disputed questions of fact and law and further upon Somesh Thapliyal and Anr. vs. Vice Chancellor, H.N.B. Garhwal University & Anr.4 to contend that compared to an employee, the employer is always in a dominating position and it is open to the employer to dictate the terms of the employment and for this the Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that it would cost him his job itself.
11. Unfortunately, the aforesaid judgments do not and cannot come to the rescue of the petitioner as the disputed questions of fact involved in the present writ petition are of a grave nature than those involved in Popatrao Vyankatrao Patil (supra), ABL International Ltd. & Anr. (supra) and Smt. Gunwant Kaur & Ors. (supra) and the facts involved in the present writ petition go into the root of the matter/controversy involved, mostly whence the petitioner himself is seeking to allege that he was compelled to give fresh undertaking on 30.03.2022 and withdraw both his earlier undertakings dated 23.03.2022 and certainly whence there is neither any other party impleaded by the petitioner before us nor any allegation made against anyone before us. Similarly, the judgment in Somesh Thapliyal and Anr. (supra) is also not applicable to the facts of the present case because the petitioner was given due benefit of his service as an employee of the earlier department and the Delhi High Court did not establish any dominating position or dictated any terms of employment to the petitioner. In any event, there is no direction in the said judgment that if there is an allegation of compulsion/duress, the said fact would have to be adjudicated upon exclusively in writ jurisdiction. Moreover in the opinion of this Court, the reliance by the learned counsel for the petitioner upon the aforesaid judgments itself casts a shadow of doubt over the allegations raised, mainly, as there were never any such averments/pleadings at any stage, neither before the Delhi High Court prior to the filing of the present writ petition nor before this Court by way of the present writ petition.
12. In view thereof, according to this Court, it is beyond the preponderance of probabilities for a writ Court to go into such a contention sought to be raised by the petitioner in the present writ petition and adjudicate upon it as it is imperative for the petitioner to establish the same after a full-fledged trial upon instituting appropriate proceedings.
13. Resultantly and in terms thereof, finding no merit, the present writ petition, is dismissed in limine alongwith the pending application(s), if any with liberty to the petitioner to file appropriate proceedings in accordance with law.
SAURABH BANERJEE, J
MANMOHAN, J
JANUARY 11, 2023/rr
1 (2020) 19 SCC 241
2 (2004) 3 SCC 553
3 (1979) 3 SCC 769
4 (2021) 10 SCC 116
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Neutral Citation Number 2023/DHC/000243
W.P.(C) 17363/2022 Page 1 of 7