W.P.(C) No.916/2007 & Conn.Matters Page 1 of 33 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : 3rd August, 2010 Judgment Pronounced on: 14th December, 2010 + W.P.(C) 916/2007 VIJAY KUMAR AGGARWAL ..... Petitioner Through: Petitioner in person. versus UNION OF INDIA & ANR. ..... Respondents Through: Mr.Atul Nanda, Advocate for UOI Mr.Vinay S.Masurkar, Mr.Amol N. Suryawanshi, Advocates for R-2/ State of Maharashtra. W.P.(C) 2563/2007 VIJAY KUMAR AGGARWAL ..... Petitioner Through: Petitioner in person. versus UNION OF INDIA & ANR. ..... Respondents Through: Mr.Atul Nanda, Advocate for UOI Mr.Vinay S.Masurkar, Mr.Amol N. Suryawanshi, Advocates for R-2/ State of Maharashtra. W.P.(C) 2768/2007 VIJAY KUMAR AGGARWAL ..... Petitioner Through: Petitioner in person. versus UNION OF INDIA & ANR. ..... Respondents Through: Mr.Atul Nanda, Advocate for UOI Mr.Vinay S.Masurkar, Mr.Amol N. Suryawanshi, Advocates for R-2/ State of Maharashtra. W.P.(C) No.916/2007 & Conn.Matters Page 2 of 33 W.P.(C) 6669/2007 VIJAY KUMAR AGGARWAL ..... Petitioner Through: Petitioner in person. versus UNION OF INDIA & ANR. ..... Respondents Through: Mr.Atul Nanda, Advocate for UOI Mr.Vinay S.Masurkar, Mr.Amol N. Suryawanshi, Advocates for R-2/ State of Maharashtra. W.P.(C) 1653/2008 VIJAY KUMAR AGGARWAL ..... Petitioner Through: Petitioner in person. versus UNION OF INDIA & ANR. ..... Respondents Through: Mr.Atul Nanda, Advocate for UOI Mr.Vinay S.Masurkar, Mr.Amol N. Suryawanshi, Advocates for R-2/ State of Maharashtra. W.P.(C) 7321/2008 VIJAY KUMAR AGGARWAL ..... Petitioner Through: Petitioner in person. versus UNION OF INDIA & ANR. ..... Respondents Through: Mr.Atul Nanda, Advocate for UOI Mr.Vinay S.Masurkar, Mr.Amol N. Suryawanshi, Advocates for R-2/ State of Maharashtra. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? W.P.(C) No.916/2007 & Conn.Matters Page 3 of 33 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. The six captioned writ petitions are being decided by a common judgment for the reason the factual matrix is inter- twined and one event led to the other resulting in various orders being passed. Unfortunately for the petitioner the joy of being inducted as a member of the Indian Administrative Service was short-lived and before he came out of his infancy in the service he got embroiled in litigation after litigation. Except for a short stint of service spanning about five years he discharged no duties, being suspended, and ultimately got dismissed from service on 2.4.2007. Having successfully cleared the Central Civil Services Examination and being allocated Maharashtra Cadre, as a Member of the Indian Administrative Service, the petitioner joined service in the State of Maharashtra on 1.9.1982. 2. Claiming that he became eligible to be granted the senior time-scale on 1.1.1986 and alleging that the same was illegally denied to him, the petitioner filed WP(C) No.656/1986 before the High Court of Bombay which was transferred to the Central Administrative Tribunal upon constitution of the Tribunal where the said writ petition was dismissed by the Tribunal vide judgment and order dated 19.1.1987 against which the Supreme Court granted Leave to Appeal and as a result Civil Appeal No.3464/1987 came to be registered before the Supreme Court against the decision dated 19.1.1987 passed by the Central Administrative Tribunal. 3. When the Civil Appeal was pending before the Supreme Court, the petitioner was suspended vide order dated 26.5.1988 and a charge-sheet was served upon him for major penalty W.P.(C) No.916/2007 & Conn.Matters Page 4 of 33 proceedings on 6.7.1988. The petitioner challenged his being suspended as also the charge-sheet by and under WP(C) No.1037/1988 before the Supreme Court. 4. Vide judgment and order dated 30.8.1988, Civil Appeal No.3464/1987 was allowed by the Supreme Court and the decision dated 19.1.1987 of the Central Administrative Tribunal was set aside. As a result thereof, the petitioner became entitled to be placed in the senior time-scale with effect from the date persons junior to him were placed in the senior time- scale; all consequential benefits as per Service Rules were held to be enuring to the benefit of the petitioner. 5. An interim order dated 2.11.1988 was passed by the Supreme Court in WP(C) No.1037/1988 in which the charge- sheet issued and served upon the petitioner on 6.7.1988 was stayed. Though prayed for, order dated 26.5.1988 under which the petitioner was suspended was not stayed. Thus since 26.5.1988 the petitioner remained suspended. 6. In the meanwhile, vide order dated 1.10.1988 petitioner was granted senior time-scale with effect from 25.2.1986 in compliance with the decision dated 30.8.1988 passed by the Supreme Court in Civil Appeal No.3464/1987. Since petitioner was under suspension since 26.5.1988, the Collector Kolhapur sent a bill to be signed by the petitioner so that subsistence allowance could be paid. None could be paid as the bill was not signed. Thereafter, various communications were sent to the petitioner on 27.3.1989, 19.12.1990, 9.5.1991, 13.5.1991, 23.5.1991, and 17.7.1991 calling upon the petitioner to submit non-employment certificate and sign the bills sent to him from time to time so that subsistence allowance could be released. The petitioner ignored all of them. W.P.(C) No.916/2007 & Conn.Matters Page 5 of 33 7. The petitioner resorted to multiple litigation before the Central Administrative Tribunal as also directly before the Supreme Court on various issues and got no relief save and except a direction from the Tribunal at Delhi to be granted a „No Objection Certificate‟ by the Competent Authority to enable him to obtain a passport. Petitioner filed Criminal Writ Petition before the Supreme Court as also a Criminal Appeal pertaining to some orders, details whereof need not be noted by us as they are not relevant, but are being noted to highlight that the petitioner resorted to all and sundry proceedings but did not sign the bill sent to him for payment of subsistence allowance nor furnished the non-employment certificate. Relevant would it be to note that in Criminal Appeal No.605/1991, vide order dated 31.10.1991 the Supreme Court was constrained to dispose of Criminal Appeal No.605/1991 and we note the contents of the order as they are of some relevance to the decision of WP(C) 916/2007 and WP(C) No.2768/2007. The order reads as under:- “This appeal arises out of an order passed by the Central Administrative Tribunal dated 7.6.1991. Against this very judgment the appellant had earlier preferred Special Leave Petition (Crl.) No.2061/91, which we have dismissed by our order dated 14.8.1991. When this appeal came up for hearing the appellant once again took us through the entire history of his service career from 1982 to 1988 which gave us the impression that certain events which had taken place had led to a cycle of litigation. In the course of the hearing he also invited our attention to a representation which he made to the Central Government for changing his allocation from Maharashtra to any other State and stated that the said representation had not yet been disposed of, at least he was not communicated the outcome thereof. We, therefore, requested the learned Attorney General W.P.(C) No.916/2007 & Conn.Matters Page 6 of 33 to look into his representation and having regard to the past events to find a solution, if possible. The appellant also stated before us that he would be willing to withdraw all the proceedings provided he is given a change of cadre allocation to another State and the charges against him are also dropped. He also stated that to show his bonafides he would not press his appeal. We must make it clear that his statement not to press the appeal will not affect any of his pending litigation unless a solution is found as stated earlier. We have, therefore, requested the learned Attorney General to personally look into the matter and see if a solution of the type suggested is possible in the facts and circumstances of this case and communicate the same in the pending appeal at an early date, preferable within three months. With these observations, we dispose of this appeal as not pressed. A copy of this order may be given to the learned Attorney General to enable him to move in the matter. As regards his application dated 30.10.1991 requesting us not to hear this appeal, we can only state that the appellant himself later desired that we should return it to him but since it was taken on record we did not deem it appropriate to do so. We, however, do not propose to comment on the averments since the appellant participated in the hearing and we have heard him and passed the above order.” 8. The order throws light on a fact i.e. the petitioner being involved in multifarious litigation and probably taking an obstinate and a rigid stand and being suspended having pent up frustration evidenced by moving an application before a Bench of the Supreme Court praying that the particular Bench should not hear his Appeal. The order brings out the anxiety of the Supreme Court to find a solution outside the four corners of law, for the probable reason, no solution was possible within the four W.P.(C) No.916/2007 & Conn.Matters Page 7 of 33 corners of law; the solution being to effect a change in the cadre by transferring the petitioner to outside Maharashtra. 9. The petitioner filed multifarious writ petitions, special leave petitions etc. against various orders before the Supreme Court as also contempt petitions and all of which got dismissed from time to time, but relevant would it be to note that with respect to the order dated 31.10.1991 aforenoted, the Supreme Court closed the issue as far as judicial intervention was concerned pertaining to petitioner‟s cadre being transferred under the State of Punjab and for which the Supreme Court had passed an order on 15.2.1993 directing that Government of India would look into the matter. By 16.12.1993 the Supreme Court was informed that there were some difficulties being encountered in the inter cadre transfer of the petitioner. Relevant would it be to note that on 15.2.1993, in Criminal Appeal No.605/1991 the Supreme Court had observed that the State of Punjab was willing to take the petitioner on deputation for one year and in pursuance of the willingness expressed by the State of Punjab on 1.3.1993 the petitioner submitted an application to the Central Government for his being transferred, on deputation, to the State of Punjab but on certain conditions. The same were not accepted by the State of Maharashtra. The State of Maharashtra, the Central Government and the State of Punjab remained in touch with each other pertaining to petitioner‟s inter cadre transfer to the State of Punjab and to facilitate the same, petitioner‟s suspension needed to be revoked and thus on 13.5.1996, exercising power under Rule 3(7)(c) of the All India Services (Discipline and Appeal) Rules 1969 the Competent Authority in the State of Maharashtra withdrew the order dated 26.5.1988 under which the petitioner was placed under suspension. The said order records the reason why the W.P.(C) No.916/2007 & Conn.Matters Page 8 of 33 suspension was being withdrawn; the reason being to facilitate petitioner‟s inter cadre transfer and preceding the same his proceeding on deputation to the State of Punjab. The order clearly records that the same was being passed in view of a letter dated 15.2.1996 received from the Government of India as per which petitioner‟s proceeding on deputation to the State of Punjab required the suspension to be withdrawn. 10. Since the order suspending the petitioner was withdrawn and it would have taken time for the Central Government to finalize the procedural formalities required to be completed for the State of Punjab before which petitioner could be sent on deputation to the State of Punjab, he was required to be assigned some work, and accordingly on 7.6.1996 he was directed to take charge as a Deputy Secretary, Social Welfare, Cultural Affairs and Sports Department Government of Maharashtra. The petitioner did not join, and unfortunately for him, the inter cadre transfer from the State of Maharashtra to the State of Punjab as also petitioner being sent on deputation to the State of Punjab could not materialize. The petitioner, notwithstanding his suspension being revoked on 13.5.1996 and he being directed to take charge as the Deputy Secretary of the Social Welfare, Cultural Affairs and Sports Department of the State of Maharashtra on 7.6.1996, did not join duty and thus on 4.5.1998 a second charge sheet was issued and served upon him on the ground that he remained unauthorizedly absent from duty as also had left the headquarters without the permission of the Competent Authority. The petitioner filed a contempt petition in Civil Appeal No.3464/1987 which had already been disposed of, in which he did not disclose to the Court of his having filed various interim applications pertaining to his inter cadre transfer to the State of Punjab and all of which had been W.P.(C) No.916/2007 & Conn.Matters Page 9 of 33 disposed of. The contempt petition was disposed of as dismissed vide order dated 12.11.1998 after the Supreme Court noted that the issue of inter cadre transfer have been closed by the Supreme Court vide its order dated 16.12.1993. The Supreme Court found no contempt committed by the State of Maharashtra. Relevant would it be to note that the pleadings in the contempt petition numbered 457/1998 was an attempt to stay the disciplinary proceedings initiated on 4.5.1998 as also a subsequent memorandum dated 5.10.1998 under which a third charge sheet was served upon him. 11. It is apparent that the petitioner was messing up his career. On 27.2.1997 the Government of India rejected petitioner being sent on deputation to the State of Punjab and the State Government intimated the same to the petitioner under cover of a letter dated 29.3.1997. 12. Once again, suppressing relevant facts, the petitioner filed a contempt petition in the disposed of Civil Appeal No.3464/1987 alleging that the State of Maharashtra was not complying with the judgment and order dated 30.8.1988 by which petitioner‟s Civil Appeal No.3464/1997 was allowed. Needless to state he raised a grievance that he was not paid salary in the senior time scale. It appears that the petitioner raised a further issue of persons junior to him being promoted and hence a claim by the petitioner to be paid salary in the promotional post. We may immediately add a caveat here, neither the petitioner nor the respondents were very sure whether the petitioner had a grievance of not being paid salary in the higher scale i.e. above the senior time scale, but halfheartedly stated that probably it was so. 13. The State of Maharashtra informed the Supreme Court of the facts aforenoted i.e. petitioner‟s suspension being revoked W.P.(C) No.916/2007 & Conn.Matters Page 10 of 33 on 13.5.1996 and he not joining for duty. As regards the issue of subsistence allowance effective from the date when the petitioner was suspended and till the suspension was revoked i.e. the period 26.5.1988 till 13.5.1996, it was informed that neither was the petitioner signing the bills sent to him for being paid the subsistence allowance nor was he submitting a certificate of not being gainfully employed. Vide order dated 19.9.2001, the Supreme Court directed that as an interim measure, on ad-hoc basis, the complete salary be paid to the petitioner with effect from 1.5.1988 to 13.5.1996. Tentatively quantifying the amount payable being `10,00,000/- (Rupees Ten Lakhs), it was directed that a draft would be brought to Court within 3 weeks and in the meanwhile the State was directed to calculate the exact salary payable to the petitioner on the basis of the petitioner being placed in the senior time scale as directed by the Supreme Court. The order dated 19.9.2001 reads as under:- “Heard the applicant-petitioner appearing in person and the learned counsel for the respondents. By order dated 30.8.1988 passed in Civil Appeal No.3464/1987 this Court has directed the State of Maharashtra to give the appellant senior time scale with effect from the date on which his juniors were given and also directed the State to give the consequential benefits as per the rules regulating his service. It has been pointed out that in compliance with the said order petitioner was granted promotion in senior time scale from 25.2.1986 i.e. the date on which his junior K.P.Bakshi was promoted in the senior time scale. It is the contention of the applicant-petitioner that neither the salary nor the suspension allowance is paid to the petitioner. Admittedly, prior to the passing of W.P.(C) No.916/2007 & Conn.Matters Page 11 of 33 the order dated 1.10.1988 applicant was placed under suspension by order dated 26.5.1988. In this view of the matter, apart from taking any further action for committing breach of the order passed by this Court, respondent-State of Maharashtra is directed to pay salary to the applicant-petitioner from 1.5.1988 to 13.5.1996 for the time being on ad hoc basis. Respondent to pay Rs.10 lacs (Rupees Ten lacs only) within a period of three weeks from today by demand draft. Meantime respondents are directed to calculate the exact salary amount payable to the applicant-petitioner on the basis of senior time scale. To be placed on Board on 11.10.2001. Mr.Yashank Pravin Adhyaru, the learned senior counsel is appointed amicus-curiae to assist the court.” 14. The State of Maharashtra calculated the full salary payable to the petitioner for the period 1.5.1988 to 13.5.1996 in sum of `6,82,290/- and immediately filed an application before the Supreme Court, with reference to the order dated 19.9.2001 and requested the Supreme Court that since the amount payable was far less than `10,00,000/- (Rupees Ten Lakhs), the State may be permitted to hand over a sum of `6,82,290/- to the petitioner towards full salary for the period 1.5.1988 till 13.5.1996. The application by the State was disposed of by the Supreme Court on 11.10.2001. The order reads as under:- “Heard the learned counsel for the parties. Considering the affidavit filed on behalf of the State of Maharashtra pointing out that if the suspension period is regularized as a duty period, petitioner would be entitled to have full salary for the period from 1.5.1988 to 13.5.1996 and that amount would be Rs.6,82,290/-. Hence, our order dated 19.9.2001 directing the respondent-State to pay Rs.10 lac to the petitioner is modified to the aforesaid extent and the State of Maharashtra is directed to pay a sum of W.P.(C) No.916/2007 & Conn.Matters Page 12 of 33 Rs.6,82,290/- towards full salary for the period in question. This amount is accepted as a correct figure given by the authorities and considered to be a correct figure subject to verification by the petitioner or further calculation by the concerned officers. The amount to be paid to the petitioner by demand draft within seven days from today. I.A.s 9 & 10 stands disposed of accordingly. Stand over to 18.10.2001.” 15. On the next date of hearing when the contempt petition filed by the petitioner was listed i.e. 18.10.2001, a demand draft in sum of `6,82,290/- was tendered to the petitioner in Court. He refused to accept the same. Reason why he did not accept the amount was the grievance that the same represented salary calculated as per the senior time scale. He claimed that persons junior to him had earned promotions and thus salary had to be paid to him in the scale applicable to the promotional post. The Supreme Court taking note of the obstinate stand of the petitioner dismissed the contempt petition filed by the petitioner as also pending applications, which as per the order dated 18.10.2001 shows were about 7 in number. The Supreme Court noted that as regards the State Government, it had tendered a sum of `6,82,290/- to the petitioner which he had refused. As regards the stand of the petitioner that he was entitled to the wages at a higher pay scale the Supreme Court held that the said issue could not be decided in contempt and relevant for our purposes would be to note certain observations of the Supreme Court in its order dated 18.10.2001, the same read as under:- “However, it cannot be said that State Government has violated any order passed by this Court. For the grievance of the petitioner that he was not given a suitable posting, it has been pointed out by the learned counsel for the respondents that despite the posting order given by the State Government, W.P.(C) No.916/2007 & Conn.Matters Page 13 of 33 petitioner is not prepared to join the said post on the ground that he is eligible for higher post. This question cannot be dealt with or decided in contempt proceedings. Secondly, an employee in government service cannot himself decide that he is entitled to a particular post and, therefore, if such posting is not given he will not join service. If he is aggrieved by the wrong posting he can challenge the same. Further, considering the contents of the letter written by the petitioner and various contempt petitions filed against the learned Judges of this Court also. It appears that these contempt proceedings are frivolous and no case for contempt is made out. Hence, these contempt proceedings are rejected. Registry is directed not to entertain any petition for the same cause.” 16. There were yet various writ petitions, contempt petitions and criminal appeals filed by the petitioner before the Supreme Court, all of which were dismissed in default on 7.10.2002. The order dated 7.10.2002 passed in WP(C) No.1037/1988 records: “Despite the service of notice of hearing to the petitioner for remaining present, the petitioner has not remained present. In spite of that petitioner who appears in person has filed an application for transfer of the matter to another Bench. In our view, enough indulgence is shown to the petitioner and he has misused the same. The petition therefore does not require any further consideration. The writ petitions, contempt petitions, criminal appeal and the I.A. are dismissed for default. Interim order stands vacated.” Thereafter, on an application filed, the writ petition was restored. Rather than argue the writ petition, the petitioner filed another writ petition No.75/2003 claiming multifarious reliefs pertaining to his service which was dismissed on 16.6.2003. Thereafter, vide order dated 9.12.2005 WP(C) No.1037/1988 was dismissed with a direction that the petitioner W.P.(C) No.916/2007 & Conn.Matters Page 14 of 33 may avail the alternative remedy of approaching the Central Administrative Tribunal. 17. The petitioner thereupon filed OA No.1714/2003 before the Central Administrative Tribunal praying that the order dated 13.5.1996 revoking his suspension be set aside, to the extent it was in contravention of Rule 5-B of the All India Services (Discipline & Appeal) 1969. He further prayed that the order dated 7.6.1996 posting him as Deputy Secretary, Social Welfare, Cultural Affairs and Sports Department as also the two charge- sheets dated 4.5.1998 and 5.10.1998 be quashed. He sought quashing of an order dated 18.9.2002 where under an inquiry officer was appointed as also the order dated 27.3.2003 intimating him that salary could not be paid to him as he was not reporting for duty. Petitioner prayed that the State of Maharashtra should reinstate him in compliance with Rule 5-B of the All India Services (Discipline & Appeal) 1969. He prayed that full salary be paid to him w.e.f. 1.5.1988 till date, and the period during which he remained under suspension i.e. 26.5.1998 till 13.5.1996 should be directed to be treated as spent on duty and it be directed that he was deemed to be promoted to all the ranks above the senior time-scale as and when persons junior to him earned promotion. 18. The petitioner filed various miscellaneous applications in OA No.1714/2003 and needless to state sought all and sundry relief, whether or not the same fell within the scope of the main relief sought for. 19. To put it in brief the challenge to the various orders and consequential relief sought for by the petitioner was premised on the plea that an order under Rule 3(7)(c) of the All India Services (Discipline & Appeal) Rules 1969