Rakesh Tiwari v. Union of India & Ors.

1. By this application filed under Section 114 of the CPC, the petitioner seeks review of the order dated 12.12.2014 passed by this Court, whereby the Writ Petition filed by the petitioner was dismissed.

2. The grievance raised by the petitioner in the instant application is that when the Writ Petition was listed on 12.12.2014, gross misrepresentation was made by the respondents by stating that the petitioner stood relieved on 8.12.2014 and also that a reliever had already joined in his place at Base Hospital, ITBP on 11.12.2014. It is the case of 2015:DHC:2450-DB the petitioner that he was not relieved on 8.12.2014 and accordingly, he wrote a letter dated 12.12.2014 to the IG, Headquarters (IGHQ) intimating him about the stand taken by the Commandant before this Court. In reply to this communication, the IGHQ informed the petitioner that he could not have been relieved prior to 12.12.2014 as the DG, ITBP had issued an order only on 12.12.2014 confirming the fact that the transfer order of the petitioner will stand. The petitioner has taken a stand that the Commandant had no power to relieve the petitioner in absence of an order from the DG, ITBP and owing to this reason, no order was personally served upon him relieving him prior to 12.12.2014.

3. Contesting the present application, the respondents in their reply have taken a stand that pursuant to the order issued by the Ministry of Home Affairs, the Personnel Branch ITBP, the transfer orders dated 3.12.2014 were issued to Dr. Rakesh Tiwari – petitioner and Dr. Vinita Tiwari, petitioner’s wife, thereby transferring them to Composite Hospital, ITBP. Dr. Vinita Tiwari alongwith her husband - the petitioner met the Union Home Secretary on 4.12.2014 to request the latter for deferment of their transfer citing the ground of education of their children. The Union Home Secretary, after considering the said request, agreed to defer the transfer of Dr. Vinita Tiwari till 31.03.2015 so as to enable her children to complete the current academic session. However, apropos the transfer of the petitioner, the decision remained unchanged. A separate order dated 5th December, 2014 was passed by the Ministry of Home Affairs to this effect and a copy of the said order was duly endorsed to DG, ITBP. It is further the stand of the respondents that in compliance of the transfer order dated 3.12.2014 of ITBP Headquarters and ITBP approval letter dated 8.12.2014 issued by the DG, the petitioner was issued a movement/relieving letter dated 8.12.2014 by the Commandant, Base Hospital, ITBP but since it was not received by the petitioner, it was posted to him through Speed Post on 8.12.2014 and was delivered to him on 9.12.2014. It is furthermore the stand of the respondents that one Dr. Harvinder Singh, Anaesthetist joined ITBP Base Hospital, New Delhi on 11.12.2014. The respondents further averred that the relieving order of ITBP dated 12.12.2014 on which the petitioner has placed reliance would have no relevance as the decision of the Union Home Ministry apropos the petitioner’s transfer remained unchanged. Based on these averments, the stand of the respondents is that there was no misrepresentation on behalf of the respondents on 12.12.2014.

4. The petitioner has refuted the stand taken by the respondents in his rejoinder, wherein he has referred to a Memorandum dated 12.12.2014 issued by the IG, ITBP to the Commandant, Base Hospital seeking explanation from him for relieving the petitioner on 8.12.2014 in defiance of the advice of the Competent Authority. The petitioner contends that the relieving/movement order was never received by him and the averment of the respondents that the petitioner had refused to receive the same is grossly wrong as the same was never served upon him and the signatures of the dispatcher and other personnel, obtained on the Receipt Register of the Base Hospital were not done in his presence or with his knowledge. The petitioner also took a stand that Dr. Harvinder Singh was not his reliever and his vacancy at the Base Hospital, ITBP still subsists even after Dr. Harvinder Singh having joined the Hospital.

5. We have heard the learned counsel for the parties.

6. The Writ Petition preferred by the petitioner, seeking quashing of his transfer order dated 3.12.2014 was dismissed by this Court vide order dated 12.12.2014 finding no merit in the same. At the time of preliminary hearing of the matter on 12.12.2014, Mr. Dev P. Bhardwaj, the learned Standing Counsel for the respondents appeared on advance notice and apprised the Court that the petitioner stood relieved on 8.12.2014 and since he refused to accept the relieving order, the same was dispatched to him through Speed Post. Counsel also informed the Court that in place of the petitioner, the incumbent who was posted to Delhi had already joined on 11.12.2014. As per the petitioner, the respondents grossly misrepresented the facts as he was neither relieved on 8.12.2014 nor had the incumbent joined in his place, on 11.12.2014.

7. When notice in this review application was issued by this Court vide order dated 24.12.2014, it was made amply clear to both the parties that in case any misrepresentation is found to have been made in the matter by either of the parties, then serious consequences shall follow. The petitioner, who was transferred to Chandigarh is averse to join his new place of posting on account of family constraints. Vide order dated 03.12.2014, the petitioner and his wife were transferred to Chandigarh and on the representation made by the petitioner’s wife to the Secretary, Ministry of Home Affairs, he had agreed to reverse the decision apropos the transfer of the petitioner’s wife but maintained the decision in the petitioner’s case. A fresh order dated 5th December, 2014 was passed by the Ministry of Home Affairs, copy of which was endorsed to the DG, ITBP. This decision of the Ministry of Home Affairs was known to the petitioner and therefore, he was expecting a fresh relieving order to be issued by the Competent Authority. By an Office Memorandum dated 8th December, 2014, Dr. K.K. Mukherjee, IG/Director (Medical) passed a direction to the Commandant, Base Hospital, New Delhi to immediately relieve the petitioner so that he could join his new place of posting at CH Chandigarh, ITBP and asked for a compliance report to be submitted to all concerned. In this letter, the IG/Director (Medical) also mentioned that this has the approval of DG, ITBP. Based on the said Office Memorandum, the Commandant, Base Hospital, ITBP, issued a separate order relieving the petitioner on 8.12.2014 (FN) from Base Hospital, New Delhi, thereby posting him to Composite Hospital, ITBP, Chandigarh and simultaneously, struck off his name from the strength of Base Hospital, ITBP. Copy of this letter was endorsed by Commandant, Base Hospital to the Director (Medical), Directorate General ITB Police Force, Inspector General and other higher officers. As per the respondents, this letter was not received by the petitioner and therefore, the same was sent through Speed Post on the same date and it was delivered to him on 9.12.2014. The respondents have placed on record the proof of the same. The petitioner, on the other hand, has disputed the receipt of this letter and also the authority of the Commandant, Base Hospital to issue a relieving order in the absence of any directions from the DG, ITBP, which directions were issued only on 12.12.2014.

8. Before us is a case where the petitioner is reluctant to join his new post at CH Chandigarh and the respondents have shown great haste in issuing the relieving order dated 8.12.2014 without even waiting for necessary directions from the DG, ITBP. The Office Memorandum dated 12.12.2014 issued by the IG, HQ to Dr. Subedar, CMO (SG), Commandant, Base Hospital, ITBP called for reasons for relieving Dr. Rakesh Tiwari (the petitioner) on 8.12.14 (FN), ignoring/defying the orders/advice of the Competent Authority about waiting for further orders and an explanation as to why such orders were not complied with for other Doctors on their relieving earlier.

9. This Office Memorandum refers to a telephonic message received by the DG from the office of Home Secretary on 05.12.14 that Drs. Tiwari have met the Home Secretary and that their relieving on transfer to CH, Chandigarh be postponed till receipt of further orders, which order was also conveyed to Dr. Subedar by the DIG (Pers), Dte. General on the same date over telephone. In compliance of the MHA order, the Directorate further conveyed this decision to all concerned including the Commandant, Base Hospital vide its order No. 4205 dated 12.12.2014. The IG/Director (Medical) and the Commandant, Base Hospital were perhaps in a great rush to ensure immediate transfer of the petitioner to Chandigarh without awaiting further orders from the Dte. General and to this extent, their conduct needs to be deprecated. The petitioner, on the other hand, also does not appear to the Court as a willing officer as he was relentlessly trying to prolong his posting at Base Hospital, Delhi. Despite the decision of the Home Secretary, Ministry of Home Affairs dated 5.12.2014, thereby deferring the transfer of the petitioner’s wife and maintaining his stand on the transfer of the petitioner, there was quite some degree of reluctance and resistance on his part to proceed to his new place of posting. It is not the case of the petitioner that he was not aware of the decision taken by the Home Secy. on 5.12.12, refusing to change the decision in so far as the petitioner’s transfer was concerned. If it was so, then for what great reason was he avoiding the relieving order. The relieving order dated 8.12.2014 was sent to him through Speed Post. In the instant case, service of the relieving order to the petitioner through Speed Post is presumed in the light of the evidence placed on record. Therefore, in view of the aforesaid facts, we are of the considered opinion that neither the conduct of the petitioner nor of the respondents is worthy of appreciation as both of them were not assiduous in placing the correct facts before the Court. The petitioner and the officers of the defendants would be well-advised to be particularly careful, dutiful and diligent before a Court of law.

10. Equity will always decline relief in cases where both parties have schemed to circumvent the law and we will not, as Lord Kenyon once said, sit here to take an account between two robbers on Hounslow Heath.

11. With the aforesaid observations, we dismiss the Review Petition as we find no ground to review our order dated 12.12.2014. No orders as to costs.

KAILASH GAMBHIR (JUDGE) NAJMI WAZIRI, J (JUDGE) March 13, 2015 pkb