Court orders against Government of India instructions on service matters….

Court orders against Government of India instructions on service matters-consultation with Ministry of Law and Department of Personnel and Training on question of filing appeals

F.No.28027/1/2016-Estt.A-III
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training
Establishment Division

North Block, New Delhi-110001

Dated: 16th March, 2016

OFFICE MEMORANDUM

Subject: Court orders against Government of India instructions on service matters-consultation with Ministry of Law and Department of Personnel and Training on question of filing appeals.

The undersigned is directed to refer to this Department’s 0.M.No.28027/9/99- Estt.(A) dated 1st May, 2000 on the above subject ( copy enclosed) and to say that the Department of Personnel and Training is the nodal Department that formulates policies on service matters and issues instructions from time to time. These instructions are to be followed by the Ministries/ Departments of the Central Government scrupulously. All the Court cases filed by employees have to be defended on the basis of the facts available with the Administrative Ministry/Department concerned, keeping in view the instructions issued on the subject by this Department.

2. Reference is also invited to the Cabinet Secretariat’s D.0 letter No. 6/1/1/94-
Cab dated 25.02.1994 and the Department of Expenditure’s O.M. No. 7(8)/2012-E-II(A) dated 16.05.2012 inter-alia provide that (i) a common counter reply should be filed before a Court of Law on behalf of the Union of India by the concerned administrative Department/ Ministry where the petitioner is serving or has last served; and (ii) a unified stand should be adopted instead of bringing out each Department’s/Ministry’s point of view in the said reply. It further provides that it is primarily the responsibility of the Administrative Ministry to ensure that timely action is taken at each stage a Court case goes through and that a unified stand is adopted on behalf of Government of India at every such stage. In no case should the litigation be allowed to prolong to the extent that it results in contempt proceedings.

3. However, it is noticed that the Ministries/Departments are making several references to this Department seeking interpretation of the guidelines without exercising due diligence. The Ministries/Departments are advised not to make any references to this Department unless there are difficulties relating to interpretation/application of these guidelines or any relaxation in Rules/instructions is warranted to mitigate a genuine hardship faced the Government servant. While seeking advice of this Department, instructions contained in this Department’s O.M. number 43011/9 /2014-Estt (D) dated 28.10.2015 may be followed.

4. The court cases may be further handled in the following manner:-

Sl. No.	Orders of Court	Action to be taken
1.	A     decision/order    has       been quashed by Tribunal/Court on the ground that it is violative of the                    Rules/Government instructions, but Government’s policy     has      not   come     in    for adverse comments.	The         Administrative          Department           may implement the CAT Order/Judgement if it is in consonance with Government policy and the Government case has been lost due to Administrative infirmities.
2.	Where the policy of DoPT has not been quashed, but the judgment/order of the Tribunal/ High Court/ Supreme Court has gone in favour of Respondents/Applicants. (a) Where   in                     above,      the Administrative Ministry is in favour of implementing the judgement (b)Where in above, a decision to      file                   Writ     Petition/ Special Leave Petition (as the case may be) has to be taken	The Administrative Ministry may take a decision in consultation with DoPT and DoLA. The Administrative Department may take a decision to file Writ Petition/ Special Leave Petition                 (as      the     case      may     be)     in consultation    with       Department   of         Legal Affairs (DOLA) and DoP85T.
3.	Where the judgment has gone in favour of Applicant/Petitioner/Respondent and a scheme/guideline/OM outlining Government policy has been quashed.	The Administrative Department may take a decision to file WP/SLP (as the case may be) in consultation with DoPT and DOLA. The references to this Department should be sent at least one week in advance so that it can be properly examined in DoP&T.
4.	CAT or a Higher          Court has upheld Government’s stand	DoPT may only be informed with all details. .