Point of Law: If a pure administrative circular/executive instruction is in conflict with certain rules and regulations, former would be bad in law.

JUDGMENT :

V. Kameswar Rao, J.

CM Appl. 12369/2022 (by respondent seeking condonation of 13 days delay in filing the counter affidavit)

For the reasons stated in the application, the same is allowed and delay of 13 days in filing the counter affidavit is condoned. Application is disposed of.

W.P.(C) 2323/2022

1. This petition has been filed with the following prayers:-

“a) Issue a writ of certiorari, or any other appropriate writ or direction, for declaring the Impugned Circular [i.e. the Circular dated 04.08.2018 bearing number Admn-II/Cir./2018/49266-50066 issued by the Office of the Respondent] as unconstitutional and null & void;

b) Issue a writ of certiorari, or any other appropriate writ or direction, for setting aside the Impugned Order [i.e. the Order dated 31.01.2022 passed by the Office of the Respondent rejecting the application of the Petitioner seeking grant of Earned Leave for a period of 30 days (from 21.03.2022 to 19.04.2022)];

c) Issue a writ of mandamus, or any other appropriate writ or direction, directing the Office of the Respondent to allow the application of the Petitioner seeking grant of Earned Leave for a period of 30 days for his travel to Harare (Zimbabwe);

d) Pass any other order or direction in favour of the Petitioner in the interest of justice.”

2. The challenge in this petition is to the order dated January 31, 2022 (“Impugned Order”, hereinafter) of the respondent, whereby the respondent has rejected the application of the petitioner for grant of Earned Leave (“EL”, for short) for a period of 30 days, by referring to a circular dated August 04, 2018 bearing No. Admn-II/Cir./2018/49266-50066 (“Impugned Circular”, hereinafter), which stipulates a court staff can be allowed to visit a foreign country only during Summer Vacations, Winter Vacations, Public Holidays and in case of any exigency.

3. At the outset, I may briefly narrate the factual background as set out in the writ petition. The petitioner herein holds the post of Senior Personal Assistant in the Court of ASJ-01, Special Judge/POCSO, North-West District, Rohini Courts, Delhi. The wife of the petitioner is in the employment of the Ministry of External Affairs, Government of India, posted as an Attach’e in the Embassy of India, at Harare, Zimbabwe, where she is residing with their daughter, aged 17 years. On September 13, 2021, the petitioner filed an application with the office of the respondent seeking grant of EL for a period of 30 days to visit his family in Harare, Zimbabwe, to provide assistance to his daughter for her admission to an educational institution. In response thereto, on September 20, 2021, the office of the respondent sought certain documents and an affidavit from the petitioner.

4. Further, on November 18, 2021 the respondent again sought an affidavit/undertaking from the petitioner. On December 10, 2021, the office of the respondent passed an order whereby the application of the respondent was rejected by referring to the impugned circular. On December 13, 2021, the petitioner addressed a letter to the office of the respondent stating that the said order is not a speaking order, and is discriminatory, as leave was granted to another member of the Court staff for travelling abroad. He requested his application be considered again. In response thereto, the office of the respondent passed an order dated December 18, 2021 rejecting the request of the petitioner without assigning any reasons. On January 02, 2022, the petitioner challenged the impugned circular and the orders dated December 10, 2021 and December 18, 2021 before this Court by way of a Writ Petition bearing No. W.P.(C) 139/2022, which was disposed of on January 12, 2022 by stating as under:-

“It is agreed that the petitioner shall, on deciding to go to Zimbabwe, apply to the competent authority one month before his travel to that country specifying the number of days (also month) for which he wants to avail the leave. On receipt of such request, the competent authority