Govt Servants Can’t Be Excluded From Protection Of Fundamental Rights: Delhi High Court On Public Servants’ Right To Form Association

Observing that government servants "cannot be excluded from the protection" of fundamental rights, the Delhi High Court has set aside the 2019 Memorandum Order (M.O.) that de-recognised the Central PWD Engineers Association. During the pendency of the matter, the Association was granted recognition in 2021.

The decision was not issued with the approval of the Competent Authority, as provided under the CCS (RSA) Rules, 1993, but was only taken at the level of DG, CPWD, the court said.

The bench of Justice Kameswar Rao and Justice Anoop Kumar Mendirata said,

"The government servants cannot be excluded from the protection of the rights guaranteed by part III of the Constitution though the duties which they may discharge as a public servant might involve restrictions of freedom in terms of Article 19 of the Constitution of India. By virtue of Article 19(1)(c) of the Constitution of India, the right to form Association or Union or Cooperative Societies is a fundamental right even though the recognition of such Associations by the government may not be a fundamental right."

The primary objective of the CCS (RSA) Rules, 1993 is of granting recognition to any Service Association to encourage legitimate union activities for enabling the negotiations by the representative body, if so required and maintenance of harmonious relationship between the government and employees, the court observed.

It was hearing the writ petition filed by the Central PWD Engineers Association, challenging an order passed by the Central Administrative Tribunal in 2019. The order denied the continuation of recognition of the petitioner Association, as claimed by the petitioners, on the ground that the requisite documents as per the schedule specified under Rule 6(e) of the Central Civil Services (Recognition of Service Associations) Rules, 1993, were not filed.

The counsel for the petitioner contended before the high court that the orders for grant or continuation of recognition or withdrawal of recognition could have only been made by the “Government” which means the Central Government as per Rule 2(a) of CCS (RSA) Rules, 1993.

The decision for “non continuation of recognition” could not have been taken by DG, CPWD in terms of OM No.18/3/2018 dated January 09, 2019 as the Competent Authority remains the Central Government in terms of definition of “Government” as per Rule 2(a) of CCS (RSA) Rules, 1993, the counsel submitted further.

Considering the contention of the petitioner, the bench noted that a mere reading of the OM reflects that it was issued only with the approval of DG, CPWD and “not with approval of the Central Government”. 

"In view of above, the OM dated January 09, 2019 referred to above, treating the petitioner Association as unrecognized Service Association, without obtaining the approval of the Competent Authority i.e. Central Government, is liable to be set aside to aforesaid extent," said the court.

Addressing the claim of petitioners that the Association was entitled to continuation of recognition in accordance with CCS (RSA) Rules but the same has been intentionally delayed by the respondents, the court said "the rights and privileges of the petitioner Association and office bearers could not be left in limbo” pending the request for continuation of recognition.

It needs to be appreciated that the steps were taken on behalf of the petitioner Association for continuation of recognition vide various communications though after a delay of about one year and eight months, the bench observed.

"The recognition finally appears to have been granted to the petitioner Association in 2021 for a period of five years from the date of issue of the letter but the decision for the period 2009 to 2021 still needs to be reconsidered by the Competent Authority in accordance with law, in view of setting aside of OM dated January 09, 2019 to aforesaid extent. We accordingly deem it appropriate to direct the Competent Authority/respondents to take an appropriate decision in respect of the continuation of recognition in respect of petitioner Association from 2009 till 2021, in accordance with law," it added.

In view of the above, the court set aside the findings of the Tribunal, whereby the prayer to quash the office memorandum dated January 09, 2019, in relation to the petitioner Association, was declined.

While disposing of the plea, the court directed that “the issue regarding the continuation of recognition of petitioner Association for the period 2009-2021 is remanded to the Competent Authority for consideration in accordance with law.”

Case Title: Central PWD Engineers Assoc. & Anr. V. UOI & Ors.

Citation: 2023 LiveLaw (Del) 445

Sr. Advocate C. Mohan Rao with Advocate Lokesh Kumar Sharma for petitioners

Advocates Ruchir Mishra, Mukesh Kr. Tiwari,Reba Jena Mishra and Poonam Mishra for appeared for UOI.

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