Central Administrative Tribunal - Delhi
Arun Kampani vs Union Of India on 26 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1292/2010 New Delhi this the 26th day of October, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Arun Kampani, DCP, Delhi Police, S/o late Shri K.D. Kampani, R/o flat No. A-2, Type V, DCP South Complex, Hauz Khas, New Delhi-110016 Applicant (By Advocate Shri Anil Mittal) VERSUS Union of India, Ministry of Home Affairs, North Block, New Delhi-110001 Through its Secretary Respondent (By Advocate Shri R.V. Sinha) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
The grievance of the Applicant, an officer of Delhi, Andman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Police Service (DANIPS), is that in spite of being in the Select List of 2007 for promotion to the UT Segment of the joint AGMU Cadre of IPS, he has not been appointed to the IPS on the ground that he furnished the requisite certificates after the expiry of the period of validity of the Select List of 2007. The order dated 30.04.2009, conveying the rejection of his representation for appointment to the IPS (Annex A-1) has been challenged in this OA. The following reliefs have been sought:
(i) Quash letter dt.29-4-2009 (Annexure-A. 1);
(ii) direct the respondent to appoint the applicant to IPS from the select list of the year 2007 from the day his immediate junior was appointed/promoted;
(iii) direct the respondent that keeping in view the medical condition/ history of the applicant, opinion of DG (Health) and availability of his treatment at AIIMS, Delhi only, the applicant be posted at Delhi only after his induction in IPS till such time his medical treatment is continuing at AIIMS, Delhi.
2. The Applicant is an officer of DANIPS and joined Delhi Police as Assistant Commissioner of Police (ACP) on 16.06.1985. The Applicant was promoted in due course and is at present posted as Deputy Commissioner of Police (DCP) at Delhi. In the year 2005, the Applicant got afflicted by a disease called Ankolosing Spondylitis, which requires constant and expensive treatment, available only in Delhi. The police headquarters exempted the Applicant from strenuous duties by an order dated 11.12.2005, till his medical treatment was over. He also represented to the Respondent- Ministry of Home Affairs (MHA) for not transferring him outside Delhi because of the availability of treatment only in the AIIMS at New Delhi. The representation was accepted by the Respondent by letter dated 3.07.2006, which reads thus:
Sub: Request for posting in Delhi in DANIPS/IPS in view of acute chronic medical problem.
Sir, With reference to your representation dated 7th June 2006 regarding your current medical condition and consequential request for not being considered for posting outside Delhi either in DANIPS or induction into IPS, the same has been duly considered by the Competent Authority. The Competent Authority has taken note of your current medical condition and the fact that treatment for the same is available only in Delhi at present. The concerned medical documents have also been taken on record.
2. Your request for posting in Delhi has been considered favourably at present in light of your medical condition and the fact that treatment for the same is currently available in Delhi only. The Applicant was placed in the Select List of 2007 of the Indian Police Service because of his impressive record of service. He received a communication dated 08.09.2008 from the Respondent asking him to express his unconditional willingness for appointment to IPS in the Select List of 2007 and further asking him to give his consent for termination of his lien in DANIPS after his substantive appointment to IPS. He was also asked to submit the same by 20.10.2008. The Applicant initially declined the offer of appointment to the IPS because of his medical condition. However, a fresh option was asked for later on and the Applicant informed the Respondent that he had reviewed his earlier decision and decided to withdraw his refusal for induction into the IPS. He, however, also stated in paragraph 9 of his communication dated 17.09.2008 to the Joint Secretary (UT) that because of his medical condition he would like to be posted in Delhi till such time as his treatment continued in the AIIMS at Delhi. The Respondent referred the case to the Director General of Health Services (DGHS) about availability of treatment for his medical condition in the constituent States/UTs of the AGMU Cadre. This letter was sent to the DGHS on 03.10.2008. The DGHS gave its reply on 20.10.2008, informing the Respondent that treatment for the disease of the Applicant was available only at the AIIMS in Delhi and was not available in the States or Union Territories of the AGMU cadre. Fourteen days after receiving the response from the DGHS, the Respondent wrote to the Applicant on 03.11.2008 stating as follows:
Subject: Representation of Shri Arun K. Kampani, DANIPS regarding posting in Delhi after induction into IPS (AGMU Cadre) due to health condition.
Sir, I am directed to refer to your representation dated 17th September, 2008 on the subject mentioned above and to say that the transfer/ postings are carried out on the basis of administrative requirements, keeping also in mind the exceptional circumstances at relevant point of time. Accordingly, your health status will be factored in appropriately at the time of transfer and posting. The next day, on 04.11.2008 the Applicant wrote to the Joint Secretary (Police) of the Respondent-MHA stating, inter alia, that his consent given on 17.09.2008 for joining the IPS might be treated as unconditional. On 24.11.2008, another letter was sent by the Under Secretary to the Respondent to the Applicant informing him that he had still not furnished the requisite two certificates giving his unconditional willingness to join the IPS and termination of his lien in the State Police Service on his substantive appointment to the IPS, in the prescribed proforma. The Applicant sent the prescribed proformae to the Respondent on the same day, that is, 04.11.2008. He also mentioned in his letter dated 04.11.2008, referred to above, that as his representation dated 17.09.2008 had been decided on 03.11.2008 by the MHA, the prescribed time limit of 20.10.2008 should not apply in his case. The letter of the Applicant had been sent to the Union Territories Division of the Respondent-MHA. The aforementioned Division sent the representation of the Applicant to the Police Division of the Respondent by note dated 25.11.2008, a copy of which is placed at Annex A-16. The note, inter alia, reads thus:
2. Shri Arun K. Kampani has furnished the requisite certificates in the prescribed formats. He has stated that he had sent a representation to MHA for posting in Delhi due to chronic health condition. The decision on his representation was communicated to him on 3.11.2008. Immediately on receipt of the decision, he sent his unconditional willingness for appointment to IPS on 4.11.2008. He has further stated that the time limit for giving willingness of 20th October, 2008 may not be applicable in his case. He has requested that necessary appointment notification may be issued. It may be necessary at this stage to refer to the Regulation 7 (4) and the third proviso to Regulation 9 (1) of the Indian Police Service (Appointment by Promotion) Regulations, 1955. The Regulations have been extracted below:
Regulation 7 (4) :- The Select List shall remain in force till 31st day of December of the year in which the meeting of the Selection Committee was held with a view to prepare the list under sub-regulation (1) of regulation 5 or upto sixty days from the date of approval of the select list by the Commission under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2) whichever is later:
Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the Select List as unconditional, to the Commission during the period when the select list was in force, (the commission shall decide the matter within a period of forty five days) or before the date of meeting of the next selection committee, whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the Select List as unconditional and final, the appointment of the concerned officer shall be considered by the Central Government under regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the Select List ceased to be in force:
Provided further that in the event of any new Service or Services being formed by enlarging the existing State Police Service or otherwise being approved by the State Government as the State Police Service under Clause (i) of sub-regulation (1) of regulation (2), the Select List in force at the time of such approval shall continue to be in force until a new Select List prepared under regulation 5 in respect of the members of the new State Police Service, is approved under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2).
Provided also that where the select list is prepared for more than one year pursuant to the second proviso to sub-regulation (1) of regulation 5, the select lists shall remain in force till the 31st day of December of the year in which the meeting was held to prepare such lists or upto sixty days from the date of approval of the select lists by the Commission under this regulation, whichever is later. 9. Appointment to Service from the Select List Appointment of a member of the State Police Service, who has expressed his willingness to be appointed to the service, shall be made by the Central Government in the order in which the names of a members of the State Police Service appear in the Select List for the time being in force during the period the Select List remains in force.
Provided that in a Joint Cadre, the appointment of members of the State Police Service shall, subject o any agreement regarding filling up of the vacancies in the Joint Cadre by promotion of a member of the State Police Service serving in connection with the affairs of any such State, be made in the order in which the names of the members of the State Police Service occur in the relevant parts of the Select List for the time being in force.
Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally under the proviso to sub-regulation (5) of regulation 5 or under the proviso to sub-regulation (3) of Regulation 7, as the case may be, shall be made within sixty days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of regulation 7:
Provided also that in case a select list officer has expressed his unwillingness for appointment to the service, he shall have no claim for appointment to the service from that select list unless he informs the Central Government through the State Government before the expiry of the validity period of Select List, revoking his earlier expression of unwillingness for appointment to the service. (emphasis added) The Police Division of the Respondent sought the advice of the Department of Personnel and Training (DOP&T), which observed that the MHA being the nodal Ministry was competent to take a decision in the matter. The matter was further examined by the Police Division of the Respondent. The excerpts from the noting from the files has been obtained by the Applicant under the Right to Information Act, 2005 and placed on record. The note dated 19.12.2008 recorded by the Section Officer, inter alia, has recorded thus:
5. It may be mentioned in this connection that a Select List in accordance with Regulation 7 (4) of IPS (Appointment by promotion) Regulations, 1955 is valid up to the 31st December of the year for which the Select List has been prepared or 60 days from the date of approval of the same by the Commission. The Select List of 2007 was approved by the Commission on 21.08.2008. Therefore, its validity period was up to 20.10.2008. . . .
10. There are two things noteworthy in this connection. The first is that the officer unnecessarily clubbed the matter of his posting with that of his appointment to IPS and delayed his decision in this regard. The next is that the UT Division also did not take adequate steps to decide the mater before 20th October, 2008 so that he could take a decision before the expiry of the validity period. Further, the UT Division also did not tell the officer that while his representation regarding posting was being examined, he could decide the issue of giving unconditional willingness independently before the validity period of the Select List. (emphasis added) The Section Officer and the Director proposed rejection of the claim of the Applicant. The Section Officer again recorded a note on 28.01.2009, in which, inter alia, it was recorded that:
2. It was discussed with J.S. (Police) who had discussed this matter with the Home Secretary. J.S. (Police) told that in this case, HS is of the view that there was an administrative delay on the part of this Ministry while deciding the representation dated 17.9.2008 of Shri Arun K.Kampani for which the officer cannot be punished. The HS is further of the view that in view of this position, provisions of Rule 7 (4) and 3rd proviso below Rule 9 (1) of IPS (Appointment by Promotion) Regulations, 1955 are not applicable in this case. The HS has directed that appointment notification may be issued in respect of Shri Arun K. Kampani.
3. It may be added here that while this file was under submission, this Section received an OM from the UT Division which is placed at pages 245 to 247/cor, intimating that the office of Lt. Governor of Delhi vide its letter dated 18th December, 2007 has conveyed the recommendations of the Lt. Governor for initiating disciplinary proceedings against Shri Arum Kampani, JAG officer of DANIPS and the then DCP (Licensing) and that the matter is under examination. In this regard, attention is invited to the explanation-1 given below Rule 5 (5) of IPS (Appointment by Promotion) Regulations 1955 which provides that the proceedings shall be treated as pending only if a charge sheet has actually been issued to the officer or filed in a Court, as the case may be. It is quite apparent from the OM of the UT Division that so far the charge-sheet has not been served upon the officer. Therefore, this communication will not be a bar in appointment of Shri Arun K. Kampani to IPS. (emphasis added) The Police Division sent the matter to the Union Territories Division. The Under Secretary of the UT Division, however, in a flip-flop recorded the following note:
(ii) It is worth mentioning that the Police Division had itself stated in its letter dated 28.8.2008 ( p.196/c.) that if Shri Arun Kampani does not give requisite certificates of willingness to join IPS etc. by 20.10.2008, he would loose his right for appointment to the IPS from the Select List of 2007. Police Division could/should have taken a follow up action on this. The aforesaid decision of Police Division was communicated to Shri Kampani by UT Division by its letter dated 8.9.2008 ( p.208/c). It is also significant to note that the DOP&T has concurred in this decision of Police Division- the officer cannot be appointed after lapse of Select List. The sanctity of statutory time-lines is important and appointment beyond the expiry of the Select List may set a bad precedent. It may also be added that a permanent decision not to transfer an officer may not be feasible because some of the outlying segments of AGMU Cadre, namely, Chandigarh and Puducherry do have fairly good medical facilities and the situation in respect of the illness and medical facilities is subject to change over a period of time. However, decision on transfer and postings is always taken keeping in mind the situation obtaining at relevant point of time. The matter went back to the Police Division, which changed its views in the following manner:
3. Shri Kampani initially did not furnish his unconditional willingness for appointment and was not appointed to IPS along with the officers selected in the List. However, while effecting the appointments from Select List of 2006 and 2007, the Police Division requested UT Division to intimate the officer to furnish the requisite 02 certificates regarding his willingness to be appointed in the Indian Police Service within the validity period of Select List of 2007 which was for 60 days w.e.f. 21.8.2008 to 20.10.2008. The officer responded vide his representation dated 17.9.2008 apprising about his ailment and requesting that he may be posted after induction in Delhi as the treatment for the disease was available only in AIIMS, Delhi. The representation was disposed of by UT Division vide their letter dated 3.11.2008 on the grounds that a view on posting can be taken at the relevant point of time and Shri Kampani on 4.11.2008 gave his unconditional willingness for appointment to IPS. However, by then the validity period of the Select List had expired.
4. It may be seen from above that while the officer had represented for his posting only in Delhi. He was neither intimated regarding conveying the unconditional willingness irrespective of decision of UT decision on his representation nor was his representation decided within the validity period of the Select List. Under these circumstances, a view was taken that the individual cannot be solely held responsible for this delay and it was decided to take a liberal view in the case. However before finalization, the file was once again forwarded to UT Division. The UT Division intimated that Lieutenant General, Delhi had recommended for initiating disciplinary proceedings against Shri Kampani for some matter during his tenure as DCP (Licensing) but the charge sheet has still not been issued against the officer. They further conveyed that the Police Division had earlier stated that the officer would lose the right for appointment in case he does not furnish his willingness within the validity period and the DoP&T have also concurred to their view; the sanctity of statutory timeline is important, appointment beyond expiry may set a bad precedent and a decision regarding permanent posting may not feasible. The Union Home Secretary also changed his mind as seen from the record of discussion recorded on the file by the Section Officer. Meanwhile, the departmental proceedings against the Applicant were dropped by order dated 30.03.2009, Annex A-23.
3. The learned counsel for the Applicant argued vehemently that it would be crystal clear from the facts of the case that there had been administrative delay because of which the validity period, which was up to 20.10.2008, expired. The Applicant has acted with great expedition, whenever any information had been asked for from him. The administrative department acted with considerable lethargy, which has also been noted by the Home Secretary, as would be seen from the excerpts of the notes quoted above. The Applicant had been led all through to believe that his request had been acceded to. The rejection came as a bolt from the blue. Legitimate expectation had been aroused by the conduct of the Respondent and the rejection of his claim was thus totally arbitrary and whimsical.
4. The learned counsel for the Respondent, on the other hand, stated that three conditions had to be fulfilled before the expiry of the period of validity, which are mentioned in paragraph 5.4 of the counter affidavit. The condition mentioned in the said paragraph has been reproduced below:
(i) That the officer agrees termination of his lien in the State Police Service under Fundamental Rule 14 (a) (2).
That the officer does not have more than one spouse living.
(iii) That the officer offers his/her unconditional willingness for his/her appointment to Indian Police Service by promotion in pursuance with Regulation 9 (1) of the Indian Police Service (Appointment by Promotion) Regulations, 1955. The Applicant failed to comply with these conditions within the prescribed period up to 20.10.2008. He would further contend that the Applicant's revocation of his earlier refusal and acceptance of induction to the IPS by letter dated 17.09.2008, already referred to above, was not unconditional. The learned counsel argued that in these circumstances the Respondent was fully justified in rejecting the Applicant's representation for induction in the IPS.
5. We have considered the arguments of both the parties and have perused the record placed before us.
6. The three conditions mentioned by the learned counsel for the Respondent, as quoted above, are not mandated by any rule. There was no satisfactory reply to our queries in this regard. Similarly, even though the revocation of further refusal by the Applicant was not unconditional, as argued on behalf of the Respondent, it was nevertheless accepted by the Respondent. The letter was dated 17.09.2008 and the Respondent should have told the Applicant at that time itself that he had to give an unconditional acceptance. The period of validity was still a month away. However, the Respondent made a reference to the DGHS after 14 days of receipt of the above letter. They made no effort to get an expeditious reply from the Director General of Health Services, which was received only on 20.10.2008, when the period of validity was supposed to expire. The hope was kept alive for the Applicant by subsequent correspondence. The Home Secretary also accepted the fact that there had been administrative delay and in such circumstances the Applicant could not be denied promotion to the IPS. The subsequent volte face cannot be accepted. Although, the noting on the file do not give any cause of action to the Applicant, yet it clearly illustrates that the change in the stand taken by the Respondent was not logical, whereas the earlier decision was based on logic that the Applicant could not be made to suffer for the administrative delay.
7. Since the action of the Respondent in rejecting the claim of the Applicant by the impugned order is arbitrary and in violation of the principles of natural justice, we quash and set aside the impugned order. We direct the Respondent to appoint the Applicant to the IPS on the basis of the Select List of the year 2007. These directions would be complied with within a period of three months from the receipt of a certified copy of this order. No costs ( L.K.Joshi ) ( V.K. Bali) Vice Chairman (A) Chairman /dkm/ `