Central Administrative Tribunal - Kolkata
Belal Ahmad vs Central Bureau Of Investigation on 21 March, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
No. O.4.350/83/2022 Date oforder: Qf: 3, Ree:
Coram :Hon'bleMrs.Bidisha Banerjee, Judicial Member
Hon'ble Dr. NanditaChatterjee, Administrative Member
Belal Ahmad, Son of Md. Nehaluddin, --
aged about 35 yrs., working as Constable,
CB... under Superintendent of Police{HOB},
Central Bureau of Investigation, Economic
Offence Wing, Kolkata, at present residing
at Vill. Sarishapahari, Taldanga, P.O.Chirkunda,
Dist. Dhanbad, Pin-828202
ceepeoaenenenty es Applicants
~ YERSUS-
1. Union of India through the Secretary,
Department of Personnel & Training,
Govt. of india, North Block,
New Dethi- 110 001;
2. The Director,Central Bureau of Investigation,
Govt. of India, Plot No.5,CBI, Head Quarters,
7 cloor, CGO Complex, Lodhi Read,
New Delhi-110003;
3, Joint Director & HOZ,
Kaikata Zone, Central Bureasu of Investigation,
15 Floor, 2" M,S.0. Building, Nizam Palace,
234/4, AJC. Bose Road, Kolkata-700 020;
4, The Superintendent of Police & HOB,
Central Bureau of Investigation,
Economic Offences Branch, Kolkata,
CGO Complex, DF Block, "C' Wing,
Sector1, Salt Lake, Kolkata~700064;
5. The Director General,
Central Reserve Police Farce,
CGO Complex, Lodhi Raad,
~ New Delhi-110003.
Jomonnc RESpoNndents
sot aoe
WMS peer eRe wre bgtetlt toa wwe open ineatnunanneuatansnterentne:
2
for the applicant - Mr. C. Sinha, counsel!
Far the respondents + Mr, 5. Paul, counsel
ORDER
Ridisha Banerjee, judicial Member The applicants have preferred this OLA. under Section 19 of the Administrative Tribunals Act, 1985 to seek the following reliefs "g) To set aside ant quash impugned Office Order No.08/22 dated 06 .OL2023) bh) To direct the respondents to reconsider the case af the applicant for continuance in the C.B.L under deputation and allow fim to continue under deputation in the CB. as Constable;
¢) Any other order or orders as the Hon'ble Tribunal deears fit and proper."
2. Brief facts of this case are that, the applicant was appointed as Constable in the CRPF on 14.01.2005 and subsequently selected for deputation with Bureau of Investigation vide order dated 14.12.2017 for a period of 5 years and joined C.B.1, EQW, Kolkata on 29.01.2018, Grievance of the applicant is that he was prematurely repatriated to his parent department {.e. CRPF an 06.01.2022 without any show cause notice or a chance of hearing, beyond the terms and canditions of the deputation. Being aggrieved he preferred a representation to the Superintendent of Police/HOB, Central Bureau of tnvestigation, Economic Offences Branch (Respondent No.4) but his case has not yet been considered. Finding no other alternative, he has approached this Tribunal seeking the aforesaid reliefs.
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3. The applicant would assert that it was also held in the said order dated 14.12.2017 that while on deputation with the CBI, applicant _ would be governed by the standard terms of deputation as contained in DoPT's O.M dated 17.06.2010 as amended from time to time. That, accordingly on being released applicant reported in the Head Office of CBI on 29.01.2018 as it appears from letter dated 02.02.2018 and thereafter vide Office Order No.35/2018 dated 12.02.2018, applicant joined CBI, Economic Offences Wing, Kolkata on 05.02.2018 and his deputation tenure for 5 years is schedule to expire on 28.01.2025. That, while in deputation, agplicant discharged his duties with utmost honesty, sincerity and devotion and followed the orders of the superior autharities, There was ne complaint fram any quarters with regard to applicant's performance and honesty and applicant was graded outstanding In the confidential report for the period ending 01.01.2020 to 32,12,2020 . Applicant was also given cash award of as.750/. for valuable assistance to the Law Officers vide order dated 03.01.2022. That the applicant was prematurely repatriated to his parent. department, CRPF in the afternoon of 06.01.2022 vide Office Order Nos.08/2022 dated 06.01.2022.
4, The Learned Counsel would argue that the legality, validity and propriety of office order dated 06.01.2022 is assailed on the following grounds ° {a} The respondents have flagrantly violated the terms and conditions of deputation as per DoP&T's O.M. dated 17.06.2010; That, Para 9 of G.M. dated 17.06.2010 reads as under:-
« when @ situation arises for premature reversion to the parent cadre af the deputatianist, his services should be sa returned after giving an advance notice of at least three months fo the fending ministyydepariment and the employee cancerned."
That, the above said notion has been supported by the CAT, Principal Bench in order dated 08.11.2017 passed in O.A.2766 of 2017, Further, Hon'ble Supreme Court in the case of Union of India through Government of Pandicherry & Another Vs. Ramkrishnan & Others, 2005 SCC(L&5) 1150 at Para 32 held as under:
"32. Ordinarily, a deputationist has ne legal righ? to continue in the post. A deputationist indisputably hes no right to be absarbed in the post to which _ he is deputed. However, there is no bur thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed. na recruitment in its true import aad significance takes place as he is continued te be a member of the parent service, When the tenure of deputation is apecified, despite a deputationist nat having an indefeasibie right to held the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, far exaniple, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an arder of reversion can be questioned when te same is mada fide. An action teken in a post haste manner also indicates malice. {Bahadursingh Lakbubhal Gohil Vs, Jagdishbhai M. kamalia and Others, (2004) 2.5CC 65."
ib} so Ld. Counsel would strenuously urge that repatriation is not @ simplicitor as aspersion and stigma has been cast upon the applicant by the authorities concerned in a secret manner by placing a sealed envelape before this Tribunal without revealing the same in the order of repatriation which clearly indicates the malafide intention of the respondent authorities in affecting the repatriation. {c} That, though the reason of premature repatriation has been cancealed by the respondents in order dated 06.01.2022 but the said order is perceptively stigmetic in nature as when an officer Js repatriated prematurely without cornpleting his specified deputation period, his conduct and capability gets shrouded with suspicion which is ilegal and-bad In law.
(d) Ld. Counsel would further argue that the specified period of deputation cannot be curtailed without giving a reasonable opportunity Sit of being heard and the deputationist's position cannot be considered to be so tentative and vulnerable so as to throw him out at the whims and fancies of a particular person.
ie) That, the Recruitment Rules of 4" July, 2013 for the past of Constable (General duty) reveals that deputation shall ordinarily not exceed 7 years subject fo streening for assessing fitness and suitability for continuation of deputation and if a person is unsuitable in the said screening, midway the deputation then deputationist shall be reverted to his parent cadre immediately without any notice. (f} That, the respondent has not brought out a specific case in terms of Office Order No.08/2022 dated 06.01.2022, That, the applicant has been dedclared unsuitable in the screening aE, ) midway of the deputation of the applicant on assessing fitness and suitability for cantinuance of the deputation and hence, repatriated without any notice, ip) That, in Parshotam Lal Dhingra, 1958 SCR 828 and AIR 1958 SC 36, it is categorically stated that when an appointment is made for a specified period, unless any Disciplinary Proceedings js initiated, a person will be entitled to hald the said post.
(h) That the contention of the respondents with regard to holding of a screening test thereby declaring the applicant unfit to the past of Constable and the allegation of holding a Fact Finding Inquiry as depicted in the reply and the Written Argument is not supported by a single scrap of paper and cannot be taken cognizance of under the . service jurisprudence,
5. Per contra, the respondents would aver that the orga nisation like CBI to screen for the assessment of fitness and suitability for continuation on deputation of a deputationist like this applicant anc came to a canclusion on the basis of relevant record and materials that he is unsuitable and the applicant was prematurely repatriated to his parent organisation te. DIG Range, CRPF, Durgapur after availing usual admissible joining ume.
That, there is an Office Memorandum dated 17.06.2010 issued by DOP&T which says about the guideline for transfer on deputation which the applicant has relied upon wherein vide paragraph 9 of the said O.M. under the heading of "premature reversion of deputationist to Parent Cadre" it is clear that normally, when an employee is appointed on deputation, his services are placed at the disposal af the parent Ministry/department at the end of tenure. However, as and when a situation arises for premature reversion to the parent cadre of the deputationist, his services could be so returned after giving an advance notice of at least three months to the lending Ministry/department and the employees concerned, That, the Note-2 has been incorporated subsequently in the GSR 467 {E) dated 04.07.2013 wherein it has been made clear that the period of deputation including period of deputation in another ex-cadre post held immediately preceding this appaintment in same or some other organisation shall ordinarily not exceed seven years subject to screening midway for assessing fitness and suitability for continuation on deputation and if a person is found unsuitable for continuation on deputation for whatsoever reason, he shaft be reverted to the parent, cadre Immediately without any notice, which js the incorporation made in the GSR 467(E} dated 04.07.2013 is the latest guideline which even was applicable at the time of his deputation ta CBI from CRPF, That, Rule framed by the Ministry In exercise of the power conferred by the provise to Article 309 of the Constitution of india and in supersession of the Central Bureau of investigation {C.B.L) and specifically in the year 2013 then the O.M. may not have any statutory force and Rule starts to act, in this case also the O.M, dated 17.06.2010 "issued by DOP&T has no force after the Rules framed by the competent Ministry in exercise of the power conferred by the proviso to Article p 309 of the Constitution of India and the applicant has resorted an O.M. which has no force at all.
6, id. Counsel for the respondents would refer to the following judgments in support.
{i} In the case of B.S, Vadera v. Union of india, 1969 AIR 1128/1968 $cR{(3) 575, the Supreme Court in para 34 of its judgment has clarified the nature, extent and scope of rule-making power to be exercised under the proviso to Article 309 in the following words:
"4 ig alsa significant to note that the proviso ta Article 309 clearly lays down that 'any rules 30 made sholl have effect, subject te the provisions of any such Ack. The clear and unambiguous expressions, used in the Consthution, must be given their full and unrestricted meaning unless hedged-in by any limitations, The rules, which have to be 'subject to the provisions of the Constitution', shall have effect, subject te the provisians of any such Act' That is, ifthe appropriate Legislature has passed an Act, under Article 309, ihe rules, framed under the Proviso, will have effect, subject to that Act; but in the absence of any Act. of the apprepriate Legisioture, on the matter, in our opinion, the rules, mode by the President. or by such person as he may direct, are to have full effect, both prospectively and retrospectively, Apart from the fimitations, pointed out above, there is none other, imposed by the proviso te Article 308, regarding the ambit af the operation of such rules."
{i} Hon'ble Supreme Court in one of its latest decisions In the case of Roi Kumar v. Union of India_presided over by Justice A. Alagiriswami decided on 19.03.1975 observed as under:
"there is no doubt that this rule is a valid rule because it 1s pow well established that rules made under the proviso to Article 309 of fhe Constitution are legislative in cheracter and therefore can be given_effect to retrospectively. "These two decisions clearly bring out the legislative character of rules which either the President or the Governer as the cose may be has been empowered te frame under the proviso te Article 369 and the latter case also makes it clear that even such a rule so framed under the proviso to Article 309 could be given retrospective effect; in other words, ihe rule making power conferred upon. the President or the Governor as the cases may be under Article 209 partakes of the nature of plenary legisiotive power conferred upon the outhority concerned."
id. Counsel for the respondents would submit that the applicant has relied upon the O.M.No.6/8/2009-Estt.{Pay-iii} dated 17.06.2010 and tenure of O.M, says about 8 of | this paragraph/clause deputation/foreign service wherein vide Sub Paragraph No.8.1 says that «the period of denutatian/foreign service shall be as per the Recrultrnent Rules of the ex cadre post or 3 years in case no tenure regulation exists for the ex cadre post."
That, it is very clear that the recruitment rule had a specific role to play for the determination of the tenure of deputation. But the GSR 467 ( E)
- dated 04.07.2013, has come with effect from 2013 which has a clear mandate regarding the power of midway screening for assessing the suitability for continuation on deputation even on screening if is found that the person is found unsuitable for cantinuation on deputation for what so ever reason, he shall be reverted then it is clear that at the os ol tragts EN we time of sending him on deputation it was the guideline/rule framed upon the strength of the Article 309 of the Constitution that he may be reverted back at any time for any reason what so ever and when he has been reverted back this rules is also applicable, hence the O.M. dated 17.06.2010 upon which the applicant is applying it's force has no statutory force at all.
That, Central Administrative Tribunal, Principal Bench vide O.A.No.2806 _of 2009 Shri Sailesh Singh vs. Union of india & Others dated val March, 2010 has been pleased to hold that as per deputation policy the applicant would have an indefeasible right to hold to the said post for such period as mentidned therein, and same could not be curtailed except on grounds such as unsuitability or unsatisfactory performance. That, the applicant has not brought any case of personal malafide against him, the only ground of malafide is that he was ordered to be relieved on the same day when the order of repatriation was issued and it can not be termed as malice in Law. By no fits of imagination the repatriation order and the relieve orders can be termed as malatide, even there is no question of stigma being attached with the impugned notice of repatriation to the parent department and also could not also be termed as punitive in nature, That, in Sant Ram Sharma vs. State of Rafasthan 1967, it has been observed that it is true that Government can not amend or supersede ae ee PUN oe 2 ) the statutory rules by administrative instruction, but if the rules are feynee D KS Zz ra iy, (2 Nes <= silent on any particular point, the Government can fill up the gap and supplement the rules and issues not inconsistent with the rules already framed, That, it is settled law that executive Instruction can not amend or supersede the statutory rules or add something. The orders can not be issued in contravention of the statutory rules for the reasons that an administrative instruction is not a statutory rule nor does it have any force of Law, while statutory rules have full force of Law as held by Constitution Bench of Supreme Court in State of U.P. vs. Banu Ram Upadhya 1960.
7. -- We have considered the rival contentions and perused the records, s Waeaattnmnncennnnen ntnentitnesnereredeteedeaeeecseearsensteedessessnsegiuyovevees :
a =
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a 10 g "Service rules" does not necessarily mean rules framed in exercise of powers under the proviso to Article 309 but include an order in absence of such rules, [{2001) 1 SCC 637], Provise to Article 309 js In the nature of legislative power derived directly from the Constitution and not from any mardate of Legislature. Rule framed under the proviso cannot be questioned on the pround of malice. Such rules prevailing over executive instructions (AIR 1990 SC 166). Such rules farmed under proviso to Article 309 cannot be modified by executive orders {AIR 1981 SC 1990) and cannot be over ridden, {AIR 19795 $C 1676) because of their superior juristic character they cannot be altered aye SMD? by executive instruction (AIR 1972 SC 1546). Such rules are however, oe subject to legislative act, once such acts cover the field already occupied by rules (AIR 1969 SC 118). It is also settled law that special rules framed under statute governing the particular service will prevail ever the general rule governing the Government servant in general, although the general rule may be framed under Article 309 of the Constitution, in the present case the applicant has sought for benefit of DoPT OM which can be called as executive instruction, to shield him from the wrath of provisions contained In the recruitment rules and the provisions in GSR 467(E) dated 04.07,2013 framed under Article 309.
§, 'The Hon'ble Apex Court in A.B.kKrishna & Ors, Vs State of Karnataka & Ors. (1998) 3 §CC 495 held as under :
"Under the scheme of Article 309 of the Constitution, once a Legislature intervenes to enact a law regulating the conditions of service, the power of Executive, including the President or the
--
S \ SRS <-- ee caw il Governor, as the case may be, Is totally displaced.on the principle. or "Doctrine of Occupied Field". Hf, however, any matter is not touched by that enactment, & will be competent for the Executive to either issue executive instructions or ta make 3 Rule under Article 309 In respect af that matter."
Applying the same analogy to the present facts circumstances we would observe that the rules framed by the Ministry in exercise of power conferred by the proviso to Article 309 of the Constitution of india, namely the Recruitment Rules of 04.07.2013 for the post of Constable General 'Duty exemplifies that deputation can be extanded upte 7 years subject to screening and assessing fitness and suitability in continuing deputation and if a person is found unsuitable in the said screening the deputationist egestas, can be reverted to his parent cadre immediately without any notice. The 3 aN .
0 COMM rg gs :
Rule is in the domain of occupied field in terms of which the present applicant has been judged unsuitable in screening and has been repatriated without notice in conformity with its provisions. Since Rules already fall under the occupied field, the HOPST OM dated 17.06.2010 will "have no manner of application when the provisions of recruitment rules become applicable, as in the present case. ft is primarily the Legislature, namely, the Parliament or the State Legislative Assembly, in whom power to make law regulating the recruitment and conditions of service of persons appainted to public services and posts, in cannection with the affairs of the Union or the State, is vested. The Proviso, hawever, gives power to the President or the Governor to make Service Rules but this is only a transitional provision as the power under the Provisa can be exercised only so long as the Legislature does not make an Act whereby recruitment to public posts 4 also other conditions of service Sisake relating to that post are laid down. As a matter of fact, under the scheme of Article 309 of the Constitution, once a Legislature intervenes to enact a law regulating the conditions of service, the power of ~ Executive, including the President or the Governor, as the case may pe, is totally displaced on the principle or "Dactrine of Occupied Fleld". if, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of that matter.
in Chondre Prakash Tiwari vs. Shokuntala Shukla (2002) 6 SCC 427, the Hon'ble Supreme Court held "when there is a special law unless there is special repeal on the existing law question of implied repeal would not arise." Thus recruitment rules being already in force, the DoPT OM would not have the effect of impliedly repealing the provisions of the rules. Therefore, we are not tempted to hold that the applicant is entitled to reap benefit in terms of the DoPT OM. The action of the respondents in adjudging his fitness in terms af the prevailing rules and holding him unfit cannot be faulted,
16. O.Ais accordingly dismissed. No costs.
44. . We would therefore permit the applicant to join his parent post within seven days and to get the absence from the day of reversion tH joining, regularised against leave due.
oo me (Dr.NanditaChatterjee} iBidisha Banerjee) Administrative Member Judicial Member DE