Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice Syed Rafat Alam vs Indian Council For Cultural Relations on 13 December, 2013
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.3810/2013
Reserved on: 19/11/2013
Pronounced on: 13/12/2013
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Zahur H. Zaidi
Counsellor & Director JNICC
Embassy of India
Jalan Pandeglang No.44,
Menteng, Jakarta, 10310
Indonesia. Applicant
(By Advocate: Sh. P.P. Khurana, Senior Advocate with
Sh. Milan Kumar)
Versus
1. Indian Council for Cultural Relations
Azad Bhavan, Indraprastha Estate,
New Delhi 110 002.
2. Union of India,
Ministry of External Affairs,
South Block, New Delhi.
3. Union of India,
Department of Personnel & Training,
Government of India, North Block,
New Delhi.
4. Union of India,
` Ministry of Home Affairs,
North Block, New Delhi. Respondents
(By Advocate: Sh. Devesh Singh for R-1
Sh. M.K. Bhardweaj for R-2 to R-4)
O R D E R
By Honble Dr. B.K. Sinha, Member (A):
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 impugning the Office Order dated 31.5.2013 informing the applicant that the Competent Authority has decided to relieve him from his post with effect from November 15, 2013 and the fax message dated 23.8.2013 intimating the decision of the competent authority to relieve him w.e.f. 15.11.2013.
2. The applicant has prayed for the following relief(s), vide the instant OA:-
(a) issue appropriate orders/directions to the Respondent No.1 quashing the letter dated 31.05.2013 whereby the tenure period of the applicant was decreased from a period of 3 years to 15th November 2013.
(b) issue appropriate orders/directions to the Respondent No.1 by quashing the relieving letter dated 23.08.2013 whereby the applicant has been directed to be relieved w.e.f 15.11.2013.
(c) Pass an order/direction to Respondent No.1 to respond to the request for extension of tenure made on 16.8.2013 through the Ambassador of India in Jakarta by the Applicant which was forwarded to the Respondent No.1 on 20.08.2013;
(d) pass an order/direction extending the period of foreign deputation of the Applicant until 17.8.2014 as mandated vide appointment letter dated 04.04.2011 or in the alternative at least up to 07.06.2014 academic session ends on 06.06.2014;
(e) Such other orders as this Honble Tribunal deems fit be made in favour of the Applicant and against the Respondent.
3. The facts of the case, in brief, are that the applicant is a highly decorated and much acclaimed Indian Police Service (IPS) officer of 1994 batch allocated to the Himachal Pradesh cadre. He appears to have a path breaking achievements in drub and human trafficking, public-Police e-relationship, and was awarded the Presidents Police Metal for Meritorious Services (2010) and UN Medal while serving as Commander in the UN Peace Keeping Mission in Kosovo (2005-6). The applicant also claims that he turned the Lucknow Regional Passport Office around from being the worst to the best for which the India Today Magazine carried an article on him. The above facts have not been controverted by the respondents. It is the case of the applicant that the Indian Institute of Management, Ahmedabad included his success story in its curricula. The applicant has authored Cop at Large and writes regularly for the Hindustan Times and Tribune. After having served as the Regional Passport Officer at Lucknow the applicant joined the Union Minister of State for Railways as his Private Secretary (Oct 2009 to January 2011) and later with the same Minister in the Ministry of External Affairs till July 2011. Subsequently, the applicant was appointed as the Director of Jawahr Lal Nehru Indian Cultural Centre in the rank of Counsellor in the Indian Embassy at Jakarta (Indonesia) vide the order dated 4.4.2011 issued under the signature of one Anwar Haleem, Deputy Director General (I) of the respondent organisation. This order of appointment stipulated that the deputation was for a period of three years commencing from the date the applicant joined duties at Councils Headquarters, New Delhi and was to end on completion of the Councils assignment.
4. The applicant accepted the conditions of the appointment order vide his communication dated 10.05.2011 and his appointment was accepted by the Appointments Committee of the Cabinet (ACC) vide its memorandum dated 17.08.2011 which, inter alia, provided that (i) Appointment of Shri Zahur Haider Zaidi, IPS (HP:94) as Director in the Jawaharlal Nehru Indian Cultural Centre (JNICC), Embassy of India, Jakarta under the Ministry of External Affairs for the balance period of his Central deputation i.e. up to 15.11.2013 with effect from the date of assumption of charge of the post or until further orders, whichever event occurs the earliest. The applicant was relieved on 18.08.2011 by the respondent no.2 with stipulation as per approval conveyed by ACC (reference DoPTs OM No.25/4/2009-EO(MM-I) dated 17th August, 2011), the tenure of deputation of Shri Zahur Haider Zaidi to JNICC will be for the balance period of his Central deputation i.e. up to 15-11-2013 with effect from the date of assumption of charge of the post or until further orders, whichever event occurs the earliest. The applicant took up his present assignment on 18.08.2011. However, on 31.05.2013, the impugned communication was issued vide which the tenure of three years granted under the terms of appointment letter dated 04.04.2011 was amended to the extent that the deputation period will be for the balance period of 7 years and combined deputation of the applicant shall be upto 15.11.2013. The applicant made a representation through his immediate reporting authority, the Ambassador of India at Jakarta for extension of his tenure on the ground that education of his children stood to be affected by this order as 15.11.2013 would represent the mid-point of the educational calendar. The applicants children are admittedly studying in Jakarta International School and their academic session is scheduled to end w.e.f. 06.06.2014. The applicant has referred to the Notification dated 16.03.2010 wherein a provision has been made which would entitle him to grant of an extended tenure co-terminus to the date of academic closure that being 07.06.2014. The applicant has also submitted a copy of the Certificate issued by the Jakarta International School to this effect. The Indian Ambassador to Indonesia strongly recommended the case of the applicant for extension to respondent no.1 praising him for his efficient management of the Centre and his ideas for improving the cultural outreach activities through new programmes. He has also termed him as an Asset to this Mission. In response to this communication, the respondent no.1 directed the Indian Embassy to relieve the applicant on 15.11.2013 with a further directive that no payment for accommodation, children education allowances etc. is to be made beyond 15.11.2013.
5. The learned counsel for the applicant has further submitted that a cadre clearance has been received from the Government of Himachal Pradesh for extension of his tenure upto 07.06.2014, vide communications dated 06.11.2013 and 24.10.2013. The learned counsel for the applicant has also invited the attention of this Tribunal towards the DOP&T OM dated 17.10.2013 whereby an officer working on a Central Staffing Scheme (CSS) post is allowed additional tenure of two years on his shift to a non-central staffing scheme post and vice-versa subject to cadre clearance and further subject to minimum limit of 7 years outside the cadre at a stretch. The OM further provides that while allowing the shift, the tenure of the applicant is specified/fixed and desired that a proposal for premature repatriation and extension in tenure beyond the approved tenure in respect of officers who have shifted from CSS post to the Non-CSS post, should be referred to the DOP&T for approval of the competent authority. In response to this letter, the respondent no.1 replied vide communication dated 02.09.2013 as under:-
As per rules, DOPT has given clearance for Shri Zahur Zaidi to work on deputation upto 15.11.2013. In terms of extent rules, could extends beyond 7 years. In view of which, ICCR is in the process of suitable replacement. This is for your information in concurrence granted by you. The DOP&T further enclosed a copy of the e-mail from the Indian Ambassador for extension of the tenure of the applicant to the Foreign Secretary and desired that the proposal be examined. In the case of MEA supported the proposal of extension, a formal proposal with the approval of the External Affairs Minister and cadre clearance from the Ministry of Home Affairs as well as the Government of Himachal Pradesh could be submitted to the same. In the meantime, the requisite cadre clearance for extension has been received from the Ministry of Home Affairs, vide its communication dated 06.11.2013.
6. The applicant has adopted the following grounds in support of his application:-
That his representation for extension is yet to be decided by the competent authority. While the letter of appointment had been issued with the approval of the Minister for External Affairs, the order of rejection has not been made with his concurrence. As a borrowing department, it is the Ministry of External Affairs which alone is competent to take a decision on his representation.
The action of the respondents in reducing the period of deputation from 3 years by 7 months expiring on 16.08.2014 to 15.11.2013 has been done without having issued a prior notice to him and is, therefore, violative of laws of natural justice.
The action of the respondents is also violative of Article 16 of the Constitution of India as persons similarly situated were granted extension while the same has been denied in the case of the applicant. The applicant has cited the example of one Gowrishankar, Under Secretary who was recommended an extension of one year vide letter dated 20.08.2013 and it has been pursued by the respondent no.1 with great vigor sparing no pains. The applicant has further relied upon the case of M.K. Singh, his immediate predecessor, who was also an IPS Officer like him and was granted the extended period of 7 years, 4 months and 10 days on central deputation.
The applicant has principally relied upon the OM dated 16.03.2010 which provides for extension of tenure in such cases for the officers posted on foreign assignment on ground of children being in mid of the academic session. This circular, inter alia, provides that the tenure should be linked to the end of the academic session i.e. the date of completion of annual examination of the children and should be intimated to the officers going on foreign deputation that at the time of their departure, their tenure will be adjusted coincide with the event. Where such adjustment is required depending upon the commencement of the posting and timing of the examination, a proposal for approval of the competent authority should be submitted to the DOP&T at least two months prior to completion of the approved tenure or the date of completion of the proposed tenure, whichever is earlier. The learned counsel for the applicant has argued that the case of the applicant is well covered under this OM and no objection certificate from the parent cadre and the cadre controlling authority has been obtained. There is also a strong recommendation from the Indian Ambassador to back up the issue.
The applicant has further argued that it is actually a case that if his children are returned at this point of time of the academic session, they will not get admitted to any institution and will be losing one year of their academic career.
The learned counsel for the applicant submitted that the respondent nos. 2, 3 and 4 were required to file their separate affidavits, which has been omitted in the instant case. He has drawn the attention of the Tribunal towards the provisions of Rule 81 of the Central Administrative Tribunal Rules of Practice, 1993 which prescribes the form and contents of the affidavit. The affidavit sworn on behalf of respondent no.1 does not even mention that it is being filed on behalf of other respondents as well. When this issue was raised by the learned counsel for the applicant during the course of the arguments, the learned counsel for the respondent nos. 2 to 4 have produced letters from their respective departments reciting therein that their primary defence will be undertaken by the respondent no.1. Under Rule 12 of the Central Administrative Tribunal (Procedure) Rules, 1987, it is mandatory upon each respondent intending to contest the application, to file a reply to the application wherein the respondent shall specifically admit, deny or explain the facts stated by the applicant in his application and may also refer such additional facts as being necessary for the just decision in the case. The said affidavit shall be signed and verified as a written statement as provided for in Order VI, Rule 15 of the Code of Civil Procedure, 1908. In view of the omission on the part of the respondent nos. 2 to 4 to file the reply affidavit, the Tribunal is bound to take a view that they have nothing to say against the OA and have admitted the facts stated therein.
7. The applicant has relied upon the following judgments of the Apex Court in support of this Application:-
(i) Messrs. Ghaio Mal & Son versus State of Delhi and Others [AIR 1959 SC 65];
(ii) State of Bombay versus Purushottam Jog Naik [AIR 1952 SC 317];
(iii) L.R. Shivaramagowda and Others versus T.M. Chandrashekar (Dead) by L.Rs and Others [1999 (1) SCC 666];
(iv) State of U.P. and Others versus Renusagar Power Co. and Others [1988 (4) SCC 59];
(v) M.P. Special Police Establishment versus State of M.P. and Others [(2004) 8 SCC 788];
(vi) R.K. Jangra versus State of Punjab and Others [(2009) 5 SCC 703].
8. In the counter affidavit, the respondent no.1 has strongly rebutted the contentions of the OA and has submitted that nothing has been done behind the back of the applicant. The principal submissions of respondent no.1 have been categorized as below:-
The letter of appointment is specific in its insistence that the terms & conditions enunciated therein be accepted by the parent cadre of the applicant that being the Government of Himachal Pradesh. The appointment of the applicant against the post on which he is serving is a contract appointment. However, the applicant had applied directly to the Chairman of ICCR, who is in the rank of full-fledged Cabinet Minister. By a certain facts of omission, the acceptance could not be signed by the applicant before he left for his place of posting at Jakarta and has not been signed to this date. While conceding that the letter of appointment dated 04.04.2011 had stipulated a term of 3 years for the applicant, the applicant had carefully concealed the details of his previous posting from the respondent no.1 on account of which the term of 3 years came to be offered. However, when it was subsequently brought to light that the applicant had already consumed a part of his central deputation, the matter was corrected and another communication was issued vide OM dated 18.08.2011 clearly providing that the term of deputation would be co-terminus with the remaining period of central deputation that being upto 15.11.2013.
The respondent no.1 submits that this OM had been addressed to the Secretary, Ministry of External Affairs and copies of which had been forwarded to the PMO, Cabinet Secretary, MHA and Private Secretaries to MoS(PP) and to the EO/RO. This communication had been made in good time so that the applicant may have ample opportunities and time to re-schedule the education of his children and to re-locate them to a convenient location in India or to any other place so that he did not run into the problem of repatriation during mid academic session. The charge, therefore, that the period was reduced at the back of the applicant without having given him prior intimation thereby violating the right of natural justice stands adequately controverted.
The respondent no.1 submits that the applicant is governed by the Central Staffing Scheme of the Government of India issued vide OM dated 29.02.2008 of the DOP&T. This OM provides 7 years tenure of central deputation for the officers at Joint Secretary and Additional Secretary level subject to 3 years in a second post and further subject to a minimum of 5 years in the Centre. The applicant is admittedly within the rank of Director and Joint Secretary and would be governed by this tenure of 7 years. Any central deputation will be governed by the period of 7 years as provided under the Central Staffing Scheme and cannot be transgressed. Therefore, the respondent no.1 was right in issuing the impugned OM dated 31.05.2013 in amending the appointment letter dated 04.04.2011 by inserting the paragraph 3(a), which reads as under:-
3(a) The deputation period will be for the balance period of 7 years combined deputation of Shri Z.H. Zaidi shall be upto 15 November, 2013. As a consequence of this, the original letter of appointment stands amended and the applicant is fully bound by it.
The respondent no.1 further submitted that ICCR is a registered Society under the Societies Registration Act, 1860. It is under the administrative control of Ministry of External Affairs only to the extent that all its budgetary provisions are met by the said Ministry otherwise the Society is substantially autonomous in so far as its internal functioning is concerned. It is the appointing authority of all Directors of the various Indian Cultural Centres worldwide and its President holds the rank of the Minister of Union Cabinet. While the President of ICCR is the appointing authority in respect of the afore categories of his employees, it is the Ministry of External Affairs which confers and regularizes diplomatic status and foreign postings of such appointees who come from diverse background including non-governmental offices. The appointments being contractual appointment for a period of 3 years are subject to curtailment and there have been instances in the past where the appointments of employees have to be cut short. The learned counsel appearing for the respondent no.1 particularly alluded to the case of a Director of ICC in Johannesburg (South Africa) who had to be recalled by cutting short his tenure. The learned counsel for the respondent no.1 has further referred to the notings in the file of ICCR dated 12.01.2012 stating that ICCR is the administrative and financial authority in such appointments and has a right to take such decision. It is not required to consult the Ministry of External Affairs.
The respondent no.1 additionally submits that though the ICCR is independent in its actions, yet it is dependent on the budgetary support made by the Ministry of External Affairs for its activities including non-planned expenditure. The respondent no.1 in the instant case can only pay for the salaries, foreign allowances, accommodation and for children education of the applicant upto the period of his deputation that being 15.11.2013. On expiry of the period of central deputation, his tenure as Director of the ICCR also comes to an end being co-terminus with his central deputation. The ICCR on its own accord cannot go on paying the applicants salaries, allowances and for his childrens education without authorization and without his central deputation being extended. The Ministry of External Affairs had sought the opinion of the ICCR regarding the representation preferred by the applicant for extension of his tenure vide communication dated 07.10.2013 in response to which the respondent no.1 had intimated that the total period of deputation in such cases is 7 years to the maximum extent and, therefore, the applicant had already been informed well in time that his contract with ICCR would terminate by that date and he should come back and report to ICCR by 15.11.2013.
The respondent no.1 has also added that the Embassy of India, Jakarta has already spent a sum of US $ 29,900 (Rs.18,30,000/- approx.)on the school fee of the two school going children of the applicant for the duration June, 2013 till December, 2013 and in case he continues unauthorizedly after his deputation comes to an end, a balance equivalent amount would be payable for the rest of the academic session terminating in June, 2014.
The learned counsel for the respondent no.1 orally submitted that in case the extension is granted to the applicant, it would cause dislocation in the budgetary provision and the respondent no.1 would not be in a position to meet the expenses involving his salaries, accommodation, childrens education, and other sundry expenses of the applicant staying there. The learned counsel for the respondent no1. has further argued that the President, ICCR had already selected the replacement of the applicant and this factum has been communicated to the Ministry separately vide communication dated 25.10.2013 to the Ministry of External Affairs. Since the person so selected is eagerly waiting for his posting at Jakarta, it is not possible to grant any further term to the applicant. In addition, monthly rental of US $ 2200 was being paid for the applicant and has been paid till 30.11.2013. Any payment towards school fees, rentals and other sundry expenses involving the applicant would become illegal and unauthorized once the period of central deputation of the applicant comes to an end and the respondent organization would not be in a position to bear these illegal expenses.
The respondent no.1 has strongly rebutted the contention of the applicant qua seeking extension of his tenure in terms of the OM dated 16.03.2010 by stating that the afore OM is not applicable to the case of the applicant as he was informed well in advance regarding his tenure coming to an end w.e.f. 15.11.2013 and the said fact had been conveyed to the Ministry as well. The intent of the OM dated 16.03.2010 is to make a provision for linking up the period of deputation with the academic session of the children of the deputationist, meaning thereby that the appointments on deputation are made in such a manner that the tenure ends with the academic session. However, in the instant case as the applicant had carefully concealed the relevant things in the application to the President, ICCR for his appointment on deputation, he is precluded from taking advantage of the instant OM. Moreover, the learned counsel for the respondent no.1 was at pains to emphasize that a proposal for extension was required to be submitted to the DOP&T within a period of at least two months before the end of the tenure for approval. No such proposal has been submitted to the DOP&T till date. Therefore the applicant is not entitled to seeking any advantage qua extension of his tenure. He has further submitted that the Indian Ambassador, Jakarata was not the controlling authority of the applicant but later retracted from his statement saying that it was indeed a matter of fact that his ACR was recorded by the Indian Ambassador, Jakarta and as such he was the controlling authority of the applicant. However, the learned counsel for the respondent no.1 was at pains to emphasize that the representation of the applicant has been rejected vide communication dated 23.08.2013 intimating that the competent authority has decided to relieve the applicant w.e.f. 15.11.2013 and the communication dated 17.10.2013 that no payment concerning the applicants accommodation and school fees of his children will be met by the respondent organization beyond the period of 15.11.2013. He has also referred to the fact that the Ministry of External Affairs did not submit any proposal for extension of the tenure of the applicant to the DOP&T as was required under clause (c) of the OM dated 16.03.2010.
9. We have carefully perused the pleadings and documentary evidence submitted by the parties, and have heard the oral arguments advanced by their respective counsels. On the basis of the above, we find that the following issues are germane of for a decision in this case:-
Whether the action of the respondent nos. 2 to 4 in not filing their separate affidavits amounts to acceptance of the stand of the applicant?
Whether the action of the respondent in not considering the case of the applicant under the terms of OM dated 16.03.2010 tantamount to violation of his rights?
Whether the representation of the applicant can be said to have been disposed of?
Whether the action of the respondent no.1 is tantamount to violation of Articles 14 & 16 of the Constitution of India?
What relief, if any, could be granted to the applicant?
10. In so far as first of the issues is concerned, the respondent nos. 2 to 4 have submitted that they were authorized by their respective departments that the primary defence should be met by the respondent no.1. They have also produced various letters fro their respective departments to this effect. However, it is clear that in view of the requirement of law, they were required to swear an affidavit to this effect. An additional affidavit has, however, been filed on behalf of the respondents reiterating the following:-
2. That after receipt of notice in aforesaid OA No.3810/2013, the detailed counter reply was filed on behalf of all the respondents i.e. ICCR, Ministry of External Affairs, Ministry of Home Affairs as well as DOP&T.
3. That although, the said counter reply itself makes it clear that the same has been filed on behalf of all the respondents, however, in view of objections raised by counsel for the applicant, it is again clarified that the said reply has been filed for all the respondents.
4. That in order to clarify further and in view of order issued by this Honble Tribunal, it is again reiterated that the counter reply filed to aforesaid OA No.3810/2013 through Shri M.K. Bhardwaj vide Diary No.11927 on 08.11.2013 is reply on behalf of all the respondents. In fact, the other respondents i.e. R-2, R-3 & R-4 have authorized respondent no.1 to represent the case on their behalf as well. Cop of letter/authorization is annexed as Annexure R-I to R-III. In view of the above affidavit and the earlier directions to their respective counsels of the respondent nos. 2 to 4, this deficiency appears to have been cured. The counter affidavit filed on behalf of respondent no.1can be said to have been adopted by the respondent nos. 2 to 4.
11. In so far as the second issue is concerned, it is necessary for us to first have a look at the contents of the DOP&T OM dated 16.03.2010. For the sake of easy convenience and ready reference, it is expedient to reproduce the contents of this OM as below:-
Subject: Extension of Foreign Assignment for officers on ground of their Childrens Education being in the middle of academic sessions.
Sir/Madam, The issue of officers posted abroad on Foreign Assignments seeking extension on ground of their Children being in the middle of the Academic session has been engaging the attention of the Government for quite some time. The Appointments Committee of the Cabinet has considered the matter and decided that:
the tenure of officers on foreign deputation may be linked to the end of the academic session i.e. date of completion of the annual examination.
the officers going on foreign deputation should be informed at the time of their posting that their tenure will be adjusted to coincide with this event.
if some adjustment is required [either extension or curtailment], depending on the commencement of the posting, and the timing of the examination, the proposal for approval of the Competent Authority should be sent to this office at least 2 months before the date of completion of the approved tenure, or date of completion of the proposed tenure, whichever is earlier.
2. This may be taken note of for compliance in the future. The first thing that strikes attention in this respect of this OM is that there was an issue relating to the offices posted abroad on foreign assignment seeking extension on ground of their children being in the middle of the academic session. It appears that this was a recurrent problem and was so important that the Appointments Committee of Cabinet (ACC for short) had to apply its mind to the subject. The contents of this OM have emerged as a decision of the ACC. Clause (a) of the OM is a mandatory direction to the departments/ organizations sending officers on foreign deputation that their tenure may be linked with completion of the academic session of their children. It, in other words, clearly casts a responsibility upon such organizations which are sending officers on foreign deputation abroad that such officers should be given tenure co-terminus which will coincide with the academic calendar or completion of annual examination. The second part of the OM is again mandatory that the officers going on foreign deputation should be informed at the time of their posting that their tenure will be adjusted coincide with the event. In other words, the officers who proceed on foreign assignment are to be informed that their tenure will be adjusted coincide with the event of completion of annual examination. Here, in this case, we take a note of the fact that the letter of appointment dated 04.04.2011 clearly provides a tenure of 3 years. For the sake of easy understanding, the relevant portions are reproduced herein below:-
This has reference to the deputation of Shri Zahur H. Zaidi, PS to MOS, Ministry of External Affairs, New Delhi as Director of Indian Cultural Centres abroad. I am glad to inform you that on recommendation of the Foreign Service Board, the External Affairs Minister has approved the appointment of Shri Zahur H. Zaidi as Director, Jawaharlal Nehru Indian Cultural Centre, Embassy of India, Jakarta, Indonesia for a period of three years. The appointment is subject to the provisions of the agreement to be executed by Shri Zaidi with the Council.
3. The various entitlements of Shri Zahur H. Zaidi would broadly be as under:-
(a) Tenure: The deputation will be for a period of three years. The period of deputation will commence from the date he joins the duties of his post at the Councils Headquarters, New Delhi and will end on completion of the Councils assignment. Para 7 of the letter of appointment provides as under:-
We hope that the terms and conditions of deputation are acceptable to his parent department. Shri Zahur H. Zaidi may join the JNICC, Jakarta on the basis of issue of this order. However, exact date from which the services of Shri Zahur H. Zaidi is required by the Council will be intimated in due course to you on receipt of acceptance from your side. You are, therefore, requested to send us the acceptance to the offer at the earliest to enable us to complete all procedural/travel formalities. Departure formalities may please be done with the help of PD(ICC). It is clear from the above that the applicant could join the JNICC, Jakarta on the basis of this order. However, the acceptance was required to be communicated by the applicant to the respondents so that all procedural/travel formalities could be fulfilled. The applicant had communicated his acceptance on 10.05.2011. It was on the basis of this acceptance that the applicant was issued his travel documents and was allowed to proceed to take up the assignment at JNICC, Jakarta. Here, we also pause to take a note of the allegations made by the learned counsel for the respondents that the applicant had not disclosed his full background and the details of his previous posting on central deputation and had not signed the contract.
12. We find from perusal of the records that the applicant has communicated his acceptance of the terms & conditions and he was allowed to proceed on his posting on the basis thereof. If the applicant has not signed any document/contract which he was required to sign, it was the responsibility of the respondent no.1 to get the same executed and he has failed to take due care and caution. Therefore, the blame cannot be laid at the doors of the applicant. In so far as not disclosing the full information regarding the previous posting of the applicant is concerned, the records of his appointments were produced before us in the Court and we noted that the information regarding his tenure was available with the respondent no.1 and was indicated in the very first note in the file. Therefore, it cannot be alleged that the applicant had concealed vital information and had duped the respondent organization into giving the appointment in question. Coming back to the OM dated 16.03.2010 we take note of the fact that in the letter of appointment dated 04.04.2011, the tenure of the applicant would have coincided with the end of the annual examination of his children. As per the certificate provided by the applicant, the academic session of his children concludes on 06.06.2014 and the applicant has sought extension only till 07.06.2014. He has not sought extension till 18.8.2014 which he could have done in terms of the original offer of appointment. We also note that this OM was issued in the year 2010 and was very much available with all the Ministries and such organizations which send out officers abroad on foreign assignment. However, in the OM dated 17.08.2011, it has been provided The appointments Committee of the Cabinet has approved the following proposals:
Appointment of Shri Zahur Haider Zaidi, IPS (HP:94) as Director in the Jawaharlal Nehru Indian Cultural Centre (JNICC), Embassy of India, Jakarta under the Ministry of External Affairs for the balance period of his Central deputation i.e. up to 15.11.2013 with effect from the date of assumption of charge of the post or until further orders, whichever event occurs the earliest.
Premature cessation of tenure of Shri Zahur Haider Zaidi,IPS(HP:94) as Private Secretary to the Minister of State (External Affairs) (Shri E. Ahamed) with effect from the date he is relieved for assuming charge of the post of Director in JNICC, Embassy of India, Jakarta under the Ministry of External Affairs.
13. Obviously, we find that the Appointments Committee of Cabinet ought to have been informed as per clause (a) of the OM dated 16.03.2010 whereby a duty has been cast upon the organization to align the tenure of the applicant to the academic session of his children and as such the initial tenure required was up to 07.06.2014. The steps due in this regard could be taken by the respondent organization, which have not been done. Here, clearly we find that the respondents have defaulted in their duties. We further find that the same facts have been overlooked while issuing the OM dated 31.05.2013 and subsequently in sending the Fax Messages dated 23.08.2013 and in stopping the allowances beyond 15.11.2013 vide messages dated 17.10.2013. We further take note of clause (c) which provides that in such cases where the tenure of the offices proceeding abroad on foreign assignment may need to be adjusted depending upon the commencement of the posting and timing of the examination. In such cases, it is provided that a proposal for approval of the competent authority should be sent to the DOP&T at least two months before the date of completion of the approved tenure or up to the date of completion of the proposed tenure, whichever may be earlier. We are of the opinion that in view of the earlier to clauses i.e. (a) & (b), clause (c) is also mandatory to make an adjustment in the tenure. In the instant case, we find that the applicant has submitted his request for extension of the tenure on 16.08.2013, which reads as under:-
My tenure as Director JNICC, Jakarta is due to expire on 15th November, 2013. The academic session of both my children, studying in the Jakarta International School, ends on 6th June, 2014. To ensure that my childrens education does not suffer I may be allowed to continue in my position till 7th June, 2014. It is requested to kindly take up the matter with the Government of India to extend my tenure accordingly. A certificate from the school is enclosed. The case of the applicant has been recommended strongly by the Indian Ambassador to Jakarta who is also his controlling authority. He recommends as under:-
Mr. Zaidis efficient management of the Centre and his ideas for improving the cultural outreach activities through new programmes have drawn attention of large number of Indonesians to the Centre. He is an asset to this Mission. His continued presence in Jakarta is beneficial for the Centre and the Mission.
In view of the above, I would strongly recommend his request for extension on educational grounds and his case may be taken up with Department of Personnel and Training for extension till 7 June 2014. This communication is addressed to the ICCR, New Delhi. We also find that there is a request from the Director (MM) DOP&T, which reads as under:-
The undersigned is directed to convey that any proposal for premature repatriation and extension in tenure beyond the approved tenure in respect of offices who have shifted from a CSS post and are now working on a Non-CSS post should be referred to DOP&T for approval/orders of the competent authority.
14. We also find that on 03.10.2013, the DOP&T acknowledges the receipt of the e-mail of the Indian Ambassador, Indonesia and requests the Ministry of External Affairs to examine the proposal pertaining to the applicant for extension of his tenure of foreign deputation. The relevant portion of the letter reads as under:-
In case, MEA supports the proposed extension, a formal proposal in this regard along with the approval of the External Affairs Minister and the Cadre Clearances of the Ministry of Home Affairs as well as the State Government of Himachal Pradesh, may be submitted to this Department at the earliest so that the same could thereafter be processed for the consideration of the Competent Authority. In other words, the DOP&T is prepared to treat the proposal for extension of the tenure of the applicant provided a proposal is submitted to this effect. Accordingly, a cadre clearance for extension of the tenure has been received vide letter dated 06.11.2013 in the following terms:-
The undersigned is directed to refer to DOP&Ts O.M. No.25/4/2009-EO (MM-I) dated 03.10.2013 on the subject cited above and to convey the cadre clearance of this Ministry for extension of deputation tenure of hri Zahur Haider Zaidi, IPS (HP:94) Director, Jawaharlal Nehru Indian Cultural Centre (JNICC) for the period utp 07.06.2014. In the meantime, the request for extension of the applicants tenure has been received in MHA and it has asked the Chief Secretary, Government of Himachal Pradesh, vide its letter dated 09.10.2013, to convey their NOC, which reads as under:-
2. The State Government are, therefore, requested to convey its concurrence/NOC for the extension of foreign deputation period in respect of Shri Zuhur Haider Zaidi, IPS (HP/94) as Director, Jawaharlal Nehru Indian Cultural Centre up to 7th June, 2014. This clearly indicates that the proposal was under active consideration. On 07.10.2013, the ICCR informs the DOP&T as under:
that the total period of deputation cannot be more than seven years. In the light of the guidelines given above by DOP&T, ICCR has taken appropriate action as per the norms stipulated by DOPT. Now with this Shri Zahur H. Zaidi will return. This is for your kind information. Comments if any may kindly be conveyed to ICCR. I hope this is as per DOPT norms & extant rules. We also find a communication from the DDG(I) of the respondent organization to the Ministry of External Affairs, which reads as under:-
This refers to your msg dated 07.10.2013 wherein Director, ICC, Jakarta has represented that this tenure as Director, ICC Jakarta is due to expire on 15th November, 2013 and he needed extension.
Director, ICC, Jakarta Shri Zahur Zaidi is working on contract with ICCR. He has been given approval by DoPT vide their correspondence no.25/4/2009-EO(MM-I) dated 17.08.2011 to work with ICCR utp 15.11.2013. DOPT vide their communication No.2/2/2010-CS.I(U)(Part-I) dated 26th September, 2013 has responded to ICCR in this regard reiterating that the total period of deputation in such case is a maximum of seven years. For Shri Zuhur Zaidi this period ends on 15.11.2013 and therefore, within the contractual obligation, ICCR has already informed him well in time that his contract with ICCR would terminate by that date and he should come back and report to ICCR by 15.11.2013 with availing usual preparation time.
This is to convey that Shri Zahur Zaidi should be asked to come back and report to ICCR by 15.11.2013 with usual preparation time. President, ICCR has already approved his replacement which is communicated separately.
15. From the above correspondence, it clearly emerges that while on one hand the case of the applicant has been recommended by the Indian Ambassador to Indonesia, the State Government has given the NOC and the MHA has also issued the cadre clearance, on the other hand, the respondent no.1 has taken a stand that since the successor of the applicant has already been selected and that the tenure of the applicant on central deputation is getting concluded on 15.1.2013, it is not possible to grant him extension. In fact, this stand had been taken even prior to the cadre clearance having been received.
16. We further find that the OM dated 16.03.2010 of the DOP&T, which is based on ACCs decision vests a right of consideration into the applicant seeking extension of his tenure coincide with the conclusion of the academic session of his children. The respondent organization has omitted the duty cast upon it in making his tenure align to the academic session. Rather it has curtailed this despite having full knowledge of the facts and the contents of the OM dated 16.03.2010. We clearly find that the representation of the applicant supported by the cadre controlling authority and the State Government of Himachal Pradesh and also Indian Ambassador to Indonesia has not been considered as it was wont to be. The right of the applicant for consideration, therefore, stands violated.
17. This issue is answered accordingly.
18. In so far as third issue is concerned, its major part stands decided in terms of the second issue having been decided, hence, it needs no further discussion. However, the argument of the learned counsel for the respondent no.1 that their action in sending the messages dated 23.08.2013 and 17.10.2013 tantamount to rejection of the applicants representation is not sufficient. We are of the opinion that the representation of the applicant ought to have been considered at the level of MEA and finally by the respondent organization for extension and a proposal for applicants extension of tenure of foreign assignment should have been submitted to the DOP&T in view of this consideration, which has not been done in the instant case. Therefore, we conclusively reject the argument of the learned counsel for the respondent no.1 that issuance of the aforesaid circulars amounts to rejection of the applicants representation.
19. In so far as fourth issue is concerned, the first question that we are bound to ask ourselves is that whether the tenure of seven years is the Laxman Rekha which is not to be transgressed under any of the conditions or it is subject to revision depending upon the particular set of circumstances. The applicant in his rejoinder has submitted particular instances where the tenure of the officers has been extended, which are as under:-
Sl.
No. Name of the Director & Rank Date of Join Date of transfer 1 Prof. A.S. Balakrishnan, First Secretary April 1988 April 1992 2 Mr. M. Tariq Sultan, First Secretary April 1992 Nov. 1993 3 Mr. J.A. Khan, First Secretary April 1994 August 1998 4 Mr. Balbir Singh, First Secretary Feb., 1999 March, 2002 5 Mrs. Usha Naqvi, First Secretary April, 2002 December,2003 6 Mr. Arup Kumar Dutta Counsellor May 2004 October 2007 7 Mr. M.K. Singh, Counsellor 21st January 2008 15th July 2011 8 Mr. Zahur H. Zaidi, Counsellor (Applicant) 19th August, 2011 Till date We find that the nearest parallel that we could draw to the applicant is in view of his immediate predecessor namely M.K. Singh, who held the post of Counsellor from 21.01.2008 to 15.07.2006 i.e. for a period of 3 years and 6 months. It has also been submitted by the applicant that the said M.K. Singh had a total period of 7 years and 4 months of central deputation. The applicant has also submitted the instance of one Gowrishankar, who had been deputed to ICCR in 2011, had requested for one year extension which was not on the ground of education of his children. However, his case has been recommended by the respondent organization on 20.08.2013 and has been followed with alacrity vide communication dated 02.09.2013 and 13.09.2013. We also take a note of the submission of the learned counsel for the respondent no.1 that the request of Gowrishankar was rejected by the DOP&T. However, the case of the applicant stands on superior footing that of the Gowrishankar for the reason that it is based upon actual requirement of the education of his children and his commendable performance a certified by the Indian Ambassador and being covered by OM dated 16.03.2010.
20. In view of the above discussion, we arrived at inescapable conclusion that a differential treatment appears to have been meted out in two sets of cases that being of Gowrishankar and M.K. Singh and that of the applicant while, as noted above, the case of the applicant stands on a far better footing. Clause (1) of Article 16 of the Constitution clearly provides for equality of opportunity to all citizens in the service of the State. It is to be noted that the Constitution uses the words equality of opportunity for all citizens. This inherently implies that the opportunity must be given not only to a particular sustain of the section, or a particular class of citizen, but to all citizen of India. This has been emphasized by the Honble Supreme Court in the matter of State of Kerala versus N.M. Thomas [AIR 1976 SC 490]. This concept has been further extended in the case of M. Nagaraj versus Union of India [AIR 2007 SC 71] which provides that equality of opportunity involves two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide level playing find to the oppressed classes. The concept of affirmative action takes non-discrimination much beyond its domain. Here, we find a reverse situation where a person with superior abilities and genuine needs is being discriminated against the expressed mandate of the Government. The real reason behind it appears to us is that the respondent organization has already selected a substitute for the applicant and they appear to be in hurry to make the newly selected person to join the foreign assignment. We take a note of the fact that the action of the respondent no.1 in not bearing the expenses of accommodation and education of the children of the applicant may result in applicants children losing their one valuable academic year. Moreover, the contention of the respondent organization is conclusively rejected that the applicant knowing the end of his tenure should have made arrangements to re-locate his children as the same would be amounting to cutting short his tenure.
21. In view of the above discussion, we are of the firm opinion that the representation of the applicant I based upon a right conferred upon him under the OM dated 16.03.2010 of the DOP&T and is supported by his parent organization a well as Cadre Controlling Authority. It has, however, not been considered and the respondent organization appears to be in an infernal hurry to remove the applicant from his present posting in mid of the academic session of his children on the ground that his successor has already been selected. This ground of the respondent no.1 would cut no ice with us as any person appointed is likely to cost the same expenditure to the organization unless it were to lay down that only bachelors or issueless officers will be considered and selected for sending abroad on foreign assignment.
22. In totality of the facts and circumstances of the case, we allow the instant Original Application with the following directions:-
The impugned Office Order dated 31.5.2013 informing the applicant that the Competent Authority has decided to relieve him from his post with effect from November 12, 2013 and the fax message dated 23.8.2013 intimating the decision of the competent authority to relieve him w.e.f. 15.11.2013 are quashed and set aside being bad in law and violative of Article 16 of the Constitution.
The respondent no.2 is directed to consider the representation of the applicant and, if finds merit in the representation, to forward the same to the DOP&T for relaxation in the tenure under clause (c) of its OM dated 16.03.2010, within a period of two months from the date of receipt of this order. We have deliberately assigned this task to the respondent no.2 for the reason that the respondent no.1 has already foreclosed its mind. However, in case the respondent no.2 does not find merit in the representation of the applicant, in that eventuality it will pass a reasoned order thereon.
Respondents are further directed that before any decision is taken on the representation of the applicant, no adverse order shall be passed against the applicant pertaining to the posting of any substitute as has already been directed by this Tribunal by way of an ad interim order dated 31.10.2013.
There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/