Central Administrative Tribunal - Jaipur
Ankit Aswal vs Revenue on 31 May, 2024
1
OA No. 96/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 96/2023
Order reserved on: 17.04.2024
Date of order: 31.05.2024
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
Ankit Aswal son of Late Shri Banwari Lal Aswal aged about
33 years, resident of B-203(A), Ganga Sagar Colony, Vaishali
Nagar, Jaipur-302021, Rajasthan, presently working as
Preventive Officer on deputation basis in Special Economic
Zone (SEZ) Jaipur, under Ministry of Commerce & Industry,
Mob.9057204411, [email protected]
...Applicant
(By Adv: Shri Amit Mathur)
Versus
1. Principal Chief Commissioner, Office of Principal Chief
Commissioner of Central Tax, CR Building, IP Estate,
New Delhi-110002.
2. Commissioner CGST O/o the Commissioner CGST,
Delhi South Commissionerate, 2nd and 3rd Floor, EIL
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OA No. 96/2023
Annexe Building, Bhikaji Cama Place, New Delhi-
110066.
3. Development Commissioner, Noida Special Economic
Zone, Noida-Dadri Marg, Phase-II, Noida-201305,
Gautam Budh Nagar, Uttar Pradesh.
4. Deputy Development Commissioner, O/o
Development Commissioner, Special Economic Zone
(SEZ), Sitapura, Jaipur-302022, Rajasthan.
...Respondents.
(By Adv: Shri Kinshuk Jain, Shri Ashish Dadhich, Shri
Deepanshu Sharma proxy for Shri Anand Sharma)
ORDER
Per: Hon'ble Shri Lok Ranjan, Member (A)
The Applicant in the present Original Application is aggrieved by the impugned Order dated 10.02.2023 of the Assistant Commissioner (P&V) Delhi South whereby it was conveyed that -since the Applicant's request for deputation was not approved by the competent Cadre Controlling Authority (CCA) Delhi Zone, as conveyed by the impugned Order dated 01.02.2023 - therefore the previous Order dated 10.01.2023 of the Assistant Commissioner (P&V) Delhi South inter alia relieving the Applicant to join as Preventive Officer (PO) (Customs) in Jaipur Special Economic Zone 3 OA No. 96/2023 (JSEZ), Sitapura, Jaipur on deputation was withdrawn ; and further whereby the Applicant was directed to join CGST Delhi South.
2. On the basis of the pleadings of the parties on record, the matrix of relevant facts has emerged as follows briefly. The Applicant was initially appointed as Inspector in the Central Excise and Customs and joined the services on 31.12.2012; and was eventually transferred and posted w.e.f. 16.07.2016 to work under the Commissioner, CGST (South), New Delhi (Respondent No.3). While posted there, he came across the Office Memorandum dated 27.05.2022, of the Deputy Development Commissioner (DDC), Noida Special Economic Zone (NSEZ), Noida (Respondent No.5) - finally amended vide O.M. dated 16.09.2022 vide which two vacant posts of Preventive Officer (Customs) at the State Sector JSEZ were notified to be filled-up on deputation basis. The Applicant had on 21.09.2022 made an application to the Additional/Joint Commissioner (P&V), CGST South Commissionerate, Delhi at the office of his appointing authority for forwarding his willingness for deputation to the said post at JSEZ along with his Bio-data and requisite documents as mentioned in the vacancy circular. At the same time separately, he had written to the DDC, NSEZ to convey his willingness to join the post of Preventive Officer at JSEZ 4 OA No. 96/2023 on deputation basis, along with his Bio-data in the prescribed proforma as an advance copy. Subsequently, there had been exchange of various inter-office communications seeking / furnishing of information related to/in the context of the application for deputation to JSEZ made by the Applicant in the present O.A. A number of such communications - some in between the the Offices of the Respondent No.02 and No.03 within the CGST & CE organization; and certain others made between the aforesaid CGST & CE Offices of Respondents No.02 and No.03, with the Offices of the Respondent No.04 and No.05 - were cited by the Applicant to purportedly show that his application for deputation was taken up through the process prescribed duly under consideration.
3. The communications that were particularly underlined thus, included inter alia - the letter dated 12.10.2022 of the Respondent No.5, forwarded to the Office of the PCC CGST Delhi Commissionerate (sic) and the CCA (Respondent No.2) through e-mail seeking to forward his deputation application after due process through proper channel ; the letter dated 16.11.2022 of the Office of the PCC CGST & CE Delhi South (sic) and the CCA (Respondent No.2) addressed to Assistant Commissioner (AC) Vigilance CGST & CE Delhi South under the Respondent No.3 seeking 5 OA No. 96/2023 the Vigilance Clearance, Integrity Certificate and certified copies of the ACR Gradation of the Applicant ; vide communication dated 12.12.2022 of the Office of Respondent No.3 in response to the Office of Respondent No.2, vide which the Vigilance Clearance and Integrity Certificate were provided - and these were also sent separately to the JSEZ ; the letter dated 21.12.2022 of the Office of DC JSEZ to the Office of Respondent No.3 indicating the receipt of the same - but also seeking the APAR Grading of the Applicant further as the consideration of the application for deputation of the Applicant was due to be taken up by the Committee on 26.12.2022 ; the letter dated 22.10.2022 of the Respondent No.3, forwarding the APAR gradings for five years (2017-18 to 2021-22) of the Applicant to the Office of the Respondent No.2 - while also endorsing the same to the JSEZ ; the letter dated 21/22.12.2022 of the Respondent No.5 the DDC at the Office of DC JSEZ addressed to the Office of Respondent No.3 requesting to inform the Applicant to appear for personal interaction on 26,12,2012 at Noida SEZ - while also endorsing the same to the Applicant. Eventually, the Applicant appeared in the said personal interaction and was declared successful vide e-mail communication of the Office of the DC JSEZ dated 27.12.2022 addressed to the cadre controlling unit of the Respondent No.3 and vide the Letter dated 27.12.2022 of 6 OA No. 96/2023 the Respondent No.5 addressed to the Office of the Respondent No.3 - with a copy endorsed also to the Applicant. It was also informed that the Applicant was selected for appointment as PO (Customs) in JSEZ on deputation basis for three years from the date of joining, for which it was also requested that he be relieved to join JSEZ on or before 06.01.2023, but not later than 10.01.2023 (sic).
5. An Order dated 10.01.2023 was passed by the office of Respondent No.3 relieving the Applicant in the afternoon of 10.01.2023; in pursuance to which the Applicant had joined at JSEZ on 11.01.2023 and started discharging the duties of PO (Customs). But subsequently, the impugned communication dated 01.02.2023 came to be issued by the Office of Principal Chief Commissioner of Central Taxes, Delhi Zone & CCA (Respondent No.2, whereby it was mentioned that the deputation request of the Applicant was never accepted by the competent authority of the CCA, Delhi Zone and that office had not conveyed any approval for relieving the Applicant for SEZ, Jaipur - thus it was requested to withdraw the relieving order dated 10.01.2023 immediately and the Applicant be directed to join back CGST Delhi South Commissionerate at the earliest failing which necessary action be taken against the Applicant as per CCS Conduct Rules. In compliance, the impugned Order dated 10.02.2023 7 OA No. 96/2023 was issued by the Office of the Respondent No.3 addressed to the Respondent No.5 at JSEZ - mentioning that since the request for deputation of the Applicant was not approved by the Competent Authority of the CCA, Delhi Zone as communicated vide their Letter dated 01.02.2023, the order dated 10.01.2023 for relieving of the Applicant was withdrawn with immediate effect. The Applicant was further directed thereby to join CGST Delhi South at the earliest without fail, failing which necessary action shall be taken against the Applicant as per CCS (Conduct) Rules, 1964.
6. It is also seen that upon being aggrieved by the said course of action on part of the Respondents, the Applicant had filed the present O.A. No.96/2023 before this Tribunal, which was initially heard on 15.02.2023 and the learned counsel for the Applicant had prayed for interim relief. It was inter alia ordered thereupon by this Tribunal vide Order dated 15.02.2023: "... We find that the balance of convenience lies in favour of the Applicant, therefore, as an interim measure, operation and effect of the orders dated 10.02.2023 (Annexure-A/1) & 01.02.2023 (Annexure-A/2) is stayed till the next date of hearing. ... " The said interim relief had continued during the pendency of this O.A. since then. 8 OA No. 96/2023
7. In light of the facts as presented, the case of the Applicant through the present O.A. was that a perusal of the impugned communications dated 01.02.2023 and 10.02.2023 elicited that in the garb of withdrawing the relieving order dated 10.01.2023, the Respondents were in effect withdrawing the deputation of the Applicant, although they had purportedly not questioned the appointment of the Applicant on deputation. It was also submitted by the Applicant that his application for deputation to JSEZ had been made through proper channel, and processed duly; and accordingly, all the documents required including vigilance clearance, integrity certificate and ACR grading etc. were duly forwarded by the respondents' office through proper channel to the JSEZ. It was also the Applicants submission that the exchange of related communications among the offices of the Respondent CGST & CE Units and that with the Offices of the JSEZ would confirm that the Applicant was eventually relieved for joining at JSEZ after due process and after due application of mind on part of the Respondents. Further, the Order of relieving dated 10.01.2023 itself mentioned that it has been issued with the approval of competent authority, therefore the claim later by Respondents that the relieving was not made with the approval of competent authority or that it was illegal or unauthorized was incorrect. Hence it was not open for the 9 OA No. 96/2023 Respondents to withdraw the Order dated 10.01.2023 for his relieving on these grounds. Moreover, the order of his relieving dated 10.01.2023 was executed unconditionally and the Applicant had also joined at JSEZ in pursuance thereof; and once executed as such, it cannot be withdrawn and only a fresh Order can be passed. Finally, in this connection, the Applicant had also pointed out to his personal requirements and difficulties, inter alia the posting of his bank employee wife, the admission process of his young son and his having already transferred all his household items - all at Jaipur.
9. Additional facts had been provided and related averments made through the reply of the Respondents No.2 and No.3 on behalf of the CGST & CE organization. It had been firstly submitted that vide the Circular dated 16.01.2003 of the Central Board of Excise & Customs, Department of Revenue, on the subject of declaration of cadre control authority for staff up to Group-B level, it had been decided and conveyed that all the powers that were till then exercised by the respective Commissioners as the cadre control authority, should be exercised by their respective Chief Commissioners, subject to no merger or bifurcation of the then existent cadres - i.e. the functions of each cadre controlling authority being exercised separately and 10 OA No. 96/2023 independently for the erstwhile Commissioner level CCAs under them. The mandate of responsibility of the Chief Commissioners acting as CCAs was determined to extend inter alia to all establishment matters including recruitment, promotion and confirmation up to the level of Group-B staff ; monitoring the implementation of the Board's instructions with regard to transfers and equitable distribution of manpower and material resources between Commissionerates / Zones etc. - and would thus cover deputation/loan of staff etc. also. It had further been averred by these Respondents that the formal submission of any application for deputation outside the CGST & CE organization by an employee up to Group-B level will fall under the control of the designated CCA - and thus can only be done after the consideration and approval duly by the competent CCA, which in the instant case was the PCC / CC CGST, Delhi Zone (Respondent No.2). Since the order dated 10.01.2023 for relieving the Applicant to proceed on deputation to JSEZ that was made by the AC(P&V), CGST, Delhi South was without the approval of the CCA, Delhi Zone as such - that Office had insisted upon withdrawal of the said erroneous relieving order dated 10.01.2023 ; and that was eventually withdrawn on 10.02.2023.
11OA No. 96/2023
10. Secondly, based on the career datasheet of the Applicant, it was averred that the Applicant had joined the Central Excise and Customs Department on 31.12.2012 Surat-II CE & ST Commissionerate under the cadre control of CCA Vadodara Zone; and after getting Inter- Commissionerate Transfer he joined on 16.05.2016 under the cadre control of the CCA Delhi Zone (Respondent No.2) and was working on the strength of CGST Delhi South Commissionerate, under Respondent No.3. Subsequently, he was allowed deputation outside that parent Commissionerate, to the Director General of GST Intelligence (DGGI), Jaipur from 23.06.2017 to 06.06.2022, i.e. nearly five years. Thereafter he had reported back to the Respondent No.2 on 17.06.2022 and was posted on 01.08.2022 to work under the CGST Delhi South Commissionerate under Respondent No.3. It had also been stated thereby that the Applicant had clearly not completed the mandatory three-year period of cooling-off since he had returned only on 06.06.2022 from his previous deputation at DGGI, Jaipur outside his parent cadre, i.e., CGST & CE Delhi South Commissionerate - thus at the relevant points in time of making his deputation applications dated 20.07.2022 and 21.09.2022, he was not eligible for a further/next deputation without completing the cooling off period as per the policy guidelines and instructions of the Central Government 12 OA No. 96/2023 relating to deputation of any Government Officers from his parent Department vide the DOP&T O.M. dated 17.06.2010, as amended from time to time. It was also contended that the Applicant had submitted wrong information in his applications for deputation by mis-stating 'Yes' against the Column seeking confirmation about his eligibility - despite the facts to the contrary as aforesaid.
11. Moreover thirdly, in respect of the deputation per se of the Applicant to JSEZ, it had been averred that the Applicant had, in fact, made two applications dated 20.07.2022 and 21.09.2022 for being allowed to proceed on deputation to the post of PO (Customs) at JSEZ, but both of these were rejected by the CCA on the ground of non-completion of cooling-off period in terms of DOP&T OM dated 6/8/2009- Estt. (pay-II) dated 17.06.2010 (as amended from time to time). Vide communication dated 21.03.2023 Para 2(a) and Para 2(b) it is evident that the application dated 20.07.2022 (received by the Respondent No.2 on 29.07.2022) and application dated 21.09.2022 (received by the Respondent No.2 on 23.09.2022) had been duly considered and summarily rejected on 12.08.2022 and 10.10.2022, respectively. It was also averred that the Applicant had failed to disclose the facts related to his previous deputation at DGGI Jaipur that had led to rejection of his applications dated 13 OA No. 96/2023 22.07.2022 and 21.09.2022 for deputation to JSEZ by the CCA Delhi Zone on 16.09.2022 and 10.10.2022 - on the grounds of non-eligibility due to not having completed the mandatory three-year period of cooling off since the return from his previous deputation to DGGI on 06.06.2022. It was thus submitted that the Applicant was approaching the Tribunal while concealing material facts ; and as the Hon'ble Supreme Court had held in the case of ... that where the litigant with the intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts and came to the courts with unclean hands, such litigants are neither entitled to be heard on merits of the case nor are entitled to any relief ; thus, it was submitted that the present O.A. deserved to be dismissed in limine without considering any relief, interim or final.
12. On behalf of these Respondents, it had also been averred that the lapses by the various functionaries at the Offices of GST & CE under the Respondents No.2 and No.3 have been taken note of seriously. The delinquent officers responsible for erroneous order dated 10.01.2023, which had eventually been withdrawn vide letter dated 10.02.2023, are also under examination from vigilance angle for fixing responsibility for such dereliction of duty ; and the erroneous marking of the integrity certificate, vigilance clearance and 14 OA No. 96/2023 APAR grading directly to Respondent No.5 by officers of Respondent No.3 was also being examined in the said vigilance enquiry. Moreover, instructions for relieving of officers on loan/deputation had also been issued vide Office Order dated 26.04.2023 to be followed by all field formations under the jurisdiction of the CCA Delhi Zone (Respondent No.2) for processing of deputation cases in future, so that the mistakes / communication gaps as in the instant case could be avoided.
13. Also, it had been sought to update the factual matrix due to certain recent events leading it to be evolved differently from the earlier scenario. This had arisen due to misconduct on the part of Applicant which culminated into his getting arrested by the CBI on 19.01.2024, which was averred further to have now created "unsuitability" of the officer to continue his deputation on the post of Preventive Officer in Jaipur SEZ.
14. Certain other aspects that came up in the course of the pleadings and the arguments at length by the learned counsels for the parties in the present case were as follows:
(a) Regarding the approval by the competent authority claimed to have been provided for the deputation of the Applicant to JSEZ, the Respondents had submitted that the 15 OA No. 96/2023 "Competent Authority" for different functions can be specified differently and have to be suitably inferred from the context. The Applicant had attempted to misinterpret and obfuscate the term "Competent Authority' as mentioned in the Relieving Order of the Applicant. It was submitted that for the AC (Estt.) working under the charge of Respondent No.2, the 'Competent Authority' for establishment matters of that jurisdiction was Commissioner of CGST, Delhi South (Respondent No.3) and not the Principal Commissioner of CGST. Delhi Zone (Respondent No.2) ; whereas in cases of deployment of any officer to posts outside the CGST & CE Department on deputation, the 'Competent Authority' meant the concerned Cadre Controlling Authority, i.e. Principal Commissioner of CGST, Delhi Zone (Respondent No.2) in the instant case.
(b) Regarding the premature repatriation of a deputationist employee, the Applicant had contended that the extant O.M. dated 17.06.2010 (as amended from time to time) inter alia provided that normally, when an employee is appointed on deputation for foreign service, his services are placed at the disposal of the parent Ministry / Department at the end of the tenure. However, as an when a situation arises for premature reversion to the parent cadre of the deputationist, his services could be so returned after giving an advance 16 OA No. 96/2023 notice of at least three months to the lending Ministry/Department and the employee concerned. However, it was clear from the plain reading of the provision cited (Para-9 of the O.M. dated 17.06.2010, as amended from time to time) that these provisions had been defined for repatriation, i.e. sending back, of the deputationist employee by the Borrowing Ministry/Department; and were not defined as such for recall of a deputationist employee back to itself by the Lending Ministry/Department.
(c) The Applicant had referred to the guidelines communicated vide the Letter dated 30.06.1994 of the CBEC that had mentioned of sensitive charges that require cooling off period between tenures ; and had in that context provided as follows :
"IV. The tenure at sensitive charges and requirements of "Cooling Off" period :- (1) Officers posted in any of the following charges as mentioned below, on completion of his/her normal tenure, be posted to a formation / organization / assignment other than those mentioned here below :-
......
The officers so posted in any of the aforesaid charges / organizations / assignments will be required to complete the "Cooling Off" period of not less than two years before being considered for re-posting to any of the aforesaid charges. (V).(a) The power to relax the cooling off period etc. - The power to relax the cooling off period for an officer with reference to the charges mentioned in para IV shall be exercised by the Pr.
Collr./Director General concerned, in consultation with the Head of the Department of the officer in question." 17 OA No. 96/2023 Thereby it was sought to be presented by the Applicant that the competent authority has power to relax the cooling off period requirement ; and further that the Respondents could have given post facto approval if there was some lacuna. Once again, the Respondents had contested this to aver that the period of cooling off and the authority to relax any specific related provisions can be different for different functions ; and have to be suitably inferred from the context. In particular, the instructions as contained in letter dated 30.06.1994 cited by the Applicant, it was submitted that the said instructions were applicable in the past and provided for cooling off periods between postings in certain sensitive posts only within the CGST & CE Organization only. These instructions are not relevant in the present. ; or for deputation to formations of other Organizations / Ministries / Departments. In the present case involving deputation to the Offices of Respondents No.4 and No.5 that are being governed under the control of Ministry of Commerce & Industry, requisite relaxation to cooling off requirements extant for such situations cannot be provided by a CCA from within CGST & CE jurisdictions as inter-
Ministerial/Departmental matters would be outside his purview. Any relaxations to the prescribed period of cooling- off for deputation of an officer could only be considered as per the provisions of the extant instructions of the DOP&T. 18 OA No. 96/2023
14. Respondents No.4 & No.5 on behalf of Jaipur SEZ had stated that the steps taken by them were in the interest of filling of vacant posts of Preventive Officer, because of which the working of the SEZ had been suffering. Further, the case of the Applicant had reached them as an advance copy, upon which they had contacted the PCC CGST & CE Delhi as the CCA of the Applicant for sending his case through proper channel. It was also averred the CCA of the applicant had been informed of their various communications if made to any authority subordinate to CCA. Further the office of the DC, JSEZ had also written on 15.02.2023 requesting for continuation of deputation of the applicant on humanitarian as well as administrative grounds.
15. Though the Respondents No.04 (Noida SEZ) and No.05 (Jaipur SEZ) under the Ministry of Commerce & Industry had not expanded upon any substantive issues of the case through their pleadings or arguments on their behalf, it was however contended by the Respondents No.2 and No.3 that it appeared that the Respondents No.4 and No.5 had not adhered to the instructions contained in their own Vacancy Circular dated 27.05.2022. Firstly the advance copy of the application for deputation of the Applicant was considered despite the Para-2 of the said Vacancy Circular having inter 19 OA No. 96/2023 alia provided that the application with bio data of the eligible and willing officer(s), in the Annexure-I, who could be relieved in the event of selection be forwarded by parent department through proper channel to the Development Commissioner ; and the Para-4 of the said Vacancy Circular having provided inter alia that Advance Applications even if received before the last date shall also not be entertained. Secondly, vide Para-6 of the said Vacancy Circular, it was provided that the deputation rules, regulations and provisions as issued from time to time by DoPT shall be applicable - however, apart from having entertained the advance copy of the application for deputation of the Applicant without formal forwarding of the same after due consideration and approval of the Competent Authority in the parent Department i.e. CCA namely PCC of CGST, Delhi Zone ; Respondent No.4 and No.5 has also allowed the Applicant to appear in the personal interaction held on 26.12.2022 without receiving the consent / approval of the parent Department through the CCA, namely the PCC of CGST, Delhi Zone. Thirdly, Respondent No.4 and No.5 had failed to verify the eligibility - as prescribed by the DOP&T - of the Applicant, who had remained on deputation during the period 17.06.2017 to 06.06.2022 and as such was not eligible for next deputation without completing the mandatory cooling off period.
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15. We have carefully perused the pleadings of the parties on record in the present O.A. and the related Miscellaneous Applications as well as referred to the extant policy guidelines and instructions cited in support and applicable in this regard. We have also heard the arguments of the parties at length. The situation at the core of the present dispute was thus emerged to be that - the Applicant had been relieved to join on deputation at JSEZ on the basis of the Order dated 10.01.2023, which had been issued by the Office of Respondent No.3 by stating that the same had the approval of the competent authority ; however, the PCC CGST & CE Delhi as the designated competent CCA for the Applicant, inter alia for deputation matters, had contended that the case of the Applicant was not approved for deputation and in fact disallowed twice since it was found to be against the guidelines for regulating transfer on deputation, specifically for cooling off after every deputation ; hence, the Office of the CCA had, vide the communication dated 01.02.2023 addressed to the Office of the Respondent No.3, insisted for withdrawal of said order dated 10.01.2023 issued previously ; upon which the Office of the Respondent No.3 had proceeded to withdraw the said previous relieving Order dated 10.01.2023 vide the subsequent Order dated 21 OA No. 96/2023 10.02.2023 and also advised the Applicant to rejoin his parent Department at the earliest thereafter.
16. We also note that several issues purported to be having a bearing in this regard have been raised by the parties. Many of these are of technical nature, inter alia who the competent authority / CCA in this regard ; or related to the procedural details, inter alia the implications of the exchange of information among various offices involved. However, the crux of the matter is the substantive legal issue - that whether the Applicant was eligible to be considered for deputation to JSEZ when he had applied for it. Therefore, we first proceed to examine the same.
17. A consolidated and updated Order, incorporating the provisions of earlier orders with suitable modifications, wherever necessary was issued vide the O.M. No. 61812009- Estt.(Pay II) dated 17.06.2010 of the DOP&T of the Central Government. This was the extant basic set of instructions on the subject of "Transfer on deputation/foreign service of Central Government Employees to ex-cadre posts under the Central Government/State Governments/Public Sector Undertakings/Autonomous Bodies, Universities/UT Administration, Local Bodies etc. and vice-versa - Regulation of pay, Deputation (duty) Allowance, tenure of deputation / 22 OA No. 96/2023 foreign service and other terms and conditions - regarding". The relevant Paras thereof provided that :
"8. Tenure of deputation/foreign service.
......
"8.4 There shall be a mandatory 'cooling-off' period of three years after every period of deputation/foreign service up to Joint Secretary level posts and one year for Additional Secretary level posts.
8.5 A Central Government employee shall be eligible for deputation/foreign service to posts in State Government/ State Government Organisations/Government of UTs/ Government of UT's Organisations/ Autonomous Bodies, Trusts, Societies, PSUs etc. not controlled by the Central Government only after he has completed 9 years of service and is clear from the vigilance angle."
......
"10. Relaxation of conditions.
Any relaxation of these terms and conditions will require the prior concurrence of the Department of Personnel & training."
From this, it is seen that the cooling-off period of three years was mandatory after every period of deputation up to the level of Joint Secretary. This would squarely apply to the Applicant in the present O.A. also. That the Applicant had returned from the previous deputation on 06.06.2022 is uncontested, though the Applicant had not mentioned this at the stage of filing of his O.A. The mandatory cooling-off prescribed of three years after every deputation, would thus be effective till 06.06.2025 for the Applicant. That a relaxation of the same had been sought/obtained with the prior concurrence of the DOP&T had neither been presented nor claimed. Hence, it is clearly established that on the dates of the applications for deputation of the Applicant, viz. 23 OA No. 96/2023 29.07.2022 and 21.09.2022, the mandatory period of cooling-off after the previous deputation was effective for the Applicant.
18. The implications of the cooling-off being in effect had been covered vide the O.M.No.2/1/2012-Estt.(Pay.II), dated 04.01.2013 of the DOP&T on the subject of "Sponsoring of names of officers for deputation" which states that :
" The undersigned is directed to state that this Department is receiving proposals for waiver of mandatory cooling off period from various Ministries/Departments/PSUs, in respect of officers, who have been sponsored for selection on deputation. As per O.M. No.6/8/2009-Estt.(Pay-II) dated 17/6/2010, there shall be a mandatory "cooling off" period of three years after every period of deputation/foreign service up to Joint Secretary level posts and one year for Additional Secretary level posts. In view of this provision, the Ministry of Railways etc. are advised not to sponsor name of any such officer who is not likely to complete the mandatory cooling off period by the time the officer is likely to be selected. Further, while sponsoring the name of any such officer who has not completed the mandatory cooling off period, they may inform the borrowing department that the officer will be relieved only after he/she completes the mandatory "cooling off"
period.
......
Thus, the decision of the CCA to reject the application for deputation of the Applicant and thereby not to sponsor his name is found to be aligned to these directions, since the Applicant was due to complete the mandatory cooling-off period on 06.06.25 only and his case was clearly that of an officer who was not likely to complete the mandatory 24 OA No. 96/2023 cooling-off period by the time the officer was likely to be selected.
19. We also deem it appropriate to examine at this stage the contention of the Applicant that vide the impugned communications dated 01.02.2023 and 10.02.2023, in the garb of the withdrawal of the relieving Order of the Applicant, the Respondents were in effect withdrawing the deputation of the Applicant, although they had not questioned the appointment of the Applicant on deputation. It was sought to be implied thereby that a valid decision to allow the deputation to the Applicant was taken and continued to exist ; and further that the validity of the same was still not questioned. However, it had been presented vide submission of a copy of the communication dated 21.03.2023 of the Office of the Respondent No.2, the CCA for the Applicant, that when the application dated 29.07.2022 for deputation of the Applicant as PO (Customs) JSEZ was examined, the non-completion of his cooling-off period had been noted and therefore the same was rejected by the CCA. When the Applicant had made a second application dated 23.09.2022 (sic) it was rejected by the Additional Commissioner at the CCA Office in view of another previous request for the same having been already rejected by the PCC, CGST Delhi Zone, the CCA. Thus, the question of an existent valid decision for 25 OA No. 96/2023 allowing the deputation of the Applicant as PO(Customs) would not arise ; in fact the same had been rejected twice. It was on the basis of the same set of decisions that it had been communicated vide the impugned communication dated 01.02.2023 that the deputation application of the Applicant was never accepted by the competent authority / CCA and hence, the Office of CCA did not convey any approval for relieving the Applicant for JSEZ. The relieving Order dated 10.01.2023 was inter alia deemed to be unauthorized and directed to be withdrawn - and was thus withdrawn vide Order dated 10.02.2023 of the Office of the Respondent No.02. From the facts as hereinabove, it is clear that there was no valid decision of the competent authority (CCA) for allowing the deputation of the Applicant to the JSEZ ; and in fact to the contrary, his application for the same was rejected twice. Also, no specific valid Order / decision for allowing the deputation of the Applicant had been produced or cited. The construct that the withdrawal of the Relieving Order dated 10.01.2023 was a garb for withdrawing a valid deputation decision of the Applicant was not found to be tenable on the basis of the facts available and analysis of those as foregoing.
20. It was also submitted by the Applicant that his application for deputation to JSEZ had been made through 26 OA No. 96/2023 proper channel, and processed duly ; and accordingly, all the documents required including vigilance clearance, integrity certificate and ACR grading etc. were duly forwarded by the Respondents' office through proper channel to the JSEZ. The Respondents had per contra relied on the Circular dated 16.01.2003 of the Central Board of Excise & Customs, Department of Revenue on the subject of Declaration of Chief Commissioners of Central Excise and Customs as Cadre Controlling Authorities up to Group-'B' level staff to aver that it was the Respondent No.02 only who was the CCA for the Applicant and his mandate of responsibilities had covered transfers - including those on loan or deputation. It had further been underlined that the deputation applications made by the Applicant had been rejected by the CCA as the competent authority twice ; and were never approved. Hence, no inference to the contrary can be made merely on the basis of the different communications of the functionaries of CGST & CE organization - either internally within the organization or with the Offices of Respondent No.04 and No.5. It has emerged from the pleadings of the parties that in the process of deciding on the application for deputation of an employee, multiple documents/records were required to be consulted and compiled ; and that these were in the custody of various sub-offices in the CGST & CE Organization. Thus, the multiple communications could be 27 OA No. 96/2023 necessitated specially within the CGST & CE organization in the interim, till the final decision on the application for deputation made by the Applicant could get taken. The need and propriety for interim exchange of communications between the functionaries of the Lending and the Borrowing organizations at levels below the CCA was though not established. Nonetheless, it could not be presumed that the Competent Authority / CCA had decided to forward the deputation applications of the Applicant duly to the JSEZ unless the same had finally been decided or approved, and was conveyed expressly thereafter. It had already been brought out that this was never decided or approved so by the competent authority / CCA. Moreover, it had also been averred by the Respondent No.2 that the lapses by the various functionaries at the Offices of GST & CE under the Respondents No.2 and No.3 have been taken note of seriously. The delinquent officers responsible for erroneous order dated 10.01.2023, which had eventually been withdrawn vide letter dated 10.02.2023, are also under examination from vigilance angle for fixing responsibility for such dereliction of duty ; and the erroneous marking of the integrity certificate, vigilance clearance and APAR grading directly to Respondent No.5 by officers of Respondent No.3 was also being examined in the said vigilance enquiry. Moreover, instructions for relieving of officers on 28 OA No. 96/2023 loan/deputation had also been issued vide Office Order dated 26.04.2023, that were to be followed by all field formations under the jurisdiction of the CCA Delhi Zone (Respondent No.2) for processing of deputation cases in future, so that the mistakes / communication gaps as in the instant case could be avoided. Therefore, the Applicant's submission that the exchange of related communications among the offices of the Respondent CGST & CE Units and the Offices of the JSEZ would tantamount to the Applicant being eventually relieved for joining at JSEZ after due process and after due application of mind on part of the Respondents was also not sustainable.
21. Regarding the Applicant's submission that the competent authority has power to relax the cooling off period requirement ; and further that the Respondents could have given post-facto approval if there was some lacuna, the extant guidelines vide Office Memorandum No.2/1/2012- Estt.(Pay.II), dated 04.01.2013 of DOP&T on the subject of "Sponsoring of names of officers for deputation" (supra) had incorporated the relevant provisions as follows :
" .. ...
2. All the Ministries/Departments may please note that the proposals for relaxation of the provision for 'cooling off' period would be considered only in exceptional cases. Such proposals may be referred to this Department in advance with full 29 OA No. 96/2023 justification, after obtaining the approval of Minister-in-charge of the cadre authority of the officer.
3.. It may also be noted that under no circumstances should any officer be relieved in anticipation of relaxation by this Department."
Thus, it emerges that the relaxation of cooling-off period of three years inter alia required prior concurrence of the DOP&T after being approved at the level of the Minister in- charge of the cadre authority of the officer. Moreover, it was directed that under no circumstances should any officer be relieved in anticipation of relaxation by the DOP&T. In the present case, no such proposal had been moved for relaxation of the cooling-off period of three years after the last deputation for the Applicant, who had returned from the last deputation on 06.06.2022 and had applied to be considered for the next deputation firstly on 29.07.2022 - within two months after his last deputation - and then on 21.09.2022 - within four months after his last deputation. Thereby, the relieving in the nature of that done vide Order dated 10.01.2023, apart from being done without the approval of the competent authority / CCA, was also not as per the said Orders of the DOP&T as this was purportedly sought to be made without seeking any relaxation of the DOP&T to the applicable cooling-off provisions. Further, any ex-post facto consideration of such relaxation had also been expressly debarred since it was specifically provided 30 OA No. 96/2023 thereunder that under no circumstances should any officer be relieved in anticipation of relaxation by DOP&T.
22. Moreover, regarding the contention of the Applicant that the order of his relieving dated 10.01.2023 was executed unconditionally and the Applicant had also joined at JSEZ in pursuance thereof ; and once executed as such, it cannot be withdrawn and only a fresh Order can be passed. The issue of the validity of the deputation of the Applicant has been settled in the foregoing Paras. Once it has been established that the Applicant was not eligible for deputation again - due to non-fulfilment of the condition related to three-year period of cooling-off after the previous deputation that had ended on 06.06.2022 - as per extant guidelines ; and in addition, the Relieving Order dated 10.01.2023 was found to be issued unauthorizedly as it was issued without the approval of the designated CCA ; the Relieving Order dated 10.01.2023 itself was not legal. Any consequent action in pursuance thereof, even if executed unconditionally, cannot be deemed legal. Hence, the contentions as are being made in this regard by the Applicant, apart from being hyper-technical, were also found not sustainable.
23. Also in his submissions, the Applicant had also pointed out to his personal requirements and difficulties, inter alia 31 OA No. 96/2023 the posting of his bank employee wife, the admission process of his young son and his having already transferred all his household items - all at Jaipur. In this regard, it is found that the extant O.M. dated 17.10.2016 did not provide for transfer on deputation on compassionate grounds. In respect of compassionate postings, if provided for otherwise, the law has been settled by the Judgments and Orders of the Hon'ble Supreme Court in a catena of cases. In the case of Union of India vs. S.L. Abbas [(1993) 4 SCC 357], the Hon'ble Apex Court inter alia held that :
" 6. ... ... The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."
Thus, on the ground of the posting of his wife and admission of child in school etc., no legal right to be posted in a 32 OA No. 96/2023 preferred post or station, Jaipur in the present case, was created in favour of the Applicant - even more so on deputation to JSEZ, legality and enforceability of which has separately been dealt with in the foregoing Paras.
24. Finally, we also deem it apposite to advert to the law laid down in respect of matters squarely within the domain of the executive inter alia the transfers and postings etc. of employees vide the Judgments and Orders of the Hon'ble Supreme Court in a catena of cases. We find that the present case of the Applicant of transfer on deputation would be covered by the same. As also cited by the Respondents, in the case of State of U.P. vs. Gobardhan Lal (2004) [11 SCC 402], Hon'ble Apex Court inter alia held that :
"7. ... ... Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured 33 OA No. 96/2023 emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
25. Moreover in the case of Shilpi Bose vs. State of Bihar (1991) [Supp 2 SCC 659], Hon'ble Apex Court had inter alia held that :
" 4. ... ... A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest."34 OA No. 96/2023
26. In the conspectus of the foregoing analysis and appreciation of the information before us and the reasons stated herein before, we hold that no grounds could be established for interfering with and quashing the impugned Order dated 01.02.2023 of the Office of the Respondent No.02, the PCC CGST & CE and the CCA for the Applicant as well as the Order dated 10.02.2023 of the Office of the Respondent No.2 Therefore, we hold that these are liable to be deemed valid and we order accordingly.
27. In view of the same and for the reasons stated, the present O.A. is disallowed. The pending Miscellaneous Applications if any are also closed. No order as to costs.
(Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv