Central Administrative Tribunal - Delhi
Vishnu Shankar Prasad vs Ministry Of Shipping on 2 June, 2009
Central Administrative Tribunal
Principal Bench
OA No. 63/2009
New Delhi, this the 2nd day of June, 2009
Honble Mr. Justice V.K. Bali, Chairman
Honble Dr. R.C. Panda, Member (A)
Vishnu Shankar Prasad
Superintending Engineer,
Department of Road Transport & Highways,
Ministry of Shipping, Road Transport & Highways,
Transport Bhawan, 1, Parliament Street,
New Delhi 110 001. Applicant
(By Advocate: Sh. Nidhesh Gupta, Senior Counsel with Sh. Tarun
Gupta)
Versus
1. Ministry of Shipping, Road Transport & Highways
Through its Secretary,
Department of Road Transport & Highways,
Ministry of Shipping, Road Transport & Highways,
Transport Bhawan, 1, Parliament Street,
New Delhi 110 001.
2. Shri Brahm Dutt,
Secretary,
Department of Road Transport & Highways,
Ministry of Shipping, Road Transport & Highways,
Transport Bhawan, 1, Parliament Street,
New Delhi 110 001.
3. Shri P.K. Tripathi,
Joint Secretary,
Department of Road Transport & Highways,
Ministry of Shipping, Road Transport & Highways,
Transport Bhawan, 1, Parliament Street,
New Delhi 110 001.]
4. Shri S.K. Dash,
Joint Secretary,
Department of Road Transport & Highways,
Ministry of Shipping, Road Transport & Highways,
Transport Bhawan, 1, Parliament Street,
New Delhi 110 001.
5. Dr. R.K. Aggarwal,
Deputy Secretary,
Department of Road Transport & Highways,
Ministry of Shipping, Road Transport & Highways,
Transport Bhawan, 1, Parliament Street,
New Delhi 110 001. Respondents
(By Advocate: Shri H.K. Gangwani)
O R D E R
Justice V.K. Bali, Chairman:
Deputation is not a right vested in an employee. The same is a tri-partite agreement between the lending and borrowing departments as also the employee concerned. The applicant in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985 is not seeking deputation with National Highways Authority of India (hereinafter to be referred as NHAI) based upon any vested right in him. He is claiming deputation, as per the case set up by him, on legal and valid orders already having been passed on that behalf, and Shri Brahm Dutt, Secretary; Shri P. K. Tripathi, Joint Secretary; and Shri S. K. Dash, Joint Secretary, Department of Road Transport & Highways, arrayed personally as respondents 2, 3, 4 and 5, having put in all spokes in not relieving him despite the orders as mentioned above, on wholly illegal and unfounded grounds, so pressed and canvassed not only before the competent authority, i.e., the Minister concerned, but before this Tribunal as well. The applicant alleges that the said respondents have even gone to the extent of distorting the facts in their effort to mislead the Minister as also this Tribunal in their endeavour so as not to relieve him come what may. The charge of the applicant is also of highly discriminatory attitude of the 2nd, 3rd, 4th and 5th respondents in their effort to stall his deputation on the only ground that he has not completed the cooling off period entitling him for further deputation. In that connection, it is urged that the respondents have not only allowed others similarly situate officers to go on deputation without completing the cooling off period, but the same was done without seeking any exemption for the same. Whether the charge of the applicant, voluminously detailed in the Application and vehemently urged before this Tribunal, is correct, is the question. The facts may speak and, therefore, it would be necessary to take stock of the same.
2. Government of India, Ministry of Shipping, Road Transport & Highways, Department of Road Transport & Highways issued an order dated 24.09.2008 with the approval of competent authority reciting therein that the services of the applicant, who is Superintending Engineer (Civil) along with one Sh. S.S. Nahar, who is also Superintendent Engineer (Civil) in Central Engineering Service (Roads) Group A would be placed at the disposal of National Highways Authority of India for appointment as Chief General Manager (hereinafter referred to as CGM) on deputation on mandatory basis with immediate effect and until further orders on normal terms and conditions of deputation. Despite the order, referred to above, till such time the applicant had filed this Original Application or even till date, the applicant has not been relieved to join the post of CGM in NHAI on deputation. Applicant, in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, takes serious exceptions to the attitude of respondents, arrayed in person, stating the same to be mala fide in creating all bottlenecks on wholly illegal and unjustified grounds so as not to give effect to the lawful order passed deputing the applicant to take over as CGM in NHAI. The applicant, in the facts and circumstances enumerated hereinafter, craves indulgence of this Tribunal to direct the respondents to forthwith relieve him enabling him to join NHAI as CGM on deputation basis. The respondents, on the other hand, would seek dismissal of this Application primarily on the ground that prior to order dated 24.09.2008, the applicant was on deputation and after the last period of deputation was over, he had not served the parent department for a period of three years, called the Cooling Off period, which is necessarily required and, therefore, he has rightly not been relieved.
3. The applicant pleads that he was appointed to the Indian Engineering Service on 14.06.1985 as Assistant Executive Engineer in the Respondents Ministry (erstwhile Ministry of Surface and Transport) after successfully competing in the examination conducted by Union Public Service Commission. Thereafter, he got promotions at the level of Executive Engineer and Superintending Engineer and is presently working as Superintending Engineer. His entire service career has been unblemished. On 25.08.2008, while reviewing establishment matters, pertaining to the Department of Road Transport & Highways and NHAI, Minister of Shipping, Road Transport & Highways noted that two more officers be sent to NHAI on deputation on the post of CGM, in view of the fact that NHAI has been executing projects of national importance, for example (i) the Golden Quadrilateral connecting all the four main metros and (ii) East West and North South Corridors. It was, therefore, felt necessary that sufficient number of senior officers should be deputed to NHAI who could execute the projects within the stipulated time. Pursuant to the observation and recording by the Minister, Director General (Road Development) in the rank of Special Secretary (hereinafter referred to as DG, RD&SS) submitted 2 names (Applicant and S.S. Nahar) and the said matter was placed before the concerned Minister, who granted requisite approval on 02.09.2008. It is the case of the Applicant that as per O.M. dated 01.11.2001, the competent authority for matters concerning deputation is Minister, and he is competent to relax the cooling off period, if required, in respect of all Group A officers. Since the approval was accorded by the competent authority, his necessary posting order and relieving order to join NHAI, ought to have been immediately issued. The Applicant alleges mala fide against certain officers. His case is that with a mala fide intent and ulterior motive, the respondents, as arrayed, namely, Respondent No.2 (Sh. Brahm Dutt, Secretary); Respondent No.3 (Sh. P.K. Tripathi, Joint Secretary); Respondent No.4 (Sh. S.K. Dash, Joint Secretary); and Respondent No.5 (Dr. R.K. Aggarwal, Deputy Secretary) all belonging to the Department of Road Transport & Highways, did not issue the necessary orders to facilitate the applicant to join NHAI on deputation basis. The Respondents processed the case again and submitted to the Minister who reiterating his earlier order stated in his noting dated 12.9.2008 that earlier order stands good. Since the objection put up by the Respondents was rejected, the deputation order was issued after some days on 24.9.2008. However, it is stated that the relieving order to relieve the Applicant from the post he has been holding under the Respondents Department was not issued.
4. In order to substantiate mala fide on the part of respondents, named above, the Applicant refers to various notings made on the file, which read as follows:-
This is with regard to posting of two Superintending Engineers as CGM on mandatory basis in NHAI. They are Shri V.S. Prasad, SE, presently posted at P-9 Zone and Shri S.S. Nahar, SE presently posted in S&R Zone.
2. In this regard, it is humbly submitted that the file was put up by the undersigned on 25.08.2008 without indicating any name for the post of CGM in NHAI to DG (RD) &SS. Minor details were, therefore, not checked up when this was put to Honble Minister (S, RT&H).
3. Shri V.S. Prasad joined the service as Assistant Executive Engineer on 14.06.1985. Out of 23 years of service he had remained outside the Ministry on deputation for 9 years. First in Steel Ministry from 18.1.1995 to 17.1.1999 and second time, he was on deputation to Home Ministry from 23.4.2002 to 24.6.2007. He joined this Department only on 25.6.2007. He is yet to complete 2 years cooling off period. Therefore, he cannot be sent on deputation again to NHAI.
4. As far as Shri S.S. Nahar is concerned, there is no problem in sending him to NHAI on deputation. He is also willing to go there. The undersigned wants to bring only one point in this regard. Shri M.P. Sharma, SE, who is senior to Shri S.S. Nahar is already posed in NHAI as General Manager since 23.1.2006. In the seniority list of Superintending Engineers, Shri Sharma is at Sl. No. 15 whereas Shri S.S. Nahar is at Sl. No. 17. Therefore, Shri M.P. Sharma being senior to Shri Nahar, has to be also promoted as CGM and posed in NHAI.
Submitted for approval.
Sd/-
(Saroj Kumar Dash) JS(T&A) 4.09.2008 Secretary (RT&H) We may appoint Shri M.P. Sharma, SE as C.G.M. in NHAI. Shri V.S. Prasad should work in the Department as SE. Shri S.S. Nahar may also be appointed as CGM in NHAI.
May kindly approve the above in amendment to what was earlier approved by the Minister at page 2/N. Orders have not yet been issued.
Sd/-4/9/08 (BRAHM DUTT) Secretary(RT&H) Minister Let the earlier order stands good.
Sd/- 12/9/08 Minister Secy (RT&H) Please speak.
Sd/-16/9/08
(BRAHM DUTT) Secretary(RT&H)
JS (PPP)
Discussed with Secretary. Please speak.
Sd/-(JS(PPP)
20/09
DS (A)
Please speak on return from leave.
Illegible
5. The Applicant avers that noting dated 04.09.2008, reproduced above, was placed by Shri S.K. Dash, Respondent No.4 herein, indicating therein that the Applicant had remained outside the Ministry on deputation for 9 years out of 23 years of service. It was also stated that he had not completed the two years cooling off period and, therefore, could not be sent on deputation. Nothing is said after stating that the applicant had joined the department on 25.6.2007 and, therefore, requisite two years cooling off period had not lapsed. It is further noted regarding S.S. Nahar that there is no problem in sending him to NHAI on deputation and he is willing to go there. It is also noted that M.P. Sharma, Superintending Engineer, who is senior to S.S. Nahar, is already posted in NHAI as General Manager since 23.1.2006, and, therefore, he has also to be promoted as CGM and posted in NHAI. An attempt, as set up by the Respondents, was clearly being made to delete the name of the Applicant and substitute the same by M.P. Sharma. Therefore, instead of the two names of applicant and S.S. Nahar, the noting now mentioned that names of M.P. Sharma and S.S. Nahar be sent as CGM to NHAI. It was unambiguous that Respondents herein, and other respondents had concealed the fact that M.P. Sharma had applied on 27.08.2008 (Annexure-A2) to Deputy Secretary (Admn.), Department of Road Transport & Highways for forwarding his application for the post of CGM (Planning & Quality), NHAI on deputation basis against the advertisement of NHAI dated 20.08.2008. This he had done without routing through the NHAI authorities. It is the case of the Applicant that reasoning as given in the note, would completely establish the mala fides on the part of respondents. In recommending the names of M.P. Sharma, the argument raised in his favour was that he was senior to S.S. Nahar, but it is interesting to note that there has been concealment of the fact that the Applicant is four places senior to M.P. Sharma and six places senior to S.S. Nahar. Insofar as the reasoning given to the effect that the Applicant had not completed two years cooling off period is concerned, the same is misleading as the cooling off period could be waived by the competent authority, which is the Minister. Once, the concerned Minister had already accorded the approval for the Applicant to be sent on deputation to NHAI, the constructive interpretation would be that the cooling off period was waived by the Minister. Moreover, M.P. Sharma had been on deputation with NHAI since 23.01.2006 and, therefore, the proposal to now appoint him as CGM without any cooling off period at all being given, was clearly in violation of the official memorandum. The applicant has given a list of various persons in whose case cooling off period has not been applied, which reads as follows:-
AS CGM IN NHAI Shri K.C. Verkachayam on 31.7.2008 for second deputation just after completing 5 months of cooling off period.
Shri B.N. Singh for second deputation just after completing 2= months of cooling off period.
Shri R.P. Indoria for second deputation just after completing 10= months of cooling off period.
Shri C.K. Kandaswamy for second deputation just after completing 16 days of cooling off period.
Shri S.K. Puri - just after completing 10= months of cooling off period.
Shri M.P. Sharma no cooling off between deputation as GM till 27.9.2008 and as CGM thereafter.
As GM Shri V.K. Rajawat within a period of 6 months for the second deputation to NHAI and within a period of 2 years and 8 months for third deputation to NHAI.
On Central Deputation Shri A.P. Pathak within a period of 1 years and 7 months for second deputation and within a period of 2 years 3 months for third deputation on 26.9.2006.
ON MANDATORY DEPUTATION TO IRC Only on 31st December, 2008, Shri R.P. Indoria has been sent on deputation to Indian Roads Congress even when he had come from earlier deputation from NHAI was in March, 2008.
6. Despite the noting, reproduced above, which was made after the Minister had already approved the deputation of Applicant, the matter again reached the Minister who, in the order dated 12.09.2008, directed that his earlier order held good. The Minister while reiterating his earlier order rejected the objection raised in the noting. Despite the orders having been passed for the 2nd time by the Minister, order of deputation was issued only on 24.09.2008 after a period of 12 days. Thereafter, even though the posting orders for NHAI had been issued, but necessary relieving orders were not issued by the Respondents. This inaction on the part of respondents is actuated with mala fide intent and based on extraneous considerations. Insofar as Shri M.P. Sharma is concerned, necessary orders were passed on 25.09.2008. Despite several months have elapsed, relieving order of the Applicant has not been issued. The Applicant states that he is much better placed than M.P. Sharma since Director General, Road Development recommended Applicants case and had been duly approved by the competent authority. The representation dated 16.09.2008 made by M.P. Sharma, along with various notings, has been placed on record as Annexure A-5. When it pertained to the case of M.P. Sharma, the same set of officers became very efficient in moving the case of giving another deputation to him to NHAI for the post of CGM and his representation was directly taken by these set of officers without getting the same moved through official channel of Chairman, NHAI, which is an administrative requirement to be fulfilled. Perusal of the notings, according to the case of the Applicant, would also show that on 30.07.2008 K.C. Verkachayam, SE, posted in the Planning Zone and Satish Kumar, SE posted in P-5 Zone, were sought to be appointed as CGM and the said proposal was given effect to. In that case also, orders were passed on the very next day i.e. 31.07.2008. K.C. Verkachayam had been posted in the Ministry on repatriation from deputation (which was in NHAI) on 25.02.2008, yet, he was again sent back to NHAI after about 5 months on 31.07.2008. However, insofar as issuance of relieving order of the Applicant is concerned, the Respondents delayed the same on one pretext or the other. They, in fact, it is urged, re-started the process. Even though the Minister had already approved the deputation of the Applicant twice over, the Respondents, either to scuttle the same or even to put it to an end, kept on processing the file by making one note after the other. The notings made in the file have been placed on record as Annexure A-7, which read as follows:-
Reference notes on pre-page (page 11/ante) This is regarding relieving of Shri V.S. Prasad, SE for joining NHAI on deputation. The Honble Minister had earlier approved the deputation of S/Shri V.S. Prasad and S.S. Nahar to NHAI on deputation as CGM. Accordingly, Shri Prasad has been deputed to NHAI vide order No.A-35021/2/2008-E-II dated 24.09.2008. However, when the file regarding relieving of Shri Prasad was submitted for approval, it was decided vide note at page 11/ante to link up the file on which the decision to post a CGM in NHAI has been taken and also to furnish a list of officers who have proceeded on deputation to NHAI and other organizations without completing the prescribed cooling off period. Photocopies of the noting relating to decision to post Shri V.S. Prasad on deputation to NHAI may please be seen at Flag X. The list of officers who have not completed the prescribed cooling off period may please be seen at Flag Y. The case is being put up on the personal file of Shri Prasad since this relates to his relief.
Submitted for consideration.
Sd/-
1/10/08 USCE-II SD/- 1/10/08 DS (A) Sd/- 01.10.08 JS (PPP) May pl. see the note para above. As may be seen from F/Y, Shri B.N. Singh, SE was sent on deputation on 8.11.2004 without completing 2 years cooling off period after return from earlier deputation on 18.08.2004. In the case of Shri K.C. Verkachayam, SE, he has been allowed fresh deputation recently w.e.f. 04.08.2008 after returning from the earlier deputation on 25.02.2008.
From pre-page.
As per information made available at F/Y, there is no other officer presently on deputation without completion of cooling off period. Submitted as desired.
Sd/-01/10/08 Secretary (RT&H) Please examine the case with reference to orders of DOP&T on deputation of officers to outside their cadre and cooling off period, if any, between to deputations.
Sd/- 2/10/08 JS Sd/- 3/10/2008 DS(A) Sd/3/10/08 US (Estt).
Sd/3/10/08 Reference notes at pre-page. The latest O.M. dated 29.02.2008 issued by DOPT is placed in the file at Flag A. The cooling off period mentioned here is 3 years. (F/X).
Submitted pl.
Sd/-8/10/08 DS(A) As per our own deputation policy also, the cooling off period between any kind of deputation within or outside the country should not be less than three years (Flag/B).
Submitted please.
Sd/-08.10.08 JS(PPP) The prescribed cooling off period as per DOPT and our deputation guidelines is 3 years. Secretary may pl. see in reference to his directions on the pre-page.
Sd/-08/10/08 Secretary (RT&H) Please discuss.
Sd/-08/10/08 JS(PPP) Reference Note at pre-page.
2. In the instant case name of Shri V.S. Prasad was suggested with the concurrence of then DG (RD) & SS. Shri Prasad has joined this Department on 25.06.2007 after return from Central Deputation. Shri V.S. Prasad has completed one year and 4 months in the department. The Honble Minister (S, RT&H) has already approved names of S/Shri V.S. Prasad and Shri S.S. Nahar for deputation to NHAI as CGM. Accordingly, orders were issued in respect of both the officers. Shri S.S. Nahar has already been relieved to join NHAI on 30.09.2008. But, when the file regarding relieving of Shri Prasad was submitted, it was decided vide note at page 11/ante to link up the file on which the decision to post CGM in NHAI has been taken and a list of officers who have proceeded on deputation to NHAI and other organizations without completing the prescribed cooling off period i.e. 3 years as per guidelines of DOP&T OM dated 29.02.2008.
3. However, the department has formulated its own deputation policy particularly keeping in view functional requirements of Engineers in NHAI. As per this policy, the deputation to NHAI of the officers of CES (Roads) Group A will be on mandatory basis and length of cooling period is three years in both the cases. However as per 1(f) of the aforesaid deputation policy, in the public interests this period can be reduced or increased and reasons for the same should be clearly brought out in the notice of competent authority.
4. The list of officers who were sent on deputation after DOP&T order dated 29.02.2008 are as below:-
Sl. No. Name & Designation (S/Shri) On deputation to Post held on deputation On deputation since 1 R.K. Singh NHAI CGM(Tech.) 13.5.2008 2 Satish Kumar NHAI CGM(Tech.) 04.08.2008 3 K.C.Verkeyachan NHAI CGM(Tech.) 04.08.2008 4 S.S. Nahar NHAI CGM(Tech.) 30.09.2008
5. It would be seen that 4 SEs have been sent on deputation after 29.02.2008. All the officers sent to deputation did not go to NHAI at their own volition. Out of 4 officers S/Shri K.V. Verkeyachan has not completed the cooling off period. However, the officers have been sent to NHAI in the exigency of work with the approval of Honble Minister (S, RT&H). For this, the Minister is competent to reduce or enhance the cooling off period in terms of para (f) of departmental deputation policy dated 01.11.2001. It is also added that it was already pointed out vide JS(T&A)s note dated 04.09.08 that Shri V.S. Prasad was yet to complete the required cooling period. However, the Honble Minister has reiterated his earlier order dated 2.09.08 for sending Shri Prasad to NHAI.
6. In view of position explained at para 5 above, a decision has to be taken whether requirement of cooling off period would be a pre-requisite in case of sending officers on mandatory basis in public interest with the approval of Honble Minister (S, RT&H). In case it is decided that it is necessary we will have to review the decisions taken in respect of Shri Verkeyachan and Shri V.S. Prasad.
Submitted for orders with regard to proposal contained at page 11 notes regarding reliving or otherwise in respect of Sh. Prasad.
Sd/-21/11/08 US(E-II) Sd/- 24.11.08 DS (A) Sd/- 24.11.08 JS(PPP) From pre-page Pl. reproduce the provisions under the consolidated guidelines on deputation/foreign service from Gp. A and Gp. B services of the Central Govt. as issued by DOPT on 29.02.2009. As per DOPT has laid down the terms & conditions for deputations, well have to comply with the same. Pl. examine whether we have to revise our guidelines or we follow the guidelines now laid down by the DOPT? Is there any provision for relaxation in DOPT guidelines as regards the cooling off period.
Sd/-02/12/08 DS(A) Sd/-02/12/08 US(E-II) Sd/-02/12/08 SO (E-II) Reference JS(PPP)s query at page 17/N
2. The revised guidelines on deputation policy issued by DOPT are placed at Annexure-A. As per these guidelines the appointment for this post is to be through Search cum Selection Committee as no RRs have been approved for the post of GGM in NHAI Recruitment Rules.
3. However, the Ministry has formulated its own deputation policy which allows sending officers of CES (Roads) Group A on mandatory deputation basis. This has been perhaps done to cater to functional requirements of NHAI for availability of officers of CES (Roads) Group A to accomplish their projects without involving much screening process. The officers have been sent on deputation at various levels to meet the immediate requirements of engineering officers in NHAI.
4. It has also been proposed by NHAI that 30% of the total technical posts may be from amongst the officers of D/RT&H and for this a proposal for strengthening the cadre of CES (Roads) Group A is under submission.
5. It is also submitted that in case of normal deputation procedure the involvement of Search cum Selection Committee is required. It is a time consuming process and the posts at senior level can not be allowed to be vacant for want of these requirements. Secondly, if we follow the DOPT guidelines as it is, the Ministry may lose its upper hand to send exclusively the officers of this Department. Apart and partially, the work of NHAI and the Department are the same as the both are engaging with the Development of National Highways in the country. As such this Department is committed to meet the functional requirements of NHAI for building the highways in so far as engineering officers are concerned.
6. It is further stated that as per latest DOPT guidelines quoted above, the posts of Chief Executives in Autonomous bodies carrying a pay scale of Rs.18400-22400 and above are required to be filled up through Search Cum Selection Committee. The officers of this Department have been sent on these posts on mandatory deputation to avoid time loss. In case the deputation policy of DoPT is to be implemented in toto the decisions of this Department such as Shri S.S. Nahar, K.C. Verkyachan, M.P. Sharma and other officers will be infructuous. This is why this Ministry has devised its policy of mandatory deputation exclusively for NHAI. The Minister has been given the power to increase or decrease the cooling period. There is no such flexibility in case of DoPT policy.
7. It is also stated that the nomination of Shri Prasad is already approved by Honble Minister and he has waived the requirement of cooling period under the existing policy. In case it is considered necessary to review the present policy, it would be applicable from the prospective date. The decision will not perhaps have effect on the proposals already approved by the Minister and reiterated the stand. However, if it is given a retrospective effect following picture will emerge:-
The proposals decided after 29.2.2008 will require to be approved by Search cum Selection Committee retrospectively.
The officers not found fit by the Committee will have to be repatriated.
All those officers who have already been sent in relaxation of cooling period will have be called back.
8. On comparison of both the policies, it is observed that they differ to each only to the extent that the authority for granting relaxation in cooling period has not been provided. But as it is practice, the nodal Ministry retains the residuary powers with it which implies the power to relax the requiring of cooling off as well.
9. It would be observed that the deputation policy of the Department is not contrary to the deputation policy framed by DOPT. It is mainly devised for catering to the requirements of engineering offices by the NHAI. Therefore the powers given to Honble Minister (S, RT&H) regarding relaxation in cooling off period under clause 1(f) have perhaps been incorporated to provide engineering strength to NHAI in the need of hour.
10. In the instant case, Shri V.S. Prasad has already been communicated the orders regarding his nomination to NHAI. Denying him opportunity to join NHAI without substantive justification may result in complications. Therefore a decision may be taken as to whether it is necessary to review the departmental deputation policy or Shri Prasad could be allowed to join NHAI as per orders of Honble Minister (S, RT&H).
Submitted for orders.
Sd/- 08.12.08 US(E-II) Sd/- 08.12.08 DS(A) Sd/- 1812.08 JS(PPP) Discussed with JS(A) along with DS(A) today. Pl. discuss.
Sd/- 16.12.08 S.O.(E-II)
7. It is the case of Applicant that the work of NHAI is suffering for want of adequate number of CGMs. The newspaper clippings (Annexure A-9) and the observations of Honble Delhi High Court would also suggest so. It is the case of the applicant that had he been relieved, this shortage would have been met to some extent. It is alleged by the Applicant that the Respondents have been working against national and public interest to serve their own interest, and are all set to harass the technical officers and by their actions of deliberate discrimination against the Applicant which have resulted in violation of his fundamental rights enshrined under Articles 14 & 16 of the Constitution of India. The Applicant, it is pleaded, has been unnecessarily subjected to extreme mental agony and harassment, besides loss of financial benefits for last some months and has been compelled to file this Original Application.
8. Pursuant to notice issued by this Tribunal, a joint reply on behalf of all the respondents has been filed through Sh. D.R. Sharma, Under Secretary, Department of Road, Transport & Highways. The respondents, who have been impleaded by name and against whom allegations of mala fide have been made, have not filed any separate reply. In the joint reply filed on behalf of all the respondents, it has been averred, by way of preliminary objections, that the officers, who have been arrayed parties, are public functionaries and while processing the case of the Applicant for deputation to NHAI, were discharging their duties in their official capacities, and they categorically deny all allegations of mala fide intention. Department of Road, Transport & Highways is stated to be the Cadre Controlling Authority of Central Engineering Service (CES) (Roads), Group A posts and is entrusted with the implementation of National Highways Act, 1956 and some other Acts. The Department is responsible for development and maintenance of national highways and collection and analysis of data on transport for research for increased and safe mobility of the road transport system in the country. NHAI is stated to be created by an Act of Parliament called NHAI Act, 1988 as an autonomous body, which is governed by a Board comprising five full time Members and four part time Members. It carries out the development and maintenance of those stretches of the national highway network, which are entrusted to it by the Government of India through the Department of Road, Transport & Highways. NHAI, it is stated, to some extent, is dependent on the engineers of CES (Roads) cadre and officers of the cadre at various levels have been sent to NHAI on mandatory deputation basis enabling the organization to carry out the assigned tasks within the stipulated period of time in accordance with the mandate given under the NHAI Act, 1988. CES cadre was created during the year 1959. It is stated that the Applicant joined the Department of Road, Transport & Highways on 13.06.1985, and during his 23 years of service, he has been on deputation outside the Ministry for a period of 9 years, (i) Ministry of Steel for four years from 18.01.1995 to 17.01.1999 and (ii) Ministry of Home Affairs for five years from 23.04.2002 to 26.06.2007. He has joined his parent cadre thereafter. Since Department of Road, Transport & Highways is responsible for the development and maintenance of national highways in the country, it has been making available the services of officers of CES cadre (Roads) to NHAI on deputation basis. In the past, there have been some instances when officers of CES cadre applied for appointment in NHAI for transfer on deputation on the basis of open advertisement and they were sent after the approval of the competent authority. The applicant had never applied for the post of CGM in NHAI. Following the requirement of officers to be posted at the level of CGM in NHAI, JS(T&A), who was then dealing with the administrative matters connected with the CES, sought recommendations from the DG (RD) & SS and Special Secretary, who is the Technical Head of the Roads Wing. There was no requirement of seeking the recommendations of the DG (RD) & SS as he was not concerned with the administrative matters. Keeping in view his position as most officer of the CES and Head of the Technical Wing, his recommendations were sought. As the DG (RD) & SS was not expected to be aware of the requirement as regards the completion of cooling off period, he could not take into consideration while sending his recommendations to the Secretary. He should have returned his recommendations to the JS (T&A) who could have then scrutinized the relevant service profiles of the concerned officers and the position in regard to their having completed/not completed the cooling off requirement could also have been brought out. Not realizing the absence of this course of action having been followed in the matter, the recommendation of DG(RD)&SS was endorsed by the Secretary (RT&H) in good faith while submitting the proposal for approval of the Minister. No mention could, therefore, have been made at that time of the cooling off requirement. In the absence of the mandatory cooling off requirement having been brought on record, the question of any relaxation or waiver thereof did not arise at all. The applicant is posted as Superintending Engineer. The total sanctioned strength of SE (Civil) in this Department is 53 against which 11 officers are already on deputation to NHAI and other organizations while 11 posts are vacant. The vacancies are likely to further increase after the promotion of SEs to the post of CEs for which DPC has been conveyed by UPSC. Evidently, the number of SEs who would be in position in the Department comes out to be about 50% of the total strength. As the applicant had not completed the requisite cooling off period of three years in the Department as per guidelines of DOP&T contained in OM dated 29.02.2008 after his repatriation from last deputation in Ministry of Home Affairs, it was accordingly proposed not to depute him to NHAI on deputation basis. Where an officer is recruited in a certain cadre, he is liable to serve that cadre for carrying out the functions for which that cadre has been created for the major part of his service tenure. Moreover, if there are certain opportunities for deputation outside the cadre, these are to be equitably made available among various officers of the organized cadre keeping in view the requirement of the posts, their performance and the need for exposure. A stint of deputation by an officer outside his cadre is an incident of service which does not affect, one way or the other, his seniority in his own cadre. It is for the borrowing and lending departments to administratively decide about the feasibility of sending/accepting an officer on deputation or otherwise. Deputation cannot be claimed by an officer as a matter of right. DG(RD) & SS in the Department of Road, Transport & Highways had recommended the name of the applicant for the post of CGM in NHAI on deputation basis unmindful of the requirement of completion of cooling off period as prescribed under DOP&T guidelines. While approving the recommendations made by DG(RD)&SS, full facts with regard to the cooling off period by the applicant were not available on record and the proposal was endorsed by Secretary (RT&H) in good faith. Subsequently, relevant facts were brought to the notice of the Minister (S, RT&H) indicating that the applicant was already on deputation for nine years first in the Ministry of Steel from 18.01.1995 to 17.01.1999 and subsequently in Ministry of Home Affairs from 23.04.2002 to 26.06.2007. After his repatriation from deputation, he was required to complete the cooling off period of three years. In the absence of completion of cooling off period of three years, the applicant could not be sent on deputation to NHAI. All the relevant facts regarding the period spent by the applicant on deputation outside the Ministry and the date on which he joined back the Department were brought to the notice of Secretary (RT&H) and the Minister indicating that the applicant was yet to complete three years cooling off period. The fact that Mr. Sharma, who was senior to S.S. Nahar and was already working as G.M. in NHAI, while S.S. Nahar was being sent as CGM in NHAI, had to be brought to the notice of the competent authority in order to avoid any embarrassment to the senior officer and to the Government as the post of GM in NHAI is lower than the post of CGM. This was only with this intent to avoid this anomaly that Mr. Sharmas name was also proposed for upgradation as CGM in NHAI, if Nahar was to be sent as CGM. The order of seniority in the main cadre needs to be reflected in the postings of officers of an organized cadre in the borrowing department even if they are sent in an autonomous organization like NHAI. The fact that the seniority of the applicant was not reflected in the noting aforesaid could not be interpreted as a reflection of mala fide intention. It is denied that the name of the applicant was deleted and substituted by M.P. Sharma, rather Mr. Sharma was already working on deputation in NHAI as GM w.e.f. 28.11.2005. It is admitted that the Minister decided that his earlier orders in respect of the applicant would stand good, but it is added that at the time of issuance of order of deputation of the applicant to NHAI as CGM, Secretary (RT&H) was on tour abroad. On his return from abroad, the matter was brought to his notice and as desired by him the file was again submitted bringing out all the relevant facts on record. After issuance of order for deputation, there is a further requirement of issuance of another order for relieving the applicant from the post held by him in the Department. After discussion with the Secretary (RT&H), it was decided that the matter should be re-submitted to the Minister and the officer not be relieved pending orders. The process of decision making in the Central Secretariat involves various channels starting from the dealing hand right up to the level of competent authority. In the case of deputation order, the first stage is initiation of proposal and the final stage is relieving order. It is the case of the respondents that till the relieving order is issued, the process cannot be considered as over. Till the process is over, the case can be examined, re-examined and again re-examined as many number of times as required as long as the competent authority has not satisfied itself completely as per its own best judgment. It is always open to the competent authority to question the reasonableness of the necessity of re-submission, in the light of justification given for the same. As regards the plea of the applicant for sending other officers on deputation to NHAI and other organizations without completing the requirement of cooling off period, it is the case of the respondents that these officers were sent on deputation from time to time as per administrative requirement. Only one officer namely K.C. Varkeyachan, Superintending Engineer has been sent to NHAI as CGM without fulfilling the requirement of cooling off period after issuance of DOP&T consolidated guidelines applicable to all Central Services Group A offices including Central Engineering Services which stipulates the said requirement. It was in view of this that the proposal to recall Verkeyachan, SE (Civil) to this Department from NHAI was also submitted to the Minister for the sake of maintaining consistency while ensuring compliance of the said guidelines. The respondents were duty bound to comply with the requirements laid down under the rules and, therefore, the file was accordingly submitted for cancellation of the deputation order. The applicant is stated to be chasing his file in the department as reflected by the photocopies of note sheets from various files enclosed with this Application and which, it is stated, have been obtained unauthorisedly. It is then pleaded that the Minister has since approved the cancellation of the impugned order which, however, has not been issued in compliance with the directions of this Tribunal.
9. The reply on merits is no different than the one mentioned in the preliminary objections. There will be, thus, no need to make a mention of the same, insofar as repetitions are concerned. It is admitted that while deciding two more officers to be sent to NHAI on deputation basis, the noting of the Minister was sent to DG(RD) &SS for suggesting the names of officers, who are to be sent to NHAI as CGM. DG (RD)&SS, who is the Technical Head of CES officers in the Department, suggested the names of two officers namely S.S. Nahar and the applicant for being deputed as CGM in NHAI on mandatory deputation basis. While approving the recommendations of DG(RD)&SS, it is pleaded, full facts with regard to cooling of period by the applicant were not available on record. With regard to deputation policy, it is pleaded that the department had earlier devised its own deputation policy for sending CES officers on deputation, vide OM dated 01.11.2001 (Annexure R-3). The Department had been following the said deputation policy eversince, and as per this policy, the Minister is empowered to waive off the requirement of cooling off period. However, subsequently, consolidated guidelines have been issued by DOPT vide its OM dated 29.02.2008 applicable to all Central Services including Central Engineering Services which lays down that there shall be a mandatory cooling off requirement after every period of deputation and foreign service. The length of cooling off period of JS level officers (Rs.18400-22400) and below is 3 years. There is no provision of any kind of relaxation in the cooling off period. Relieving order of the applicant, it is stated, is not being issued keeping in view the requirement of cooling off period. It is significant to mention that there is no worthwhile reply coming from the respondents on the specific assertions and facts made by the applicant contained in para 4.4 of the Original Application. A list of various persons, in whose cases cooling off period has not been applied, has been given by the applicant, whose names we have already reproduced in earlier part of the order.
10. The applicant has filed rejoinder to the reply filed on behalf of the respondents.
11. When the matter came up for arguments, counsel for respondents stated that he would need time to have instructions with regard to the averments made in the rejoinder and may file reply to the same. Counsel for the applicant would, however, contend that a period of more than 7= months was already elapsed and despite the fact that the order in respect of the applicant having been passed for deputation to NHAI, he has not been relieved so far, and further delay in the matter would aggravate the miserable plight of the applicant. In these circumstances, he would thus not refer to the averments made in the rejoinder. He insisted that the matter must be heard and finally disposed of. When confronted with the position aforesaid, counsel for the respondent would have no choice but for to argue the case.
12. Arguments in this case were concluded on 1.5.2009 and judgment was reserved. In midst of writing of the judgment, we thought some further directions were required to be issued to the respondents before we could finally pronounce the judgment. Instead of thus finally disposing of the matter, we recorded the interim order on 5.5.2009, which reads as follows:
Arguments were heard in this case on 01.05.2009 and the judgment was reserved. When the matter came up for hearing on 16.02.2009 before the Bench, then seized of the matter, the following order was passed:
List on 25.02.2009 for final hearing. We make it clear that reply shall be filed before the next date.
Learned senior counsel for applicant has produced before us a list showing certain filed where persons, who have not completed their cooling period, have been appointed.
Learned counsel for respondents is directed to bring the files, list of which has been supplied to him, on the next date of hearing for our perusal.
Interim order to continue till then
2. During the course of arguments, counsel defending the respondents informed us that the relevant record was available with him and on conclusion of the arguments, he has handed over to us the same. In the midst of writing of judgment, when we, however, referred the record, we found the files handed over to us were three personal files of the applicant only and not of the officers whose list was produced before the Bench on 16.02.2009.
3. When the arguments commenced on 01.05.2009, counsel for the respondents stated that he would have instructions with regard to the averments made in the rejoinder. Counsel for the applicant, however, stated that the matter was urgent and despite the fact that the orders sending the applicant on deputation to NHAI has been passed on 24.09.2008, respondents were not issuing relieving order, and in the interregnum the applicant has suffered untold misery and hardship. Counsel urged that the matter was so urgent that he will not refer to the contents of the rejoinder and would prefer the decision from this Tribunal as early as possible. Despite the fact that we have heard arguments on 01.05.2009, on the fervent request of the counsel for applicant, who has chosen not even to refer to the rejoinder, it is not possible for us to write the judgment without the relevant record.
4. In the context of contentions raised by counsel for the parties, it is necessary to have a look at the relevant record. We, therefore, direct the respondents to produce the relevant record by the next date of hearing. Now, since the matter has been adjourned out of necessity, the respondents may file their reply to the rejoinder or else have instructions and the relevant record pertaining to averments made in the rejoinder.
5. In reply filed on behalf of the respondents, it has, inter alia, been averred that when the matter for third time was placed before the Minister, he approved cancellation of the impugned order which, however, has not been issued in compliance of the directions of this Tribunal. The applicant, on the other hand, during the course of arguments produced the order where the Minister on the third proposal of the official respondents on 22.01.2009 passed the following order:-
I have ordered on two occasions. In case the cooling off period is necessary, how could Mr. Inderia has been sent on deputation to IRC? Pl. explain and put up. The respondents should also produce the order passed by the Minister cancelling the impugned order of sending the applicant on deputation.
7. List the matter again on 14.05.2009. Pursuant to our directions contained in order dated 5.5.2009, the respondents have produced some of the relevant files.
13. We have heard learned counsel for the parties and with their assistance examined the records of the case.
14. From the respective pleadings made by the parties and the rival contentions raised by respective counsel, the issues that need examination by this Tribunal appear to be only two, the first being as to whether the deputation policy of 2001 framed by the Department of Road, Transport & Highways would apply or the one issued by DOP&T vide OM dated 29.02.2008 would govern the field. Connected with it, would be the issue as to whether there is any difference in the two policies and the second being that, in the facts and circumstances of the case, is there any justification to hold on the already issued order deputing the applicant as CGM to NHAI by not issuing him the relieving order? The second question is connected to the plea of the applicant that respondents, who have been arrayed as party respondents by name and against whom allegation of mala fide has been alleged, have discriminated against him in the matter of deputing him as CGM to NHAI.
15. Before we may comment and adjudicate upon the issues as framed above, we may mention that the first thing that required clarification was with regard to averments made in the counter affidavit regarding the file having been submitted for cancellation of deputation order, and the Minister having approved the cancellation. In para 11 of the counter affidavit, it has inter alia been pleaded that It is respectfully submitted that the respondents were duty bound and obliged to comply with the requirements laid down under the rules and the file was accordingly submitted for cancellation of the deputation order It may also be added that the Minister has since approved the cancellation of the impugned order which, however, has not been issued in compliance with the directions of the Honble Tribunal. We specifically required the counsel representing the respondents to produce the order passed by the Minister canceling the order deputing the applicant to NHAI. No order as such has been referred to, and the same is admittedly not on records. It is, however, urged that this Tribunal vide order dated 14.1.2009, while issuing notice had directed the respondents not to cancel the order dated 24.9.2008, and status quo in this regard was to be maintained, and when the said order was brought to notice of the Minister, it came to be recorded on the file on 30.1.2009 that status quo should be maintained. The relevant part of note dated 30.1.2009 reads as follows:
10. In the aforesaid case, the Honble CAT has granted him interim relief directing the respondents not to cancel the order dated 24.9.2008 and to maintain status-quo in this regard. It has also been directed by the Honble Tribunal that during interregnum nobody should be deputed as CGM to NHAI on mandatory deputation.
11. In view of the orders of the CAT we have no option but to maintain status-quo in the matter at this juncture and therefore we cannot issue cancellation order in respect of Shri V S Prasad till interim order of the CAT is vacated. The Department will be filing the reply in accordance with the factual position on record as indicated in the preceding notes. We are not able to definitely conclude as to whether this note was seen and signed by the Minister, even though in the endorsement the word Minister in hand has been written and there do appear some signatures below that also. If perhaps, the plea raised in the counter reply with regard to cancellation of deputation of the applicant was correct, the parameters of the case would substantially change. We are distressed to note that the averment made on a sworn affidavit is not only misleading but is totally false. There was a time when pleadings made on affidavits, particularly from the side of the Government, were considered sacrosanct and the courts by and large would go by the same even without referring to the records. Such was the sanctity of the pleadings made on affidavits. It is unfortunate that the time has come that even the Government, like ordinary litigants, would endeavour its best to deny a citizen his rights by misleading the court by distorting the facts and coming up with averments which may be false. The applicant, on the other hand, has produced copy of order dated 22.1.2009 where the Minister has observed that I have ordered on two occasions. In case the cooling off period is necessary, how could Mr. Inderia has been sent on deputation to IRC? Pl. explain and put up. The plea thus raised in the counter affidavit that the order deputing the applicant to NHAI has been cancelled is palpably incorrect and false.
16. The Department of Road Transport and Highways has its own deputation policy of the year 2001. That came into being vide OM dated 1.11.2001. The same reads as follows:
Subject: Deputation policy.
With the approval of Honble Minister-IC (RT&H), the deputation policy (both within and outside the country) for the officials of the Ministry has been formulated. The guiding principle for such deputation will take into consideration the following points:
xxx xxx xxx The Cooling Off period between any kind of deputation within or outside the country should not be less than three years. However, in the public interest this period can be reduced or increased and reasons for the same should be clearly brought out in the notice of competent authority. For this purpose, Minister would be the competent authority for all Group A offices and Secretary for others; and The selection of names for deputation must be on the basis of seniority-cum-fitness and preference would be given to those officers who have the least number of deputation chances in the past. However, while forwarding the names, the requirement of assignment and merit of applicant must be paramount. The officers of Central Engineering Service (Roads) would be considered for deputation to National Highways Authority of India purely on mandatory basis.
2. The normal deputation period would not exceed three years. The period would be extendable by six months at the level of Secretary and further extension up to five year will be given at the level of Minister. However the extensions would be granted only in exceptional cases and the reasons for the same would be recorded for maintaining transparency.
3. The competent officer for nominating the officers for deputation (within country) would be as under:-
a) All Group A Officers, except -Secretary Joint Secretary Level
b) All others -Joint Secretary (Administration) Nominations for Deputation in respect of Joint Secretary level officers and all foreign deputations will be approved at the level of Minister in Charge.
However, the nominations will be subject to the clearances of the respective cadre controlling authorities. The policy aforesaid was issued with the approval of the Minister-IC (RT&H) and is applicable to officials of the respondent department only. The policy specifically mentions about the deputation of officers of Central Engineering Service (Roads) to NHAI purely on mandatory basis. It is significant to note that those posts are considered as ex-cadre posts of Central engineering Service (Roads) and as such deputations to those posts are termed as mandatory. The policy provides for cooling off period as three years and the Minister is competent authority for all Group A officers to reduce or increase the cooling off period.
17. With regard to DOPT OM No.AB-14017/2/07-ESH(RR) dated 29.2.2008 (Annexure R4), the Guidelines are applicable to Central Staffing Scheme, Non Central Staffing Scheme Posts, Ex Cadre deputation, International Organizations, Autonomous body, trust, Society etc. not controlled by the Government or a Private Body. In view of para 2.5 of the OM, there has to be a mandatory Cooling off requirement after every period of deputation and foreign service. The length of Cooling off shall be as follows :-
For JS level (Rs.22400-25000) and below-3 years.
(ii) For AS level (Rs.22400-25000)-1 year
(iii) For Secretary level nil.
We may note that similar provision has been existing in the Schemes operated at the Government of India level. In that connection, we may refer to OM dated 5.01.1996 issued for the Central Staffing Scheme, which also provides the graded cooling off period for (a) Joint Secretaries and below, (b) Additional Secretaries and (c) Secretary. In our view, the consolidated OM of DOPT dated 29.02.2008 is a compilation of OMs and Circulars issued on the subject for various staffing schemes and the DOPT has made an attempt to bring out only the common factors which would be applicable across the Departments/Ministries.
18. We have gone through both Policies and find that DOPT OM dated 29.2.2008 is general, broad and applicable to all Ministries, Departments and related organizations. Such a generic policy cannot take care of the exigencies and contingencies of different Departments. We also find that DOPT has consolidated its earlier orders into one consolidated guideline. The said OM did not supersede any order/circular issued by other Departments or Ministries. Further, the respondent department did not repeal/amend its deputation policy dated 1.11.2001 to come in line with the DOPT OM, nor any step has been taken to get the same classified from DOPT. Both are in co-existence to supplement each other. DOPT Policy may be silent on the exigency of reducing or increasing the cooling off period, but there is no embargo either that the same cannot be reduced or increased. It is too well settled that even if it may be a case of fixed tenure of deputation, the same can be cut-short. There also cannot be any dispute that if the exigencies of service may so require, the period of deputation can be increased. This is what is happening since ages. If, therefore, the provision with regard to increasing or decreasing the period of cooling off is not specifically mentioned in the DOP&T guidelines/policy, it would not mean that the concerned authorities may not have any such power. Unless, therefore, there may be a specific embargo or ceiling limit for cooling off period, and further the same cannot be curtailed or increased, it shall have to be held that the same can be done. In the context of the facts as mentioned above, the policy of DOP&T can be, at the most, said to be supplementing the deputation policy of the DRT&H. It may be recalled at this stage that in the case of the applicant only when his file for deputation was shuttling from one place to another and from one authority to another, and when the Joint Secretary desired to know whether the cooling off period could be relaxed, and whether DOP&T guidelines were to be followed, a note dated 8.12.2008 came to be submitted wherein in paragraph 9 thereof, it has been clearly opined that the deputation policy of the department is not contrary to the deputation policy of DOP&T, and that it is mainly devised for catering to the requirements of engineering officers of NHAI, and, therefore, the powers given to the Minister regarding relaxation in cooling off period under clause 1(f) have perhaps been incorporated to provide engineering strength to NHAI in the hour of need. It is also mentioned in para 10 of the note aforesaid that the applicant had already been communicated the orders regarding his nomination to NHAI, and denying him the opportunity to join NHAI without substantive justification might result in complications, and, therefore, a decision may be taken as to whether it was necessary to review the departmental deputation policy or the applicant should be allowed to join NHAI as per orders of the Minister. In paragraph 7 of the note, it has also been mentioned that nomination of the applicant had already been approved by the Minister and the requirement of cooling off period under the existing policy had been waived, and that in case it was considered necessary to review the present policy, it would be applicable prospectively, and the decision would not perhaps have the effect on the proposals already approved by the Minister. It is also mentioned that if it was to be given retrospective effect, following picture would emerge:
The proposals decided after 29.2.2008 will require to be approved by Search cum Selection Committee retrospectively.
The officers not found fit by the Committee will have to be repatriated.
All those officers who have already been sent in relaxation of cooling period will have be called back.
19. In view of the discussion made above, we are of the considered view that the policy of DRT&H dated 1.11.2001 is not at variance with the deputation policy of DOP&T dated 29.2.2008. In any case, there is no mandate in the policy of DOP&T that it would apply across the board, irrespective of a particular department having its own policy. It does not rescind the deputation policies framed by respective departments. Further, if at all, the policy of DOP&T has to apply, the same would be only prospective. It would not possibly apply to deputations already made. There is no answer to the questions mentioned in the note dated 8.12.2008 referred to above, nor is it even the case of the respondents that the deputation policy of DOP&T dated 29.2.2008 would apply retrospectively, and for that precise reason, no one who may be affected by the said policy, has been touched.
20. Before we may advert to the second issue as framed above, we may mention that for the first time the proposal was initiated to depute two SEs to NHAI to meet the needs of NHAI for fulfilling its mandate on various road projects. The applicant had not asked for deputation to NHAI. It is DG&SS of the department who suggested that two SEs, one of them being the applicant and the other officer Shri S. S. Nahar, be deputed to NHAI. The file was routed through the first respondent to the Minister, who approved the deputation of both officers on 2.9.2008. We find from the personal file of Shri S. S. Nahar that he submitted his note dated 26.9.2008 and was relieved on the same day. In the case of Shri Nahar, the Joint Secretary noted in file No.A22020/3/2006-E.II on 7.2.2008 that Shri Nahar had not been pulling on well CE (Shri H. S. Ahluwalia) and that there were complaints against him when he was working at Patna. The Joint Secretary recommended transfer of Shri Nahar to Thiruvananthapuram, but the Minister ordered on 10.3.2008 to post him to Bridge Design Division. We wonder if Shri Nahar with such background could be deputed and relieved in one day why the applicant with unblemished record was not relieved? The second time the Minister saw the file was on 12.9.2008. Prior to that the proposal was initiated by Joint Secretary on 4.9.2008 with the noting that minor details about the applicants deputation were not checked up. Hence he wrote that out of 23 years of service put in by the applicant, he was on deputation in 2 spells for 9 years and joined back in the Department on 25.6.2007 and was yet to complete 2 years of cooling off period and it was suggested not to send him on deputation again to NHAI. It may be noted that the applicant in his earlier 2 deputations to Ministry of Home Affairs and Ministry of Steel, and was not on deputation to NHAI. Secretary of the Department on 4.9.2008 in his note informing that order of the Minister passed earlier was not issued, recommended that we may appoint Shri M. P. Sharma, SE as CGM in NHAI. Shri V. S. Prasad should work in the Department as SE. Shri S. S. Nahar may also be appointed as CGM in NHAI. Shri Sharma was later on deputed to NHAI as CGM vide order No.35021/2/2008 E.II dated 25.9.2008 and he joined with effect from 30.9.2008. It is to be noted that Shri Sharma was working already as GM and without spending the cooling off period as prescribed, he was posted as CGM. The Minister in his order dated 12.9.2008 recorded that let the earlier order stand good, meaning thereby that deputation of Shri Nahar to NHAI as CGM should be implemented. We find that in the note put up by JS the cooling off period deficit was mentioned, on which the said order was passed by the Minister. Thus, it is certain that the Minister had taken into consideration the objection raised by the authorities with regard to his not completing the cooling off period. Whereas, it may be so that when for the first time the Minister cleared the deputation of the applicant, specific mention with regard to waiving cooling off period may not have been made, but certainly and admittedly, for the second time, when the Minister approved the deputation of the applicant to NHAI, it was so specifically mentioned in the various notes referred to above. The case of the applicant came up before the competent authority, i.e., the Minister, on 22.1.2009. It was mentioned in the note initiated by the dealing assistant that pursuant to Ministers order dated 2.9.2008 and 12.9.2008, the order of the applicants deputation to NHAI was issued on 24.9.2008, and that the applicant had not yet been relieved of his duties in the department, and further that his request for relieving was under consideration/examination with reference to deputation policy of DOP&T. The applicant requested vide note dated 29.9.2008 to be relieved on 30.9.2008. A draft order for the same was put up and a query was raised by the Deputy Secretary on 30.9.2008 to link the file in which decision for deputation was taken. The dealing assistant put up the facts in flag X, along with the list of officers who had not completed the prescribed cooling off period at flag Y (flag Y is not available in the referred file for our perusal). The Joint Secretary in his note dated 1.10.2008 recorded that Shri B. N. Singh, SE and Shri K. c. Verkayachan, SE were deputed without completing the cooling off period. The Joint Secretary desired to know whether cooling off period could be relaxed and whether the DOP&T guidelines were to be followed. Consequently, a detailed note was submitted, which we have already reproduced above. In view of the above note and subsequent discussion within the department, a proposal on (a) cancellation of deputation order of the Applicant to NHAI; and (b) recalling of Shri K. C. Venkyachan SE from NHAI, was processed and placed before Minister for orders. Ministers recording dated 22.1.2008 has already been reproduced above. Consequent to this, the department processed the file explaining the position including the interim order passed by this Tribunal, which would clearly show that the deputation orders were not to be cancelled and status quo was to continue. The Minister, as mentioned above, took note of the same on 3.2.2009.
21. From the facts fully detailed above, it clearly emerges that not once, twice but thrice over, the deputation of the applicant to NHAI was cleared by the competent authority, i.e., the Minister. The order of deputation and posting was also passed. He was still not being relieved. Present appears to be a case of total defiance by the respondents of the orders passed by the competent authority. We do not agree at all with the contention raised by the learned counsel representing the respondents that till such time the order relieving the applicant was passed, the department could examine, re-examine and yet re-examine the matter. Relieving is natural consequence of order of deputation and posting. The relieving of the applicant could not be stalled.
22. Coming now to the discrimination meted out to the applicant, we may mention that we have perused the personal file of Shri R. P. Indoria, CE, which would reveal that though Shri Indoria was working with NHAI from 28.10.2005 on deputation basis as CGM up to 17.2.2008, he was again sent on mandatory deputation to IRC as Secretary General, IRC. In the subject of relieving Shri Indoria to join as Secretary General, Indian Road Congress (IRC), following has been mentioned :-
4. The instructions of DoPT regarding deputation/foreign service for members of Group A services are placed below at F/Y. However, in so far as sending officers of DoRTH to IRC is concerned, this may not be regulated according to DoPTs instructions since IRC is a registered society. However, the Ministry has formulated its own deputation policy F/X which allows sending officers of CES (Roads) Group A on mandatory deputation basis to NHAI/IRC/NITHE and that the Honble Minister (S,RT&H) is the competent authority for reducing/increasing the cooling off period. The file does not indicate whether any specific order of Minister was obtained in relaxing the mandatory cooling off period of three years, since from February, 2008 to December, 2008 he had put in only ten months of service in the department between two deputations. After approval of the proposal by Secretary, DRT&H, Shri Indoria was relieved on the very date on which he submitted his request. It may be noted that IRC is a Central Government funded autonomous body, and if DOP&T guidelines dated 29.2.2008 cannot apply for Shri Indorias deputation, how could the same apply in the case of the applicant. On perusal of personal file of Shri B. N. Singh, it would reveal that Shri B. N. Singh had come on deputation to OSD in the personal staff of Minister for Agriculture in ICAR with effect from 6.7.1996 to 14.02.1997. He reverted back to the Ministry of Surface Transport in July 1996. Before that he was on deputation as DGM in the National Highways Authority of India from March 1995 to March 1996. Vide order dated 3.11.2004, the services of Shri B. N. Singh were placed at the disposal of NHAI on mandatory post as General Manager for a period of one year. His request for relieving him then was filed on 1.11.2004 and orders were passed on 5.11.2004 relieving him from the post to join NHAI. The personal file of Shri K. C. Verkeyachan, Superintending Engineer, would reveal that he was deputed to join as CGM, NHAI vide order dated 31.07.2008. He was deputed to NHAI vide order dated 31.12.2001. He joined NHAI on 2.1.2002 and he got extension after extension and ultimately he was relieved from NHAI w.e.f. 9.01.2007. Subsequently, he was deputed to NHAI vide order dated 9.01.2007, which would clearly show that he has put in less than 3 years of cooling off period and there is no records to show that cooling off period was waived.
23. Further, on perusal of records produced by the Respondents, we find many officers have been relieved within the shortest period. An example of Shri S. K. Puri in the rank of SE would suffice. The personal file of Shri Puri revealed that he was deputed to NHAI w.e.f. 1.4.2005 and on the same day he was relieved with approval of Respondent-1 (Page 178 of the referred file). We also looked into the Personal File of Shri C. Kandasamy SE and noticed that Vide order dated 3.8.2001 he was deputed to NHAI as GM for a period of 3 years (Page 21). He was repatriated from NHAI w.e.f. 9.9.2002 (Page 28) and consequently getting promoted as CE was deputed to NHAI w.e.f. 24.9.2002 as CGM (Page 54) and deputation was extended up to 23.9.2007 (Page 72) and became Member (Tech) in NHAI w.e.f. 18.10.2006 (Page 78). He worked as CE in the Ministry from 9.9.2002 to 24.9.2002 (Page 65).
24. It is interesting to note that when noting dated 4.9.2008, reproduced in the earlier part of the order, was placed before the 4th respondent, indicating therein that the applicant had remained outside the Ministry on deputation for nine years out of 23 years of service, and that he had not completed two years cooling off period, it was noted with regard to S. S. Nahar that there was no problem in sending him to NHAI on deputation and that he was willing to go there. With regard to M. P. Sharma, SE, who is senior to S. S. Nahar, it was mentioned that Shri Sharma was already posted in NHAI as General Manager since 23.1.2006, and, therefore, he was also to be promoted as CGM and posted in NHAI. It is the case of the applicant that the effort was to substitute him with Shri Sharma, as the recommendation to send Shri Sharma to NHAI was made in the said note. Shri Sharma had applied on 27.8.2008 to Deputy Secretary (Admn.), DRT&H for forwarding his application for the post of CGM (Planning & Quality), NHAI on deputation basis against the advertisement of NHAI dated 20.8.2008. This he had done without routing through NHAI authorities. The reasoning as given in the note would clearly reveal that M. P. Sharma was to be deputed on the basis of the advertisement despite the fact that he was already on deputation to NHAI from 23.1.2006. Shri Sharma would have completed his normal period of deputation of three years by 3.9.2008, and if he was to be deputed once again, on 4.9.2008 for another period of three years, he too could have spent no cooling off period. In fact, his deputation would have been continued for more than six years. This was done even without routing his papers through the NHAI authorities, and obviously without even seeking permission from the concerned Minister for waiving the cooling off period. The ground that he was senior to Shri Nahar was only a made up affair simply with a view to accommodate Shri Sharma at the cost of the applicant. The applicant, as already mentioned, is far, far senior to both M. P. Sharma and S. S. Nahar.
25. In view of the discussion made above, we are of the considered view that the respondents by their wholly illegal acts stalled a lawful order passed in favour of the applicant deputing him to NHAI. The applicant may not have been able to establish factual mala fides, as surely, there is no allegation that the respondents 2 to 5 were actuated for some reason to harass the applicant. However, the applicant has been able to establish legal mala fides. Respondents 2 to 5, it is apparent from the records of the case, created all hurdles in relieving the applicant to join his post on deputation with NHAI. They raised frivolous objections time and again, and by doing so, they distorted the facts and tried to mislead the Minister. It is unfortunate that they tried to do so before this Tribunal as well. The false affidavit, as mentioned above, came to be filed simply with a view to deny the applicant his rightful due. We are distressed to note that even when confronted with the falsity in the affidavit as mentioned above, the respondents would have no remorse and regretfulness. Their attitude was rather of defiance. Confronted with the position that there was no order canceling the deputation of the applicant, the persistent effort was to show that once, this Tribunal had issued an interim direction, as mentioned above, it meant cancellation of the order of deputation. The order passed by the Tribunal in fact clearly states that the order of deputation shall not be cancelled.
26. This Application is allowed. Direction is issued to the respondents to forthwith relieve the applicant enabling him to join his deputation post with NHAI. We are of the firm opinion that in the facts and circumstances of this case, the Application deserves to be allowed with costs. The respondents have illegally, arbitrarily and without a semblance of justification, stalled implementation of a lawful order passed way back on 24.9.2008, and dragged the applicant in this avoidable litigation. They put all hurdles in the way of the applicant. In the peculiar facts and circumstances of this case, we mulct the respondents with costs quantified at Rupees fifty thousand. The message must go clear and loud. Litigation in court is not a game that may be played by all fair and foul means; there has to be fairness only, and that can be only if the facts are truly stated. Facts are sacrosanct and tinkering with the same and going even to the extent of filing false affidavit is fraught with serious dangers, which, if permitted, will pollute the whole administration of justice. We may, in this context, refer to the following observations of a Division Bench of the Punjab & Haryana High Court in Jawan v Mewa singh [AIR 2001 Punjab & Haryana 344] in which one of us (V. K. Bali, J.) was a Member:
44. A citizen in this country, undoubtedly has right to vindicate his stand in any Court of law, established in India, depending upon his cause and our judicial system is duty bound to look into all the grievances of the citizens aired by them. This vested right, however, cannot be permitted to be abused. It is often seen that an unscrupulous litigant, even in a false, frivolous and vexatious litigation, which may span over even decades, gets away by simply getting his cause rejected. More often than not, no orders, that may deter him and others equally situate, are passed by the Courts, thus resulting into massive litigation and pendency of cases, which cannot be transacted properly and speedily. Such a litigation is surely an impediment in the way of administration and dispensation of justice. Justice, in the process, in other matters, which do need proper attention of the Court, are delayed beyond measures which in turn results in endless sufferings and, in many cases, denial of justice. It appears that the time has come that the evil propensities of such unscrupulous litigants be curbed and, therefore, when the Court might find that either a claim or defence is sought to be propped up on false, frivolous and vexatious grounds and if such a finding is recorded, it must result into special or compensatory costs as that alone might serve a warning to all concerned and may also provide some sort of solace to the one, who has been harassed and tormented. In the first instance, the costs be paid by the first respondent. It shall, however, be open for the said respondent to recover the cost from officer(s) who may be responsible for creating bottlenecks and not implementing the order of deputation of the applicant. We do not know as to whether the reply affidavit has been filed by Shri Dev Raj Sharma, Under Secretary, on his own or on instructions received by him from others. Those who may be found to be responsible may be put to notice and after hearing them, the cost may be recovered.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/