Central Administrative Tribunal - Bangalore
Dr. R.P.Sharma vs The Union Of India on 29 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH, BANGALORE ORIGINAL APPLICATION NO.22/2009 FRIDAY, DATED THIS THE TWENTYNINETH DAY OF APRIL, 2009 HON'BLE SMT. K.N.K.KARTHIAYANI ...MEMBER(A) HON'BLE SHRI B.VENKATESWARA RAO ...MEMBER(J) Dr. R.P.Sharma, IPS S/o Late M.P.Sharma, Aged about 48 years, Inspector General of Police, G & HR, O/o DG & IGP, Government of Karnataka, Bangalore. ....Applicant (By Advocate M/s.Nandi Law Chambers) Vs. The Union of India, Represented by its Secretary, Ministry of Home Affairs, North Block, NEW DELHI 110 001. ...Respondent (By Senior Central Government Standing Counsel Shri K.N.Chandrashekar) O R D E R
SMT. K.N.K.KARTHIAYANI, MEMBER(A) The applicant, an IPS officer of Karnataka Cadre, presently working as IGP (G&HR) in the Office of DG&IGP, Govt. of Karnataka is aggrieved by the inaction of the respondent in the matter of his deputation to the Organising Committee of Common Wealth Games, Delhi 2010.
2. The brief facts as stated in the OA are: -
2.1. For the purpose of conducting Common Wealth Games an organizing Committee called the Organising Committee of Common Wealth Games, Delhi 2010 [hereinafter shortly referred to as the Organising Committee] has been formed, and registered under the Societies Registration Act, 1960. A search Committee was constituted by this Organising Committee for selecting an officer for the post of Additional Director General [Security] on a fixed term foreign service basis. On the recommendations of the search Committee, the applicant was selected by the Organising Committee for the post of ADG [Security]. The Chairman of the Organising Committee, Sri. Suresh Kalmadi, Hon'ble Member of Parliament, addressed a letter to the respondent on 2-9-2008 to accord necessary administrative approval for the deputation of the applicant to the post of Additional Director General (Security) on a fixed term foreign service basis to the Organising Committee. A copy of the letter is annexed as Annexure-A1. By a letter dated 16-9-2008 (Annexure-A2) the Chief Operating Officer of the Organising Committee wrote to the applicant stating that on the basis of the recommendations of Internal Search Committee, it has been decided to appoint the applicant as Additional Director General (Security) on a fixed term on foreign service. The applicant was requested to get the necessary formalities completed both from the Government of Karnataka and Government of India so that he could resume his responsibilities in the Committee at the earliest. The respondent had also sought information from State Government as to whether the applicant would be available for such Central deputation; it was also requested to communicate the willingness of the applicant for the deputation. Further, the vigilance clearance and information on whether the applicant had completed the cooling off period after the last deputation, were also sought from the State Government. In response to the enquiries from the respondent, the State Government vide letter dated 24-10-2008 (Annexure-A4) gave the vigilance clearance and also informed the respondent that the applicant's cooling off period would be completed on 5-12-2008 and hence the remaining cooling off period before his proposed central deputation might be waived. The State Government had also agreed to spare the services of the applicant for the post of Additional Director General (Security) in the Committee. In the said letter it was further mentioned that the applicant had expressed his willingness for taking up the post of Additional Director General (Security) under Rule-6(2)(ii) of IPS (Cadre) Rules. Meanwhile, the applicant was also being invited to the meetings of the Members of the Committee held on different dates from 30-9-2008. The applicant was specifically invited for the meeting on 30-9-2008 by the Chief Operating Officer of the Committee vide fax message dated 29-9-2008 (Annexure- A5). The applicant claims that, thereafter, he had attended various meetings of the Committee in response to the communications dated 19-9-2008, 3-12-2008 and 10-12-2008 (copies of the letters are at Annexures A6 , A7 and A8). The applicant also states that one Shri Sudresh Kumar, IPS of Kerala Cadre was selected for the same post, though he was much junior to the applicant. The said officer did not join the above post and hence the applicant was selected against the post which was lying vacant. It is the applicant's claim that he has already been appointed as Additional Director General (Security) and he was virtually working in that capacity by attending various meetings relating to operation plan of security and even meetings held by the respondent himself regarding security of Common Wealth Games. Inspite of this, the respondent has not communicated the formal approval of the appointment of the applicant as Additional Director General (Security).
2.2. The applicant submitted a representation dated 16-1-2009 (Annexure - A9) requesting the respondent to process his candidature on the basis of his selection by the Organising Committee. So far no action has been taken by the respondent to accord the necessary approval.
2.3. The applicant submits that he has got the necessary work experience in security related matters as well as sports related event management and crisis intervention. He has also enclosed as Annexure - A12 a copy of the commendation letter issued by the Director of Intelligence Bureau praising the contribution made by the applicant as Organising Secretary of the 52nd All India Police Duty Meet 2008 held at Bangalore from 3-1-2009 to 10-1-2009.
2.4. The Chairman of the Organising Committee by a letter dated 20.1.2009, (copy at Annexure-A13) addressed to the Cabinet Secretary had expressed his concern about the delay in lending the services of the applicant to the Committee, as there was a real security threat to the conducting of the Common Wealth Games as communicated by the Intelligence Bureau. In the said letter it was also mentioned that the applicant had started assisting the Committee when the Coordination Commission visited Delhi and also on various other occasions with the permission of appropriate authority. The Chairman of the Committee has also requested the Cabinet Secretary to intervene in the matter and ensure that the services of the applicant are made available to the Committee at an early date.
2.5. The applicant justifiably believes that the respondent is deliberately delaying the communication of the formal approval/concurrence for the appointment of the applicant as Additional Director General (Security) of the Committee as certain vested interests in the Ministry of Home Affairs are inimically disposed to the applicant. To substantiate his apprehension he has cited the case of his deputation to United Nations, Civil Pole Division which was not cleared on the basis of some undisclosed adverse report against the applicant. The applicant was constrained to file a suit (OS No.7746/2006) in the Hon'ble City Civil Court in Bangalore, seeking damages to the extent of Rs.8,00,000 against the respondent. The applicant submits that in the instant case also, in view of the said past conduct of the respondent, the respondent would again resort to the very same unjust act of denying the applicant a chance of deputation based on false and undisclosed adverse reports. The applicant submits that his case of deputation is covered by Rule 6(2)(ii) of IPS Cadre Rules, 1954 (hereinafter referred to as Rules) and the respondent has to follow the procedure as laid down in the communication dated 27-12-2006 issued by the Ministry of Personnel, Public Grievance and Pension which is the nodal Ministry for all departments in matters relating service conditions of the employees. A copy of the said guidelines is given at Annexure - A10. The applicant has also enclosed a copy of the Indian Police Service (Cadre) Rules, 1954 at Annexure -A3 to the OA, clause 6 of which provides for deputation of Police Service officers to other Organisations/Bodies etc. The applicant prays for the following reliefs in the OA:
[1] TO call for the records from the respondents and to [2] ISSUE an appropriate order or direction in the nature of mandamus, directing the respondent to consider the representation of the applicant dated 16-1-2009 [Annexure A9] and to issue clearance for deputation of the applicant to the Organising Committee of Common Wealth Games, Delhi, 2010.
3. The respondent has filed reply statement after serving a copy of the same on the learned Counsel for the applicant. With the permission of this Tribunal the applicant has filed written arguments also and has served a copy of the same on the learned Counsel for the respondent.
4. In the reply, the respondent has submitted that none of the fundamental rights, much less any vested right of the applicant has been violated to justify the exercise of power of the Tribunal under Section 19 of Administrative Tribunals Act, 1985.
4.1. The respondent submits that as per procedure laid down in the deputation policy under Rule 6(2)(ii) of IPS (Cadre) Rules, 1954 the cases of deputation of Members of All India Services shall be placed before a Committee with Cabinet Secretary as Chairman and Secretary (Personnel) and Finance Secretary as Members. Thereafter, the approval of the concerned Minister-in-charge is obtained. It is also admitted that the proposal of the Organising Committee for the appointment of the applicant as Additional Director General (Security) has been received by the respondent. The Government of Karnataka has also conveyed their no objection to the proposal. The respondent has received a reference from the Secretary, Ministry of Youth Affairs and Sports wherein it has been stated that some AIS officers have joined sports bodies which are responsible for or closely associated with the conduct and promotion of sports & games in country. Normally these bodies receive huge public funding, it would be appropriate that the cadre controlling authority makes prior references to the nodal Ministry before granting permission in such cases. While this would facilitate the selection of suitable officers with requisite domain knowledge and impeccable track record it will also ensure that officers with unsavoury reputation and record do not join these organizations and therefore, requested that all such cases may be referred to M/o Youth Affairs & Sports for advice, before giving clearance to the officers concerned. (quoted as such from the reply statement).
4.2. In compliance with the above reference, the matter of deputation of the applicant was referred to the Ministry of Youth Affairs & Sports for their comments/views. The Ministry of Youth Affairs and Sports has informed the respondent that after careful consideration it has been found that Dr.R.P.Sharma, IPS (KTK:87) would not be suitable for joining the Organizing Committee and administrative approval to facilitate his joining the Organizing Committee may not be given. The matter regarding the deputation of the applicant to the Committee was further examined in the department in the light of the observations of Ministry of Youth Affairs and Sports. The Competent Authority in the respondent Ministry has decided not to accord cadre clearance for the deputation of the applicant. It is further submitted that the respondent as the Cadre Controlling Authority has to apply mind to all requests received for such deputations and come to a decision on the basis of the facts and circumstances of each case. It is not bound to simply transmit/forward every nomination it receives to the concerned authority after getting clearance from the State Governments. The decision of the Central Government is final in the matter. It is prayed that the application may be dismissed as it has no merits.
5. In the written arguments the applicant has stated that the respondent has already admitted that the applicant's case is for deputation to a Private Body not controlled by the Central Government; the applicant has given his consent; the Karnataka Government has given its approval to spare the applicant's service and the applicant's case is awaiting the final approval by the Cadre Controlling Authority. The respondent has not denied the credentials of the applicant, his suitability for the post and the malafides attributed to the respondent as mentioned in the OA and hence these are to be taken as admitted facts. The applicant has also stated in the OA that the preliminary formalities regarding deputation have been completed and only the formal approval of the respondent who is Cadre Controlling Authority is not forthcoming. As the respondent has not denied the said statement also, it has to be treated as an admission by the respondent. Further, in the present case, only Rule 6(2)(ii) of IPS Cadre Rules, 1954 and the guidelines framed by the Department of Personnel and Training are applicable. There are 3 stages up to final deputation of the applicant viz:
(i) approval by the Cadre Controlling Authority (State of Karnataka); (ii) recommendation by the Central Government Committee, under the Chairmanship of the Cabinet Secretary; (iii) Prime Minister's approval of the recommendation by the Central Government Committee, under the Chairmanship of the Cabinet Secretary;
5.1. The scope of the Cadre Controlling Authority, is ONLY to satisfy itself that (i) the private body has a good reputation and objects and (ii) the applicant's experience is enriched by such deputation. Further, the custodian of all records of the Applicant is the Cadre Controlling Authority viz : the State of Karnataka, and the Respondent and/or the so called nodal agency (Ministry of Youth Affairs & Sports) have no record or material to arrive at any conclusion in the matter. Admittedly, the initial approval (under Guideline 7) has been accorded by the Cadre Controlling Authority i.e., State of Karnataka; the Central Government Committee, under the Chairmanship of the Cabinet Secretary, has recommended the Applicant's appointment and admittedly, now the stage is approval by the Prime Minister for which the recommendation of Central Government Committee, under the Chairmanship of the Cabinet Secretary, has to be routed to the Prime Minister through the MOS (PP). The various submissions made by the Respondent have no legal backing on the basis of judicial decisions as enumerated below:
(1) DOPT guidelines are sacrosanct and cannot be violated or departed from.
[ Para-10(12) in Deepak S.Dave and Ors. Vs. Union of India and Anr. - 2006 (2) (CAT) SLJ 335] (2) Acting dehors the criteria amounts to exceeding jurisdiction. Such action is malice in law and is subject to judicial review.
[Para-33 & 34 in Dr. V.P.Singh Vs. Union of India and Ors. - 2008 (3) (CAT) SLJ 61] (3) If the allegations of the malafides remain uncontroverted and not refuted, the Court would accept the allegations.
[Para-45 in R.Sivakumar, IAS vs. Union Public Service Commission and others. -
MANU/CA/0001/2000] (4) Judicial review is permissible if the respondent's view is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides.
[Para-41 in Official Liquidator vs. Dayanand and Ors..
(2008) 10 SCC 1] (5) Non application of mind renders the decision arbitrary and the court can mould the relief and issue directions.
[Para 35 in P.Thimmappa vs. Union of India and Ors.-
MANU/CA/0377/2008 : 2009(1) (CAT) SLJ 55] and [Para- 87 and 89 in Badrinath vs. Government of Tamil Nadu and Ors. (2000) 8 SCC 395]
6. We have heard the learned counsel on both sides and perused the pleadings and have also gone through the judicial decisions mentioned in the written arguments. The respondent has admitted the factual submissions in the OA, viz :- the applicant is an officer belonging to IPS of Karnataka Cadre who is presently working as Inspector General of Police (G&HR) in the office of the DG&IGP, Government of Karnataka; the applicant is holding a post equivalent to that of the Joint Secretary to the Government of India; the applicant has given his willingness for the deputation and the Cadre Controlling Authority namely the Government of Karnataka has also consented for sparing the services of the applicant on deputation; the Cadre Controlling Authority has also given the necessary vigilance clearance and it has also been stated that cooling off period for central deputation is over as on 5-12-2008. It is also admitted that the applicant's deputation is covered by Rule 6(2)(ii) of the Indian Police Service Rules, 1954 and the Guidelines issued by the Department of Personnel and Training for such deputations in Circular dated 27-12-2006.
7. As per the Guidelines which is produced as Annexure A10 to the OA, deputation under Rule 6(2)(ii) of the respective cadre rules for all India Services may be allowed to the following categories of the organisations:
(a) Constitutional bodies
(b) Statutory bodies created by law of Parliament or State legislatures.
c) Multilateral bodies, statutory bodies which are defined in detail.
(d) Private bodies which are defined in detail. One of the definitions for Private bodies is: Organization registered under Societies Registration Act
(e) Autonomous bodies not controlled by Government as defined.
Para-5 of the Guidelines states that the general principle of public interest shall be the overriding factor in deciding deputations under this rule to private bodies. Factors such as general reputation of the private body and the nature of its business shall also be examined in each case. The competent authority shall also see whether there is any enrichment of the experience of the officer by such deputation. It will be worthwhile to quote here the procedure for deputations envisaged in the Guidelines (paragraphs -7&8):-
7. All deputations under Rule 6(2)(ii) shall be considered only with the consent of the officer concerned and the approval of the cadre controlling authority. Cadre Controlling Authority would mean the State government concerned if the officer is in his cadre. If the officer is with the Government of India, then it would mean the Ministry of Home Affairs in the case of IPS officers, MOEF in the case of IfoS officers. This approval is a precondition for the cases being placed in the committee detailed in Para 8 below. In the case of IAS officers serving in the Government of India, since the Committee at para 8 below also includes Secretary(P) the proposals would directly be placed before the Committee.
8. A Committee under the Chairmanship of Cabinet Secretary comprising Secretary(P), Finance Secretary may be set up to screen, on a case to case basis, applications/requests seeking deputation under 6(2)(ii). For officers below the Joint Secretary level to Government of India, the recommendations of the Committee shall be approved by the MOS (PP). For officers of the level of JS and above the recommendations of the Committee would be routed through MOS(PP) to PM for approval.
Further, 11. A member of Service shall be eligible for deputation under Rule 6(2)(ii) only if he is clear from vigilance angle. As per para-14 of the Guidelines, mode of selection for the post may be based on advertisement, nomination or direct offer.
8. As can be seen from the Annexure A1, the Organising Committee, Common Wealth Games, 2010 is a registered society under Societies Registration Act, 1960. Thus it comes under the definition of Private bodies to which deputation is permissible [category (d)]. As the applicant is presently working under the State Government, his Cadre Controlling Authority is the State Government (Para 7 of the Guidelines) and the approval by the State Government is necessary for the deputation and the same has been given. The Cadre Controlling Authority has given the necessary vigilance clearance and the applicant has given his willingness for the deputation. The cooling off period since last deputation is over on 5.12.2008. The mode of selection (para-14 of the guidelines) is based on direct offer, as in this case, the Organizing Committee has selected the applicant based on the recommendations of the Internal Search Committee. The next step to be completed by the Home Ministry (which deals with the matters relating to the officers of the Indian Police Service) is to place the matter of deputation of the applicant before a Committee under the Chairmanship of the Cabinet Secretary (para-8 of the Guidelines). There is no provision in the Guidelines for consulting any other departments and obtaining their recommendations to place the matter before the designated Organising Committee. We are in full agreement with the applicant that the respondent cannot introduce a new clause in the Guidelines without consulting the nodal Ministry namely the Department of Personnel and Training (Deepak S. Dave V. UOI, supra). The respondent has stated in the reply that a letter was received from the Secretary, Ministry of Youth Affairs and Sports regarding the joining of All India Service Officers in various Sports bodies. It is not stated by the respondent whether these Sports bodies fall under any of the categories (a) to (e) enumerated in the Guidelines. Even assuming that the said Sports bodies come under one of the categories (a) to (e) mentioned in the Guidelines, the respondent is not bound to accede to the request of the Secretary, Ministry of Youth Affairs and Sports and should strictly go by the instructions contained in the Guidelines issued by the Nodal Ministry. It is not understood as to how the respondent assumes the role of the 'Cadre Controlling Authority' and takes upon the responsibility of applying its mind to all requests received for such deputation. As already noted, as the applicant is in Karnataka Cadre, his Cadre Controlling Authority is Karnataka State Government as per Paragraph 7 of the Guidelines. Only in the case of IPS officers working with Government of India, Respondent (Ministry of Home Affairs) is the designated Cadre Controlling Authority. From the Guidelines it is clear that the role of Home Ministry is only to place the cases of the officers of Indian Police Service (who are with State Governments) for deputation to various organisations under Rule 6(2)(ii) before the designated Committee. The concerned Division in the respondent's department is only a processing unit to process the case further as per para-8 of the Guidelines. To use a commonly used sobriquet, the Police Division in the Respondent's Department is only a Post Office in this matter receiving, forwarding and delivering proposals for deputations under Rule 6(2)(ii) of the Rules in respect of officers working under the State Governments. This unit cannot add inputs to the Guidelines from extraneous sources without any authority from the nodal Ministry which is the Department of Personnel and Training. As correctly stated in the written arguments the respondent has not acted fairly and has exceeded its jurisdiction.
9. We do not agree with the contentions of the respondent that the applicant has no fundamental right or vested right to be considered for a deputation. The applicant has a right to be considered for deputation as per Rule 6 of the Indian Police Service (Cadre) Rules 1954 which are statutory Rules though there is no right for being approved for deputation. He has also the right to be considered as per the Guidelines issued by the nodal Ministry namely Department of Personnel and Training. Every AIS officer has the right to be considered for deputation in the same manner as per the Guidelines and no exception can be made in respect of a particular officer or a particular department without the approval of the Nodal Ministry for the reason that any deviation will lead to discrimination. The respondent has not enclosed a copy of the letter received from the Secretary, Ministry of Youth Affairs and Sports along with the reply statement regarding AIS officers joining sports bodies. Even the date of the said letter is not mentioned which would have facilitated us to see whether the said letter was written before the date of issue of the guidelines of Department of Personnel and Training which is dated 27-12-2006. Further, whether the said letter, which speaks of joining sports bodies deals with 'deputation' of AIS officers or 'permanent absorption' is not made clear. The nature of 'sports bodies' which the AIS officers have joined whether they come under any of bodies mentioned under category (a) to (e) is also not indicated. Was the said letter was addressed only to the respondent or to all 'cadre controlling authorities' as defined in paragraph 7 of the Guidelines, i.e., all State Governments, Department of Personnel and Training and MOEF, in addition to the respondent's department? Further, the respondent has not stated the ground on which the Ministry of Youth Affairs and Sports has informed the respondent that the applicant would not be suitable for joining the Organising Committee when the fact is that the Internal Search Committee of the Organising Committee has found the applicant suitable for the post. The respondent has to necessarily place the case of the applicant before the designated Committee along with all relevant material and the respondent cannot take any decision, on his own by applying his mind or on the advice of a third party, about the suitability or otherwise of the applicant for deputation as Additional Director General (Security) of the Committee. In the reply, it is stated that the competent authority in the respondent's Ministry has decided not to accord cadre clearance for the applicant. It is not clear who the competent authority is. In the Guidelines there is no mention of any such authority in the respondent's Ministry, who is 'competent' to deny 'cadre clearance' for IPS officers who are working with the State Governments. The recommendations of the designated Committee with Cabinet Secretary as Chairman have to be put up to the Hon'ble Prime Minister (As the officer is of the level of Joint Secretary to the Government of India), for approval, through MOS (PP). There is no provision to get the approval of the concerned 'Minister-in-charge' as stated in the reply. It would appear to us that the respondent has not gone through the instructions of Department of Personnel & Training dated 27.12.2006. The respondent is also mixing up provisions of deputation under Rule 6 (1) with those under Rule 6 (2) of the Indian Police Service Cadre Rules, 1954, while stating that the decision of the Central Government will be final, for, this is a provision under Rule 6 (1), in the event of 'any disagreement in the matter'.
10. Here we note that the reply has been filed in a perfunctory and slipshod manner. There is no answer to the main points raised in the OA. Even the OA number has been noted wrongly in the reply statement (OA No.22/2009 and not OA No.22/2008). A copy of the letter stated to have been received from the Secretary, Ministry of Youth Affairs and Sports relying on which the Respondent has deviated completely from the Guidelines laid down by the Nodal Ministry is not furnished along with the reply statement. There is no averment that the Under Secretary who has signed the reply statement is authorised to make the submissions on behalf of the respondent namely Secretary, Ministry of Home Affairs. The said officer has also to sign at the end of every page of the Reply, but it has not been done. We are mentioning these technical commissions and omissions only to highlight that the respondent is not at all serious even in filing the reply statement in an important matter relating to the service of the applicant, a senior IPS officer and a matter concerning the security of Common Wealth Games, 2010.
11. In the Circular dated 27-12-2006, detailing the Guidelines for deputation of the Members of All India Services, under Rule 6(2)(ii) and respective cadre Rules, it is clearly mentioned that the said guidelines have been issued after detailed deliberations. The respondent is expected to follow these guidelines for the purpose of considering the deputation under Rule 6(2)(ii) of IPS (Cadre) Rules. Though the instructions dated 27-12-2006 are called 'Guidelines' they are Government of India Instructions under Rule 6 (2) (ii) of the Rules, as these Guidelines elaborately detail the procedure to be followed to ensure uniformity and to avoid arbitrariness. In the matter of implementation of a rule which is statutory in nature, the following legal principles have already been settled by the decisions of the Hon'ble Apex Court:-
Once the Union and State Government frame Rules their action in respect of the matters covered by the rules should be regulated by the Rules. The rules framed under article 309 of the Constitution are solemn rules and have binding effect. The Governments are refrained from acting in a manner not contemplated by their own rules. [Bhatnagar A.K. Vs. UOI (1991) 1 SCC 544 - (Para-13)].
When a procedure has been laid down for implementing a statutory rule, the said procedure has to be followed substantially, for, deviations from the procedure will lead to arbitrariness and discrimination. Such deviations, when made are liable for judicial review.
12. As already stated, the applicant has a fundamental right to be considered for the deputation and the matter has come to the stage of placing his case before the designated Committee as the applicant satisfies all the preconditions for such consideration. The applicant has also stated that he had attended various meetings of the Committee including the one which was convened by the respondent himself. This fact has not been denied by he respondent. These facts take us to the Doctrine of Legitimate Expectation. In Ram Pravesh Singh and Others Vs. State of Bihar and Others 2006 SCC (L&S) 1986 a Division Bench of the Hon'ble Apex Court elaborately defined legitimate expectation.
15. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term established practice refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by the courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a legitimate expectation of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above fairness in action but far below promissory estoppel. It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, the courts may grant a direction requiring the authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision-maker, may be sufficient to negative the legitimate expectation. The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognised legal relationship with the authority. A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that authority has general obligation to act fairly.
16. In Union of India v. Hindustan Development Corpn. This Court explained the nature and scope of the doctrine of legitimate expectation thus: (SCC p.540 para 28) For legal purpose, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if It is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.
17. This Court also explained the remedies flowing by applying the principle of legitimate expectation: (SCC pp. 546-47, para 33) It is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words, where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. It it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and it the court is satisfied that a case legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors. (emphasis supplied)
18. In Punjab Communications Ltd. v. Union of India this Court observed: (SCC pp. 729-30) The principle of 'legitimate expectation' is still at a stage of evolution. The principle is at the root of the rule of law and requires regularity, predictability and certainty in the Government's dealings with the public. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made........
However, the more important aspect is whether the decision-maker can sustain the change in policy by resort to Wednesbury principles of rationality or whether the court can go into the question whether the decision-maker has properly balanced the legitimate expectation as against the need for a change...... In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision-maker who has made the change in the policy. The choice of the policy is for the decision-maker and not for the court. The legitimate substantive expectation merely permits the court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. (emphasis in original)
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20. Another Constitution Bench, referring to the doctrine, observed thus in Confederation of Ex-Servicemen Assns. v. Union of India: (SCC pp. 416-17, paras 33 & 35) 33.........No doubt, the doctrine has an important place in the development of administrative law and particularly law relating to 'judicial review'. Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even through he has no right in law to receive the benefit. In such a situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue.
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35. In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in the absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised. (emphasis in original) In Jitendra Kumar and Others Vs. State of Haryana and Another -(2008) 2 SCC 161 The Hon'ble Apex Court observed :
58...................A legitimate expectation is not the same thing as an anticipation. It is distinct and different from a desire and hope. It is based on a right. [See Chanchal Goyal (Dr.) v. State of Rajasthan and Union of India v. Hindustan Development Corpn.] It is grounded in the rule of law as requiring regularity, predictability and certainty in the Government's dealings with the public. We have no doubt that the doctrine of legitimate expectation operates both in procedural and substantive matters.
59. In Kuldeep Singh v. Govt. of NCT of Delhi this Court held: (SCC p.712, para 25) 25. It is, however, difficult for us to accept the contention of the learned Senior Counsel Mr. Soli J. Sorabjee that the doctrine of 'legitimate expectation' is attracted in the instant case. Indisputably, the said doctrine is a source of procedural or substantive right. (See R.v. North and East Devon Health Authority, ex p Coughlan.) But however, the relevance of application of the said doctrine is as to whether the expectation was legitimate. Such legitimate expectation was also required to be determined keeping in view the larger public interest. Claimants' perceptions would not be relevant therefor. The State actions indisputably must be fair and reasonable. Non-arbitrariness on its part is a significant facet in the field of good governance. The discretion conferred upon the State yet again cannot be exercised whimsically or capriciously. But where a change in the policy decision is valid in law, any action taken pursuant thereto or in furtherance thereof, cannot be invalidated. (Underlining done by us)
13. The above quoted judicial pronouncements establish that applying the principles of legitimate expectation the applicant has a right to be told of reasons, if any for denying him the deputation. The respondent should be able to justify the denial of deputation by showing some overriding public interest. The respondent cannot take a stand that such denial is on the advice of a third party (in this case Department of Youth Affairs and Sports) that the applicant would not be suitable for the post of ADG (Security) in the Organising Committee for undisclosed reasons. It is also to be noted that all the service records of the applicant are with the State Government and the Department of Youth Affairs and Sports does not possess any substantial or reliable information on the credentials of the applicant. Even if any hearsay information is received, by any department of Government of India, the authority to verify the factual correctness of the information is the cadre controlling authority only and it is the duty of the department which receives such 'secret information' to the cadre controlling authority to deal with the matter further and to examine whether there is any 'over riding public interest' to justify the denial of the deputation.
14. In the absence of specific allegations about malafides it is difficult to draw any conclusion against the respondent that he has acted in a malafide manner as alleged by the applicant. However, the action of the respondent amounts malice in law.
Acting on a legally extraneous or obviously misconceived ground of action could be a case of malice in law.
(Para13 of Regional Director vs. Pawan Kumar Dubey AIR 1976 SC 1766)
15. From the above discussions we have come to the conclusion that the applicant has made out a case for grant of relief prayed in para-2.5 above. The respondent is directed to act according to the instructions contained in para-8 of the Circular dated 27-12-2006 of Department of Personnel and Training, as the applicant is eligible to be considered by the designated Committee and all the prior formalities have been completed. As the matter is of very urgent nature, concerning the security of conducting of the prestigious Common Wealth Games to be hosted by our Country in 2010, we direct the respondent to process the case of deputation of the applicant expeditiously by placing the same before the designated Committee within 15 days from the date of receipt of a copy of this Order and further submit the recommendations of the Committee to the Hon'ble Prime Minister for approval through the Hon'ble MOS (PP) (if the recommendations are positive) as envisaged in the Guidelines without any further loss of time. The applicant has narrated various grounds to prove that he is amply qualified for the post of Additional Director General (Security) of the committee. [Para-4 (a, b, c, d & e of the OA as also commendation letter at Annexure-A12]. The applicant has stated in the O.A that he apprehends and justifiably believes that the deputation is being denied to him relying on false and undisclosed reports which are allegedly adverse in nature. This statement has not been denied by the respondent. Therefore, as per the law laid down by the Hon'ble Apex Court in paragraphs 15 and 17 of Rampravesh Singh vs. State of Bihar (supra), the applicant should be told of the details of the overriding public interest that comes in the way of his deputation (in case he is not found suitable for the post) and the final denial of the deputation should be only after the applicant is given an opportunity to be heard.
16. The OA is disposed of with the above directions. The respondent is directed to complete the procedure detailed in the above paragraph before 30.5.2009 . There shall be no order as to costs.
(B.VENKATESWARA RAO) (K.N.K.KARTHIAYANI) MEMBER(J) MEMBER(A) sd.