Central Administrative Tribunal - Chandigarh
State Of Himachal Pradesh vs Union Of India (Uoi) And Anr. on 23 January, 2004
Equivalent citations: 2004(2)SLJ311(CAT)
ORDER
O.P. Garg, J. (Vice Chairman)
1. The controversy in this O.A. centres round the appointment of Shri Diwakar Prasad, respondent No. 2, a senior member of Indian Police Service of Himachal Pradesh Cadre (HP-68), as Additional Director in the Intelligence Bureau, Government of India, New Delhi, on deputation basis, which post he joined on 6th of March, 2003 pursuant to the Fax message dated 4th March, 2003 (Annexure A-9), sent by the Ministry of Home Affairs, Government of India, New Delhi, and addressed to the Chief Secretary, H.P. Circle, with a copy for information to the Director General Police, Himachal Pradesh. The Chief Secretary, Government of Himachal Pradesh sent a Fax message dated 10th March, 2003 (Annexure A-10) addressed to the Cabinet Secretary, Government of India, New Delhi, with a copy to the Home Secretary, Government of India and Director Intelligence Bureau, New Delhi. Since this fax message reflects the genesis of the controversy and the stand taken by the State Government of Himachal Pradesh, it is being reproduced verbatim for the sake of clarity, better understanding and ready reference:
"It has come to our notice that Sh. Diwakar Prasad, IPS (HP; 68) handed over charge as OSD RC Office Himachal Bhawan, New Delhi and DGP enforcement and training HP Shimla on March 6, 2003, and reported for duty to the IB Headquarters as Additional Director IB on the same day (.) The State Govt. had received a Fax message No. 1-21018/6/2003-IPS-III dated 4.3.2003 from the Home Ministry saying that the Competent Authority has approved appointment of the above officer as Additional Director in the IB (.) The State Govt. had not forwarded the name of Sh. Diwakar Prasad for Central Deputation(.) Nor he has completed his cooling off in the State (.) His performance in the State has not been satisfactory and the State Govt. is contemplating disciplinary action against him (.) The State Govt. has not, issued any orders regarding this Officers Transfer nor has the State Govt. received him from his charges in Himachal (.) His Relinquishing charge without orders of the State Govt. and Assumption of charge in the Govt. of India in this manner is a serious lapse on his part and the State Govt. intends to take action against him for this also. The director IB may be requested not to permit him to join in the IB, and if his joining report has been accepted, he should be relieved immediately and direct him to join back his duties in Himachal."
2. Somehow, the newly elected Government of Himachal Pradesh entertained a feeling that Shri Diwakar Prasad, respondent No. 2 has left the charge of the post of OSD in the office of Resident Commissioner, New Delhi and Director General of Police (Enforcement and Vigilance) H.P. to join in Intelligence Bureau as Additional Director on 6.3.2003, without any order of the State Government. Consequently, the State Government proposed to hold an enquiry into the alleged misdemeanour/misconduct on his part. In exercise of the power under Rule 8 read with Rule 7 of the All India Services (Discipline and Appeal) Rules, 1969 (for short "Appeal Rules of 1969"), a memorandum dated 8th March, 2003 (later on corrected as 8th April, 2003), Annexure A-12 (alongwith article of charge, statement of imputation of misconduct or misbehaviour, lists of the documents and the witnesses) was issued to Shri Prasad who, in his turn, made a representation and preferred an appeal under Rule 16 of the Appeal Rules of 1969. Through letter dated 21.5.2003 (Annexure A-13), the Ministry of Home Affairs, Government of India, required the State Government to furnish comments. The State Government submitted the parawise comments on the appeal preferred by Shri Prasad with letter dated 20th June, 2003 (Annexure A-14). After due consideration of the relevant facts and material including the comments furnished by the State Government, the Competent Authority under the provisions of Rule 19 (ii) of the Appeal Rules, 1969, allowed the appeal by order dated 20th June, 2003 (Annexure A-15) and set aside the disciplinary proceedings initiated by the State Government of Himachal Pradesh by issuing memorandum dated 8th March, 2003 (later on corrected as 8th April, 2003). Thereafter, it appears that the State Government sent a letter dated 11th August, 2003 for recall of Shri Prasad from Central deputation. The Ministry of Home Affairs vide letter dated 22nd August, 2003 (Annexure A-16), informed the Chief Secretary of the Government of Himachal Pradesh that it would not be possible to repatriate Shri Prasad. Since the said letter contains reasons for not repatriating Shri Prasad, it is being reproduced as below:
"Subject: Recalling of Shri Diwakar Prasad, IPS (HP: 68) from Central Deputation--Regarding.
Madam I am directed to refer to the State Govt. letter No. Home-D (B-3)-43/71 Vol.-III dated 11.8.2003 on the subject mentioned above.
2. In this context a detailed reply earlier given vide this Ministry letter of even number dated 31.3.2003 may kindly be referred to. As already mentioned therein the services of the officer were taken for Central Deputation on specific recommendations by the then Chief Minister of Himachal Pradesh and the officer had in fact joined the deputation post on 6.3.2003.
3. The officer has since been empanelled to hold DG level post in the Centre. Further he is to retire on 31.7.2004. As to the question of shortage of IPS Officers in the DG rank in the cadre, it may be noted that against 1 sanctioned DG level post in the cadre, one officer is already posted. Against 2 Additional DG level sanctioned posts, 3 Additional DGs are there. As such there appears to be no shortage of senior level officers. More officers eligible for promotion as Additional DG are available in cadre.
4. In view of these facts, it would not be possible to repatriate the officer to the State Govt. at this stage.
Yours faithfully, Sd/-
(Akhil Kumar Jain) Joint Secretary to the Govt. of India"
(Letter No. 1-21018/6/2003-IPS-III dated 22nd August, 2003 of Ministry of Home Affairs, Government of India, to the Chief Secretary, Government of Himachal Pradesh).
3. The State Government has approached the Secretary, Government of India, Ministry of Home Affairs, by addressing a letter dated 23d August, 2003 (Annexure A-17), seeking the review and recall of the order dated 28.6.2003 under the provisions of Rule 24-A of the Appeal Rules of 1969.
4. Now, by means of the present O.A. under Section 19 of the Administrative Tribunals Act, 1985, filed on 21.10.2003, the State of Himachal Pradesh has challenged (1) the order dated 28.6.2003 (Annexure A-15) passed by the Ministry of Home Affairs, Government of India, New Delhi, whereby the decision to proceed against the respondent No. 2 by initiating departmental action has been set aside and (2) order dated 22.8.2003 (Annexure A-16) by which his reversion to the parent state has been declined. It is prayed that both these orders be quashed and a direction be issued to the Union of India, Ministry of Home Affairs, New Delhi, to repatriate respondent No. 2 to his Cadre State.
5. Separate written statements/replies have been filed by the two respondents. Both of them have taken a preliminary plea that the present O.A. is not maintainable before this Tribunal inasmuch as since it raises a dispute between the two Governments, (State of Himachal Pradesh on the one hand and Union of India on the other), it can be resolved by means of a suit only by the Supreme Court in view of the provisions of Article 131 of the Constitution of India.
6. The respondents have also resisted the case on merits. Respondent No. 1 asserts that the respondent No. 2 was appointed on Central deputation with the concurrence of the State Government as contemplated under Rule 6 of IPS (Cadre) Rules, 1954 and he joined the Intelligence Bureau after having been relieved by the Chief Minister of the State. Respondent No. 2 has also taken the similar plea by asserting that his candidature was sponsored for appointment of Central deputation by the State Government and he joined on 6th of March, 2003 as Additional Director, Intelligence Bureau, Government of India, after having been relieved under the orders of then Chief Minister, Shri Prem Kumar Dhumal. According to him, he has simply obeyed the orders passed by the Ministry of Home Affairs, Government of India, as well as his supervisors. Both the respondents have assailed the propriety, validity and legality of the uncalled for act of the State Government to initiate disciplinary action and have maintained that the Competent Authority has lawfully and rightly quashed the disciplinary proceedings. A rejoinder has been filed on behalf of the applicant, State of Himachal Pradesh.
7. We have heard Mr. H.S. Mattewal, Senior Advocate, assisted by Mr. Sanjiv Sharma, for the applicant and Mr. L. Nageshwara Rao, Additional Solicitor General, assisted by Mr. Lokender Thakur for respondent No. 1, as well as Mr. Deepak Bhattacharya, Senior Advocate, assisted by Mr. Niloy Das Gupta for respondent No. 2 at considerable length and have scanned the material brought on record.
8. We first propose to deal with the preliminary objection so emphatically and seriously pressed on behalf of the respondent about the maintainability of the present O.A. before this Tribunal in view of the constitutional mandate contained in Article 131 of the Constitution of India. Mr. Rao, learned Additional Solicitor General as well as Mr. Deepak Bhattacharya, Sr. Advocate, emphasised hat since in this case the State of Himachal Pradesh and Union of India are the rival disputants, this Tribunal does not have the jurisdiction or competence to resolve the dispute. On behalf of the applicant-State the above submission was repelled with equal vehemence. According to the learned Counsel for the applicant, a bare reading of the provisions of Section 3(q) of the Act, which defines the expression "service matters", Section 14 which deals with jurisdiction, power and authority of the Tribunal and Section 19(1) under which the machinery of this Tribunal is moved by a 'person aggrieved' by any order pertaining to any matter within the jurisdiction of the Tribunal, would indicate that this Tribunal has exclusive jurisdiction, power and authority, to the exclusion of other Courts (except the Supreme Court) in relation to all service matters concerning a member of any All India Service. Reliance has been placed on the various decisions of the Apex Court viz. (1) Union of India v. Deep Chand Pandey, AIR 1993 SC 382=1992(3) SLJ 71 (SC); (2) Tirath Raj and Ors., JT 1995(6) SC 517; (3) L. Chandra Kumar v. Union of India and Ors., (1997) 3 SCC 261 = 1998(2) SLJ 124 (SC) and (4) Kendriya Vidyalaya Sangathan and Anr. v. Subhas Sharma, (2002) 4 SC 145=2002(2) SLJ 296 (SC). The gamut of these decisions is that the provisions of Sections 14 and 3(q) of the Act cover a very wide field and there is nothing to suggest that the provisions dealing with the jurisdiction of the Tribunal should receive a narrow interpretation. If the subject matter of the claim is covered by Section 14, it must follow that the Tribunal has the exclusive jurisdiction to deal with the same. In the service matters the jurisdiction of this Tribunal is all pervasive and it cannot be hedged with any restrictions or conditions.
9. Before proceeding further we would do well at its stage to make a short and swift reference to the submission made by Mr. Rao that the expression "person" which finds a place in Section 19(1) "aggrieved by any order" does not embrace within its ambit a juristic person. Mr. Rao appeared to be of the view that only a 'natural' person, meaning thereby an employee can approach this Tribunal under Section 19 of the Act. We find it difficult to subscribe to the view canvassed by Mr. Rao. The expression "person aggrieved" has not been defined in the Act. This connotation came to be interpreted by the Apex Court in the case of Dr. Duryodhan Sahu and Ors. v. Jitender Kumar Mishra and Ors., JT 1998(5) SC 645=1999(1) SLJ 205 (SC). Placing reliance on the earlier decisions in Jasbhai Motibhai Desai v. Roshan Kumar Hazi Bashir Ahmad, 1976(1) SCC 671, and Thammanna v. Veera Reddy and Ors., 1980 (4) SCC 62, it was held that normally a "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him something or wrongfully refused him something, or wrongfully affected his title to something. The expression "aggrieved person" undoubtedly is an elastic and to some extent an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, it's features can be described in a broad tentative manner. It's scope and meaning depends upon diverse variable factors such as content, and independent of the statute of which contravention is alleged, the specific circumstances of the case, nature and extent of the petitioner's interest nature and extent of the prejudice or injury suffering to him. A Government or a local or other authority aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may also make an application to the Tribunal for the redressal of its grievance. This aspect of the matter has been specifically dealt with by a Full Bench of Central Administrative Tribunal, Principal Bench, New Delhi in its decision dated 13.1.2000 rendered in O.A. No. 1056/1996- Indian Council of Agricultural Research, Krishi Bhawan v. Mangal Singh. The question referred to the Full Bench was -- Whether an employer can come to the Tribunal for declaration against a retired employee relating to the alleged unauthorised occupation of the accommodation which had been allotted to him while he was still in service and for recovery of damages for the period the retired employee continued to occupy the accommodation unauthorisedly? The contention of the respondent employee before the Full Bench was that it is only an employee who can approach the Tribunal under Section 19 of the Act and no application is contemplated by and on behalf of the employer. After surveying a series of conflicting decisions on the point and making reference to the Preamble and Sections 3(q), 14 and 19 of the Act, it was held that power, authority and jurisdiction to be exercised by the Tribunal is not limited to the original application which may be filed by an employee only. In view of the Full Bench decision, the jurisdiction can well be exercised and with equal efficacy in regard to the dispute in respect of service matters which are brought by and at the instance of the employer. The contention that the expression 'person' occurring in Section 19 of the Act refers to only natural person was negatived with reference to the definition of 'person' as contained in Section 3(42) of the General Clauses Act, 1897. The Full Bench noticed that though it may generally be so that employees approach the Tribunal for redressal of their grievance yet it does not necessarily mean that the claim cannot be lodged from the other side. If it were so assumed, then one of the parties to the dispute or claim would be left without any remedy as the Act debars the jurisdiction of all Courts except the Supreme Court of India. The applicant Indian Council of Agricultural Research, a juristic person was held entitled to maintain an O.A. as a "person aggrieved" within the meaning of Section 19 of the Act.
10. It is an indubitable legal position that with regard to "service matters" as defined in Section 3(q), concerning a member of All India Service, this Tribunal established under Section 4(1) has the exclusive jurisdiction and no other Court (except Supreme Court) can take cognizance of the dispute (Section 14(1) (b).) The jurisdiction of this Tribunal pertaining to any service matter can be invoked both by the natural and juristic person--whether he is an employee or an employer. The above legal position, it is urged by the learned Advocates for the respondents, cannot be applied to the present O.A. According to them, things would have been different if the subject matter of the dispute was in between the employer and the employee, while in the present case the dispute, in essence, is between two Governments viz. Government of Himachal Pradesh and the Central Government. It was maintained on behalf of the respondents that the gist of the dispute is that the Government of India without the concurrence, knowledge and information of the State Government have removed an Officer from the Cadre-State for appointment on deputation and permitted him to join duties on a post on central deputation without being relieved by the State and when the State Government decided to take disciplinary action, against the concerned officer, by serving the memorandum of charge, the Central Government has in an illegal and improper manner intervened to allow the appeal of the officer and quashed the disciplinary proceedings. It was further pointed out that the applicant-State is further aggrieved on account of the fact that the Central Government has declined to revert back the officer to his parent cadre. We agree with the learned Advocates for the respondents that the pith and substance of the reliefs claimed in the O.A. is that the Central Government which has refused to repatriate the respondent No. 2 be commanded to revert him back to his parent cadre and the orders passed by the Central Government be quashed. In substance and in effect, the dispute revolves round the question as to whose executive fiat (whether of the Central Government or the State Government) with regard to the service conditions of respondent No. 2, is to prevail and in the event of a dispute between the two Governments which forum can be approached for redressal of the grievance?
11. A fervent plea has been raised on behalf of the respondents that Article 131 of the Constitution of India inhibits the jurisdiction of this Tribunal. Article 131 deals with the original jurisdiction of the Supreme Court to the exclusion of any other Court in any dispute between (a) Government of India and one or more States; or (b) between Government of India and any State or States on one side and one or more States on the other; or (c) between two or more state; if and in so far as the dispute involves in question (whether of law or fact) on which the existence or extent of a legal right depends. By the very terms of the Article the sole condition which is required to be satisfied for invoking the original jurisdiction of the Supreme Court is that the dispute between the parties referred to in Clause (a) to (c) must involve a question on which the existence or extent of a legal right depends. This Article is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties immunities, liabilities, desirability etc., flowing therefrom. In the case of State of Karnataka v. Union of India and Anr., (1977) 4 SCC 608, a Constitution Bench of the Supreme Court considered the scope and objective of Article 131. It was observed that Article 131 is a remnant of federalism and should be widely and generously interpreted so as to advance the intended remedy. The quintessence of the Article is that there has to be a dispute between the parties regarding a question on which the existence or the extent of a legal right depends. In that case the State of Karnataka challenged the appointment of a Commission of Inquiry into the conduct and allegation of corruption against the Chief Minister. The State Government had also appointed its own Commission. In a suit by State of Karnataka under Article 131, the Union of India took a preliminary objection about the maintainability of the suit. Negativing the plea, the Apex Court held, a challenge by the State Government to the authority of the Central Government to appoint a Commission of Inquiry clearly involves a question on which the existence or extent of the legal right of the Central Government depends and that is enough to sustain the proceedings brought by the State. The object of Article 131 is to provide a high powered machinery for ensuring that the Central and State Governments, act within the respective spheres of their authority and do not trespass upon each others constitutional functions or powers. The Constitution has purposely conferred on the Supreme Court a jurisdiction which is untrammelled by considerations which fetter the jurisdiction of a Court of first instance. The very nature of the disputes arising under this Article is different both in form and substance from the nature of the claims which require adjudication in ordinary suits. The proceedings before the Supreme Court are adjudicatory of the limits of Constitutional power vested in the Central and State Governments. The competition in such a proceeding is between two or more Governments either the one or the other which possesses the constitutional power to act. In Union of India and Ors. v. State of Rajasthan, (1984) 4 SCC 238, it was held that Supreme Court has the exclusive jurisdiction under Article 131 in a matter raising a dispute with regard to the relationship of the State and the Union. Any dispute which may arise between a State in the capacity of an employer in a factory, a manufacturer of goods subject to exercise duty, a holder of a permit to run a stage carriage, a trader or business-man carrying on business not incidental to the ordinary functions of Government, a consumer of Railway services etc., like any other private party on the one hand and the Union of India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131. It could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court.
12. From the above discussion it follows that to invoke the exclusive jurisdiction of the Supreme Court under Article 131 the dispute between the State Government and the Union of India should be such as it involves any question, whether of law or fact, on which the existence and extent of a legal right depends. The expression 'legal right' has been elaborately interpreted to include the following questions:
(i) The validity of a law of the Union or of a State.
(ii) Any claim or dispute between the Union and a State as to their competence, under Section VII, to legislate over a subject.
(iii) A question raised by a State as to the right of the Union to dissolve the State Assembly and the contrary right of the State to maintain the federal basis of the Constitution against violation by the Union; or an unconstitutional exercise by the Union of the power under Article 356.
(iv) A question as to the power of the Union Government to order inquiry, under the Commissions of Inquiry Act, into allegations of corruption, misuse of Governmental powers, etc., against a Minister or Ministers or other officers or agents of the State.
(v) A question as to the Governmental powers vested in the Government of the State and its Ministers vis-a-vis those of the Union Government and its Ministers.
(vi) A question of interpretation of the Constitution which would affect the exercise of the Governmental powers of the parties to the dispute, including their rights, duties, liabilities, immunities etc., flowing therefrom.
It is, thus, clear that provisions of Article 131 would be attracted only when the dispute arises between or amongst the States and the Union in their constitutional capacity and not in any of the contractual capacity or in any other matters where the States or the Union of India sue or be sued like a private litigant. A dispute with regard to service matter of a member of All India Service or for that matter between an employer and employee is not contemplated within the ambit of Article 131.
13. Mr. H.S. Mattewal, Senior Advocate for the applicant-state made it clear that it is a case where the dispute is directly concerning the service conditions (which include deputation also) of respondent No. 2 and, therefore, it cannot be easily inferred that it is a dispute in between the State Government and the Central Government about the service conditions of respondent No. 2. The stand taken by the respondent No. 2 is that he has been appointed on deputation under the orders of the Central Government which had considered his nomination made in his favour by the Chief Minister of the State and he joined the duties on the new post in compliance with the orders in writing passed by the then Chief Minister to relieve him. The respondent No. 2 being a senior responsible officer belonging to the disciplined force had no option but to carry out the orders of his superiors. The State Government never ordered him not to proceed to join the Central deputation post. In case the Central Government accepts the request of the State Government to repatriate him to join the parent State and the Central Government relieves him, the respondent No. 2 does not have any choice in the matter. He has to relinquish the charge of the deputation post and proceed to join a post in the State cadre. In the absence of any order from the Central Government, the respondent No. 2 cannot be expected the relinquish the post in the Central Government. Therefore, in the whole process of repatriation or deputation the State and the Central Governments are involved and obviously respondent No. 2 has to obey the orders. He cannot move from one place to another of his own. It is true that in the matter of his posting, respondent No. 2, has no role to play but the dispute raised in the present O.A., as said above, is essentially and certainly in regard to the service matter between the State Government and the Central Government. The State Government considers that the reversion of respondent No. 2 to his parent cadre is necessary while the Central Government needs him to continue on deputation and, therefore, the latter has declined to relieve him. In this whole process it is the office who sands affected. It is the question of his placement. The appellate powers exercised by the Central Government under the Appeal Rules of 1969 have a direct nexus with the service conditions of respondent No. 2. Undoubtedly, the O.A. is with regard to the service matter of the respondent No. 2 in short whether he should continue on deputation or required to be repatriated?
14. An alternative submission came to be made on behalf of the respondents that the disputes of the nature projected in this O.A. be resolved between the two Governments by amicable settlement by adopting an efficacious mechanism as time and again the Apex Court and other Courts have lamented upon and deprecated the tendency to approach the Court or the Tribunal to resolve inter governmental or inter departmental disputes. Reliance is placed on a recent case of Chief Conservator of Forests, Government of Andhra Pradesh v. Collector and Ors., (2003) 3 SCC 472, in which the Supreme Court observed that it was not contemplated by the framers of the Constitution or the Code of Civil Procedure that two departments of a State or the Union of India will fight litigation in a Court of law. It is neither appropriate nor permissible for two departments of a State or Union of India. Such a course cannot but be detrimental to the public interest as it also entails avoidable wastage of public money and time. The Apex Court further observed that various departments of the Government are its limbs and; therefore, they must act in co-ordination and not in confrontation. Filing of writ petition by one department against the other by invoking the extra-ordinary jurisdiction of the High Court is not only against the propriety and polity as it smacks of indiscipline but is also contrary to the basic concept of law which requires that for suing or being sued there must be either natural or a juristic person. The Court directed that the States/Union of India must evolve a mechanism to set at rest all inter-departmental controversies at the level of the Government and such matters should not be carried to a Court of law for resolution of the controversy. The above observation, it was urged on behalf of the respondents, apply with equal force to a dispute between the State and the Centre. There can be no quarrel about the fact that the inter-departmental disputes or controversies should not be taken to Courts as it is desirable to resolve them at the level of the Government. These observations, however, pre-suppose that the two warring parties are not natural or juristic persons. Here, the State as well as Union are the juristic person, who can sue or be sued. In case of some genuine dispute with regard to service matters, there has to be some Court or Tribunal to decide the same. It is well settled proposition of law that there is no legal right without remedy. In case there is a dispute connected with service matter of an employee, between the States and the Central Government, it has, of necessity, to come before this Tribunal as it has the exclusive jurisdiction in service matters and the jurisdiction of all other Courts is barred. The ordinary wrangles of the type brought in the present case cannot be taken to the Supreme Court by means of a suit under Article 131 of the Constitution and since the dispute is between two juristic persons with regard to the service matter, it has to fall within the province of this Tribunal. The palliative of a suit under Article 131 of the Constitution does not bar a remedy of the State Government in a service matters of an employee even if one of the respondent is Union of India. Accordingly, the preliminary objection of the respondents that the present O.A. is not maintainable in view of the embargo contained in Article 131 of the Constitution of India, fails. We have jurisdiction in the matter as the dispute is with regard to the service matter of a member of All India Service.
15. Now the merits of the case: We have already unfolded the narrative of the controversy between the parties. Without repeating the facts all over again, briefly stated, the stand taken by the applicant is that Shri Diwakar Prasad, IPS, who returned from deputation a few months back, i.e. in July, 2002 could not be appointed on deputation again in March, 2003 and in any case since the State Government had not made a nomination in his favour or relieved him to join on deputation post in Centre, his appointment and continuance on the said post is illegal and against the orders, instructions and guidelines issued by the Central Government itself. It is further asserted that the Central Government has illegally allowed the appeal of the respondent No. 2 by quashing the chargesheet which was issued to him in pursuance of the decision of the State Government to take disciplinary action for his having relinquished the charge of the post of OSD in the office of Resident Commissioner, New Delhi and the Director General of Police (Enforcement and Vigilance) without permission. The respondents have stoutly challenged the correctness and genuineness of the above assertions and have reiterated that the Central Government has taken the respondent No. 2 on deputation with the concurrence of the State Government, which in fact, relieved by him to join the new assignment.
16. We have to examine and determine the point -- whether infact the respondent No. 2 had proceeded on central deputation without the concurrence, knowledge and information of the State Government? The appointment on deputation of a member belonging to Indian Police Service is governed by the Indian Police Service (Cadre) Rules, 1954 (for short "Cadre Rules of 1954") made in exercise of the powers conferred by Sub-section (1) of Section 3 of the All India Services Act, 1951, by the Central Government after consultation with the Government of the States concerned. Rule 6(1) provides that a cadre officer, may with the concurrence of the State Government and the Central Government be deputed for service under the Central Government. From the said provision, it follows that a cadre officer can go on central deputation only with the concurrence of the State Government. In the instant case: the Union of India, respondent No. 1 has brought on record a D.O. letter dated 27.2.2003 (Annexure 'A') addressed by Shri Prem Kumar Dhumal, then Chief Minister, Himachal Pradesh, to Shri Lal Krishna Advani, Deputy Prime Minister, Ministry of Home Affairs, Government of India, New Delhi, stating that "The State Government has no objection in case Sh. Diwakar Prasad, IPS (HP-68) is taken on deputation in any capacity in Government of India." This letter addressed by the Chief Minister himself has been treated as nomination for and on behalf of State Government of Himachal Pradesh in favour of the respondent No. 2 for appointment to a central deputation post. On the basis of no objection contained in the said D.O. Letter the case of the respondent No. 2 was considered by the Government of India (Ministry of Home Affairs) and by a Fax Message dated 4th march, 2003 (Annexure A-9/R-1), the Ministry of Home Affairs informed the Chief Secretary of the State Government that the Competent Authority has approved the appointment of respondent No. 2 as Additional Director Intelligence Bureau, New Delhi, on deputation basis. It was requested that he may be relieved immediately. On receipt of the fax message, Shri Prem Kumar Dhumal, then Chief Minister, Himachal Pradesh asked his Chief Secretary to relieve the respondent No. 2 on 4.3.2003 itself. A copy of this order is with Annexure A-13, filed by the applicant and Annexure R-8 filed by the respondent No. 2. On the copy of the said order the Chief Minister directed the respondent No. 2 to hand over the charge, in public interest, and join the new assignment in the Government of India. He further noted that he had told the Chief Secretary to relieve him immediately (i.e. on 4.3.2003 itself). Mr. Mattewal the learned Senior Advocate urged on behalf of the applicant that these documents have been manipulated by respondent No. 2 to defend himself and in any case it was most unusual to notice that a Chief Minister was directly corresponding with the Central Government in nominating the respondent No. 2 for appointment on deputation and passing orders relieving him after his appointment. It was further urged that at the relevant time Shri Prem Kumar Dhumal was a Caretaker Chief Minister and since the newly elected Government was to take office in a couple of days, he should not have recommenced the case of Shri Diwakar Prasad or relieved him. It is also submitted that the respondent No. 2 was sent on deputation in flagrant violation of the guidelines for the preparation of the offer list for consideration for appointment to the central posts, circulated through D.O. letter dated 17.12.2002 addressed by Shri Akhil Kumar Jain, Joint Secretary (Police) to Shri R.K. Bhattacharya, Chief Secretary, State of Himachal Pradesh, Annexure A-8. Our pointed attention was drawn to the stipulation in Paras 6 and 7 of the guidelines which provided that officers who have less than 3 years of service to superannuate may not be sponsored and an officer will be considered for deputation to the Central Government for the various posts only if he has completed "cooling off period" of three years prior to the proposed date of his appointment at the Centre after the previous deputation, if any. According to Mr. Mattewal, respondent No. 2 is to superannuate on 31st July, 2004 and since he returned from central deputation only in July, 2002, his fresh nomination for deputation was against the guidelines which were given a complete go by.
17. In the facts and circumstances of the case, it cannot be said that the respondent No. 2 was appointed on deputation without the concurrence or knowledge of the State Government. Undoubtedly, the case of the applicant was sponsored by then Chief Minister (Shri Prem Kumar Dhumal) himself by addressing a D.O. letter dated 27.2.2003. There is no concept like a caretaker Chief Minister. A Chief Minister is a Chief Minister for all times and for all intents and purposes till he is replaced by a newly elected person duly sworn in. Both on 27th February 2003 and on 4th March, 2003, Shri Prem Kumar Dhumal was the Chief Minister of Himachal Pradesh. He was heading the State Government. All the executive powers of the State Government vested in him. If he had chosen for the reasons, which are hidden in the penumbral zone far away from judicial scrutiny, to convey 'no objection' of the State Government to the Government of India for taking the respondent No. 2 on deputation and relieving him on receipt of the orders of appointment, no fault can be found with the exercise of the powers or authority by him. It is true that the orders passed by him are bereft of the various official formalities and the normal procedure which is followed in corresponding with the Government of India through the Chief Secretary was not adopted in this case. But the fact remains that the requirement of Rule 6 of the Cadre Rules of 1954 had been duly complied with. The new Government was sadly mistaken in assuming that the respondent No. 2 has of his own valuation and without any nomination in his favour or orders joined the central deputation post after relinquishing the charge of the post in the State Government. Unless there were specific orders from the Government of India, respondent No. 2 could not have joined the post on central deputation. In the absence of the orders by the Competent Authority it was well neigh impossible for him to do so. The newly elected Government, it appears, took a serious view of the matter and sent a fax message dated 10.3.2003 (quoted on page 2 above) intimating the reasons on account of which respondent No. 2 could not be appointed on deputation. The Government of India, in reply, brought the true facts to the notice of the State Government.
18. The guidelines which are circulated inviting nominations from the State Government for various deputation posts are not enforceable through a Court of law. These guidelines are intended to regulate the Governmental business. They are not so sacrosanct that they cannot be varied or deviated in any circumstance. The Government of India, as the Controlling Authority of the concerned cadre has the power and competence to relax any of the conditions mentioned in the guidelines. In the written statement filed by the Government of India it has been specifically asserted that in the case of the respondent No. 2 the guidelines with regard to the "cooling off" period had been waived off. It is, therefore, a case where respondent No. 2 was chosen by the Government of India for appointment on deputation with the concurrence of the State Government as contemplated in Rule 6(1) of the Cadre Rules of 1954. Here, it would not be out of context to make a reference to the proviso inserted by notification dated 29th July, 1985 to Rule 6(1) of the Cadre Rules of 1954. Any dispute in the matter (with regard to deputation or otherwise), has to be decided by the Central Government and the State Government is obliged to give effect to the decision of the Central Government. After the receipt of the reply dated 31st of March, 2003 (Annexure A-11), to the fax message of the State Government dated 10th March, 2003, the Whole controversy with regard to the appointment of respondent No. 2 on deputation should have been taken by the State Government to have come to an end and there was nothing left to pursue the matter any further. We are unable to find any fault - whether legal or factual - with the appointment of applicant on deputation to the Central Government and his relinquishing the charge to join on deputation under the orders passed by the Chief Minister himself. The respondent No. 2 had no option but to comply with the order. The orders passed by then Chief Minister completely protect him against any proposed disciplinary action,
19. The newly established State Government of Himachal Pradesh did not think it proper to shelve the matter; instead it decided, in vain, to initiate disciplinary action against the respondent No. 2 on the assumption that he relinquished the charge of the post which he was holding in the State Government without its permission. A memorandum dated 8.3.2003 (later on corrected to 8.4.2003), alongwith the article of charge and other connected documents (Annexure A-12) was directly served upon him. The article of charge against respondent No. 2 reads as follows:
"Shri Diwakar Prasad, IPS (HP; 68) while functioning as O.S.D., R.C. Office, H.P. Govt.. New Delhi and Director General of Police, Enforcement and Vigilance, H.P. Shimla left the State and joined in Intelligence Bureau as Additional Director on 6.3.2003 without any order of the State Government. This action of a Senior Police Officer constitutes grave breach of discipline on his part. Thus he failed to maintain absolute devotion to duty which amounts to unbecoming of a member of All India Service which is in violation of Rule 3 of A.I.S. Conduct Rules, 1968."
20. Against the charge memo, the respondent No. 2 preferred an appeal under Rule 16 of the Appeal Rules of 1969, addressed to the Secretary, Ministry of Home Affairs, Government of India, through the Director (Intelligence Bureau) on 6th May, 2003, mentioning therein all the relevant circumstances in which he was appointed on Central Deputation and was ordered by the Chief Minister to relinquish the charge on 14.3.2003. The Government of India invited comments of the State Government on the appeal preferred by respondent No. 2. Para-wise comments were sent by the State Government on 12th June, 2003 (Annexure A-14). The Competent Authority in the Government of India allowed the appeal preferred by respondent No. 2 and set aside the disciplinary proceedings initiated by the State Government. The State Government has challenged before us the maintainability of the appeal filed by respondent No. 2 and the order passed by the Government of India quashing the disciplinary action against him. Mr. Mattewal appearing on behalf of the applicant urged that under Clause (ii) of Rule 15 of the Appeal Rules of 1969, no appeal lies against an order of interlocutory nature or of the nature of the step-in-aid for the final disposal of the disciplinary proceedings and accordingly the appeal to quash the chargesheet was not maintainable and the order quashing the contemplated disciplinary action is non est. Mr. Deepak Bhattacharya, learned Counsel for respondent No. 2 invited our attention to Rule 16 of the Appeal Rules, 1969 which incorporates the contingencies in which an appeal lies. He urged that a member of All India Services is entitled to prefer an appeal to the Central Government against all or any of the orders mentioned in Clauses (i) to (iv), or Rule 16. He made a pointed reference to Sub-clauses (b) and (c) of Clause (iii) which provides that an appeal shall lie where the provisions of the rules have been interpreted to the disadvantage of a member of a service or the order has the effect of superseding him in promotion to a selection post. According to Mr. Bhattacharya, the appeal was preferred under Rule 16(iii)(b) of the Appeal Rules of 1969 as the applicant-State was out to interpret the provisions of Rule 3 of the All India Service (Conduct) Rules, 1968 to the serious detriment and disadvantage of the respondent No. 2 inspite of the fact that the Central Government has clarified the whole position with regard to the appointment and relief of the respondent No. 2 on deputation. It was also urged that the decision to initiate disciplinary action followed by issuance of memorandum of charge cannot be termed as an order of interlocutory nature. Such a decision or order is likely to visit the member of the service with serious evil consequences inasmuch as a decision to initiate disciplinary action, which is further translated into action by serving the chargesheet mars the future career and prospects of the officer.
21. The appeal filed by the respondent No. 2 was certainly not against an interlocutory order but against a final conscious decision taken by the State Government to initiate disciplinary proceedings against him which was followed by the positive act of issuing the chargesheet. Not only this, the State Government was interpreting the provisions of Rule 3 of the Conduct Rules, 1968 to the serious disadvantage of the respondent No. 2 ignoring the communications of the Central Government which virtually clinched the issue. This outrageous and uncalled for decision taken by the applicant-State, could be challenged by the respondent No. 2 by filing an appeal under Rule 16 of the Appeal Rules, 1969. The weakness of the stand taken by the State Government is further strengthened by the fact that while forwarding the parawise comments on the appeal of the respondent No. 2, there was not even a faint suggestion that it was not maintainable or it was against an interlocutory order. Not only this the State Government had the right to withhold the appeal of the respondent No. 2 as provided in Rule 21 of the Appeal Rules of 1969. Nothing of the kind was done. The plea that the appeal was not maintainable as it was preferred against the order of interlocutory nature is not only afterthought but wholly untenable.
22. Rule 24-A of the Appeal Rules, 1969 makes a provision for the review of the order passed by the Competent/Appellate Authority under Rule 19. The State Government has, intact, filed a review application on 23.8.2003 a copy of which is Annexure A-17. No orders have been passed on this review application and during the pendency of the same the State Government has chosen to rush to this Tribunal which is clearly in breach of the provisions of Section 20 of the Administrative Tribunal Act, 1985.
23. In our view the present O.A. is misconceived. It has not taken into consideration the fact that the Government of India is the Controlling Authority with regard to service matters of the members of the All India Services. The fountain of power to create All India Services is to be found in Article 312 of the Constitution of India. Under the Constitution there is division of powers between Union and the State Legislatures to make laws to regulate the respective services. Entry 70 of the Union List (List-1) of the Constitution confers exclusive powers on the Union of India to make laws to regulate the service conditions of the members of the All India Services. The power of the State Government is circumscribed under entry 41 of the State List (List-11) to regulate the service conditions of the members of the State Services. All India Services Act, 1951 has been enacted by Parliament and the various rules, regulations or orders have been made and issued by the Central Government for regulating the various matters concerning the service conditions of the members of the All India Services. The Central Government has also the power to provide the residuary matters. In the strict sense the relationship of master and servant does not subsist in between and the cadre state and a member of the All India Service. The Central Government does not have its own independent cadre. The cadres for members of All India Services are to be found in the States only. A few of these persons are intended to serve at the Centre against the quota for deputation reserve. The appointments of the members at the Centre are not, therefore, in a sense, a deputation. The State Government does not have the complete or exclusive seisin over a member of All India Service. It is for this reason that in all the rules, regulations and orders, it has been specifically provided that in case of a dispute or a doubt the decision of the Central Government shall be final and the State Governments have been obligated to implement the same. The Constitution aims at maintaining a fine balance between the powers of the Central Government and the State Governments keeping in view the questions arising on account of the delicate relationship of the Central and the State in a federation structure particularly, if different political parties are in power in the Centre and the States. The wholesome principle underlying and involved in creating All India Service has to be maintained otherwise it would lead to an anomalous result if a member of the All India Service is left at the unintended mercy of the parent State. There is much to be said about the so called parental relationship between the cadre-State and a member of All India Service. In any case, a State Government cannot afford to come in confrontation with the Central Government, particularly keeping in view the fact that in all the rules, regulations and orders relating to service conditions of member of All India Services, primacy of Government of India has been preserved and maintained. It has all - pervasive and overriding powers. It may, how-ever, be clarified that we are not saying (or we say nothing) about a genuine case of incident of service in which a person drafted from a State to the Centre has to go back in the exigencies of service or for any reasons not connected with his work or conduct.
24. Before leaving this case, we are constrained to say that the attitude of the State Government with respect to the respondent No. 2 was not very happy. The respondent No. 2 has, in his reply, detailed the various reasons on account of which the newly elected Government headed by the present Chief Minister is averse to his interest. The present Chief Minister has not minced the words in deprecating the conduct of the respondent No. 2 as is exhibited from the various Annexures and Newspaper reportings annexed by the respondent No. 2 with his request dated 17.4.2003 (Annexure R-5) made to the Secretary, Ministry of Home Affairs, Government of India for protection against victimisation for discharge of his lawful duties. We do not intend to sift allegations of mudslinging or to take up the controversy which obviously has political hue and over-tones. The respondent No. 2 is to superannuate on 31.7.2004. His reversion to the State-cadre, at this stage in the circumstances, may, not be warranted. The Government of India has declined to revert the respondent No. 2 to his cadre-state for valid reasons incorporated in the letter dated 31st of March, 2003. Nevertheless, if the respondent No. 2 is so dear and indispensible to the State Government that his recall is necessitated, the only graceful course left to it is to approach the Government of India and resolve the controversy by a dialogue instead of taking shelter of the Court. It is what the Supreme Court has expected in the case of Chief Conservator of Forests, Government of Andhra Pradesh (supra).
25. In the result we find that the present O.A. has to fail as it is devoid of merits. The respondent No. 2 has proceeded on central deputation in accordance with the provisions of Rule 6(1) of the Cadre Rules, 1954 after being relieved by the Competent Authority. Initiation of departmental action against him was otiose. Therefore, both on factual as well as legal matrix the O.A. fails and is accordingly dismissed.