Central Administrative Tribunal - Lucknow
Arun Arya vs Union Of India on 8 January, 2025
CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00492/2016
Order Reserved on: 02.01.2025
Order Pronounced on:08.01.2025
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Arun Arya, aged about 55 years, Son of Late Shri Krishan Lal Arya,
R/o B-8, Butler Palace Colony, Lucknow.
.....Applicant
By Advocate: Shri Praveen Kumar through VC
VERSUS
1. Union of India through the Secretary, Ministry of Personnel, Public
Grievances & Pension, Department of Personnel & Training,
Government of India, North Block, New Delhi.
2. The Establishment Officer & Additional Secretary, Ministry of
Personnel, Public Grievances & Pension, Department of Personnel
& Training, Government of India, North Block, New Delhi.
3. The Under Secretary to the Government of India, Ministry of
Personnel, Public Grievances & Pension, Department of Personnel
& Training, Government of India, North Block, New Delhi.
4. State of UP through its Chief Secretary to the Government of Uttar
Pradesh, Civil Secretariat, Lucknow.
5. The Special Secretary, Appointments Department, Government of
U.P., Civil Secretariat, Lucknow.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
Shri S. S. Rajawat
ORDER
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case relating to resignation, the applicant has sought the following reliefs:
"1. To quash the impugned order dated 19.05.2015, contained as Annexure No A-1 to this OA with all consequential benefits.
1.A To quash the impugned order dated 22.08.2016, contained as Annexure No. A-1A to this affidavit/OA.Page 1 of 13
CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors.
2. To reinstate back/treat the applicant in service without any break and accord all consequential benefits.
3. Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
4. Cost of the present case."
2.1 The facts of the case are that the applicant, an officer belonging to 1985 batch of the Indian Administrative Service (IAS) borne on Uttar Pradesh cadre,was permitted by Government of India, vide order dated 05.12.2006, to join at Sana'a Yemen as Senior Public Sector Management Specialist in the World Bank for a term of two years on foreign deputation under rule 6(2)(ii) of the IAS (Cadre) Rules, 1954 by waiving off the cooling period after a prior deputation to Royal Danish Ministry of Foreign Affairs as Senior Adviser in Water and Sanitation Sector in Bangladesh. Subsequently, Government of India, vide order dated 24.11.2008, approved further extension of the applicant's tenure on foreign deputation to the World Bank up to 10.12.2010. 2.2 On expiry of his tenure, the applicant represented on 24.11.2010 further extension of his foreign deputation tenure with the World Bank and he continued to work in the World Bank. The State Government, vide letter dated 27.02.2013, directed the applicant to join in the parent cadre on completion of his deputation tenure at the World Bank on 10.12.2010. Subsequently, a show cause notice dated 09.12.2013 was issued to the applicant under rule 7(2) of the All India Services (AIS) (Leave) Rules, 1955 for unauthorized absence since 11.12.2010. This was followed by another notice dated 25.08.2014 asking the applicant to submit his explanation by 25.09.2014. The notice dated 25.08.2014 was published in the official gazette dated 06.09.2014. Thereafter, the State Government referred the matter to Government of India which, vide order dated 19.05.2015, treated the applicant's absence as 'deemed resignation'. Subsequently, the applicant made representation dated 09.12.2015 and supplementary Page 2 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors. representation dated 16.12.2015 which were rejected by Government of India vide order dated 22.08.2016. Aggrieved, the applicant has preferred this OA.
3.1 The applicant states that owing to his efficient work, the World Bank granted him further extension and accordingly he requested the respondents to grant further extension on 24.11.2010, but the respondents neither communicated either acceptance or rejection of his request. The applicant further states that, under the bona fide belief that the respondents might not have any objection to further extension, he continued with his foreign assignment pending their reply. It was only in November, 2015 that he came to know through a newspaper report that he was deemed to have resigned by the respondents for his failure to return to the cadre. The applicant contends that the letter dated 27.02.2013, the show cause notice dated 09.12.2013 and notice dated 25.08.2014 were never served upon him and he came to know about them for the first time on 16.11.2015. It is averred that these communications appear to have been addressed to the World Bank's office in Yemen (Sana'a) whereas the applicant was re-allocated to Washington in February, 2011 in the wake of violent situation in Yemen. Even the impugned order dated 19.05.2015 was not served and it was returned to the respondents as unserved as per the information obtained under the Right to Information (RTI) Act, 2005. The respondents were having full knowledge about the Headquarter address of the World Bank and should have dispatched their communications at that address. By not properly informing the applicant, miscarriage of justice has occurred. The impugned order dated 19.05.2015 has been passed without ensuring sufficient service. It is no longer res integra that reasonable opportunity is required to be afforded. Therefore, the impugned order dated 19.05.2015 deserves to be interfered with. Page 3 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors. 3.2 The applicant states that he appealed against the ex parte order dated 19.05.2015 vide his representation dated 09.12.2015 and supplementary representation dated 16.12.2015. He contends that the respondents have rejected his representations dated 09.12.2015 and 16.12.2015 filed under rule 32 of AIS (Leave) Rules, 1955 read with rule 24-A of AIS (Discipline and Appeal) Rules, 1969, rule 3 of IAS (Conditions of Service Residuary Matters) Rules, 1960 and Article 21 of the General Clauses Act, 1897, vide impugned order dated 22.08.2016 without having regard to the facts of the case and the existing law. 3.3 The applicant also contends that in cases of Surya Pratap Singh (IAS:1982) and Pradeep Bhatnagar (IAS:1982), the respondents allowed prolonged periods of foreign deputation while the applicant was not afforded a similar dispensation.
4.1 The respondents state that before the completion of extended tenure of deputation on 10.12.2010, the applicant sent a letter dated 29.11.2010 with his Yemen address to the State Government for conveying consent/no objection for extension of deputation from 11.12.2010 to 10.12.2011. The State Government referred the applicant's request to Government of India on 09.12.2010. The Government of India, vide letter dated 18.10.2012, asked the State Government to intimate whether the applicant had reported back from foreign assignment and in case he had not yet reported back to the cadre, he may be directed to do so immediately. Thereafter, the State Government, vide letter dated 27.02.2013, directed the applicant to join in the parent cadre immediately. The letter dated 27.02.2013 was dispatched to the Yemen address as his earlier correspondence dated 29.11.2010 had emanated from the same address and he had never informed about change of address to the State Government. Vide letter dated 02.07.2013, Government of India directed the State Government Page 4 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors. to issue a show cause notice to four officers, including the applicant. Accordingly, the State Government issued show cause notice dated 09.12.2013 to the applicant for unauthorized absence since 11.12.2010. As the applicant neither joined his parent cadre nor submitted reply, a final notice dated 25.08.2014 was issued to applicant's Yemen address giving time up to 25.09.2014 to submit explanation and the notice dated 25.08.2014 was also published in the Government gazette dated 06.09.2014. When the applicant did not join nor submitted explanation, the State Government referred the matter to Government of India on 24.04.2015. The Government of India, vide order dated 19.05.2015, ordered that the applicant is deemed to have resigned from IAS with effect from 10.12.2010 in terms of rule 7(2) (c) of AIS (Leave) Rules, 1955. The order dated 19.05.2015 was sent to the applicant's last known address in Yemen, but it was returned with the remark "service suspended returned to sender".
4.2 It is further stated that the applicant's representations dated 09.12.2015 and 16.12.2015 were forwarded by State Government to Government of India on 29.01.2016. Vide letter dated 07.06.2016, Government of India sought comments of the State Government. The State Government mentioned that notices were sent to the applicant and published in the Gazette and these were not received back. Finally, vide order dated 22.08.2016, Government of India rejected the applicant's representations.
4.3 In respect of the two cases cited by the applicant, the respondents state that Surya Pratap Singh had been regularly making applications to the State Government for sanction of leave which resulted in sanction of various kinds of leave to him and pursuant to direction of the State Government, he personally submitted his joining report in the State Government on 22.10.2010. In the other case of Page 5 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors. Pradeep Bhatnagar, on request of State Government he submitted his joining on 20.12.2012 and all his leave was subsequently regularized. It is stated that apart from the applicant, four other IAS officers have been notified with deemed resignation due to their unauthorized absence.
5. Heard both the parties.
6.1 The genesis of the present case is the deputation of the applicant to the World Bank under rule 6(2) (ii) of the IAS (Cadre) Rules, 1954. Rule 6 of these Rules is reproduced below:
"6. Deputation of cadre officers - 6(1) A cadre officer may, with the concurrence of the State Governments concerned and the Central Government, be deputed for service under the Central Government or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or by another State Government.
Provided that in case of any disagreement, the matter shall be decided by the Central Government and the State Government or State Governments concerned shall give effect to the decision of the Central Government. (2) A cadre officer may also be deputed for service under -
(i) a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body, by the State Government on whose cadre he is borne; and
(ii) an international organization, an autonomous body not controlled by the Government, or a private body, by the Central Government in consultation with the State Government on whose cadre he is borne:
Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item (ii), except with his consent: Provided further that no cadre officer shall be deputed under sub rule (1) or sub-rule (2) to a post other than a post under the Central Government or under a company, association or body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government, carrying a prescribed pay which is less than, or a pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation."
(emphasis supplied) It is noted that deputation under rule 6(2) (ii) is made by the Central Government in consultation with the State Government on whose cadre the officer is borne. It is not in dispute that the applicant was relieved by the State Government to join at Sana'a Yemen as Senior Public Page 6 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors. Sector Management Specialist in the World Bank under rule 6(2)(ii) of the IAS (Cadre) Rules, 1954 at his request for an initial term of two years. It is also not in dispute that the applicant's tenure at the World Bank was extended by two years, i.e., upto 10.12.2010 by the respondents at the applicant's request.
6.2 It is observed that the applicant made the request for extension for two years vide his letter dated 31.10.2008 to the Principal Secretary, Appointment Department, Government of Uttar Pradesh, Lucknow stating inter alia:
".....I got relieved from the Uttar Pradesh cadre on December 7, 2006 and had joined the services of the World Bank on December 11, 2006.
2. After attending the new Staff Orientation Course at the World Bank headquarters at Washington DC, I had joined the Yemen country office on January 7, 2007. I am the designated Country Governance Adviser for Republic of Yemen ...."
(emphasis supplied) Further, it is noted that the applicant, vide letter dated 29.11.2010, made request to the State Government for further extension of deputation in following terms:
"To Mr. Kunwar Fateh Bahadur, Principal Secretary, Appointment Department (Section-8), Government of Uttar Pradesh, Lucknow, Uttar Pradesh, India.
Subject: Extension of Foreign Deputation of Arun Arya, IAS (1985) as Senior Public Sector Management Specialist in the World Bank - for a period of one year - Cadre Clearance regarding. In continuation of my letter dated November 24, 2010 regarding above cited subject, I am enclosing herewith letter dated November 27, 2010 of Mr. Guenter Heidenh of, Sector Manager, Public Sector and Governance, Middle East and North Africa Region, World Bank, extending my current assignment as the Senior Public Sector Management Specialist, in the World Bank office in Sana'a, Republic of Yemen, for a period of one year, with effect from December 11, 2010 and until December 10, 2011.
2. I would be highly obliged if you could kindly convey the consent/no objection of the State Government to the Government of India in this regard.
With best regards, Yours Sincerely, Page 7 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors.
Sd/-
(Arun Arya) Senior Public Sector Management Specialist, Public Sector and Governance, Republic of Yemen, Middle East and North Africa Region, The World Bank."
(emphasis supplied) It is evident from the above that the applicant had informed the respondents that he had joined the Yemen country office of the World Bank and that his request for extension of foreign service deputation for one year up to 10.12.2011 was made in his assignment as the Senior Public Sector Management Specialist in the World Bank office in Sana'a, Republic of Yemen. We will have occasion to advert to this relevant fact later.
6.3 Having issued the direction dated 27.02.2013 to join in the parent cadre, show cause notice dated 09.12.2013, and another notice dated 22.08.2014, the following order dated 19.05.2015 was passed by the respondents:
"The President is pleased to direct that Shri Arun Arya, a member of the Indian Administrative Service, borne on the Cadre of (UP:1985) is deemed to have resigned from the Indian Administrative Service with effect from 10.12.2010 in terms of rule 7(2)(c) of the All India Services (Leave) Rules, 1955."
(emphasis supplied) At this stage, it is relevant to refer to rule 7 of AIS (Leave) Rules:
"7. Maximum period of absence from duty--(1) No member of the Service shall be granted leave of any kind for a continuous period exceeding five years.
(2) A member of the Service shall be deemed to have resigned from the service if he -
(a) is absent without authorisation for a period exceeding one year from the date of expiry of sanctioned leave or permission, or
(b) is absent from duty for a continuous period exceeding five years even if the period of unauthorized absence is for less than a year, or
(c) continues on foreign service beyond the period approved by the Central Government:
Provided that a reasonable opportunity to explain the reason for such absence or continuation of foreign service shall be given to Page 8 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors.
the member of the Service before the provisions of this sub-rule are invoked."
(emphasis supplied) Sub-rule (2) of the AIS (Leave) Rules empowers the Central Government to deem an officer, who continues on foreign service beyond the period approved, to have resigned. It is not in dispute that the applicant's deputation on foreign service was approved up to 10.12.2010 by the Central Government and that he continued on foreign deputation without approval beyond 10.12.2010. Given this position, we see no infirmity in invoking rule 7(2) (c) of the AIS (Leave) Rules by the respondents in the case of the applicant for having continued in foreign service beyond the period approved. However, there is an important caveat in form of the proviso to rule 7 quoted above requiring the respondents to afford a reasonable opportunity to the applicant before invoking the provision of sub-rule (2). The question that arises is whether the respondents afforded reasonable opportunity to the applicant to explain the reason for his continuation in foreign service beyond the period approved by them. We discuss this essential aspect in the following sub-paragraph.
6.4 As we have noted in sub-paragraph 6.2 above, the applicant requested for extension for his deputation on foreign service from 11.12.2010 for a further period of one year up till 10.12.2011, vide his letter dated 29.11.2010. In this letter, the applicant clearly stated that the extension was requested for his current assignment as the Senior Public Sector Management Specialist in the World Bank office in Sana'a, Republic of Yemen. The respondents sent their order dated 27.02.2013 directing the applicant to join in the parent cadre, the show cause notice dated 09.12.2013 and the notice dated 22.08.2014 for submitting explanation to the applicant's Yemen address. The applicant states that he was re-allocated to Washington in February, 2011 in the Page 9 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors.
wake of violent situation in Yemen and, therefore, he did not receive the notices issued by the respondents. There are three relevant factors to be considered here. First is that there is no material on record indicating that the applicant informed the respondents of change of his address following his relocation to Washington DC. Second is that the applicant, having made a request for extension his foreign service deputation up to 10.12.2011, made no effort to establish communication with the respondents to find out the result of his request during the period up to 10.12.2011 and to request for further extension beyond the period requested already till he came to know of the impugned order dated 19.05.2015 passed by the respondents. Third is that the respondents additionally published the final notice dated 22.08.2014 in the official gazette dated 06.09.2014 in the absence of any response from the applicant. Given this position, we are not persuaded by the applicant's averments that reasonable opportunity was not afforded by the respondents to the applicant to explain his continuance on foreign service deputation beyond the period approved. 6.5 The applicant in his representation dated 09.12.2015, supplemented by representation dated 16.12.2015, requested the respondents to invoke powers under rule 32 of AIS (Leave) Rules, 1955 read with rule 24-A of AIS (Discipline and Appeal) Rules, 1969, rule 3 of IAS (Conditions of Service Residuary Matters) Rules, 1960 and Article 21 of the General Clauses Act, 1897. Rule 32 of AIS (Leave) Rules enables relaxation of any rule if the Government is satisfied that it causes undue hardship to a member of service. It reads as follows:
"32. Relaxation of the provisions of the rules in individual cases-- Where the Government is satisfied that the operation of any of these rules causes or is likely to cause undue hardship to a member of the Service, it may, after recording its reasons for so doing and notwithstanding anything contained in any of these rules, deal with the case of such member in such manner as may appear to it to be just and equitable:
Provided that the case shall not be dealt with in any manner less favourable to such member than that prescribed in these rules."Page 10 of 13
CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors. Rule 24-A of AIS (Discipline and Appeal) Rules, 1969 provides for review if there is new material or evidence which changes the nature of the case. It is quoted below:
"24-A. Review.--The Central Government may at any time, either its own motion or otherwise, review any order passed under these rules, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to its notice: ..."
Rule 3 of IAS (Conditions of Service Residuary Matters) Rules, 1960 is an omnibus provision to relax any rule or regulation under AIS Act if Central Government is satisfied that it causes undue hardship:
"3. Power to relax rules and regulations in certain cases.--Where the Central Government is satisfied that the operation of--
(i) any rules made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or
(ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulations, as the case may be, to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner."
Article 21 of the General Clauses Act, 1897 stipulates:
"21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.--Where, by any Central Act or Regulations a power to issue notifications orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
It is noted that the above provisions enable the respondents to take various actions in certain specific circumstances. The existence of such specific circumstances is to be determined by the Central Government. The Central Government disposed of the applicant's representations, vide order dated 22.08.2016, in the following manner:
"I am directed to refer to State Government's letter no. 66/Do-5-2016- 22(48)/84 dated 27.07.2016 on the subject noted above and to say that Shri Arya was granted cadre clearance to take up foreign assignment at World Bank w.e.f. 11.12.2006 and with the approval of Competent Authority extension in tenure was granted up to 10.12.2010. Since the Page 11 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors.
approved period of foreign assignment was up to 10.12.2010, he was required to report back to the cadre to join duty, but he did not report back. Subsequently on his failure to report back to the State cadre, State Government vide letter dated 27.02.2013 and 09.12.2013 directed him to report back to the cadre as well as submit an explanation in the matter. In view of the fact that no reply from Shri Arya was received, the State Government issued Show Cause Notice dated 25.08.2014 to him wherein it was clearly stated that he had been on unauthorized absence w.e.f. 11.12.2010 after completion of the approved deputation period and as he had not reported back despite directions issued on 27.02.2013 and 09.12.2013, he was given last opportunity to explain by 25.09.2014 stating therein that disciplinary proceedings will be initiated against him in case of no reply. The said Notice was published in Government of UP's Gazette on 06.09.2014.
2. Subsequently, as he neither reported back to the cadre nor submitted any explanation, State Government vide letter dated 24.04.2015, specifically recommended for initiation of deemed resignation proceedings under Rule 7(2)(c) of AIS (Leave) Rules, 1955, which states that "A member of Service shall be deemed to have resigned from the service if he continues on foreign service beyond the period approved by the Central Government". Accordingly, Government of India, in view of the specific recommendations of State Government, had considered the recommendations of State Government and issued Notification of deemed resignation dated 19.05.2015 in respect of Shri Arya.
3. As regards Shri Arya's contention of non receipt of the said letters, it is stated that State Government has clarified that post dispatch, the said letters had not been received back in the Appointment Section of the State Government. In light of the given facts it is clear that he had neither reported back to the cadre after completion of approved period of foreign assignment i.e. after 10.12.2010 nor had he intimated any change in his postal address.
4. As per Rule 7(2)(c) of AIS (Leave) Rules, 1955, a member of Service is liable to be deemed to have resigned from service any time for being unauthorisedly absent after expiry of approved period of foreign deputation, whereas, period of unauthorized absence of Shri Arya is 4 years 5 months and 9 days. Further, as mentioned above, after giving adequate opportunities by the State Government, the process of his deemed resignation was done on the specific proposal received from Government of Uttar Pradesh, in accordance with Rule 7(2) (c) of AIS (Leave) Rules, 1955 after following the due procedure. Hence, the Notification dated 19.05.2015 of Deemed resignation is absolutely in order.
5. This issues with the approval of Competent Authority."
(emphasis supplied) It is observed that the respondents, in the order dated 22.08.2016, have dealt with the core contention of the applicant of not having received the direction dated 27.02.2013 as well as the notices dated 09.12.2013 and 25.08.2014 and have mentioned that adequate opportunity was Page 12 of 13 CAT, Lucknow Bench OA No. 332/00492 of 2016 Arun Arya Vs. U.O.I. & Ors. provided to the applicant and further that the order dated 19.05.2015 deeming the applicant to have resigned from service was issued after following the due process. We have no quibble with the order dated 22.08.2016 as it is a speaking order, in our view. The respondents cannot be forced to invoke various provisions cited by the applicant if they had good reasons to have acted in terms of rule 7(2) (c) of AIS (Leave) Rules, 1955 as enumerated in the order dated 22.08.2016. 6.6 Finally, we turn to the two cases cited by the applicant. We notice that the distinguishing ingredient in the cases cited is that the officers therein were in communication with the respondents. As a result, those officers joined in the parent cadre after being directed to do so and leave was granted (Surya Pratap Singh) or absence regularized on joining (Pradeep Bhatnagar). In the applicant's case, no effort was made by him to maintain communication with the respondents after his request dated 24.11.2010. The net result is that the cases cited by the applicant are of no avail to him, in our opinion. 7.1 In view of the facts and circumstances above, the applicant is not entitled to the reliefs prayed for. The OA is dismissed, accordingly. 7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
Vidya Ben Digitally signed by
Vidya Ben Waghela
Waghela Date: 2025.01.08
15:32:04 +05'30'
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