Andhra HC (Pre-Telangana)
Union Of India And Others vs S.K. Joshi And Others on 28 March, 2001
Equivalent citations: 2001(3)ALD323, 2001(4)ALT247
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
Sinha, CJ
1. This writ petition is directed against the order of the Central Administrative Tribunal, Hyderabad Bench in OA No. 1311 of 1998 dated 22-2-1999 as also the order passed in Review Application No.37 of 1999 dated 24-6-1999.
2. The only question involved in this writ petition is whether the assignment given to the 1st respondent herein to the position of Co-Director of Indian Environment Facility Project (for short 'ICEF'), a joint initiative undertaken by the Government of India and the Government of Canada, can be withdrawn or cancelled by the appellant herein on the ground that there was delay in taking up the assignment by the 1st respondent and whether the 1st respondent had acquired any right to the said assignment even if the delay in taking up the assignment could not be attributed to him?
3. A few facts leading to the controversy may be noticed:- The Government of India and the Government of Canada, with the objective to enhance the capacity of Indian Institutions to promote and deliver sustainable development programmes addressing the environment in accordance with thrust areas identified in the relevant policy documents of Government of India, have jointly undertaken project called "India Canada Environment Facility Project'' and in relation thereto a Memorandum of Understanding was entered into by the two Governments on 20-10-1992.
ICEF is a society registered under Societies Registration Act, 1860 and it is managed by a Managing Body consisting of representatives of Government of India and the Government of Canada and it will be headed by a Canadian Project Director and Indian Project Co-Director.
4. The 1st respondent herein who is an IAS Officer borne on the Andhra Pradesh Cadre was drafted to Central Government and he joined as Under Secretary in the Ministry of Environment and Forests on 11-1-1991 and at the relevant time, he was working as Deputy Secretary in the Ministry of Environment and Forests, The post of Canadian Project Director of ICEF was filled up and pending regular appointment to the post of Indian Project Co-director to be nominated by the Department of Economic Affairs, the 1st respondent was asked to work as the Indian Co-Director of ICEF on an interim basis. He worked in that position for the period from 2-5-1994 till 10-1-1995 when he was reverted to his State cadre on completion of his tenure in the Central Government.
5. It appears that while the 1st respondent was holding the additional charge of Project Co-director, the Ministry of Environment and Forest proposed his name for the said post, vide letter dated 29-12-1994 and the Canadian High Commission by the letter dated 25-5-1995 accepted the nomination of the 1st respondent for the same. The State Government by their letter dated 17-7-1995 had also agreed to the proposed deputation of the 1st respondent for a period of three years and thereafter the matter was processed in the Department of Economic Affairs in consultation with the Ministry of Environment and Forests. The Department of Economic Affairs gave no objection for the said assignment, but the Government of Andhra Pradesh had expressed its inability to spare the services of the 1st respondent at that point of time, as a result whereof, the 1st respondent did not join the post. According to the petitioner, the 1st respondent, has not responded to the letters of the Department of Economic Affairs dated 5-12-1995 and 20-2-1996. To a reminder of the Department of Economic Affairs to relieve the 1st respondent by 29-1-1996, the Government of Andhra Pradesh by its letter dated 12-3-1996 intimated that the officer could be spared only in July, 1996. Thereafter, it appears, action was initiated on 4-4-1996 by calling fresh panel of suitable officers and at that stage the 1st respondent filed WP No.15039 of 1996 before this Court which was dismissed on 3-2-1998 for want of jurisdiction. The 1st respondent thereafter approached the Central Administrative Tribunal by filing OANo.1311 of 1998 for a direction upon the petitioners herein to accord concurrence for extension of joining time to enable him to take up the position of Co-Director. In the meantime, fresh panel of names were called for by the Department of Personnel and Training by inviting applications from various officers and the Civil Services Board in its meeting held on 17-8-1998 recommended the nomination of an officer for the post in question and the same has also been approved by the Ministry of Finance whereafter approval of Appointments Committee of the Cabinet was, required to be obtained.
6. The learned Tribunal by reason of the order impugned herein recorded that the reason for the inability of the 1st respondent to take up the assignment was in public interest inasmuch as he was entrusted with other important assignments by the State Government and that no personal convenience or inconvenience of the 1st respondent was instrumental in the so called delay of taking up the assignment with the ICEF. It was also observed that the Department has not come out with any specific contention whether the initiation of selecting an alternative officer had advanced to such an extent that the proceedings had reached the point of no return or that any irreparable loss was caused or was likely to be caused to the Government. It was further observed that fairness or equality demanded that he be sent on deputation. It was held that the delay in joining the post by the 1st respondent took place because of the exigencies of public duties, which were entrusted to him by the State Government.
Paras 16 and 17 of the order of the Tribunal which are relevant for this case read thus:
"In the above view of the matter, therefore, I find no force in the grounds advanced by the respondents for making any alternative arrangement in place of the applicant and there is no reason why the assignment already made in favour of the applicant should be withdrawn or cancelled. In fact, no order has been passed withdrawing or cancelling the assignment and nothing has come on record to show whether initiation of steps for selecting an alternative officer had advanced to a stage of no return. The OA is, therefore, allowed. The first respondent is directed to allow the applicant to take up the position of Co-Director of ICEF project forthwith".
7. The petitioners herein filed a review application seeking review of the above order, mainly, on the ground that the tenure of the assignment was only for a period of three years on deputation basis and that no officer could claim the assignment as a matter of right and that it was not a channel of promotion provided under the service rules. The Tribunal, however, rejected the application recording that no sufficient cause was shown for reviewing the order.
8. Mr. Ratna Reddy, learned Counsel appearing on behalf of the petitioners submit that the respondent herein had no legal right for being sent on deputation. Learned Counsel pointed out that the 1st respondent did not respond to the letters dated 15-12-1995 and 22-2-1996, in the absence whereof only, a fresh panel of names were called for. The learned Counsel would contend that in that situation there was no occasion to extend the time for appointment. Mr. Ratna Reddy further contends that in all such cases, the deputationists have to report through the Secretariat and he cannot report directly. Our attention was drawn to the direction of the Central Administrative Tribunal at paras 13 and 14 of the order. It was pointed out that the respondent from August, 1996 to March, 1998 has worked as Private Secretary to Minister for Power and having regard to the administrative directions, a person who worked as Private Secretary to Minister cannot be sent on deputation for a period of three years. Our attention had further been drawn to the clarification issued in this regard by the Department of Personnel and Training dated 12-9-1997. Mr. Ratna Reddy would urge that the reasoning of the Tribunal is per se bad in law.
9. Mr. Rannnohan Rao, learned Counsel appearing on behalf of the 1st respondent, on the other hand, submitted that there was no delay on the part of the respondent in joining the post and it was only due to the fact that he was not relieved by the State Government, he could not report for duty immediately. Our attention has been drawn to various documents to show that despite the fact that the Canadian Embassy chose the name of 1st respondent for the said post and itself was extended the joining time, he was not permitted to join as the Joint Secretary did not pass any order. The learned Counsel submits that having regard to the fact that the respondent had not been permitted to join his deputation post, he had to work as Private Secretary to the Minister for Power and the same cannot be treated as a disqualification. Learned Counsel would contend that petitioner No.3 bore personal grudge against the 1st respondent.
According to Mr. Ramamohan Rao, that his client had been selected as he had the qualification therefore being an engineer from IIT Delhi and worked with the Canadian Government for six months. It was submitted that there is no justification for denying the benefit only because he was posted as Collector and thus became Electoral authority and as such was not in a position to join the post till the election process was over having regard to the notification issued by the Election Commission in that regard.
10. Mr. Ratna Recldy in reply would submit that the private correspondences of the 1st respondent with the Canadian Embassy was not known to the Union of India nor he can be permitted to do so. Drawing our attention to the letter dated 13-12-1995 of the Canadian High Commission addressed to the 1st respondent, it was submitted that the 1st respondent could not correspond with a foreign State directly.
11. It is true that a simple matter like the present one is hanging fire since 1997. The main purpose for which such deputation was intended has suffered a lot inasmuch by reason of certain communication gap even an order of extension of his date of joining could not be issued, it is accepted that the non-filling up of the post of Co-Director, Canadian Project, has caused an embarrassment to the Central Government as the Government of Canada was pressing for filling up of the post from time to time, but because of this litigation the same was not possible.
12. It is not in dispute that the 1st respondent herein was selected for being deputed to the post of Co-director, ICEF Project. It appears that the name of the respondent herein who was working with the Ministry of Environment and Forests was proposed by letter dated 29-12-1994 of the Under Secretary, Ministry of Environment and Forests and the Joint Secretary, Ministry of Finance, Department of Economic Affairs by letter dated 18-5-1995 intimated the nomination of Mr. Joshi to the Canadian High Commission. The Canadian High Commission by their letter dated 25-5-1995 addressed to Mr. G. Haldea, Joint Secretary, Department of Economic Affairs, Ministry of Finance, accepted the said proposal which is in the following terms:
"Thank you for your letter of 18th May to Mr. Gingras wherein you nominate Mr. S.K. Joshi for the post of Co-director of the India-Canada, Environment Facility (ICEF). Mr. Gingras is in Canada at the present time and has asked me to respond on his behalf. Canada's Development Co-operation Program is very pleased to accept the nomination of Mr. Joshi as Co-director of ICEF. His experience and credentials are well-suited to this position. It is understood that his nomination is subject to concurrence of Government of Andhra Pradesh and approval of Government of India. We look forward to the processing of this nomination at your earliest convenience.
Yours sincerely, Linda Wishart First Secretary (Development) Development Co-operation Program".
The Chief Secretary of the Government of Andhra Pradesh by letter dated 5-12-1995 was asked to send no objection to the proposal for appointment of the 1st respondent in the said post. Mr. Joshi was forwarded with a contract by the Canadian High Commission on 13-12-1995. It may be noticed herein that the Chief Secretary to Government of Andhra Pradesh by letter dated 3-1-1996 categorically stated that it is not possible to spare the services of Mr. Joshi at that juncture. The Under Secretary to the Government of India by another letter dated 20-2-1996 stated:
"Subject :--Appointment of Shri S.K. Joshi, IAS (1984) as Co-Director of the India Canada Environment Facility Project Society.
Sir,.
I am directed to refer to this Department's letter of even number dated 29th January, 1996 (copy enclosed for ready reference) requesting the likely date by which Shri S.K. Joshi (IAS: 84) will be relieved to join the post of Co-Director of the India Canada Environment Facility (ICEF) Project, New Delhi. We have not yet received a reply in the matter.
In case Shri Joshi does not join ICEF by the 15th March, 1996, this Department will initiate action for selecting a substitute for him and his selection for the post referred to above will be cancelled. The State Government is, therefore, requested to relieve Shri Joshi latest by the 15th March, 1996. A copy of this letter is being endorsed to Shri Joshi for his information.
Yours faithfully, R.R. Jha Under Secretary to the GOI"
13. The Department of Economic Affairs, again by letter dated 29-1-1996 requested the State Government to indicate the likely date when the 1st respondent could be relieved whereafter by letter dated 12-3-1996, the State Government replied that he could be spared by July, 1996.
14. While things stood thus, the Joint Secretary, Ministry of Finance, Department of Economic Affairs addressed a letter to the Joint Secretary (S&V), Department of Personnel and Training on 4-4-1996 stating that the aforementioned post is proposed to be filled up without delay as the same remained vacant since June, 1995. It was also requested to suggest a panel of suitable names for selection to the post.
In the meanwhile, by letter dated 14-5-1996, addressed to the Deputy Secretary, Department of Economic Affairs, Ministry of Finance, the Canadian High Commission requested the Indian Government to extend the period of acceptance for Mr. Joshi's contract by two weeks so as to enable him to take up the position. The reasons thereof were disclosed thereunder. It may be noticed herein that the Chief Secretary to Government of Andhra Pradesh by letter dated,, 3-1-1996 categorically stated that it was not possible to spare the services of Mr. Joshi at that juncture.
15. Mr. Joshi was forwarded with a contract by the Canadian High Commission on 13-12-1995. It appears that without intimating the Department of Economic Affairs, the Canadian High Commission and Mr. Joshi had been corresponding with each other as would appear from the letters dated 7-2-1996, 14-5-1996 and 24-5-1996. From the last letter, it appears that the respondent took up the assignment without intimating the said fact to the State.
Only thereafter a representation was made by the respondent which allegedly was not responded to. It may be noted that at that point of time the matter could have been sorted out as indicated hereinbefore, but the same was not done.
16. The 1st respondent also did not respond to the letters dated 5-12-1995 and 20-2-1996 of the Department of Economic Affairs regarding the relief of the 1st respondent.
The learned Tribunal held that Mr. Joshi's inability to join the post had never been taken into consideration. It was further opined that it was not fair and equitable on the part of the petitioners to deny opportunity to the applicant to proceed on deputation in question. The Tribunal, however, inter alia, held that there is no act of mala fide. The learned Tribunal, however, did not address itself to the question as to whether the respondent had a legal right to be deputed or not.
17. The answer to the said question, in our view, must be rendered in the negative.
The concept of deputation in the law relating to public service is in essence derived from the significance of the word 'deputy' and the appropriate meaning of 'deputy' in this context would be 'substitute' (See The New Shorter Oxford English Dictionary 1993 Edition, Vol. 1 p. 640). Deputation is an assignment of an employee of one department or cadre or even an organisation to another department or cadre or organisation. In State of Punjab v. Inder Singh, , it was observed:
"18. The concept of "deputation" is well understood in service law and has a recognised meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis".
18. No deputation can be made without the consent of the employee. But, it is equally true that no person has a right to be deputed or for that matter even a deputationist has no right to be absorbed in service of the borrowing authority.
19. In the instant case, the period during which the 1st respondent was to join the post was over. He for some reason or the other could not join. No doubt, he may not be said to be at fault. But, evidently, now, nearly five years have elapsed since the offer was made. In a changed situation, the Tribunal, in our opinion, was not correct in passing the impugned order. The learned Tribunal, in our considered opinion, was not right in issuing the aforementioned directions in absence of existence of any legal duty conferred on the petitioners to send the 1 st respondent on deputation and a legal right conferred on the 1st respondent.
20. In view of the fact that the assignment is for a limited period and outside the purview of the department where he is working, we arc of the view that the 1st respondent had acquired no right to such assignment even assuming the delay in taking up the assignment could not be attributed to him. The assignment is neither a promotion nor the same is covered by any statutory rules. Therefore, the power of the Government to cancel or withdraw such assignment on deputation cannot be called in question unless the same found to be mala fide.
21. Furthermore, the 1st respondent, whether by way of necessity or otherwise, had worked as Private Secretary to the Minister for Power from August, 1996 to March, 1998. As noticed hereinbefore, a policy decision had been taken by the Central Government as would be reflected in the letter dated 12-9-1997 of the Department of Personnel and Training not to send any official who had worked as Private Secretaries to the Ministers on foreign assignment. The policy decision reads thus:
"Some time back, taking into consideration a wide spread perception amongst the officers of various organised cadres that the appointments to foreign posts and captive posts of the Government of India were often being made in favour of Private Secretaries to Prime Minister, Ministers, the appointments committee of the cabinet on a recommendation of the Civil Services Board decided that Private Secretaries to Prime Minister, Ministers should not be considered for appointment to foreign assignment controlled by the Government of India for a period of two years after such officers demitted charge of the post.
I am writing to convey the above decision for your information so that while making proposals of recommendations regarding appointment to foreign posts or captive posts of the Government of India you may ensure that officers working as Private Secretaries to Ministers are not considered until they complete atleast two years on some other assignments after demitting the charge of the post of Private Secretary to Minister."
22. We may also notice that the Department of Personnel and Training in DPTs OM No.36/77/94-EO (SM.I) dated 5-1-1996 has taken the following decision:
"An officer will be considered for deputation to the Central Government on the posts of Under Secretary, Deputy Secretary, Director or Joint Secretary only if he has rendered 3 years service, prior to the proposed date of his appointment at the Centre, in the State Government/ Union Territory Administration or in his parent cadre. In the case of All-India Service cadres pertaining exclusively to States in the North-East, namely, Assam-Meghalaya, Manipur-Tripura and Nagaland and J&K, the prescribed interval, also known as cooling off period, will be 2 years. For appointments at the level of Additional Secretary to the Government of India or equivalent, the period of cooling off will be one year. No such restriction would apply for appointment to posts at the level of Secretary to the Government of India or equivalent".
Having regard to the policy decision of the Central Government also, now the 1st respondent cannot claim any right to be sent on deputation.
23. In view of the aforementioned findings, we are of the opinion that the impugned order of the Tribunal cannot be sustained which is set aside accordingly.
The petitioners are, however, hereby directed to send a panel to the Canadian High Commission forthwith wherein also having regard to the fact that three years cooling off period has already expired, the name of the 1st respondent shall also be considered. Such exercise should be completed within a period of four weeks from the date of communication of this order. We hope and trust that the unfilled post of Indian Co-Director will be filled up within a short period of time.
24. The writ petition is allowed subject to the above directions. There shall be no order as to costs.