Central Administrative Tribunal - Delhi
R.K. Rai S/O Sri S.R. Rai vs Union Of India Through on 12 January, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.3132/2014 OA No.3130/2014 Reserved on: 20.11.2014 Pronounced on:12.01.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) OA No.3132/2014 R.K. Rai s/o Sri S.R. Rai, K-133, Sector 19, Gandhinagar 382 019 (Gujarat) Applicant (By Advocate: Sh. I.H. Syed and Sh. Virender Kumar) Versus 1. Union of India through Secretary, Department of Personnel & Training (DoPT) Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi 110 001. 2. State of Gujarat through The Chief Secretary to the Government of Gujarat, Office of the Chief Secretary, 5th Floor Block No.1, Sachivalaya, Gandhinagar-382 011 Gujarat. Respondents (By Advocate: Sh. Tushar Mehta, ASG with Sh. Arun Bhardwaj, Sh. Rajinder Nischal and Ms. Manisha Lav Kumar. OA No.3130/2014 S.C. Verma s/o Sri P.C. Prasad 701, New Samarpan Tower, Gulbai Tekra, Ahmedabad, Gujarat 380 006. Applicant (By Advocate: Sh. I.H. Syed and Sh. Virender Kumar) Versus 1. Union of India through Secretary, Department of Personnel & Training (DoPT) Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi 110 001. 2. State of Gujarat through The Chief Secretary to the Government of Gujarat, Office of the Chief Secretary, 5th Floor Block No.1, Sachivalaya, Gandhinagar-382 011 Gujarat. Respondents (By Advocate: Sh. Tushar Mehta, ASG with Sh. Arun Bhardwaj, Sh. Rajinder Nischal and Ms. Manisha Lav Kumar. O R D E R By Honble Dr. B.K. Sinha, Member (A):
The instant two OAs, which relate to a common subject and involve common question of law, have been filed under Section 19 of the Administrative Act, 1985 and, therefore, they are being disposed of by this common order.
2. The applicant in OA No. 3132/2014 is an officer of Indian Police Service (IPS) of 1992 Batch allocated to Gujarat cadre, presently of the rank of Inspector General of Police (IGP) and empanelled to hold the post of IGP rank and equivalent in the Central Government. The applicant impugns the OM dated 29.08.2014 of the respondent no.1 appointing him as CVO in Uranium Corporation of India Ltd. (UCIL), Jaguguda under the administrative control of Department of Atomic Energy at the level of Director for an initial period of 3 years which is extendable for a further period of two years in same Central Public Sector Enterprise (CPSE) or 3 years on transfer to another CPSE. The order further states that the applicant will have the option to draw his cadre pay plus deputation allowances, if admissible, or pay of the post. This order has been made effective from the date of assumption of charge.
3. The applicant in OA No. 3130/2014, is also an IPS officer of 1986 Batch allocated to Gujarat Cadre, presently posted in the rank of Inspector General of Police (IGP) and empanelled to hold the post of IGP rank in the Central Government. He is aggrieved by the OM dated 29.08.2014 appointing him as CVO in North-Eastern Electric Power Corporation Limited (NEEPCO), Shillong under the administrative control of Ministry of Power with option to draw his pay in the pay scale of Joint Secretary to the Government of India plus deputation allowances, if admissible, for an initial period of 3 years, which is extendable for a further period of two years in same CPSE or 3 years on transfer to another CPSE.
4. The applicants have sought the following Relief(s) in respect of their respective OAs:-
Sl. No. OA No.3132/2014 OA No.3130/2014 A. The Honble Tribunal may be pleased to quash and set aside the impugned order, declaring it to be null and void. The Honble Tribunal may be pleased to quash and set aside the impugned order, declaring it to be null and void. B. The Honble Tribunal may be pleased to direct the Respondent no.1 to appoint the applicant on Central deputation on a post of his substantive and entitled rank of IGP in the Central Government, at a station where the applicants wife could be appointed to a post of her rank and entitlement (Joint Secretary) in the Central Government. The Honble Tribunal may be pleased to direct the Respondent no.1 to fairly consider the applicant for appointment on a vacant CVO post of his entitled level of Joint Secretary at Delhi or Mumbai, his stations of preference in that order, and accordingly appoint him so. C. The Honble Tribunal may be pleased to direct the Respondent no.2 to place the applicants wife on the offer list for Central Deputation; and be pleased to further direct the Respondent no.1 to appoint the applicants wife on a post of her rank and entitlement in the Central Government, at a station where the applicant may have been appointed pursuant to directions issued vide (B) above. The Honble Tribunal may be pleased to set a reasonable time limit for the Respondent no.1 within which it must comply with the directions issued vide (B) above. D. The Honble Tribunal may be pleased to set a reasonable time limit for the Respondent no.1 and 2 within which they must comply with the directions issued vide (B) & (C) above. The Honble Tribunal may be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may require in the interest of justice. E. The Honble Tribunal may be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may require in the interest of justice.
5. The case of the applicant in OA No. 3132/2014, in brief, is that he was initially allocated to Orissa Cadre but subsequent to his marriage to one Ms. Vatsala Vasudeva, an IAS officer of 1995 Batch, who is presently holding the post of Secretary in the Government of Gujarat, was transferred to Gujarat Cadre. In March, 2007, the applicant was promoted to the rank of Deputy Inspector General of Police (DIGP) and posted at CID (Crime), Gandhinagar while his wife was posted at Surat at that point of time. In this capacity, he was entrusted with the supervision/ investigation of a Supreme Court monitored case regarding the death of one Sohrabuddin Sheikh in a purported police encounter and of a connected case relating to killing of one Tulsiram Prajapati for the motive of obstruction of the investigation of Sohrabuddins case, as Tulsiram Prajapati was a material witness in that case. The applicant on 24.04.2007 caused the arrest of three IPS officers, namely, one D.G. Vanzara, Rajkumar Pandian, (both belonging to Gujarat Cadre), and one Dinesh MN, belonging to Rajasthan Cadre, on charges of conspiracy, abduction of Sohrabuddin and his wife Kauserbi, and murdering Sohrabuddin in the guise of a stage-managed police encounter. The applicant submits that following the arrest of above three IPS officers, he had moved the competent court for allowing brain mapping and micro-analysis of the accused officers and also collected their Call Data Records (CDR). However, he was removed from investigation/ supervision of the case on 03.05.2007 and the investigation of the case was transferred to CBI under the order of the Honble Supreme Court. The applicant further submits that the CBI charge-sheeted one O.P. Mathur, applicants immediate supervisory officer as ADGP CID (Crime), for destruction of the CDRs collected by the applicant. The CBI also charge-sheeted P.C. Pande, the then DGP Gujarat State in April, 2007 for being a party to the conspiracy in killing of Tulsiram Prajapati, and Amit Shah, the then Minister of State for Home in both Sohrabuddin and Tulsiram Prajapati cases for being a party to the conspiracy and killing them. The applicant submits that he is a prosecution witness in the CBI case whereas Amit Shah is an accused and now the President of Bhartiya Janta Party. The applicant further submits that his investigative action in April, 2007 became defining events for the displeasure and bias of the State Government thereafter, as manifested in ways categorized in the OA.
6. This OA goes ahead to explain such acts of harassment flowing from the bias of the State Government. These include the separate posting of spouses contrary to the norms and guidelines in this matter. He has cited several instances of the same including his posting as DIGP & Principal, State Reserve Police Training Centre (SRP TC), Chowky Junagadh while his wife was posted as Labour Commissioner at Gandhinagar. The second example of bias which the applicant has cited is that he applied for study leave for joining prestigious Fellow Program in Management (FPM) at Indian Institute of Management, Ahmedabad (IIMA) in June 2009 while his leave was granted in December, 2009 w.e.f. June, 2009 to June, 2012. His study leave was subsequently modified from June, 2010 to June, 2013 on representation. He remained under study leave for three years from 07.06.2010 to 06.06.2013 for pursuing FPM in Business Policy Area at IIMA. On his return, the applicant was made to wait for posting and finally it was materialized in the form of DIG of Police, Armed Units, Rajkot, once again away from his wife, who was posted at Gandhi Nagar. He continued to be posted at Rajkot, even after upgradation of his post to IGP subsequent to his promotion, till 30.08.2014. The third instance of bias is related to the adverse ACRs for the period from 01.04.2007 to 22.08.2007 communicated to him after a delay of more than two years in contravention of the rules and in collusion with the said O.P. Mathur and P.C. Pande, who were eventually chargesheeted by the CBI in September, 2012 in the above mentioned two criminal cases. The applicant submitted a representation dated 21.05.2010 against the adverse remarks which appears to have not been received and subsequent to the said representation, it was admitted vide communication dated 06.12.2010 that the reviewing authority had made typographical error in recording the adverse remarks which were modified and the representation was being treated as infructuous. The applicant claims that this too was contrary to rules as the remarks once recorded cannot be modified. The applicant then filed OA No. 120/2011 before the Ahmedabad Bench of the Tribunal which was resisted by the respondent no.2. The applicant filed a rejoinder highlighting the conspiratorial role of the authority figured in as respondent no.2 i.e. Amit Shah, P.C. Pande and O.P. Mathur. Subsequently, the Government on its own expunged the adverse remarks, vide communication dated 09.09.2011. The applicant further alleges that his promotion had been delayed despite having gained eligibility w.e.f. 01.01.2010 and he was promoted after a delay of four years in December, 2013 despite the directive of the Government of India that DPC should meet once every year.
7. The fourth set of grievance relates to central deputation of the applicant and his wife. He had been offered the post of Professor in Business Policy and Strategy Area by IIM, Udaipur but he was not relieved despite his repeated requests. The name of the applicant was placed in the offer list for Central deputation but was withdrawn on the ground of shortage of officers. He was finally placed in the offer list on 12.06.2014 which appears contradictory to the effect that he was not allowed to join IIM, Udaipur during the same period despite his repeated requests. Likewise, the wife of applicant was not allowed to join UNDP for which she had been shortlisted in the PMO for which she was considered in September/October, 2010. In the fifth place, the applicant alleges maltreatment at the instance of one Tirath Raj against whom he had conducted the enquiry and revealed prima facie evidence relating to allegations of assets disproportionate to known sources of income through illegal and criminal means, moral turpitude, land grabbing etc. The said Tirath Raj was his immediate superior officer, who after coming to know about this report, harassed him in ways more than one. Despite his representation, the applicant was not transferred while the said Tirath Raj kept holding the additional charge of ADGP Armed Units and as such continued to be the applicants immediate supervisory officer, even though he was transferred from that post on 11.06.2014 to State Human Rights Commission.
8. The applicant submits that because of these instances of harassment and otherwise also by personal reasons, the applicant expressed his willingness for Central deputation vide letter dated 06.03.2014 which was forwarded along with other IPS offices to the Central Government vide communication dated 12.06.2014 along with that of the applicant in OA No. 3130/2014. The Ministry of Home Affairs being the Cadre Controlling Authority for IPS officers sent the name of the applicant to the respondent no.1 vide letter dated 24.07.2014.
9. The DOP&T, after having obtained vigilance clearance, submitted the case of the applicants, as it appears from the record, to the Selection Committee comprising Secretary (Personnel) as Chairman, and AS, DOP&T and Additional Secretary (S&V) as Members. The grievance of the applicant in OA No.3132/2014 is that the DOP&T after consideration appointed him as CVO, Uranium Corporation of India Limited, Jaduguda, vide order dated 29.08.2014, which is being impugned in the OA.
10. In OA No. 3130/2014, the facts are slightly different from that of the other OA No.3132/2014. The applicant in this case also alleges mala fide against the respondents, and against respondent no.2 in particular, on the ground that the applicant was one of the three members of the Special Investigation Team (SIT) appointed by Gujarat High Court on 24.09.2010 to investigate the case of death of four persons including one 19 years old girl Ishrat Jahan in a purported police encounter. The SIT submitted its finding on 18.11.2011 on the basis of which the Honble High Court of Gujarat declared the SITs findings that Ishrat Jahan encounter was a fake encounter. On 01.12.2011, the Honble High Court of Gujarat transferred the investigation of Ishrat Jahans case to the CBI with liberty to take assistance of such persons as desired. However, the State Government was reluctant to relieve him and did so only under the orders of the Honble High Court. The applicant assisted CBI from 20.07.2012 to 23.06.2013 on account of which several police officers were arrested and an ADGP rank IPS officer was arrayed as accused and later arrested. The applicant submits that it transpired on the basis of the statement under Sections 161 and 164 of Cr.PC that the then Chief Minister and the then MoS (Home) had prior information of the crime and the whole lot of officers of the State Government including the Advocate General, Ministers of Law and Home, Principal Secretary to the Chief Minister, IGP CID Intelligence etc. were strategizing with the accused police officers for obstructing the investigation and for keeping the applicant away from the investigation. As per the applicant, there was also an attempt to revive other cases of 1997 which had attained finality to implicate the applicant in false cases of encounters.
11. It appears from the pleadings that the Honble High Court on 18.04.2012 directed fresh investigation against the applicant on the complaint of one Hira Lal, which was finally stayed by the Honble Supreme Court vide order dated 18.06.2012 and also stayed the arrest of the applicant on 13.09.2013. The applicant cites as an example of hostility on part of the State Government that he was illegally transferred from the post of Joint Commissioner of Police, Ahmedabad City posting him as Principal, Police Training College, Junagadh on 07.04.2012 against a minimum tenure of two years as provided in the Bombay Police Act. The applicant further cites that he wanted a corrective orthopedic surgery for an earlier hip fracture but the State Government was reluctant and subjected him twice to Medical Board. Finally, he joined duties at his place of posting at Junagadh on 12.03.2014. The applicant further cites the delay in granting him promotion to the rank of ADGP, though he became eligible from 01.01.2011. He also submits that promotion to the batch officers would be granted only after the applicant in OA No. 3132/2014 had been relieved to take up duties in the Central Government.
12. The applicant applied for Central deputation on 23.10.2013 against the post of CVO with preferences for Delhi and Mumbai. The applicant is aggrieved by his appointment as CVO in NEESCO, vide order dated 29.08.2014, which is impugned in this OA.
13. There have been copious pleadings and lengthy arguments on both the sides. However, at the conclusion of the arguments, the parties have made their written submissions containing the crux of the arguments advanced by them during the course of oral submissions. We have, for the sake of brevity and clarity, decided to consider the case mainly on the basis of written submissions so made at the conclusion of the arguments and have not gone into the pleadings and counter pleadings lest they cause confusion and obfuscate the real issues.
14. The following grounds have been adopted by the applicant (R.R. Rai) during the course of final arguments:-
(i) The applicant has alleged malice both in facts and in law. The basic facts on which the applicant claims operation of malice already stand narrated and need no repetition.
(ii) There is malice in law in operation as the applicant had communicated his willingness for Central deputation as IGP as the State Government offered list for appointment on posts of the ranks of DIGP to Additional DIG in Government of India and hence could not have been considered as CVO in CPSE. The procedure laid down for selection and appointment of CVO, inter alia, requires a separate application in prescribed proforma duly filled in by the applicant and the cadre controlling authoritys willingness, and station/location preferences of the officer. The applicant had neither applied for CVO nor expressed willingness for the same. Thus, the procedure prescribed for selection and appointment of CVOs in CPSEs stands violated.
(iii) The applicant has been posted on deputation as CVO in UCIL, Jaduguda at the level of Director, which is a post two ranks below the applicants rank. This violates the basic law of deputation which cannot be made against a lower post.
(iv) The respondents have violated the guidelines of the Government of India for posting of spouses at the same station.
(v) The respondent no.1 has passed the impugned order and the respondent no.2 has executed the said order in post haste. This contributes to arbitrariness and bias on part of the facts pertaining to ground. It is normally customary to afford time to the persons under orders for deputation to tide over their personal problems and depart at a convenient date. This basic norm has been ignored by the aforesaid actions of the respondents.
15. In OA No.3130/2014, the grounds adopted by the applicant are as under:-
(a) The applicant has never given any willingness for being posted as CVO in CPSE. His willingness was only for central deputation for appointment as IGP and the State Government offer list for appointment on posts of the ranks of DGIP to ADIGP in Government of India. That willingness cannot be construed as one for appointment as CVO in a CPSE as per rules;
(b) Station preference i.e. Delhi and Mumbai given by the applicant for selection appointment as CVO was not considered despite the fact that there were clear vacancies at these two stations. Thus, the procedure prescribed by the Government of India for selection and appointment of CVO in CPSEs, which mandate consideration and as far as possible posting an officer at the station of his preference stands violated;
(c) The applicant alleges bias on part of the respondents both on account of facts leading up to the alleged cause of action and the post haste manner in which the respondent no.2 has executed the order.
16. A counter affidavit has been filed on behalf of respondent no.1, while a short reply has been filed on behalf of the respondent no.2. Subsequently, written submissions have been filed on behalf of the respondents in both the cases. For the sake of brevity and clarity, we have relied principally upon the final arguments as have been advanced by the learned counsel for the respondents during the course of their oral submissions which find reproduction in their written submissions.
17. In the case of OA No.3132/2014, the respondents have submitted that it was the applicant, who expressed his willingness/consent for central deputation vide letter dated 06.03.2014, and based upon the same, the respondent no.2 forwarded his name along with other IPS officers to the Central Government vide letter dated 12.06.2014. The Ministry of Home Affairs sent the names of the applicants to the DOP&T vide letter dated 24.07.2014 to assess their suitability for the post of CVO in CPSEs etc. on deputation basis. The DOP&T forwarded the names of the applicants after the vigilance clearance to the Selection Committee comprising Secretary (Personnel) as Chairman; Estt. & AS, DoPT; and Additional Secretary (S&V). The Selection Committee held its meeting on 19.08.2014 for preparing panels for all CPSEs against the available vacant posts. The respondents submit that no allegations have been leveled against the Members of the Selection Committee nor have they been joined as party. The Selection Committee prepared a panel of two names for being considered for appointment as CVO in UCIL and forwarded to the Department of Atomic Energy on 20.08.2014, which selected the applicant out of the panel and communicated its decision to DOP&T on 28.08.2014. The respondents have further submitted that the challenge to the appointment of the applicant is based upon two grounds, namely, the alleged non-observance of administrative guidelines and unsubstantiated allegations of malafide.
18. With regard to the first of the grounds, the respondents have submitted that it was the applicant himself who had expressed his willingness/consent for central deputation vide letter dated 06.03.2014. The law on the question as regards non-observance of the guidelines is well settled in the case of Syndicate Bank versus Ramachandran Pillai & Others [(2011(15) SCC 398] which provides that executive instructions/guidelines do not have the force of statutory rules unless they are issued either under the authority conferred on the Central Government or a State Government or other authority by some statute or the Constitution. It is further submitted by the respondents that instructions/guidelines which are not statutory in character, are not laws and compliance thereof cannot be enforced through courts. Even if there has been any violation or breach of such non-statutory guidelines, it will not confer any right on any member of the public to seek a direction in a court of law for compliance with such guidelines. It has been further argued by the learned counsel for the respondents that very construction of Rule 6 of the Indian Police Service (Cadre) Rules, 1954 [hereinafter referred to as Rules of 1954] is that a cadre officer has the liability of being 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, and in case of any disagreement, the matter is to be decided by the Central Government and it is for the State Government(s) to give effect to the decision of the Central Government.
19. The respondents have relied upon the decision of the Chandigarh Bench of this Tribunal in case of Sanjay Kumar, IAS versus Union of India & Ors. [OA No.949-CH of 2002 decided on 20.03.2008] which unambiguously observed that the consent of cadre officer is not required for central deputation and his services are capable of being placed at the disposal of the Government of India without his consent or will. The respondents have also placed reliance on the following judgments:-
(i) Syndicate Bank versus Ramahandran Pillai & Others (supra);
(ii) State of Madhya Pradesh & Ors. Versus Yogengra Shrivastava [2010(12) SCC 538];
(iii) UOI & Ors. Versus R.S.Saini [1991 (Supp.2)SCC 151];
(iv) Baleshwar Dass & Others versus Stte of UP & Others [1980(4) SCC 226]; and
(v) S. Ramaswamy versus Union of India & Others [1976 (4) SCC 79].
20. With regard to malafide alleged by the applicant, the respondents have stated that the law in this regard is well settled that it has to be based upon specific, concise and accurate allegations backed by facts, figures, details and data and the persons against whom malafide has been alleged have to be impleaded as parties by name making specific allegations. In the instant case, the respondents have alleged that the applicant has neither given any particulars with concise pleadings nor joined any individual/officer by name and only vague assertions have been made by the applicant. The respondents have further stated that the applicant has not impleaded the MHA, which being the cadre controlling authority sent his name based upon his willingness to go on central deputation. The applicant has also not joined even the Department of Atomic Energy which selected him out of the panel of two names sent by the DOP&T. The respondents submit that in absence of non-joinder of these two necessary parties, the allegation of malafide remains vague and cannot be gone into. However, the respondents have proceeded to rebut the principal arguments of malafide one by one.
21. With regard to the allegation of victimization on account of the part played by the applicant in investigation of Sohrabuddin Sheikhs encounter case, the respondents submit that the incident is of the year 2007 and it is inconceivable that so many departments of Union of India would take a malafide decision in the year 2014 against the applicant. It has been further contended by the respondents that the applicant remained in the investigation of the said case only for a while and had to be shifted in view of objections raised by brother of Sohrabuddin, the petitioner in the writ petition pending before the Honble Court. Further, the applicant was given two promotions from SP to DIGP and from DIGP to IGP.
22. Regarding the second allegation of not being sanctioned study leave in 2008, it has been submitted by the respondents that the applicant had obtained admission without having even intimated the State Government though a prior permission was necessary for serving officers before proceeding on study leave. Despite this, request of the applicant was accepted on 30.11.2009 in pursuance to which the applicant remained on study leave from June, 2010 to June, 2013 for a period of three years. As regards allegation of adverse remarks, the respondents have submitted that the respondent no.2 has already expunged the adverse remarks. The applicant has neither pointed out as to which of the authorities has acted in a malafide manner in making adverse remarks nor has he chosen to either name them or implead them in the instant proceedings. Regarding husband and wife not being posted together, the respondents state that at the time of indicating his willingness for central deputation, the applicant was aware that his wife, who is an IAS officer in State of Gujarat, was not due for central deputation and he would have to go for central deputation alone. Regarding apprehension of bias from the new dispensation in the Centre in May, 2014, the respondents state that he could have withdrawn from central deputation which was permissible at any time before the date of posting. The respondents allege that the applicant despite being aware of the afore facts expressed his willingness and took a chance of getting the posting of his own choice and the issues are now being raised on being appointed as CVO in UCIL, which is not convenient to him. The respondents have relied upon the decisions of Honble Supreme Court in cases of Bank of India versus Jagjit Singh Mehta [1992 (1) SCC 306] and Shilpi Bose & Others versus State of Bihar & Others [1991 (Suppl.2) SCC 659].
23. As regards the allegation of applicants posting as CVO, UCIL being on a lower post, the respondents have stated that it is a common practice to post persons on central deputation in ranks lower than the existing ranks in their respective State cadres. This is not an isolated case and many officers coming on central deputation have been posted in substantial numbers below their rank in the State Government. Such officers are given the option either to draw the cadre pay or pay of deputation posts, whichever is opted by them. The respondents have relied upon the following case regarding the scope of judicial inference in matters of posting/deputation transfers:-
(i) Mutha Associates & Ors. Versus State of Maharashtra & Others [2013 (14) SCC 304;
(ii) Ratnagiri Gas & Power P. Ltd. Versus RDS Projects Ltd. & Ors. [2013 (1) SCC 524];
(iii) Chairman & MD. BPL Ltd. Versus S.P. Gururaja & Others [2003(8) SCC 567]; and
(iv) State of A.P. & Others versus Goverdhanlal Pitti [2003 (4) SCC 739].
24. Finally, the respondents have alleged that the conduct of the applicant could be inferred from his own averments. He has enclosed a chart at page 378 of the OA, which indicates that after being posted as DIG, Armed Units, he never attended to his duties and kept on seeking leave on medical grounds for more than a year. Ultimately, when the State Government required his examination by the State Medical Board and he was declared fit, he re-rejoined his duties. In the instant case too, the applicant had requested that he be not asked to join his duties but ultimately joined when so directed by this Tribunal, which is also a mere technical compliance since after joining, the applicant never attended to his duties and remained on leave.
25. In respect of the applicant in OA No. 3130/2014, the general grounds taken by the respondents in their counter affidavit are the same as those in respect of OA No.3132/2014. It is only with reference to the issue of malafide being dealt with where there is departure from the other OA. It is to be recalled that the applicant had submitted in the OA that in 2010-11, he had investigated a case of killing in a purported police encounter of four persons including one 19 year-old girl named Ishrat Jahan as per the directives of the Honble High Court of Gujarat, who had chosen him as a Member of the Special Investigation Team (SIT). The applicant worked as a Member of the SIT till December, 2011 when the investigation had been transferred to the CBI. However, the applicant claims that the Honble High Court had ordered that he would be spared by the State to assist the CBI as and when required and he was relieved to assist the CBI on 13.07.2012. The applicant has contended that the CBI found that there was no encounter but instead a pre-meditated murder in which the highest levels of the Gujarat Administration were involved. In this regard, the respondents have submitted that the applicant was only one of the three members of SIT which had conducted a preliminary enquiry on account of which several officers were charged. The other two members of the SIT, who participated in the preliminary enquiry, have never alleged any vindictiveness or malafide. The respondents have averred that the applicant was never a part of the CBI team which investigated the offence, being a Gujarat cadre officer and not of CBI. He was only allowed to assist the CBI team whenever the latter so required. Besides the applicant, several other officers participated in the actual investigation but none comprising the CBI Team had ever complained of any vindictive approach or malafide.
26. The learned counsel for the respondents strongly urged that the applicant had applied for the post of CVO but he was not happy with the station of posting and that is why he has filed the instant OA which deserves to be dismissed on all scores.
27. We have carefully gone through the pleadings and other documents so adduced by the rival parties. We have also patiently heard the learned counsel for the parties on the basis whereof, we find that the following issues are germane to the facts of these two cases:-
1. Whether the guidelines/executive instructions have been violated while making deputation?
2. If the answer to the issue no.1 is in affirmative, whether violation of guidelines/executive instructions serves to vitiate the deputation?
3. Whether the charges of malafide are proved against the respondents?
4. Whether the action of the respondents is hit by any discrimination?
5. What relief, if any, can be granted to the applicant?
28. Insofar as the first of the issues is concerned, we look at the sequence of events leading to the order impugned in OA No.3132/2014. On 07.06.2013, admittedly the applicant joined the State Government after having completed FPM in Business Policy Area at IIMA. On 21.06.2013, the State Government placed the name of the applicant on the offer list 2013 for central deputation in the rank of IGP. On 07.09.2013 the respondent no.1 withdrew the names of IAS/IPS officers placed on the offer list of 2013 on account of shortage of offices. In the following year, the applicant opted for central deputation vide letter dated 06.03.2014. On 12.06.2014, the respondent no.1 forwarded the names of ten IPS officers, who had shown their willingness, including the applicants for central deputation in the rank of IGP. On 24.07.2014, the MHA forwarded the names of the applicants to the respondent no.1-DOP&T with the endorsement The undersigned is directed to forward herewith the names of Shri Satish Chandra Verma, IPS (GJ:86) and Shri Ranjish Rai (GJ:92) to assess their suitability for the posts of Chief Vigilance Officers in Central Public Sector Enterprises etc. on deputation basis.
2. Both the officers are on offer for central deputation and clear from vigilance angle. Their Executive Record Sheets with ACR dossier of Shri Satish Chandra Verma and scanned ACRs of last five years in respect of Shri Rajnish Rai are enclosed.
3. The decision taken in the matter may please be intimated to this Ministry and the ACR dossier/scanned ACRs be returned when done with.
29. It appears from perusal of the record submitted by the respondents (F.No. 325/3/2014-AVD-III at page C-119) that in the Agenda Note dated 14.08.2014 issued by respondent no.1 for meeting of the Selection Committee on 19.08.2014, it has been recorded -
12. ***The Ministry of Home Affairs forwarded the names of Shri Satish Chandra Verma, IPS( GJ:86) & Shri Rajnish Rai, IPS (GJ:92) for considering their names for the post of CVO in CPSEs etc. alongwith vigilance clearance, Executive Record Sheets & CR dossier only. The applications of officers have not been received in prescribed format through their cadre authority (only an advance copy of application from Shri Satish Chandra Verma, IPS *GJ:86) dated 23rd October, 2013, has been received where he has indicated his posting locations as Delhi & Mumbai). The details, which are available in respect of these two officers are placed at Anneuxre-VIII (page 25). Further, in the Data Sheet prepared for the two applicants, it has been mentioned as under:-
Sl No Name of the officer Educational qualification ACR grading Other Details Earlier consi-
deration/ remarks
1.
Shri Satish Chandra Verma, IPS (GJ:86) JS Level DOB:28/09/1962 Date of Application 24/07/2014(2014-15) CVC clearance 08/08/2014 CHOICE OF POSTING:
Not Available B. Tech.
(Civil Engg.) 2008-09-NRC & 8.5/10 2009-10-8/10 2010-11 5.7/10 2011-12-NIC & 7/10 2012-13-NRC & NIC ***M/o Home Affairs forwarded his name without the bio-data & other particulars filled by the officer in prescribed format. Hence, present working details are not available.
Pay Scale:PB4 Grade Pay: Rs.10000/-
Cadre clearance: Yes Available
2.
Shri Rajnish Rai, IPS (GJ:92) Director Level DOB:29/09/1965 Date of Application:
24/07/2014 (2014-15) CVC Clearance 08/08/2014 CHOICE OF POSTING Not available.
B.Tech (Electronics & Tele-communication) PGDPM (Personnel Management & Industrial Relations) B.Sc.
(Physics, Chemistry & Mathematics) 2004-05-NRC & VG 2005-06 Study Leave & Good 2007-08- Average & VG 2008-09-NRC & 9.5/10 2009-10 -9/10 2010-11 NRC & Study Leave 2011-12 Study leave 2012-13 Study leave ***M/o Home Affairs forwarded his name without the bio-data & other particulars filled by the officer in prescribed format. Hence, present working details are not available.
Pay Scale:PB4 Grade Pay: Rs.10000/-
Cadre clearance: Yes Available Insofar as the rule position is concerned, provision for deputation has been made in the Rules of 1954, which is being extracted hereunder:-
6. Deputation of cadre officers.
(1) A cadre officer may, with the consent of the State Government or 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 organisation, 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 is he 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 carrying a prescribed pay which is less than, or a payscale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation.
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]"
30. It is to be recalled that Rule 6 of the Rules ibid is the overarching governing rule for deputation of IPS officers which have been classified under two broad categories, namely, 6(1) & 6(2). It is under Rule 6(1) that the Government of India have classified deputation into the following categories (i) Central Staffing Scheme posts covering posts under Ministries & Departments, (ii) Non-Central Staffing Scheme posts with six intermediate categories within, and (iii) Inter-cadre deputation. In order to elicit greater clarity and easy appreciation, the position is being tabulated below in a chart, as provided in Annexure -31 (page 364 of the paper book):-
Schematic Presentation of Deputation of Cadre Officers under Rule 6(1) of the Indian Police Service (Cadre) Rules, 1954.
The Government of India have also issued guidelines on deputation of IPS officers as CVO in CPSEs. Under Rule 6(1) of the Rules of 1954 as contained in OM dated 18.01.2001 (Annexure A-3 page 67 to 74 of the paper book) and Annexure A-10 [page 75-84 of the paper book]. The Government of India have also issued consolidated guidelines for central deputation vide OM dated 28.11.2007 for All India Services Officers.
31. At present, we are only concerned with deputation to the post of CVO and, therefore, restrict our scrutiny to these rules. OM dated 18.01.2001 prescribes that the post of CVOs are to be treated as Central Staffing Scheme posts except where specific provisions have been made in respect of CVOs under OM dated 05.09.1996. Proviso 2 (vi) of the guidelines provides that the post of CVO in the CPSEs are treated as Central Staffing Scheme posts as those are filled as per the procedure followed in the Central Staffing Scheme for posts in the Central Government. However, in order to attract officers for manning the posts of CVOs in various CPSEs certain special dispensation which are applicable to non-Central Staffing Scheme posts have been made including that of additional tenure subject to maximum of seven years. The additional benefits also include grant of higher grade pay consequent upon the proforma promotion in the cadre under the next below rules and such incentives for CVOs in CPSEs in the form of special allowance at the rate of 15% of the basic pay, educational allowances and treating the deputation tenure as 50% of the central deputation and reduction in cooling off period from three years to two years in case of such CVOs who are posted at places other than Metropolitan cities. In the communication dated 18.10.2013 of the respondent no.1-DOP&T, it has been provided in para 9 that while sponsoring the names of willing officers, alongside each name, a maximum of three location(s)/station(s) in which the officer may like to be considered for placement may also be indicated. The current pay sale of the officers and the actual pay being drawn at the time of sending the name should also be indicated. Once an officer gives the choice of location/station, then as far as possible that officer would be considered for posting in any CPSEs in that particular location/station. However, the officer may be posted at any place in India. In para 11 of the guidelines, it has been provided as under:-
11. I shall be grateful if you could arrange to forward names of suitable and willing officers for consideration for the posts of CVO in CPSEs etc. for the financial year 2014-15 (drawn up in the prescribed Proforma I-III), keeping in view the above mentioned requirements and suitability criteria, along with updated CR dossiers and vigilance clearance of the sponsored officers, preferably by 31st January, 2013. A list of information has also been indicated in Annexure A-10 (page 78 of the paper book), which includes the following data:-
PERSONAL DATA Applying for Level: Secretary/Director/ Joint Secretary (Please tick) 15 Pay Scale 16 Grade Pay 17 Basic Pay 18 Date of NFSG Grant 19 Whether he/she or his/her batch have been empanelled to hold the post of JS to the Government of India 20 Whether working in the cadre or is on the central deputation 25 Whether spouse is working 26 Service of the spouse 27 Cadre of spouse (if AIS) 28 Whether spouse working under Central deputation 30 Whether debarred from Central Staffing Scheme previously 36 Preference of location if any, for posting on account of personal reasons at a station/ stations:
(Please indicate 3 preferences only. As far as possible, the officer will be considered for the posting in any CPSE in the preferred station. However, the officer may be posted)
32. The case of the applicant is that vide his communication dated 06.03.2014, he expressed his willingness to go on central deputation as IGP and not as CVO. As per the Circular, the following steps for appointment as CVO can be gleaned:-
PROCEDURE FOR SELECTION AND APPOINTMENT OF CVOs IN CPSEs Step-1 Circulation of CVO vacancies by the DoPT to various cadre controlling authorities seeking applications of willing and eligible officers (para 4(i), Annexure A-5, pg.no.53) Step-2 Application by willing and eligible officers in a prescribed proforma to their respective cadre controlling authorities (Para 4(ii), Annexure A5 pg.no.53), (Station preferences are to be given, status of spouse to be informed) Step-3 Screening of these applications by the cadre controlling authorities and names of the eligible and willing officers are forwarded to the DoPT (Para 4(ii), Annexure A5, pg.no.53). (Cadre controlling authority fills pro forma 2 and gives the location of place where the applicant can be posted) Step-4 DoPT examines these applications and prepares a panel of officers from the names received from the cadre controlling authorities (Para 2(vii) and 2(viii), Annexure A5, pg. no.52).
Step-5 DoPT send a panel of officers to the administrative Ministry/Department of the CPSEs concerned for selection of the CVO after the panel is approved by the CVC (Para 2 (vii) and 2(viii) Annexure A5, pg. no.52; Annexure A13, pg. no.132) Step-6 Selection of an officer from the panel for the post of CVO by the administrative Ministry/Department and communication of the same to the DoPT (Para 2(viii) Annexure A5, pg. no.52, Annexure A13, pg. no.132) Step-7 Issuance of order of appointment of that officer to the post of CVO by the DoPT (Para 2(viii), Annexure A5, pg. no.52).
The applicant (SC) Verma) responded to Step-1 and Step 2 and gave station preference as Delhi and Mumbai but respondents thereafter did not follow Step-3 to Step-7 and therefore did not consider him for post of CVOs in CPSEs located in Mumbai & Delhi though the vacancies existed. There was one officer who had opted for Shillong.
The argument of the applicant is that he did not apply in respect to Step-1 and, therefore, Steps 2 to 7 were not followed and stood violated.
33. The respondent no.1 in its counter affidavit has not expressly stated anywhere that the applicant (R.K. Rai) had applied for the post of CVO. But it is not the case in OA No.3130/2014 (S.C.Verma) where the applicant had applied for the post of CVO but only for the stations of his choice i.e. Delhi and Mumbai. Respondent no.1 has not stated specifically anywhere in the counter affidavit that the applicant had applied for the post of CVO rather he has referred to the circular dated 18.10.2013 which, inter alia, provides that the cadre controlling authorities were required to sponsor the names of the officers who had applied for being considered for posting as CVO indicating the choice of locations to be considered for posting. The circular also stated that as far as possible the officer would be considered for posting in any CPSE, etc., in the particular location/station of his choice. However, it was also clearly mentioned in the circular that the officer may be posted at any place in India.
34. It is to be noted here that the willingness of the applicant was for central deputation. Nowhere has he indicated that he was only prepared to go on central deputation as IGP and not as CVO. However, the fact remains that while filling up the form, he had not applied for the post of CVO which as per the OM dated 18.01.2001 is to be filled up as per para 4, which reads as under:-
4(i) The vacant posts of CVOs are generally circulated by the Department of Personnel and Training to various cadre controlling authorities of Group A services and the State Governments towards the end of every calendar year inviting names for consideration of officers in the offer list for the next calendar year.
35. It would be evident from the above that neither the applicant filled up the form circulated by DOP&T nor had he indicated any choice of location/station. Hence, this is corroborated by the records as has already been stated in preceding paragraphs that the same had not been filled up as circulated by the DOP&T vide OM dated 18.01.2001. Thus, we take it that the willingness of the applicant in OA No.3132/2014 was for central deputation i.e. in the rank of IGP in the suitable category in any of the CPSEs and was not for CVO. In OA No.3130/2014, this is not the case where the applicant had filled up the form for CVO, while indicating his choices qua place of posting i.e. Delhi or Mumbai. As already noted that as per the guidelines, the applicant could have been accommodated as far as possible at any of the places of his choice, yet he could be posted anywhere in India. The fact that no application for deputation as CVO has been preferred by the applicant in OA No. 3132 of 2014 in contra distinction to the fact that the applicant in OA No. 3130/2014 did apply for deputation as CVO, though with choice of place, distinguishes the case of the former from that of the latter. Therefore, this issue is accordingly answered in favour of the applicant in OA No.3132/2014 but against the applicant in OA No.3130/2014.
36. Insofar as the second of the issues is concerned, we have seen that there has been an infringement of the OMs and executive instructions in case of applicant in OA No.3132/2014 but not in the case of applicant in OA No.3130/2014. However, the question remains as to whether it serves to vitiate the posting order of the applicant in OA No.3132/2014. In this regard, we have already noted the arguments from both sides. However, to re-capitulate, while the applicant states that Rule 6(1) of the Rules of 1954 is the umbrella of provisions under which various instructions of the Government have been issued, have the same force as a statute, the respondents have relied upon the case of Sanjay Kumar, IAS versus Union of India & Ors. (supra). In that case, the applicant was a member of IAS 1988 batch of Punjab cadre, who was nominated for appointment to central deputation pursuant to the guidelines issued by the DOP&T-respondent no.3 in that case. Having learnt that his name had been forwarded for central deputation, the applicant made an application to the Chief Secretary for withdrawal of his name on account of personal difficulties. The request of the applicant did not find favour with the State Authorities and his name was approved for central deputation as Deputy Secretary in the Ministry of Home Affairs. The applicant did not comply with the said order, and, therefore, he was debarred for central deputation for five years, which was challenged in the Chandigarh Bench of this Tribunal. The Tribunal, relied upon its earlier order passed in V.K. Juneja, IAS versus Union of India & Another [OA No.955-CH of 2002 decided on 01.11.2002], wherein it was held as under:-
6. We have given our thoughtful consideration to the various issues raised in this O.A. At the outset, it may be pointed out that the controversy with regard to the willingness or otherwise of an officer to go on central deputation has been set at rest by a Division Bench of this Tribunal by passing an order dated 01.11.2002 in O.A. No.955-CH of 2002 (V.K. Janjua, IAS v. Union of India and Anr.). In para 11 of that judgment, the legal position has been summarized as below:-
11. Taking into consideration the statutory provisions governing service conditions of a member of the IAS, particularly, the provisions made in Rule 6 of the Cadre Rules, we have no hesitation in stating the law that consent of the cadre officer not required for central deputation. His services are capable of being placed at the disposal of the Govt. of India without his consent or against his will. The element of consent of the cadre officer or posting on a post under the Central Government is completely, irrelevant. Not only this, if a cadre officer does not join the central deputation, he has to face the consequencessuch as debarment for a specified period for posting on deputation disentitlement for foreign assignment. On merit the O.A. fails as the intervention of the Tribunal in the matter like the present one is not called for. It is the sole discretion of the State Government/Central Government to decide where and on what post the applicant has to serve. In view of the above legal position, we straightaway come to the controversy with regard to the debarment of the applicant for a period of 5 years for the alleged non-compliance of the order dated 5.9.2001. In this connection, a reference may be made to the provisions made in para 19.3 of the Central Staffing Scheme which lays down the eventualities in which an officer is liable to be debarred. However, the same Bench, taking cognizance of the fact that the rules of natural justice had been infringed by not providing an opportunity to the applicant to show cause, struck down the order of debarment.
37. The applicant, on the other hand, submitted that the case of Sanjay Kumar, IAS versus Union of India & Ors. (supra) is not applicable being related to deputation of CSS post which does not provide for consent of officer, and instead relied upon the case of Union of India versus K.P.Joseph and Others [1973 (1) SCC 194] to state that the Government cannot amend or supersede the statutory rules by administrative instructions, yet if the rules framed are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service. The applicant has further relied upon the case of State of U.P. versus Chandra Mohan Nigam & Others [1978(1)SCR 421] in which while examining the validity of Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, which empowered the Central Government to compulsorily retire a member of the All India Service, the Apex Court held that where there are gaps in the instructions, the same could be filled up by means of circulars and thus would be binding on the Government.
38. On the other hand, the respondents have relied upon the cases of Syndicate Bank versus Ramachandran Pillai & Others (supra), State of Madhya Pradesh & Ors. Versus Yogengra Shrivastava (supra), UOI & Ors. Versus R.S.Saini (supra), Baleshwar Dass & Others versus Stte of UP & Others (supra) and S. Ramaswamy versus Union of India & Others (supra).
39. In Syndicate Bank versus Ramachandran Pillai & Others (supra), the Honble Supreme Court has held in para 6 as under:-
6. If any executive instructions are to have the force of statutory rules, it must be shown that they were issued either under the authority conferred on the Central Government or a State Government or other authority by some Statute or the Constitution. Guidelines or executive instructions which are not statutory in character, are not 'laws', and compliance thereof can not be enforced through courts. Even if there has been any violation or breach of such non-statutory guidelines, it will not confer any right on any member of the public, to seek a direction in a court of law, for compliance with such guidelines. An order validly made in accordance with a statute (as in this case, the Public Premises Act), cannot be interfered with, even if there has been any transgression of any guidelines, except where it is arbitrary or malafide or in violation of any statutory provision. These are well settled principles (See: Union of India v. S.L. Abbas - 1993 (4) SCC 357, Chief Commercial Manager, South Central Railway, Secundrabad v. G. Ratnam - 2007 (8) SCC 212, and State of U.P. v. Gobardhan Lai - 2004 (11) SCC 402). In State of Madhya Pradesh & Ors. Versus Yogengra Shrivastava (supra), the Honble Supreme Court has held as under:-
12. The Rules made under Article 309 of the Constitution clearly provided that the concerned employees (medical officers) were entitled to NPA @ 25% of pay, in addition to the pay in the pay scale. In fact, it formed part of the pay scale. Consequently, whatever was the basic pay, 25% thereof had to be paid as NPA. Whenever the benefit of increments in the pay- scale, or revision in pay scale were extended, NPA also got correspondingly increased so that NPA always remained as one fourth of the basic pay. This is the interpretation that has been put forth by the Tribunal and upheld by the High Court and we find no reason to interfere with the same.
13. The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted. When there is conflict between the Statutory Rules and executive orders, the statutory Rules will prevail (See: K. Dayananda Lal vs. State of Kerala - 1996 (9) SCC 728, T. N. Housing Board vs. N. Balasubramaniun - 2004 (6) SCC 85, State of Karnataka vs. K.G.S.D. Canteen Employees Welfare Association - 2006 (1) SCC 567 and Punjab National Bank vs. Astamija Dash - 2008 (14) SCC 370). Executive orders cannot be made or given effect in violation of what is mandated by the Rules. If appointment letters provides for payment of NPA which is not in consonance with Rules, they can be corrected or set right by Tribunals/courts.
40. In UOI & Ors. Versus R.S.Saini (supra), the Honble Supreme Court held that there was nothing mandatory about the terms of memorandum providing that departmental proceedings be completed within a stipulated time. It could not be treated as a condition non-compliance of which would invalidate the orders of the disciplinary authority.
41. In the case of Baleshwar Dass & Others versus State of UP & Others (supra), it has been held that an office memorandum cannot override the valid rules and so must be treated as filling the gaps and not flouting the provisions of rules. It has been further held that once the underlying basic idea of the rules is clear, the language cannot be interpreted otherwise.
42. In S. Ramaswamy versus Union of India & Others (supra), the Honble Supreme Court, inter alia, recorded that the DPC or other selecting authority should first decide the field of choice, i.e. the number of eligible officers awaiting promotion who should be considered for inclusion in the select list and that the field of choice, wherever possible, should extend to five or six times the number of vacancies expected within a year. In the said case, two vacancies were to be filled in the post of Industrial Adviser but instead of including 10 or 12 persons in the field of choice for promotion, the committee decided to prepare a panel of six officers within the zone of consideration, the same could not be treated as arbitrary or discriminatory as it was provided in the rules.
43. Now, we can consider the issue in perspective of Rule 6(1) of the Rules of 1954. Admittedly, Rule 6(1) is the basic rule and its reasoning is quite clear even on a plain reading. It provides that a cadre officer with the concurrence of the State Government and the Central Government can be deputed for service to either 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. The proviso further provides that in case of any disagreement, the matter is to be decided by the Central Government and the State Government(s) shall give effect to the decision of the Central Government. This provision nowhere mentions that only the officers who have opted for central deputation against a particular post and under a particular Scheme could be sent on central deputation and otherwise not. To interpret so would be to put fetters on the feet of the Central Government and any instructions issued to the contrary would be against the provisions of this Rule. We have already seen in case of Baleshwar Dass & Others versus State of UP & Others (supra) that if a statue conveys the meaning in plain and simple language that may not be interpreted to the contrary. We have also seen in case of Sanjay Kumar, IAS versus Union of India & Ors. (supra) wherein the Chandigarh Bench of this Tribunal relying upon it earlier decision in V.K. Juneja, IAS versus Union of India & Another (supra) has incorporated the scope of Rule 6(1) of the Rules of 1954 unequivocally that officer belonging to All India Service can be sent for central deputation and his consent is not required. This has stated the general principles. The argument of the applicant that this is only in respect of central deputation and not otherwise, to our mind, is contrary to the provisions of Rule 6(1) of the Rules ibid which envisages a central deputation under three conditions i.e. (i) to the Central Government or to another State Government; (ii) to a company, association or body of individuals wholly or substantially controlled by the Central Government or by another State Government; and (iii) irrespective of the fact that whether such bodies are incorporated or not. Rule 6(1) does not speak of any other condition nor does it provide for any limitations to the same. The Scheme is also very clear under the provision which says that where there is a dispute, the decision of the Central Government shall be final and the State Government(s) are bound to implement the same. We are quite clear in our view that no such fetters have been placed upon the provisions of Rule 6(1) and, therefore, any provision to the contrary would not be valid.
44. Now the question would arise that whether the OMs which we have considered are contrary to the provisions of Rule 6(1) of the Rules of 1954 and have overriding effect on the same. We have clearly seen in the orders cited by the applicant which provides that where either there is a gap or the main statute is silent, the government instructions shall be binding only to that effect but in no circumstances in contradistinction or derogation of main provision of the rules. OMs merely provide the procedure for submission of applications and what data is to be enclosed therewith. We have also seen the provisions in regard to posting of CVOs which provides that the officers may be posted to the places of their choice but to the extent practicably possible. However, they can be posted anywhere in the country. We have further seen that the applicant in OA No.3132/2014 had neither applied for the post of CVO nor filled up the form as indicated. However, notwithstanding this fact, in view of the judgments and rulings discussed above, it is clear that despite not having applied, the Government is within its right to place him on central deputation to a suitable post. In case of Sanjay Kumar, IAS Vs. Union of India & Others (supra), the Tribunal has gone to the extent of holding that the deputation can be made even without any exception being provided.
45. This also stands to reason. It is a State which is the creator of all these statutes and provisions for the sake of smooth and efficient working. However, the question remains that the residuary powers still reside in the State. These powers, we have seen in context of the provision of Rule 6(1) of the Rules of 1954, are specific and unfettered. The question now arises as to whether the Government is so weak that it will render itself ineffective and surrender its powers to make deputation against its own statute. Cases are there where such deputations have been made at the time of insurgency of the State of J&K and other places where officers have been brought on deputation to the Central Government or to other places without having obtained their consent/willingness. In OA No.3130/2014, the infringement is very minor and is sanctioned even by the instructions which leave no space for the applicant to fall back upon. Hence, we hold in respect of issue under consideration that the violation, as mentioned in respect of issue no.1, do not serve to put fetters or vitiate the impugned orders issued under Rule 6(1) and these orders remain unfettered and unencumbered by the guidelines issued from time to time. We further hold that we have not to view such guidelines in conflict with the main provision of Rule 6(1) of the Rules ibid.
46. Coming to the issue of mala fide, we have already noted the arguments of the parties. The applicants have cited a rather longish list of instances on which they would like the Tribunal to infer mala fide. We note that there are serious allegations of mala fide not only against the State Administration but also against one Tirath Raj an IPS Officer, one Amit Shah, President of BJP and by some insinuation against the Prime Minister himself. The applicant would have the Tribunal to believe that the Government of India acquired the malice with the change of Government in May, 2014 when the present Government came to power.
47. The applicant in OA No. 3132/2014 has submitted instances of bias and malice in law at work in a tabular form (page 40 of written submissions). It starts with the investigation of a case relating the death of Sohrabuddin Sheikh and another connected case regarding killing of one Tulsiram Prajapati. The respondents have submitted in their counter affidavit that the applicant was removed from investigation of the case on account of objections raised by the petitioners therein and that the applicant had investigated the case for a few weeks and had a very insignificant rule in the same. The applicant in a rejoinder submits that it was he who was instrumental in making arrests of three of the police officers whereas the State Government brought in one Geetha Johri to derail the investigation which fact was noticed by the Honble Supreme Court while transferring the investigation to the CBI, which filed the Chargesheet against Amit Shah, the then MoS (Home), P.C. Pande, the then DGP, Gujarat State, O.P. Mathur, the then ADGP, CID (Crime), Smt. Geetha Johri, the then IGP, CID (Crime) in Tulsiram Prajapati murder case. Here, we deem it proper to state that the case is pending adjudication before another court of law which is seized with the facts. None of the persons, against whom malice has been alleged including one Amit Shah and others, has been made party to the instant cases. In this regard, the learned counsel for the applicant argued that it is not necessary in order to prove the malafide that every individual should be impleaded as a party. The applicant relied upon the decision in Rubabbuddin Sheikh versus State of Gujarat and Others [2010 (2) SCC 200] wherein the Honble Supreme Court has taken the view in paras 81 & 82 that since there was an involvement of State police offices in the crime, the CBI was directed to investigate on all aspect of the case relating to killing of Sohrabuddin and of alleged possibility of larger conspiracy. However, we take note of the fact that the case has not yet been finalized, therefore, it would be improper for us to give any finding in relation to the same particularly in light of the fact that none of the persons against whom these allegations have been made are parties to this proceeding.
48. The learned counsel for the applicant has also vehemently argued that it is not necessary that all the persons against whom allegation of malice is leveled should be impleaded as in case of malice in law, an inference could be drawn from the sequence of events. The applicant has relied upon the decision in State of Gujarat and Another versus Justice R.A. Mehta (Retired) and Others [2013 (3) SCC 1] wherein the Honble Supreme Court held as under:-
58. Bias can be defined as the total absence of any pre-conceived notions in the mind of the Authority/Judge, and in the absence of such a situation, it is impossible to expect a fair deal/trial and no one would therefore, see any point in holding/participating in one, as it would serve no purpose. The Judge/Authority must be able to think dispassionately, and submerge any private feelings with respect to each aspect of the case The apprehension of bias must be reasonable, i.e., which a reasonable person would be likely to entertain. Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim - nemo debet esse judex in causa propria sua. It applies only when the interest attributed to an individual is such, so as to tempt him to make a decision in favour of, or to further, his own cause. There may not be a case of actual bias, or an apprehension to the effect that the matter most certainly will not be decided or dealt with impartially, but where the circumstances are such, so as to create a reasonable apprehension in the minds of others, that there is a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias.
49. The learned counsel for the applicant also argued that reasonable chain of events is sufficient to prove that bias actually exists or there is likelihood of its existence in order to attract the doctrine of bias. The implication of this would be that in other words what has been stated by the applicant in OA is sufficient to complete the chain of events leading to bias. On the other hand, the respondents have also relied decisions in cases of Mutha Associates & Ors. Versus State of Maharashtra & Others (supra) Ratnagiri Gas & Power P. Ltd. Versus RDS Projects Ltd. & Ors. (supra), Chairman & MD. BPL Ltd. Versus S.P. Gururaja & Others (Supra), State of A.P. & Others versus Goverdhanlal Pitti (supra), to contend that the allegations of malafide must be proved and that mere allegations cannot take the place of proof.
50. In light of these conflicting claims, it becomes necessary for us to examine the legal position pertaining to the law of malafide and how it operates. In the case of Ravi Yashwant Bhoir versus District Collector, Raigad & Others [2012(4) SCC 407], the Honble Supreme Court defined malafide as under:
47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745). There could be no dispute over what has been stated in above decision of the Honble Supreme Court. However, it also remains a fact that malafide is easier to allege than to prove and the burden of proof lies on the one who alleges it [E.P. Royappa versus State of T.N. & Others [1974(4) SCC 3].
51. In State of Punjab and Another versus Gurdial Singh [1980 (2) (SCC) 471], the Honble Supreme Court held as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
52. The Honble Supreme Court in a more recent judgment in Rajeev Kumar Aggarwal versus State of UP Manu SC 0869/14 held that unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions relating to transfer, courts/tribunals cannot interfere in such matters as if they were appellate authority substituting their own decisions for that of the Management.
53. It is agreed that this case involves deputation which stands on a different footing from transfer but there are similarities. Similar views have been expressed by the Honble Supreme Court in Institute of Law versus Neeraj Sharma Manu SC0841/2014, National Institute of Technology versus U. Dinakar Manu SC 0538/14 and Union of India & Others versus S.P. Sharma, [2014 (6) SCC 1].
54. In Mutha Associates & Ors. Versus State of Maharashtra & Others (supra), the Honble Supreme Court held as under:-
50. It is trite that every action taken by a public authority even found untenable cannot be dubbed as malafide simply because it has fallen short of the legal standards and requirements for an action may continue to be bonafide and in good faith no matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice This view has been supported by the decision in Ratnagiri Gas & Power P. Ltd. Versus RDS Projects Ltd. & Ors. (supra) relying upon its earlier decision as under:-
26.1. In State of Bihar v. P.P. Sharma 1992 Supp. (1) SCC 222, this Court summed up the law on the subject in the following words:
50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.
55. In Chairman & MD. BPL Ltd. Versus S.P. Gururaja & Others (Supra), similar views have been expressed in paras 34 & 35, which are reproduced as under:-
34. Undue haste also is a matter which by itself would not have been a ground for exercise of power of judicial review unless it is held to be mala fide. What is necessary in such matters is not the time taken for allotment but the manner in which the action had been taken. The Court, it is trite, is not concerned with the merit of the decision but the decision making process. In absence of any finding that any legal malice was committed, the impugned allotment of land could not have been interfered with. What was only necessary to be seen was as to whether there had been a fair play in action.
35. The question as to whether any undue haste has been shown in taking an administrative decision is essentially a question of fact In State of A.P. & Others versus Goverdhanlal Pitti (supra), similar views find echo in paras 14 & 22, which are being extracted herein below:-
14. The legal malice, therefore, on the part of the State as attributed to it should be understood to mean that the action of the State is not taken bona fide for the purpose of the Land Acquisition Act and it has been taken only to frustrate the favourable decisions obtained by the owner of the property against the State in the eviction and writ proceedings.
22. See also the decision in the case of First Land Acquisition Collector and others v. Nirodhi Prakash Gangoli and another (2002 (4) SCC 160). The relevant part of argument at page 166 para 6 reads thus :
"6. It is indeed difficult for us to uphold the conclusion of the Division Bench that acquisition is mala fide on the mere fact that physical possession had not been delivered pursuant to the earlier directions of a learned single Judge of the Calcutta High Court dated 25-8-1994. When the Court is called upon to examine the question as to whether the acquisition is mala fide or not, what is necessary to be inquired into and found out is, whether the purpose for which the acquisition is going to be made, is a real purpose or a camouflage. By no stretch of imagination, exercise of power for acquisition can be held to be mala fide, so long as the purpose of acquisition continues and as has already been stated, there existed emergency to acquire the premises in question. The premises which were under occupation of the students of National Medical College, Calcutta, were obviously badly needed for the College and the appropriate authority having failed in their attempt earlier twice, the orders having been quashed by the High Court, had taken the third attempt of issuing notification under Section 4(1) and 17(4) of the Act. such acquisition cannot be held to be mala fide and therefore, the conclusion of the Division Bench in the impugned Judgment that the acquisition is mala fide, must be set aside and we accordingly set aside the same".
56. In view of these decisions, we can arrive at a synthesized view that malafide is easy to allege than to prove; it must be proved by facts; the burden of proving malafide lies upon one who alleges it; this burden must be discharged to the hilt; the law of natural justice demands that the persons against whom the allegation of malafide is leveled should be given an opportunity to appear and to disprove the facts.
57. In view of the aforesaid discussion, it is our considered opinion that malafide is not a matter of narration of sequence of event but it also requires to be proved by facts. We take up examination of other facts in light of these decisions. We take note of the argument of the respondents that the applicant in OA No.3132/2014 was not the only person who had conducted investigation of the cases relating to killing of Sohrabuddin Sheikh and Tulsiram Prajapati. It is an agreed position, as it would appear from the judgment in Sohrabuddins case, that murder appears to have been committed and applicant was instrumental in arresting some of the police officers who had been charged with having committed the murder. However, as stated earlier, we would like to stay clear of the controversy as the matter is pending consideration in another court, but we take into account that after this incident, the applicant has been promoted twice to the rank of DIG and subsequently to that of IGP by the same State Government against whom he has alleged malafide. Normally, when malafide enters the arena, promotion would be the first casualty. The fact that the promotion might have been delayed as has been alleged by the applicant in OA No.3130/2014, cannot be an evidence of malafide, as such a delay is not exclusively with respect of the applicant, but is a common factor to the entire batch as such. Procedural delays are not uncommon in the administration. To allege malafide on this account does not appear to be a very fair proposition.
58. As regards the leave being not granted for study, we go by the simple argument that leave is not a matter of right. The applicants mere entitlement to leave does not imply that it has to be granted. To the contrary, the applicant had not applied for the study course of FPM from IIMA through the State Government and, therefore, the argument of the respondents is that it could not be granted immediately but was subsequently granted, which has not been denied by the applicant. Moreover, grant of leave is a matter of discretion of the employer and it cannot be faulted for not allowing the applicant to join the IIMA as a faculty.
59. We also take note of the fact that the applicant in OA No. 3132/2014 has spent more than one year on leave. It is agreed that he had had difference with his immediate superior one Tirath Raj. However, since Tirath Raj is not a party to this proceeding to defend himself, we cannot, for the reasons stated earlier, attribute malafide to the State Government or to Tirath Raj. In Government service, the decision where to post a person would rest with the employer and the employee cannot choose his place of posting as has been enumerated by the Honble Suprme Court in a number of decisions Rajendra Singh & Ors. Versus State of Uttar Pradesh & Ors. [2009 (15) SCC 178], Mohd. Masood Ahmed versus State of U.P. & Ors. [2007(8)SCC 150], Shilpi Bose & Ors. State of Bihar & Ors. [1991 (Suppl.2) SCC 659]; Union of India & Others versus S.L. Abbas [1993 (4) SCC 357], to mention a few. In the case of S.L. Abbas (supra) the Apex Court has held, Who should be transferred where, is a matter for the appropriate authority to decide.
60. The same would be the position in case of posting of spouses in the same place. It is an admitted fact that the applicant has himself submitted a chart which shows that a substantial period has been spent by him on leave. Thus, it appears that between the period 2007 and 2014, the applicant has spent more than four years on leave [either on study leave or leave of any kind]. Since all these leaves were sanctioned by the State Government, we do not find that it can be cited as evidence of malafide against the Government.
61. Likewise, we do not find malafide in ACRs recorded for reasons that the Government had withdrawn such ACRs. ACRs are written to assess the performance of officers and even if these are recorded in such a fashion that one feels that these do not impart justice to his attributes, he has a right to represent and approach the court of law for redressal of grievances. If every case of writing adverse ACRs were to be treated as a case of malafide, then, we are afraid, that it is not the correct interpretation of the term malafide.
62. Finally, we would also like to say that since we have looked into the file relating to selection and posting of the applicants as CVOs, we find that the decision taken by the Selection Committee does not reflect any kind of bias. The names were forwarded by the MHA and the Selection Committee in its meeting held on 19.08.2014 considered the names and made the selection. We agree that the decision of the Selection Committee is at a substantially higher level and there is nothing in its decision that would reflect bias.
63. As far as husband and wife to be posted together is concerned, it is a desirable situation but not a necessary pre-condition for any posting. The Government of India is not lacking in such instances where the appointments have been made keeping the husband and wife apart. This may at best reflect a complaint of posting but does not necessarily reflect any kind of malafide.
64. Insofar as the applicant in OA No. 3130/2014 is concerned, we make a particular reference that the applicant in this case was one of the officers involved in the investigation. We are not aware as to what role he had had in the investigation as there are no pleadings to that effect nor are the full facts before us. However, we do pause to consider that the applicant was one of the three officers, who were involved in that investigation and subsequently investigation was taken over by the CBI. We also understand that these officers were parties to the decisions and actions of the SIT. We take note of the fact that none of officers have approached this Tribunal with complaint of malafide. Therefore, we find that the charges of malafide in OA No.3130/2014 are not justified.
65. For parity of reasons given in OA No.3132/2014, this issue is answered accordingly.
66. Coming to the issue no.4, we find that it has been partially dealt with while dealing with other issues. The applicants in both the OAs have alleged discrimination and the impugned orders being violative of Articles 14 & 16 of the Constitution. They have also cited several decisions of the Honble Supreme Court, namely, Union of India versus K.P.Joseph and Others (supra), Food Corporation of India versus M/s. Kamdhenu Cattle Feed Industries [1993 (1) SCC 71]; Dr. S.P. Kapoor versus State of Himachal Pradesh and Others [1981 (4) SCC 716], State of Orissa and Another versus Mamata Mohanty [2011 (3) SCC 436], P.K. Udgata & Others versus Union of India & Others [OA Nos. 1564/2011, 1565/2011 NS 2116/2011 decided by this Tribunal by a common order dated 01.03.2012], to mention a few.
67. We find that the decision in State of Orissa and Another versus Mamata Mohanty (supra) relates to appointment and does not act as a binding legal precedent in the present OAs. Likewise, P.K. Udgata & Others versus Union of India & Others (supra) also relates to promotion and, therefore, differs from the facts of the instant OAs. Same is the decision in case of Dr. S.P. Kapoor versus State of Himachal Pradesh and Others (supra).
68. Per contra, the learned counsel for the respondents has also relied upon the various judgments of the Honble Supreme Court to contend that scope of interference with the orders of transfer is very limited. The judgments so cited by the respondents have already been referred to above.
69. However, we find from the decision in Rajendra Singh & Ors. Versus State of Uttar Pradesh & Ors. (supra) that a government servant has no vested right to remain posted at a place of his choice, nor can he insist that he must be posted at one place or the other and he is liable to be transferred in the administrative exigencies from one place to the other. It is further held that the transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary.
70. It is an agreed position that the court has limited role in matters of transfer and the question of interference can only arise where malafide is to be proved or the transfer is proved to be made against the statute. We have considered both these situations and find that under Rule 6(1) of the Rules of 1954, the Government has clear mandate to place any officer anywhere in the country and no malafide has been found sticking against the respondents. However, we take note of the fact that a total number of ten officers had opted for central deputation. The applicant in OA No.3132/2014 admittedly had not opted for posting as CVO but rather opted for central deputation in any of the CPSEs.
71. We further find that while eight of the officers have been accommodated as per their choice, it is the applicant in OA No.3132/2014 who has been posted as CVO. We have already noted that since the applicants have not impleaded the MHA being the necessary party, we do not know what had transpired as regards the applicant in OA No.3132/2014 that despite his being selected for central deputation, he was posted as CVO. What public interest was involved in that? This itself, we find, is a departure from the general pattern. Had compelling public interest/ reasons been stated before us, we would have been inclined not to make an inference. However, even though there is no right accruing to the applicant for a posting under Rule 6(1) of the Rules ibid and in view of the aforesaid decisions, we still take note of the fact that the applicant in OA No. 3132/2014 had been treated differently though it may not necessarily arise out of malafide.
72. Insofar as the applicant in OA No.3130/2014 is concerned, the only grievance which he could have is that despite having opted for CVO, he was not given a posting of his choice. Though we find that this is covered by the OM dated 18.01.2001 officer appointed be posted at a place of his choice, yet we have not found any hint of malafide in the selection process. Therefore, the case of applicant in OA No.3130/2014 stands on a different footing and, therefore, he has not been treated differently. We also find from the official record that there are several others who also could not be adjusted at their desired place of posting. Therefore, we cannot say that the applicant has been treated differently in matter of posting. This issue is decided accordingly.
73. Now, we take up last of the issues as to what relief can be granted to the applicants. As a broad principle, we find that though there has been a departure in following the guidelines and executive instructions as the applicant in OA No.3132/2014 had opted for central deputation in any of the CPSEs, there is no violation of any statutory rules. In fact, Rule 6(1) of the Rules of 1954 gives extensive power to the Government to post any officer from State Government to Central Government or from one State to another State Government and the decision of the Central Government in this matter will be final and the State Governments are bound to implement the same. We have also found the charges of malafide are not sticking for want of non-joinder of necessary parties as also for want of adequate proof. We have also noted that the allegations of malafide are heavy with political undertone but we do not venture beyond this statement. However, what has weighed with us is that while other eight or nine officers have been given a posting/central deputation within the ambit of their choice, reasons for posting the applicant in OA No. 3132/2014 as CVO are not apparent before us. However, all we know is that it might have been on account of some genuine public interest but the same is not apparent to us. (Public interest has not been projected as the reason for this deviation by the respondents). No power howsoever strong it might be in a democratic process is beyond the reasonableness. Since we are not aware as to what had been the compelling reasons, we hold that the applicant in OA No.3132/2014 has not been treated at par with other eight or nine officers of his cadre whose names had already been recommended for central deputation and his posting as CVO even without his preferring an application in that regard aggravates the unreasonableness in the action of the respondents.
74. Insofar as the applicant in OA No. 3130/2014 is concerned, we have already noted that he had opted for the post of CVO and his only grievance could be that he has not been given posting of his choice. But this is of no consequence as per the OM dated 18.01.2001. We also find that there is a bias which is being extracted by the applicants in their self-assumed belief. The entire thing has to be interpreted in light of the rights of employees on the one hand and powers vested with the employer.
75. There is another point we would like to touch here. The Indian Administrative and Police Service officers are inheritors of the steel frame that once governed the India. We have to note that those who govern are often required to forgo things in order to fulfill their anointed mandate. In this regard, we would like to refer to a decision rendered by this Tribunal in the matter of Namrata S. Kumar versus Union of India & Others [OA No. 2925/2014 decided on 25.09.2014] para no.5 whereof reads as under:-
5. We are pained to see an officer of the IFS approaching this Tribunal against a routine transfer made by the respondents. Transfers and postings are a routine feature in the career of senior civil servants. In this case, the respondents are allowing the applicant to complete her three year tenure which is ending on 24.09.2014. We agree with the respondents that the applicant knew well in advance the educational requirements of her children. Secondly, the respondents do take lot of care (at a substantial cost to the public exchequer) to ensure that diplomats children do not face inconvenience because of their parents transfer. In this background, trying to hang on to a post abroad resorting to such excuses as have been mentioned is indeed deplorable. We would like to add here that we are little perturbed to think that what would become of this Administration if all officers were to become as relentless in pursuit of their self-interest as, in particular reference, the applicant in OA No.3130/2014, without paying heed to their larger call of duty. The foundations of the present administration were laid by officers from Scotland and England who sailed across the seven seas to spend their lives in the jungles of Jharkhand and Central India. Here, it is only a question of serving at Shillong instead of Delhi and Mumbai.
76. Having said so, we do consider that it was for the Government of India to have given a posting to the applicant in OA No.3132/2014 in some CPSE but he has been considered differently from that of eight or nine other officers. Even after filtration of certain untenable grounds raised by the applicant in the OA, his having been treated with discrimination qua others who have been sent on central deputation, does justify judicial interference, especially keeping in view that no reasons for not accepting his request or his option exercised is forthcoming from the respondents, and, therefore, in our view, the request of the applicant for giving him central deputation deserves to be considered by the respondents. However, ground reality should also be kept in view. Since he had already joined, we do not consider it expedient to quash the order and transfer him back to the State. Instead, we dispose of OA No.3132/2014 with the direction to consider his request to give central deputation expeditiously, preferably within a period of three months from the date of receipt of certified copy of this order. On the other hand, we find the other OA No.3130/2014 being bereft of merit deserves to be dismissed. It is accordingly dismissed. There shall be no order as to costs.
77. A copy of this order be kept in the respective files of these two OAs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/