Delhi High Court
Union Of India & Anr. vs Praful Bhai Patel & Ors. on 22 September, 1999
Equivalent citations: 1999VIAD(DELHI)57, 1999(51)DRJ453
Author: Madan B. Lokur
Bench: Madan B. Lokur
ORDER Madan B. Lokur, J.
1. Rule D.B. in both the writ petitions.
2. On the request of learned counsel for the parties, and keeping in view the fact that these petitions concern the future of more than 40 employees, we decided to take them up for final disposal at the admission stage. Accordingly, we heard learned counsel for the parties on 17th August and 1st, 7th and 13th September, 1999 when judgment was reserved. We have also perused the written submissions filed by learned counsel for the parties.
3. In Civil Writ Petition No. 3392 of 1999, the Union of India and others (hereinafter referred to as the CBI) have challenged the order dated 5th April, 1999 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the Tribunal) in O.A. No. 779/1998 and O.A. No. 795/1998. In Civil Writ Petition No. 6137 of 1998, the petitioners have challenged the order dated 10th November, 1998 passed by the Tribunal in O.A. No. 872/1998. Since both the writ petitions raise similar questions, they were heard together. For the sake of convenience, the Petitioners in Civil Writ Petition No. 6137 of 1998 are also referred to as the Respondents.
4. It may be mentioned that in these writ petitions, the memo of parties shows a large number of Respondents. However, during the hearing of the writ petitions, learned counsel for the Respondents stated she is really making submissions on behalf of only 41 contesting Respondents. A list of the contesting Respondents was given to us. Consequently, we are proceedings on the basis that the other Respondents have lost interest in the matter.
5. On 30th May, 1997, a Division Bench of this Court rendered its judgment in Civil Writ Petitions No. 1721 of 1997, 1889 of 1997, and 1895 of 1997, Union of India & Anr., Vs. Central Administrative Tribunal (Mathura Dutt & Ors.). In that decision, the Division Bench upheld Standing Order No. 28/96 dated 5th December, 1996 issued by the CBI. In that Standing Order, the CBI had stated, among other things, that "as a matter of policy we have decided not to absorb any person unless he is totally indispensable to the working of CBI".
6. In accordance with Standing Order, a large number of officers who were on deputation with the CBI were repatriated to their parent organizations. These repatriation orders were upheld by this Court in its judgment and order dated 30th May, 1997. The orders repatriating the Respondents were also upheld by this Court.
7. Subsequent to the decision of this Court, and in view of the fact that representations were made by some of the deputationists for considering their cases afresh on compassionate grounds, the CBI decided to take a fresh look at their policy for absorption repariation of the deputationists. As a result of this fresh look, the CBI issued a Scheme dated 28th July, 1997 containing instructions to streamline the procedure of dealing with the deputationists.
8. In the Scheme dated 28th July, 1997, it was stated that "Absorption of constables/ head constables would be restricted to the number of vacancies existing in the direct recruitment quota of respective ranks." It was further stated that "The following job specific qualifications would be given preference while considering absorption". The qualifications listed category-wise were as follows:
"Constable/Head Constable Diploma/Certificate from an (Computer proficiency) institution recognised by DOE indicating proficiency in basic data operation and working on operating systems like DOS/ Windows and application software like Lotus Approach, Freelance, WordPro, 123, or MS Word, MS Excel, MS Power Point, MS Access. Constable/Head Constable (a) Certified accident free (Drivers) driving for a minimum of two years.
b) Valid license for driving LMV. Constable/Head Constable ITI Certificate/diploma of basic (Electricians) electricians work with experience. Other qualified ranks. (Wireless Operators/ Carpenters/Tailors) Certificate of experience or working in respective trade for a minimum of 2 years or basic certificate/diploma in the concerned craft from a recognized institution. Security Aide A minimum of two years working experience as a security aide in CBI along with willingness to give an undertaking to continue as security aide till promoted."
9. As a result of the Scheme dated 28th July, 1997, the CBI constituted a Committee to examine the cases of as many as 317 persons working in the CBI on deputation from various police organizations. The said Committee submitted its proceedings on 11th March, 1998 recommending, inter alia, that 86 Officers (73 Constables and 13 Head Constables) be permanently bsorbed in the CBI. Out of these 86 officers, seven of them could not produce any certificate that they had the minimum educational qualification of being a matriculate; and three others opted to go back to their parent department. Accordingly, only 76 officers were absorbed in the CBI under the Scheme dated 28th July, 1997. Quite obviously, the Respondents were not recommended for absorption.
10. The said Committee also made certain additional recommendations for the consideration of the CBI. These recommendations were considered and rejected by the CBI on 17th March, 1998. The reason for their rejection, as is apparent from the files of the CBI, is as follows:
"While the recommendations of the committee are well intentioned, but the point which has to be orne in mind that in case the prescribed qualifications for absorption of Constables/Head Constables are relaxed, it would result in some of the Constables/Head Constables who are likely to be absorbed may rise to the rank of Sub-Inspectors and Inspectors in light of the Supreme Court judgment stipulating that seniority is to be counted from the date of enlistment in their parent cadre. This may result in increase in number of officers who are under matriculate and are of no use to the organisation once they rise to the rank of Sub-Inspector and Inspector. This has already become an acute problem in Special Teams investigating scams as we have number of such people who were absorbed over the years and no officer is ready to keep them as they do not have investigation experience and have become liability."
11. Notwithstanding this, some further recommendations were made (and accepted) at a meeting convened by the Director, CBI on 24th March, 1998, suggestions were made by several junior functionaries of the CBI for the permanent absorption of several other deputationists into the CBI. The Director, CBI found that it was not feasible to reopen the matter and his decision was communicated to all Superintendents of Police by the CBI on 7th April, 1998. Consequently, the final decision was that full effect was to be given to the Scheme for absorption dated 28th July, 1997 without any modifications.
12. In the meanwhile, acting upon the proceedings of the said Committee, the Respondents were repatriated to their parent organizations by orders issued on or about 30th March, 1998. One such repatriation order reads as follows:
"No. A/331016/1/97/AD.III MARCH 30,1998 REFER HEAD OFFICE FAX MESSAGE OF EVEN NUMBER DATED 24.03.98 AND MEETING OF JOINT DIRECTORS HELD TODAY THE CHAIRMANSHIP OF ADCBI(S). REPORT THAT ALL HEAD CONSTABLES/ CONSTABLES WHO HAVE JOINED CBI ON DEPUTATION ON OR BEFORE 31.12.90 AND HAVE NOT BEEN SHORT-LISTED FOR ABSORPTION ARE RELIEVED."
13. Feeling aggrieved by the orders of repatriation, the Respondents approached the Tribunal any by the impugned order dated 5th April, 1999, the Tribunal allowed the Applications filed by the Respondents (except in the case of the Writ Petitioners in Civil Writ Petition No. 6137 of 1998) and directed the CBI to take back the Respondents and to reconsider their case in the light of the Scheme dated 28th July, 1997.
14. Learned Additional Solicitor-General appearing for the CBI contended that the cases of all the Respondents were individually and dispassionately considered in accordance with the Scheme of 28th July, 1997. The said Committee looked into all the cases but did not recommend the absorption of the Respondents in the CBI and, therefore, there was no reason for the Tribunal to direct the CBI to once again look into their cases in terms of the Scheme. It was also submitted that there were a limited category of Constables/Head Constables who needed to be absorbed in the CBI and conscious decision had been taken not to increase the number of categories or to deviate from the absorption policy as enunciated in the Scheme dated 28th July, 1997. It was submitted that there is nothing wrong or arbitrary about such a decision having been taken. Learned Additional Solicitor-General further submitted that whatever had transpired prior to the decision of this Court rendered on 30th May, 1997 was now totally academic and that a fresh cause of action had arisen, If at all, subsequent to that decision when the CBI took a fresh decision on 28th July, 1997. In other words, learned Additional Solicitor-General submitted that the starting point of the case, insofar as we are concerned, is 28th July, 1997.
15. On the other hand, learned counsel for the Respondent submitted that we ought to go back to the time when the Respondent were initially inducted into the CBI and the dates and events which occurred thereafter are material and relevant for the purposes of deciding whether the CBI has acted in a reasonable manner or not. Learned counsel for the Respondents submitted that the starting point of our enquiry should be 1986-87 when the first of the Respondents was inducted into the CBI.
16. On merits, learned counsel for the Respondents submitted that her clients had been inducted into the CBI not on a deputation basis but by transfer on deputation. She then submitted that out of the 41 Respondents who are contesting the repatriation, as many as 24 of them are matriculates and only 17 are non-matriculates. Since the CBI has absorbed non-matriculates, her clients are being subjected to hostile discrimination inasmuch as at least 24 of them ought to have been automatically absorbed (being matriculates) and the other 17 should have been given equal treatment under the law as in the case of those non-matriculates who have been absorbed by the CBI. The third submission advanced by learned counsel for the Respondents was that some of the Respondents had secured promotions within the CBI and this was possible only if they had been absorbed in the CBI. It was contended that in any case, since the Respondents have secured promotions within the CBI, it would not be fair to them if they are now sent back to their parent department. In this context, learned counsel for the Respondents also submitted that the Respondents were not being paid their deputation allowance but were being paid the same scale of pay as is applicable to direct recruits in the CBI. According to her, this further confirmed the fact of their absorption in the CBI. Her fourth submission was that the repatriation order states that those who "have not been short-listed for absorption are being relieved". According to learned counsel for the Respondents, her clients had been short-listed as far back as on 22nd February, 1996. Consequently, the CBI has misunderstood and misinterpreted its own decisions and the Respondents are not liable to be repatriated to their parent organizations. It was finally contended (rather faintly) that the Respondents had a legitimate expectation that they will be absorbed in the CBI and that their hopes were belied by the unreasonable actions of the CBI.
17. We have considered the rival submissions and are clearly of the view that our enquiry has to start from the date of the decision of the Division Bench of this Court, that is, 30th May, 1997 and not prior to that. Whatever events had occurred prior to that date and whatever documents had come into existence prior to that date are, at the least, assumed to have been looked into and considered by the earlier Division Bench. The judgment and order of the earlier Division Bench rendered on 30th May, 1997 has become final insofar as we are concerned. Consequently, we are not inclined to have a fresh look at those events and documents. We are also not in a position to reopen the earlier decision of this Court or to consider some aspects of the case which were allegedly not placed before that Division Bench. Judicial discipline prohibits us from doing so. Learned counsel for the Respondents did not make any submission that the decision of the earlier Division Bench required reconsideration or that the matter ought to be referred to a larger Bench. We are, therefore, clearly of opinion that it is not advisable or even necessary for us to look into the events which occurred prior to 30th May, 1997 except to the limited extent of considering the documents relied on by learned counsel for the espondents in support of her submissions.
18. As regards the first submission of learned counsel for the Respondents that her clients have been inducted into the CBI not by way of deputation but by way of transfer on deputation, it was rightly pointed out by the learned Additional Solicitor-General that this submission had already been made before the earlier Division Bench which had rejected the same. The earlier Division Bench had stated as follows:
"Submission of learned counsel for the respondents that the mode of recruitment provide for transfer on deputation and when respondents were taken on deputation they stood transferred from their parent department to CBI and, thus, got a right of absorption also has no force. While on deputation the respondents continued to have the status of a deputationist and having a lien in their parent departments. They could get permanently absorbed in CBI only on absorption. The Supreme Court in K. Madhavan and Another Vs. Union of India and Others, had an occasion to consider the Recruitment Rules in question when it held:
"There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to another."
Only on permanent absorption of a deputationist in CBI that a deputationist would become a member of service in CBI and not so long he continues to be one deputation. Admittedly the respondents have not till date been permanently absorbed in CBI. They cannot under the Recruitment Rules, in terms of the aforementioned observations of the Supreme Court in K. Madhavan's case be termed as having been appointed on transfer."
19. The first submission of learned counsel for the Respondents it, therefore, rejected.
20. As regards the second submission, which was to the effect that nonmatriculates have also been absorbed by the CBI, it was pointed out the learned Additional Solicitor-General that prior to 28th July, 1997, nonmatriculates were absorbed in the CBI but after the Scheme of 28th July, 1997, there is not a single non-matriculate who has been absorbed in the CBI. Learned Additional Solicitor-General stated that the submission of the learned counsel for the Respondents proceeded on a factually erroneous basis and the list of 76 persons who were absorbed, along with their educational qualifications, was shown to us. We find that the learned Additional Solicitor-General is right in stating that not a single non-matriculate has been absorbed in the CBI after 28th July, 1997. The second submission is also, therefore, rejected.
21. As regards the third submission made by learned counsel for the Respondents, which is to the effect that the Respondents were absorbed in the CBI since they had secured promotions within the CBI and that they were not being paid the deputation allowance, the learned Additional SolicitorGeneral relied on a decision of the Supreme Court in the case of State of Punjab & Ors. Vs. Inder Singh & Ors., . In that case, the Respondents therein were enrolled as Constables in the Police Department of the State of Punjab and were later deputed to the Criminal Investigation Department (CID) of the Punjab Police. During the course of their deputation, they earned promotions on an ad hoc basis and some of the Respondents therein had even reached the rank of ad hoc Sub-Inspector. On their repatriation to their parent department, they were required to go back as Constables or Head Constables, if in the meanwhile they had earned promotion in their parent department. The Respondents therein challenged their repatriation and the High Court of Punjab and Haryana partly allowed their writ petition against which the State of Punjab approached the Supreme Court.
22. While partly allowing the appeal of the State, the Supreme Court said in paragraph 18 of the Report as follows:
"The concept of "deputation" is well understood in service law and has a recognised meaning. Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quire settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."
23. As regards the non-payment of deputation allowance, it was brought to our notice in the additional written submissions filed by the CBI that in terms of the orders issued by the Government of India. "An employee on deputation may elect to draw either the pay in the scale of pay of the deputation post or his basic pay in the parent cadre plus personal pay, if any, plus deputation (duty) allowance". Reference was made in this regard to the orders of the Government of India, Department of Personnel & Training in OM No. 2/12/87-Estt(Pay-II) dated 29th April, 1988 and OM No. 2.29/91-Estt(Pay II) dated 5th January, 1994 and OM No.F. 29(24)-E.III/60 dated 10th March, 1967.
24. In the additional written submissions, the CBI has also stated that the document relied upon by the learned counsel for the Respondents clearly states that, that officer "....has opted for drawal of his pay in CBI scale ...." in other words, that particular officer had exercised his option for drawing the scale of pay as applicable to direct recruits in the CBI and of foregoing his deputation allowance. It is further stated in the additional written submissions that the said document categorically states that the "official would continue to draw his pay and allowances at CBI rates till his repatriation to his parent Organization". In view of this, we are of the view that the Respondents cannot seek to claim to be absorbed because one (or may be more) of them was drawing the scale of pay applicable to direct recruits in the CBI without the benefit of any deputation allowance.
25. Learned counsel for the Respondents did submit that these facts should be appreciated cumulatively and non in isolation. While agreeing with her on this aspect of the case, we do feel that learned counsel has not able to show a discernible pattern of events which would make the cumulative appreciation of these facts gel into a definite conclusion that the Respondents had been absorbed in the CBI. The aspect of promotion within the CBI is not linked, directly or indirectly, to the stoppage of deputation allowance, or vice versa. In other words, the events relied upon by learned counsel for the Respondents are themselves isolated and not inter-connected. This being so, it is not possible to find a common thread to assess the fact cumulatively.
26. The main thrust of the submission of learned counsel for the Respondents was in her fourth submission, namely, that her clients had already been short-listed for absorption in the CBI. Reliance was placed by learned counsel on the letter dated 22nd February1996, the operative portion of which reads as follows:
"I am to state that in CBI Recruitment Rules of Constables/Head Constables, there is provision for filling up the posts by deputation/transfer. The Constables/Head Constables of your organisation have expressed/given their willingness for absorption in CBI, a list of such Constables/Head Constables is enclosed.
In view of the above, it is requested that undersigned may be intimated if organisation is willing to give their consent for considering the cases of Constables/Head Constables for absorption in CBI. On receipt of your consent, the individual cases will be screened by a Committee in CBI to assess their suitability for absorption. The date of absorption will be intimated later on. It is, therefore, requested that consent of your organisation may be conveyed to undersigned so that we may assess the suitability of Constables/Head Constables whose list is enclosed for ready reference."
27. Juxtaposing this with the repatriation order dated 30th March, 1998 (which stated that "all Head Constables/Constables who have.... not been short-listed for absorption are relieved.") learned counsel submitted that her clients having been short-listed, they ought not to have been relieved as per the order dated 30th March, 1998.
28. We are afraid learned counsel for the Respondents is labouring under a misconception that the short-listing referred to in the repatriation order is referrable to the letter dated 22nd February, 1996 mentioned above. The short-list mentioned therein may perhaps have been with reference to the exercise which culminated in the repatriation ordered in 1996-97: we do not know. What we do know, however, is that the categories of officers who were to be absorbed in the CBI were identified only in the Scheme dated 28th July, 1997. It is too far-fetched to visualize that in February, 1996, some officers were short-listed in accordance with the Scheme which came into existence about a year and half later. Moreover, the Committee which submitted its proceedings on 11th March, 1998 had actually short-listed 86 officers who were recommended for absorption in the CBI. Out of this list of 86 officers, 76 of them were actually selected for absorption. We are, therefore, quite clear in our mind that the reference in the repatriation order dated 30th March, 1998 to the officers who are not short-listed relates to those officers other than the 86 officers who were short-listed in terms of the Scheme dated 28th July, 1997. We, accordingly, reject the fourth submission made by learned counsel for the Respondents.
29. The final submission was to the effect that the Respondents had a legitimate expectation that they would be absorbed in the CBI. Frankly, we see no basis for the Respondents to have such an expectation. The Respondents came to the CBI on deputation for a period of five years: they ought to have expected their repatriation immediately after the conclusion of their deputation period with the CBI. For one reason or another, their deputation period was extended but ultimately they were told in 1997 that they would have to go back to their parent department because they could not be absorbed in the CBI in view of Standing Order No. 28/96 dated 5th December, 1996. Any expectation that the Respondents may have had of their absorption in the CBI should have come to an end on the date they were told of their repatriation. It is true that the Respondents did not accept the orders of repatriation but chose to ventilate their grievance before the Tribunal and then before this Court. Ultimately, even this Court upheld the order of repatriation by the judgment and order dated 30th May, 1997. It cannot, therefore, be seriously urged by the Respondents that even after the decision of this Court, they continued to have an expectation, legiti-mate or otherwise, that they would be absorbed in the CBI. We feel that, at best, the 'expectation' was only wishful thinking and nothing more. The doctrine of 'legitimate expectation' has been exhaustively dealt with in two recent decisions of the Supreme Court, namely, National Buildings Construction Corporation Vs. S. Raghunathan & Ors., and Punjab Communications Ltd. Vs. Union of India & Ors. and we need say nothing more on this subject.
30. In view of the above, we have no hesitation in accepting the submission made by the learned Additional Solicitor-General and in rejecting the contentions urged by learned counsel for the Respondents.
31. Accordingly, Civil Writ Petition No. 3392 of 1999 is allowed and Civil Writ Petition No.6137 of 1998 is dismissed. There will, however be no order as to costs.