Central Administrative Tribunal - Delhi
Govindraju R G vs Home Affairs on 20 October, 2023
1 O.A. No.367 of 2023
Central Administrative Tribunal
Principal Bench,, New Delhi
O.A. No.367
367 of 2023
Orders reserved on :26.09.2023
:
Orders pronounced on : 20.10.2023
Hon'bleMr. R.N. Singh, Member (J)
Hon'bleShri
Hon'bleShriSanjeeva
Sanjeeva Kumar,
Kumar Member (A)
Govindraju R.G.
S/o Sh. Gopala Krishna RV
Age - 43 years
R/o Qtr No.12, Block
Block-77,
Sector-1,
1, PushpVihar,
New Delhi
Delhi-110017.
- Applicant
(through Advocate Shri A.K. Behera, Senior counsel
assisted by Shri Amrender Pratap Singh)
Singh
Versus
1. Union of India
Through its Secretary,
Ministry of Ministry of Home Affairs,
North Block, New Delhi
Delhi-110001.
110001.
2. Director General
SashastraSeemaBal
East Block
Block-5, R.K. Puram,
New Delhi
Delhi-110066
3. Central Administrative Tribunal
Through its Registrar, Principal Bench,
61/35, Copernicus Marg,
New Delhi
Delhi-110001.
-Respondents
(through Advocate Dr. Ch. Shamsuddin Khan for R-1
R and
R-22 and Shri Gyanendra Singh for R--3)
2 OA No.367 of 2023
ORDER
Mr.R.N. Singh, Member (J) :
The applicant has filed the instant OA, under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"a. Quash and set aside the order dated 13.01.2023 and 03.02.2023.
b. Direct the Respondent i.e. MHA to accord concurrence to the applicant for NOC for permanent absorption as caretaker in CAT forthwith as the parent dept. has already issued NOC vide letter dated 29.9.2022.
c. Direct Respondent no.3 to absorb the applicant as caretaker forthwith with all consequential benefits.
d. Pass any other order or direction which this Hon'ble Tribunal thinks fit and proper in the light of the facts and circumstances of the case.
e. Direct the Respondent to pay the cost of litigation to the applicant."
2. The OA initially came up for consideration on 07.02.2023 and thereafter on various dates when after considering the submissions made by the learned counsel for the parties and perusing the pleadings available on record the Tribunal dismissed the OA vide order dated 06.03.2023 holding that the Tribunal lacks jurisdiction. The said order of the Tribunal was challenged by the applicant before the Hon'ble High Court of Delhi through 3 OA No.367 of 2023 W.P. (C) No.3372/2023. The Hon'ble High Court vide judgment and order dated 18.07.2023 set aside the order dated 06.03.2023 of the Tribunal and remanded the matter back to the Tribunal holding that it has jurisdiction to decide the issue raised by the petitioner in the OA and accordingly the Hon'ble High court revived the OA on the Board of the Tribunal. The Hon'ble High Court further directed the Tribunal to decide the issue on merits in accordance with law. The Hon'ble High Court also granted liberty to the counsels for the parties to file additional affidavit within three weeks. The Hon'ble High Court further directed the Tribunal to hear the counsels for the parties on 10.08.2023 and to decide the OA as expeditiously as possible within two weeks thereafter as an outer limit.
3. In terms of the order of the Hon'ble High Court the matter was listed before the Tribunal on 10.08.2023 and thereafter on various dates when the parties filed their additional affidavit, counter affidavit etc. We heard learned counsel for the parties finally on 26.09.2023 and with their assistance we have perused the pleadings 4 OA No.367 of 2023 available on record and the matter was reserved for orders.
4. The undisputed facts are that the applicant was initially appointed as CT/GD under respondent no.2, on 12.08.2003. Subsequently, he was promoted to the rank of Head Constable (Min) through LDCE on 17.09.2007. The applicant was appointed as Care Taker under respondent no.3 on deputation basis w.e.f. 24.11.2017 initially for one year, w.e.f. 24.11.2007 to 23.11.2018. The period was extended for two years w.e.f. 24.11.2018 to 23.11.2020. The applicant has submitted his willingness for permanent absorption as Care Taker under respondent no.3. However, the respondent no.2 did not issue the requisite No Objection Certificate (NOC) in this regard on account of non-completion of mandatory 18 years of service on the relevant date and such decision was communicated by the respondent no.2 to respondent no.1 under intimation to respondent no.3. Again on receipt of request from respondent no.3 for issuance of NOC for considering permanent absorption of the applicant under respondent no.3, respondent no.2 considered and did not agree to issue NOC on the ground that the applicant has not 5 OA No.367 of 2023 completed the requisite 18 years of service, which is an essential service criteria for CAPFs as per MHA Deputation Policy Guidelines dated 22.11.2016 (Annexure R-3 to the short reply of respondent no.3). However, the applicant was granted extension of deputation for 4th year keeping in view the willingness of the applicant, the NOC issued by respondent nos.1&2 and consideration made by respondent no.3. Regarding extension of applicant's tenure for 5th year, starting from 23.11.2021 respondent no.2 vide their communication dated 24.06.2022 (Annexure R-2), respondent no.2 requested respondent no.3 to repatriate the applicant. It has also been stated in such communication dated 24.06.2022 (Annexure R-2 with the counter reply of respondent no.3) that the applicant has been found blameworthy for false claim of LTC bills and against him disciplinary proceeding is pending with further direction to the applicant to report to FHQ, SSB, New Delhi for timely completion of disciplinary proceedings. Of course, vide their communication dated 14.09.2022 (Annexure R-3 of counter reply of respondent no.3), informed the respondent no.3 that extension of deputation/absorption of the applicant has been considered by the respondent no.3 and respondent no.3 6 OA No.367 of 2023 has agreed to issue NOC for extension of deputation tenure for 5th year, i.e., upto 23.11.2022 subject to concurrence of respondent no.1 in terms of Policy guidelines dated 22.11.2016. Subsequently, various communications were sent by respondent no.3 to respondent no.2 at the request of the applicant for grant of NOC for extension of tenure for 5th year, i.e., upto 23.11.2022, subject to concurrence of respondent no.1 in terms of the deputation policy guidelines dated 22.11.2016. The applicant vide his application dated 31.10.2022 requested for extension of his tenure for 6th year on the ground that concurrence of the competent authority for his permanent absorption was awaited from respondent no.1 and accordingly the respondent no.3 sent a communication dated 07.11.2022 (Annexure R-4 with the counter affidavit of respondent no.3) to respondent no.2 with a request therein to grant NOC for extension of 6th year deputation period beyond 23.11.2022 in respect of the applicant. Respondent no.2 vide its communication dated 13.01.2023 conveyed to respondent no.3 that the DG, SSB has not agreed to issue NOC as the applicant was involved in fraudulent claim of LTC and disciplinary proceeding is pending against him with the request to 7 OA No.367 of 2023 respondent no.3 to repatriate the applicant with direction to him to report at FHQ, SSB, New Delhi forthwith as his deputation has already expired on 23.11.2022. The respondent no.3 pursuant to the communication dated 13.01.2023 (Annexure R-5 with the counter reply of respondent no.3) of respondent no.2 repatriated the applicant.
4.1 Respondent no.1 also issued communication dated 10.02.2023 (Annexure R-7) endorsed to respondent no.2 as well as respondent no.3 that the competent authority has not accorded 6th year extension w.e.f. 24.11.2022. The applicant was relieved of his duties w.e.f. 10.02.2023 (F/N) vide office order dated 10.02.2023 of respondent no.3.
4.2 Subsequently, during the pendency of the aforesaid Writ Petition before the Hon'ble High court of Delhi, respondent no.2 vide order dated 24.04.2023 conveyed NOC for extension of deputation for 6th year w.e.f. 24.11.2022 to 23.11.2023 and for permanent absorption of the applicant under respondent no.3, subject to concurrence of respondent no.1 in terms of the policy guidelines of respondent no.1 dated 22.11.2016. 8 OA No.367 of 2023 Subsequent thereto, the matter was examined by respondent no.1 and it was conveyed by respondent no.1 vide their communication dated 08.06.2023 (Annexure R- 9 colly to the counter affidavit of respondent no3) that the competent authority has accorded NOC for grant of ex- post facto extension in deputation tenure beyond the 5th year w.e.f. 24.11.2022 to 10.02.2023 (i.e., upto the date of repatriation).
4.3 In view of the liberty granted by the Hon'ble High Court vide its judgment and order dated 18.07.2023 the applicant has filed an additional affidavit and has prayed for the following relief:
"(a) Direct Respondent no.3 to absorb the applicant forthwith as Care Taker in CAT with all consequential benefits w.e.f.
10/02/2023.
(b) Pass such other and/or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
4.4 A short affidavit has also been filed on behalf of respondent no.3 in opposition to the claim of the applicant with a further submission that the OA is devoid of any merit and deserves to be dismissed with exemplary cost. 4.5 Similarly, a short affidavit has been filed on behalf of respondent nos.1 & 2, stating that the OA is devoid of any 9 OA No.367 of 2023 merit and deserves to be dismissed with exemplary cost. More or less the facts precisely recorded hereinabove have been stated by respondent no.3. In the short affidavit filed on behalf of respondents no.1 & 2 it is asserted that since the applicant was involved in LTC fraudulent claim, the respondent no.2 has not agreed to forward the SFS file to respondent no.1 for further course of action and was conveyed to respondent no.1 vide ID note dated 07.10.2021. It is further asserted that despite the request from respondent no.3 on various occasions during November, 2021 to August, 2022 for issuance of NOC for extension of deputation of the applicant as well as permanent absorption of applicant, but the DG, SSB did not agree to issue the same as the applicant was involved in fraudulent claim of LTC. However, as per the direction of the Court, a proposal for extension of deputation as well as applicant's absorption was sent by respondent no.2 to respondent no.1 for further necessary action. However, the respondent no.1 has accorded NOC only for grant of ex-post facto extension of deputation period beyond 5th year w.e.f. 24.11.2022 to 10.02.2023 (i.e., upto the date of repatriation in respect of the applicant vide communication dated 08.06.2023).
10 OA No.367 of 20234.6 The respondent nos.1 & 2 have filed their additional affidavit and therein it is asserted by them that the fraudulent claim of the LTC by officers/officials of SSB has been forwarded to CBI by SSB for investigation and the same is still under investigation with ACB, CBI New Delhi vide FIR No.RC-DAI-2020-A-0041 dated 18.12.2020 registered under Sections 420, 467, 468, 471 and 120-B of IPC. It is further asserted that the name of the present applicant has been shown in the production-cum-seizure memo of CBI dated 12.05.2022 (Annexure R-1 colly with the additional affidavit of respondent nos.1 & 2). 4.7 Respondent no.3 has also filed additional affidavit keeping in view the order of the Tribunal dated 22.08.2022 vide which a copy of the Recruitment Rules for the post of Care Taker has been placed on record. It is stated therein that the total strength of the post of Care Taker under respondent no.3 is 20. As of today, the posts of Care Taker are vacant in four Benches of respondent no.3, i.e., Guwahati, Jabalpur, Jodhpur and Mumbai Benches. It is further stated by respondent no.3 that respondent no.2 conveyed NOC for extension of deputation of the applicant for one year beyond 23.11.2022 only after the applicant 11 OA No.367 of 2023 was relieved and that too subject to concurrence of respondent no.1 and respondent no.1 has conveyed the decision of the competent authority for grant of ex-post facto extension of deputation beyond 5th year for the period from 24.11.2022 upto 10.02.2023 ( i.e. upto the date of repatriation) vide communication dated 08.02.2016 and had not granted NOC regarding permanent absorption of the applicant. The respondent no.3 has further averred that after expiry of the deputation period the employee has to go back to his parent department unless the term of deputation is extended or he is permanently absorbed in the borrowing department and there cannot be any deputation/absorption without the consent of the lending department and borrowing department of person so deputed.
5. Mr. A.K. Behera, learned senior advocate, appearing for the applicant has argued that the respondents have wrongfully stated that there is a disciplinary case pending against the applicant on account of his alleged involvement in the fraudulent LTC claim. He has argued that as on date no charge-sheet has been initiated against the applicant for the said allegation and or any other 12 OA No.367 of 2023 allegation. It is wrong and misplaced at the end of the respondents to say that any disciplinary proceeding is pending against the applicant. By referring to para 4.11 of the OA Mr. Behera submits that based on the satisfaction of respondent no.2 a disciplinary proceeding was initiated against one SI (Min) Milan Kherkatary, who was handling the administrative task to book journey tickets of all officers of SSB and the SSB lodged criminal case against that official which was registered as FIR No.RC-DAI-2020- A-0041 dated 16.12.2020 by CBI/ACB/New Delhi (Annexure A-10 (Colly). The said official was arrested pursuant to said criminal case by the CBI/ACB and suspended by the department and that the said criminal trial is going on. He added that the CBI/ACB did not lodge any FIR against the applicant or any other victims (Annexure A-10 colly).
5.1 The learned senior advocate for the applicant has further argued that with regard to the alleged fraudulent LTC claim for the block year 2014-15 the respondent no.2 has already passed a final order dated 27.03.2023 (Annexure PR-2 of the additional affidavit of the applicant) and thus it is erroneous at the end of the respondent 13 OA No.367 of 2023 nos.1 & 2 that disciplinary proceeding is still pending against the applicant.
5.2 The learned senior advocate for the applicant has further argued that the competent authority for grant of NOC for deputation, extension of deputation and or for absorption of the applicant under respondent no.3 is respondent no.2 and the policy guidelines of respondent no.1 dated 24.11.2016 (Annexure R-7) only provides consultation with respondent no.1, i.e., MHA and once the respondent no.2 has given its NOC in respect of extension and or absorption of the applicant under respondent no.3 it is immaterial as to whether the respondent no.1 has agreed to the proposal and or the NOC given by respondent no.2 in this regard. He has referred to para-18 of the said guidelines dated 24.11.2016 (Annexure R-7 with the short reply of respondent no.2).
5.3 Mr. Behera has also argued that once the respondent no.2 has disclosed full facts to the Consultee, i.e., respondent no.1, it is not necessary for respondent no.1 either to convince respondent no.1 or it is also not necessary for respondent no.1 to concur with the SSB, the applicant is the employee of respondent no.2. and the 14 OA No.367 of 2023 highest authority of respondent no.2 is the DG, who has given NOC for absorption of the applicant. He further submits that similar victims of LTC fraudulent claim have already been granted NOC for absorption in difference organizations by following the same guidelines. In support of his such argument, the learned senior advocate has placed reliance on the judgment of the Hon'ble High Court of Kerala in Sundaresan Nair v. State of Kerala, (1990) SCC Online Ker 462 (para 18 & 33).
5.4 The learned senior advocate for the applicant has further argued that respondent no.3 in para-5 of the additional affidavit by it on 06.04.2023 before the Hon'ble High Court of Delhi has categorically mentioned that the issue of permanent absorption was recommended by the Departmental Screening Committee (DSC) on the subject and the said recommendation of the DSC was accepted/approved by the then Hon'ble Chairman of respondent no.3. Thereafter, withdrawing the consent for permanent absorption does not confirm the principle of fairness in public administration and any action which does not confirm the principle of fairness in public administration is clearly in violation of Articles 14 and 16 15 OA No.367 of 2023 of the Constitution of India. He has argued that respondent no.3 has not given any reason as to how the second committee for the same purpose for absorption would be formed or how the second committee without assigning any reason can differ with the decision of the original committee. In support of his argument he has placed reliance on the decisions of the Hon'ble Supreme Court in Management of M/s M.S. Nally Bharat Engineering Co. Ltd. V. State of Bihar and Others, (1990) 2 SCC 48 (para-20) and A.L. Kalra v. Project and Equipment Corporation of India Ltd., (1984) 3 SCC 316 (para-19).
5.5 With regard to the issue as to how any fault can be found with regard to the relieving of the applicant by respondent no.3 by order dated 10.02.2023, the learned senior advocate has argued that subsequent development has taken place after filing of the OA and it is an established principle of law that events which are materials for deciding an OA even though happened subsequent to the filing of the OA can be taken judicial note of giving comprehensive relief to the applicant and, therefore, the Tribunal is competent to mould the relief 16 OA No.367 of 2023 prayed in the OA. In support of his such contention he has placed reliance on a decision of this Tribunal in Bhagat Singh v. Union of India & Ors., OA No.1205/1989, decided on 06.04.1994 (para 52 & 53). Mr. Behera reiterates that once there is no disciplinary proceeding pending against the applicant, his name has not been named in the case FIR under reference lodged by the CBI, the respondent no.3 has repeatedly asked for extension of deputation of the applicant/his permanent absorption, the applicant has always been willing to be continued on deputation/absorption and the highest authority of respondent no.2, i.e., DG, SSB has conveyed its NOC ultimately for extension of tenure of the applicant for 6th year as well as his permanent absorption, whether the NOC is given by the respondent no.1 or not, the same would be immaterial and in this background the applicant is entitled to be absorbed under respondent no.3 and he has prayed for an order from this Tribunal accordingly.
6. On the other hand, Mr. Gyanendra Singh, learned counsel appearing for respondent no.3 has vehemently opposed the claim of the applicant. He has submitted that admittedly what is termed as NOC by respondent no.2 17 OA No.367 of 2023 vide its communication dated 24.04.2023 is concerned, the same is not a clear NOC but with a rider, i.e., "subject to concurrence from MHA Police-II Division." He further argued that even if the applicant's absorption was considered by the committee of respondent no.3, the fact remains that the said consideration was without a categorical NOC from respondents no.1 & 2. He has further argued that the applicant might not have been arrested by the CBI till date, but his antecedents are not beyond doubt keeping in view the allegation and finding given by respondent no.2 and the fact that the said case FIR is still at the stage of investigation. He has added that the applicant is having the right only for consideration and not for extension of his tenure on deputation or permanent absorption. Moreover, the action of the respondent no.3 clearly indicates fair consideration.
7. Dr. Shamsuddin Khan, learned counsel appearing for respondents no.1 & 2 by referring to the assertions made in the short affidavit and the additional affidavit filed on behalf of respondents no.1 and 2 has argued that the applicant is having the only right of consideration and not any enforceable right to claim absorption. Furthermore, 18 OA No.367 of 2023 the respondent no.2 has earlier refused not only grant of extension of deputation but also absorption for the reasons recorded in the order referred to in the respective pleadings of such respondents and precisely recorded hereinabove. He has further submitted that despite the efforts made by respondent no.2 could gather only information that the said case FIR is still under investigation and no view can be taken as to whether the applicant could be found guilty in the said FIR or not.
8. We have considered the submissions made by the learned counsel for the parties and we have also carefully gone through the judgments referred to by the learned senior advocate appearing on behalf of the applicant.
9. The learned counsels for the parties have referred to the OM dated 24.11.2016 (Annexure R-7 to the short affidavit of respondents no.1&2) and particularly para-18 thereof, which reads as under:
"A requisition made by the borrowing Organisation/Department or willingness tendered by a person for absorption, will not automatically confer any right on an individual or the borrowing department to claim absorption as a matter or right. The discretion to accept or reject, a request for absorption will be exclusively with the parent CAPF or the cadre controlling authority, i.e., Ministry of Home Affairs, as the case may be. In the case of Subordinate Officers and Other Ranks, the proposals for absorption shall be decided by the Director General of the 19 OA No.367 of 2023 CAPF concerned in consultation with Ministry of Home Affairs."
10. The Hon'ble High Court of Kerala in Sundaresan Nair (supra) has recorded in para-18 the submissions made by the learned Attorney General appearing for the 3rd respondent in the said matter. In para-33 the Hon'ble High Court has ruled as under:
"33. Consultation is an expression understood, though not defined in the Constitution, or the Act. It implies a meeting of minds, open to persuasion and it envisions a situation where each considers the point of view of the other. Yet, consultation is not concurrence. The authorities may confer, but diffei. The only requirement is that a decision must be taken, after all the authorities confer in mind on the total facts, after each of the consultees furnishes relevant facts and answers relevant querries. The idea is to help the deciding authority to reach a wholesome conclusion after considering the views of the different functionaries. The different functionaries bring their knowledge and expertise, and a shared decision-shared in the sense of full consideration of all the views-is to be reached. The Chief Minister holds an important position in a democratic set up. The Leader of Opposition represents a group which is to act as a check and balance, putting forward healthy criticism and informing the Government of another point of view. The Chief Justice by reason of his eminent position, background and training, apart from his personal endowments, is competent to judge suitability of a person for a judicial post. If the functionaries expressed their views to each other and a decision is taken, such decision is valid in the light of the principles laid down by the Supreme Court. A decision is to be taken not on the basis of any single point of view, but on a consideration of every single point of view. It is not a matter of form, but of substance. The minds must meet through expression, elucidation and consideration. If not, they meet in form, and not in substance."20 OA No.367 of 2023
11. The Hon'ble Apex Court in the case of Management of M/s M.S. Nally Bharat Engineering Co. Ltd. (supra), ruled in para-20 as under:
"We share the view expressed by Professor Jackson. Fair- ness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern state is not abused but properly exercised. The State power is used for proper and not 'for improper purposes. The authority is not misguided by extraneous or irrelevant consideration. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase "that justice should not only be done but be seen to be done" is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good adminis- tration. It has no set form or procedure. It depends upon the facts of each case. As Lord Pearson said in Pearlberg v. Varty, (at 547), fairness does not necessarily require a plurality of hearings or representations and counter repre- sentations. Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly."
12. Further, the Hon'ble Apex Court in A.L. Kalra (supra) in para-19 rules as under:
"The scope and ambit of Art. 14 have been the subject matter of a catena of decisions. One fact of Art. 14 which has been noticed in E.P. Rayappa v. State of Tamil Nadu & Anr. deserves special mention because that effectively answers the contention of Mr. Sinha. The Constitution Bench speaking through Bhagwati, J. in concurring judgment in Royappa's case observed as under:
"The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of pedantic or lexicographic approach. We cannot 'countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it 21 OA No.367 of 2023 cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if is affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
This view was approved by the Constitution Bench in Ajay Hasia case It thus appears well-settled that Art. 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal of protection by law. The Constitution Bench pertinently observed in Ajay Hasia's case and put the matter beyond controversy when it said 'wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action.' This view was further elaborated and affirmed in D.S. Nakara v. Union of India. In Maneka Gandhi v. Union of India it was observed that Art. 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Art. 14. The contention as formulated by Mr. Sinha must accordingly be negatived."
13. We may reproduce paras 52 and 53, referred to and emphasized by the learned senior advocate for the applicant in the case of Bhagat Singh (supra) as under:
"52. In view of the discussion made here-in-before we are of the view that this Tribunal, being a Court of equity, is competent to mould the relief asked for by the applicant 22 OA No.367 of 2023 suitably in the light of the facts and circumstances of the case. As observed by the Hon'ble Apex Court in Charanjit Lal Chowdhury v. Union of India & ors., report in AIR 1951 SC 41.
Article 32 gives the Courts very wide discretion in the matter of framing their writs to suit the exigencies of particular case, and an application cannot be thrown out simply on the ground that the proper writ or discretion has not been prayed for.
It was also observed by the Hon'ble Apex Court in Dwarka Nath v. Income Tax Officer, reported in MANU/SC/0166/1965:AIR 1966 SC 81 that "The High Courts are enabled to mould the relief's to meet the peculiar and complicated circumstances." In the case of state of Kerala v. Kumari T.P. Roshana and others, reported in MANU/SC/0701/1981:AIR 1979 SC 765, the following observation was made by the Hon'ble Supreme Court in this connection:
Here comes the play of proconsul realism in moulding the relief in the given milieu. The rule of law should not petrify life or be inflexibly mulish. It is tempered by experience, mellowed by principled compromise, informed by anxiety to avoid injustice and softens the blow within the marginal limits of legality. This is the karuna of the law.
It was also observed in the case of Tapan Kumar Jana v. G.M., Calcutta Telephone (MANU/WB/0315/1980: 85CWN91) that "if a case for interference by the High Court is made out in the petition for a writ, the petition under Article 226 will not fail because unsatisfactory or inartistic prayers."
53. In view of the principle enunciated in the different rulings cited above, we are of the firm view that this Tribunal is quite competent to mould the relief suitable to the facts and circumstances of the case. The suitable relief in this instant case is, therefore, a prayer for quashing and setting aside the departmental proceeding instituted against the applicant, which will now have to be considered in the light of the facts and circumstances of the case and the different observations made above."
14. We further find that order dated 27.03.2023 at pages 16-17 of the additional affidavit dated 09.08.2023 of the applicant, has recorded that a court of enquiry into the 23 OA No.367 of 2023 misuse of LTC facility was ordered vide order dated 27.03.2020 and subsequent order dated 08.07.2020. However, the said order has also recorded the opinion made by the said court that the claims of applicant in the present OA, then on deputation, for the block year 2014- 15 was a fraudulent/wrongful claim and on examination of the similar cases, the DG, SSB has approved that the recovery along with penal interest be made in respect of such wrongful claims along with other administrative actions. Para-3 of the said order reads as follows:
"3. Accordingly, it is ordered that:-
(i) LTC claims for the block year 2014-15 as submitted by the official is disallowed.
(ii) As per LTC rules next two sets (one to Home town and one to any place in India) are also forfeited.
(iii) Total amount of LTC with penal interest has been worked out to be for Rs.93,469(Rupees Ninety three thousand four hundred sixty nine) only as on 23.03.2023 which is required to be deposited by the official in one lump sum with AO/DDO concerned at the earliest.
(iv) The amount of LTC to be recovered from the official along with penal interest has been calculated as on 23.03.2023, which will increase to the actual on date of remittance.
(v) The necessary entry be made in the service book of the official concerned as approved by the DG, SSB.
(vi) Take up case with Pers. Dte for withdrawal of Medals as approved by the DG, SSB in similar other cases." 14.1 The applicant is stated to have deposited the amount in terms of the aforesaid and thus the said order dated 27.03.2023 has become final.
24 OA No.367 of 2023
15. From the facts on record, it is evident that there is a statutory provision for appointment to the post of Care Taker by way of deputation or absorption. It is not in dispute that in view of the willingness of the applicant, the candidature of the applicant was considered by the respondents on various occasions for extension of his tenure and also for his permanent absorption as Care Taker under respondent no.3. However, it is also not under dispute that for continuation on deputation and or for absorption, willingness of the employee, NOC from the parent department and NOC from the borrowing department are essential. From the facts precisely recorded hereinabove, it is amply clear that at the request of the applicant the respondent no.3 has taken up the matter with respondent nos.1 & 2 for grant of NOC for continuation of the applicant on deputation and or for absorption under it. However, at no point of time, the respondent nos.1 & 2 have issued a categorical NOC in this regard in favour of the applicant. Either the NOC has been refused say for non-compliance of the requisite 18 years of service, involvement of the applicant in the matter of fraudulent LTC claim, pendency of disciplinary proceeding in this regard and or if at all the NOC was 25 OA No.367 of 2023 issued by respondent no.2 in this regard, on which much emphasis has been given on behalf of the applicant in the pleadings as well as during oral submissions, such NOC has never been unconditional, specific and categorical. This had always carried the rider that the same has been issued "subject to concurrence of respondent no.1." It is admitted case that at no point of time the respondent no.1 has accorded and issued NOC for permanent absorption of the applicant under respondent no.3 despite the proposal and or recommendation of respondent no.2 and or of respondent no.3. Even during the pendency of the present litigation what the respondent nos.2 & 3 have accorded and issued is "NOC for grant of ex-post fact extension of deputation tenure beyond 5th year period w.e.f. 24.11.2022 to 10.02.2023, (i.e., upto the date of repatriation of the applicant).
16. From the pleadings available on record, it is apparent that no disciplinary proceeding has been initiated against the applicant inasmuch as no charge memo under the relevant discipline and appeal rules has been issued and served upon him. However, it is equally admitted that on account of the applicant's involvement in fraudulent LTC 26 OA No.367 of 2023 claim, the respondent no.2 has passed an order dated 27.03.2023 in which adverse view has been recorded and some penal actions have also been ordered, as evident from para-14 hereinabove.
17. It is not in dispute that the complaint was referred to the CBI for investigation in the matter by respondent no.2, referring the allegation against the applicant in respect of the fraudulent LTC claim and on such complaint the aforesaid FIR has been registered and the name of the applicant has been shown in the production-cum-seizure memo by the CBI dated 12.05.2022. We are of the considered view that once the matter is under investigation, it is beyond our jurisdiction to comment about the applicant's involvement in the said case FIR and or his innocence in this regard.
18. Insofar as the contention of the applicant that at one point of time the relevant committee of respondent no.3 had considered and recommended the claim of the applicant for absorption and such claim having been considered by the subsequent committee of respondent no.3 is concerned, we are of the considered view that such consideration has been without categorical, requisite NOC 27 OA No.367 of 2023 from respondent nos.1 & 2 and, therefore, such consideration also does not bestow any enforceable right upon applicant.
19. Now the issue arises as to whether grant and issuance of NOC by the respondent no.2, which has been a conditional one, with the condition "subject to concurrence of respondent no.1", can be construed as express and absolute NOC for continuation/absorption of the applicant under respondent no.3. We are of the considered view that it is not a case where keeping in view the relevant facts, rules and instructions, the respondent no.2 after grant of the NOC has sent the matter merely for information to the respondent no.1. What is apparent from the pleadings is that though the respondent no.2 has granted NOC, however, with the condition "subject to concurrence by respondent no.1", and after having the consultation/view of the respondent no.1, respondent no.2 has not varied with such view and has not reiterated its view for grant of the NOC.
20. In view of the aforesaid and also keeping in view the fact that before the Hon'ble High Court of Kerala in the case of Sundaresan Nair (supra), the facts, rules and the 28 OA No.367 of 2023 statutory provisions under consideration were entirely different than the one in hand. Accordingly, we are of the considered view that the judgment of the Hon'ble High Court of Kerala in Sundaresan Nair (supra) does not help the claim of the applicant.
21. Insofar as the law laid down by the Hon'ble Apex Court in the case of M/s M.S. Nally Bharat Engineering Co. Ltd. (supra), referred and relied upon by the learned senior advocate appearing for the applicant is concerned, there cannot be any dispute. However, nothing has been brought on record to show that the applicant has been treated unfairly or in any unfair manner. Thus, the said decision of the Hon'ble Apex Court is also of no help to the applicant.
22. We have carefully gone through the law laid down by the Apex Court in the case of A.L. Kalra (supra), para-19 of which has been reproduced hereinabove, nothing has been brought on record to enable us to come to the conclusion that the similarly placed persons have been treated differently. Therefore, the question of violation of Articles 14 and 16 of the Constitution of India does not arise. Accordingly, we are of the considered view that the 29 OA No.367 of 2023 law laid down by their Lordship in A.L. Kalra (supra) as well is of no help to the applicant. We are further supported in this regard in view of the fact that the applicant has made a bald assertion in the pleadings that the respondents no.1 & 2 have accorded and issued NOC for deputation/absorption under different organizations in favour of those similarly persons. Moreover, it is trite law that one is not entitled for negative equality.
23. Insofar the reliance placed on behalf of the applicant on the judgment of this Tribunal in Bhagat Singh (supra) in support of the argument that the facts subsequent to filing of the OA can also be taken into consideration by this Tribunal to mould the relief is concerned, we have no doubt about the same.
24. The law regarding deputation and or continuation on deputation and or absorption is settled. A deputationist can always and at any time be repatriated to his parent department to serve in his substantive position at the instance either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation, as held by the Hon'ble Apex Court in Kunal 30 OA No.367 of 2023 Nanda v. Union of India & Anr., reported in (2000) 5 SCC
362.
25. In the facts and circumstances, as precisely recorded hereinabove, we find no illegality in the action/orders passed by the respondents. However, as we have recorded hereinabove, that despite the proposal for NOC for continuation of the applicant for 6th year on deputation, i.e., from 24.11.2022 and also for his absorption under respondent no.3 by the respondent no.2, the respondent no.1 has only agreed and conveyed its NOC ex-post facto continuation of the applicant on deputation upto 10.02.2023 (i.e. date of his repatriation), however, no reason has been given through any communication/order or orders or in pleadings as to why the respondent no.1 has not agreed to the proposal made by respondent no.2 in the matter of grant of NOC in favour of applicant.
26. In view of the foregoing, the issue arises as to whether the applicant in the present OA is entitled to any relief. We are of the considered view that the applicant is entitled to know the reasons for non-issuance of NOC for his continuation on deputation for 6th year beyond 31 OA No.367 of 2023 10.02.2023 and also for his absorption under respondent no.3, of course with consequential benefits.
27. In view of the aforesaid, the present OA is partly allowing with the following orders and directions:
i) The competent authority amongst the respondent no.1 is directed to consider the proposal of respondent no.2 for issuance of NOC for continuation of the applicant on deputation for 6th year and or his permanent absorption under respondent no.3 and to dispose of the same by passing a reasoned and speaking order, as expeditiously as possible, but preferably within six weeks from the date of receipt of a certified copy of this order.
ii) If the requisite NOC is accorded and issued by respondent no.1 in favour of the applicant, the respondent no.3 shall consider the claim of the applicant for his continuation on deputation for 6th year starting from 11.02.2023 and or his permanent absorption under respondent no.3, keeping in view the material facts, rules and instructions on the subject and pass appropriate orders thereon, as expeditiously as possible, but preferably within four weeks of receipt of such NOC.32 OA No.367 of 2023
iii) However, in the facts and circumstances of the case, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) 'San.'