Central Administrative Tribunal - Delhi
Madhav Chaturvedi vs M/O Home Affairs on 8 November, 2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.2766/2017
Order reserved on 13th October 2017
Order pronounced on 8th November 2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K.N. Shrivastava, Member (A)
Madhav Chaturvedi
s/o Mr. Girish Chandra Chaturvedi
age about 43 years
r/o B-222, Pragati Vihar Hostel
Lodhid, New Delhi
..Applicant
(Mr. Anuj Kumar Sharma, Advocate)
Versus
Union of India & others through
1. The Secretary
Ministry of Home Affairs
North Block, New Delhi
2. Bureau of Police Research & Development
Through its Director General
Ministry of Home Affairs
NH-8, Mahipalpur, New Delhi
..Respondents
(Mr. Hanu Bhasker, Advocate)
ORDER
Mr. K. N. Shrivastava:
Through the medium of this O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following main reliefs:-
"i) To declare the action of the respondents in retrospectively repatriating the applicant to his parent department by violating terms and conditions of his appointment, as illegal, arbitrary and unconstitutional;2
ii) To quash and set aside the impugned order dated 16.8.2017 (Annexure A-1);
iii) To direct the respondents to allow the applicant to complete his deputation period."
2. The factual matrix of the case is as under:-
2.1 The applicant joined the Border Security Force (BSF) as an Assistant Commandant on 30.09.2000 through direct recruitment. In the year 2013, Bureau of Police Research & Development (BPRD) - respondent No.2 circulated requirement for filling up the post of Assistant Director, BPRD on deputation basis. This requirement was sent to all the concerned Central Government Departments.
2.2 The applicant, due to his personal circumstances, wanted a posting at New Delhi and thus applied for the said deputation. The responsibility of selecting a suitable candidate for the post was given to the Union Public Service Commission (UPSC). The short-listed candidates were called for interview by the UPSC on 02.11.2015, in which the applicant was selected for the post. He joined BPRD as Assistant Director on 19.08.2016 and was assigned the duty of Assistant Director (Modernization). 2.3 Respondent No.2, vide Annexure A-3 letter dated 03.06.2016, informed the Director General, BSF of the selection of the applicant as Assistant Director in BPRD on deputation basis for a period of three years.
This letter also indicated that the terms of deputation of the applicant to BPRD shall be governed by the DoP&T O.M. No.2/29/91-Estt. (Pay-II) dated 05.01.1994, as amended from time to time by the Government of India. The said O.M. has since been amended and a new O.M. dated 17.06.2010 (Annexure A-4) has come in its place.
32.4 The applicant, in addition to the charge of Assistant Director (Modernization), was also placed in charge of Assistant Director (Constructions) and later on posted as Assistant Director (Constructions) on substantive basis.
2.5 The applicant was placed in additional charge of Assistant Director (Administration) vide order dated 08.08.2017 in addition to his substantive charge of Assistant Director (Constructions).
2.6 The applicant was prematurely repatriated to his parent organization, i.e., BSF vide impugned Annexure A-1 order dated 16.08.2017.
Aggrieved by Annexure A-1 order, the applicant has filed the instant O.A. praying for the reliefs as indicated in paragraph (1) supra.
3. In support of reliefs claimed, the applicant has broadly pleaded the following grounds:-
3.1 Some fellow officers in BPRD were jealous of the fact that the applicant was handling important portfolios and getting recognition. Such officers conspired against the applicant and sent wrong information to the higher-ups. As a result of which, the impugned Annexure A-1 order has been passed by the respondents prematurely repatriating him to BSF. 3.2 The applicant's deputation to BPRD was for a period of three years.
His terms of deputation to BPRD are to be governed by the DoP&T O.M. dated 17.06.2010. In paragraph 9 of the said O.M., it is clearly stated that premature repatriation can only be done after providing the concerned employee three months' advance notice. No such advance notice has been given to the applicant.
43.3 Since the deputation tenure has been prescribed, the impugned premature repatriation order (Annexure A-1) is not only arbitrary and illegal but also stigmatic. Such an order could not have been passed without affording reasonable opportunity of being heard to the applicant. 3.4 The Hon'ble Supreme Court in the case of Union of India through Govt. of Pondicherry & another v. V. Ramakrishnan & others, 2005 SCC (L&S) 1150 has clearly held that although a deputationist may not have a right to continue in the post in question, but where it is for a specified time, it cannot be curtailed without giving reasonable opportunity to the affected person.
4. Pursuant to the notice issued, the respondents entered appearance and filed their reply, in which they have broadly averred the following important points:
4.1 The foremost criteria for appointing an officer on deputation in BPRD are his merit and continuous service to the satisfaction of the borrowing organization.
4.2 The applicant did not supervise the construction activity of the new BPRD Headquarter building at Mahipalpur, New Delhi. He even failed to give correct picture of the said construction to his higher-ups. Even his conduct towards his seniors was not up to the mark.
4.3 The applicant was given additional charge of Assistant Director (Administration) only for a period of two months when the officer holding that post was deputed on training. As there were several vacancies in BPRD, several officers have been assigned additional charges. 5 4.4 On the very next day of assigning him the additional charge of Assistant Director (Administration), i.e., 09.08.2017, the applicant wrote a letter to the Director General, BPRD directly without routing it through the proper channel, informing that he may not adhere to the office beyond the office timings as the post of Assistant Director (Administration) requires sitting beyond office hours, due to his pressing family constraints. In the process, the applicant had bypassed three of his senior officers in the hierarchy, namely, DIG, IG and ADG. The request of the applicant, however, was declined by the Director General, BPRD. 4.5 The applicant has not handed over the records even after the Annexure A-1 repatriation order was passed to his successor Assistant Director (Administration/Constructions).
4.6 An officer from uniformed Police Force is duty bound to rise to the call of duty and work for extended hours, if the need arises. The post of Assistant Director is meant only for police officers of State/UT and CAPF only. No other officers are eligible for the post. Such being the position, the applicant's contention that he cannot work beyond office timings amounted to indiscipline and insubordination.
4.7 The applicant has informed his senior officers in BPRD that he would not have applied for deputation in BPRD had he been aware of the fact that BPRD office would shift from CGO Complex to Mahipalpur. In this regard, a Committee of senior officers of BPRD has submitted a report dated 14.08.2017 (page 122 of F.No.3/58/2016-Admn.).6
4.8 The applicant had worked as Assistant Director (Constructions) for almost nine months and much belatedly had started complaining that he had been assigned a technical work, for which he did not have experience.
It is stated that the work of Assistant Director (Constructions) is only administrative in nature and involves monitoring the physical and financial progress of various construction projects of BPRD. 4.9 The applicant has wrongly alleged that the impugned Annexure A-1 repatriation order is dated 16.08.2017 whereas he has been relieved w.e.f. 14.08.2017 itself. It is stated that the order was signed on 14.08.2017 and since 15.08.2017 was a national holiday, order was served on the applicant on the next date, i.e., 16.08.2017.
4.10 The applicant has been repatriated because of his misconduct, lack of devotion to duty and unsatisfactory performance, as he refused to adhere to the office duty beyond the prescribed office timings. His performance was not satisfactory and his attitude towards government work was breeding indiscipline in the organization, which needed immediate corrective measures.
4.11 The applicant has not exhausted the departmental remedies available to him before approaching this Tribunal through this O.A.
5. The applicant filed rejoinder to the counter reply filed on behalf of the respondents, in which he has, more or less, reiterated his averments made in the O.A. In addition, he has placed reliance on certain judgments of this Tribunal and the Hon'ble Supreme Court, which we shall be referring to later in this order.
7
6. On completion of pleadings, the case was taken up for hearing the arguments on 13.10.2017. Arguments of Mr. Anuj Kumar Sharma, learned counsel for applicant and that of Mr. Hanu Bhasker, learned counsel for respondents were heard.
7. Mr. Anuj Kumar Sharma, learned counsel for applicant stated that the applicant has been prematurely repatriated vide the impugned Annexure A-1 order in flagrant violation of the terms of deputation prescribed in the DoP&T O.M. dated 17.06.2010 (Annexure A-4). He emphatically argued that neither any advance notice of three months was given to his parent organization, i.e., BSF nor to the applicant before issuing Annexure A-1 repatriation order. Mr. Sharma submitted that the premature repatriation of the applicant was illegal. In this regard, he relied on the following judgments of the Tribunal and Hon'ble Apex Court:
i) Sushovan Banarjee v. The Union of India & others (O.A. No.387/2010) decided on 08.09.2010 (Mumbai Bench)
ii) Sanjay Shiva v. Union of India & others (O.A. No.1640/2014) decided on 29.07.2015 (Principal Bench)
iii) Nawal Kishore Sharma v. National Highways Authority of India (O.A. No.278/2017) decided on 27.02.2017 (Principal Bench) Apex Court
iv) Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36
v) Surath Chandra Chakrabarty v. State of West Bengal 1971 AIR 752 8
vi) Mohinder Singh Gill & another v. The Chief Election Commissioner, New Delhi & others, AIR 1978 SC 851
vii) Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia & others (Civil Appeal No.32 of 1999) decided on 17.12.2003
viii) Union of India through Govt. of Pondicherry & another v. V. Ramakrishnan & others (supra)
viii) State of Punjab v. Bandeep Singh & others (2016) 1 SCC 725;
and
ix) Brajendra Singh Yambem v. Union of India & another, (2016) 9 SCC 20
8. Per contra, Mr. Hanu Bhasker, learned counsel for respondents submitted that applicant's premature repatriation got necessitated due to his indisciplined attitude and lack of devotion to work. Mr. Bhasker also reiterated the averments made in the counter reply of the respondents.
9. We have heard the submissions of learned counsel for the parties and have also perused the pleadings and documents annexed thereto.
10. Admittedly, the applicant was selected for deputation to BPRD through a selection process conducted by the UPSC. The Annexure A-3 communication from BPRD to the Commandant (Pers), BSF clearly indicates that the terms of deputation of the applicant shall be governed as per DoP&T O.M. dated 05.01.1994, as amended from time to time by the Government of India. The said O.M. has been amended and the amended O.M. dated 17.06.2010 is at Annexure A-4. This O.M. of DoP&T prescribes 9 the terms of the deputation elaborately. In paragraph 9 of the O.M., situation of premature reversion of deputationist to parent cadre has been dealt with and the same is reproduced below:-
"9. Premature reversion of deputationist to parent cadre.
Normally, when an employee is appointed on deputation/ foreign service, his services are placed at the disposal of the parent Ministry/Department at the end of the tenure. However, as and when a situation arises for premature reversion to the parent cadre of the deputationist, his services could be so returned after giving an advance notice of at least three months to the lending Ministry/Department and the employee concerned."
11. In the present case, it is quite evident that the respondents have not adhered to the terms of deputation prescribed in the DoP&T O.M. dated 17.06.2010 before ordering premature repatriation of the applicant vide the impugned Annexure A-1 order. No advance notice has been given either to the applicant or to his parent organization, i.e., BSF.
12. In paragraph 5 of the counter reply, the respondents have clearly stated that applicant's repatriation had been ordered due to his misconduct, lack of devotion to duty and unsatisfactory performance (sic), etc. In view of the reasons mentioned by the respondents, in their reply, the impugned order perceptibly is stigmatic. Even otherwise also, when an officer is repatriated prematurely without completing his specified deputation period, his conduct and capability get shrouded with suspicion.
13. The Hon'ble Apex Court in the case of Union of India through Govt. of Pondicherry & another v. V. Ramakrishnan & others (supra) has clearly held that the specified deputation period of a deputationist cannot be curtailed without giving reasonable opportunity of 10 being heard and deputationist's position cannot be considered to be so tentative and vulnerable as to throw him out at the whims and fancies of a particular person. Paragraph 32 of the said judgment reads thus:-
"32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others, (2004) 2 SCC 65."
14. Undisputedly, the applicant has been repatriated prematurely without giving him or to his parent organization any advance notice as contemplated in paragraph 9 of the DoP&T O.M. dated 17.06.2010. As held by the Hon'ble Apex Court in the judgments cited supra, advance notice to a deputationist before ordering his repatriation prematurely is a mandatory requirement, which the respondents have failed to observe in this case. The averments made in the counter reply of the respondents also make it clear that the premature repatriation was not simplicitor. The respondents have given specific reasons, although not recorded in the impugned order, as to dissatisfactory performance of the applicant, his actions amounting to insubordination and indiscipline. Taking all these things into consideration, we are of the view that the impugned Annexure A-1 order is not only illegal but stigmatic as well. Such an order should not have been passed without following the principles of natural justice as well as without 11 adhering to the stipulated conditions in paragraph 9 of the DoP&T O.M. dated 17.06.2010. The judgments of this Tribunal as well as Hon'ble Apex Court cited in paragraph (7) supra, also support this viewpoint.
15. In the conspectus of discussions in the foregoing paragraphs, the O.A. is allowed. Impugned Annexure A-1 order dated 16.08.2017 is quashed and set aside. Respondents are directed to allow the applicant to rejoin BPRD within two weeks from the date of receipt of a copy of this order. The period from 14.08.2017, the date when the applicant was relieved by Annexure A-1 order, and till he rejoins the BPRD shall be treated as period spent on duty. The respondents, however, have liberty to repatriate the applicant to his parent department, i.e., BSF, by following the due process as contemplated in DoP&T O.M. (ibid) and keeping in mind the judgments of this Tribunal as well as Hon'ble Apex Court cited in paragraph (7) above.
No order as to costs.
( K.N. Shrivastava ) ( Justice Permod Kohli ) Member (A) Chairman /sunil/