Central Administrative Tribunal - Delhi
Sanjiv Chaturvedi vs M/O Environment And Forests on 27 April, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.945/2016
MA No.1174/2016
Order Reserved on: 25.04.2016
Pronounced on:27.04.2016
Hon'ble Mr. Justice M.S. Sullar, Member (J)
Hon'ble Mr. K.N. Shrivastava, Member (A)
Sanjiv Chaturvedi, IFS,
Son of Shri D.S. Chaturvedi,
Aged 40 years,
Resident of House No.D.II 8,
Gate No.5, Western Campus,
Ansari Nagar, New Delhi-110029.
-Applicant
(Applicant in person)
-Versus-
1. Union of India (Appointment Committee of Cabinet)
Through Cabinet Secretary,
Rashtrapati Bhawan,
New Delhi-110001.
2. The Establishment Officer,
Department of Personnel and Training,
Government of India,
New Delhi.
3. The Secretary,
Ministry of Environment, Forest and Climate
Change, Govt. of India,
Indira Paryavaran Bhawan,
Jor Bagh, New Delhi-110023.
-Respondents
(By Advocate Shri Rajesh Katyal)
2
(OA No.945/2016
MA No.1174/2016)
ORDER
Mr. K.N. Shrivastava, Member (A):
This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985. The reliefs claimed by the applicant in the OA read as under:
"a. Quash/set aside the order dated 15.02.2016 thereby directing the Respondents to allow the proposal for the Applicant's inter cadre Deputation to GNCTD.
b. Summon the records of the case as also those of the above cited similar cases where inter-cadre deputation was permitted without any hitch.
c. To initiate appropriate proceedings against respondent no.3 for violating the order dated 05.11.2015 issued by Hon'ble Tribunal in OA No.3684/2015 and order dated 06.05.2015 issued in O.A. No.661/2015 by seeking fresh consent from Government of Uttarakhand.
d. allow the application with costs.
e. pass any other order deemed fit under the facts and circumstances of the case.
2. The brief facts of this case are as under.
2.1 The applicant belongs to 2002 batch of Indian Forest Service of Haryana Cadre. His cadre was later changed to Uttrakhand with the approval of the Competent Authority. He is presently posted as Deputy Secretary at All India Institute of Medical Sciences (AIIMS), New Delhi under the Central Staff Scheme (CSS) of Department of Personnel & Training (DOPT), Government of India, under the Ministry of Health and Family Welfare (MOHFW). He was also assigned some additional 3 (OA No.945/2016 MA No.1174/2016) responsibilities viz. CVO, Estate Section, General Section, etc. The additional responsibilities were later withdrawn. 2.2 The Chief Minister of Government of National Capital Territory of Delhi (GNCTD) on 16.02.2015 wrote to Minister of State, Ministry of Environment, Forest and Climate Change (MOEFCC) seeking services of the applicant to his office as OSD (Annexure A-9). Pursuant to that on 03.06.2015, MOEFCC wrote to MOHFW for granting NOC for the inter- cadre deputation of the applicant to GNCTD. As there was delay taking place at the end of the MOHFW, the applicant approached this Tribunal in OA-3684/2015, which was disposed of on 16.10.2015 with the following directions:
"7. In view of the above, the respondent No.2 (MOEFCC) is directed to take a decision on the aforesaid proposal for inter-cadre deputation of the applicant by 06.11.2015 and communicate the said decision to the applicant immediately thereafter. Needless to say that if any authority is required to be consulted by the respondent No.2, the same shall be done immediately and necessary decision shall be taken within the above mentioned time."
2.3 Thereafter, MOHFW issued the requisite NOC on 30.10.2015. As his case for inter-cadre deputation was getting again unduly delayed, the applicant once again approached this Tribunal in MA-3714/2015 in OA-3684/2015, which was disposed of by the Tribunal on 05.11.2015 with the following direction:
4(OA No.945/2016
MA No.1174/2016) "4. Having regard to the fact that the NOC from the Ministry of Health and Family Welfare has already been received by Ministry of Environment Forest and Climate Change on 30.10.15 and according to the applicant in the OA the Govt. of Uttrakhand has also on 04.11.2015 issued the NOC, we dispose of the MA directing the respondents to place the matter before DOP&T immediately on the next day of receipt of the NOC from the Uttrakhand so that the matter may be placed before ACC immediately thereafter.
5. The aforesaid exercise relating to the decision to be taken on the request of inter-cadre deputation shall be completed by 05.01.2016.
6. MA is accordingly disposed of."
2.4 The respondent no.3 vide the impugned Annexure A-1 order dated 15.02.2016 has declined the request of the applicant for his inter-cadre deputation to GNCTD on the ground that the NOC issued by the Government of Uttrakhand (GOU) on 16.11.2015 has since been withdrawn by them vide their letter No.60/X-1-2016-04(20)/2013 dated 06.01.2016 and hence inter-cadre deputation of the applicant under Rule 6(1) of IAS/IPS/IFS (Cadre) Rules cannot be acceded to. The said order also mentions that DOPT vide OM No.37/18/2015-
EO(SM-I) dated 04.02.2016 has informed that the Appointments Committee of the Cabinet (ACC) has seen the proposal of the Ministry (MOEFCC). The operative part of the order reads as under:
"The request of Shri Sanjiv Chaturvedi, IFS (UTT:2002) for his inter-cadre deputation to the Government of National Capital Territory of Delhi for aforementioned 5 (OA No.945/2016 MA No.1174/2016) reasons cannot be acceded to. The representations dated 05.11.2015, 26.112015, 17.12.2015 and 04.01.2016 submitted by Shri Sanjiv Chaturvedi, with reference to his inter-cadre deputation to NCT of Delhi, stand disposed off accordingly."
2.5 Aggrieved by the Annexure A-1 impugned order the applicant has filed the instant OA.
3. Pursuant to the notices issued the respondents entered appearance and also filed their reply. The applicant thereafter filed an additional affidavit. With the completion of the pleadings, the case was taken up for hearing the arguments of the parties on 25.04.2016. The applicant, party in person and Shri Rajesh Katyal, learned counsel for the respondents argued the case.
4. The applicant, besides highlighting the points raised by him in the OA and in his additional affidavit, submitted that despite the NOC from the GOU issued on 06.11.2015, the respondents have delayed the processing of his case for ACC's approval for the inter-cadre deputation. He also drew our attention to the order of this Tribunal in MA-3714/2015 in OA- 3684/2015 in which the respondents were specifically directed to place the matter before the DOPT for approval of the ACC. He said that despite the ibid direction of this Hon'ble Tribunal, the respondents have not yet obtained the approval of the ACC. He alleged that the respondent no.3 has been unnecessarily 6 (OA No.945/2016 MA No.1174/2016) procrastinating over the matter and his case for inter-cadre deputation is not being placed before the ACC.
5. Per contra, learned counsel for the respondents submitted that in compliance with this Hon'ble Tribunal's directions contained in Annexure A-16 order dated 05.11.2015, the matter had been placed before the ACC, but they have not considered it in the light of the fact that the NOC issued earlier by the GOU on 06.11.2015 has since been withdrawn on 06.01.2016. In support of his arguments, the learned counsel placed on record OM No.37/18/2015-EO(SM- I) dated 04.02.2016, which reads as under:-
"Subject: Inter cadre deputation of Shri Sanjiv Chaturvedi, IFS (UK:2002) to the Government of National Capita Territory of Delhi as Officer on Special Duty to the Chief Minister.
The undersigned is directed to refer to Ministry of Environment, Forest & Climate Change OMs No.17016/02/2015-IFS-I dated 11.01.2016 &15.01.2016 proposing non-consideration of Shri Sanjiv Chaturvedi's inter-cadre deputation to the Government of National Capital Territory of Delhi in view of the facts and circumstances of the case stated therein.
2. It is intimated in this regard that the Appointments Committee of the Cabinet has seen the aforesaid proposal of the Ministry."
The learned counsel also placed on record OM No.17016/02/2015-IFS-I dated 11.01.2016 and OM of even number dated 15.01.2016; both issued by the MOEFCC. The learned counsel vehemently argued that the inter-cadre 7 (OA No.945/2016 MA No.1174/2016) deputation of the applicant cannot be considered by the ACC in view of NOC from GOU not being in place. He said that the applicant in fact should challenge the communication dated 06.01.2016 from GOU whereby the NOC issued earlier on 06.11.2015 has been withdrawn.
6. Replying to the arguments of the learned counsel for the respondents; the applicant submitted that respondent no.3 has not been fair to him and as a matter of fact had been putting a lot of pressure on the GOU for the withdrawal of the NOC issued on 06.11.2015. He said that vide Annexure A-17 letter dated 26.11.2015, MOEFCC had sent the proposal for inter-cadre deputation of the applicant to DOPT (respondent no.2) who instead of placing the matter before the competent authority (ACC), returned the proposal back to respondent no.3 on 15.12.2015 raising a frivolous issue of cooling off (Annexure A-18). He said that such an action of the respondent no.2 was absolutely unwarranted in view of the fact that in several cases the Competent Authority (ACC) has waived off the requirement of cooling off which includes the cases of Shri Mohd. Sahid, IAS (GJ 1998), Shri Maninder Singh, IAS (AM, 1999), Shri Abhijit Sinha, IAS (NL, 2000) and Shri R.K. Kataria, IAS (KN, 1999). He drew our specific attention to Annexure A-8 OM dated 08.11.2014 of DOPT with regard to policy on inter-cadre deputation of All India Service 8 (OA No.945/2016 MA No.1174/2016) Officers and said that he fulfils all the criteria relating to the inter-cadre deputation to GNCTD vis-a-vis ibid OM. He alleged that the Annexure A-20 (colly.) letter dated 22.02.2015 from respondent no.3 to GOU was sent with ulterior motives to bamboozle the State Government to withdraw its NOC issued on 06.11.2015. He said that the respondent no.3 in this letter had raised extraneous issues of GOU having shortage of IFS officers for implementing several externally added crucial projects, mandatory cooling off etc. notwithstanding the fact that the State Government (GOU) vide Annexure A-23 letter dated 12.10.2015 has already written to respondent no.3 that they would not like to send more IFS officers on central deputation. He further alleged that it was under tremendous pressure brought in by respondent no.3 that the GOU finally buckled under pressure and vide their Annexure A-24 letter dated 06.01.2016, ultimately decided to withdraw the NOC already issued to the applicant for the inter-cadre deputation to GNCTD. To buttress his arguments, the applicant also drew our attention to the judgment of Hon'ble Supreme Court in the case of State of U.P. & Anr. V. Johrimal, [(2004) 4 SCC 714] and in the case of State of Haryana v. State of Punjab & Anr.[(2002) 2 SCC 507], wherein it has been held as under
"In the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, 9 (OA No.945/2016 MA No.1174/2016) which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same."
7. The applicant further stated that the State Government has since restored the NOC vide their Annexure A-25 letter dated 24.02.2016 addressed to him. The relevant extract of the said letter reads as under:-
"5. It is also worthwhile to mention that it is outside the jurisdiction of Government of Uttarakhand to take a decision on waving off of the cooling off between one deputation and another deputation and only Government of India is competent to decide the same. If permission is granted in this regard from the level of Government of India, then State Government has no objection to the same."
8. The applicant further drew our attention to OM No.8/50/2013-CS-II(C) dated 26.05.2014 issued by DOPT in which para 30 (i) contains a decision of the ACC stating as under:
"(i) Officers of all the three All India Services (Including IPS) as well as Central Services who are appointed as PS/OSD without completing their " cooling off" should be reverted to their cadre once their term as PS/OSD ends for whatever reason. While appointing such officers as PS/OSD an informed consent should be obtained from them that they are willing to be appointed as PS/OSD in waiver of the "cooling off" requirement, fully aware of the condition that they would be reverted back to their cadre once their term as PS/OSD ends for whatever reason and that they would be further required to complete the "cooling off" afresh."10 (OA No.945/2016
MA No.1174/2016)
9. He argued that in view of the decision of the ACC as mentioned in the pre-para, the requirement of cooling off will not apply to his case for the inter-cadre deputation to GNCTD as he is being proposed for posting as OSD to the Chief Minister of GNCTD.
10. Concluding his arguments, the applicant prayed that respondent no.3 may be directed to place his proposal for inter-cadre deputation to respondent no.2 at the earliest, who, in turn, may be directed to place it before the Competent Authority (ACC) for a decision immediately thereafter. He also said that his current deputation to the Central Government would be ending next month and if the matter is not urgently placed before the ACC for consideration, the instant OA would itself become infructuous.
11. We have considered the arguments put-forth by the applicant and the learned counsel for the respondents and we have also perused the pleadings and the documents annexed thereto. This Tribunal vide order dated 05.11.2015 in MA- 3714/2015 in OA-3684/2015 had directed respondent no.3 to submit the proposal for inter-cadre deputation of the applicant to GNCTD to respondent no.2 for placing the same before the ACC for consideration. We find that in the OM No.3718/2015- EO(SM-I) dated 04.02.2016 from respondent no.2 to respondent no.3, it is only mentioned that the ACC has seen 11 (OA No.945/2016 MA No.1174/2016) the OM dated 11.01.2016 and OM dated 15.01.2016 of respondent no.3. It does not state anything with regard to the decision of the ACC on the inter-cadre deputation of the applicant to GNCTD. As such, we come to the obvious conclusion that the matter has not yet been considered by the ACC. Undoubtedly, a lot of delay has taken place in processing this case considering the fact that the request letter of the Chief Minister of GNCTD to Minister of State, MOEFCC is dated 16.02.2015. We would not like to comment on the various allegations made by the applicant against respondent no.3. We would like that respondent nos. 2 and 3 should strictly act in terms of Annexure A-8 OM dated 08.11.2014 of DOPT. Regarding waiving off the cooling off requirement of the applicant for his proposed inter-cadre deputation to GNCTD as OSD to the Chief Minister, we would like to say that it is solely within the domain of the ACC to grant special dispensation, as has been done in quite a few cases in the past or to take a decision otherwise. What is really important is that the ACC should take a decision in the matter.
12. We, therefore, direct respondent nos.2 and 3 to resubmit the proposal for the inter-cadre deputation of the applicant to the ACC within two weeks from the date of receipt of a certified copy of this order along with a copy of Annexure A-25 letter dated 24.02.2016 from the GOU to the applicant in which they 12 (OA No.945/2016 MA No.1174/2016) have said that it is up to the Government of India to decide waiving off the cooling off requirement of the applicant between one deputation to another and that if Govt. of India grants permission for inter-cadre deputation to GNCTD for the applicant, they have no objection to that. The ACC may take a decision in the matter as expeditiously as possible.
13. With the above direction the OA is disposed of.
14. No order as to costs.
15. In view of the order passed in the OA, no separate order is required in MA-1174/2016. The MA accordingly stands disposed of.
(K.N. Shrivastava) (Justice M.S. Sullar) Member (A) Member (J) 'San.'