Central Administrative Tribunal - Delhi
Bibhuti Bhushan Dash vs Union Of India Through on 14 March, 2014
Central Administrative Tribunal
Principal Bench
OA No.3515/2013
OA No.3700/2013
Order reserved on: 10.01.2014
Pronounced on: 14.03.2014
Honble Mr. G. George Paracken, Member (J)
Honble Dr. B.K. Sinha, Member (A)
OA No.3515/2013
Bibhuti Bhushan Dash
s/o late Achyuta Nanda Dash
R/o A-1/T 5 New Moti Bagh,
New Delhi 110 023
Working as Joint Commissioner of Security,
Civil Aviation. Applicant
Versus
1. Union of India through
Secretary,
Ministry of Home Affairs,
North Block,
New Delhi 110 001.
2. Secretary,
Deptt. Of Personnel & Training (DOPT)
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi 110 001.
3. Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi.
4. Secretary,
Civil Aviation, Rajiv Gandhi Bhavan,
Safdarjung Airport,
New Delhi.
5. Shri Dipesh Juneja,
Inspector General of ITBP,
CGO Complex,
New Delhi. Respondents
OA No.3700/2013
Bibhuti Bhushan Dash
s/o late Achyuta Nanda Dash
R/o A-1/T 5 New Moti Bagh,
New Delhi 110 023
Working as Joint Commissioner of Security,
Civil Aviation. Applicant
Versus
1. Union of India through
Secretary,
Ministry of Home Affairs,
North Block,
New Delhi 110 001.
2. Secretary,
Deptt. Of Personnel & Training (DOPT)
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi 110 001.
3. Secretary,
Civil Aviation, Rajiv Gandhi Bhavan,
Safdarjung Airport,
New Delhi. Respondents
Appearance: Sh. Arun Bhardwaj for the applicant in both
OAs.
Sh. Rajesh Katyal, counsel for R-1 & R-4 in
OA No. 3515/2013 and for R-1 & R-3 in OA
No. 3700/2013
Shri R.V. Sinha, counsel for R-3 in OA
No. 3515/2013.
O R D E R
By Dr. B.K. Sinha, Member (A):
Both the instant Original Applications filed by the applicant have been heard together and are being decided by means of a common order as the subject matter of these cases are inextricably intertwined and OA No. 3700/2013 forms a continuum of OA No. 3515/2013 vice versa. These cases, however, do not impugn any particular order but rather seek the following relief(s):-
Relief No. OA No. 3515/2013 OA No. 3700/2013
i) The respondents may be directed not to repatriate the applicant prematurely till he completes his full tenure. The respondents may be directed not to take any further action on applicants representation dated 7.1.2013, as the applicant already withdrawn the same in July, 2013.
ii) And allow the applicant to complete his full tenure as Joint COSCA with additional charge of COSCA, as per DOPT OM dated 20.05.2011 as ordered by the Appointment Committee of Cabinet vide communication of Ministry of Civil Aviation dt. 23/25.05.2011 and on 18/19.02.2013. The respondents may be directed not to disturb the present posting of the applicant on the basis of applicants representation dated 7.1.2013.
iii) And hold and declare the exercise of the respondents in preparing a panel of four names for Joint COSCA without proper circulation amongst eligible officers, and in the absence of a vacancy and without consulting UPSC as absolutely illegal.
All consequential benefits may be granted to the Applicant.
iv) All consequential benefits may be granted to the Applicant. Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant.
v) Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the Applicant. Cost of the proceedings be awarded in favour of the Applicant and against the Respondents.
vi) Cost of the proceedings be awarded in favour of the Applicants and against the Respondents.
2. It appears to us that the subject matter of the instant two OAs are relatively simpler compared to the lengthy pleadings and charged up arguments. The case of the applicant, briefly put, is that the applicant, being an IPS officer of 1987 batch allocated to West Bengal Cadre, applied for and was selected for the post of Joint Commissioner of Security, Civil Aviation (for short Jt. COSCA) in the Bureau of Civil Aviation Security (hereinafter referred to as BCAS) in the Pay Band-IV of Rs.37400-67000/- + Grade Pay of Rs. 10000/- following a selection process beginning with an open advertisement. The applicant joined his assignment w.e.f. 24.06.2011 on deputation. The learned counsel for the applicant submits that the Commissioner of Security (Civil Aviation) retired w.e.f. 31.10.2012 and one Anil Srivastava, an officer of the same rank was given the officiating charge leading to conflict and demoralization of the applicant. The applicant appealed for giving the charge to a senior officer or alternatively if no such senior officer was available then to himself. Consequent to this the applicant was put to undue harassment at the hands of the respondent no.4. The applicant submitted an application on 07.01.2013 directly to the Joint Secretary (Police-II), MHA requesting for placement with Sashastra Seema Bal (for short SSB) where he had served for 6 years. In the meantime, the charge of COCAS was made over to the applicant vide order dated 18/19.02.2013 where he continues to this very date. Further, the irritants, which had compelled the applicant to seek a lateral shift to the SSB were also removed with the impending retirement of the respondent no.4. Therefore, he requested for withdrawal of his request vide letter dated 01.07.2013. The grievance of the applicant is that after having slept over the matter for a period of six months, the respondent no.4 forwarded the application to the respondent no.1 which, vide its order dated 07.06.2013, issued an order of mutual transfer posting one Somesh Goyal, IPS (HP:84), IG, SSB to BCAS. Subsequently, the said Somesh Goyal protested against the lateral shift vide its letter dated 12.06.2013 on the ground that he is likely to be promoted as Addl.DG by the end of the year and would also be in line to promotion to the post of DG leaving him little time to make positive contribution to the post. This protest was accepted and the order of mutual transfer was kept in abeyance.
3. The applicant alleges that the respondent no.4 made it a prestige issue to dislodge the applicant and even after having received his letter of withdrawal the respondent no.4 continued to write to the respondent no.1 for posting of the respondent no.5 in OA No.3515/2013 against the post. The applicant further alleges that the Ministry of Civil Aviation (Bureau of Civil Aviation Security) Joint Commissioner of Security (Civil Aviation) Recruitment Rules, 2013 were notified in the Official Gazette vide Notification dated 05.09.2013. However, prior to the afore Notification, one time method of recruitment after having made a reference to UPSC as provided in DOPT OM dated 15.10.2013 had to be exhausted. The respondent no.4 and others failed to consider that the incumbent has still not vacated his post and had since requested for a withdrawal of his earlier prayer seeking lateral shift to SSB. Further, the name of the respondent no.5 was recommended to the MHA without having been circulated the post and invited applications from eligible class of people i.e. officers from the Central Government including the CPO and IPS and no advertisement was issued in the newspaper or even placed on the official website. The professional competence of the applicant was never in doubt as during the same period he was recommended for Presidents Police Medal for distinguished service and was awarded the same on 14.08.2013 (Annexure A-13). The applicant was never issued any warning or caution regarding any shortfall in his performance. Moreover, the applicant has alleged that the wife of respondent no.5 one Shaifali Juneja was posted as Director in the Ministry of Civil Aviation and was piloting the case of the respondent no.5 who had not even applied for this post. The learned counsel for the applicant submitted that the period of deputation of the applicant is for five years and the same cannot be curtailed without having issued a show cause against tangible charges. He has further contended that despite the recruitment rules having been notified only IPS officers are being considered. The applicant also alleges mala fide against the respondent nos. 4 & 5.
4. A counter affidavit has been filed on behalf of respondent nos. 1 & 4 contesting the OA. It has been submitted therein that there was nothing sacrosanct regarding tenure of five years and it could be altered even before the expiry of the tenure. The post in question being newly created and the recruitment rules not being available, the approval of the UPSC was obtained. The respondents further submitted that the Commissioner of Security one G.S. Malhi retired w.e.f. 31.10.2012, additional charge of this post was given to one Anil Srivastava, IAS (1985 batch) working in the Ministry as Joint Secretary. As the two officers namely Anil Srivastava and the applicant belong to different services and even in comparative seniority the former was senior to the applicant. Therefore, it was quite inappropriate on part of the applicant to have raised the issue of seniority. The respondents have further submitted that the applicant himself had been submitting applications for transfer on deputation to the post of Director, South Asian Association for Regional Cooperation (SAARC) and Advisor, National Disaster Management Authority and the same had been forwarded by the Department for due consideration. However, the applicant in violation of administrative norms had submitted his application for literal shift with SSB in January, 2013 directly to the respondent no.1 after an order for literal shift had been passed as a measure of inter-change vis-`-vis one Somesh Goyal, IAS (HP:84). The respondents have further questioned the allegation by the applicant that the post of Commissioner, BCAS had been deliberately kept vacant to undermine its working as the proposal for appointment had already been submitted to UPSC which wanted a certain certificates to be attached a time consuming process. The respondents have totally denied the averments of the applicant that he had been trying for his reversion to his parent cadre. To the contrary, his attempts to take up other assignments even merely after completion of one year of deputation and his attitude shown in seeking transfer to CAP and then its recall reflected an unstable mental frame which could be a dangerous potent considering the sensitivity of the assignment which he had held. The respondents had also rebutted the allegations made in paragraph 4.9 of the OA that the respondent no.4 was trying to delay in filling up the post of Commissioner Security, BCAS. It was the applicant, to the contrary, who would be benefitted by not filling up the post as he was drawing higher pay attached to the said post. In reply to para 4.11 of the OA, the respondents have submitted that the recruitment rules, which came into effect in the year 2013 by Notification dated 05.09.2013, did not provide for consultation with the UPSC. The previous consultation had been taken as one time measure. The respondents have also charged the applicant for misleading the Tribunal by incorrectly stating in paragraph 4.17 of the OA that he had withdrawn his application on 06.02.2013 whereas he had applied for withdrawal of his application only on 01.07.2013.
5. The applicant has filed a rejoinder application contesting the arguments contained in the counter affidavit of respondent nos. 1 & 4 wherein he has submitted that there is nothing wrong in the applicant seeking other assignments with National International organizations of repute. The act of his applying would not detract from his tenure. The prayer dated 07.01.2013 for a lateral shift to SSB had been the culmination of a long chain of events constituting victimization. However, when the conditions improved, the applicant felt that he was better placed to make significant contributions to his job and, therefore, he made a request for withdrawal of his earlier application for transfer. The applicant has further alleged that there was undue haste and total disregard to the recruitment rules and the process in trying to place the respondent no.5 in his place. The wife of respondent no.5 one Shefali Juneja was the Director in the Ministry of respondent no.4 and was instrumental in piloting the case of her husband. No open advertisement had been made irrespective of the fact that officers of other services including Central Armed Forces were also eligible for the assignment. The selection of respondent no.5 had already been made when the request was made for the first time to the respondent no1 for sending a panel. The learned counsel for the applicant strongly contended during the course of his arguments that a person has been selected even before the post of the applicant fell vacant and the later formalities of having a panel and making selection amounted to an eye wash.
6. The respondent no.3 that being the UPSC has also filed a counter affidavit stating that in the first instance the recruitment rules for the post of Joint Commissioner of Security, Civil Aviation had not been finalized. Therefore, the Ministry of respondent no.4 sent a proposal to the respondent no.3 for one time recruitment measure. However, the respondent no.3 had communicated vide its letter dated 06.05.2010 reiterating its earlier stand that now the post has been thrown open to a number of other services. Hence, the Commission would find it difficult to prescribe the field of selection exclusively from officers borne to a particular Service.
7. The respondent nos. 2 & 5 have not filed any counter affidavit to defend the OA.
8. We have heard the learned counsels appearing for the parties. Their arguments have by and large followed their pleadings and were confined to the afore. However, during the course of the arguments, the learned counsel for the applicant has submitted a copy of the DOPT OM dated 15.10.2013 which was ordered to be placed on record. We have also carefully perused the pleadings of the parties as also the documents submitted by them. We had also called for the relevant official file and accordingly File No.AV.13024/27/2007-SS(Pt.I) has been produced before us and we have perused the same. On the basis of the pleadings, documents, oral submissions made by the learned counsel for the parties, we think that the following issues are germane in deciding the controversy involved in the instant two OAs:-
Whether a tenure appointment by deputation can be aborted by the borrowing department?
Whether a request made for lateral transfer can be recalled prior to it has been acted upon?
Whether the facts and circumstances mentioned in the case justify the allegations of malice in law leveled against the respondent no.4?
What relief, if any, could be granted to the applicant?
9. In so far as first issue of the issues is concerned, the two contending views already stand stated: a tenure deputation is an appointment and it cannot be terminated without serving a show cause upon the deputationist; a deputationist has no right even if it is a tenure appointment. The respondents has relied upon the decision of the Honble Supreme Court in the case of Union of India versus Agya Ram [AIR 1977 SC 585]. In this case, the deputationist was a permanent employee in the Rehabilitation Department of the Punjab Government on deputation with the Government of India as Assistant Settlement Officer in the Ministry of Rehabilitation later alleviated to the post of Settlement Officer. He was reverted prematurely which the respondent in that case contested on the ground that he was in a temporary capacity and was, therefore, could not be reverted without 15 days prior notice as per the terms of his initial appointment. The Honble Supreme Court turned down this plea on the ground that there was nothing on record to suggest that his term of appointment as Assistant Settlement Officer would apply ipso facto to his tenure as Settlement Officer. In the case of Kunal Nand versus Union of India and Another [(2000) 5 SCC 362], the appellant, a member of CRPF and serving as an Assistant Sub Inspector in the said parent Department w.e.f. 01.01.1987, joined CBI on deputation in the same capacity on 01.08.1991. He, however, could not produce his certificates pertaining to graduation and was repatriated w.e.f. 31.01.1999. The appellate claimed permanent absorption which was turned down by the Honble Supreme Court on the ground that there are no rules governing such absorption unless his claim is based upon any statutory rules and regulations or orders having the force of law. A deputationist cannot assail and succeed in any such claim of absorption.
10. In yet another case of Sushovan Banerjee, IPS versus Union of India & Others [OA No.387/2010 decided on 08.09.2010 by the Mumbai Bench of this Tribunal], the applicant was an IPS officer who was reverted from the Childrens Film Society of India, Mumbai prematurely. The Tribunal after having examined his claim in light of the earlier case of the previous decisions in Purshottam Lal Dhingra versus Union of India & Others [AIR 1958 SC 36] with one R.L. Khullar being the intervener, and Union of India through Govt. of Pondicherry and Another versus V. Ramakrishnan and Others [2005(SCC) (L&S) 1150] stated that he did not stand the test of reasonableness. This Tribunal in the case of Asim Chaudhary versus Union of India and Others [OA No. 736/2013 decided on 17.07.2013] decided against a plea for completion of tenure appointment and the position has been upheld by the Honble High Court of Delhi vide its order dated 19.11.2013 in WP(C) No.4836/2013. Yet, in another case titled as R.P. Juyal versus Union of India and Others [OA No. 4137/2013 decided on 06.02.2014], this Tribunal has held that the general principles of law that deputationist has no right to continue on deputation holds good. However, the cases would have to be judged on their individual merit. The claim of the applicant for completion of tenure was dismissed considering the particular circumstances of the case.
11. However, the respondent no.4 has categorically stated that at no time they had recommended for the premature repatriation of the applicant. In the light of this averment, any further discussion on this issue would only be an exercise in academics. Yet, it has been included amongst the issues only to set the facts straight that a deputationist has no right to continue on deputation even on tenure appointment but much would depend upon circumstances of the case.
12. This issue stands answered accordingly.
13. In so far as the second issue is concerned, it is to be taken note of that the facts as could be gathered from the official file produced by the respondents. The applicant had submitted his application for a lateral shift to SSB vide his letter dated 07.01.2013, which reads as follows:-
Subject: Application for being considered for assignment with Central Armed Police Forces.
Sir, I am B.B. Dash, (W.B.: IPS RR 1987) currently serving on deputation with Bureau of Civil Aviation Security, Ministry of Civil Aviation as Joint Commissioner of Security (Civil Aviation) w.e.f. 24.06.2011. In my previous deputation, I have served for six years with Sashastra Seema Bal (SSB) as Commandant and Deputy Inspector General. My brief bio-data is enclosed herewith.
I shall be grateful if I may kindly be considered for assignment with a Central Armed Police Force. This letter was submitted directly to Joint Secretary (Police-II) in the office of respondent no.1 along with an enclosure of his bio-data. No reasons have been assigned for seeking this lateral shift. After this, the applicant also applies for the post of Adviser, National Disaster Management Authority, which is duly forwarded by the respondent no.4. Before this, the applicant has applied for the post of Director, SAARC Disaster Management Centre, which was forwarded vide OM dated 14.11.2012 by the Ministry of respondent no.4. The applicant, with the approval of the ACC, was handed over the additional charge of Commissioner (Civil Aviation Security) till posting of a regular incumbent vide order dated 18/19.02.2013, which reads as under:-
In compliance to DoPTs Office Memorandum No.16/15/2012-EO(SM) dated 6th February, 2013, Shri B.B. Dash, Joint Commissioner of Security (Civil Aviation) will function as in-charge Commissioner (Civil Aviation Security) till a regular incumbent is posted. The ACC had also directed early completion of the selection process for the post of Commissioner (CAS) vide its OM dated 06.02.2013. After this, we find that the respondent no.1 has issued the OM dated 08.06.2013 with the approval of the competent authority in regard to lateral shifting of the applicant to SSB vis-`-vis one Somesh Goyal, IPS (HP:84), IG, SSB. The said Somesh Goyal protested against the posting on the ground as have been detailed earlier while stating the arguments. Subsequently, one finds a letter from the respondent no.4 dated 12.06.2013 to the respondent no.1 asking for the posting of the respondent no.5 in place of the applicant. Thereafter, on 01.07.2013 there is a request from the applicant withdrawing his earlier application (page no.356 of the official file).
14. There appears to be no rules or guidelines governing the withdrawal of request of transfer. However, the nearest clarification would be submission of resignation and its withdrawal. In this regard, the commonly followed rules are that the resignation becomes effective when it is accepted and the government employee is relieved of his duties. Where the government servant submits gives in writing to the appointing authority for withdrawal of his earlier letter of resignation before its acceptance, the resignation will deem to have been technically withdrawn and there would be no question of accepting the resignation. There is also a provision prescribed for withdrawal of resignation under Rule 26 (4)(2)(6) of the CCS (Pension) Rules, 1972 which correspond to Article 418 (b) of the Civil Services Regulations. Rule 26(4) of the CCS (Pension) Rules, 1972 is extracted hereinbelow:-
(4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely :-
(i) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation ;
(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper ;
(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days ;
(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.
Here, we draw the golden mean that a letter for transfer would become effective from the date the authority to whom it is addressed acts upon it and issues order of transfer. However, there is a second condition which governs that the applicant must be relieved. Here, we find that it is an admitted fact that the request for transfer should have been routed through the respondent no.4 whereas it was submitted directly to the respondent no.1. The request was complete when the lateral shifting was ordered appointing Somesh Goyal. However, the same did not take effect in view of the objections made by Somesh Goyal. Therefore, the second part of the golden rule becomes applicable that it had not been acted upon. Since the applicant retained the charge, the post was not vacant and, to our opinion, withdrawal letter dated 07.01.2013 would be in order.
15. In so far as the third issue is concerned, the facts of the case and the sequence of events have already been narrated. It is apparent from the records submitted by the department that the respondent no.4 made a request to the respondent no.1 vide DO letter dated 12.06.2013 seeking posting of respondent no.5. For the sake of clarity, the contents of the afore letter are extracted herein below:-
Dear Sir, This refers to my discussion with you about a week back regarding the post of Joint Commissioner of BCAS under my Ministry. As I mentioned to you, the post needs an officer of progressive mind set. You had desired that I should identify a suitable officer who could replace Shri Dash. In the meanwhile, MHA has swapped Shri Das with Shri Somesh Goyal (HP:84), IG, SSB vide O.M. No.I-21017/03/2012-IPS III dated 7.6.2013. Shri Goyal me4t me yesterday and indicated his unwillingness to work in the BCAS.
2. You would appreciate that the job requirements of the BCAS posts are quite different from those of typical police organizations. The officers of BCAS have to work as security regulators who, besides acting as regulator, should also act as friend, philosopher and guide for the sector as well as for the regulated entities. Keeping these requirements into consideration, I have identified Shri Dipesh Juneja, IPS (UP:1992) for the post of Joint Commissioner of BCAS, who is presently working as IG in ITBP and is posted at New Delhi.
3. I shall be grateful if Shri Dipesh Juneja is posted in place of Shri B.B. Dash and the posting order of Shri Somesh Goyal is cancelled.
16. This appears to have followed by another DO letter dated 08.07.2013 casting aspersion on the part of the applicant as below:-
As you are aware, BCAS is safety regulator for civil aviation sector and plays a very crucial role in the growth of the sector. A senior functionary like Joint Commissioner of BCAS should be a balanced officer who can maintain equilibrium between the sectoral growth and its safety regulation. From this point of view, I have written to your predecessor (copy enclosed) seeking transfer of Shri B.B. Dash from BCAS and requesting for posting of Shri Dipesh Juneja, IPS (UP:92) in his place. I request you to kindly consider it. It is apparent from above that the mind of respondent no.4 to post the respondent no.5 had already been made up and other formalities were being completed just as a proforma exercise.
17. We also take into account the fact that the Ministry of Civil Aviation (Bureau of Civil Aviation Security) Joint Commissioner of Security (Civil Aviation) Recruitment Rules, 2013 had already been approved and were on the verge of notification which provided that the recruitment was to be made in the following manner:-
Deputation:
Officers of the Central Government (including officers of the central police organization and officers borne to Indian police service):-
(A)(i) holding analogous post on regular basis in the parent cadre or department; or
(ii) with two year service in the grade rendered after appointment thereto on a regular basis in PB-4 (Rs.37400-67000 and or grade pay of Rs.8900 or equivalent in the parent cadre or department; and (B) Possessing 10 years experience in dealing with security aspects including framing of policy and its monitoring.
Note 1:- Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization ro department of the Central Government shall ordinarily not exceeding five years. The maximum age limit for appointment by deputation shall not be exceeding 56 years as on the closing date of receipt of applications.
Note 2:- For the purpose of appointment on deputation basis, the service rendered on a regular basis by an officer prior to 1st January 2006 the date from which the revised pay structure based on the Sixth Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding grade pay or pay scale extended based on the recommendations of the said pay Commission except where there has been merger of more than one pre-revised scale of pay in to one grade with a common grade pay of pay scale, and where this benefit will extend only for the post for which that grade pay or pay scale is the normal replacement grade without any up-gradation.
18. Surely, the respondent no.4 cannot be said to be unaware of this provision. Hence, to our mind, the respondent no.4 has committed a grave error in not advertizing this post either by placing it on website or giving wide circulation amongst the members of services who were eligible to apply.
19. The clinching proof in this regard is contained in DOP&T OM dated 15.10.2013. For the sake of clarity, the afore OM which self-contained by nature, is being reproduced hereunder:-
Sub: Appointment to the post of Joint Commissioner of Security (Civil Aviation), Bureau of Civil Aviation Security.
The undersigned is directed to refer to Ministry of Civil Aviations D.O. No.AV.13026/27/2017-AS(Pt.I) dated 23.09.2013 on the subject mentioned above.
2. While examining the proposal, the competent authority has made the following observations:
The tenure of the present incumbent, Shri Bibhuti Bhusan Dash, IIPS (WB:87) as Joint Commissioner of Security, Civil Aviation (Jt. COSCA) in Bureau of Civil Aviation Security is upto 23.06.2016. The proposal of the Ministry speaks of a representation from Shri Dash. However, a copy of the representation of Shri Dash which formed the genesis of this proposal has not been provided. Further, on seeking clarifications, instead of sending a copy of the representation of Shri Dash for his repatriation, the Ministry have provided a copy of the application submitted by Shri Dash to MHA for considering his name for an assignment with a Central Armed Police Force. This in no way means request for repatriation. Further, request for consideration of name does not mean selection. It is also understood that later Shri Dash had withdrawn his request for consideration of his name for assignment in para-military forces. Hence, the very basis and sanctity of the proposal has not vitiated. Also, the MHA recommended the panel on subsequent date without taking note of his withdrawal of application.
The second and the changed plea of the Ministry of Civil Aviation that the replacement of Shri Dash has been sought on administrative grounds also does not seem very logical. It is understood that Shri Dash has been awarded with Presidents Police Medal for distinguished Services on 15.08.2013 on the recommendations of the Ministry of Civil Aviation.
The process of selection of new incumbent has to be, initiated by the administrative Ministry, in the instant case the Ministry of Civil Aviation. However, it appears that the process for selection has been initiated directly by the Ministry of Home Affairs. Further, if Shri Dash is inefficient or there are some solid grounds for his repatriation, the due process of law has to be followed by giving him a notice under conduct rules and also for his repatriation. Only after taking into account his representation, further course of action should have been taken. The principle of Natural Justice seems to have been not followed in the instant case.
As per the Recruitment Rules, the post has been proposed to be filled up on deputation. The category of people who are eligible to come on deputation has also been indicated in the RRs. In such a set of RRs, there is no question of picking a few individual and preparing a panel out of them. Every Central Government officer has to be treated on equal footing giving opportunity to apply to all of them and for this, the post is required to be advertised. Yet again, the tenure of any officer on deputation has to be strictly as per the consolidated guidelines for deputation of Group A and B officers.
A complaint from Shri Prashant Dighe alleged involvement of Smt. Shefali Juneja, Director (Security) in the Ministry of Civil Aviation in the whole process. Even if we accept the clarification given by the Ministry of Civil Aviation, it hardly need any emphasis, that the selection has been done in blatant violation of existing rules. Though Shri Dighe subsequently withdrew his complaint but the signatures on both the letters do not tally. This gain speaks of interference and wrong doings at some levels.
Further, it may not be appropriate to bring an officer to the Ministry, when the spouse of the officer is already working at a senior level in the same Ministry. Such an attempt to bring in an officer is neither desirable nor in the interest of the Ministry/Organization.
3. Ministry of Civil Aviation is requested to provide comments on the above points on priority for further processing the proposal.
Sd/-
(Arvind Thakur) Under Secretary (EO-SM.II) Phone: 2309 3913 From the above, one has no alternative except to infer that there is malice in law. The Law Lexicon (3rd Edition 2012) defines the malice in law as under:-
Malice in law, Malice in law means implied malice.
Malice in law simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts.
Malice in law means an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite, or a desire to injure another.
Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. S.R. Venkataraman v. Union of India, AIR 1979 SC 49, 51.
Malice in law denotes absence of legal excuse. N.C. Jute Mills Versus Finance Ministry, AIR 1966 Cal. 151, 159.
20. This issue is according concluded in favour of the applicant.
21. Now we come to the fourth and the final issue as to what relief can be granted to the applicant. We are constrained to note that the applicant himself does not emerge in shining light. It is admitted that there could have been adverse circumstances under which he made repeated attempts to leave the department some for better prospects. However, when the additional charge of Commissioner Security (CAS) was handed over to him, he had ample opportunity to withdraw. He only withdrew after the order of MHA had been issued and the respondent no.4 had written for the placement of respondent no.5. Therefore, we find that the contention that the applicant was fully immersed in his work and that by continuing on this post he wishes to contribute substantially to the organization cannot be accepted on its face value. We also find that the dispute raised by the applicant vis-`-vis one Anil Srivastava regarding seniority was misplaced as has been already held. However, when we take into account the sequences narrated while dealing with issue no.3, the applicant appears to have been more wronged and he stands to suffer greater injury on account of the action of respondents. We have already clearly held that the action of the respondents in pushing through the appointment of respondent no.5 in his place is in contravention of their own rules and is, therefore, bad in law. We have further held that the charges of malice in law stick to the action of the respondents. However, we cannot grant all the reliefs sought by the applicant particularly the relief to continue on the additional charge of Commissioner Security (CAS). This is the decision of the department and would depend upon the suitability of the person. Therefore, the OA is allowed in the following terms:-
The prayer of the applicant for withdrawal of his earlier request on 01.07.2013 shall be deemed to be accepted and no further action is to be taken for his placement in terms of his request made vide his letter dated 07.01.2013 unless some conditions arise where there is a breach of discipline charges relating to integrity or gross unsuitability of the applicant for the post that he is holding or the applicant were to himself request through proper channel;
We are also to declare the exercise of the respondent in preparing a panel of four names for Joint COSCA without proper circulation amongst eligible officers and in absence of vacancies bad in law;
All consequential benefits will follow to the applicant;
There shall be no order as to costs.
(Dr. B.K. Sinha) (G.George Paracken) Member (A) Member (J) /naresh/