Central Administrative Tribunal - Delhi
Rajpal Yadav vs Union Of India on 29 June, 2015
Central Administrative Tribunal Principal Bench New Delhi O.A.No.3090/2014 Order Reserved on 26.05.2015 Order pronounced on 29.06.2015 Honble Shri Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Rajpal Yadav S/o Late Shri Hardwari Lal Age about 42 years Presently posted as ACIO-I/Exe, IB R/o 1091, Sector-3 R.K.Puram New Delhi. Applicant (By Advocate: Shri M.K.Bhardwaj with Shri Vikram Saini) Versus 1. Union of India Through the Secretary Ministry of Home Affairs North Block New Delhi. 2. Intelligence Bureau Government of India (Ministry of Home Affairs) Through the Director Gate No.7, North Block New Delhi. 3. Shri Manoj Yadava Joint Director, IB Hqrs Gate No.7, North Block New Delhi. 4. The Chairman Union Public Service Commission Dholpur House, Shahjhan Road New Delhi. 5. Indo-Tibetan Border Police Through the Director General Block-2, CGO Complex Lodhi Road New Delhi. Respondents (By Advocate: Shri R.N.Singh) O R D E R By Dr. B. K. Sinha, Member (A):
The short question is to be decided in the instant case is that whether the applicant, working on deputation with Respondent No.2 Intelligence Bureau (IB), has a right to be permanently absorbed?
The applicant has prayed for the following relief(s):
a) call for the record of the case for perusal.
b) Quash and setting aside the Memorandum dated 14.8.2014 issued by the Respondent No.2 (Annexure A-1), without application of mind, solely on the recommendations of the Screening Committee, whereby the permanent absorption of the applicant was not approved and the applicant was directed to be repatriated w.e.f. 11.9.2014, being illegal, arbitrary, malafide, discriminatory, unjust and unwarranted and in violation of the judicial pronouncements and principles of equity justice and good conscience.
c) Direct the Respondent No.2 to treat the applicant as deemed absorbed in their service from the date the applicant completed 5 years of service i.e. w.e.f. 16.12.2013, as per law laid down by the Honble Supreme Court in the case of Rameshwar Prasad v. Managing Director U P Rajkiya Nirman Nigam Limited and ors., 1999 Supp(2) SCR 593.
d) Direct the Respondent No.2 to consider the representations dated 5.4.2013, 26.6.2013, 3.9.2013, 29.5.2014 of the applicant for DIB Darbar and stay the enquiry proceedings till then.
e) Direct the Respondent No.2 to complete the record regarding maintenance of upto date APARs of the applicant, which have not been written by the Officers, as per Rules.
f) Direct the Respondent No.2 to accord permission to the applicant for pursuing LL.B. course (evening classes) from Delhi University.
g) Direct the Respondent to pay the costs of this petition to the Applicant.
h) Any other order or direction which may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice.
2. The instant Original Application is directed against the order dated 14.08.2014 rejecting the request of the applicant for permanent absorption in Respondent No.2-IB.
3. The facts of the case, in brief, are that the applicant was working as Inspector with Respondent No.5 Indo-Tibetan Border Police (ITBP). He joined with Respondent No.2 as ACIO-I/Exe. on 17.12.2008 on deputation and continued work there till 25.02.2010 when he was asked to indicate his willingness to be permanently absorbed in the IB-Respondent No.2. The applicant accordingly submitted his willingness vide his letter dated 25.02.2010 (Annexure A3). His case for permanent absorption was duly recommended by the sponsoring authority, i.e., his parent department (ITBP) and a `No Objection Certificate (NOC) was also obtained vide its letter dated 23.09.2011 (Annexure A5) from the parent organization. The applicant was also called by Respondent No.2 for interview on 09.05.2012, where the applicant claims that he fairly agreed to work with them and he was assured that he would be permanently absorbed, subject to completion of formalities. However, while the applicant hopefully continued to wait for his permanent absorption, a letter was issued by Respondent No.2 vide Memo. dated 20.11.2012 (Annexure A7) repatriating the applicant and relieving him from his duty, on account of completion of his extended deputation tenure of four years, to report to duty to his parent department, i.e., ITBP.
4. The applicant filed WP(C) No.7681/2012 before the Honble Delhi High Court seeking a writ of certiorari for quashing the order of repatriation dated 20.11.2012 and a mandamus to Respondent No.2 commanding to absorb him on permanent basis. The Honble High Court of Delhi vide its order dated 11.12.2012 (Annexure A8), stayed the operation of the order dated 20.11.2012.
5. The applicant further submits that the allegation of mala fide against Respondent No.3 - one Manoj Yadav, as he was unable to perform his personal duties assigned by him and to meet his personal expectations. He was, therefore, being continuously victimized/harassed by Respondent No.3 on this account.
6. On 22.06.2011, the applicant was issued a charge Memorandum stating that he has remained in police custody from 18.10.2009 to 19.10.2009 in connection with DDR No.39 dated 18.10.2009 under Sections 107/151 of Cr.PC registered at PS City Rewari on a complaint made by one Smt. Bhagwani Devi wife of Shri Lal Singh (Aunt of the applicant). He was thereafter produced before SDM, Rewari on 19.10.2009 and was enlarged on bail thereafter.
7. In the meantime, the applicant also applied for the post of DCIO/Exe in IB on 11.05.2011 but the same was not considered for the aforesaid disciplinary case being pending against him. It is the submission of the applicant that the case has been instituted against him under the provisions of law. This case has since been closed as disclosed in the communication to this effect to respondent No.2. The applicant was then extended the benefits as mentioned in para 4.13 of the OA.
8. The applicant submits that the respondents after having filed their counter affidavit on 21.02.2013 (Annexure A15) in WP(C) No.7681/2012, issued the charge memo dated 18.6.2013 (Annexure A11) that the applicant has failed to intimate the department regarding his alleged arrest on 18.10.2009 and the fact that he was subsequently enlarged on bail on 19.10.2009, thereby charging the applicant that he had tried to mislead the department regarding his arrest.
9. The applicant further submits that S.P., Rewari, had sent report stating that preventive action has been taken against the applicant, who had been arrested vide PCR No.39 dated 18.10.2009 under Sections 107/151 of Cr. PC dated 19.10.2009; he was produced before the Court of Sub-Divisional Magistrate (Civil) Rewari on that day and bailed out. A photocopy of the Kalendra entry was also attached along with the report. The applicant has also cited several instances of harassment and malafide action made against the applicant by respondent No.3 in para 4.17 of the OA including that disbursement of salary for the duty performed by the applicant on Saturdays and Sundays and other holidays was only being made after he was required to make a representation, while it had been disbursed to others in routine course; non-assigning of duty to the applicant on Saturdays and Sundays on account his filing a court case; making of false allegations against the applicant for not insuring the Government vehicle without there being any fault on his part; rejection of his case for selection as DCIO, despite the fact that he had appeared in the interview; and willfully withholding the extension of deputation of the applicant for the 5th year.
10. The applicant further filed WP (C) No.7099/2013 and CM No.3370/2014 before the Honble High Court of Delhi, challenging the charge-sheet dated 18.06.2013. This writ application was considered and rejected by the Honble High Court of Delhi vide its order dated 28.03.2014 (Annexure A/21), stating that a charge-sheet cannot be generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that it has been issued by an incompetent authority.
11. In the meantime, the earlier Writ Petition (C) No.7681/2012 and CP No.19420/2012 filed by the applicant was considered along with 5 others and allowed by the Honble High Court of Delhi vide its Order dated 25.03.2014 (Annexure A22) with the following order, as mentioned in Para 23 of the said order:
23. It is conceded by the parties that the Petitioners in these cases have only to be considered by the Screening Committee because concurrence has been given by the parent employer for absorption by the Respondent No.2. Respondent No.2 will accordingly consider the cases of the Petitioners for absorption in accordance with law including its office memorandums/circulars. Writ Petitions are allowed and disposed for in terms of the directions contained while disposing of W.P.(C) 239/2012 for passing of a speaking order by the Screening Committee of the Respondent No.2 within a period of eight weeks and the same be communicated to the Petitioners within a week thereafter. In compliance of the aforesaid directions of the Honble Delhi High Court, the impugned order came to be passed on 14.08.2014 (Annexure A1). The respondents in para 3 of the impugned order stated that his case for permanent absorption has been considered by the Screening Committee of IB on 19.06.2014, and was declined on account of his showing least interest in government work; his refusal to undertake the tasks assigned to him; a departmental inquiry is continuing against him on account of his alleged failure to intimate about his arrest by Haryana Police on 18.10.2009 and subsequently his being released on bail on 19.10.2009. It has been further stated in para 5 that the applicant has overstayed beyond his sanctioned deputation tenure of 4 years.
12. The applicant has challenged the aforesaid impugned order on the following grounds:
a) He alleges malafide against Respondent No.3 who at all times was harbouring ill will against him for his refusal to carry out his personal holding.
b) Though respondent No.5 had strongly recommended the name of the applicant for absorption in I.B. and that his deputation had been regularly extended from 17.12.2011 till date indicating his good conduct, yet his case was not recommended by the Screening Committee.
c) The ACRs for the period of deputation are all outstanding and the applicant has received commendation letter from a person, not less than the Director (IB).
d) The applicant assails the findings of the Screening Committee as being full of conjectures and surmises as he had never been arrested in criminal case and there is no case pending against him, as it had been clarified by the SP, Rewari. He was detained under Section 107/151 of Cr. PC and has incurred only civil liabilities.
13. The learned counsel for the applicant relied upon the decision of the Honble Delhi High Court in Anees Ahmed v. University of Delhi, in CWP No.3412/1997, decided on 03.05.2002 [2002 AIR (Del) 440] in support of his contentions.
14. The respondents have filed the counter affidavit denying all the averments of the applicant raised in the OA. It is the basic contention of the respondents that the case of the applicant has been considered by the Screening Committee which did not recommend him for absorption on the ground of pendency of departmental proceedings against him, and his suppression of the fact of his arrest by the Haryana Police on 18.10.2009 and his subsequent bail out by Rewari on 19.10.2009. The applicant has only a right for consideration and not for absorption. The decision of the Screening Committee was fully justified and final. The respondents have also denied the allegations of malafide. They submit that the applicant came on deputation to IB Headquarter on 17.12.2008 for a period of three years which was subsequently extended to 4th year. Prior to completion of his 4th year deputation period, his case was placed before the committee which recommended for deputation for a further period of one year from 17.12.2012 to 16.12.2013 so that his conduct could be watched further. The applicant was asked to indicate his willingness for his absorption vide Memo. dated 20.07.2012, in order to obtain NOC from his parent organization. The applicant submitted his written willingness on 23.07.2012, which was not forwarded further by his Controlling Officer on the ground that the applicants performance did not merit another extension of deputation. Since his Controlling Officer had not recommended his absorption, and he was overstaying beyond his deputation period, his repatriation order dated 20.11.2012 was passed in accordance with the extant rules.
15. Making a reference to the respondents stand taken up with the Haryana Police whose reply dated 25.04.2013 indicates that the applicant had been arrested under preventive sections of law and had been subsequently released on bail by the SDM, Rewari on 19.10.2009. The applicant had, however, failed to inform the department about his arrest.
16. It was in compliance to directive of Honble High Court of Delhi, the entire procedure of screening was undertaken de novo and the Screening Committee considered the case of the applicant for permanent absorption. It, however, did not recommend the case of the applicant for absorption on the grounds stated in the impugned order dated 14.08.2014.
17. The respondents have further submitted in their counter affidavit that the performance of the applicant was good for the first three years and, therefore, his term of deputation was extended by one year. However, his willingness for the 5th year extension was not forwarded by his parent department on account of the subsequent performance, which had clearly deteriorated, so much so that a departmental enquiry had to be initiated against the applicant.
18. The respondents relying upon the case of the Honble Apex Court in Kunal Nanda v. Union of India, (2000) 5 SCC 362 [Page 219 of the paper book] submitted that the basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department, and that he has no vested right to continue on deputation or to get permanently absorbed. The learned counsel for the respondents vehemently submitted that the IB is an organization protected under Article 33 of the Constitution of India and being sensitive in nature it has to be extremely careful as to whom it absorbs, lest its security gets compromised.
19. The applicant has submitted a rejoinder application which may early reiterated, what has already been stated in the OA. He has also relied upon OM dated 01.12.2010 (Annexure P34) and submits that he has acquired the right of absorption.
20. We have heard patiently the arguments of the learned counsels appearing on both sides and have also perused the entire pleadings on record. We have stated the issue at the very beginning that whether the applicant working on deputation with Respondent No.2 Intelligence Bureau (IB), has a right to be permanently absorbed? In order to place the matter into proper perspective, we start by examining that whether a person on deputation has a right to seek permanent absorption in borrowing organization?
21. This issue had been examined in series of decisions of this Tribunal and had been lead to rest effectively. In B. S. Parihar v. Union of India & Others, O.A.No.473/2014, decided on 13.09.2014, Manu/CA/0511/2014. The relevant paras are extracted below:
12. The learned counsel for respondents further submits that the stand of the respondents is in conformity with the decision of the Honble Supreme Court in the matter of Union of India Vs. S.A. Khaliq Pasa and Anr. (Civil Appeal No. 368-369 of 2009).
13. In case of Mahesh Kumar K. Parmar & Ors. Vs. SI.G. of Police & Ors. [2002(9) SCC 485], the petitioner was a Head Constable of Gujarat Police, who was brought into IB way back in the year 1991 on deputation. A provision was made in the Recruitment Rules of IB for recruitment either by direct recruitment or by transfer on deputation. The petitioner was permitted to continue in IB till 1999 even after enforcement of the Rules and was repatriated thereafter. The Honble Supreme Court refused to issue any writ of mandamus to the State Government to permanently absorb the petitioner, though it advised consideration of his application.
14. This matter has also been dealt with in detail wherein the same ratio has been discussed and covered. We find that though the applicant has raised the allegation of mala fide, but no one has been impleaded as party. Mala fide is easier to allege than to prove. Therefore, we do not find it sticky. We close this issue by simply holding that a deputationist has no right, as it would appear from the above decisions and no statutory rights have been violated.
15. We find that the direction of the Tribunal in OA No. 4112/2013 was only to consider the representation, which has been done and the same has been rejected on the basis of order dated 28.01.2014 (Annexure A4 at Page 64 of the Paper Book). It appears to be a speaking order and it goes into the facts in detail. For the sake of convenience, we extract the operative part of the aforesaid order:-
3. And whereas, in compliance of the directions of the Honble CAT, PB, New Delhi, the representation of the applicant for absorption along with all relevant facts was examined. Shri B.S. Parihar, SA/Exe. joined IB on deputation from CISF on 01.12.2008. Subsequently, he applied for permanent absorption in July, 2012. However, his supervisory officer did not recommend for his permanent absorption on the basis of his performance. The applicant again applied for absorption which was forwarded by his supervisory officer on 27.02.2013 without the recommendation of his Controlling Officer. As per our Absorption Policy dated 01.12.2010, a request for absorption should be recommended by an officer of the rank JD and above. Hence, his Controlling Officer who was a JD rank officer, was again requested to give his comments. However, this time too, his controlling officer did not recommend his case for permanent absorption.
4. Now therefore, after examining all the facts and circumstances of the case as detailed above, the department is of the view that Shri B.S. Parihar cannot be absorbed in IB. He is, therefore, repatriated w.e.f. 31.01.2014 to his parent department i.e. CISF.
16. Non-recommendation of the applicant for absorption by the controlling officer was one of the basis of the rejection. It is already an agreed position that notings in file cannot become the basis of decision. They are mere notes or recommendations of the view, and till such time, they are accepted, they cannot be considered. They are only form of recording an opinion and cannot be construed to be a decision of the competent authority. A Constitution Bench of the Honble Supreme Court in Bachhittar Singh Vs. State of Punjab (AIR 1963 SC 395), while considering the effect of notings in file held that such notings do not amount to an order. In para 11 of the judgment, their Lordships held as under:-
11. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Art.166 and then it has to be communication. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones. The Apex Court reiterated and followed the judgment of Bachittar Singh (supra) in State of Bihar etc. Vs. Kripalu Shanker (1987 AIR 1554).
17. Moreover, we are also to consider the fact that IB is an organization, which deals with counter espionage and intelligence within the country. It also undertakes good deal of covert operations, which have logic and consideration of their own. The courts cannot, therefore, drill down into every minor detail in every noting and cannot make it justifiable. Where this is to be so, the courts would be engaged overtime only in deciding the cases of absorption in the IB. It is a policy matter. In the case of Maharashtra State Secondary and Higher Secondary Education Board Vs. Paritosh Bhupesh Kumar Sheth, [1984(4) SCC 27], the Honble Supreme Court has held as under:-
28. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case. In the light of the foregoing discussion, we hold that the High Court was in error in striking down clauses (1) and (3) of Regulation 104 as illegal, unreasonable and void. We uphold the validity of these provisions. The above ratio propounded to have been further reiterated by this Tribunal in N. S. Raghav v. Union of India & Others (OA No.4266/2012, decided on 10.11.2014), Manu/CA/0591/2014. In this OA, besides reiterating its earlier position that absorption is not a right of deputationist, this Bench of the Tribunal had also taken into account the provisions of the policy as laid down in OM dated 01.12.2010. This OM indicates that the Government has taken such a strong view of persons proceeding on deputation overstaying on one pretext or the other including the expectation of permanent absorption in the borrowing organisation. This OM further provides for suo motto relieving of the person on deputation on completion of the term on deputation. Any departure from these instructions can only be accepted with the prior approval of DoPT. Para 18 of the Judgement is reproduced for clarity:
18. Coming to the second issue, we again call back upon the Office Memorandum dated 17.01.2012. The learned counsel for the applicant has raised doubt about its applicability to the facts of the present case. However, we find that these policy guidelines are very much applicable to all such cases which may happen to be attracted including the case in hand. They govern, subject to the guidelines issued by the DOP&T, the issue of deputation and absorption of combatised CAPFs personnel in other organizations. Under the Rules, those on deputation would be deemed to have been relieved on the date of expiry of the deputation period, unless the competent authority has, with requisite approvals, extended the period of deputation in writing, prior to such date of expiry. Further, in the event of an officer overstaying for any reason whatsoever, he would be liable to disciplinary action including the period of deputation being treated unauthorized overstay. For the sake of greater clarity, these provisions are being extracted herein below:-
8. The deputationist officer, including those who are presently on deputation would be deemed to have been relieved on the date of expiry of the deputation period, unless the competent authority has, with requisite approvals, extended the period of deputation in writing, prior to such date of expiry. It will be the responsibility of the immediate superior officer, in the Organization/Department, where the officer is on deputation to ensure that the deputationist does not overstay.
9. Furthermore, in the event of the officer overstaying for any reason whatsoever, he shall be liable to disciplinary action and any other adverse legal/service consequences which may include the period of unauthorized overstay not counting as service for the purpose of pension, etc. and that any increment due during the period of unauthorized overstay shall be deferred, till the date on which the officer rejoins his parent CAPF with cumulative effect. From the above it is clear that mere issue of NOC for extension does not confer any right that the extension has taken place. In this regard, the DOP&T OM dated 29.11.2006 clearly provides to the similar effect in order to discourage unauthorized overstay at the places of deputation. It also stipulates that a person shall be deemed to be relieved on the date his deputation is complete unless it has been duly extended by the competent authority.
22. The same position has also been reiterated in Yogesh Kumar Sharma v. Union of India & Others, OA 3416/2013 decided on 24.12.2014. In Para 10 of the order this Tribunal has held as under:
10. We start examination of the issue by taking note of the fact that the deputation in itself confers no right to the deputationist for absorption. The only right that is available to applicant is that of consideration for absorption. This legal position has been espoused by the Honble Supreme Court in the case of Kunal Nanda versus Union of India & Anr. [2000 (5) SCC 362] in the following terms:-
A deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of 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. The above decision was further discussed and reiterated in the case of Union of India versus S.A. Khaliq Pasa and Another [Civil Appeal No.368-369 of 2009) in the following terms:-
"On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of 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. The reference to the decision reported in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd is inappropriate since the consideration therein was in the light of the statutory Rules for absorption and the scope of those Rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree needs mention, only to be rejected. The stand of the respondent Department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e. a degree is a must and essential and that there could be no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that Department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."
In the case of Mahesh Kumar K. Parmar and Others versus SI. G. of Police and Others [2002(9) SCC 485], the issue before the Honble Supreme Court was that the petitioners were Head Constable in Gujarat Police who came on deputation to IB and had served there for 8 years. The petitioners were subsequently repatriated to their parent organization. The claim of the petitioners was that since they had already served the respondents for 8 years, they must be held to have acquired a right to be permanently absorbed in the respondent Bureau or at least a legitimate expectation to be absorbed. The learned counsel appearing for the petitioners argued that the petitioners had served in the Bureau to satisfaction of the respondents, passed certain tests and there was nothing adverse against them. The Honble Supreme Court held as under:-
Having considered the rival submissions and also the relevant provisions of the rules, we do not see any enforceable right with the petitioners for being permanently absorbed though we see sufficient force in the contention of Dr. Dhawan that the appropriate government should be well advised to consider the retention of these petitioners permanently in the bureau having regard to the case that they have already rendered services from 1991 till the 1999, and that the rules itself contemplate to man the post on transfer. While, therefore, we are unable to issue any mandamus to the state government requiring them to permanently absorb these petitioners in the bureau, we would observe that the state government may consider the case of these petitioners for absorption on transfer in accordance with the rules, if they are found otherwise suitable. In that case the administration would be better served on account of experience, the petitioners have already got in the bureau by serving for eight years. It clearly emerges from the aforesaid legal position that a deputationist has no right to permanent absorption but only for a consideration subject to fulfillment of the eligibility conditions under the relevant rules.
23. As regards the allegation of malafides, the applicant has cited a number of instances as have been detailed earlier. However, fundamental principle governing malafides is that the allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility and also the burden of establishing mala fide is very heavy on the person who alleges it.
25. In this regard, one would rely upon the case of E. P. Royappa v. State of Tamil Nadu & Another, AIR 1974 SC 555. The following relevant paras are extracted for clarity:
92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. .. Further, we also find the Honble Supreme Court in the case of State of Punjab & Another v. Gurdial Singh & Others, (1980) 2 SCC 471 while discussing that what is malafides and how it is to be proved, held that malafides is easy to allege but difficult to prove, relevant para whereof is extracted herein below for easy reference:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
25. In Institute of Law v. Neeraj Sharma, (2015) 1 SCC 720, the Honble Supreme Court, relying upon earlier decision in Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and Others, (2011) 5 SCC 29, held as under:
29. Further, we have to refer to the case of Akhil Bhartiya Upbhokta Congress v. State of M.P. and Ors. : (2011) 5 SCC 29, wherein this Court has succinctly laid down the law after considering catena of cases of this Court with regard to allotment of public property as under:
50. For achieving the goals of justice and equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and the State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good......In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of the rule of law.
XXX XXX XXX
62. In Shrilekha Vidyarthi v. State of U.P. the Court unequivocally rejected the argument based on the theory of absolute discretion of the administrative authorities and immunity of their action from judicial review and observed: (SCC pp. 236, 239-40)
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional....
In the light of the above mentioned cases, we have to record our finding that the discretionary power conferred upon the public authorities to carry out the necessary Regulations for allotting land for the purpose of constructing a public educational institution should not be misused.
26. This Tribunal in a recent case, R. K. Rai v. Union of India and others, has supported this view in OA No.3132/2014 decided on 12.01.2015 further examined the same very issue, and have arrived at the conclusion that mere allegations cannot take place of the proof and where it is to be so, otherwise every Government action could be under challenge. Therefore, no Government action could be set aside on the basis of mere allegations. Allegations have to be substantiated by a high degree of proof.
27. We further fully reject the case of the applicant that he was not arrested but was only detained in civil case vide the letter of the Superintendent of Police, Rewari. The very fact that the detention was made in the Criminal Procedure Code under Sections 107/151 and a bail was required to be granted on the dates indicated hereinbefore that the action had been taken under criminal jurisdiction. The purpose of Section 107 read with Section 151 is to detain a person over an immediate apprehension of breach of peace and tranquility of an area. Therefore, we do not find any substance on the contention of the applicant in this regard.
28. We have perused the case of Anees Ahmed (supra), relied upon by the applicants counsel, but we do not find how it is applicable to the issues involved in the present case. The case of Anees Ahmed (supra) arises from writ applications filed before the High Court of Delhi seeking a mandamus to Delhi University to take disciplinary action against Law Teachers practicing full time in courts in allied subjects.
29. In conclusion, we can only say that Intelligence Bureau is a sensitive organization commanding security of the State against infiltration of foreign agents. That is why it has been provided special protection under Article 33. It is a duty cast upon its officials to screen out the unwanted elements lest the values of the institutions and its work ethics get undermind. We are sure that no security agency would like to absorb persons facing disciplinary proceedings and who have been enlarged on bail.
30. The impugned order dated 14.08.2014 of the Screening Committee details the instances of departmental proceedings continuing against the applicant and the grounds of rejection. For the sake of clarity, we reproduce the relevant parts of the order:
i. After around 3 years of coming to IB on deputation, Shri Rajpal Yadav stopped taking interest in government work and even refused to undertake assigned tasks.
ii. Shri Rajpal Yadav suppressed facts with regard to his arrest by Haryana Police on October 18, 2009 and subsequent bail by SDM, Rewari on October 19, 2009. IB sought explanation from Shri Rajpal Yadav on his failure to report the arrest. Shri Rajpal Yadav, vide letter dated June 29, 2011, however, denied even having been arrested by the Police or any other authority or having remained in Police custody.
iii. Departmental Inquiry is continuing in IB against Shri Rajpal Yadav on his failure to maintain absolute integrity and for acting in a manner unbecoming of a government servant, thereby violating Rules 3(1)(i)&(ii) of the CCS (Conduct) Rules, 1964.
31. In view of the examination made earlier, we are of the firm opinion that the applicant has no vested right to get absorbed in the respondent organization but only to consideration. He has stayed beyond his term of four years that have been allowed to him on his conduct and performance. However, he was detained in relation to criminal case under Sections 107/151 of the criminal proceedings, and had been relieved on bail. Further, a departmental proceedings has been launched against him relating to concealing his arrest and calling in a manner unbecoming of a Government servant. He has failed to discharge the burden of proof in respect of his allegations of mala fide. In consideration of the above, we are of the firm opinion that the OA is devoid of any merit. Therefore, we have the least hesitation in rejecting the same. Accordingly, the OA is dismissed without costs.
(Dr. B. K. Sinha) (Syed Rafat Alam) Member (A) Chairman /nsnrbks/pk