Judgment:
1. The applicant-Shri Sanjay Kumar is a member of Indian Administrative Service of 1988 batch allocated to Punjab Cadre. He was nominated for appointment to a post on central deputation pursuant to the guidelines issued by the Department of Personnel and Training, Ministry of Public Grievances and Pensions dated 5.11.1998 (Annexure A-4). On coming to know that his name has been sent for empanelment for central deputation, the applicant made an application dated 23.7.2001 (Annexure A-5) to the Chief Secretary, Government of Punjab for withdrawal of his name on account of personal difficulties mentioned therein. The Government of Punjab required the applicant vide letter dated 21.8.2001 (Annexure A-6) to explain his personal problems. The applicant submitted a reply dated 22.8.2001 (Annexure A-7) and prayed that his name may be withdrawn from the list of officers nominated for central deputation. The request of the applicant did not find favour and by letter dated 5.9.2001 (Annexure Rule II), the name of the applicant was approved for central deputation for appointment as Deputy Secretary in the Ministry of Home Affairs. New Delhi. This order remained un-complined with, and by the impugned order dated 12.12.2001 (Annexure A-1), the applicant was debarred from deputation for posting under the Central Staffing Scheme for a period of 5 years w.e.f. 5.9.2001. He was also debarred from being considered for any foreign training on foreign assignments/consultancies abroad during the period of debarment. The communication sent by the Government of India on 12.12.2001 addressed to the Chief Secretary. Government of Punjab was conveyed to the applicant by Punjab Government letter dated 16.1.2002 (Annexure A-2).
2. By means of the present O.A., the applicant has challenged the order passed by the Central Government (Annexure A-1) and has prayed that it may be quashed. He has further prayed that Para 19.3(a) of the Central Staffing Scheme (Annexure A-3) and the provisions of the instructions dated 5.11.1998 to the extent they empower the respondents No. 1 and 2 to debar a candidate from being considered for any foreign assignment consultancies abroad for the period of debarment be struck down as being unconstitutional and against the principles of natural justice. A direction has also been sought for the Punjab Government to sent those officers on deputation to Government of India under Central Staffing Scheme who have never been sent on deputation so far.
3. The Government of India Respondent No. 1 and the Establishment Officer, DoPT--Respondent No. 3 have filed a joint reply while on behalf of State of Punjab -- Respondent No. 2 a reply has been filed by Mrs. Anjali Bhawra, Special Secretary. It is maintained that since the applicant had deliberately failed to comply with the order dated 5.9.2001 and failed to join his duties as Deputy Secretary in the Ministry of Home Affairs, New Delhi, the order of debarment has been rightly passed in the light of the provisions made in the Central Staffing Scheme.
4. Heard Mr. A.K. Takkar, learned Counsel for the applicant, Mr. Mukesh Kaushik appearing for Respondents 1 and 3 and Mr, A.G. Masih appearing on behalf of the Respondent No. 2.
5 On behalf of the applicant, Mr. Takkar pointed out that since the applicant has never shown his willingness or given his consent for central deputation post, he could not be forced to join as Deputy Secretary in the Ministry of Home Affairs pursuant to the order dated 5.9.2001 and in any case, the order of posting was never brought to his notice, and consequently the impugned order of debarmentdated 12.12.2001 (Annexure A-1) has been passed without serving upon him the order of posting at New Delhi. Shri Takkar further pointed out that the order of debarment has visited the applicant with civil consequences and since no notice to show cause was served upon him before condemning his conduct, the order of debarment stands vitiated. These submissions have been repelled by the learned Counsel for the respondents.
6. We have given our thoughtful consideration to the various issues raised in this O.A. At the outset, it may be pointed out that the controversy with regard to the willingness or otherwise of an officer to go on central deputation has been set at rest by a Division Bench of this Tribunal by passing an order dated 1.11.2002 in O.A. No. 955-CH of 2002 (V.K. Janjua, IAS v. Union of India and Anr.). In Para II of that judgment, the legal position has been summarised as below; "11. Taking into consideration the statutory provisions governing service conditions of a member of the IAS, particularly, the provisions made in Rule 6 of the Cadre Rules, we have no hesitation in stating the law that consent of the cadre officer is not required for central deputation. His services are capable of being placed at the disposal of the Govt. of India without his consent or against his will. The element of consent of the cadre officer or posting on a post under the Central Government is completely irrelevant. Not only this, if a cadre officer does not join the central deputation, he has to face the consequences--such as debarment for a specified period for. posting on deputation or disentitlement for foreign assignment. On merit the O.A. fails as the intervention of the Tribunal in the matter like the present one is not called for. It is the sole discretion of the State Government/Central Government to decide where and on what post the applicant has to serve." In view of the above legal position, we straightaway come to the controversy with regard to the debarment of the applicant for a period of 5 years for the alleged non-compliance of the order dated 5.9.2001.
In this connection, a reference may be made to the provisions made in Para 19.3 of the Central Staffing Scheme which lays down the eventualities in which an officer is liable to be debarred. The Scheme envisages that: "19.3(a) That an officer will ordinarily be debarred for further Central Deputation for a 5 years period if he fails to take up an assignment in pursuance of an order of the Appointments Committee of the Cabinet (ACC) and the cadre authority/State Govt. have not requested for withdrawal of the name from Offer List before his name was approval by the CSB for placement.
(b) The State Govt./Cadre Authorities may withdraw an officer from the Offer List without rendering him liable to debarment, provided he has not been approved by CSB for a placement, if the request of withdrawal is received after CSB approves an officer for appointment, then he would be liable to be debarred.
(c) A representation against debarment will be considered and decided by the Minister of State and Union Cabinet Minister for Personnel after taking into consideration the view of CSB." The respondent Nos. 1 and 3 in Para 5 of their reply have themselves mentioned that "the modalities to be followed in connection with debarment of an officer from central deputation entails issuance of a notice to the officer and the cadre controlling authority/ State Government concerned and taking their views into consideration before any decision is taken for debarment of the officer." The stand taken the Central Government is that a request was made to the State Government of Punjab to bring the implications of not joining the new assignment to the notice of the applicant and it was also informed that in case the State Government was not inclined to relieve the officer, it was to indicate the circumstances in which it felt that the retention of the services of the officer would be in public interest and why such exigencies in public interest could not have been foreseen when the name of the applicant had been recommended for central deputation. The Central Government further requested the State Government to relieve the applicant or furnish its reply by 23.11.2001.
There is nothing on record to indicate that the applicant had been served with the order dated 5.9.2001 (Annexure Rule II) whereby he has been posted as Deputy Secretary in Home Ministry. Unless the posting order was brought to the notice of the applicant he could not have joined his new assignment. Inspite of the information transmitted by the Central Government to the State Government with regard to the implications of not joining the new assignment by the applicant, the State Government did not bring all these facts to his notice. The Cadre Controlling Authority i.e. The Central Government and the State Government of Punjab to which cadre the applicant has been allocated have to act in cohesion. The Central Government can not absolve itself of the responsibility or duty to bring to the notice of the applicant the implications of not joining the new assignment merely because the State Government has filed to bring the desired facts to the notice of the concerned officer. It is the concerned officer who ultimately stands to lose and is affected by an adverse view taken about his conduct. Unless such an officer is put to notice about his lapses or deliberate defiance on his part of the orders of new assignment, he cannot be condemned unheard. Natural justice requires that any notice or information, or for that matter, communication to be effective and to be positive, should have been served on the person against whom it is intended. In the absence of proof of actual service of the notice or information, a bare inference of constructive knowledge of the obligation to comply with the order cannot be drawn to the serious prejudice and detriment of the affected person. The Supreme Court in the case of Cosmosteels Private Limited v. Jairam Das Gupta and Ors.
has held that a right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed. If the duty to give notice and to hear a party is not mandatory, the actual order passed on a matter must be shown to have injuriously affect the interest of the party which was given no notice of the matter.
7. In the instant case it is an indubitable fact that no notice was ever served on the applicant before passing the order of debarment (Annexure A-1). The implications of his not joining the new assignment were also not brought to his notice by the State Government of Punjab.
As a matter of fact the applicant was groping in the dark. No sooner his name was sent to the Government of India for empanelment for central deputation, he made a representation and sent the required information as desired by the State Government. No specific order was passed with regard to his request for withdrawal of his name from central deputation. Even the order of his posting dated 5.9.2001 (Annexure Rule II) sent through wireless message posting him as Deputy Secretary in the Ministry Home Affairs was not brought to his notice.
It is amazing to note that the letter dated 12.11.2001 sent by the Deputy Secretary to the Government of India (Annexure Rule III) was not supplied to the applicant though its contents were, in fact, meant for him. Consequently the impugned , order debarring the applicant from central deputation as well as foreign assignment/ training for a period of five years has come into being without putting the applicant to notice or taking into consideration his explanation or the difficulties pointed out by him. Had the letter (Annexure Rule III) come to the notice of the applicant, he would have readily and with all expedition made a representation mentioning therein the compelling circumstances on account of which he was unable to join his new assignment. It is true that the Cadre Controlling Authority has the unchallenged power and authority to send the applicant on central deputation, and the representation of the applicant may not have found favour at the hands of the controlling authority, but the fact remains that the order of debarment has been passed without affording an opportunity to the applicant. As said above, it was incumbent on the respondents--whether it was the Central Government or the State Government to have at least performed the ritual of issuing a notice to the applicant so that his point of view could be taken into consideration before a decision for his debarment for a long period of the five years was taken. The tone and tenor of the reply filed by the respondent Nos. 1 and 3 is that service of notice before passing the order of debarment was one of the essential requirements and though the Central Government on its part had done what was expected of it but it was the State Government of Punjab which failed to bring to the notice of the applicant contents of the letter dated 12.11.2001 (Annexure Rule III). The applicant cannot be made to suffer on account of the official rigmaroles or as a result of an attitude of passing the buck.
8. In view of the above discussion, we find that the impugned order (Annexure A-1) dated 12.12.2001 which is per se unfair, stands vitiated on account of the fact that it has been passed in flagrant violation of principles of natural justice inasmuch as the applicant was never apprised of the proposed action against him and he was not given an opportunity of placing his point of view for consideration by the authorities concerned. The action taken by the Government of India in debarring the applicant does not stand the test of scrutiny being clearly against the spirit of the provisions of Para 19.3(a) of the Central Staffing Scheme as well as the principles of natural justice and, therefore, it cannot be allowed to stand.
9. We find that since the O.A. succeeds on merits, it would be futile to test the validity of the provisions of Para 19.3(a) of the Central Staffing Position at the touchstone of the Constitutional provisions.
The applicant also does not have a legal right to pray for a direction to the State Government of Punjab to forward the names of those officers for central deputation who have never been on deputation.
Where, when and for how long a period an officer shall remain posted and when he is required to be sent on deputation are the questions which fall within the exclusive domain and prerogative of the employer.
Unless the action of the employer is found to be malafide actuated by malice or bias, the employee has no say in the matter.
10. In the conspectus of the above discussion, the O. A. is allowed in part to the extent that the impugned order dated 12.12.2001 (Annexure A-1) debarring the applicant for a period of five years for posting under the Central Staffing Scheme from foreign assignments/consultancies abroad, is hereby quashed. The applicant shall be entitled to make a representation as is contemplated in the letter dated 12.11.2001 (Annexure Rule III) within a period of one month from today and if he does so, the competent authority shall pass appropriate orders according to the rules taking into consideration the views of the applicant as well as the State Government within a period of six months from the date on which representation of the applicant is received. Should the applicant fail to make a representation within the time specified above, the Government of India Respondent No.1 shall be at liberty to pass appropriate orders in accordance with law treating it as if the applicant has nothing to say in the matter inspite of the fact that he has understood and realised the implications of not joining the new assignment pursuant to the order dated 5.9.2001 (Annexure Rule II) No order as to costs. O.A. allowed.