1. Rahul Rai Sur, an officer of Indian Police Service 1981 batch of Mahrashtra cadre, and presently serving as Chief, Conduct and Discipline Unit of the United Nations Stabilization Mission in Haiti, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking a writ in the nature of certiorari so as to quash notification dated 26.9.2005 treating him as deemed to have resigned from the Indian Police Service.
The facts culminating into the order aforesaid, as projected in the Application, would need necessary mention.
2. The applicant joined service in December, 1981 and is said to have excelled from the very beginning of the training period and in the various assignments that were given to him during the span of his service up to 1997. The applicant has listed all his achievements, but there would be no need to make mention thereof. Suffice it, however, to say that the track record of the applicant does appear to be very impressive, and there is no dispute on that count as well raised by the respondents. It is his case that due to his excellent track record and exemplary credentials, he was offered a short-term appointment by the United Nations in New York as Investigator in the Office of Internal Oversight (OIOS) for which the Government of India was pleased to grant the necessary permission, and even on this assignment he continued to perform his duties with utmost dedication and earned much appreciation for the same. He worked in the Investigations Division and was selected for challenging assignments, including being sent to East Timor for building up an investigation capacity before the country became independent. His assignments also led to extensive travel especially in Africa and he continued to earn commendations for his work. The applicant refers to his annual performance assessment reports as eloquent testimony to the quality of work rendered by him in the services of the United Nations. The Government of India granted deputation to the applicant with effect from 15.7.1997 and the same was extended from time to time till 31.5.2004. Prior to expiry of the last extension granted by the Government on 31.5.2004, the United Nations requested for extension to be granted to him on 30.4.2004 through the Under Secretary-General, OIOS, United Nations to the then Permanent Representative of India to the United Nations, stating that the applicant was engaged in the important assignment of coordinating the training and capacity building efforts of OIOS that would benefit not only staff but other offices as well in the United Nations, and thus his continued tenure with OIOS was essential for the successful progress and completion of the capacity building task. The applicant has placed on record letter dated 30.4.2004 as Annexure P-3. On 13.5.2004 the Permanent Mission of India to the United Nations forwarded the request of the UN to second respondent for extension of the applicant stating that 'We would like to add that Shri Sur is working in a key section of the UN Secretariat. Secondly, he is not occupying a captive post. In other words, in case Shri Sur is withdrawn, it is almost certain that he will not be replaced by another Indian. We would strongly recommend that Shri Sur be given an extension in deputation until May, 2006'. The applicant, however, much later, after going through the official records, learnt that this communication was purportedly not received in New Delhi, although it was presumed to have been delivered having been sent through the official channels of the Permanent Mission of India to the United Nations. It is the case of the applicant that normal mode of delivery of various official communications to officials posted in United Nations, and communications sent by such officials to the Government of India, is through India's Permanent Mission to the United Nations, and thus in his case, all communications from his cadre controlling authority, i.e., first respondent herein, ought to have been sent to Ministry of External Affairs, second respondent herein, and from the second respondent to India's Permanent Mission to the United Nations, which in turn was supposed to deliver the letters/communications to the applicant, and the Permanent Representative of India to the UN is then supposed to intimate the respondents about the delivery of the letters to the officials on deputation, and that the same procedure is followed by the officials posted in United Nations on deputation, for delivery of communications to their respective cadre controlling authorities. It is the case of the applicant that all the correspondence which was received by him from the respondents, was forwarded by the India's Permanent Mission to the United Nations with a covering letter. It is his further case that an officer on deputation, like him, cannot just desert his post and revert to his parent cadre without being formally relieved by the orders of the India's Permanent Mission at the United Nations, and as such, after lapse of the deputation period on 31.5.2004, he made numerous visits to, and enquiries from, Ms. Ruchira Kamboj, Counselor and Head of Chancery, Permanent Mission of India at the United Nations, and on his persistent requests in this regard, the Permanent Mission vide its communication dated 4.8.2004 wrote to the concerned Foreign Office in New Delhi inter alia stating as under: 2. From our conversation, it would appear that the request forwarded by this Mission vide its communication of 13 May was not received by UNES Division. Faxed, therefore, is a copy of the original request.
3. May we request you to take further action, since officer concerned has been reminding this office on the matter It is the case of the applicant that this fact itself would constitute irrefutable proof of the proactive and responsible role played by him all along.
3. On the facts as mentioned above, the applicant avers that ignoring the recommendations of the Under Secretary General, OIOS, United Nations and Permanent Mission of India to the UN, and the letter/reminder written in this regard by the applicant, first respondent purportedly wrote D.O. letter dated 4.9.2004 to second respondent stating that further cadre clearance for extension of deputation tenure of the applicant beyond 31.5.2004 could not be given.
The first respondent further opined that in case the applicant desired to continue in UN and made an unconditional prayer seeking voluntary retirement, the proposal would be considered. It is the case of applicant that although the purported communication dated 4.9.2004 was an internal communication between two wings of the Government, however, the first respondent later on claimed incorrectly and without any basis that copy thereof was delivered to the applicant through the Permanent Mission. The applicant categorically avers that he was never served with, and consequently never received, the said purported communication at any point of time, and that this communication contained important information affecting his rights and conditions of service, and it was incumbent upon the respondents to positively ensure that the said communication was served upon him. Acting in furtherance to the erroneous and mistaken premise that the applicant had been served with a copy of the purported communication dated 4.9.2004, it is averred, the first respondent proceeded to issue a memorandum dated 2.3.2005 to the applicant calling upon him to show cause as to why he should not be treated as having resigned from service for having remained away from his duties beyond the date of approved tenure of his deputation, thereby attracting Rule 7(2) (c) of the All India Services (Leave) Rules, 1955 (as amended on 19.10.2004) [hereinafter to be referred as the Rules of 1955]. It is the case of the applicant that under the said Rules, a member of the Service (including IPS officer) shall be deemed to have resigned from service if he continues on Foreign Service beyond the period approved by the Central Government. The memorandum which was directed to be served upon him through the Ministry of External Affairs contained reference to the communication dated 4.9.2004. Consequently, the said memorandum dated 2.3.2005 was forwarded by the Ministry of External Affairs to the Permanent Mission of India to the United Nations for delivering the same to the applicant. On receipt of the memorandum, the Permanent Mission sought to deliver the same to the applicant along with a covering letter dated 22.3.2005. It is the case of the applicant that when he was served with the said covering letter and its enclosure, he was shocked to peruse the contents thereof, since the purported letter dated 4.9.2004 referred to in the memorandum had never been served upon him. Immediately, on receipt of said communication through the Permanent Mission, he wrote on the face of it that he had never been served with the purported letter dated 4.9.2004, and requested for supply of a copy thereof. It is his case that the Permanent Mission, after duly verifying the factual position about the non-delivery of the purported letter dated 4.9.2004 upon the applicant, sent a communication dated 28.3.2005 to the respondents informing that he had not received a copy of the purported letter dated 4.9.2004. This fact, according to the applicant, was duly acknowledged by the second respondent in its official noting dated 30.3.2005. It is further the case of the applicant that the contents of the purported letter dated 4.9.2004 only came to his knowledge when he obtained copies of the documents from the first respondent by filing an application under Right to Information Act, 2005. He, however, on receipt of the memorandum dated 2.3.2005, replied to the same vide letter dated 8.4.2005, inter alia stating as under: In this regard, I would like to kindly submit that I have not received the communication dated 4.9.04, which is referred to in your letter dated 2 March 2005. As I was not in receipt of your communication dated 4 September 2004 advising me to report back to my parent cadre, I understood that the Government of India had no objection to my continuing to serve with the United Nations.
In view of this, I kindly request that I may be permitted to serve with the United Nations till the end of my current contract on 6 May 2006.
The reply dated 8.4.2005 was submitted by him to the Permanent Mission along with a covering letter of even date through fax on the same day.
In the said reply, he inter alia requested for permission to serve at the United Nations till 6.5.2006 till the expiry of his contract. He legitimately expected and believed that his aforesaid reply would be duly transmitted by the Permanent Mission to the respondents through official channels, avers the applicant. It is further his case that it appears that due to some inadvertence or oversight his reply dated 8.4.2005 could not be communicated and transmitted by the Permanent Mission to the respondents, and in these circumstances, it transpires that the first respondent, acting on an erroneous and mistaken premise, issued communication dated 20.5.2005 addressed to the Permanent Mission, inter alia stating that the purported communication dated 4.9.2004 was a D.O. letter issued by the first respondent expressing their inability to extend the deputation period of the applicant with United Nations. It was further observed that since the applicant had failed to respond to memorandum dated 2.3.2005 within the stipulated period, he was being granted a period of ten days, as a last chance, to furnish his response to the said memorandum, failing which the provisions of Rule 7(2)(c) of the 1955 Rules would be invoked.
According to the applicant, for the reasons best known to the respondents, a copy of the purported communication dated 20.5.2005 was not served upon him by the Permanent Mission, and he remained ignorant and oblivious about the issuance or contents thereof. The applicant thereafter did not hear from the respondents till 2.12.2005, when a letter of the said date was received by him from Ms. Ruchira Kamboj of the Permanent Mission, enclosing therewith notification dated 26.9.2005 issued and transmitted by the first respondent (Annexure P-9 colly.).
On perusing the notification, the applicant was shocked to know that the first respondent had treated him as deemed to have resigned from service by invoking provisions of Rule 7(2)(c) of the 1955 Rules.
4. Justification for issuance of the impugned notification, it is pleaded, has been made primarily on two counts, i.e., that the applicant allegedly failed to respond to the purported memorandum dated 2.3.2005, and that he again failed to respond to the purported letter dated 20.5.2005, whereby he was ostensibly given last opportunity/chance to furnish his explanation. It is the case of the applicant that the above conclusions arrived at by the first respondent are not only incorrect, arbitrary, vindictive but are also self-assumed on account of the following reasons: (a) The Applicant did not continue on deputation unauthorisedly beyond 31.05.2004, as alleged or otherwise. In fact, it is trite that the Applicant could not have deserted his post without being formally relieved. However, no formal Order was ever issued in this regard to the Applicant. The Applicant was under a well-founded belief that the matter was under consideration and yet to be determined conclusively. It may be mentioned that earlier extensions took a considerable period of time to be processed.
(b) The Applicant never received the purported letter dated 04.09.2004, which fact has been explicitly acknowledged by the Permanent Mission of India to the United Nations from its records.
(c) The Applicant did issue a response dated 08.04.2005 to the Memorandum dated 02.03.2005, which the Respondent No. 1 claim not to have received from the Permanent Mission of India to the United Nations.
(d) The Applicant was never served with the purported letter dated 20.05.2005, thereby depriving the Applicant of the invaluable opportunity to avail the benefit of voluntary retirement with full pension benefits.
(e) It appears that the Permanent Mission of India to the United Nations, as per the prevalent protocol, routinely provides intimation to the concerned Government departments about the delivery of various communications to the officials who are posted abroad like the Applicant. In the instant case also, the Permanent Mission of India to the United Nations issued such an intimation to Respondent No. 1 about the communication of letter dated 02.03.2005 to the Applicant. However, to the knowledge of the Applicant, no such intimation has been provided by the Permanent Mission regarding delivery of purported communications dated 04.09.2004 and 20.05.2005 to the Applicant. The above circumstance makes it indubitably clear that either these letters were never sent to the Applicant or the same were never delivered to the Applicant.
It is averred that the respondent chose to take such an important decision having crucial bearing upon the future of the applicant without even verifying the factum of receipt of purported communications dated 4.9.2004 and 20.5.2005 and without considering the response dated 8.4.2005 submitted by him through the Permanent Mission, and that the applicant was not afforded fair and reasonable opportunity to present his defence and show cause against the proposed adverse action, as required under the provisions of Rule 7(2)(c) of the Rules of 1955. The applicant, it is pleaded, has been unfairly and unjustifiably denied the opportunity to avail the benefit of taking voluntary retirement with pension, to which he is otherwise entitled as per the policy of the first respondent (Annexure P-10) relevant paragraph 5 whereof reads as follows: It was therefore, felt that in case of those officers, who have become entitled to seek voluntary retirement with pension and who have completed 7 years of UN deputation, we shall inform that we have no objections to their continuation provided the officer seek voluntary retirement. It is quite logical because a senior officer at some point of time will have to make a clear choice.
In view of the policy, it is pleaded, it was incumbent on the part of first respondent to issue separate letter specifically addressed to the applicant, conveying the stand of the said respondent that the government had no objection to his continuation in the United Nations, provided he sought voluntary retirement, and further, non-receipt of the important communications as mentioned hereinabove has denied the applicant any opportunity, much less a reasonable opportunity, of availing the benefit of seeking voluntary retirement with pensionary benefits, as required under Rule 7(2)(c) of the Rules of 1955. The applicant had indeed completed the qualifying service required for availing pensionary benefits. Without prejudice to the above, the applicant pleads that treating him as deemed to have resigned, without following the due process of law, is violative of Article 311 of the Constitution, and that it is an established principle of law that the rule making authority contemplated by Article 309 of the constitution cannot be exercised so as to curtail or affect the rights guaranteed to public servants under Article 311(2). Thus, it is pleaded, Rule 7(2)(c) of the Rules of 1955, to the extent it has given the respondent unfettered and unrestrictive powers to curtail and affect the rights of an officer of the all India service, like the applicant, is plainly unconstitutional, irrational, arbitrary and violative of Article 311 of the constitution of India, and that 'deemed resignation' even otherwise tantamount to removal by way of punishment, which is not permissible without following the due process of law. The impugned notification, it is further pleaded, casts stigma upon the applicant since he is visited with evil consequences due to the punitive, arbitrary and vindictive actions of the first respondent. The applicant sought information inter alia relating to advice, if any, sought by the first respondent from Union Public Service Commission (UPSC) before taking punitive action against him, and also sought copies of the official notings of the respondent, and pursuant thereto UPSC vide letter dated 10.1.2007 sought further clarification from the respondent in this regard. The said respondent vide letter dated 19.1.2007 replied that 'Since this was not a case of disciplinary proceedings UPSC was not consulted'. The applicant pleads that it is obligatory for the Central Government to take the opinion/consent of UPSC before taking any punitive action against an officer, more so since the implications of the impugned notification dated 26.9.2005 are much more than a major penalty, and that by way of the said notification, he has been deprived of not only his pension but also the voluntary contributions which he had himself made to the fund while on deputation. Coming back to the sequence of events, it is averred that pursuant to the receipt of copy of the impugned notification dated 26.9.2005 on 2.12.2005, the applicant represented in writing to the first respondent on 4.2.2006, inter alia stating that the assertion in the impugned notification to the effect that he did not respond to the first respondent's earlier notice was patently incorrect and inaccurate. He further pointed out that the allegation that he chose to ignore the first respondent's communication dated 20.5.2005 was also incorrect and inaccurate, as he was never served with the said communication. He further explained the details of the correspondence received by him and the responses sent by him to the first respondent in this regard, and that he had received memorandum dated 2.3.2005 on 23.3.2005 through the Permanent Mission of India to the United Nations, and responded by stating that since he did not receive the purported communication dated 4.9.2004, he was not in a position to respond to the same. He, therefore, submitted that the decision of the first respondent was not based on correct and accurate facts. Copy of the said representation dated 4.2.2006 is placed on record as annexure P-11. Since no response was received to the said representation, the applicant submitted another representation to the first respondent on 18.7.2006 submitting therein that non-communication to him of the crucial documents from the Government of India by the Permanent Mission deprived him of his right to reply, and a vital decision affecting his future was made by the Government of India without hearing him. However, the first respondent vide letter dated 9.9.2006 summarily rejected the representation dated 18.7.2006 without even bothering to verify the stand taken by the applicant, particularly with regard to non-receipt of the purported communications dated 4.9.2004 and 20.5.2005. No reference was made therein to the earlier representation dated 4.2.2006 submitted by the applicant, which has not been disposed of till date to his knowledge. It is averred that the first respondent did not even bother to issue any cogent reason or justification for non-acceptance of the grounds raised by the applicant in the said representations, and instead unilaterally and arbitrarily came to a summary conclusion that there was no cause for re-opening the issue, after issuance of notification dated 26.9.2005, and recommended its rejection inter alia observing as follows: The plea taken by Shri Sur that he had not received our letter dated 4.9.04 has no value, as our memo dated 2.3.05 had mentioned about the contents of this letter.
There is no case for re-opening the issue, after issuance of our notification dated 26.9.2005 deeming him to have resigned from IPS, at this stage it deserves rejection.
It is the case of the applicant that the said justification is factually wrong and misleading, in so much so that the memorandum dated 2.3.2005 issued by the first respondent was completely silent about the availability of the option of seeking voluntary retirement as ostensibly provided under the purported letter dated 4.9.2004, and since the only communication received by the applicant was the said memorandum dated 2.3.2005, he remained oblivious of the said option open to him of seeking voluntary retirement with pension. Subsequently, the applicant was provided the requisite documents by the first respondent as detailed in the application filed under Right to Information Act. From perusal thereof, it is the case of the applicant, he was surprised to note that the respondent allegedly recorded in one of the official notings that the respondent had never received any reply from the applicant to the show cause/memorandum dated 2.3.2005, although he had duly forwarded his response on 8.4.2005 to the said memorandum through the Permanent Mission, and that the applicant is not aware of the exact circumstances under which the said response was allegedly not transmitted by the Permanent Mission to the first respondent, if at all. In the circumstances, it is further his case, he cannot be unfairly indicted for allegedly not furnishing any reply to the memorandum dated 2.3.2005, when the actual fault, in all probability, lies with the Permanent Mission. Without prejudice, the applicant further pleads that the explicit offer/option of voluntary retirement made in the letter dated 4.9.2004 was not mentioned at all in the memorandum dated 2.3.2005, and the same was only a show cause notice without any elaboration/details about the earlier letter sent in September, 2004, and thus, it would be indubitably clear that he could not have comprehended the contents of letter dated 4.9.2004 just by going through the contents of memorandum dated 2.3.2005. Copies of the entire notings and other documents made available to him from the concerned official files have been placed on record as Annexure P-14 (colly.).
5. In wake of facts as fully detailed above, the applicant as mentioned earlier, seeks quashing and setting aside of notification dated 26.9.2005 issued by the Government of India, Ministry of Home Affairs (the first respondent), published in the Gazette of India, Part-I, Section-II, by which he has been treated to have resigned from the Indian Police Service with effect from the date of the issue of the said notification. It appears that the applicant, in the alternative, seeks issuance of a direction to the respondents to give him a fair and reasonable opportunity to seek voluntary retirement from service with full pensionary benefits.
6. In response to the notice issued by this Tribunal, the first respondent has entered appearance and by filing its reply contested the cause of the applicant. Union of India through Secretary, Ministry of External Affairs, second respondent herein, has not filed any counter affidavit. By way of preliminary submissions, it has inter alia been pleaded that the deputation of the applicant was extended from time to time and the last extension was allowed up to 31.5.2004. His request for further extension of deputation with the UN was not acceded to and he was advised to report back to his parent cadre, i.e., Indian Police Service, in the Maharashtra cadre forthwith. A memorandum was issued to the applicant on his overstayal beyond his approved tenure on the UN deputation. Memorandum dated 2.3.2005 was issued through Ministry of External Affairs and he was given fifteen days time to furnish his explanation/reasons for not invoking the provisions of Rule 7(2)(c) of the Rules of 1955. A similar communication was also sent through the Permanent Mission of India (PMI) to the UN, and the PMI intimated vide communication dated 28.3.2005 that the memorandum had been served upon the applicant. They further intimated that the applicant had intimated them that he had not received letter dated 4.9.2004 mentioned in the memorandum, and as such had requested for copy of the same. Letter dated 4.9.2004 was a D.O. letter from the Joint Secretary (Police) in the Ministry of Home Affairs addressed to his counterpart in the Ministry of External Affairs, and a copy endorsed to PMI, New York, stating the inability to extend the deputation period of the applicant.
A copy of the above D.O. letter was provided to the applicant through PMI vide respondents' letter dated 20.5.2005 and the PMI was requested to convey to him that he should furnish his reply to memorandum dated 2.3.2005 within ten days of receipt of the communication as a last chance, and if he failed to do so, the provisions of Rule 7(2)(c) of the Rules of 1955 would be invoked in his case. Since he did not respond till 25.9.2005, the respondent with the approval of the competent authority, invoked the provisions of Rule 7(2)(c) and accordingly, a notification was issued in this regard on 26.9.2005.
7. In the para-wise reply it is pleaded that the applicant was allowed deputation to the UN initially for six months w.e.f. 15.7.1997 which was extended from time to time and was last extended up to 31.5.2004, and thereafter, he was continuing on UN deputation unauthorisedly. He was supposed to return to his parent cadre on expiry of his extended period of deputation. He was informed of the position vide communication dated 2.3.2005, wherein he was informed of the rule position and was asked to furnish his explanation within fifteen days of receipt of the same. The communication was sent to him through normal channel of communication, i.e., Ministry of External Affairs (MEA) and the PMI. The PMI through MEA vide communication dated 28.3.2005 had informed the respondent that the communication dated 2.3.2005 was served on the applicant and they had also furnished his acknowledgement. The PMI had also informed that the applicant needed a copy of the respondent's communication dated 4.9.2004 regarding his deputation. The said communication was a D.O. letter from respondent No. 1 to respondent No. 2 with copy of the same endorsed to PMI wherein the decision of the Government in turning down the request for further extension of the applicant's deputation to UN was intimated. The respondent vide communication dated 20.5.2006 forwarded a copy of the said communication to the applicant through PMI and also requested PMI to advise him to furnish his response to communication dated 2.3.2005 within ten days of receipt of the same, but the applicant ignored all the above advice. Therefore, respondent No. 1 was left with no option but to invoke the provisions of Rule 7(2)(c) of the Rules of 1955 and notification dated 26.9.2005 was issued. It is then pleaded that the applicant was not being allowed extension, in which case he should have immediately joined his service, and that the time available to him was also sufficient for seeking relief from the UN, and even now he does not intend to join his service in India and has sought voluntary retirement, with the purpose that he gets retirement benefits from the Government of India, which are otherwise not admissible in case of resignation for which notification has been issued. It is averred that the applicant, as a responsible officer and belonging to an all India service, ought to have contacted his cadre controlling authority or his State cadre authority to verify whether his request for extension of deputation had been agreed to or not; rather, he took it for granted that extension was allowed to him by the Government; he had many channels available with him in the country if he had any intention to know the status of his case, which he has used once the notification dated 26.9.2005 was issued; and, he did not bother to find out whether the purported reply sent by him to memorandum dated 2.3.2005 was received by the respondent or not. The contention of the applicant that communication dated 4.9.2004 was never served on him, it is stated, does not seem to be correct. The applicant requested for copy of the above communication through the PMI, which was provided to him through PMI vide communication dated 20.5.2005, and that as a responsible senior government official, he should have followed the matter with the PMI if he had not received reply to the request within a reasonable time, which he did not do. The applicant's purported communication dated 8.4.2005, it is pleaded, never reached the respondent till the notification dated 26.9.2005 was issued or even thereafter. It is then pleaded that it is surprising and looks strange that the applicant did not receive only those communications from the respondent which were quite crucial, and his purported reply to communication dated 2.3.2005 was also not received by the respondent, and if the applicant was serious enough to submit his reply to the respondent, he could have submitted advance copy direct to the respondent even if the reply to the respondent was submitted through proper channel, as furnishing of advance copy of a representation etc. to higher authorities is not banned in the All India Services Rules. The respondents, as a matter of fact, had issued memorandum dated 2.3.2005 explaining the status of deputation of the applicant with the UN and he was also informed about the prevailing rules in case of continuing with the UN beyond the approved tenure. He was as such advised to furnish his reply within fifteen days. This communication was followed by another communication dated 20.5.2005, and since the applicant did not respond to the communications mentioned above, the respondent was left with no other option but to invoke the provisions of Rule 7(2)(c) of the Rules of 1955, and notification to this effect was accordingly issued on 26.9.2005. It is the case of the respondents that it is not mandatory on the part of the Central Government to consult UPSC before taking action against a member of the service in every contingency, and that the applicant had acted in a most irresponsible manner not befitting the position which he held as a senior IPS officer and as such, he himself is responsible for whatever has happened. It is the case of the respondents that the applicant was provided reasonable opportunity as envisaged under Rule 7(2)(c) and when his reply was not received till 25.9.2005, the impugned notification was issued. Insofar as the option of the applicant with regard to seeking voluntary retirement is concerned, it is averred that the applicant could himself have exercised the option of seeking voluntary retirement once he was informed vide communication dated 2.3.2005 that he was overstaying beyond the approved tenure of deputation, but he opted not to furnish reply to the memorandum by ignoring the advice given to him by the respondent. It is further averred that it is not mandatory on the part of the Government to inform the delinquent official about the different options and to choose one amongst them which would be beneficial to the official concerned.
8. The applicant has filed rejoinder to the counter reply filed by the respondents, wherein he has averred that the respondents have avoided to state categorically in the counter affidavit that the D.O. dated 4.9.2004 and alleged communication dated 20.5.2005 were, as a matter of fact, served upon him, and instead of placing any incontrovertible evidence on record to show that the above stated communications were in fact served upon the applicant, the respondents have sought to rely on unfounded surmises and conjectures in this regard, and that in fact, the wishy-washy nature of the defence set up by the respondents in this regard can be well gauged from various evasive and vague averments in the counter affidavit, as set out hereafter: Para 4.9 'The contention of the applicant that the communication dated 4.09.2004 from this Respondent to Respondent No. 2 was never served on him does not seem to be correct' Paras 4.15 and 4.16. It is submitted that it is surprising and looks strange that the applicant did not receive only those communications from this respondents which were quite crucial.
Para 4.18'. It is surprising that he did not receive the other communication dated 20.05.2005 wherein this respondent had attached a copy of the communication dated 04.09.2004' Para 5.14'. Once the Memorandum dated 02.03.2005 was received by the applicant through the P.M.I., U.N., this respondent cannot be held responsible for non receipt of the other communications by the applicant which were also addressed to the PMI/MEA' It is then pleaded that there is a categorical admission on the part of the respondents that the said communications were in fact 'quite crucial', and it was, therefore, all the more incumbent upon them to ensure that the said communications were positively delivered to the applicant by the PMI, which is also a wing of the Union of India. It is further pleaded that the respondents have admitted categorically that all communications used to be routed to the applicant through the PMI since that was the 'normal' and 'proper' channel of communication, and notwithstanding the above admission, the respondents have made unnecessary and unwarranted heavy weather of the fact that the applicant submitted his response to the MHA communication dated 2.3.2005 through the PMI, and not directly to the respondent, and that the respondents have further sought to half heartedly deny receipt of the reply dated 8.4.2005 submitted by him, despite the fact that he had placed incontrovertible evidence on record to establish that the said reply was delivered to the PMI for onward transmission to the respondents. Other averments made in the rejoinder with regard to preliminary submissions and on merits are by and large denial of the pleadings made in the counter affidavit and are reiteration of the same made in the OA.9. Shri M. S. Ganesh, learned Senior Advocate representing the applicant, has raised issues both on facts and law. While dealing with issues on facts of the case, it is urged that the applicant did not continue on deputation unauthorisedly beyond 31.5.2004, and in fact, he did not receive any response from the respondents with regard to reporting back, and that a deputationist could not desert his post and revert to his parent cadre without formally being relieved and without orders of the Permanent Mission of India to the United Nations. The applicant, it is urged, was never served with the purported communication dated 4.9.2004 which formed the foundation for initiation of punitive proceedings against him. It is further urged that he even did not receive the purported letter dated 20.5.2005 thereby depriving him of an important opportunity to avail the benefit of taking voluntary retirement with pensionary benefits, even as a last chance.
As a matter of fact, the Permanent Mission issues intimation to the first respondent about delivery of various communications to the concerned officials posted abroad on deputation. In the case of applicant as well, the Permanent Mission had issued such intimation to the first respondent about the communication of letter dated 2.3.2005.
No such intimation or proof with regard to delivery of communications dated 4.9.2004 and 20.5.2005 upon him is available on the records of the first respondent. The questions raised by the counsel, as mentioned above, are even though, pure questions of fact, the same, in the context of controversy raised, have to be determined on the basis of pleadings of the parties.
10. Culled out from the pleadings, what appears is that it is the positive case of the applicant that he had not received or intimated the communications dated 4.9.2004 and 20.5.2005. Prior to expiry of the last extension granted by the Government, it is also the case of the applicant, the United Nations requested for extension to be granted to him on 30.4.2004 through the Under Secretary General, OIOS, United Nations to the Permanent Representative of India, copy whereof has been placed on records as Annexure P-3. It is the case of the applicant that the said communication was received by the respondents. The only communication received by him was memorandum dated 2.3.2005. It is also the case of the applicant that he had responded to the only communication received by him dated 2.3.2005, and the stand of the respondents that they had not received the same is incorrect. With a view to determine the controversy, as mentioned above, the sequence of events, various communications said to have been sent by the respondents, and the response of the applicant from time to time, shall have to be seen in the context of pleadings made by the parties.
11. That the Government of India granted deputation to the applicant w.e.f. 15.7.1997 and the same was extended from time to time till 31.5.2004, is not in dispute. It would be appropriate to deal with the contentions raised by the Learned Counsel on various communications received or otherwise, in seriatim. The first event in that connection would be the request of the United Nations dated 30.4.2004 routed through the Under Secretary General, OIOS to the then Permanent Representative of India to the United Nations, regarding continuation of deputation tenure of the applicant beyond 31.5.204. The case of the applicant is that the request made on 30.4.2004 (Annexure P-3) was forwarded on 13.5.2004 by the Permanent Mission to the second respondent. The aforesaid letter dated 30.4.2004 has been written by Shri Dileep Nair, Under Secretary General for Internal Oversight Services, United Nations to Shri Vijay K. Nambiar, Permanent Representative of India to the United Nations, New York. The same reads as follows: This letter concerns the extension of Mr. Rahul Sur, who is working in the Monitoring Evaluation and Consulting Division of the Office of Internal Oversight Services (OIOS). Mr. Sur had been granted permission by the Government of India to work with OIOS until 6 May 2004.
Mr. Sur is currently engaged in the important assignment of coordinating the training and capacity building efforts of OIOS that will benefit not only staff, but also other offices in the United Nations as well. Thus, his continued tenure with OIOS is essential for the successful progress and completion of this capacity building task.
To this end, I should be grateful if you could take the necessary steps so that the Government of India grants him permission to work with the United Nations until 6 May 2006.
Permanent Mission of India to the UN, New York, forwarded the request of the UN to the second respondent for extension on 13.5.2004 (Annexure P-4). The communication, it appears, was a priority and most immediate one. The same reads as follows: This is with reference to the extension of the term of deputation of Shri Rahul Rai Sur, IPS, MH:81, who has been working with the Office of Internal Oversight (OIOS) of the UN Secretariat.
2. The Under-Secretary-General of the OIOS, Mr. Dileep Nair, has requested by attached letter of April 30 addressed to PR the kind approval of GOI for extension in deputation until of Shri Sur until May 6, 2006.
3. We would like to add that Shri Sur is working in a key section of the UN Secretariat. Secondly, he is not occupying a captive post. In other words, in case Shri Sur is withdrawn, it is almost certain that he will not be replaced by another Indian. We would strongly recommend that Shri Sur be given an extension in deputation until May, 2006.
4. May I request you to kindly take up the matter with the authorities concerned and convey GOI's decision approving the deputation of Shri Sur to the UN Secretariat, up to May, 2006 as requested by them.
As per the case set up by the applicant, this communication ought to have been received in New Delhi, but after going through the official records, he learnt much later that the same was purportedly not received in New Delhi, although it was purported to have been delivered having been sent through the official channels of the Permanent Mission of India. Normal mode of delivery of various official communications to officials posted in the UN, and communications sent by such officials to the Government of India, is through India's Permanent Mission to the UN, and thus in the case of the applicant, all communications from his cadre controlling authority, i.e., first respondent, ought to have been sent to Ministry of External Affairs, second respondent, and from the said Ministry to India's Permanent Mission to the UN. After lapse of the period of deputation, the applicant is said to have made numerous visits and made enquiries from Ms. Ruchira Kamboj, Counselor and Head of Chancery, Permanent Mission of India to the UN, and on his persistent requests in this regard, the Permanent Mission vide communication dated 4.8.2004 (Annexure P-5) wrote to the concerned Foreign Office in New Delhi regarding extension in deputation of the applicant. The same reads as follows: Kindly refer to our telecom regarding case of Shri Rahul Rai Sur, IPS, presently on deputation to the UN Secretariat.
2. From our conversation, it would appear that the request forwarded by this Mission vide its communication of 13 May was not received by UNES Division. Faxed, therefore, is a copy of the original request.
3. May we request you to take further action, since officer concerned has been reminding this office on the matter? We look forward to a reply at your earliest convenience.
Averments to the effect as mentioned above, have been made in paragraph 4.6, 4.7 and 4.8 of the Application. In the corresponding paragraph 4.6 of the counter reply, it has been mentioned that the contents thereof are matter of record and need no reply. In paragraph 4.7 of the reply, the procedure of communications as referred to in the Application has not been denied. In response to paragraph 4.8 of the Application, wherein mention of the applicant making numerous visits and enquiries from Ms. Ruchira Kamboj, and on persistent requests made by the applicant, the Permanent Mission sending its communication dated 4.8.2004, has been made, it has been mentioned that the applicant, as a responsible officer and belonging to an all India service ought to have contacted his cadre controlling authority or his State cadre authority to verify whether his request for extension of deputation had been agreed to or not, but the applicant rather took it for granted that extension had been allowed to him by the Government. The applicant, it is averred, did not bother to find out whether the purported reply sent by him to the memorandum dated 2.3.2005 was received by the respondent or not. There is absolutely no denial from the pleadings that the UN had indeed made a request through proper channel on 30.4.2004 for further extension of the period of deputation of the applicant, and that when the said request was not received at the end of the respondents, Permanent Mission forwarded the said request of UN to the second respondent on 13.5.2004. With the said communication dated 13.5.2004 letter dated 30.4.2004 was also attached and request was made to take up the matter with the authorities concerned, and convey Government of India's decision approving the deputation of the applicant to the UN up to May, 2006, as requested by them. This request, it appears, was also not received by the respondents. It is the case of the applicant that he had made numerous visits and made enquiries from Ms. Ruchira Kamboj, Counselor and Head of Chancery, India's Permanent Mission to UN, and on his persistent requests, the Permanent Mission vide communication dated 4.8.2004 wrote to the concerned foreign office in New Delhi regarding extension of his deputation. The communication dated 4.8.2004 reproduced above would clearly suggest that communication dated 13.5.2004 was not received by the UNES Division. A positive finding from the pleadings can thus be returned with regard to the version of the applicant that even though a day before his period of deputation was to expire, a request was made by the UN for extension of the period of deputation and the same was not received by the respondents. The said fact is confirmed in the communication dated 4.8.2004. Communication dated 4.8.2004 was received and, as mentioned above, it also contained copy of fax message dated 13.5.2004. It is after receipt of communication dated 4.8.2004 that the matter came up for consideration by the Government, and vide communication dated 4.9.2004, the request for further deputation of the applicant was declined and the applicant was to be repatriated immediately under intimation to the Ministry. Communication/letter dated 4.9.2004 reads as follows: I would like to refer to PMI to UN, New York fax message No. 88 dated 13.5.2004 regarding extension of deputation tenure of Shri R. R. Sur, IPS (MH:81) working with the Office of Internal Oversight Services of the United Nations Secretariat for a period upto 6th May, 2006.
2. The matter regarding continuation of IPS officers in UN assignments beyond approved period has since been looked into by this Ministry. It has been decided that further cadre clearance for extension of deputation tenure of Shri R.R.Sur beyond 31.5.2004 cannot be given. Shri R.R. Sur has already completed 7 years in the United Nations posting and should be repatriated immediately under intimation to this Ministry. However, in case he desires to continue in UN and makes an unconditional prayer seeking voluntary retirement, the proposal will be considered by this Ministry. Such a prayer should be received by the Ministry latest by 31st October 2004. Otherwise the officer must report back to his cadre by that date.
12. Even though, from the pleadings of parties, as reflected above, a positive finding can be recorded that a request for further extension of deputation of the applicant was made and received also at the Permanent Mission of India to UN, but the same was either not communicated to the Government of India, or if communicated, not received. It is thus proved that the request made by the Permanent Mission vide its communication dated 13.5.2004 was not received by the Government. Even though, the request dated 30.4.2004 for further extension of the deputation period of the applicant through communication dated 13.5.2004 was not received by the Government, in our considered view, the same would not make any difference and the applicant cannot advance any meaningful arguments inasmuch as, no action had been taken against him till such time communication dated 4.8.2004 was sent by the Permanent Mission and received by the Government. The said communication contained request for extension of deputation period of the applicant, and, therefore, when order dated 4.9.2004 was passed repatriating the applicant, the fax message dated 13.5.2004 was taken into consideration. The said fax message, as reproduced above, made a mention of request of the Under-Secretary-General of the OIOS, Mr. Dileep Nair dated 30.4.2004, for extension of deputation period of the applicant. Irrespective, thus, of non-receipt of communication dated 13.5.2004, no action was taken against the applicant, even though his period of deputation expired on 31.5.2004, and ultimately when a decision was taken on 4.9.2004, the request for extension of period of deputation of the applicant was considered.
13. The applicant may not have any substantial ground to raise for non-receipt of communication dated 13.5.2004, but his plea that non-receipt of letter/order dated 4.9.2004 at his end has prejudiced his case and deprived him of the opportunity to seek voluntary retirement, has substance. The letter/order dated 4.9.2004 clearly mentions that in case the applicant desired to continue in UN and made an unconditional prayer seeking voluntary retirement, the proposal would be considered by the Ministry.
14. It is the positive case of the applicant that he had not received order/letter dated 4.9.2004. It is further his case that on receipt of memorandum dated 2.3.2005, for the first time, he came to know that there was a letter dated 4.9.2004 but the same was not served upon him.
Immediately, on receipt of the said communication through the Permanent Mission, he wrote on the face of it that he had never been served with the purported letter dated 4.9.2004, and requested for supply of a copy thereof. The Permanent Mission, after duly verifying the factual position about the non-delivery of the communication dated 4.9.2004, sent a communication dated 28.3.2005 to the respondents informing that he had not received a copy of the letter dated 4.9.2004. This fact was duly acknowledged by the second respondent in official noting dated 30.3.2005. It is also the case of the applicant that the contents of letter dated 4.9.2004 came to his knowledge only when he obtained copies of documents from the first respondent by way of filing an application under the Right to Information Act. The averments to the effect aforesaid have been made in paras 4.9, 4.12 and 4.13 of the Application. In reply to para 4.9 of the Application, it has been pleaded that the contention of the applicant that communication dated 4.9.2004 was never served on him does not seem to be correct, and that he requested for copy of the above communication through the PMI, which was provided to him vide communication dated 20.5.2005. Averments made in paragraphs 4.12 and 4.13 of the Application have been replied as follows: Para 4.12: That the contents of para 4.12 are matters of record and hence need no reply.
Para 4.13: That in response to the averments in para 4.13, it is submitted that the applicant ought to have contacted the respondents to know about his status when he had completed his tenure of deputation with the U.N. on 31.5.2004. Even after receiving a communication dated 02.03.2005 from this respondent, the applicant did not bother to communicate with or contact this respondent.
From the pleadings of the parties as reflected above, a positive finding can be returned that the applicant never received letter/communication dated 4.9.2004, till such time he made an application under the Right to Information Act and obtained copy thereof. The case of the respondents, at its best, is that when the applicant requested for copy of communication dated 4.9.2004 through the Permanent Mission, the same was provided to him vide communication dated 20.5.2005. The communication dated 20.5.2005 (Annexure P-8) is a letter addressed to Ms. Ruchira Kamboj, Counselor & Head of Chancery, Permanent Mission of India to the United Nations, New York by Shri Y.P.Dhingra, Under Secretary to the Government of India, Ministry of Home Affairs. This communication is with regard to last chance to the applicant to furnish his response within ten days. It does contain an averment that copy of communication dated 4.9.2004 is enclosed for perusal of the addressee. When did the letter/communication dated 20.5.2005 reach the Permanent Mission, is not known nor has been disclosed by the respondents. As to whether the Counselor & Head of Chancery, Ms. Ruchira Kamboj, to whom the communication aforesaid was addressed, had communicated to the applicant letter/communication dated 4.9.2004, is also not known nor any averment to that effect has been made. Even if, therefore, the case as projected by the respondent is to be accepted, what would appear is that copy of communication dated 4.9.2004 was enclosed with communication dated 20.5.2005, and nothing more. By the time aforesaid communication was sent, show cause notice dated 2.3.2005 had already been issued. So much so, the applicant had already responded to the only communication received by him dated 2.3.2005 on 8.4.2005. A positive finding can thus be returned that by the time applicant replied to the show cause, he had not received letter/communication dated 4.9.2004. We may only mention at this stage that even receipt of communication dated 20.5.2005 by the applicant is in serious dispute, which we shall discuss in the following paragraphs.
15. Next in sequence is memorandum dated 2.3.2005. The same was indeed received by the applicant. The same is a show cause asking the applicant to explain as to why provisions contained in Rule 7(2)(c) of the Rules of 1955 be not invoked. He was advised to furnish his reply within fifteen days of receipt of the memorandum failing which the Government would initiate further necessary action in the matter. The applicant responded to the show cause mentioned above vide his reply dated 8.4.2005. Un-numbered paragraph 2 of the response aforesaid reads as follows: In this regard, I would like to kindly submit that I have not received the communication dated 4.9.04, which is referred to in your letter dated 2 March 2005. As I was not in receipt of your communication dated 4 September 2004 advising me to report back to my parent cadre, I understood that the Government of India had no objection to my continuing to serve with the United Nations.
The applicant then made a request that he may be permitted to serve with the United Nations till the end of his current contract on 6.5.2006. It is the case of the applicant that reply dated 8.4.2005 submitted by him to the Permanent Mission along with covering letter of even date was sent through fax on the same day, and he legitimately expected and believed that his aforesaid reply would be duly transmitted by the Permanent Mission to the respondents through official channels. Due to some inadvertence or oversight his reply dated 8.4.2005 could not be communicated and transmitted by the Permanent Mission to the respondents, and in these circumstances, it transpires that the first respondent issued communication dated 20.5.2005 addressed to the Permanent Mission inter alia stating that the communication dated 4.9.2004 was a D.O. letter issued by the first respondent expressing their inability to extend the deputation period of the applicant, and that since the applicant had failed to respond to memorandum dated 2.3.2005 within stipulated time, he was being granted a period of ten days, as a last chance, to furnish his response. It is once again, the case of the applicant that even this communication dated 20.5.2005 was not received at his end and he remained ignorant and oblivious about the issuance or contents thereof. The applicant thereafter did not hear from the respondents till 2.12.2005 when he received a letter of the said date from the Permanent Mission enclosing therewith the impugned notification dated 26.9.2005. Averments to the effect aforesaid have been made in paragraphs 4.14 to 4.17 of the Application. In the counter reply, contents of para 4.14 have been denied and it has been averred that communication dated 8.4.2005 never reached the respondents till the notification dated 26.9.2005 was issued, or even thereafter, and that the applicant did not bother to enquire about his status with the respondents. Averments made in paras 4.15 and 4.16 have been denied, and it is pleaded that it is surprising that the applicant did not receive only those communications from the respondents which were quite crucial, and his purported reply to the communication dated 2.3.2005 was also not received by the respondents, and further that if the applicant was serious enough to submit his reply, he could have submitted an advance copy directly to the respondent, even if reply to the respondent was submitted through proper channel, as furnishing advance copy of representation etc. to higher authorities is not banned in the A.I.S. rules. In para 4.17 of the reply it has been reiterated that memorandum dated 2.3.2005 was followed by another communication dated 20.5.2005, but the applicant did not respond to the said communications. From the pleadings of parties it appears to be a common case that normal mode of delivery of official communications to officials posted in UN and communications sent by such officials to Government of India, is through India's Permanent Mission to the UN. It is the positive case of the applicant that reply dated 8.4.2005 to communication dated 2.3.2005 was submitted by him through the Permanent Mission along with covering letter of even date through fax on the same day, and he legitimately expected and believed that the said reply would be duly transmitted by the Permanent Mission to the respondents through official channels, but due to some inadvertence or oversight his reply dated 8.4.2005 could not be communicated and transmitted by the Permanent Mission to the respondents. It is in these circumstances, it is further the case of applicant that respondents issued communication dated 20.5.2005 addressed to the Permanent Mission wherein it was inter alia mentioned that the applicant had failed to respond to memorandum dated 2.3.205.
Communication dated 20.5.2005 was not received by the applicant and the one dated 8.4.2005, sent by the applicant in response to communication dated 2.3.2005, was not received by the respondents. Once, it is the common case of parties that such communications are transmitted to the employees or the Government, as the case may be, through the Permanent Mission, we are of the firm view that a specific averment that no such response was received by the Permanent Mission, ought to have been made, failing which it can well be presumed that the applicant had indeed responded to communication dated 2.3.2005 and the same may not have been transmitted by the Permanent Mission to the Government.
Insofar as, receipt of communication dated 20.5.2005 is concerned, the Government could well prove receipt of the same by the applicant, but no positive evidence on that count has been placed on record. There is not even an averment that the Permanent Mission had indeed delivered the communication dated 20.5.2005 to the applicant. In totality of facts and circumstances of this case, and in particular, that there is indeed evidence showing that the request of the UN dated 30.4.2004 vide communication dated 13.5.2004 for extension of period of deputation of the applicant was not communicated by the Permanent Mission to second respondent, would show some laxity on the part of the permanent mission. Even otherwise, we find it difficult to believe that the applicant would not respond to communication dated 2.3.2005, particularly when it is proved that he was pursuing his request for extension of his deputation vigorously by making several visits to the Permanent Mission and contacting Ms. Ruchira Kamboj, Counselor and Head of Chancery, Permanent Mission of India at the United Nations.
16. Even though, our findings are such as mentioned above, in our considered view, it would not make any difference to the case of the applicant even if it is to be held that he received communication dated 20.5.2005 and the Government did not receive his response dated 8.4.2005 to its communication dated 2.3.2005. The whole consideration of the matter, in our view, would be vitiated if the applicant did not receive communication dated 4.9.2004 which was absolutely crucial. It is by virtue of this letter/order that period of deputation of the applicant was not further extended and he was ordered to be repatriated. It is by this letter/order, once again, that the applicant was given option to seek voluntary retirement, in which case, it is not disputed, he would have been entitled to all post-retiral benefits. On facts, we have already held that the applicant had obtained copy of communication dated 4.9.2004 by moving an application under the Right to Information Act, and even if it is assumed, as per the best case set up by the respondents, that copy of the same was communicated to the applicant on 20.5.2005, he had already responded to communication dated 2.3.2005 on 8.4.2005, and even the last chance given to him vide communication dated 20.5.2005 had already gone by. As already mentioned, the respondents are said to have communicated copy of letter/communication dated 4.9.2004 on 20.5.2005. Surely, the applicant, if at all, would have received the same after that date. In our considered view, non-receipt of this important communication by the applicant has vitiated the impugned order. The right available to the applicant to seek voluntary retirement, which, as per the policy of the respondents, is available and was indeed made available to him, has been denied.
17. Before we may part with the factual aspect of the case and deal with the submissions made by the Learned Counsel on legality of the impugned orders, we may mention that the applicant, after receipt of the impugned orders, did make a representation dated 4.2.2006, and when the same was cold-shouldered, he sent another representation dated 18.7.2006 (Annexures A-11 and A-12, respectively). In the representation dated 4.2.2006, he had mentioned that the decision that he should be considered as 'deemed to have resigned from the Indian Police Service' was based on inaccurate statement that he did not respond to notice dated 2.3.2005. He positively asserted that he had responded to the same. He also mentioned that he had not chosen to ignore communication dated 20.5.2005 as mentioned in the impugned order, as he had not received any such communication from the Permanent Mission. He admitted receipt of communication dated 2.3.2005 on 23.3.2005 through the Permanent Mission, but mentioned that he had made a notation on the communication from the Mission that he had not received letter dated 4.9.2004. He enclosed copy of the Mission's letter and his hand-written notation. With regard to letter dated 4.9.2004, he stated that he had till date not received any such communication, and in view of non-communication of the said letter to him and his reply to the respondents, the Ministry's decision was not based on facts. The applicant also referred to some facts relating to desirability of his continuance on deputation, which may, however, be not relevant. In representation dated 18.7.2006 he made a request for review of his case by giving his service credentials and reiterated non-receipt of important communications by him. Even though, the applicant had raised serious issues, particularly with regard to non-receipt by him of important communications, as also of his communication by the Government, a non-speaking cryptic order dated 9.9.2006 came to be passed, which reads as follows: I am directed to refer to your representation, dated 18th July, 2006 on the subject mentioned above and to state that after considering the facts and circumstances of the case, it is felt that there is no new ground to reconsider this Ministry's decision conveyed through Notification, dated 26th September, 2005 whereby you have been deemed to have resigned from service. All the contentions made by you in your representation were duly taken into account while issuing the above notification.
It is surprising to note as to how the contentions made by the applicant were considered while issuing the impugned notification when the applicant had not made such contentions till such time the impugned orders came to be passed. The impugned orders, we may again mention, are based upon the fact that the applicant did not respond to communication dated 4.9.2004, and that, it is the case of the respondents, the only communication said to have been sent by the applicant dated 8.4.2005 was not received at their end. The finding/observation made in the order dated 9.9.2006 that all contentions made by the applicant had been duly taken into consideration while issuing the notification, is patently incorrect and can even be termed to be bordering on falsehood. If perhaps the applicant would not have a cast iron case in law, we would have while quashing the impugned orders directed the respondents to reconsider his case in the light of observations made above, but it appears that the impugned notification is wholly illegal having been passed on the amended provisions of law, which could not have been applied retrospectively.
18. Shri M. S. Ganesh, learned Sr. Advocate representing the applicant contends that the amended Rule 7(2) of the Rules of 1955 was applied in the case of the applicant retrospectively, which is not permissible. It is urged that the period of deputation of the applicant which was extended from time to time, eventually came to an end on 31.5.2004.
Rule 7 as it then stood reads as follows: 7. Maximum period of absence from duty. '(1) No member of the Service shall be granted leave of any kind for a continuous period exceeding five years.
(2) Unless the Central Government, in view of the special circumstances of the case, determines otherwise, a member of the service who remains absent from duty for a continuous period exceeding five years other than on foreign service, whether with or without leave, shall be deemed to have resigned from the service.
Note: Provided that a reasonable opportunity to explain the reason for such absence shall be given to the member of the service before the provisions of Sub-rule (2) are invoked.
Rule 7 deals with maximum period of absence from duty. As per provisions contained in Sub-rule (1) of Rule 7, no member of the service can be granted leave of any kind for a continuous period exceeding five years. In view of provisions contained in Sub-rule (2), a member of the service who remains absent from duty for a continuous period exceeding five years other than on foreign service, would be deemed to have resigned from service, unless the Central Government, in view of the special circumstances of the case, may determine otherwise.
In exercise of powers conferred by Section 3(1) of the All India Services Act, 1951, the Central Government made and gazetted the All India Services (Leave) Amendment Rules, 2004, which came into force on 30.10.2004. By the said amendment, Rule 7(2) of the parent Rules was substituted to read as follows: (2) A member of the Service shall be deemed to have resigned from the service if he- remains absent from duty for a continuous period of five years, with or without leave; or continues on foreign service beyond the period approved by the Central Government: Provided that a reasonable opportunity to explain the reason for such absence or continuation on foreign service shall be given to the member of the Service before the provisions of this sub-rule are invoked.
Substituted Sub-rule (2) deals with three different situations' one pertaining to where an employee is absent without authorization for a period of one year; second where an employee remains absent from duty for a continuous period of five years, with or without leave; and third, where the employee concerned continues on foreign service beyond the period approved by the Central Government. There is marked difference between the original and the substituted Sub-rule (2) of Rule 7. If the original rule is to apply, the applicant could not be deemed to have resigned for two reasons the first being that the provision of deemed resignation is not applicable to an employee who may remain continuously absent from duty if he is on foreign service, and concededly, the applicant was on deputation on foreign service; and the second that continuous period of absence is of five years. If, however, substituted Sub-rule (2) is to apply, the applicant would be deemed to have resigned by applying Clause (c) of Sub-rule (2) which provides that a member of the service shall be deemed to have resigned from service if he continues on foreign service beyond the period approved by the Government. It is an admitted position that the applicant could not be deemed to have resigned by virtue of provisions contained in Sub-rule (2) as it then stood. It is also an admitted position that it is only by virtue of Clause (c) of amended Sub-rule (2) that the applicant would be deemed to have resigned from the date his approved foreign service on deputation came to an end, i.e., 31.5.2004. On the crucial date when the applicant overstayed the period of deputation on foreign service, the original Rule 7 was applicable in his case. By virtue of provisions contained in Sub-section (1-A) of Section 3 of the All India Services Act, 1951, the Government has power to make rules, which includes the power to give retrospective effect from a date not earlier than the date of commencement of the Act, but no retrospective effect can be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.
Sub-sections (1) and (1-A) of Section 3 of the Act of 1951 are reproduced below: (1) The Central Government may, after consultation with the Governments of the States concerned, including the State of Jammu and Kashmir and by notification in the Official Gazette make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All-India Service.
(1-A) The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any persons to whom such rule may be applicable.
It could not be disputed during the course of arguments that retrospective effect of the substituted Sub-rule (2) of Rule 7 would prejudicially affect the interests of the applicant. The impugned notification dated 26.9.2005 (Annexure P-1) is expressly rested on the basis that the applicant 'is continuing on deputation with United Nations unauthorisedly beyond 31.5.2004'. The impugned notification is thus based upon the assumption of power and authority over a person who stood specifically excluded from applicability of Rule 7(2). The notification, concededly, is not retrospective either expressly or by necessary intendment. That apart, by virtue of provisions contained in Section 3 (1-A) of the Act of 1951, the same could not possibly be made retrospectively, as surely, as mentioned above, it is bound to prejudicially affect the interest of the applicant. The prospective operation of substituted Rule 7(2) and non-permissibility with the rule making power so as not to make it retrospective apart, we are of the clear view that rule such as Rule 7(2) of the Rules of 1955, which would take away a vested right of an employee, could not possibly be made retrospectively. Reference in this connection may be made to the judgment of the Hon'ble Supreme Court in T.R. Kapur and Ors. v. State of Haryana and Ors. 1986 (Supp) SCC 585 wherein it was held that benefits acquired under existing rules cannot be taken away by retrospective amendment of rules. The power to frame rules to regulate conditions of service under proviso to Article 309 carries with it the power to amend or alter the rules with retrospective effect. An authority competent to lay down qualifications for promotion is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is, however, subject to a well recognized principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, further held the Hon'ble Supreme Court. The view as mentioned above was reiterated by the Hon'ble Supreme Court in P. Mahendran and Ors. v. State of Karnataka and Ors. , by observing as follows: It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure.
The amending Rule of 1987 in the instant case does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule seeking the change in the eligibility criteria for selection and appointment to the post of Motor Vehicles Inspectors was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amending Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment; moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.Union of India and Ors. v.Tushar Ranjan Mohanty and Ors. while relying upon its earlier judgments in State of Gujarat v. Raman Lal Keshav Lal Soni (19983) 2 SCC 33; Ex. Capt. K. C. Arora v. State of Haryana ; T.R. Kapur v. State of Haryana 14. The legislature and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstitutional acts of the Executive.
When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation.
There would be no need to make a mention of other judgments of the Hon'ble Supreme Court taking the same view, and suffice it to say that it is well settled proposition of law by now that even though, the legislature may have power to amend prospectively or retrospectively, and the retrospectivity may be express or implied, the vested rights already having accrued to a person cannot be taken away by retrospective amendment of rules. The law laid down by the Hon'ble Supreme Court, in our considered view, would apply more vigorously with regard to applicability of provisions which may be penal, resulting into punishment by way of imprisonment or fine or delinquency resulting into adverse civil consequences, which cannot be applied with retrospective effect at all. In the present case, by retrospective operation of Rule 7(2) of the Rules of 1955, the tenure of the applicant has been cut short by deeming as if he had resigned from service, and by which the applicant forfeits all his post-retiral dues.
The averment to that effect has been made in para 4.25 of the Application, relevant part whereof reads as follows: 'By way of the said Notification, the Applicant has been deprived of not only his pension but also the voluntary contributions, which the Applicant has himself made to the fund while on deputation.' There is no specific denial to the averment as mentioned above, in the corresponding paragraph in the counter reply.
19. Per contra, Shri A. K. Bhardwaj, Learned Counsel representing the respondents, in his endeavour to show that substituted Rule 7(2) of the Rules of 1955 would apply in the case of the applicant and order deeming that he had resigned from service could be passed, placed reliance upon judicial precedents, firstly a Single Bench decision of the Delhi high Court in the matter of Rattan Singh v. Chairman/Managing Director, DTC Writ Petition (C) No. 7847/2007 & CM 14838/2007, decided on 29.10.2007). The facts of the case aforesaid reveal that services of the workman covered under Industrial Disputes Act, 1947 were terminated under the garb of deemed resignation. A reference was made by the government to the labour court the terms of which were as to whether the action of the management in treating the workman to have resigned was illegal and/or unjustified, and if so, the relief to which he was entitled. The workman lost his cause before the labour court and challenged the award by way of the writ petition aforesaid. The counsel representing him urged that his services were terminated under the garb of deemed resignation on 16.6.1988 and he was removed from service by the management vide order dated 6.2.1991. The learned Single Bench on the facts of the case and on perusal of the impugned award, observed that 'no relief award was passed against the petitioner/workman not only on the ground of delay and laches, but also on the ground that the services of the petitioner were terminated under the then existing Rule 14(10)(b) of the DTC (Conditions of Appointment and Services) Regulation, 1952 which provided that in case a workman remained on leave beyond three months, his services could not be regularized and he is deemed to have resigned from the services of the Corporation'. Rule 14(10)(b) was admittedly in existence on the date when services of the petitioner were terminated. The regulation was, however, subsequently deleted, and on that count a contention was raised on behalf of the petitioner that there was fallacy in the impugned award for the reason that the regulation was subsequently deleted and could not be applied.
The said contention was repelled by observing that 'The said plea is not tenable for the reason that at the relevant time, undoubtedly the aforesaid regulation was in force and the mere fact that the respondent/DTC passed an order dated 6.12.2001 deciding not to invoke the said clause in cases where the employees remain/are found absent without permission or prior sanction of leave, cannot be a ground for making it applicable with retrospective effect'. We are surprised as to how this judgment would advance the case of the respondents. It rather appears to be advancing the case of the applicant.
20. The counsel then placed reliance upon another Single Bench decision of the Delhi High Court in the matter of Balram Sharma v. Union of India WP (C) No. 604/001 decided on 29.11.2004. The challenge in the writ petition aforesaid was to the memorandum dated 8.11.2000 holding the petitioner as deemed to have resigned his appointment in ONGC w.e.f. 29.2.2000. It was urged on behalf of the petitioner that the respondents had served a show cause notice belatedly on 29.7.2000 calling upon him to show cause why Rule 14 of the ONGC Leave Rules be not invoked and he be not treated as having resigned with retrospective effect from 29.2.2000. It was further urged that the petitioner had to his credit 208 days of earned/half pay leave and that the said leave was liable to be adjusted for the period of absence, and the respondents could not have invoked Rule 14(5). The contention raised on behalf of the petitioner was repelled by observing, thus: 7. In the instant case before proceeding with the matter, show-cause notice dated 29th July, 2000 had been duly issued to the petitioner requiring him to show cause as to why Rule 14(5) of ONGC Leave Rules, 1995 be not invoked and he be not treated as having resigned with retrospective effect from 29th February, 2000. As noted earlier, the petitioner received notice, sent a reply where he tendered no explanation for his unauthorized absence. Where in response he only stated that he had to seek extension on account of his mother's illness. He recognized that the said request for extension was not considered favourably. Petitioner mentioned the factum of his mother passing away. He requested for being posted at Delhi and the request to be reconsidered on humane grounds. It would thus be seen that the petitioner even at this stage did not indicate his willingness to join at Jammu but wanted reconsideration to be permitted to stay at Delhi. He neither protested to the invocation of Rule 14(5) and his being treated as deemed to have resigned nor did he seek adjustment of any earned leave or extraordinary leave to his credit. Petitioner was conveyed the rejection of the request on 18th October, 2000. It was only belatedly on 13th November, 2000, that he indicated his willingness to report for duty and sought regularization of absence by grant of leave under the rules. This was subsequent to the impugned order dated 8th November, 2000 having been passed. It would thus be seen that the petitioner had been duly served with the show-cause notice to which he responded as above, without taking any grounds as are now sought to be raised after the impugned order had been passed.
The matter appears to have been decided on the facts of the case, and in particular that the notice dated 29.7.2000 invoking Rule 14(5) was received by the petitioner to which he sent a reply wherein he tendered no explanation for his unauthorized absence. In response, he only stated that he had to seek extension on account of his mother's illness. He did not even protest to invocation of Rule 14(5) and his being treated as deemed to have resigned nor did he seek adjustment of any earned leave or extraordinary leave to his credit. In our considered view, the judicial precedent relied upon by the Learned Counsel representing the respondents would not at all be applicable to the facts of the present case. It raises no such question as retrospective applicability of a rule adversely affecting the rights of an individual, nor is there any finding to that effect by the Hon'ble Bench.
21. The next reliance of the Learned Counsel is upon the judgment of the Hon'ble Supreme Court in Sudhir G. Angur and Ors. v. M. Sanjeev and Ors. (2006) 1 SCC 141. One of the points involved in the case aforesaid was with regard to law to be applied in determining jurisdiction of court, as existing on the date of institution of suit or on the date on which suit comes up for hearing. The Hon'ble Supreme Court held that the court is bound to take notice of the change in the law and to administer the law as it was when the suit came up for hearing, and that if the court has jurisdiction to try the suit when it comes for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it on the date of institution. We may only observe that the Hon'ble Supreme Court was dealing with a procedural law, in which no rights of the parties were affected. It was so specifically observed on the basis of a decision of the Bombay High Court in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass AIR 1952 Bom 365 that no party has a vested right to a particular proceeding or to a particular forum. It was held that procedural laws are retrospective unless the legislature expressly states to the contrary. Without going into other questions, the judgment relied upon by the Learned Counsel would not be applicable, as surely, it does not deal with any vested right of a citizen. It rather, as mentioned, specifically held that no party has a vested right to a particular proceeding or to a particular forum.
22. Reliance placed by the Learned Counsel upon other decisions of the Hon'ble Supreme Court in Bangalore Jute Factory Co. v. Inspector of Central ExciseR. Vishwanatha Pillai v. State of Kerala and Ors.
misplaced. In Bangalore Jute Factory Co. (supra) one of the contentions raised was that Rule 3 of the Jute Cess Rules was a case of legislation by reference and that in such a case the provisions of the Central Excise Act and the rules made thereunder as they were obtaining on the date of making of Rule 3 continued in the same form, unaffected by subsequent amendments or changes in the Central Excise Act and Rules.
It was further urged that amendment effected in 1982 in rules 9 and 49 of the Central Excise Rules was not available/applicable to the levy and collection of cess under Section 9 of the Act. It was also urged that the Act did not confer upon the Central Government the power to make rules with retrospective effect. The argument was repelled by observing that the very approach of the Learned Counsel was based upon an incorrect premise, and it was not true to say that Rules 9 and 49 of the Central Excise Rules, as they stood before the 1982 amendment, did not permit levy of duty on captively consumed goods. The assumption that under the amended rules, it was 'well settled' that duty could not be levied on the captively consumed goods, was held to be wrong. It was further held that that though levies and collected as a cess, the imposition under Section 9 is a duty of excise. While dealing with the retrospective effect, it was further held that 'the language of Rule 3 of Jute Cess Rules is altogether different. It indicates a continuing applicability of the provisions of the Central Excise Act and the Rules. What was levied was a 'duty of excise' and it was to be levied and collected in accordance with the provisions of the Central Excise Act and the Rules. The effect is as if the words 'for the time being in force' were there after the words' the provisions of Central Excise and Salt Act, 1944 (1 of 1944) and the Rules made thereunder' in Rule 3. We are, therefore, of the opinion that the amendment of Rules 9 and 49 made in 1982 (with retrospective effect from 1944) is equally applicable in the matter of levy and collection of cess under the Act'.
The contention raised on retrospective effect was repelled by holding that the cess, even though, called by different name, was attracted even as per unamended provisions. The facts of R. Vishwanatha Pillai (supra) reveal that the appellant, according to his school record, belonged to a forward caste. He obtained a community certificate on 14.10.1969 stating that he belonged to a reserved community. In the year 1977 he was selected as a direct recruit to the post of Deputy Superintendent of Police against a seat reserved for Scheduled Caste on the basis of that caste certificate. He was subsequently promoted to IPS. The Government of Kerala on the basis of a complaint received, ordered a full-fledged anthropological enquiry into the caste status of the appellant. Preliminary investigation was conducted by the Kerala Institute for Research, Training and Development Studies of Scheduled Castes and Scheduled Tribes (KIRTADS). Appellant was served with a notice, and on evidence, KIRTADS found that he did not belong to SC community. Pursuant to judgment in Kumari Madhuri Patil v. Addl.
Commissioner, Tribal Development Government constituted a scrutiny committee by notification dated 8.5.1995. Enquiry into the caste status of the appellant was referred to the said committee. The appellant was duly notified by the committee, and after examining the documents produced by him, by a speaking order dated 18.11.1995 rejected his claim. That order was upheld by the High Court and the Supreme Court. On 24.4.1997, at the instance of the appellant, Central Administrative Tribunal (Ernakulam Bench) directed that his services be not terminated without following the procedure laid down in Article 311 and the rules. Relying on Kumari Madhuri Patil (supra), the Kerala High Court reversed that decision.
Thereafter, the appellant was dismissed from service by order dated 12.10.2000. It is against that order the appellant had filed Civil Appeal before the Hon'ble Supreme Court. One of the contentions raised in support of the plea was that law laid down by the Hon'ble Supreme Court in Kumari Madhuri Patil (supra) would operate prospectively and could not be applied in the case of the appellant. The said contention was repelled by observing thus: We do not find any substance in this submission as well. The judgment in Kumari Madhuri Patil case was delivered on 2-9-1994.
Inquiry against the appellant had started in the year 1988 by KIRTADS. Report of the Scrutiny Committee is dated 18-11-1995. The order of removal from service is dated 11-10-2000. Keeping in view the fact that the order was passed subsequent to the order of this Court, it cannot be held that the law laid down in Kumari Madhuri Patil case is being applied retrospectively.
On facts of the case, it has been specifically held that judgment of the Hon'ble Supreme Court was not being applied retrospectively. The procedure as mentioned in Kumari Madhuri Patil (supra) for finding out the caste of the appellant had already been gone into before the order was passed by the Hon'ble Supreme Court in Kumari Madhuri Patil (supra). Even the report by the KIRTADS had also been submitted before the said date.
23. None of the judicial precedents relied upon by the Learned Counsel representing the respondents have parity with the facts of the present case, and are thus distinguishable.
24. The next and the last contention raised by the Learned Counsel representing the applicant is that Rule 7(2) as substituted is ultra vires being opposed to Articles 14, 16 and 311 of the of the Constitution of India. It is urged that treating the applicant as 'deemed to have resigned' without following due process of law, is violative of Article 311, which states that no member of the Civil Service of the Union or an All India Service shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges, and that no such enquiry was ever held nor any opportunity was ever afforded to the applicant despite the fact that the affect and consequences of treating him as deemed to have resigned are much graver and more serious than most of the major penalties as prescribed under service rules. It is urged that holding an enquiry is must as a prelude to taking such a punitive action.
25. What emerges from pleadings and the contentions raised by the Learned Counsel representing the applicant is that the impugned Rule 7(2) cuts short the tenure of a permanent employee, and even if the same by a legal fiction is called 'deemed resignation', the same would nonetheless be termination from service. The Learned Counsel for his aforesaid contention has relied upon judicial precedents as well. Shri A.K. Bhardwaj, joins issues with the Learned Counsel representing the applicant and to support his view has cited some judicial precedents as well. We are of the considered view that once, the applicant succeeds and the present Application has to be allowed on the grounds mentioned hereinbefore, there would be no need to go into the constitutional validity of Rule 7(2) of the Rules of 1955.
26. Before we may part with this order, in all fairness to the counsel representing the respondents, we may mention that it has been strenuously urged that the applicant for remaining on foreign assignment despite orders not further extending his deputation period, has misconducted himself and the respondents, instead of dismissing him from service, have rather dealt with him lightly and leniently. We do not wish to comment upon this aspect of the case, but for to observe that if it be the case of respondents that applicant has indulged in misconduct, it would be open for them to deal with the applicant departmentally. They may do so in accordance with law.
27. In view of the discussion made above, the impugned notification dated 26.9.2005 is quashed and set aside with liberty to the respondents to proceed against the applicant in accordance with law. In the facts and circumstances of this case, however, there shall be no order as to costs.