Hon’ble Mr. Tarun Shridhar:
1. Shri Sanjiv Chaturvedi, an officer of Indian Forest Service (IFS) borne on the Uttarakhand cadre, seeks appointment on deputation in the organization of the Lokpal and is aggrieved that his request/representation to this effect made almost three years back is still not being considered favourably. Accordingly, he has filed the present Original Application (OA) seeking the following reliefs:-
(i) To kindly fix an early date for disposal of interim relief, as per order dated 04-08- 2020, passed by this Hon‟ble Tribunal, and in view of fulfillment of all the conditions for passing interim order under Section-24 of Administrative Tribunal Act, 1985, otherwise Applicant may suffer irreparable loss.
(ii) To impose cost on Respondent No.1 for deliberately delaying disposal of interim relief by willful non compliance of orders of this Hon‟ble Tribunal dated 04.08.2020, in not filing reply within stipulated period, on unsustainable grounds/excuse.
(iii) To pass any other order as deemed fit in facts and circumstances of the case.”
2. Brief facts of the case are that the applicant‟s representation seeking the aforementioned appointment on deputation in the organization of Lokpal was submitted through the State Government of Uttarakhand to the Government of India in the Ministry of Environment, Forest and Climate Change vide letter dated 23.12.2019. While forwarding the representation of the applicant, the State Government had accorded its „No Objection Certificate‟ (NOC)/concurrence. The appropriate authorities in the Government of India, while considering this communication from the State Government on the subject of the applicant‟s request for deputation/permission to serve in the organization of Lokpal, sought a clarification from the State Government, and subsequently from the applicant as well whether he had made his representation/request in response to any advertisement or vacancy notification and if so, the same may be provided for the matter to be processed further. In the absence of this, the request/representation of the applicant is still pending.
3. Before dealing with the matter any further, we would like to record here that it has surprised us during the course of hearing that what we consider to be a simple matter on taking a decision on the request of the applicant, it has got unduly complicated and also degenerated into allegations and counter allegations. Several MAs and affidavits have also been filed during the course of hearing of the OA.
4. The applicant in person has primarily argued on the grounds discussed hereinafter. He claims that on account of his rich experience in various capacities, such as Chief Vigilance Officer of AIIMS and in his State, he is eminently suitable to discharge the duties of an officer in the Lokpal, especially in the Enquiry/Investigation Wing. The applicant submits that he has been the recipient of appreciation and awards from various constitutional/statutory bodies as also the courts. Besides drawing attention to the constitutional provisions and the rules governing his service, which is an All India Service, the applicant argues that the rules provide for deputation of a cadre officer to an autonomous body and/or a body controlled by the Government. Drawing attention to the appointments being made to the organization of the Lokpal, the applicant submits that various senior officers, who have been posted there at the level of Secretary/Additional Secretary/Joint Secretary, have not been posted in response to any advertisement or recruitment notice but through the route of Appointment Committee of Cabinet (ACC) or the Civil Services Board (CSB). He strongly argues that by taking shelter behind absence of an advertisement or notice inviting applications, the respondents are misleading the issue only to deny an opportunity to him to serve in the institution of the Lokpal.
5. Besides oral arguments on various dates of hearing, the applicant has also submitted a detailed written submission in which he has extensively quoted from various pronouncements of the Hon‟ble Supreme Court, in addition to some doctrine of jurisprudence. Why we are restraining ourselves from quoting from them extensively is that most of these pertain to issues such as what constitutes arbitrariness, vindictiveness etc. or to some other principles of law. The applicant in his oral as also in his written arguments has digressed from his main prayer to investing quite a bit of his time and energy on establishing malafides and malice on the part of the respondents. He further traces the history of his service career, which according to him, is “a very long and proven history of victimization and harassment”. The applicant has also cast some aspersions on individuals, some of whom have worked as officers in the organization of Lokpal and tried to establish that despite not possessing any merit or experience, they were given appointment in the organization, whereas his outstanding merit is being ignored.
6. The applicant also alleges perjury on the part of the respondents and even goes on to question the conduct of the learned counsel for the respondents by terming it “unprecedented, brazenly unethical and betrayal of his fundamental duty to act as a truthful and honest officer of the court”. Why we are quoting these arguments of the applicant, though in brief, is merely to point out that a very limited issue involved in this OA has got derailed, perhaps on account of an emotionally charged approach. We are not here either to certify the merit of the applicant or of anyone else. Moreover, qualification, ability and conduct of the individuals referred to by the applicant are neither germane nor relevant to the issue before us, at all.
7. To cut a long story short, the case of the applicant is that being an officer of All India Service, his request/representation for deputation to the organization of Lokpal, deserves a fair consideration. No matter how the relief sought for by the applicant in the OA may be worded in the written submission he has furnished, his prayer is to direct the respondents that his request as forwarded by the State Government be decided by the competent authority. Although he goes on to explain also as to how the competent authority should decide the same and what facts and issues it needs to take into consideration, we feel that while the applicant has the right to seek a consideration of his request, he certainly does not enjoy the authority to direct as to how such consideration should be made. Moreover, during the course of the hearing, the applicant repeatedly emphasized that his prayer is limited to forwarding his application as concurred to by the State Government to the office of the Lokpal. For this, the applicant has repeatedly drawn attention to the order passed by us during the hearing on 15.12.2021, the relevant portion of which reads as under:-
“Shri Chaturvedi, the applicant, argues that it is too premature a stage for the Government to be asking these questions. At this stage, all he is seeking is merely a forwarding of his request to the office of the Lokpal. He further clarifies that he is not seeking any positive or categorical direction with respect to his selection for any position or for his deputation. His prayer is limited to a mere consideration of his application on merits and in accordance with the rules.
In our view, this request is very fair and it is incumbent upon the respondents to take a decision which is reasoned and in accordance with rules and precedence. We also note the fact that Mr. Chaturvedi has cited instances wherein officers have either continued on deputation beyond the stipulated period or officers who would have been selected for various positions without going through the process of responding to a particular advertisement or notification.
Shri T.C. Agarwal, learned counsel for the Union of India, points out that the respondents have not at all erred in seeking the clarification as the rules clearly stipulate that an officer is supposed to apply for a particular position only if such applications are called for. In this case, the applicant had suo moto made an application and hence the respondents are right in seeking the above clarification.
In our view, this is a bid hyper-technical objection, we expect the MOEF & CC to display magnanimity and openness in this issue and take an expeditious and considered view in accordance with rules on the request made by the officer seeking deputation in the office of Lokpal. To this effect, we give an opportunity to the learned counsel for the respondents to seek appropriate instructions from the Ministry of Environment and Forest, and submit the same before the Tribunal on the next date of hearing.”
The aforesaid observations/directions are crystal clear. However, no decision got to be taken on the same.
8. Concluding the arguments, the applicant alleges that a large number of senior level positions up to the level of Additional Secretary/Joint Secretary are lying vacant in the organization of Lokpal, thus rendering the institution ineffective. He submits that this has resulted in the institution being non-functional, so far. Finally, however, the applicant zeroes in on the principle of legitimate expectation of being considered for the deputation in a fair and impartial manner without any prejudice.
9. Besides oral arguments on behalf of the respondents, written submissions have also been submitted on behalf of respondent nos. 1 and 3. Learned counsel for respondent no.2, i.e. the State of Uttarakhand, submits that since the State Government has already given its NOC and concurrence to the request/representation of the applicant, he has nothing further to add, as the State Government would be obliged to accept whatever decision the Union of India takes.
10. Learned counsel for respondent No.1 admits that the Ministry of Environment, Forest and Climate Change has received the letter of the applicant on the subject duly forwarded by the State of Uttarakhand, respondent no.2. The representation has been examined in the Ministry and since there was no advertisement/vacancy circular on record against which the applicant had applied, the Ministry, i.e. respondent no.1, has requested both the State Government and the applicant to provide the said vacancy circular/advertisement. Learned counsel argues that this is a prerequisite to examining and further processing the request of the applicant. Drawing attention to his supplementary counter affidavit, learned counsel argues that he has already placed the said communication of the Ministry on record. He further submits that the applicant has been provided with all the relevant information with respect to his case. Establishing the bonafides of the respondent, he submits that reminders on the subject have also been sent to the State Government and the applicant and he has placed these too on record. Learned counsel argues that this is a case wherein the applicant has suo-moto sought appointment/employment, which is contrary to the guidelines contained in the DoPT OM No.28011/1/2013-estt.(c) dated 23.12.2013. Quoting from Para 4A of these guidelines, the learned counsel explains the procedure for applying to the post outside the Government in autonomous bodies/public enterprises. The said Para reads as under:-
“Applications from Government Servants for employment elsewhere, submitted otherwise than in response to advertisement or circulars inviting applications, should not be forwarded.”
11. Further drawing attention to the written submission submitted on behalf of respondent no.3, learned counsel submits that the request of the applicant is vague because he has not even identified the post against which he aspires to be appointed in Lokpal. He points out that the applicant belongs to All India Service and in case of AIS officers, approval of ACC would be required for appointment in the office of the Lokpal.
12. Contesting the argument of the applicant that his case is covered by various judicial pronouncements, learned counsel submits that the said pronouncements concern specific posts which have been advertised for the purpose of selection, whereas the applicant is seeking appointment to a particular post in an organization of his choice claiming that he is more deserving than anyone else. He further reiterates that the case of the applicant would be governed in accordance with the rules meant for deputation of All India Service officers, copy of which he has annexed with his written submissions. The request of the applicant seeking suo-moto posting/appointment is, in fact, in conflict with the powers and authority of the Lokpal as defined in Lokpal and Lokayukt Act, especially the provision which vests the powers of the appointment in either the Chairman or any other officer authorized by him. Learned counsel emphatically argues that the applicant does not enjoy any right to be appointed/posted on deputation, that too, in a particular organization.
13. We have heard the arguments put forth by the applicant and the learned counsel for the respondents at great length. We have also carefully gone through the voluminous documents on record.
14. Despite long drawn arguments and a large number of affidavits and miscellaneous applications, the core issue, which remains to be decided, is a singular and simple one. The applicant has preferred an application/representation requesting for a consideration for posting on deputation in the organization of Lokpal. Being an officer of the Indian Forests Service, which is an All India Service, the applicant is entitled to seek such a deputation in the Central Government or any autonomous organization of the Government. While establishing his claim, the applicant has drawn attention to his own meritorious abilities and rich experience compared to other officers who have held various positions in the organization of Lokpal. In our considered opinion, we are not qualified to evaluate either the merit of the applicant or other officers, he has referred to in his arguments. Moreover, the issue at stake is not the relative merit of the applicant or other officers. We reiterate that arguments on peripheral issues have dominated the course of hearings. Therefore, we would not like to dwell any further on the issues which have been narrated in the preceding paragraphs of this order.
15. We are of the view that the most appropriate course would be for the competent authority amongst the respondents no.1 and 3 to decide the pending representation/request of the applicant, which has been forwarded to them on 23.12.2019 by the Government of Uttarakhand vide letter bearing No.X-1-2019-03(01)/2016. If a direction were given to the concerned authority to this effect, no prejudice is likely to be caused to either the respondents or the applicant. Moreover, a decision on the pending representation is precisely what the applicant prays for at this stage, and the respondents being public authority are obliged to decide the same.
16. Therefore, without commenting upon the merit or suitability of the applicant, we give a direction to the respondent no.1 to take a decision on the pending representation of the applicant as forwarded by the State Government of Uttarakhand vide letter referred to above, within a period of eight weeks from today, in accordance with rules and guidelines governing the subject. The respondent no.1 may seek consultation with the respondent no.3, if so warranted and the respondent no.3 shall provide such sought for advice as expeditiously as possible in order to ensure that the issue is decided within the aforesaid period of eight weeks. However, if after consideration, the respondents no.1 and 3 are of the view that the decision in the matter lies with the office of the Lokpal, they shall, within this period of eight weeks, forward the said representation to the Lokpal for decision/action as deemed appropriate.
17. The OA stands disposed of in the light of the aforesaid directions. Associated MA, if any, also stands disposed of. There shall be no order as to costs.
