Thursday, November 1, 2012

OA 191/2008 draft ?????????? check

Looks like draft stage -- compare with the final hard copy of delivered judgement 



TODAY, THIS THE           DAY OF ................. , 2011

                        HON'BLE SHRI V.AJAY KUMAR              ...MEMBER(J)                                                                            

Sri Upendra S. Baghel, IPS,
S/o Sri Naubat Singh Baghel,
Aged 43 years,
IPS Officer, presently posted on 
deputation to United Nations -
International Criminal Tribunal for Rwanda,
Working as Investigator in U.N. and now in
Bangalore at No.1014/C, 17th D-Cross,
II Stage, Indiranagar,
Bangalore – 560 038.                                  ...                                 Applicant's

(By Advocate Shri G. Sugumaran)

1. Union of India,
    through the Secretary,
    Ministry of Home Affairs,
    North Block, New Delhi – 110 002.

2. State of Karnataka,
    through the Chief Secretary,
    Government of Karnataka,
    Bangalore – 560 001.                              ...                                 Respondents

(By Advocates Shri M.V. Rao, Sr. Central Govt. Standing Counsel For R-1
and Shri M. Nagarajan, State Govt. Advocate for R-2)


Hon'ble Smt. Leena Mehendale, Member (A) :
            This is the case of one  IPS officer who has been  taken up on deputation by the UN and is holding,  as per his own claim, that prestigeous assignment.   The IPS service to which he belongs is also prestigeous service within the country. It is a case in which it seems the applicant was unable  to decide  which of the two prestigeous  posts he should quit and which one he should
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retain between  the two assignments.  He endeavoured to retain both the assignments by interpreting the Rules to his advantage.  As the consequences grew bigger and to his detriment, he has approached this Tribunal for remedy.

            Briefly stated, we have one IPS oficer who went on UN deputation in 2000 which perhaps ended on some day.  As per his claim, he also requested for permission to join back the cadre with promotion.  He also received notice from respondent under Rule 7(2)(c) of All India Services (Leave) Rules, 1955 that he is deemed to have resigned from the IPS and has been treated as "stands relieved".  Therefore, we have to examine the three issues:
1.            Can his deputation be taken as ended and with effect from which                           date?

2.            Can he be said to have joined back the cadre?
3.            Can there be justifiable action against him under the above said                             Rule?

2.         This case is filed on 26.05.2008 under Section 19 of the Administrative Tribunals Act, 1985, praying
"(a) That this Hon'ble tribunal may be pleased to call for all the relevant records and documents from the Respondents relating to this matter.

(b) That this Hon'ble Tribunal may be pleased to quash and set aside the impugned Notification No.24009/85/99-IPS.II dated 25.02.2008 issued  by the Respondent No.1 vide ANNEXURE-    A-01 in which the Applicant has been treated as deemed to have resigned from the Indian Police Service and has been treated as "stands relieved" from the Indian Police Service under the amended Rule 7 (2)(c) of the All India Services (leave) Rules, 1955.

(c) That the costs of this application may be provided for.

(d)           Such other or further orders as this  Hon'ble Tribunal may deem fit in the circumstancers of this case, not limiting to give compensation to the applicant fron the mental and psychological harm and enormous expenses on travel and loss of working days
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with UN-ICTR"

            An interim relief was also prayed as under:-

(a) That pending the hearing and final disposal of this original application the operation of the impugned Notification No.24009/85/99-IPS.II dated 25.02.2008 issued by the Respondent No.1 vide ANNEXURE-A-01 may please be stayed by this Hon'ble Tribunal.

(b) That ad interim relief in terms of prayer clause (a) above be passed in favour of the Applicant.

However, the interim relief was not allowed.

3.         Brief facts of the case as claimed by the applicant are:-

3.1       The applicant is an IPS (Indian Police Service) Officer of 1988 batch of Karnataka Cadre.  He was selected by United Nations for deputation, after taking due approval from Government of Karnataka as well as from Government of India , as is the requirement of the terms and conditions of the IPS. The relevant orders are  letter No. 1-21015/40/99-IPS.III, dated 3-2-2000, from the Government of India,  Ministry of Home Affairs, New Delhi (Annexure-A-01-A). and No. DPAR No 199 SME 99,  Bangalore dated 05.02.2000, from Government of Karnataka,

3.2       The applicant joined the United Nations  - International Criminal Tribunal Rwanda (UN - ICTR)  at their office at Kigali, Rwanda.  His initial appointment under UN was for one year. He was performing highly specialised work involving war crimes and violations of Geneva Conventions etc. and was the only  officer from India  who has been  given this challenging assignment with the said Tribunal i.e. ICTR.  It is claimed that on the basis of his performance and because of his involvement in handling sensitive cases, the UN has
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extended his assignment from time to time. 
            The details of extension  of  the assignment given are claimed as under:-
1.  First Phase        05 Feb 2000 – 04 Feb 2001         Kigali/Rwanda
2.  Second Phase   05 Feb 2001 – 04 Feb 2003         Kigali/Rwanda
3.  Third Phase       05 Feb 2003 – 04 Feb 2005         Kigali/Rwanda
4.  Fourth Phase     05 Feb 2005 – 04 Feb 2006         Arusha/Tanzania
5.  Fifth Phase        05 Feb 2006 – 04 Feb 2008          Arusha/Tanzania
3.3       Applicant then refers to Annexure-A3, dated 1-3-2006 wherein he informs Respondent No.2 that ICTR has extended his assignment till December, 2007. Hence, it is prayed that:-
"my deputation period may be extended atleast till December, 2006 and at that time I will inform your kind office about the status of the case and whether I am in position to wind up without affecting trial/court work and join the state or need some more time." 

Above statement is in contradiction when it is claimed at para 4 of the synopsis that
"when the applicant was due for his promotion to super time scale of IPS in the year 2006, he informed the Respondent No.2 through his letter dated 01-03-2006 about his intention to report back from the said deputation."

Perusal of Annexure-A3 reveals that by that letter, he mainly informed Respondent No.2 that ICTR has extended his assignment till 31 December, 2007". It appears to us as a clear-cut attempt of misleading the Tribunal.
Similarly, nowhere in the OA it is clarified by the applicant whether the extension  was done by UN with the prior permission of Government of India (or Government of Karnataka).
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3.4       On 4.12.2006, he wrote another letter vide Annexrure-A7, to the Chief Secretary, that his batch RR-1988/IPS has been promoted to Super Time Scale (IG level), but he is not aware about his status of promotion, hence has requested to look into the matter and the process may be initiated for his promotion to Super Time Scale, so that he can join the parent cadre/Karnataka state in that scale, as soon as and after the promotion is accorded.
3.5       Thereafter on 9—2-2007, vide Annexure-A8, he reiterated the details of his deputation from 5-2-2000 onwards till 4-2-2008 as claimed to have been extended by ICTR and has given references to the letters at Annexures-A3, A4,A5,A6,A7.  He also refers to two personal visits which he paid to Bangalore at his cost one in June, 2006 and another in December, 2006 and claims that he orally explained the situation of his deputation to the Chief Secretary also mentioning that he learnt during these visits that the Govt. of India was yet to give consent to treat the whole period as deputation.  He ends this letter with a request
"4......... the facts and extra ordinary circumstances mentioned above may be forwarded to the Government of India to consider my request (for extending deputation) allowing me to join the service as early as possible."

He also requested for processing his promotion to Super Time Scale through DPC from the date the 1988 batch of IPS Karnataka got promotion to that scale.

3.6       Thereafter, the Respondent No.1 ,vide Annexure-A9 dated 13-3-2007, while calling his explanation mentions that his deputation to the UN was last allowed by the Govt. of India upto 4-2-2005, his request for further extension was not acceded to and he was already advised to report back to Respondent
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No.2 vide their letters dated 17-5-2006 (Annexure-A4), 1-7-2006, (Annexure-A5) and 11-9-2006 (Annexure-R2).

3.7       This letter shows that applicant is aware of letters at Annexures-A4, A5. In the meantime, Govt. of India have laid down amended Rule 7(2)(c) of All India Service (Leave) Rules,1955 (as amended on 19-10-2004) which states that "a member of the Service (including the IPS officers) shall be deemed  to have resigned from service if he continues on foreign service beyond the period approved by the Central Government.  A reasonable opportunity has however also been provided to such officer before invocation of these provisions. Accordingly, as a last chance, the applicant officer is again asked to explain as to why these provisions should not be invoked." 
3.8       This show cause notice was dated 13-3-2007 (Annexure-A9).  He replied to this show cause notice vide Annexure-A10 dated 28-4-07.   The Respondent No.1 vide Annexure-A11, dated 21-5-2007 informed him that he has been allowed a further time of one month to join back the parent cadre as a last chance. Thereafter, vide Annexure-A14, dated 21-6-2007, the applicant once again sent a request for additional time to join the cadre, in response to which, he was informed vide Annexure-A15 dated 11-10-2007 that:
"....... It has been decided to allow you further time of thirty days from the date of receipt of this communication to join back your parent cadre as a last chance failing which the Government of India would be at liberty to invoke the provisions of rule 7(2)(c) of the AIS (Leave) Rules in your case."

3.9       Thereafter, the applicant vide Annexure-A16, dated 7-12-2007 requested the Home Secretary to Govt. of India for a further extension to join back the
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cadre in response to which the Respondent No.1 vide letter dated 17-12-2007 (Annexure-A17) once again allowed him seven days time to join the parent cadre once again reiterating that "failure to join back would force the Govt. of India to invoke provisions of rule 7(2)(c) of AIS (Leave) Rules.

3.10    The applicant claims that at this stage he reported back to the parent cadre.  In support of this claim, he refers to Annexure-A18, dated 24-12-2007 stating :
            "In compliance with the above referred letter, I hereby, today (F/n) on 24th December,m 2007 report before the parent cadre (Karnataka).
            Further, please find my attached letter dated today (24th Dec 2007) and I request you to forward it to the Ministry of Home Affairs, Government of India and Department of Personnel and Training, Government of India with your recommendations, if any, for their consideration."

In the said attached letter dated 24-12-2007 addressed to Respondent No.1 vide Annexure-A19, he once again seeks to explain:
1.            How his continuation with UN was important.
2.            Now, he has reported back to the parent cadre.
3.            How he may be allowed to continue to work with UN-ICTR with                               immediate effect till February, 2008.

In this letter, he has carefully avoided to state whether he has been relieved from UN or not.
3.11     As per Annexure-A20, dated 16-1-2007, the Respondent No.2, i.e., the Chief Secretary, Govt. of Karnataka, wrote to Respondent No.1 as below:
".......  Of late the officer has submitted the duty report on 24-12-2007.  Along with the letter dated 24-12-2007, he has also submitted a memorandum to Government of India for submission through proper channel. ....  As could be seen therefrom, the officer has not got relieved
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from his UN assignment to report back at Bangalore.  He has just taken some leave to comply with Government of India instruction and has submitted a letter claiming to be duty report and again he has gone back and has reported back with UN Mission.  In the circumstances, it is clear that the officer has not reported for duty back in the parent cadre......."

            Thereafter, on 17-1-2008, vide Annexure-A21, the applicant sent one E.Mail to both the respondents stating as under:
"I am not under dual control as currently, I have been receiving my salary/emoluments from the United Nations and only after resuming the duties against the post, I shall be receiving my salary/emoluments from the Government of Karnataka.

I reported before the parent cadre in compliance to the directions given to me in Dec 2007 and requested the State Government to give me posting so that I can resume my duties against the post.....

I have reported before the parent cadre and duty may be assigned to me, which I can join after resigining the current assignment.  Hence, it is requested to give me an appropriate posting in this regard. I will be sending a formal request in due-course."

This was followed up by another E.Mail dated 28-1-08 (Annexure-A22) and also by a letter dated 29-1-2008 addressed to both Respondent No.1 and Respondent No.2 reiterating all the previous requests.
3.12      Thus, from the above paragraphs we get the information of various annexures submitted by the applicant along with his OA which reveals the history from the eyes of applicant.
4.         Applicant claims that the impugned notification dated 25-02-2008 treating him as deemed to have resigned from the IPS in accordance with Rule 7 (2) (c) of the All India Services (Leave) Rules, is illegal, invalid, void and dehors the law for the following reasons:-

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4.1.      On 24-12-2007, he reported before the Chief Secretary of Karnataka (Respondent No.2) and submitted his letter dated 24-12-2007 (Annexure-A18). This letter is sufficient compliance of the directions of Govt. of India (Respondent No.1) under their letter dated 12-12-2007 to report back to parent cadre within seven days.  He has thus fully complied with the order of Govt. of India (Respondent No.1) within the permitted time and hence issuance of the impugned notification dated 25-2-2008 has no reason to survive.(Para 5.(a) of OA)

4.2.      The said letter dated 17-12-2007 from Respondent No.1 directing him to report back to his cadre within 7 days itself amounts to regularising his so-called over-stay on foreign service.  Hence, the reason for issuing the impugned notification goes away.  Thus, the Rule 7(2)(c) can no longer be invoked once his deputation is regularised he has reported back to the Chief Secretary, Karnataka (Respondent No.2). (Para 5.(a) of OA).

4.3       When he reported back, he was not asked to resume duties against any post (para 5.(a) of OA).

4.4       The letter dated 17-12-2007 from Govt. of India (Respondent No.1) asking him to report back within 7 days is unreasonable because no foreign organisation can relieve their staff within 7 dasys (including arrangements for travel etc., especially a travel from Africa to India).  Hence, the applicant was obliged to take urgent leave and report back within 7 days.  This being the cause of his not getting himself relieved from the UN, there is no scope for application of Rule 7(2)(c) especially when he reported back on 2412-2007 as directed.
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4.5       The communication dated 17-12-2007 did not give him any opportunity to explain the reason of his alleged continuation on foreign service beyond the alleged approved period.  The Rule 7(2)(c) as amended on 19-10-2004 which has been relied upon says the following:-
"(2) A member of the Service shall be deemed to have resigned from the service if he
(c) continues of foreign service beyond the period approved by the Central Government.
Provided that a reasonable opportunity to explain the reason for such absence or continuation of foreign service shall be given to the member of the Service before the provisions of this sub-rule are invoked."

4.5       In the meantime the applicant became due for promotion in his home cadre of Karnataka to the Senior Time scale of the IPS in the year 2006.  Therefore, he informed Respondent No.-2 through letter dated 01.03.2006 Annexure-A3 about his intention to report back from UN deputation.  He was asked to report back only through letter dated 17.05.2006 of Respondemt No.2 (Annexure-A4).  It is claimed that his request has not been agreed to, which would mean that he has to sacrifice his 5th phase deputation which has already been extented till February, 2008.(?)  It is also his claim that the applicant could not have got himself relieved without following the UN Staff Rules and Recruitments (International Civil Service Rules)  Further the applicant does not elaborate on this  point.  It appears to mean that even if Respondent No.-2 had asked him to report back immediately, he does not want to commit if he will be able to do so and in how much period.  This fact is also not mentioned in his letter dated 01.03.2006 to Respondent No-2  (Annexure-A3).
            The applicant claims that he was not communicated about the approvals for extension of his deputation in a  timely manner and through reliable mode of communications.  The applicant was also not communicated that his extension was not approved for the period of 05.02.2005 to 04.02.2006.   Even while approving his extension for the period of 2003-2005,  he was not communicated that it was his last extension for the said deputation?        

            Promotion is the right of the applicant, being an officer unless he is found to be unfit for the promotion.  In this case, the Applicant was denied his right of promotion and whenever he asked for it, he was never given a prompt and clear cut response.  He was exercising his right while asking for the promotion so that before joining the cadre back, he knew that bias and prejudices would not come in way, detrimental to his service. (?)  But, the Respondent No.-2 did not even place his name before the DPC which alone is competent to decide whether the officer was fit to be promoted.   This was without any fault of the applicant , who was on a validly approved deputation to the UN and who is being rated consistently as "Outstanding" by the UN..  The applicant was asked to resume his services with State cadre in a lower post inspite of having an "Outstanding" record and without any fault on his part and when his juniors had already been promoted.
            It is claimed that the applicant has received a Memorandum dated 13.03.2007 (Annexure-A9) from Respondent No.-1 i.e. Government of India that his deputation to the UN had been extended only up to 04.02.2005.
            The applicant admits that in view of Rule -7(2)(c) of the All India Sevice (Leave) Rules 1955 (as amended on 19.10.2004) Government of India is entitled to treat him as deemed to have resigned from the service if he continues to be on foreign service beyond the approved period.  But he urges to note that his action in writing to Government of Karnataka dated 01.03.2006 (Annexure-A3) is already beyond the date of 04.02.2005 itself the date on which his extension comes to an end.  The same letter dated 13.03.2007 also informed him that how his further request for extension of deputation has not been acceeded to.
            The same letter dated 13.03.2007 also ask the applicant to explain within 15 days as to why he should not be deemed to have resigned from the service..  It is claimed by the applicant that he has received this communication of 13.03.2007 only through E-mail dated 28.04.2007 (Annexure-A10.). The applicant claims to have sent detailed explanation vide his reply dated 28.04.2007 but has received  no communication thereafter regarding his extension of his deputation through reliable mode of communication.  The applicant has not explained but he considers as liable mode of communication although it is well understood in the modern days on technology proper E-mail communication is as recognised mode of communication.  He further claims that all the communications received by him regarding extension of his deputation beyond the period of the first one year were always received late by them (no details furnished).
            In reply to his communication to Respondent No.-2 dated 01.03.2006 he received a  letter dated 17.05.2006 asking him to report back to duty in Karnataka.  The applicant is aggrieved that even though he was due for promotion to Senior Times Scale the said letter of Respondent No.-2 did not communicate anything about promotion but only asked him to join back.  It is claimed that whenever the applicant is asked about his promotion he considers as a matter of right he was not given any clear information.  He further claims that getting proforma promotion even before joining back to the cadre is the matter of right for him further the respondent No-2 did not put up his case before the DPC meant for promotion of  IPS officers to Senior Time Scale.  The applicant when claimed that his deputation was originally up to 04.02.2008 and he had an out standing grading by the UN and therefore getting his proforma promotion was a matter of right.  He therefore, questions the promotion of the Respondent No.-2 which asks him to first join back to the cadre and resume his services in the lower scale before being considered for promotion to the higher scale.  Since he is entitled to nurture such a complaint therefore he is also entitled to join back the cadre.
            The learned counsel for the applicant has relied on the following judgments in support of his contentions.
1.            WP (C) 6512/2008 – Delhi High Court,
2.            WP(C) 19134-19136/2004 – Delhi High Court 654
3.            2003(3) BLJR 1734 – Dr. Cosmos John Vs. State of Bihar & Ors.
4.            AIR 1970 SC 150 A.K. Kraipak Ors. Etc. Vs. Union of India & Ors.                           - Hon'ble Apex Court
5.            2003 SCC((L&S) 22 – K. Phani Ramesh Vs. Dy Directr, Navodaya                        Vidyalaya & Ors. - Hon'ble Supreme Court,
6.            AIR 1981 SC 136 – S.L. Kapoor Vs. Jagmohan & Ors. - Hon'ble                             Supreme Court.
7.            1992 KSLJ 842 – Rajashekaran P. Vs. State of Karnataka & Ors.
8.            (2005) 8 SCC 394 – Union of India through Govt. of Pondicherry &                         Anr. Vs. V. Ramakrishnan & Ors. - Hon'ble Supreme Court.

4.6       Prior to issuance of letter dated 17-12-2007 by Respondent No.1, the applicant had explained in detail to Respondent No.1 the reason as to why he could not get himself immediately relieved from UN deputation and as to why his continuance with the deputation till March, 2008 was essential.  In response to that, the Respondent No.1 first asked him to report back within one month, then by another letter, the Respondent No.1 asked him once again to report back within another one month and ultimately on third occasion, the Respondent No.1 asked him to report back within 7 days, knowing fully well that it is not possible to do so, his employer being the UN agency.  Thus, it can be said that Respondent No.1 never gave any reasonable period or opportunity to the applicant to report back and also failed to appreciate the circumstances under which he was working.

4.7       The application of said amended Rule 7(2)(c) of All India Service (Leave) Rules, 1955 (as amended in 2004) to his case is in violation of the All India Service Act, 1951 to the extent that it prejudicially affects the interest of an officer who was already on foreign service. The applicant was already on
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foreign deputation before the Rule was amended on 19-10-2004.  The applicant has quoted Section 3 sub-section 1(A) of the All India Service Act, 1951 under which it is mentioned that
" retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable."

Since the foreign deputation of the applicant began on 5-2-2000, the amended Rule of 2004 cannot apply. 

4.8       The notification putting the applicant as "deemed to have resigned from service" is in the nature of removal which is a major penalty and cannot be inflicted without a departmental enquiry. (para 5(d).  Further such a departmental enquiry would also have to be ratified by UPSC which has not been done {para 5 (d) and 5(e)}.  Since no hearing has been given, the notification violates the principle of audi alteram partem, that is, nobody should be condemned without hearing through a reasonable opportunity.  He was not even given an oral opportunity. (para 5(h).

4.9       Every government employee who commits any gross misconduct is given a chance through regular departmental enquiry to defend himself to the fullest possible opportunity which has been denied to the applicant despite his outstanding performance under the UN .(para 5(g).

4.10    In paras 5 (i),(j) and (k), the applicant has drawn attention to the great prestigious institute that the UN is and the great work to uphold the human rights that it was doing in Africa through ICTR and to the claim of outstanding performance that he was rendering under the UN. He claims that the Respondent No.1 has failed to appreciate the importance of the UN and his
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work under UN.(para 5.(u,v,w). 

            Further, the Constitution of India which interalia provides that the country is committed to promotion of international peace and security, thus, putting the constitutional duty on Respondent No.1 to respect the international law for promoting international peace and security.   The UN as well as UN-ICTR is an embodiment of this.  As such, Respondent No.1 is not expected to throw out a person out of service for being in extended service of the United Nations as per their requirements.
            Further, application of the said Rule 7(2)(c) goes against this constitutional duty of Respondent NO.1 towards international peace and security. (para 5(l) & (m)).  For these three reasons the impugned order should be quashed.

4.11     The contents of the impugned notification dated 25-2-2008 do not reflect correct factual position therebty showing non-application of mind of Respondent No.1, at the same time, showing bias and prejudice. Para 5(o)
            The applicant has given details of this imputation from para 5(O)(i) to 5(O)(xi).

4.12    The respondents did not communicate to report back from deputation at any point of time till he himself raised the issue that he wanted to come back. (Refer letter dated 1-3-2006 at Annexure-A3).  The very fact that Respondent No.2 replied to this letter on 17-3-2006 (Annexure-A4) shows that the respondents did not object on their own for the continuation of the applicant on the said deputation Para 5(p).

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4.13      The applicant alleges that on one hand, the respondents did not give him reasonable time frame to get relieved from the UN and on the other hand, also did not sort out the service matters in respect of:
(i)  his proforma promotion,
(ii) the charge sheet against him and
(iii) giving him any posting and pay-scale.

He therefore calls this action as arising out of bias and prejudice.  (para 5.(s) of the OA).

            The final instruction of reporting back within seven days is unreasonable because he could not have deserted the UN work and deserted his family in Africa nor could have made travel plans.  Still, when he presented himself before Respondent No.2, he should have been given a posting.  (para 5 (x) of the OA. 

            The approval for extension of deputation was not communicated in a timely manner and through a reliable mode of communication and they were also accorded after a gap.  (para 5(y) of the OA). 

            Promotion is a right of an officer unless fund unfit.  The action of the respondents asking him to join back without informing him about his promotion amounted to denial of his right.  (para t (aa) of the OA).

4.14    The other sub-paras mentioned on the grounds are more or less repetition of the above points.

5.            The respondents have submitted that the applicant was sent on UN deputation with effect from 5-2-2000 initially for one year.   The deputation
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was extended from time to time and the last extended depution period expired on 4-2-2005.  They have brought out the below-mentioned correspondence through Annexures:-.
5.1       Annexure-R1 of Respondent No.1 is an Email dated 14-3-2007 from the applicant to Shri Garg and Shri Dhingra in which he has stated that
(i) he was not aware of the amendment in the AIS Rule;
(ii)  his name was not considered for the Super Time Scale and invocation of amendment Rule is an excessive step against him.
This shows his awareness of the amended rule at least on 14-3-2007 if not early.
5.2         Annexure-R2 of Respondent No.1 is a detailed Email/letter dated 28-4-2007 from the applicant to the Secretary, Home Afairs, requesting for not to invoke the provision of the amended Rule 7(2)(c).
5.3         Annexure-R-1 of Respondent No.2 is a letter dated 6-2-2006 from the DG, Police to the applicant communicating a copy of Govt. of India letter dated 1-12-2005 to reject the application for extension from 5-2-2005 to 4-2-2006. 
5.4         Annexure-R2 of Respondent No.2 is from the Chief Secretary, (Respondent No.2) to the applicant dated 11-9-2006 referring to earlier letters dated 17-5-2006 and 1-7-2006 mentioning his behaviour as highly irregular without any valid order from the State Govt. or the Govt. of India.  Hence, instruction to join back immediately without engaging in further correspendence. 
5.5         Annexure-R3 of Respondent No.2 is a letter from Chief Secretary to Respondent No.1 dated 28-12-2006 corresponding the situation to Govt. of
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India and recommending that:
(i) he was liable for disciplinary action and
(ii) his Passport should be revoked.
5.6         Annexure-R4 of Respondent No.2 a letter dated 1-2-2007 from the Chief Secretary to applicant which is a notice under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 and a charge sheet for mis-conduct, lack of devotion to duty, disobedience and conducting in a manner unbecoming of a member of All India Service.  All these being a mis-conduct under Rule 3(1) of the All India Services Rules, 1968.
5.7         Annexure-R5 of Respondent No.2, a letter from Chief Secretary to the applicant dated 23-6-2007 asking him to report for duty under the Govt. of Karnataka without putting any conditions, riders, etc. with regard to his promotion or service matters; he should join back within the time limit allowed by the Govt. of India.
6.1       Thus, in short the first argument of the two respondents is that the applicant was well informed that his deputation has been allowed till the maximum period of 5 years as allowed by the All India Services Rules for deputation but not beyond.  Thereafter, the applicant, instead of joining back kept sending requests for extension and the two respondents gave him enough respite and showed enough consideration between the period 4-2-2005 to 25-2-2008.  Apart from showing consideration, they have also cautioned the applicant enough by way of notification or by calling explanation that his disobedience to report back was becoming more and more inexcusable.  Thus, enough opportunities hae been given to the applicant to mend his way before finally notifying him  that "he stands relieved from the Indian Police Service".
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6.2       Secondly,  the respondents have also pointed out that prior to 24-12-07 all communications from applicant about joining back the cadre hinged around the point that he must first be given his proforma promotion in the Super Time Scale and a posting order and only then he would think of getting himself relieved from the UN authorities.  An officer is not entitled to put such a condition.  He becomes due for promotion and posting order only after joining back the cadre, especially when he has not reported after 2005, i.e., after 5 years of deputation, which is the maximum allowed deputation.
6.3       Thirdly, all his references to the UN and to his job profile in the UN suggested that he was under obligation to continue with the UN as long as the UN authorities so wanted and neither of the two respondents had any role in the matter.  This position is far from rules and not acceptable. For this reason, the Respondent No.2 was correct and justified to understand applicant's so-called joining report dated 24-12-2007 as not a proper joining report in the absence of any record suggesting that he had got himself relieved from the foreign organisation. This understanding of Respondent No.2 is further substantiated and confirmed by the behaviour of the applicant, who, without informing the cadre authority or the Govt. of India, once again left the country and once again joined back with the foreign deputation from whom he had only taken leave of absence.  Thus, his so-called joining was no joining at all and hence Respondent No.1 was right and justified in issuing the final order dated 25-2-2008 treating him as deemed to have resigned from the Indian Police Service and ordered that he shall also stand relieved from the Indian Police Service with effect from the date of issue of this notification.
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7.         The learned counsel for the applicant has relied on the following judgments in support of his contentions.
1.  WP (C) 6512/2008 – Delhi High Court – UOI Vs. Rahul Rai Sur,
1.  Rahul Rai Sur, an IPS officer of 1981 Batch, .....was sent on deputation to the United Nations w.e.f. 15-7-1997. By the last extension granted the deputation was extended till 31-5-2004.
The rule 7(2) was invoked.  This was quashed by Tribunal, but the Delhi High Court held as under:
"9.  Suffice would it be to state that the foundation of the show cause notice was the letter dated 4-9-2004, which Rahul Rai Sur claimed not to have received and thus he responded to the show cause notice informing the said fact and additionally praying that he may be permitted to service with the United Nations till 6-5-2006.
14. ..   The second reason by the Tribunal is that Rule 7(2) of the All India Services (Leave) Rules was amended on 30-10-2004 and that it could not have retrospective operation."
17. ..... But post 30-10-2004, it could not be said that the pre-amended sub-rule (2) of Rule governs the field.
20.   Thus, the second reasoning of the Tribunal is incorrect.
24. We note that before the respondent approached the Tribunal, he made representations requesting petitioner to accept his voluntary retirement application, ...
25. We note that the Tribunal has quashed the order treating Rahul Rai Sur as having deemed to have resigned and in respect of the alleged misdemeanour of unauthorized absence has permitted the petitioner to take disciplinary action.
26. In our opinion, for the reason letter dated 4-9-2004 was not served upon Rahul Rai Sur, and noting the contents thereof, ends of justice would be met, if in harmony with the statement made by learned counsel for the respondent, the writ petition is disposed of maintaining the setting aside of the order dated 26-9-2005 but modifying the impugned order with the direction that Rahul Rai Sur be treated as having voluntarily retired w.e.f. 31-10-2004."
      In the present case, the applicant was issued with show cause notice (Annexure-R4 of Respondent No.2) and enough opportunity was given as seen from Annexures A11,A15 and A17.  Moreover the applicant's last extended period of deputation was 4-2-2005 and he overstayed beyond February, 2005, requesting permission to extend deputation.  Hence, Rule 7(2) of the All India Service (Leave) Rules, 1955 (as amended on 19-10-2004) is squarely
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applicable in this case and the case relied upon by the applicant's counsel does not come to his rescue.
2.   WP(C) 19134-19136/2004 – Delhi High Court 654 – UOI Vs. Shri T.B. Tyagi:-
Here, the respondent employee went on foreign assignment deputation for three years – Did not return to India despite completion of deputation period – Departmental proceedings against him were initiated on the allegation that he had unauthorisedly overstayed in foreign without approval of competent authority – Held - Absence of workman was not attributable to him but to the decision of Government of foreign country not to relieve him – Absence cannot be treated as unauthorized – workman is entitled to the benefit of increments for the period of his absence .

      This case is entirely different from the case on hand, here the employee was not relieved by the foreign government after the expiry of the deputation period.  Hence, the Court held that the employee cannot be held responsible. Whereas, in the present case, the applicant has not stated anywhere in the OA or during the course of arguments that the foreign employer refused to relieve him after the completion of the deputation period nor did he produce any document to that effect.  In fact, the applicant was time and again advised to join his parent cadre which he failed to do so.  Hence, this citation cannot come to his rescue.
3.  2003 SCC((L&S) 22 – K. Phani Ramesh Vs. Dy Directr, Navodaya Vidyalaya & Ors. - Hon'ble Supreme Court:
This citation deals with the case of a teacher sent on deputation to Navodaya Vidyalaya by allowing a lien to be kept with the first school. The period of deputation was to end on 26-10-1993.  The period of lien was to end on expiry of two years, i.e., 23-11-1993.  The Navodaya Vidyalaya relieved him on 11-11-1993 and the Principal of the parent school did not allow him to join on the ground that his deputation had ended on 26-10-1993 and he remained on unauthorised absence.  The Apex Court held that irrespective of the end of deputation his lien is coterminus with date of relieving hence he should be taken back. 
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Thus, this is a matter where a distinction is made and relied upon by the Supreme Court between ending of deputation and ending of lien. 

      In the instant case, there is no such issue and hence the citation does not apply.
4.  AIR 1970 SC 150 A.K. Kraipak Ors. Etc. Vs. Union of India & Ors.-Hon'ble Apex Court has discussed:
"Administrative or quasi-judicial power of the Executive – Dividing line between two powers and held that principle of natural justice and adequate opportunity apply.  However, as discussed in para 7.1 (supra) ample opportunity has been given.
            The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated.  For determining whether a power is an administrative power or a quasi- judicial power one has to look to the nature of power conferred, .... the consequences ensuing from the exercise of that power and the manner in which the power is expected to be exercised.
5.  AIR 1981 SC 136 – S.L. Kapoor Vs. Jagmohan & Ors. - Hon'ble Supreme Court.

(A) Punjab Municipal Act (3 of 1911), S.238(1) – Supersession of Municipal Committee – Opportunity should be given to committee before an order is passed (Constitution of India, Art.226 – Natural justice).
      This case does not apply here as notice and three opportunities were given to the applicant in the instant case.
6.  1992 KSLJ 842 – Rajashekaran P. Vs. State of Karnataka & Ors. And
      (2005) 8 SCC 394 – Union of India through Govt. of Pondicherry &  Anr. Vs. V.     Ramakrishnan & Ors. - Hon'ble Supreme Court.

      In the first case, a person sent on deputation for training at the end of which by virtue of training he is entitled to higher promotions.  Hence, recalling him in-between on the ground of past mis-appropriation of amounts to taking away his chance of all future promotions in view of the incomplete training.  When he did not report back and action was taken, the Court quashed the action. Thus the point of consideration by the Court was different. 
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      In the second case, the point of malice is involved.  However, both these case do not come to the aid of the applicant as there is no such malice and action was taken only after deputation period is over.
8.         We have carefully appreciated all the written statements, case laws and arguments put forth by the learned counsel for both sides.
9.            We find it pertinent to discuss certain points at length before coming to the answers of the three issues raised by us in para No. 1 supra.

9.1              The question of deputation:-  It is a well-known administrative principle that the deputation is a lending of the services of an officer by the parent cadre/ department and a borrowing by the foreign employer whether within India or abroad.  While, the concerned officer on deputation is under the control of the foreign employer for the purposes of daily routine administrative matters, such as attendance, leave, medical facilities, pay and allowances and annual performances,etc., still for the purpose of continuing or ending deputation, he is completely under the control of the parent organisation.  He cannot negotiate with the foreign employer about his period of deputation without the consent of the parent employer in absence of the request from borrowing to the lending office and in any case, not against the expess instructions of the parent employer to end the deputation.  Even if the applicant may not be agreeable to this well-known administrative principle, still in his entire OA, he has not specifically committed that as per his interpretation, his deputation with the UN has ended on such a particular date.  Even on the day of his so-called reporting back to the Govt. of India, i.e., on 24-12-2007, as far as the understanding between him and the UN was concerned, he was still
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under their employment and had presented himself before the Chief Secretary, only "while on leave from UN".  The applicant who is a senior officer and is very well aware of all the rules known that he cannot report for duty without getting relieved from earlier post.  Hence, it can be justifiably inferred that as far as Govt. of India is concerned, he was on deputation with a valid permission only till 4-2-2005.  His not reporting back after that date amounts to mis-conduct to say the least and in no way can be claimed as extension of deputation, even though admitting the prestigious work the UN does and the commitment of Govternment of India to international peace and harmony.  In addition, it also attracts the provisions of Rule 7(2)(c) of the All India Services (Leave) Rules, 1955.
9.2         Coming to the question as to his joining back the cadre, it is already explained in the aforesaid para that he cannot be considered as "having joined back" unless and until he gets himself relieved from the foreign department.  It is a well-known administrative practice that when an officer on foreign deputation reports back, his new posting order etc. is decided only thereafter.  So, the plea that second respondent did not indicate his posting order etc. cannot give him any relief.
9.3         The third question therefore, is whether there can be legal and justifiable action against him under Rule 7(2) . 

            Towards this, the main point raised by the applicant is that since his deputation began on 5-2-2000, therefore, the amendment to the All India Services (Leave) Rules which came into effect from 19-10-2004 cannot apply.  This contention canot be accepted.  His original deputation was for a period of
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one year only.  Then, it was extended from 5-2-2001 to 4-2-2003.  In the third phase, it was extended from 5-1-2003 to 4-2-2005.  Therefore, as soon as the third phase ended on 4-2-2005, the amendment rule 7(2) dated 19-10-2004 becomes applicable to him.  By his own admission, he has continued to work with the UN for the 4th phase from 5-2-2005 to 4-2-2006 and in the 5th phase from  5-2-2006 to 4-2-2008. Therefore, it is amply clear that he has continued to work with foreign employer unauthorisedly and attracts the provisions of the amended rule.  Even the citation at para 7.1 (supra) upholds this view.

11.         In view of the above discussion, we see no merit in the OA.  Accordingly, the OA is dismissed.  No order as to costs.
            (V. AJAY KUMAR)                                        (LEENA MEHENDALE)
                MEMBER (J)                                                    MEMBER 9A0




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