JUDGMENT
Neelam Sanjiva Reddy, V.C.
1. The applicant has challenged the orders of the first respondent (Union Government) whereby the other respondents Uttar Pradesh State Government, the second respondent, The Director General of Police, Uttar Pradesh, the third respondent and the Inspector General of Police (Personnel) Uttar Pradesh the fourth respondent have been directed to repatriate him to the Indian Police Service of Andhra Pradesh Cadre, and sought for directions to the respondents not to interfere with his functioning till he completes the total tenure of five years of deputation from the date of
his joining.
2. The undisputable facts from the pleadings and the submissions of Counsel of all parties briefly stated are these :
The applicant, a native of village Gangharpur, P.S. Achhalda, district Etawah of Uttar Pradesh was appointed to IPS and was allotted to IPS Cadre of Andhra Pradesh after his selection through the Civil Services Examination of the year 1986 conducted by the UPSC. He served in different posts in Andhra Pradesh to the full satisfaction of his superiors and the Government of Andhra Pradesh. The application suffered calamities in the family successively from 7.1.1991 when his father passed away due to Cardiac arrest. His mother expired on 7.12.1992. His only elder brother died on 19.11.1993 due to heart attack at the age of 46 years leaving his widow, four daughters and a son. Out of four daughters, two of them are of marriageable age. There was none to look after the family except the applicant. Under these circumstances the applicant made an application for deputation from the State of Andhra Pradesh to the State of Uttar Pradesh on 29.6.1995 to the Union Government. The State of Andhra Pradesh recommended for favourable orders for deputation from the State of Andhra Pradesh to the State of Uttar Pradesh for a period of five years. The State of Uttar Pradesh agreed to take the applicant on deputation from the State of Andhra Pradesh for a period of five years and conveyed the same to the Union Govt. The Union Government issued an order dated 1.1.1997 for deputation of the applicant from State of Andhra Pradesh to State of Uttar Pradesh for a period of two years from the date of his joining. He joined the Slate of Uttar Pradesh on 9.3.1997. Since 29.4.1998 he was posted as Senior Supdt. of Police at Fatehgarh, district Farrukhabad, Uttar Pradesh.
3. On 21.11.1998 he made an application for extension of his dcpulation for two years i.e. from 10.3.1999 to 9.3.2001 through proper channel. The fourth respondent, the Inspector General of Police (Personnel) in the office of Director General of Police, U.P. Lucknow vide his order dated 8.12.1998 informed him that as the State Government of Uttar Pradesh has already accepted his deputation period for five years, and no action was required on the applicant’s representation dated 21.11.1998. The applicant thought that the letter of the fourth respondent was in accordance with the rules on the subject, and remained silent without any further representation. However, the State Government of Uttar Pradesh sent a letter on 22.2.1999 to the Union Government alongwith the applicant’s representation dated 21.11.1998, requesting for extension of deputation tenure of the applicant in the State of Uttar Pradesh. The Union Government by their message dated 5.3.1999 informed the State of Uttar Pradesh that they were not agreeable to the extension of tenure of deputation of the applicant. The State Government of Uttar Pradesh vide letter dated 12.3.1999 once again requested the Union Government to reconsider their decision and to extend the period of deputation of the applicant. The Union Government informed the State of Uttar Pradesh that even after reconsideration the applicant’s tenure of deputation could not be extended. On 8.4.1999 Union Government directed the State of Uttar Pradesh to immediately relieve the applicant to enable him to join the Slate of Andhra Pradesh. The applicanl, aggrieved by the orders of Union Government in not extending his tenure of deputation and consequent orders passed .for his repatriation, filed this original application and also sought for interim orders. The repatriation of the applicant was not effective in view of the status quo order passed by this Tribunal.
4. The submissions of the learned Counsel for the applicant are that the impugned orders of the Union Government are in violation of the relevant rules, decisions and circulars dealing with deputation and further the orders are quite arbitrary, and discriminatory, and that they are liable to be set aside on the grounds of illegality, arbitrariness, and discrimination, and the applicant be allowed to continue on deputation for the full period of five years as agreed to between the States of Andhra Pradesh and Uttar Pradesh.
5. Learned Counsel for the first respondent submits that the impugned orders do not suffer from any illegality, arbitrariness or discrimination, and that the Union Government is the sole authority to fix any term and approve deputation of a Cadre Officer from State to State and that the application is liable to be dismissed.
6. Learned Counsel for the State of Uttar Pradesh, the second respondent, the Director General of Police, U.P. Lucknow, the third respondent, the Inspector General of Police (Personnel), the fourth respondent submits that the deputation of the applicant from Andhra Pradesh State to Uttar Pradesh State was agreed to by both the States for a period of five years and that the Uttar Pradesh State is willing to continue the services of the applicant on deputation for a full period of five years if the Union Government accedes to their request. The second respondent being the State Government, have no other way except to follow the directions of the Union Government to repatriate the applicant unless otherwise ordered by this Tribunal.
7. To understand and appreciate the above submissions of the learned Counsel it would be appropriate and necessary to extract the relevant provisions on the subject. Rule 6(1) of the Indian Police Service (Cadre) Rules, 1954 (hereinafter referred to as the Rules), reads:
“6(1). Deputation of Cadre Officers–A Cadre officer may, with the concurrence of the State Government or the State Govts. concerned and the Central Government, be deputed for service under the Central Govt. or another State Govt. or under a company association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or by another State Government.
Provided that in case of any disagreement the matter shall be decided by the Central Government and the State Government or State Governments concerned shall give effect to the decision of the Central Government.”
8. The Government of India’s decision dated 30.5.1997 under the said Rule runs:–
“Government of India’s decisions :
1. The terms of deputation of a Cadre Officer deputed to another State shall be finalised by the borrowing Government in consultation with the lending Government, if there is any point of difference between them, it may be referred to the Government of India. (G.I.M.H.A. letter No. 22/6/57-AIS{II), dated 30.5.1957)”
9. The Government of India also issued Guidelines in its circular issued on 11.3.1991 for inter cadre deputation of IPS Officers. The relevant guideline (b) runs:–
"(b) Request of the Officer on personal or domestic grounds for deputation to his home state may be examined rigorously by the Slate Governments and such requests should be acceded to in extremely rare and genuine hardship cases only." The Union Government also modified guidelines by its circular dated 17.7.1995 for Inter Cadre deputalion of All India Service Officers including IPS Officers. The relevant guidelines (b) and (d) are:-- "(b) Inter-cadre deputation at a lime normally cannot exceed three years." "(d) On grounds of extreme hardship an officer once in his/her career may be permitted permissible deputation of five years in one stretch." It is also detailed in the said guidelines that inter-cadre deputations are based on concurrence of the borrowing and lending cadres subject to the approval of Government of India.
10. The present case is deputation of cadre officer from one State to another State under Rule 6(1) of the Rules. A reading of the above rule clearly indicates that the deputation is to be made with the concurrence of the concerned State Governments and the Union Government. The proviso to the said rule further makes it clear that in case of any disagreement the matter should be decided by the Union Government and the concerned State Governments shall give effect to the decision of the Union Government. It is also seen from the decision of the Union Government in its circular dated 30.5.57 that the terms of deputation of a cadre officer deputed to another state shall be finalised by the borrowing Government in consultation with the lending Government, if there is any point of difference between them, it may be referred to the Government of India. Thus, it is quite clear from the above rule and the decision that the terms of deputation of cadre officer have to be finalised by the borrowing and lending State Governments. The borrowing and lending State Governments have no objection for deputation of the applicant for a period of five years. There are absolutely no differences between the two Stale Governments on any point.
11. The role of the Union Government under the above rule is not more than that the dcputation of cadre officer should lake place under its supervision. When the two State Governments give concurrence for deputation, it has to simply accede to it. In case of disagreement on any point with regard to terms of deputation, the Union Government functions as an arbiter. An arbiter cannot be a party to disagreement and in fact the arbiter Union Government should be above disagreement. Supervisory role is given to the Union Government to keep track of All India Service Officers. It does not invest the Union Government with powers of rejeclion in case of concurrence by both the States.
12. The Union Government has issued two circulars on 11.3.1991 and 17.7.1995 detailing guidelines for Inter-cadre deputation of I.P.S. officers. The said guidelines are for the States to give or not to give concurrence for deputation of cadre officers. The objects of guidelines are to avoid deputation of officers in their formative period when they are supposed to acquainl with and acclimatize and adapt to the States of their allotment, to avoid deputation of officers in the higher cadre as that would obstruct or hinder the promotions of the cadre officers of the borrowing States, to prevent deputation for more than five years so that it may not deprive the lending Stale the services of a well trained cadre officer of their State, and to depule only the officers who are in dire need of it.
13. The said guidelines are also for the Union Government to oversee that the above objects were kept in mind by the borrowing and lending States while giving their concurrence for deputation of a Cadre officer, and also as to how it has to function as an arbiter in case of disagreement as to the terms of deputation on any point.
14. The States of A.P. and U.P., after due consideration of the circumsiances in which the applicant was placed, came to the conclusion that it is a genuine hardship case and it was necessary to convey their concurrence for his deputation for a period of five years. The factual finding of the two Stales was rightly not doubted by the Union Government and
concurrence was conveyed for deputation for a period of two years, probably in view of one of the guidelines issued in the circular dated 17.7.95 to the effect that inter-cadre deputation at a time normally cannot exceed three years. The applicant made application well within time for extension of deputation period by another two years. The U.P. State Government accepted the representation of the applicant and recommended for extension of deputation period by another two years. The two State Governments had already agreed to deputation for five years. We could not see anything from the record for the Union Government to come to the conclusion that the circumstances of the applicant changed and he does not require any more deputation. Conveying concurrence of the Union Government in the instant case should have been automatic in view of the recommendation for the cadre officer’s deputation for five years by the concerned States. The plea of the Union Government is that it is the sole authority to permit or approve the deputation, and that the role of the two States is giving their concurrence would not affect its authority to reject the request of the Government of U.P. It is pertinent to mention here that the words ‘permit, sanction or approve’ were not used in the Rule 6(1) of the Rules. What is specifically mentioned therein is that the concurrence of the concerned States and the Union Government is required for deputation. We are of the view that the word ‘concurrence’ was used in the said rule, so that the role of the concerned States is not denigrated to that of a subordinate. When the concerned States gave their concurrence on accordance with the rule and guidelines framed, we are of the opinion that the Union Government is bound to accede to it by conveying its concurrence and it is not correct for the Union Government to arrogate to itself the exclusive power to permit or approve contrary to the plain reading and spirit of Rule 6(1).
15. The relations between the Union Government and the State Governments should be like that of mother and daughters and not like that of mother-in-law and daughters-in- law. When the two State Governments have given their concurrence after due consideration of the facts, and in accordance with the Rule and circulars issued on the subject, the Union Government ought to have automatically conveyed its concurrence instead of doubling the veracity of the two State Governments like a mother-in-law. In the administration, it is necessary to identify and remove the points which give scope for nepotism and corruption of different types. Exercise of power more than the required in the Rule is one of the points which would give a lot of scope for nepotism and corruption of different types. For the above reasons, we are of the opinion that the rejection by the Union Government of the application for deputation for further two years is not in accordance with law, and therefore, not legal.
16. It is specifically pleaded by the applicant that the impugned order of the Union Government is arbitrary, and discriminatory as the applicant has been singled out and has been denied similar treatment given to several other officers for whose deputation Union Government gave concurrence even though in some cases contrary to their own guidelines. It is clear, from the written statement filed on behalf of the Union Government to the Supplementary Affidavit of the applicant, that Mr. K.B. Singh I.P.S. (OR: 85) was allowed deputation for two years to the State of U.P. (his home State) and further continuation of his deputation is under consideration. Dr. Rajwant Singh, I.P.S. (A.P.: 85) was allowed Inter-cadre deputation on his personal request and his period of deputation was extended (to his home State Punjab). They also admitted that Mrs. Dr. Doley Burman, I.P.S. (J.K: 86) was allowed inter-cadre deputation to her home Stale Assam on domestic grounds. Her period of deputation was extended upto five years. It is also clearly pleaded by the applicant in his Supplementary Affidavit that Fax message dated 25.2.2000, photo copy of which is
Annexure-SA 1 filed alongwith his affidavit, shows that Mr. A.K. Malick, I.P.S. Officer was allowed deputation in the year 1994 and his deputation was allowed to continue till 31.3.2000. The Union Government further requested the State Government of inform them immediately whether they still need the services of Mr. Malick on inter-cadre deputation basis in Uttar Pradesh to enable them to consider it. That means the Union Government was prepared to give concurrence for deputation beyond five years to Mr. A.K. Malick. This is clear from Annexure-SA 1, the photo copy of the Fax message from the Home Department to the Chief Secretary, U.P. Lucknow. It is quite apparent, from the written statement filed on behalf of the Union Government to the Supplementary Affidavit of the applicant, that Union Government neither admitted nor denied the deputation of Mr. A.K. Malick. It is irrefutable from the Fax message that the Union Government is exercising its discretion in conveying concurrence for deputation arbitrarily and clearly discriminated from person to person without any reason and contrary to the spirit of Rule 6(1) and the circulars issued by the Union Government on the subject.
17. There arc catena of decisions of Supreme Court on the point and we would like to cite some of them. In Vishnudas Hundumal etc. v. The State of Madhya Pradesh and Ors. AIR 1984 SC 1636, it is held:
“When discrimination is glaring, the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners. We, therefore, propose to take a constructive approach by removing the discrimination by putting the present petitioners in the same class as those who have enjoyed favourable treatment by inadvertance on the part of the Regional Transport Authority.”
18. In Sengara Singh and Ors. etc. v. State of Punjab and Ors., AIR 1984 SC 1499, it was opined that if the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them, they could be reinstated, there was no justification in treating the petitioners differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. On that conclusion the treatment meted out to the petitioner suffered from the vice of arbitrariness and Art. 14 forbids any arbitrary action which would tantamount to denial of equality as guaranted by Art. 14.
19. In Ismail Abdul Latif Shaikh v. State of Maharashtra, J.T. 1996(3) SC 158, the Supreme Court opined:
“the Government having allowed the aforesaid two persons to hold the promotional post of Sub inspector despite their being below the required height, the same benefit has to be made available to the applicant as the shortfall of physical requirement in his case is relatable to the chest being not of required measurement.”
20. The Allahabad High Court in K.A. Hague and Anr. v. A.M. University, Aligarh 1986 Ed. Cases 244, viewed; “discriminatory consequences arising from arbitrary action of public authorities cannot be contenanced. The wrong thus accruing can be undone by putting them in some compartment. In Vishnudas Hundumal v. State of M.P. (supra) it was
held that even unintended discrimination indulged by authorities has to be rectified by putting everyone at par. In Durga Charon’s case (supra) the plea of discrimination was rejected as the Hon’ble High Court found that Rule 6 of Protection Rules had been misconstrued. It can have no application where discrimination arises because of pick and choose. Arbitrary or discriminatory action is destructive of rule of law and fairness. Direction to authorities to act similarly or uniformly is not perpetrating illegality but maintaining the social balance.”
21. In Purshottam Das Tandon and Ors. v. Stain of U.P., AIR 1987 Allahabad 56, Allahabad High Court held that the Govt. has failed to disclose any reason for differentiating or picking up some for grant of fresh lease and denying it to others. The action of the authorities therefore, was violative of the basic requirement of classification being based on intelligible differentia distinguishing one person from the other. Constitutional pledge of equality is founded on ethical principle of equal opportunity and similar treatment to persons similarly situated. It ensures fairness, instils discipline and promotes rule of law the very basis and foundation of Welfare State which ensures protection of individuals against arbitrary exercise of power by the public authority. Do not discriminate without reason should, not, only, be the endeavour but definite and positive approach.
22. For the aforesaid reasons, we arc of the opinion that the action of the Union Government in not giving its concurrence for the deputation of the applicant for further period of two years i.e. till 9.3.2001 suffers from arbitrariness, and discrimination.
23. In view of our findings that the impugned orders and arbitrary, discriminatory; and not legal, the O.A. is allowed. The impugned orders arc set aside. The respondents are directed to continue the applicant on deputation for a period of two years i.e. till 9.3.2001 as the applicant requested for extension of deputation for a period of two years only i.e. till 9.3.2001 in his representation made to the respondents. Parties to bear their costs.