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S.S. DAS vs UNION OF INDIA

Information

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: January 18, 2024

+ W.P.(C) 8398/2021, CM APPL. 25969/2021

S.S. DAS
….. Petitioner

Through: Mr. Sanjoy Ghose, Sr. Adv. with Mr. Anurag Ojha and Mr. Karan Aggarwal, Advs.

versus

UNION OF INDIA
….. Respondent

Through: Mr. Ravi Prakash, CGSC for UOI

CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
J U D G M E N T
V. KAMESWAR RAO, J
1. This petition has been filed by the petitioner challenging the order dated July 2, 2021, passed by the Central Administrative Tribunal Principal Bench, New Delhi (‘Tribunal’, for short) in Original Application No.2640/2019 (‘OA’, for short), whereby the Tribunal has dismissed the OA filed by the petitioner herein by stating in paragraph 12, onwards, as under:-
“12. The gist of assessment undertaken by the Review Committee has already been furnished in the preceding paragraphs. The respondents have elaborated the same in the counter affidavit. It is also mentioned that complaints were received from various circles that the applicant, while occupying the position referable to Anti-Dumping, demanded several favours. It may be true that there is no proof about such demands. However, that would be a requirement in the case of disciplinary proceedings. While exercising power under FR 56(j), the Appointing Authority can take note of such allegations. Once the employee is fully granted of his retirement benefits, and is retired, a bit earlier, than in the usual course, the exercise referable to punitive action is not necessary.

13. In Ashok Kumar Aggarwal vs. Union of India & Anr. (OA No. 1835/2020), the Tribunal observed as under:-
“38. The situation may not have existed for imposition of penalty. However, the gist of judgments of the Hon?ble Supreme court on the subject is to the effect that the overall record of the employee can certainly be taken into account. At the end of the day, it is the subjective satisfaction of the appointing authority, which in turn is not easily available for judicial review, compared to other administrative decisions.

39. A close scrutiny of the provisions under Para XXIV of the Constitution of India, in which Articles 308 to 314 occur; or the CCS (CCA) Rules or Fundamental Rules, would reveal that even while the several protections are accorded to the civil servants, the administration is conceded with the power to punish or dispense with the services of the employees depending upon the proof of acts of misconduct or on existence of material to show that it is not feasible to continue the employee in service. While holding of inquiry into the allegations of misconduct, is the norm that can be dispensed with in exceptional cases covered by the 2nd proviso to Article 311 (2) (b) and the corresponding CCS (CCA) Rules.

40. The hardship caused to the civil servants on account of dismissal from service after an inquiry under Rule 14 of the CCS (CCA) Rules or by invoking the provisions akin to Article 311 (2), is phenomenal, if not colossal. The pension, which is almost in the form of estate, stands withdrawn. Other attendant benefits, which are provided as a reward for the service rendered by the employee for major part of his life are forfeited. In contrast, the compulsory retirement under FR 56(j) would have the effect of just advancing the age of retirement and nothing more. The State feels that it would be safer for it, in case the employee is not on its rolls for the remaining part of his service. Roughly stated the major punishments such as dismissal and removal are almost lethal weapons, whereas compulsory retirement is just a tranquilizer. Obviously for that reason, the Hon?ble Supreme Court had reduced the interference with such orders to the bare minimum. Exceptions are where order is tainted with malafides or there does not exist any material to warrant such a plea at all. Such grounds, however, do not exist in this case.”

14. Almost the same situation obtains in this case also. In the review also, various points urged by the applicant were taken into account and the order of premature retirement was also referred to.

15. We do not find any merit in the OA and the same is accordingly dismissed.”

2. The facts as noted from the record are that the petitioner joined the Indian Trade Service (‘ITS’, for short) in the year 1989. He was promoted to the post of Deputy Director General of Foreign Trade (‘DGFT’, for short), in 1994 and was further promoted to the post of Joint DGFT in the year 2001. He was also promoted on Non Functional Selection Grade (‘NFSG’, for short) basis in the year 2006 and was selected for Central Deputation under Central Staffing Scheme, in the year 2008.
3. It is stated that another Non Functional Upgradation (‘NFU’, for short) was given to him, in the year 2011 and he became the Director in the Directorate General of Anti Dumping (‘DGAD’, for short) in the year 2014. He was posted as Regional Joint DGFT, Guwahati and Shillong in the year 2017. Thereafter, he was put in the Senior Administrative Grade (‘SAG’, for short) of ITS, at the level of Joint Secretary, on November 16, 2017 and was promoted on regular basis to SAG on February 27, 2018.
4. It is further stated that on May 10, 2018, the Appointing Authority of the petitioner passed an order retiring him from service, before he attained the age of superannuation, by invoking power under FR 56(j) of the Fundamental Rules (‘Rules’, for short). Pursuant thereto, a review petition submitted by the petitioner against the order passed by the respondent compulsorily retiring the petitioner was rejected by the respondent on June 13, 2019. As a result, OA was filed by the petitioner, challenging the order of premature retirement dated May 10, 2018, and order of rejection of the review, dated June 13, 2019.
5. It was the case of the petitioner before the Tribunal that his service record is without any blemish and he earned several promotions on time and as such, at no point of time, he faced any disciplinary proceedings and his ACRs were also consistently rated as high.
6. It was also his case that there was absolutely no justification or basis for the respondent herein, to invoke the power under FR 56(j) of the Rules, against him. The order of premature retirement was passed by doubting his integrity and such a step could have been taken, only in consultation with CVC and in the instant case, no consultation was undertaken with CVC.
7. Whereas, it was the case of the respondent before the Tribunal that as part of cleansing the Administration of Anti-dumping Department and for ensuring transparency, a high level Committee was constituted to review the cases of various officers, who had crossed the age of 50 years. The Committee examined the relevant service records of various officers and recommended the case of the petitioner, for premature retirement.
8. It was also the case of the respondent that several observations were made by the concerned authorities at different points of time in the ACRs of the petitioner, doubting his integrity and expressing discontent about his functioning and as the petitioner was occupying a very senior and sensitive position in the department, any small deviation from the prescribed norms is bound to have its impact on the functioning of the department and adversely affecting the interests of the country.
9. After perusing and analyzing the case as set up by both the parties before the Tribunal as well as the judgments of the Supreme Court, it dismissed the OA filed by the petitioner herein, in the manner as reproduced in paragraph 1 above. It is stated that the petitioner has impugned the order passed by the Tribunal in the following manner:-
SUBMISSIONS ON BEHALF OF THE PETITIONER
10. It is the submission of Mr. Sanjoy Ghose, learned senior counsel appearing on behalf of the petitioner that as per Office Memorandums [‘OMs’] dated June 23, 1969 and May 10, 1974, the approval of Appointment Committee of Cabinet (‘ACC’, for short) is a pre-condition for invocation of FR 56(j) for the officers in SAG and above. The above position has not been subjected to any change and in fact, in all the subsequent OMs dealing with compulsory retirement under FR 56(j) qua SAG, this position remains same. Even OM dated March 21, 2014, specifically refers to said OMs in its appendix and marginal note. In fact, it is the cardinal rule with regard to Central Services Group A.
11. He submits that the above requirement is essential safeguard against arbitrary exercise of powers and the manner for taking a decision, having attributes of safeguards in favour of a Government Servant, and as such must be strictly followed.
12. It is his case that appointment of the petitioner to SAG was done by ACC and thus, it is the only authority competent to remove him. Logical corollary thereof, that any action having effect of removal cannot be undertaken by body different from appointing authority.
13. He further submits that law postulates that the recommendation for invocation of FR 56(j) has to be placed before the ACC. The requirement of “placing before the ACC” contemplates full disclosure, so as to enable it, to form a considered opinion. This is akin to sanctions required for certain actions. It has been held consistently that non-disclosure or not placing the matter before competent authority travels to the root of the matter and nullifies all the actions taken on the subject matter. [Ref. Swaran Singh Chand v. Punjab State Electricity Board and others, (2009) 13 SCC758].
14. He also submits that it is an admitted case that the respondent has not placed the matter before ACC for approval or otherwise. Despite orders passed by the Tribunal, the records were not produced and unfortunately, the Tribunal has not adverted to this aspect of the matter despite extensive arguments made on behalf of the petitioner herein.
15. He submits that in case the action proposed under FR56(j) relates to “lack of integrity”, CVC must be consulted. OM dated May 10, 1974 specifically requires the consultation with CVC in case action is proposed to be taken for want of integrity. He has taken the aid of the judgment of the Supreme Court in the case of State of Gujarat and Another v. Justice R. A. Mehta (Retired) and others, (2013) 3 SCC 1, to contend that the expression “consultation” has been subjected to judicial attention and there is judicial consensus to mean, the following:-
“…….Ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess, in relation to each other, and then arriving at a decision. However, in a situation where one of the consultees has primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence. The court must examine the fact-situation in a given case to determine whether the process of consultation, as required under the particular situation did in fact, stand complete………”

16. He further submits that it is settled law, if law prescribes something to be done in a particular manner, all other course stands barred. [Ref. State of Uttar Pradesh v. Singhara Singh and others, AIR 1964 SC 358 and Mohinder Singh Gill and Ors. v. The Chief Election Commissioner, New Delhi and Ors., MANU/SC/0209/1977].
17. He further submits, in the instant case, it is an admitted position that there is no such consultation with CVC. In fact, the matter has never been reported to CVC prior to impugned order. CVC is a statutory office and is an independent office unconnected with the hierarchy of respondent/ Ministry of Commerce. The purpose of consultation necessarily is to elicit an independent view as to whether the material alleging imputation of integrity is sufficient to form such view. This primarily requires application of mind by a specialised agency. Particular view qua errors of judgment or one understanding of deviance amounting to “questionable integrity” would be a nebulous feature if left to the “charge making body”. Essential safeguard – therefore-pre ordains the consultation with CVC. Presence of CVO (a Joint Secretary level officer) in the Review Committee is not same as Consultation with CVC. The Tribunal has fallen into error in not appreciating this aspect of the matter despite the fact that the same has been dealt with extensively in oral arguments.
18. He submits that the Tribunal has failed to appreciate that the review for the purpose of invocation of FR 56(j), in law, is required to be done either at the age of 50 years or at 55 years and it must be completed six months prior to attainment of said age. In the instant case, the petitioner is the only ACC appointee in the list of officers who was cherry picked for the review at the age of 55.6 years without there being any adverse material. Thus, the proceedings adopted, described above, clearly indicate the malice in law, which accentuated such exercise.
19. It is his case that in the instant case, there is no material to justify the invocation of FR56(j). In fact, the observation concerning questionable integrity, is without any material on record. Copiously, the indictment that ‘the petitioner does not hold good reputation in terms of integrity as born out from APAR dossier’ is factually incorrect. The gist of all APARs shows that at no point of time the petitioner is levelled with remarks of the kind imputed upon him. Thus, if it is assumed that the basis for invocation of FR 56(j) is questionable integrity, and the same is derived from APARs, and if APARs are found to be absent with such remarks then the impugned order is “without any basis” worthy of judicial acceptance. In fact, some of the APARs specially records that the integrity of the petitioner as “integrity above board or nothing adverse”.
20. He submits that the recent promotion granted to petitioner with ACC approval, followed by the impugned order of compulsory retirement on non-existent grounds makes the order dated May 10, 2018, bad in law. It is settled law that once promotion is granted then absent any new material, the compulsory retirement cannot be inflicted. [Ref. M. S. Bindra v. Union of India and others, (1998) 7 SCC 310].
21. He further submits that in the instant case, there is no remark in recent APARs of the petitioner (even in past as well), which ails the impeccable integrity of the petitioner. In fact, the latest APARs (2016-2017) records impressive entries. It is his case that whole service records must be examined and as such, stray remarks loosing the consistency cannot be a basis for imputation. Moreover, extraneous and over-fending for adverse entries relatable to initial stage of service shall be avoided unless so grave and persistent.
22. It is his submission that the Tribunal has ignored the binding precedent relating to judicial review in case of compulsory retirement / invocation of FR 56(j). The law is clear that in case promotion is granted on same set of facts, unless new material justifying the invocation of FR 56(j) is obtained, such recourse is bad in law. He submits that the finding of the Tribunal, specifically, in paragraph 8, on the pure question of law, is bad in law, as observations of the Supreme Court in the case of State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 has been consistently reiterated in subsequent decisions in Pyare Mohan Lal v. State of Jharkhand and others, (2010) 10 SCC 693 and Punjab State Power Corporation Ltd. and Ors. v. Hari Krishan Verma, (2015) 13 SCC 156.
23. He submits that the findings of the Tribunal in paragraph 9 of the impugned order is perverse inasmuch as no instance was raised before the Tribunal which could indicate ‘deviance having financial implication’ on the part of the petitioner holding sensitive posts and as such observation of the Tribunal travels beyond respondent’s case.
24. It is his submission that the fact that the same officer viz, Alok Vardhan Chaturvedi has been part of all three Committees (First Review, the Representation Committee and Second Review), thus reasonable suspicion of bias has vitiated the process. The Departmental bias and malicious conduct of Alok Vardhan Chaturvedi, who formed part of three committees brings out a case of lack of good faith and malice against petitioner ex facie curiae [Ref. R.P. Kapoor v. Pratap Singh Kairon, 1965 SCC OnLine All 414].
25. It is also his submission that the Tribunal has ignored the binding precedents relating to judicial review in cases of compulsory retirement/invocation of FR56(j) inasmuch as the law is clear that in case promotion is granted on same set of facts, unless new materials justifying the invocation of FR56(j) are obtained, such recourse is bad in law [Ref. Smt. S. R. Venkataraman v. Union of India and another, (1979) 2 SCC 491].
26. He submits that the petitioner has preferred four representations on June 1, 2018, July 24, 2018, August 3, 2018, August 30, 2018 against the order dated May 10, 2018, whereby he was made to compulsorily retired. The occasion for such representations arose as the petitioner was unaware of grounds leading to order dated May 10, 2018. Various materials based on RTI Replies were produced to exhibit arbitrary and colorable decision making which culminated into order dated May 10, 2018.
27. He also submits that the Representation Committee met on September 07, 2018, but the said committee has foreclosed its wisdom as the comprehensive representation dated August 30, 2018 was deliberately not placed before it by the respondent and only the first representation dated June 1, 2018, which was preferred when petitioner was not aware of grounds of compulsory retirement, was considered. This approach is ex facie bad in law as the comprehensive representation dated August 30, 2018, which refuted all allegations, was not even looked at, let alone considered. Fairness and justness to which law presume the Government to be wedded to, requires due accord to comprehensive representation dated August 30, 2018. It is admitted case of the respondent that this representation was not considered.
28. He submits that, even without considering the comprehensive representation dated August 30, 2018, the Representation Committee found the petitioner’s case fit for reconsideration and remanded the matter back for reconsideration to the Review Committee and for approval of the Competent Authority.
29. It is further his submission that the Second Review Committee comprised of same set of officers in as much as it included Alok Vardhan Chaturvedi and Anoop Wadhawan. The said Committee, seemingly, adopted a procedure which, by its very frame, is prejudicial and antithesis to principle of natural justice. This Committee summoned the same officer who allegedly made the confidential note dated March 30, 2017 against the petitioner. The facts stated in said confidential note are plainly untrue, de hors the record and were product of “personal grudge” of its maker. For this reason alone, all the subsequent Authorities, i.e. UPSC, ACC and Vigilance authorities in departmental hierarchy had not given any credence to it at the time of subsequent promotion of the petitioner.
30. In fact, in comprehensive representation dated August 30, 2018, the petitioner has from objective facts, exhibited falsity apparent in said note and the conduct of the officer himself inasmuch as he resorted to tampering with the records. Even the confidential emails dated October 31, 2018 and dated February 02, 2019, highlighting the Representation dated August 30, 2018, addressed by the petitioner have been ignored. The Second Review Committee has, instead of examining the objective facts presented by the petitioner to determine the truthfulness of the confidential note from the departmental records, summoned its maker behind petitioner’s back. This approach tantamount to “taking of adverse evidence behind the back”, of the petitioner.
31. The Representation Committee has, ignored this serious lapse in procedure adopted by the Second Review Committee and has mechanically put its seal of approval. Thereafter, the papers were to be laid before competent authority, i.e., ACC. The same has never happened.
32. He submits, given the fact that there is no material whatsoever in the entire service record which could be stated to be warranting invocation of FR 56(j) and seemingly conscious of the same, the respondent has relied upon an unknown document beyond records, described to be confidential note dated March 31, 2017 allegedly made by one Inderjit Singh, (who had a very short tenure as DGAD). The contents of note, if taken at face value, do not justify as to how hearsay can have place, without there being any material. Albeit, contextual fact of the matter is that the said officer had tried to interfere in process of investigation undertaken by the petitioner and the petitioner refused to accede to act in the manner which goes against rules. In fact, the same officer, has at later stage, left with no choice, but signed on final findings prepared by the petitioner as per the Rules. Be that as it may, instead of examining the truthfulness of the said note, the said officer was called upon for interaction even before the Review Committee behind the petitioner’s back. It is his submission that it is a serious infirmity and what could not have been brought to fore against petitioner, has been done by verbal impressions in his absence. In fact, Counter Affidavit filed before this Court records that Chairperson of Representation Committee has been revealed with certain facts allegedly in confidence, that tantamount to putting impression with extraneous material.
33. It is further his submission that the impugned action on behalf of the respondent is manifestly arbitrary, colourable and without any authority and thus liable to be set aside. He has referred to judgment of the Supreme Court in the case of Shayra Bano v. Union of India and others, (2017) 9 SCC 1 to submit that any legislative or administrative actions premised upon manifest arbitrariness is hit by the triangular understanding of concept of reasonableness. [Ref. E.P. Royappa v. State of Tamil Nadu and another, (1974) 4 SCC 3].
34. So, on the basis of the aforesaid submissions, the petitioner is seeking interference of this Court to set aside the impugned order.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
35. Whereas, it is the submission of Mr. Ravi Prakash, learned CGSC appearing for the Union of India/respondent that the instructions as contained in DoPT OM dated March 21, 2014 and further supplemented by DoPT OM dated September 11, 2015 empowers an appropriate authority with an absolute right to retire, if it is necessary to do so in public interest, a government servant under FR 56(j) or Rule 48 (1) (b) of CCS (Pension) Rules, 1972 as the case may be.
36. He submits that in every review, the entire service record has to be considered. The expression ‘service record’ will take in all relevant records and hence the review should not be confined to consideration of the ACR / APAR dossier. The personal file of the officer may also contain valuable material. Similarly, the work and performance of the officer could also be assessed by looking into files dealt with by him or in any papers or reports prepared and submitted by him. Even un-communicated remarks in the ACRs / APARs may be taken into consideration.
37. He submits that DoPT has issued various instructions, from time to time, on the need for periodical review of the performance of Government servants with a view to ascertain whether a Government servant should be retained in service or retired from service in the public interest. Provisions in this regard are contained in FR 56 (j), FR 56 (i) and Rule 48 (1) (b) of CCS (Pension) Rules, 1972. The review is a mandatory exercise to be carried out by each administrative authority.
38. He further submits that the instructions issued by the DoPT have laid down the composition of the Review Committee to undertake review of officials at different levels as well as the composition of Representation Committee, to address representations from those adversely affected by review. The instructions on the subject have been consolidated in DoPT OM dated March 21, 2014, which is further supplemented by DoPT OM dated September 11, 2015 and DoPT OM dated August 28, 2020.
39. He submits that DoPT has in its OM dated March 21, 2014 issued, updated and consolidated instructions for review of Government servants under FR56(j), FR56(1) and rule 48 of the Rules. This was supplemented by the DoPT OM dated September 11, 2015 wherein, inter alia, the DoPT had also laid down the composition of the Review Committees for different levels/categories of officials. It was specified therein that the Review Committee, as applicable in the instant case, may be headed by the Secretary of the concerned Ministry / Department. It further specified that the Chief Vigilance Officer (who is a representative of CVC) should also be associated with the Review Committee. The consolidated instructions of DoPT for review under FR56 (j) as contained in the impugned OMs do not prescribe any consultation with CVO or ACC. The CVO, was the member of the Review Committee, on both the occasions, which recommended the premature retirement of the petitioner. The DoPT has again consolidated all its guidelines, issued from time to time, on the subject, through OM dated August 28, 2020 which again has no requirement for consultation with CVC/ACC.
40. He also submits that as far as integrity is concerned, the instructions have referred to the observations of the Supreme Court in the case of S. Ramachandra Raju v. State of Orissa, (1994) Supp (3) SCC 424. So, while considering the integrity of an employee, actions or decisions taken by an employee which do not appear to be above board, complaints received against him, or suspicious property transactions, for which there may not be sufficient evidence to initiate departmental proceedings, may be taken into account.
41. He further submits that the DGFT had carried out the review in respect of 49 officers who belonged to ITS and were eligible for review, for their retention or otherwise in the Government service. The Review Committee chaired by the Commerce Secretary and comprising Additional Secretary in Department of Commerce, Joint Secretary & CVO and DGFT, reviewed the 49 officers belonging to the ITS and based on the review, the Committee recommended the retirement of 4 ITS officers, including the petitioner, under FR 56(j). The Committee noted that the continuation of the officers was not in public interest and considering the overall record of the officers, their general reputation among officers/stakeholders and their questionable integrity, recommended their retirement from service under the provisions of FR 56 (j). Along with remarks in the officer’s APARs, the confidential note submitted by Director General of Anti-Dumping (DGAD) against the conduct of petitioner was taken on record for the said review. The said complaints received were assessed by the designated Review Committee under FR 56(i). Moreover, petitioner was retired from service on May 10, 2018 after the recommendations of the Review Committee were approved by the Commerce and Industry Minister as the appointing authority.
42. Furthermore, the petitioner made a representation against the order of premature retirement and the same was taken up by the Representation Committee chaired by Ms. Aruna Sundararajan, Secretary (Telecommunication) and comprising Ms. Rachna Shah, Joint Secretary, Cabinet Secretariat and DGFT, which remanded his case back for re-consideration by the Review Committee. The re-consideration of the review of petitioner was done and the Committee reiterated its decision to prematurely retire him, after due diligence and taking into consideration the factor that his continuation at such a high level of decision making would be injurious to the public interest. The Review Committee also interacted with the former DGAD who espoused about the unethical conduct of the petitioner as conveyed by him earlier through a confidential note, while holding the charge of DGAD.
43. He further submits that the Representation Committee took up the re-considered review of the petitioner and after detailed deliberations on all the facts relating to the dubious integrity of the petitioner, the instructions of the DoPT, judgments of the Courts, the relevant records of the petitioner, the considered view of the Department after re-examination of the case, upheld the decision of the Department of Commerce on premature retirement of the petitioner, thereby rejecting the representation of the petitioner. The petitioner was informed of the rejection of his representation on June 13, 2019.
44. Thereafter, the petitioner preferred the OA before the Tribunal challenging the order dated May 10, 2018 and rejection of representation dated June 13, 2019. The said OA has been dismissed by the Tribunal after considering all the relevant judgments of the Supreme Court in the facts of the present case and the said order of dismissal has been impugned before this Court primarily on the following grounds:
“a) The premature retirement of petitioner was done without the mandatory consultation with the CVO and ACC;

b) The Petitioner being appointed by ACC, the order for compulsory retirement should be approved by the ACC.

c) There is no material against the petitioner, as his APARs are very good and he has been promoted even after the remarks “there is room for improvement’

d) The composition of the Review Committee on both the occasions had common members in terms of Shri Anup Wadhwan, former Commerce Secretary and Shri A. V. Chaturvedi, former DGFT;

e) The Representation Committee on the first occasion also had Shri A.V. Chaturvedi, former DGFT, as the member, whereas he had been a member of the Review Committee.”

45. He submits that in terms of OM dated March 21, 2014, and September 11, 2015, instructions have been laid down qua the composition of the Review Committees for different levels/categories of officials. It was specified therein that the Review Committee, as applicable in the instant case, may be headed by the Secretary of the concerned Ministry Department. It further specified that the Chief Vigilance Officer (who is a representative of CVC) should also be associated with the Review Committee.
46. He submits that in the instant case of the petitioner, the Review Committees on both the occasions were headed by the incumbent Commerce Secretary, i.e., Ms. Rita Teotia in the First Review Committee and Anup Wadhawan in the Second Review Committee. It is his case that Anup Wadhawan who was the member of the First Review Committee (as constituted with the approval of incumbent Commerce Secretary), on the first occasion, was Addl. Secretary, Department of Commerce, had to be the head of the Review Committee, on the second occasion, as he had, by then, been appointed as Commerce Secretary. So, the presence of Shri Anup Wadahawan in the Second Review Committee is mandated by DoPT instructions and is beyond the competence of the petitioner to attribute any mala fide.
47. He submits that whereas Alok Vardhan Chaturvedi, as the DGFT, was made the member of the Review Committee, with the approval of Commerce Secretary, as he was representing the cadre management authority for ITS. In this context, it needs to be reiterated that the cadre of ITS officers is managed by the DGFT and the DGFT is the custodian of all service matters of ITS officers. So, no bias can be attributed to his being a member of the Review Committee.
48. According to him, Ms. Anita Praveen, CVO, was the member of the First Review Committee on the first occasion and Shri Shymal Mishra, CVO was the member of the Second Review Committee on the second occasion, as representative of CVC. The consolidated instructions of the DoPT for review under FR56 (j) as contained in the impugned OMs do not prescribe any consultation with CVO or ACC. The appointments to the SAG level of ITS are made with the approval of Commerce & Industry Minister as the Appointing Authority. The recommendations of the Review Committee for premature retirement of the petitioner, on both the occasions (original Review Meting and subsequent Review Meeting for reconsideration) were approved on the file by the Commerce & Industry Minister as the Appointing Authority. ACC is not the appointing authority for the petitioner and no consultation with CVC or ACC is mandated, as presumed and alleged by the petitioner. Therefore, the contention of the petitioner has no basis.
49. He submits that the representation of the petitioner made against the order of premature retirement, was duly considered by the Representation Committee and remanded the case of the petitioner back for reconsideration to the Review Committee. Accordingly, second review of petitioner was done, and the Second Review Committee reiterated its decision to prematurely retire him. Thereafter, the recommendation of Second Review Committee was placed before the Representation Committee in terms of the Rule 56 (jj) of Fundamental Rules. After detailed deliberations on all the facts relating to the petitioner, the Representation Committee upheld the decision of the Second Review Committee and the petitioner was also informed of the rejection of his representation on June 13, 2019.
50. It is his submission that the composition of the Representation Committee has been notified by the DoPT, which comprises of Secretary, Department of Telecommunication, Joint Secretary, Cabinet Secretariat and a representative of the cadre controlling authority. During the first meeting of the Representation Committee, the cadre was represented by Alok Vardhan Chaturvedi, the DGFT and during the second meeting of the Representation Committee, the cadre was represented by Joint DGFT (HRD). To challenge the deliberations of the Representation Committee on the premise that the DGFT was the member, would tantamount to questioning the wisdom of two senior officers, designated by the DoPT, outside the Department of Commerce or DGFT. It would be a figment of imagination to presume that such senior officers, of the Representation Committee could be influenced by the presence of DGFT while upholding the premature retirement of a senior Government official. In fact, to the contrary, the Representation Committee, where DGFT was a member, had returned the recommendations of the Review Committee for reconsideration.
51. That apart, the instructions of DoPT contained in OM dated May 10, 1974, referred to by the petitioner, has been superseded long back by consolidated instructions issued by DoPT, from time to time. Moreover, when the case of the petitioner was considered, OMs dated March 21, 2014 and March 11, 2015 were applicable. The consolidated instructions of the DoPT for review under FR 56(j) as contained in the impugned OMs do not prescribe any consultation with CVO or ACC. The DoP&T has again consolidated all its guidelines, issued from time to time, on the subject, through OM dated August 28, 2020, which again has no requirement for consultation with CVC/ACC.
52. He submits that in the instant case, the Second Review Committee also interacted with the former DGAD, who had espoused about the unethical conduct of the petitioner through a Confidential Note dated March 30, 2017. The facts were also shared, in confidence, with the Chairperson of Representation Committee, keeping in view the sensitivity of the issue involved. On reconsideration of all the facts, the representation was rejected by the Representation Committee and conveyed vide order dated June 13, 2019.
53. He further submits that the petitioner was reviewed along with 48 other ITS officers in terms of the DoP&T’s instructions contained in their OM dated March 21, 2014 and OM dated September 11, 2015 and not selectively picked up as alleged. The File Noting regarding decision of compulsory retirement as sought by the petitioner was rejected as the information in the file noting/correspondences contained the views and opinions of various officers who have contributed to the process of the review of all the ITS Officers reviewed under FR 56(j), including the petitioner. So, it had to be denied and the petitioner was replied suitably vide letter dated August 08, 2018.
54. Mr. Prakash has relied upon the judgment of the Supreme Court in the case of K. Kandaswamy v. Union of India and another, AIR 1996 SC 277, to contend that while considering the integrity of any employee, actions or decisions taken by an employee, which do not appear to be above board, complaints received against him, or suspicious property transactions, for which there may not be sufficient evidence to initiate departmental proceedings, may also be taken into account.
55. He submits that it is only after obtaining the approval of Appropriate Appointing Authority, i.e., Commerce & Industry Minister (C&IM), they were retired from service with the direction that they shall be paid a sum equivalent to the amount of their pay plus allowances for a period of three months calculated at the same rate at which they were drawing before their premature retirement from service.
56. He submits that even in OM dated September 11, 2015, integrity is defined in paragraph 5, in terms of the observation of the Supreme Court in the case of Ramchandra Raju (supra). He also submits that reports of conduct unbecoming of a Government servant may also form basis for premature retirement. (Ref: State of Uttar Pradesh and Others v. Vijay Kumar Jain, (2002) 3 SCC 641.
57. It is his case that as per paragraph 7 of DoPT’s OM as were relevant at that time, in the case of officers holding Group-‘A’ posts and in case of ACC appointees, a Review Committee headed by the Secretary of the concerned Ministry Department acts as a Cadre Controlling Authority. Thus, Commerce & Industry Minister (C&IM) being the Appointing Authority in the case of ITS Officers, is competent to grant approval for premature retirement. Therefore, seeking approval of ACC before issuing order of premature retirement of an ACC appointee is not considered as mandatory.
58. He further submits that the consultation of CVC in case of existence of material indicative of reflecting adversely on the integrity of any employee, is not mandatory in terms of paragraph 8 of the DoPT’s instructions, as CVO in the case of gazette officers, was associated as the member in both the Review Committees.
59. He has also relied upon the judgment of the Supreme Court in Umedbhai M. Patel, (supra), to submit inter alia that if the services of a public servant are no longer useful to the general administration, the officer can be prematurely retired in the public interest.
60. He submits that the high level Committee was constituted to review the cases of various officers, who have crossed the age of 50 years. The Committee examined the relevant service records of various officers and recommended the case of the petitioner for premature retirement. On scrutiny of APARs dossier of the petitioner, it was noticed that several observations were made at different points of time in the ACRs of the petitioner, doubting his integrity and expressing discontent about his functioning. The petitioner was holding a very senior and sensitive position in the department and any small deviation from the prescribed norms is bound to have its impact on the functioning of the department and adversely affecting the interest of the country.
61. He submits that the petitioner did not face any disciplinary proceedings in his career. The fact, however, remains that he was holding a very sensitive post, having serious financial implications for the country and there were instances where certain deviations were noticed on his part. After reviewing the case of the petitioner, the Committee formed the following opinion:
“f. Shri S. S. Das (ITS-1989) – The Committee noted that intent and conduct of Shri Das, while dealing with files as well as with clients, has been obstructive and questionable. He does not hold a good reputation in terms of integrity. This fact is borne out by entries in his APAR dossier. On few occasions, during different spells of his posting in DGAD, his unprofessional conduct has been taken on record also. In one case Shri Das as charged with insubordination. In other case, it has been reported that the officer approach in handling the cases has been unprofessional and questionable integrity.

The Committee noted that the officer was recently promoted to the post of Additional DG. However, it was observed that as at the time of the promotion, the officer was technically clear from vigilance angle (in terms of extent instructions of DoP&T on granting vigilance clearance for promotion), the officer was promoted.

The Committee recommended premature retirement of the officer in public interest, taking into account the questionable reputation and conduct of the officer.”

62. It is his submission that in terms of Government of India (Allocation of Business) Rules, 1961 (as amended upto December 28, 2017) (‘Business Rules’, for short), the business of the Government of India is transacted in the Ministries, Departments, Secretariats, and officers specified in First Schedule. Accordingly, in terms of the First Schedule of Allocation of Business Rules, Commerce & Industry Minister is the cadre control authority of ITS.
63. That in terms of the Government of India (Transaction of Business) Rules, 1961 (as amended upto April 03, 2020), ACC is consulted only for the appointment, empanelment and upgradation of an officer, not for the retirement of an officer.
64. He submits that once a memorandum dated January 15, 2009 was issued to the petitioner to explain for non-issuance of initiation notification within the prescribed time lime in the sunset review case pertaining to import of Met Coke from China PR. In APAR for the year 1997-98, the Reporting Officer of the petitioner had commented that “he works well in a team but better alone and leadership qualities will develop more with experience”. The petitioner had also been advised to be more positive in his attitude towards policy issues. Further, in the APAR for the period 1998-99, Reporting Officer of the petitioner commented in integrity column that few complaints were received against the petitioner. In the APAR for the period 2014-15, while petitioner was posted in DGAD, Reporting Officer commented in the integrity column that there is room for improvement. In the year 2017, while the petitioner, was posted in DGAD as Joint DGFT and was drawing Grade Pay of Rs. 10,000/-, a Confidential Note was received from AS & DGAD, against the petitioner on March 30, 2017. In the note, it was stated that the petitioner acts as the Investigating officer in various Anti-dumping and CVD cases allotted from time to time and is also in charge of the then created CVD Cell, which co-ordinates the matters relating to CVD cases initiated by other countries against India. It is stated that the petitioner’s overall approach in handling a recent case was unprofessional, with calculations and conclusions varying several times. During the processing of this case, the petitioner also tried to push for some principles, which as per prevailing rules/conventions of DGAD were not allowable, and have also not been allowed in the past in any other case. AS & DGAD had also stated that on March 29, 2017, some of the representatives of domestic industry applicants in this case met the petitioner and made certain serious allegations against the petitioner, including demand of some favours in return for doing something in the case. However, considering the nature of allegations, they were reluctant to give a written complaint regarding this.
65. At last, he submits that modalities and approval for the premature retirement of the petitioner on May 10, 2018, under FR 56(j) is in accordance with the laid down guidelines of the DoPT and has been thoroughly examined and upheld by the Representation Committee followed by CAT, Principal Bench, Delhi and as such there arises no scope for any legal intervention on behalf of the petitioner whose service has been dispensed with for doubtful integrity and as such the writ petition needs to be dismissed.
REJOINDER SUBMISSIONS
66. It has additionally been the case of Mr. Ghose that the respondent, in passing the order dated May 10, 2018 has acted arbitrarily in as much as there was no public interest in subjecting the petitioner with irreparable disadvantage- especially when his official credentials bespeaks of his integrity, competence and ability in performance of public duty assigned to him. In fact, no material existed prior to taking of the impugned decision, least the one justifying the compulsory retirement. At no point of time any material was disclosed which could relate to “compelling public interest” forming the bedrock of the Order dated May 10, 2018.
67. He submits that when first representation dated June 1, 2018, was preferred, the petitioner was entirely unaware of exactitude of malice or any instance of past or any fact or reason which could justify the order of compulsory retirement. The said representation was kept pending. In the interregnum, the petitioner had preferred the OA before the Tribunal. During the pendency of said O.A and the said representation, the petitioner, through application under RTI Act, was partially successful in getting ACR/APAR for 10 years, however, file notings regarding decision for Order dated May 10, 2018 was denied. The documents indicative of service credentials were deemed to be relevant. Additional representation dated August 03, 2018 was also preferred and founded on such disclosures received by way of reply to RTI application. The said representation was material because, in petitioner’s case, he has been promoted to SAG upon due approval of ACC on November 16, 2017. Furthermore, last APAR of December 2017, categorically notes that there is nothing adverse against the petitioner. In such circumstances, it was reasonable inference that the order dated May 10, 2018 is not founded on service credential of petitioner. The logical corollary thereof, is that there ought to have been some material outside the service records which led to order dated May 10, 2018. The possibility of that material to be extraneous, irrelevant and de hors the record, were imminent.
68. He submits that irrelevant reference to past incidents relatable to memorandum, un-communicated APARs, and alleged confidential note, which has come to fore for first time be responded to. For this reason, the petitioner was constrained to submit the comprehensive representation dated August 30, 2018, which had inter alia, responded to on all such counts with material particulars and for this reason alone, it seems, that the first ground relating non issuance of memo for non initiation of investigation a sunset review (SSR) in a case pertaining to Anti Dumping Duty on Met Coke from China in 2009, was dropped. As far as, the non-initiation of the SSR proceedings is concerned, it is matter of record that the said decision was in public interest and due accord of authority concerned- at that point of time existed, and after petitioner’s response to the memo the matter was closed. That stand alone incident, otherwise, cannot be a basis for formation of opinion qua merits, integrity, ability, competence and technical soundness of the petitioner. In fact, the approach adopted by the petitioner was most rational and pragmatic and was accepted by the authority concerned. Furthermore, the said communication relates to period when the petitioner was serving as a Director in Ministry of Finance and his service credential at places wherever he served has been found to be impressive enough to comport him as an asset to the government.
69. He further submits that for the first time in the Reply/Counter affidavit, it is stated that no provision of supplementary representation is contemplated in FR 56(j). It is plainly misconceived for FR 56(j) per se does not provide for mechanism to be adopted in the event of resort to grant of compulsory retirement and representation for reconsideration of such decisions. The procedure adopted to submit representation(s) and to enable the government to mitigate the injustice which may have occasioned in the worthy cases are prescribed in subsequent OMs which have been issued from time to time beginning from June 1969. None of the OMs dealing with the subject, restricts the submission of only one representation. In fact, it is bereft of any reason, if in non-adversarial proceedings, new facts which have discovered later (after first representation) could not be brought to fore. The general principal of audi alterum partem preordains meaningful hearing which has been judicially read to mean that the prejudiced person shall have full opportunity to rebut anything which could be read against him. The petitioner’s right to prefer supplementary representations are all the more a necessity when “reasons/ material/ circumstance” for invocation of FR 56(j) had not been disclosed. Only through representations he was trying to dispel- if at all any suspicion could be remotely found against him, since the focus of legitimacy of invocation of FR 56(j) has not been spelt clearly by the respondent in terms of disclosure of finding of ‘public interest’ warranting compulsory retirement.
70. It is his submission that OM dated August 25, 1971, stipulates that FR 56(j) can be exercised only in the following circumstances:-
(i) To retire a Government Servant on the ground of specific acts of misconduct as a short cut to initiate disciplinary proceedings; or,
(ii) For reduction of surplus staff or as a measure of effecting general economy without following the rules and instructions relating to retrenchment; or
iii) On the ground that Government Servant may not be suited continue in his officiating post or for promotion to a higher post for which he might be eligible after his attaining the age of 50/55years, or completing 30 years of service as the case may be.
71. He submits that the Supreme Court in Ankit Ashok Jalan v. Union of India, AIR 2020 SC 1936, has ruled that in case materials preferred with representation are not analysed or reasonable time frame is not honoured, the same would mean that the very safeguard of preferring representation has been violated. In petitioner’s case, this safeguard has been reduced to negation because of excessively dilatory tactics adopted by the respondent.
72. He submits that the judgment of the Supreme Court in the case of Union of India (UOI) v. J.N. Sinha & Ors., MANU/SC/0500/1970, was predicated on assumption that compulsory retirement does not involve civil consequences and this judgment was followed in The State of Gujarat and Ors. v. Suryakant Chunilal Shah, MANU/SC/0761/1998, wherein this Court dealt with the concept of public interest in great detail.
73. He submits that it is a settled position of law that the order of compulsory retirement is not a punishment because the same does not wipe out service rendered. The restricted scope of judicial review lies in the sphere that such order being an executive act must not suffer from arbitrariness and the principles which govern the scope of judicial review in determining the legality of subjective satisfaction of executive action shall ipso jure apply in such cases.
74. It is his case that in the instant case there is no manifestation that authorities concerned have ever examined all the service records or other relevant materials at the time of alleged review. The mechanical exercise of power is apparent from alleged first stage itself. The OMs intended to give objectivity in exercise of discretion in such kind of case, clearly spelt out the period when officers can be subjected to review for the purpose of compulsory retirement. Reliance has also been placed upon the judgment of the Supreme Court in the case of The Barium Chemials Ltd. and Ors. v. The Company Law Board, AIR 1967 SC 295, to contend the same.
75. It is thus clear that unless respondent satisfactorily shows the cause to carry out review post petitioner’s completion of 50 years of age, any reason which must have weighed against petitioner, deserves to be not looked at.
76. He further submits that the constitutional jurisdiction of High Courts in service matter, contemplates of all such powers which are exercisable under power of judicial review in executive actions. The dictum laid down in J.N. Sinha & Ors. (Supra) when speaks of limited judicial review has contemplated the expression in contradistinction with merit review [Ref. Satish Kumar Singh v. Anil Kumar Yadav and Ors., Chairman, UPPSC, Allahabad, MANU/UP/1944/2015].
77. He also submits that the respondent in its brief background or elsewhere has not explained what was “in particular” the material which has led the respondent to form an opinion that petitioner has “recurrent issues reflecting on his integrity”. The OMs dated May 10, 1974 and September 11, 2015 in paragraph 8, clearly provides that in cases of gazetted officers, initial appointment to which is referrable to the ACC, where action is to be taken on the grounds of lack of integrity, CVC shall be consulted before the case is placed before the ACC. In the instant case, neither any material having bearing “in determining the doubtful integrity” of petitioner was brought on record nor was CVC consulted, which is a mandatory requirement and constitutes as an essential safeguard against possible arbitrariness. The mere presence of CVO in the meetings, would not substitute the essential requirement of consultation with CVC. The purpose, mode and process of consultation with a statutory body, cannot be bypassed by mere presence of departmental officer of lower rank than the Secretary heading the meetings. It is, thus, clear that prerequisite consultation with CVC in cases of application of FR 56(j) based on “doubtful integrity” of employee is precondition before formation of bona fide opinion. In the absence of the same, whole process stood vitiated.
78. Reliance has also been placed upon the judgment of the Supreme Court in the case of The Barium Chemials Ltd. and Ors. (Supra), to contend the same. It is his submission that the instant judgment of the Supreme Court applies on all fours in instant case, as in absence of consultation with CVC as to “existence of materials” indicative of “reflecting adversely on the integrity of any employee”, no opinion on existence, validity and sufficiency qua “integrity” can be formed. This principal impugned action is bad in law for formation of “bona fide opinion”.
79. He submits that the law governing the field is clear on two counts: a) only President of India is vested with the powers to grant compulsory retirement under FR 56(j); b) the aid and advise tendered to the President must emanate from cabinet and given the case that the petitioner is SAG appointee, the aid and advice render to him must be that of ACC and not of any other authority inferior or different from ACC. If either of above stated conditions stands violated, the principal impugned order is without jurisdiction and is replete of its validity on that count alone. Reliance has been placed upon the judgment of the Supreme Court in V.C., Banaras Hindu University v. Shrikant, AIR 2006 SC 2304, to contend the same.
80. He submits that the clear principle which emanates from the said judgment is this that once an order is passed by an authority which has no power to take a decision then it is an order without jurisdiction and therefore the same is nullity. The doctrine of consequent act provides that all subsequent actions based thereon shall also be nullity. This is an error of jurisdiction which goes to the root of the matter and is an incurable one. In the instant case the petitioner, being SAG (Joint Secretary) rank officer, can only be removed/ prematurely retired from the service by the appropriate authority. Indubitably the appropriate authority in the present case is the President of India. However, he is required under Article 74 to act on the aid and advise of the council of ministers. Given the fact that the appointment of petitioner in SAG rank is based on aid and advice of ACC, it is duty incumbent upon the respondent that any decision relatable to curtailment of service tenure by the President shall also be backed by the ACC approval. The OMs of 1974 and 1978 specifically provides for the same. Having not done this, the principal impugned order is bad in law as neither the President was rendered any aid and advice qua the petitioner nor was he apprised of material based on which a subjective satisfaction of President qua existence of public interest warranting invocation of FR 56(j) exists. In fact, the principal impugned order dated May 10, 2018 does not indicate, if the decision is taken by President or has been done by the Secretary to the President under his direction. If at all, the best secret material which led to principal impugned order was ever brought before President or if the same remain secret for him as well.
81. He also submits that the statement that DGFT carried out the review in respect of 49 officers belonging to the ITS, for their retention or otherwise in Government service, is not true. The copy of the minutes of the Review Committee obtained under RTI shows that only 5 handpicked officers were reviewed and 4 out of them were recommended for premature retirement. Had there been a review of all 49 officers, the minutes would have reflected the name of all the officers reviewed and more so, comments against all of them would have been recorded the same way as like the one among five recommended to be retained in the said minutes. It is thus clear that only few officers were first handpicked for review by the Department.
82. He submits that the comments in the APAR, some 20 years back, cherry picked by the Review Committee as ‘reflection on the competency and capability or integrity of the petitioner’ are rather frivolous and by no stretch of imagination can be construed to be a negative attribute or reflection on integrity. Further, the same APARs rate the petitioner as an outstanding officer throughout. The only document relied upon by the Second Review Committee is a confidential note which is again based on hearsay and the Author himself says ‘there is nothing to substantiate it’. Further, the comprehensive representation of the petitioner, dated August 30, 2018, to the Representation Committee, which dealt squarely on the confidential note and the conduct of the Author of that note himself, has been deliberately not presented to the Representation Committee and again ignored by the Second Review Committee to protect the Author of that note and perpetuate a wrongful action against the petitioner.
83. He also submits that the Representation Committee, in its minutes clearly records that since the petitioner has been recently promoted to SAG with the approval of UPSC and ACC, the matter should be reconsidered and placed before the appropriate approving authority, hinting thereby to go back to ACC. The respondent has again failed to place the matter before the CVC and ACC. After remand of the case, the Second Review Committee, instead of looking into the comprehensive representation of the petitioner dated August 30, 2018 which deliberated in detail about the so called confidential note challenging every aspect of it, did the most unethical thing by interacting with the author of the note behind the back of the petitioner and accepted his version as gospel truth to reiterate its earlier decision. Moreover, the Second Review Committee preferred to interact with the officer who was the reporting officer of the petitioner for only 4 months’ but not the previous officer who had supervised the work for over two years with outstanding reports. The petitioner was also not given an opportunity of hearing to explain his case though requested for.
84. He also submits that the respondent admits that influence was brought on the Chairperson of the Representation Committee by way of sharing of facts on confidential basis thereby compromising the objectivity and independence of the Representation Committee.
85. He further submits that the consolidated OMs of 2014 and 2015 lays down prescriptive timelines for the review and re-composition of the Review Committees, but all other provisions of various OMs issued from time to time i.e., 1969, 1974 etc. have been retained as per the marginal notes of the said OM of 2014 and 2015. OM of 2015 has only reconstituted the Review Committee at the level of Secretary instead of Senior Selection Board as notified in Annex-II of 1969 OM and reiterated in 1974 OM. OM of 2015, does not talk about the Approving Authority. Approving Authority for SAG and above officers continues with the ACC as per 1969 OM and 1974 OM (which is only an extension of 1969 OM) and reiterated in 2014 OM. Similarly, the requirement of CVC consultation for SAG and above officers before placing it with ACC has not been superseded as is being made out by the respondent. Mere change in, composition of the Review Committee does not alter the approval requirement by ACC and mere presence of CVO in the Review Committee does not satisfy the requirement of Consultation with CVC as provided in OM of 1974.
86. It is his submission that the objection is to the presence of one Alok Vardhan Chaturvedi in the Representation Committee after being a part of the Review Committee, which has clearly carried the departmental and personal bias to the Representation Committee and that is apparent from the fact that the minutes of the Representation Committee was held up for over two months after the meeting. The acts of the respondent had become grave and untenable, because of the admitted fact that pressure and influence have been brought on the chairperson of the Representation Committee by way of sharing of information in confidence outside the representation committee. Therefore, presence of the same person in both the committees is a grave violation of administrative justice. In the instant case, instead of examining the records and forming an opinion thereon, an officer who has long left the department was consulted from back door to infuse his personal vendetta and the same is treated as a justification for impugned action. It is thus a clear case where the consideration for impugned action is extraneous. It is settled law that if a decision cannot be reached by excluding the extraneous material, then the decision shall be deemed to be “without any material”.
87. He further submits that presence of the same person in both the Committees not only vitiates the proceedings but also carries the personal and departmental biases as is evident from the fact admitted by the respondent that certain information was confidentially shared with the Chairman of the Representation Committee. It clearly means undue influence and pressure was brought on the Chairperson of the Representation Committee after the committee remanded the case back to the review committee for reconsideration of the case of the petitioner. The Representation Committee was constituted for the purpose of an independent and unbiased consideration of the representation and to take an appropriate view to prevent arbitrary use of the powers by the departments. Therefore, it is not a figment of imagination that such senior officers of the Representation Committee could be influenced by the presence of DGFT/Mr. Chaturvedi. It is an admitted fact that materials de hors the records were looked at/or purported to have been looked at or allegedly shared with Chairman of the Representation Committee, seemingly after remanding back the matter by the Committee. The purported sharing of materials which do not form part of record and it seems such were the personal opinion, after remanding back of the matter frustrated the very purpose of “remand back”. He submitted that it is only because the Representation Committee found compelling reasons in the first instance, they returned the recommendations of the Review Committee for reconsideration despite the presence of DGFT in the said Committee. Thereafter, as admitted by the respondent, pressure and influence has been brought on the Committee by sharing undisclosed information with the Chairperson of the Representation Committee to poison her mind.
88. He submits that the Review Committee has extracted all that they felt negative in the service records of the petitioner to