Delhi HC upholds Centre’s power to retire RAW Officers whose identity is compromised

The Delhi High Court has upheld the Constitutional validity of Rule 135 of the Research and Analysis Wing (Recruitment Cadre and Services) Rules, 1975, which gives power to the Central government to voluntary retire RAW Officers whose identity is exposed or compromised..The judgment was pronounced by a Division Bench of Justices S Ravindra Bhat and Sanjeev Sachdeva in a challenge to the order of the Central Administrative Tribunal (CAT) setting aside the government’d order which had voluntarily retired RAW OfficerNisha P Bhatia as per the said Rule..Bhatia was recruited in 1987 and deployed to RAW under the Cabinet Secretariat, which deals with sensitive and highly classified issues concerning national security. In July 2004, she joined as Director, Training Institute, Gurgaon, where she continued to be posted till 2007. Thereafter, she requested for some specific postings in the organization and also filed a sexual harassment complaint against Joint Secretary Sunil Uke, her immediate superior. The Shashi Prabha Committee was therefore constituted to consider the complaints against Uke..It was alleged that Bhatia sent abusive, vulgar and threatening messages repeatedly and also misbehaved with junior staff and their family members who were residing at the campus of the Gurgaon training institute..She also made a representation to the Prime Minister’s Office on the subject “sexual exploitation of women employees in the RAW – Indifference & Involvement of former secretary (R), Shri Ashok Chaturvedi”. Eventually, a Complaints Committee was constituted by the Centre..Meanwhile, the Shashi Prabha Committee in its report submitted that the applicant did not co-operate with the Committee..Subsequently, Bhatia attempted suicide in front of the Prime Minister’s residence. The incident attracted a lot of media attention and even resulted in a charge sheet under section 309 IPC. The events escalated to the level that the issue even reached the Supreme Court and Delhi High Court, where she tore her clothes and was taken away by the police..Eventually, after a series of incidents including filing of criminal complaints by Bhatia against several officers, the Centre invoked its power under Rule 135 of the 1975 Rules, compulsorily retiring her from government service with immediate effect..This became the subject matter of challenge before the CAT, which quashed and set aside that order of compulsory retirement..Before the Delhi High Court, the Centre justified her compulsory retirement under the Rule and stated that in case the identity of any official of the organization is exposed as an Intelligence Officer, he/she becomes unemployable for reasons of security. Therefore, to meet such a situation, there is “exit policy’ which has been incorporated under Rule 135..“..the incident whereby applicant attempted to commit suicide in front of the Prime Minister’s residence on 19.08.2008 by consuming poison attracted electronic and print media and the incident was reported in the media. This exposed and compromised her as an intelligence officer.”, Centre submitted..Explaining that compulsory retirement under Rule 135 is not a punishment, Centre contended,.“(Its is) a means to meet a situation where an officer cannot be allowed to function in the organization for the reasons of the security of the State, or because his identity stands exposed as an officer of the Intelligence organization and therefore he becomes unemployable.”.Once retired in terms of Rule 135, the officer is granted “pension based on emoluments, which the officer would have drawn, had he remained in service till the age of superannuation and also earned promotions other than promotions by selection”. It further provides that a compulsory retired officer may also be paid resettlement grant equivalent to 12 times the monthly pay drawn by him immediately before his compulsory retirement, which is not payable to other officers who retire on the age of superannuation..The Centre also informed the Court that Bhatia herself refused to cooperate with the sexual harassment Committee, and even withdrew her complaint. It was argued that Bhatia’s conduct indicated “a disturbed state of mind” as she had even threatened to take her life before the Committee..Bhatia, on the other hand, argued against the Constitutional validity of the Rule, stating that Rule 135 is “so secret” that officials to whom it applies are not even aware of the factum of its existence – leave alone what it says..“R&AW officials may not know what the rule prohibits even after they have been retired under it. This because the UOI admitted that the Rule lies behind lock and key.”.She further submitted that the term ‘exposure’ in Rule 135 has no meaning, as it does not refer to whose exposure or to whom, or even the method and the place. She argued that “the matter is left to presumption that such ‘ exposure’ is that of an ‘intelligence officer’ of R&AW – before media”..It was also stated that being in the field for 22 years, she had interacted with members of intelligence agencies of most major countries, and they all knew her as a RAW officer. She was therefore already “exposed” as an intelligence officer..Bhatia also brought on record the inconsistency of Rule 135 with the other rules that govern employees on deputation. She relied on provisions of the CCS(CCA) Rules and CCS(Pension) Rules, 1972 to show that members of All India Services who join the RAW on deputation are not governed by them..Lastly, Bhatia relied on Rule 56(j) of the Fundamental and Supplemental Rules, which gives power to the Central government to compulsorily or prematurely retire an officer of the Union. She stated that Rule 56(j), which applied to all public employees of the government without exception, could not permit any contingency of the kind authorized by Rule 135..The High Court, however, rejected the contentions put forth by Bhatia..It noted that since she had chosen to challenge Rule 135 in a separate writ petition, she was aware of the Rules. The Court also opined that the lack of publicity to the Rule cannot be a valid ground to strike it down, given the character of the RAW and the compulsions that led the Centre not to publish the said Rule..It also noted the use of the expressions “security” and “exposure”, are not vague or arbitrary, but have regard to the context and the underlying objectives of the RAW i.e security of the State and exposure of the identity of the concerned individual..Ruling out the applicability of 56(j), the Court opined that once it is accepted that Rule 135 is framed under proviso to Article 309 of the Constitution of India, its statutory status is recognized..“Therefore, it then becomes a special condition applicable to members of R&AW, having regard to the peculiarities of their service. The rationale for its invocation need not necessarily be any wrongdoing attributable to the public employee, but the fact that some circumstances exist which warrant exercise of power based on that norm (Rule 135).”.After perusing the file noting and materials on record, the Court observed that it cannot be held that the government acted in a mala fide manner, in choosing what it considered to be an “inevitable option”. It observed,.“Therefore, as long as a public employee’s services are dispensed with prematurely for reasons which are germane to the concerned body’s service rules and terms and conditions, and are not mala fide or do not suffer from any grave procedural impropriety, the courts would not interfere with the decision.”.While directing the Centre to grant Bhatia all consequential benefits in terms of Rule 135, the Court decreed,.“Rule 135 is valid and constitutional. The invocation of Rule 135 by the Central Government is upheld.“.The Centre was represented by Senior Advocate PS Patwalia with Advocates Sudhir Walia, Ajay Digpaul and Archit Upadhyaya..Bhatia appeared in person..Read the judgment: