JUDGMENT Nishita Mhatre, J. 1. The challenge in this petition is to the order passed by the Administrative Tribunal on 26th July 2012 in MA 258/12 and O.A. 337/11. The petitioners have been directed to absorb the respondent in the Ministry of Civil Aviation as Assistant Commissioner of Security (Civil Aviation). The Respondent No. 1 (hereinafter referred as the respondent) was holding the post of Field Officer (CI) Government of India, Cabinet Secretariat which is a Group-B post. He applied for being posted on deputation as Assistant Commissioner of Security (Civil Aviation) which is a Group-A post. He was appointed on deputation to the post for a period of five years from 9th July, 2007. The respondent was transferred to Calcutta and joined the office of the Regional Commissioner of Security (Civil Aviation) as an Assistant Commissioner of Security (Civil Aviation). On first May, 2009, a circular was issued by the Union Public Service Commission inviting applications for 14 posts of Assistant Commissioner of Security (Civil Aviation) on the basis of deputation/absorption/reemployment. The respondent applied for absorption on the aforesaid post. On 28th October 2009, while still on deputation, the respondent was directed to take additional charge of the post of Regional Deputy Commissioner of Security (Civil Aviation, Calcutta). A letter was issued on 10th September, 2010 to the respondent indicating that it was an offer of appointment to the post of Assistant Commissioner of Security (Civil Aviation). The letter discloses that the Minister of Civil Aviation had approved of the decision to absorb the respondent as an Assistant Commissioner of Security (Civil Aviation) in the department of Civil Aviation Security on "absorption basis" with effect from the date he assumed charge. The Cabinet Secretariat was directed to transfer all records pertaining to the respondent to the bureau of Civil Aviation. The date on which the respondent was expected to assume charge in the bureau was to be intimated to him in due course. 2. Before any such letter intimating him the date of assumption of charge was issued to the respondent he received an office order on 6th April, 2011, prematurely repatriating him to his parent department with immediate effect. The period of deputation was to expire on 8th July, 2012. The respondent immediately approached the Administrative Tribunal questioning his premature repatriation. 2. Before any such letter intimating him the date of assumption of charge was issued to the respondent he received an office order on 6th April, 2011, prematurely repatriating him to his parent department with immediate effect. The period of deputation was to expire on 8th July, 2012. The respondent immediately approached the Administrative Tribunal questioning his premature repatriation. An interim order was passed by the Tribunal on 11th April, 2011 by which he was permitted to continue in the Bureau of Civil Aviation Security. Consequently, the order of repatriation dated 16th April, 2011 was withdrawn by the Petitioners. The respondent thus continued on deputation pursuant to the interim order passed by the Tribunal till the period of deputation expired on 8th July, 2012. 3. On hearing the application finally the Tribunal was of the view that the letter dated 10th September, 2010 issued to the respondent gave him a legitimate expectation to be absorbed as an Assistant Commissioner of Security (Civil Aviation). The Tribunal set aside the order of 6th April, 2011 directing premature repatriation of the respondent. It further observed that if there was a valid reason for penalizing the respondent, the petitioners could charge sheet him and after a disciplinary inquiry could punish him for the same. The Tribunal allowed the application and directed the absorption of the respondent into the post of Assistant Commissioner of Security (Civil Aviation). 4. Mr. Chatterjee the Learned Counsel appearing for the petitioner has taken exception to the impugned order on the following grounds: (i) The Petitioners had every right to prematurely repatriate an employee to his parent department when it was found that retaining him on deputation on any post was a security hazard. (ii) That in any event since the period of deputation had come to an end on 8th July 2012 no case for absorption of the respondent as an Assistant Commissioner had been made out. (iii) When allegations had been made regarding the improper and inappropriate conduct of the respondent while functioning as a deputationist in the Bureau of Civil Aviation he could not be absorbed as an Assistant Commissioner which was a sensitive post. (iv) A person on deputation has no right to either continue on deputation or to be absorbed in the post in which he was officiating. (iv) A person on deputation has no right to either continue on deputation or to be absorbed in the post in which he was officiating. (v) The letter dated 10th September, 2012 cannot be considered to be a letter of appointment and, therefore, the respondent was bound to go back to his parent department and could not insist on his retention in the Bureau of Civil Aviation. 5. The Learned Counsel for the respondent, on the other hand has brought to our notice several rules dealing with the period of deputation and contended that the deputation of any government servant could not be curtailed prematurely. He submitted further that an offer of appointment had been made to the respondent by the letter of 10th September, 2012 and the government could not renege on that offer. He urged that once the Union Public Service Commission recommended a candidate for appointment to a particular post and the government accepted the recommendation it must be recognized as the appointment of the person to that post. He submitted that while on deputation the respondent was directed to hold an additional charge of Regional Commissioner of Security besides his other responsibilities and, therefore, it could not be said that the respondent's candidature for the post of Assistant Commissioner should be ignored. He urged further that if the respondent was not to be appointed as an Assistant Commissioner because of any act of misconduct committed by him, then it was incumbent on the petitioners to hold a departmental inquiry. As no inquiry had been held the respondent had a legitimate expectation of being appointed as an Assistant Commissioner, especially when the Union Public Service Commission had recommended his candidature and the Ministry had accepted the recommendation, urged the Learned Counsel. 6. Both the Learned Counsel have referred to certain judgments which we will be advert to presently. 7. As the period of deputation has come to an end in the normal course it is not necessary for us to consider whether the order of repatriating the respondent to his parent department, prematurely, is of any consequence. We, therefore, propose to confine ourselves to the aspect whether the respondent is entitled to be absorbed in service as an Assistant Commissioner Security (Civil Aviation) on the basis of the letter dated 10th September, 2010 issued by the Deputy Director, Personnel Bureau of Civil Aviation Security. 8. We, therefore, propose to confine ourselves to the aspect whether the respondent is entitled to be absorbed in service as an Assistant Commissioner Security (Civil Aviation) on the basis of the letter dated 10th September, 2010 issued by the Deputy Director, Personnel Bureau of Civil Aviation Security. 8. The Learned Counsel for the respondent has described this letter of 10th September, 2010 as a letter of appointment of the respondent to the post of Assistant Commissioner of Security (Civil Aviation). On perusal of that letter we find that the subject is mentioned as an "offer of appointment". The letter reveals that the name of the respondent had been recommended by the Union Public Service Commission for appointment to the post of Assistant Commissioner of Security (Civil Aviation) in the Bureau of Civil Aviation on absorption basis. With the approval of the Minister of Civil Aviation it was decided to absorb the respondent in the post in the grade pay of ` 5,400/- (pre-revised scale of'. 8000-13500) with effect from the date of assumption of charge. The date was to be intimated to the respondent in due course. The Cabinet Secretariat was requested to transfer all his service records personal files, ACRs folders to the Bureau. 9. In our opinion, this letter of 10th September, 2010 cannot be treated as a letter of appointment. A letter of appointment has to be issued by the appointing authority who has been delegated the power in accordance with Article 309 of the Constitution of India and the Central Civil Service Rules. A letter issued by the Deputy Director of Personnel cannot in any manner be treated as a letter of appointment. Although the letter mentions that a decision had been taken to absorb the respondent as an Assistant Commissioner with the approval of the Minister of Civil Aviation, we do not accept the contention of Learned Advocate the respondent, that it could be construed as a letter of appointment. An appointment to a post can either be by nomination or by promotion. The letter of 10th September, 2010, though indicating that there was a decision to absorb the respondent in the post of Assistant Commissioner, cannot be treated as a letter of either absorption or appointment. This is because the date of assumption of charge had not been specified. An appointment to a post can either be by nomination or by promotion. The letter of 10th September, 2010, though indicating that there was a decision to absorb the respondent in the post of Assistant Commissioner, cannot be treated as a letter of either absorption or appointment. This is because the date of assumption of charge had not been specified. It is only that date which would indicate that the respondent had in fact been appointed to the post. A decision to absorb a person in service cannot be equated with an appointment in government service. 10. Reliance has been placed by the learned counsel for the respondent on the judgment of the Supreme Court in the case of Asha Kaul (Mrs.) and Another, Appellant vs. State of Jammu and Kashmir and Others, Respondents reported in (1993) 2 SCC 573 to fortify his submission that once the Ministry has approved the appointment of a person, the government cannot do much else but issue an appointment letter to such a candidate. The Supreme Court in this judgment has observed that though the mere inclusion in the select list does not confer upon a candidate and indefeasible right to be appointed the government has to an act fairly while not issuing an appointment order. The exercise cannot be reduced to a farce. The Court deprecated the government stance of nullifying the exercise carried out by the Union Public Service Commission of issuing a notification for holding a written test, conducting interviews, preparing a select list of the candidates and communicating it to the government, without good and valid reasons. The Court observed that such a stand could not be adopted by any government without any justification. However, in the facts of that case it was found that there was no need to interfere in the matter although the action of the Government of India of not approving the names in the select list was found to be unsustainable. 11. The Learned Counsel for the respondent has argued that it is the duty of the government to act fairly while taking administrative decisions. He has fortified this submission by relying on the observations of the Supreme Court in the case of Prakash Ratan Sinha, Appellant vs. State of Bihar and Others, Respondent reported in (2009) 14 SCC 690 . 11. The Learned Counsel for the respondent has argued that it is the duty of the government to act fairly while taking administrative decisions. He has fortified this submission by relying on the observations of the Supreme Court in the case of Prakash Ratan Sinha, Appellant vs. State of Bihar and Others, Respondent reported in (2009) 14 SCC 690 . He has also relied on the judgment of the Supreme Court of India in Shrawan Kumar Jha and Others, Appellants vs. State of Bihar and others, Respondents reported in 1991 Supp (1) SCC 330 to submit that before an order of appointment can be cancelled a personal hearing must be afforded to the candidate. The other judgments relied on by the learned counsel for the respondent is in the case of B.C. Sinha alias Bimal Chandra Sinha, Petitioner vs. Union of India & Ors., Respondents reported in 1992 CWN 852. In this case this Court has observed that Courts of law cannot remain as passive spectators when by reason of any definite conduct of the employer, the employee altered his position and had an expectation to serve the employer on a permanent basis. It is the duty of the Court to decide where justice, morality and fairness dictate such a Court and equity so requires it. 12. The learned counsel appearing for the petitioner has submitted that the letter of 10th September, 2010 is not a letter of appointment. According to him after it was decided to approve of the appointment of the respondent and before a formal letter was issued to appoint him, the authorities received a complaint indicating certain conduct of the respondent which was not conducive to his being absorbed as an Assistant Commissioner in the Bureau. A preliminary enquiry revealed certain acts on his part which required the respondent to be sent to his parent department immediately. His continuation in the Bureau of Civil Aviation Security was not found appropriate for administrative reasons, pointed out the Learned Counsel. 13. The Learned Counsel has submitted that there can be no legitimate expectation for being appointed to a post merely because a person has been selected by the Union Public Service Commission. His continuation in the Bureau of Civil Aviation Security was not found appropriate for administrative reasons, pointed out the Learned Counsel. 13. The Learned Counsel has submitted that there can be no legitimate expectation for being appointed to a post merely because a person has been selected by the Union Public Service Commission. He relied on the judgment of the Supreme Court in the case of Union of India and another, Appellants vs. Samar Singh and Others, Respondents reported in (1996) 10 SCC 555 where the Court has held that the non-selection of an employee without giving reasons could not mean that the consideration of the merits and suitability of the candidate to hold of a particular post was not proper. The Court held that a candidate whose performance had been noted as outstanding and excellent could not legitimately expect to be appointed without consideration of the suitability of that candidate for the particular post. 14. In Food Corporation of India, Appellant vs. M/s. Kamdhenu Cattle feed Industries, Respondent. reported in (1993) 1 SCC 71 , Para 8, the Supreme Court observed thus:-- 8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non- arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. 15. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. 15. The law as enunciated in all the aforesaid judgments of the Supreme Court cited before us is that there is no indefeasible right to appointment as a sequitur to the inclusion of a person's name in the select list only because the person would have a legitimate expectation to be appointed. However, at the same time it is incumbent on the government to act fairly and justly while ignoring the recommendation made by the Union Public Service Commission of a particular candidate- The reasons for refusing to appoint a candidate who has been recommended must be justifiable and the action of the government should not be based on arbitrariness or caprice. 16. We have no manner of doubt that the letter of 10th September, 2012 cannot be called a "Letter of Appointment". Even assuming that it is a letter which may give rise to a legitimate expectation to be appointed, such right must be subservient to the conduct of the incumbent to the post. If the government receives information about the conduct of such a person and on investigation it is found that such a person is not suitable for the post, the government can always refuse to issue the appointment order. However the action of the government should be fair and reasonable. It cannot be mala fide, arbitrary or capricious. 17. There is no doubt that the Union Public Service Commission had recommended the appointment/absorption of the respondent as an Assistant Commissioner. However, the government cannot turn a blind eye to the complaints received regarding the conduct of the respondent while functioning on deputation as an Assistant Commissioner, Obviously that material would have to be contemplated by the appointing authority and not by the recommending authority which is the Union Public Service Commission. Of course, while not accepting recommendations of the Union Public Service Commission in respect of a particular candidate the government must act fairly and in accordance with law. Of course, while not accepting recommendations of the Union Public Service Commission in respect of a particular candidate the government must act fairly and in accordance with law. There is no material on record to indicate that the action of the government is not appointing the respondent is unsustainable because it is mala fide or actuated by a whim or caprice. 18. In our opinion, the petitioners have not in the present case acted without reason or unfairly or capriciously or arbitrarily while refusing to issue an appointment letter to the respondent. The deputation period of the respondent has been concluded on 8th July, 2012. The respondent can no longer continue in the post of Assistant Security (Civil Aviation) until an appointment order is issued to him absorbing him in that post. 19. The impugned order is set aside. The petition is allowed. No order as to cost. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities. I agree. Petition allowed