NETRAM CHOURASIYA v. UNION OF INDIA & Ors.

Judgment

3. Whether Reporters of local papers may be allowed to see the judgment? To be referred to the Reporter or not ? Whether the judgment should be reported in the Digest ? SANJIV KHANNA. J: V For detailedjudgment, see W.P(C) No. 17343/2004 (Shyam Singh V. Union of India & Ors) pronounced on 17.3.2006. [SANJW KHANNA) JUDGE ./I March vkr/P. , 2006. (DR.MUKUNDAKAM SHARMA) JUDGE Signature Not Verified Digitally Signed By:AMULYA Signing Date:22.08.2023 15:55 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. WP(C)17343/2004 Page i of i

IN THE HIGH COURT OF DELHIAT NEW DELHI +WRIT PETTTIONfCTVTLl NOS. 17343, 11278, 17412AND_ ifinaT of 2004 Date of Decision: Mnrr.h 1^, 2006. c^HYAM SINGH .... Petitionerin WP(C) No.17343/2004. NCTRAMCHOURASIYA....Petitionerin WP(C).Nos.11278& KALPANATHYADAV • 17412/2004. Petitionerin W(C) No 13037/2004, ThroughMr. K.C. Mittal. Advocate. VERSUS UNION OF INDIA&ORS. ThroughMr. KailashGambhirwith Mr. Gaurav Respondents Sharma, Advocates. CORAM: HON'BLEDR. JUSTICE MUKUNDAKAM SHARMA HON'BLEMR.JUSTICE SANJIV KHANNA

3. Whether Reporters oflocal papers may be allowed to see the judgment? To be referred to the Reporter or not ? s Whetherthe judgment should be reported Ves. in the Digest ? SANJIV KHANNA. J: 1, These are a group of writ petitionsinvolvingsimilar question of law and facts and, therefore, being disposed ofby this common judgment. At the time of arguments W.P.(C) 17343/2004titled Shuam Sinahversus UnionofIndiaand Otherswas treated as a lead case and we will be referringto the facts of this case. However, we were informedthat the facts ofthe other cases are not different. 2L The petitionerwas/is an employee of Border Security Force (hereinafterreferredto as respondent-BSF,for short) and was sent on deputationto IntelligenceBureaufor a period of five years. Even WPtC)17343/2004 ^ after the expiiyof the Said period, the petitionercontinuedto be on deputationwith the IntelligenceBureauand he was not repatriated to his parentorganisation. It Is the contentionofthe petitionerthat he shouldbe deemedto have been absorbedin IntelligenceBureau, immediatelyon completionof five years of deputationservle. In this regard reliance has been placed upon judgment of the Supreme ILP Court m the case of RameshmnrPrashnri It is also the ^irAcm Niqcm contentionof the petitionerthat IntelligenceBureau has from time to time recommendedthe case of the petitionerfor absorptionbut the parentdepartment,i.e. BSF has wronglyand illegallynot given its consentfor absorption. Allegationsof discriminationhave also beenmadewith the allegationthat the parentdepartmenthas given absorption of objection certificates for consent or JT (1999) 7 SC 44. juniors/others. Smillarcontentionswere also raised by the petitionerbefore 3. the learned Central Administrative Tribunal but the said intentionswere rejected by relying upon decision of Delhi High Court in the case of SatenderPal and nth^r. in Civil Writ No. 7406/2002 decided on 20'>' India and nthfrs November, 2002. The Tribunal also relied upon Its Full Bench decision, inter alia, holding that deputationistscannot claim for deemedabsorptionin IntelligenceBureauand theyalso do not have any right to be consideredfor absorption,without consent of the parent department in view of the Office Memorandum dated

30.1.1992. WP(C) 17343/2004 w

4. Learned counsel for the respondent in addition to relying upon the order of the Tribunal, has also referred to decision by this Court in W.P(C) No. 7989/2005 titled Santosh Kumari versus Union of India and Others decided on 6.5.2005. In the said decision, this Court relied upon several earlier decisions including Ariufi Sinah Neoi versus Union of India in Civil Writ No. 2366/2003 and Constable Nafe Sinah versus Union of India '(mU Others. Civil Writ No. 5220/1997. In the last case, this Court has relied upon judgment of the Supreme Court in the case of m State of Madhua Pradesh versus Ashok Deshmukh Another , (1988) 3 SLR 336.

5. We have considered the submissions made by the learned counsel for the parties. In view of the decisions of this Court in the " case of Ariun Sinah (supra), Nafe Singh (supra) and Santosh Kumari (supra), there cannot be any dispute that the deputationlsts have no legal and vested right to claim absorption and resist ^ repatriation to their parent department.

6. As per the Intelligence Bureau (Non-Gazetted) Recruitment Rules, 1982 (hereinafter referred to the Rules, for short] 75% of the posts of Security Assistant in Intelligence-Bureau were/are to be filled up by direct recruitment and 25% of the posts were/are to be filled up by deputation/transfer. Suitable persons from State police service or Central Police Organisations or Defence Forces were/are taken on deputation in Intelligence Bureau. As per the recruitment rules, ordlncirily the deputation period should not exceed five years but_the same can be extended by the borrowing WP(C)17343/2004 s e h" department. It maty also be noticed that tliere is no provision under the Rules for permanent absorption for employees who come on deputation. However, there is an Office Membrgindum of Intelligence Bureau dated

31.1.1992 under which subject certain conditions like good service records etc., officers who come on deputation can be absorbed the number ^absorbees should not exceed 12.5% of the persons in any rank.

7. In the light of the Rules and the Office Memorandum dated

31.1.1992, we proceed to examine case law on the subject. In the case of.Rameshwar Prashad (supra), the deputationists applied to U.P. Rajkiya Nirman Nigam Limited for absorption through proper channel though they did not have no objection certificate from their parent department. The relevant service rules in the said case envisaged absorption of deputationists on certain terms and conditions. Further under Rule 4 and 5 of U.P. Absorption of GovernmentServants in Public Undertaking Rules, 1984, no Government servant was ordinarily permitted to remain on deputation for period exceeding five years. Keeping all these aspects, Supreme Court held as under:- ' counsel "We agree with the learned 14. Respondent 1 and make it clear that an employee who is on deputation has no right to be absorbed in the service where he is workmg on deputation. However, in some cases it may depend upon statutory the rules provide deputation then such employee has a right to be considered for absorption in accordance with the said rules. As quoted above; Rule 16(3) of the rules of the Nigam and Rule 5 of the recruitment U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 provide for absorption of employees who are on deputation. to the contr£iiy. employees absorption It

15. In the present case, considering the facts, is apjjarent passmg that inaction of Respondent 1 of not repatriation either ^ /^rsrsA ^ ^ A r 11 on d^p'Xton appoinS ffisis "ofisr.&uS= w uifdp^a1S?ifg,{][P°^''gg™e"tServantsin Public iS'HiSs- =f;'Ss iSSSSSfsp^S r-e^'d •£ tJ 'i^at the appeU^wai^t™b?'IS service employeesfSeH ^2+-^ service but in- obtained an interinf order rSti^ni^^ Vfi'' S'Sf ?«?'Sffills %?«°S «„tSS-'|f8"SSS « x^psss^s" '^pugfcdS M1?'iSTthl"® it vi^as a policydecision; (a) " fsatea-sssr" the High^Courthas pasSiSerim (C) dJoutetiSSfstribbulVbe'SLrtSj service or not IS a policymatter hut n?^?.? same time, once ^ the policy is accented such'^abs^rptioS?feforeT^^ there must^be^stSableleSS?,^^ application, cannotactarbii?rarilyby^cl^^g^lnd^ToXTL^ SS'ie mustV_Justiflable WP(C)17343/2004 : pc The case, stated earlier, of his required in Rule

5. Tliere absorption. as provided he was not the appellant's is discretionary no doubt, deputationlsts absorption, coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual. In the present the • General vlanager (NEZ) specifically pointed out as early as service m the year 1988 that in service eind record was excellent: he was useful absorption may be massed. His application for absorption was within -hree years nothing on record to indicate that for any reason whatsoever, to be absorbed or the power under Rule 5(1) of the U.P. in Public of Government Servants Absorption :s Undertakings Rules, 1984 was not required to be exercised in his favour. Interim order dated 17-7- 1991 passed by the High Court would not be in the case oT the appellant because applicable his case was considered in the year 1988. Further on completion of nve years on 19-11-1990 he could not have ordinarily been in the service of the continued on deputation N^am. It is apparent that he was absorbed from 19-11-1990 deputation allowance was also discontinued. If he there was no was to be continued on deputation, deputation reason allowance. So on the basis of the statutory rules as well as stands the policy, absorbed in the service of the Nigam." for absorption non-oavment from that appellant because

8. Learned Tribunal also in its order dated 5^ July, 2004 has noticed that lien of Rameshwar Prasad had been terminated w.e.f. 30"" April, 1994 and therefore,it was not necessaryfor the Supreme Court to examine and go into the question of necessity or otherwise of the no objectioncertificatefor absorption from the- parent organisation. This is not so in the present case.

9. In the case of the petitioner, the lending/parent department i.e. Border Security Force, has expressed its inability to issue no objectioncertificatefor the proposed absorption of the petitioner on the ground that he has not completed 20 years of service. It is further stated that as per policy adopted by Border Security Force, serviceof 20 years in the said force is required for grant of N.O.C. for permanent absorption in another organisation. The WP(C)17343/2004 petitionerwas appointed in Border Security Force in the year 1987 and had put in about 16 years of servicein BorderSecurity Forceand. therefore,in view of the policydecisiontaken by tliem no objectioncertificatewas not issuedfor permanentabsorption of the petitionerin IntelligenceBureau. It may also be relevantto statehere that no one has a rightto claim permanentabsorption manotherdepartmentand courts normallyhesitatein issuinga ^'j'Mandamusfor grant of no objectioncertificateunless it can be • shown that the parent departmenthas acted capriciouslyor in ^ an arbitrarymanneramountingto violationofArticles14, 15 and 16 of the Constitutionof India. Tlie parent departmenthas discretionnot to grant no objection certificatein- terms of their .1policy guidelines. No objection certificate can also be denied where the parent organisaUonfeels that it requiresservice of an employeefor administrativeor operationalrequirement/ground. lO.TheDOP&T O.M dated 5.1.1994statesthat periodof deputation is normallysubjectto amaximumperiodof threeyears exceptfor » posts where longer tenureis prescribedin the recruitmentrules. As per the recruitmentrules In question,the periodof deputation should not ordinarilyexceed five yeai's but the same may be The curtailed or extended by the borrowing authority. recruitment rules further provide for extension of deputation period beyond five years subjectto certain conditionsincluding approvalfrom the Secretaryfrom the B"- year and approvalof the concernedMinister/Ministiyfor the 7" Year. The said O.M. also providesthat any extensionbeyond the second year in excess of WP(C)17343/2004 „ , , the period prescribed, the deputationists would not be entitled to draw deputation/duty allowance. In the case of the petitioner, the deputation tenure was extended beyond the 7"" year after obtaining concurrent approval of the competent authority and, therefore, in terms of O.M. Dated 5.1.1994 he was not being paid deputation allowance. It is. therefore, incorrect to state that the deputation allowance was not being paid to the petitioner A % , ^because he was permanently absorbed.

11. Supreme Court has examined the concept of deputation and right of absorption of a deputatiionist in the case of Kunal . A Nanda uarsus Union of India and Anothp.r , (2000) 5 SC 362 wherein it has been observed as under;- .. , ^ ^ It claim of the deputationist

6. "On the legal submissions also made there is well settled that are no merits whatsoever. for a unless permanent absorption in the department where he works on deputation is based upon _any regulation or order having the statutory rule, force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance and there is no of either of the departments vested right in such a person to continue for long on deputation or get absorbed in the department to wfiich he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D.. U.P. Rqjkiya Nirman Nigam Ltd. therein was in the light of the statutory Rules for and the scope of those Rules. The absorption claim that he need not be a graduate absorption and being a service candidate, completing service of 10 years he is exempt from the requirement of possessing a degree needs only to be rejected. The stand of the mention, that the absorption of a respondent Department deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e. a degree is a there could be no must and essential and that comparison of the claim of such a person with consideration inappropriate WP(C)17343/2004 V one to be dealt with on promotion of a candidate who is already in service in that Department well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim.

12. Similarly,in the case of State ofPunjab versusInderSingh rennrtpA in (1997) 8 SCC 372 it has been held as under • "deputation" is well "18. The concept in service In say, simple Deputation department. understood law and has a recognised meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. "deputation" means service outside the cadre or parent outside transferring an employee to a post deputing or outside to another cadre, department on a temporary basis. After the expiry period of deputation the employee has to come back to occupy department to his parent in the meanwhile he has earned position unless promotion Recruitment Rules. Whether is outside field of deployment or not is decided by the normal the authority who controls the service or post from which the employee is transferred. There can be no the consent of the person so deputation without deputed and .he would, therefore, know his rights and privileged in the deputation post, llie law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred now to go back respondents parent departments and working there as Constables or Head Constables as the case may be. in his parent department to above. There is no escape the transfer to their as per

19. It is no doubt really harsh on the respondents to be sent back after they have served the CID for number of years in higher rank though on ad hoc basis and now when they go back they have to work either as Constables or Head Constables."

13.1n the case of Mahesh Kumar k. Parmar versus S.I.G. Of Police reported in f2Q021 9 SCC 455, it has been observed by the Supreme Court unless contemplate permanent absorption of employees on deputation no mandamus can be WP(C) 17343/2004 'c (cid:127) issued.

14. In the case of OhanderPal Sinah versus Union of India (2003) Vol. II AD (Delhi) 772, it has beenheld that policydecision was within the domato of the parent department and it was for the said parent departmentto decide whetherIt should agree to s-^end out its employeesand also lay down parametersand on the basis of administrative convenience decide whether or not issue no objectioncertificate. It was further held that the basic principleunderlyingdeputationwas/is that a person can always be repatriated to his parent department to serve at his substantive post. A deputationist cannot assert any right to claim absorption. Absorptioncan only be claimed as a matter of right, if it is based upon any statutory rules or some provision having force of law.

15. In view of the above, we do not find any merit in the present writ petition. However, we rtiay add a word of caution. A laxge ^ numberof writ petitionsand originalapplicationshave beenfiled ch^enging and questioning orders passed by Border Security and' other Central Police Forces to grant no Force objectioncertificatesfor absorptionin the borrowingorganisation like IntelligenceBureau, C.B.I, etc. Allegationshave also been refusing made that favoiirtisni, arbitrariness and pick and choose policy is adopted by the parent departments. Normally, courts do not interfere but it is desirable that there should be transparency and opennessand clear-cutpolicyin the parent departments,so that these allegations are not repeatedly made and no doubt is created.We expectthe BorderSecurityForcewould adopt such a policy soon arid report compliance.When such allegations are repeatedlymade with instances and examples, the morale and discipline is the first and foremost casualties. We may mention here that the petitioner in this case has also made allegations that in other cases, no -objections certificates were issued by the Border Security Force authorities even if a deputationist had not completed 20 years of service in the parent department. We do not think that this can be a valid ground to issue Mandamus to Border Security Force to issue no objection certificate as this would be issuing a direction contrary to the policy of Border Security Force. Further, a wrong or incorrect decision taken by Bprder Security Force, contrary to its own policy, in a particular case cannot normally be a ground to direct issue of no objection certificate in another case., This will only amount to giving judicial approval to a wrong decision and compelling authorities to take another wrong decision. It is well settled that Article 14 is a positive concept and no direction can be issued on the plea of discrimination, wherein the earlier decision itself was improper and wrong. In view of the above findings, we find no in the present writ petition and other connected writ petitions and they ^e dismissed. However, there will be no order r as to costs. i (SANJIV KHANNA) JUDGE —-A/VV" ' March 17^^, 2006. vkr/P. (DR.MUKUNDAKAM SHARMA) JUDGE WP(C)17343/2004 Paee 11 of 11