Central Administrative Tribunal - Delhi
Shri N.S. Raghav vs Union Of India Through on 10 November, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No.4266/2012 OA No.4014/2013 Reserved on: 22.07.2014 Pronounced on:10.11.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Shri N.S. Raghav s/o Shri Mohan Singh Raghav A/226, Sarojini Nagar, New Delhi 110 023. (PIS 109864). Applicant in both OAs (By Advocate: Shri K.C. Mittal with Ms. Ruchika Mittal) Versus Union of India through 1. Secretary, Ministry of Home Affairs, Central Sectt., North Block, New Delhi. 2. Director (Intelligence Bureau) Ministry of Home Affairs, Government of India, 35, Sardar Patel Marg, New Delhi. 3. Director Central Reserve Police Force Ministry of Home Affairs, Government of India Bock No. V, R.K. Puram, New Delhi. Respondents in both OAs (By Advocate: Sh. T.C. Gupta) O R D E R By Dr. B.K. Sinha, Member (A):
The instant two Original Applications have been heard together and are being decided by a common order, the applicant, subject matter and the pleadings being the same, except that they slightly differ in reliefs. The OA No.4266/2012 is directed against the order of repatriation of the applicant from the respondent no.2 to respondent no.3 vide order dated 10.12.2012. On the other hand, in OA No. 4014/2013, the applicant is aggrieved by his non-absorption in the respondent organization despite the fact that he is in 5th year of deputation.
2. As stated earlier, both these two OAs differ only in terms of the reliefs being sought. In OA No.4266/2012, the applicant has sought quashing of repatriation order dated 10.12.2012 and declaration that he is entitled to continue in service of the borrowing department for the unexpired period of deputation of the 4th year, while in OA No. 4014/2013, he seeks consideration of his claim for absorption in the respondent organization. For the sake of greater clarity, both sets of reliefs are being extracted hereunder:-
Sl.
No. OA No.4266/2012 OA No.4014/2013
(a) Direct the respondents to produce all the relevant records pertaining to the deputation of the applicant including grant of NOC for the extended period of one year along with the repatriation order.
Direct the respondents to consider the case of the applicant for permanent absorption in the I.B. in accordance with the policy notified by the Ministry of Home Affairs on 17.01.2012.
(b) Quash and set aside the repatriation order and hold and declare that the applicant is entitled to continue in service in the borrowing department for the unexpired period of extended deputation for 4th year.
Take all steps including issuance of NOC from the parent department for absorption of the applicant in the I.B.
(c) Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
3. The facts of the case, briefly stated, are that the applicant was initially appointed as Constable/GD in the Central Reserve Police Force (hereinafter referred to as CRPF) on 11.03.1981 and came on deputation to the Intelligence Bureau (hereinafter referred to as borrowing organization) on 07.09.2009 following due process of selection through advertisement for an initial period of three years on usual terms and conditions. It is the claim of the applicant that on expiry of the period of three years on 06.09.2012, he submitted an application dated 17.02.2012 for extension of his deputation by another year. The respondent no.2, in recognition of applicants excellent track record and confidential remarks, sought NOC of applicants parent department, that being the respondent no.3, which was duly granted vide letter dated 12.08.2012. Thereafter, the applicant continued on deputation even beyond expiry of 4th year of deputation i.e. entered into 5th year of deputation and during this period he proceeded on leave in course of which he learnt on 12.12.2012 that he is being illegally and arbitrarily repatriated without being communicated anything in writing to him so far. The applicant has pleaded that in view of the NOC required by the respondent no.2 and granted by the respondent no.3, the act to extend the deputation period is complete and his deputation is deemed to have been extended not only for the 4th year but for the 5th year as well. It is also the claim of the applicant that any repatriation carried out before this period is premature repatriation, for which the due procedure has not been followed. In the second place, the applicant was recruited under the Recruitment Rules, 2004 in terms of which the right of consideration for absorption has accrued to the applicant which cannot be taken away. Admittedly, the Recruitment Rules, 2004 were amended in the year 2011 in which there is no provision for absorption. However, the applicant having been appointed on deputation under the Recruitment Rules, 2004, Recruitment Rules, 2011 cannot be applied retrospectively and he shall continue to be governed by the Recruitment Rules, 2004 as generally all other deputationists who came prior to coming into force of the Recruitment Rules, 2011 which are prospective in nature and their right to absorption remains intact. In this regard, the applicant has relied upon the decision of the Honble Supreme Court in the case of Kusumam Hotels (Pvt.) Ltd. versus Kerala State Electricity Board & Others [2008 (13) SCC 213] [paras 21, 22, 36,38 & 40]. The applicant has also relied upon a decision of the Honble High Court of Delhi in the case of K. Pradeep Kumar & Others versus Union of India & Others [WP(C) No.7270/2011 and CM No.16506/2011 and other connected matters decided by a common order dated 25.03.2014] and submitted that the respondents are barred from adopting arbitrary, unfair and unreasonable yardstick. The only yardstick to be considered for absorption is fitness based upon the service records. The applicant has relied upon decision in case of Kranti Associates Pvt. Ltd. & Anr. Versus Masood Ahmed Khan & Others [2010 (9) SCC 496] to contend that justice should not only be done but should also appear to have been done, and in case of Dev Dutt versus Union of India & Others 2008 (8) SCC 725] wherein it is provided that fairness, non-arbitrariness and natural justice continue to be the basic guiding principles. In the case of D.K. Yadav versus J.M.A. Industries Ltd. [1993 (3) SCC 259] it is held that even the administrative action which gives rise to civil consequences must be judged fairly as also the recent decision of this Tribunal in R.P. Juyal versus Union of India & Others [OA No.4137/2012 decided on 06.02.2014]. The applicant submits that while repatriating him prematurely, the respondents have not disclosed any reason nor was any opportunity given to him. The applicant further submits that he is governed by the guidelines dated 01.02.2010 which have been upheld by the Honble High Court of Delhi in K. Pradeep Kumar & Others versus Union of India & Others (supra) and not by the Office Memorandum dated 17.06.2010.
4. The respondents have submitted a counter affidavit admitting the initial parts of the facts upto the grant of NOC to the applicant. However, as per provision 8.2 of the OM dated 17.06.2010, the approval of the Secretary of respondent no.1 had to be sought for extension which was declined on the ground that there was no provision for extension of deputation tenure beyond three years in the recruitment rules. Subsequently, the respondent no.3 withdrew its NOC vide letter dated 09.11.2012. The sanctioned term of deputation of the applicant had expired on 06.09.2012 and the applicant continued on deputation in the borrowing department which is content with adverse service implication. The respondents, therefore, issued order of repatriation on 04.12.2012, a copy of which had also been marked to the applicant through his controlling officer. It is the submission of the respondents that they have acted strictly as per the recruitment rules, 2011 which do not provide for absorption or continuation beyond the sanctioned term of deputation, and, therefore, the order of repatriation dated 04.12.2012 does not constitute any premature repatriation or curtailment of the applicants rights.
5. The applicant has filed rejoinder reiterating his initial arguments. It has been further stated that appointing authority for ACIO-II is the Inspector General of Intelligence and there is no requirement for the file to go to the Secretary of the Department. The applicant is entitled to continue on deputation and since the respondent no.2 after taking decision to extend the period of deputation requested NOC which has already been granted, the respondents are barred from going back to refuse extension of one year on any ground whatsoever.
6. Upon query from the court, the respondents have filed their counter affidavit stating that subsequent to the promulgation of the recruitment rules, 2011, the MHA has rejected cases of deputation, extension of deputation and absorption in the IB in the rank of ACIO-II. Further, it has also been submitted that after this period no one in the rank of ACIO-II (WT) has been absorbed in the IB.
7. During the course of oral submissions, the learned counsel for the applicant submitted that the issue has been settled once for all in the judgment of K. Pradeep Kumar & Others versus Union of India & Others (supra) wherein it has been held that the matter of absorption can only be settled by the Screening Committee, and that the instant two cases stand on better footings as compared to the case of K. Pradeep Kumar & Others versus Union of India & Others (supra) as they have been granted extension much after 17.06.2010 circular, which is not applicable in any case and while granting such extensions in 2012, 2013 and 2014, his performance has never been in question. The screening can only be done on the basis of the performance which is proven and certified. He, therefore, prayed for the reliefs that have been sought vide these two OAs.
8. On the other hand, the learned counsel for the respondents submitted that the applicant had given his consent to the deputation for three years extendable or liable to curtailment depending upon the exigencies of the circumstances. Having given his consent, the term cannot be curtailed and as per applicants deputation letter, he would be governed by the Circular dated 17.06.2010. The learned counsel for the respondents further emphasized that the question of the Screening Committee does not arise, there being no provision for absorption in the Recruitment Rules, 2011.
9. We have patiently heard the learned counsel for the parties and have also carefully perused the contents of the pleadings as also the documents that have been adduced. On the basis of the above, the following issues emerge as being germane to the decision of these OAs:-
1. Whether the applicant shall continue to be governed by the Recruitment Rules of 2004 or by the Recruitment Rules of 2011 which have come into force w.e.f. 03.06.2011?
2. Whether the provision of NOC to the applicant is tantamount to deemed extension?
3. What relief, if any, could be granted to the applicant?
10. Insofar as first of the issues is concerned, it is an admitted position that the mode of recruitment for the post in question provided in the Recruitment Rules, 2004 is that 50% of the posts were to be filled by promotion failing which by direct recruitment, 10% by deputation/absorption and 40% by direct recruitment. For greater clarity, the relevant portion of the Recruitment Rules, 2004 is extracted hereunder:-
Name of the post Number of post Classifi-cation Scale of pay Whether selection post or non-selection post Age-limit for direct recruits Whether benefit of added years of service is admissible under rule 30 of Central Civil Services (Pension) Rules, 1972.1 2 3 4 5 6 7
Assistant Central Intelligence Officer Grade-II (Wireless Telegraphy) 396* (2004) Subject to variation dependent on workload General Central Service Group-C (Non- Gazetted/ Non-Ministerial) Rs.5500-175-9000 Selection Between 18 and 27 years (Relaxable for departmental candidates upto 40 years in accordance with the instructions or orders issued by the Central Govt.) No. Educational and other qualifications required for direct recruits Whether age and educational qualifications prescribed for direct recruits will apply in case of promotes. Period of probation, if any.
Method of recruitment: whether by direct recruitment or by promotion or by deputation/ absorption and percentage of the vacancies to be filled by various mthods. In case of recruitment by promotion/ deputation/ absorption, grades from which promotion/ deputation/ absorption to be made. If a depart-mental promotion committee exists, what is its composition Circumstances in which Union Public Service Commission is to be consul-ted in making recruitment 8 9 10 11 12 13 14 Bachelors degree in Science with Physics of Mathematics or Computer Science as one of the subjects or Diploma in Radio Engineering awarded at the end of three years course from any recognized poly-technic or M.Sc (Wireless) or Degree in Tele-communication Engineering No. Two years
(i) 50% by promotion failing which by direct recruitment.
(ii) 10% by deputation/ absorption.
(iii) 40% by direct recruitment Promotion Junior Intelligence Officer Grade-I (Wireless Telegraphy) with ten years regular service in the grade who have already successfully completed one of the Departmental training course.
Ten percent of the promotion quota shall be filled up under Fast Track Promotion Scheme through Limited Departmental Competitive Examination from amongst the Junior Intelligence Officer Grade-I (Wireless Telegraphy) in the pay scale of Rs.4000-6000/- with 6 years regular service in the grade and possessing a Bachelors Degree or Diploma from a recognized university or equivalent as per the rules of Limited Departmental Competitive Examination Notified by the Govt. from time to time.
Deputation:
Officers of the Central/ State Governments holding analogous posts in the parent cadre/ department. Note: (1) Period of deputation ordinarily not exceeding three years.
(2)The maximum age limit for appointment by deputation (including short-term contract) and absorption shall not be exceeding 56 years as on the closing date of receipt of applications by the Union Public Service Commission or by the Ministry/Department/Office as the case may be.
Group C Departmental Promotion Committee:
(For Promotion)
1. Deputy Director, Intelligence Bureau, Chairman
2. Two Assistant Director, Intelligence Bureau Members.
(For Confirmation) Three officers of the rank of Assistant Director, Intelligence Bureau Members, Senior most amongst them shall be the Chairman.
Subsequently, theses rules were replaced by new Recruitment Rules, 2011 which came into force w.e.f. 03.06.2011. Under these rules, 60% of the posts are to be filled by promotion failing which by direct recruitment and 40% necessarily by direct recruitment. However, for the sake of greater clarity, relevant portion of Recruitment Rules, 2011 is extracted hereunder:-
Name of the post Number of post Classifi-cation Pay Bank and Grade Pay or pay scale Whether selection post or non-selection post Age-limit for direct recruits Educational and other qualifications required for direct recruits 1 2 3 4 5 6 7 Assistant Central Intelligence Officer Grade-II (Wireless Telegraphy) 396* (2011) Subject to variation dependent on workload General Central Service Group-C (Non- Gazetted/ Non-Ministerial) Pay Band-2, Rs.9300-34800 plus Grade Pay of Rs.4200.
Selection Between 18 and 27 years (Relaxable for departmental candidates upto 40 years in accordance with the instructions or orders issued by the Central Govt.)
(a) (i) Bachelors degree in Science with Physics of Mathematics; or Diploma in Radio Engineering awarded at the end of three years course from any recognized polytechnic or M.Sc (Wireless) or Degree in Tele-communication Engineering
(ii) Post Graduate Diploma in Computer Applications or at least one year Diploma in Computer Application from any recognized Polytechnic or Institute after graduation, or
(b) Bachelor of Computer Applications or Bachelors Degree in Computer Science or Information Technology or BE or B.Tech in Software Engineering or Information Technology from a recognized university.
Whether age and educational qualifications prescribed for direct recruits will apply in case of promotes.
Period of probation, if any.
Method of recruitment: whether by direct recruitment or by promotion or by deputation/ absorption and percentage of the vacancies to be filled by various methods.
In case of recruitment by promotion/ deputation/ absorption, grades from which promotion/ deputation/ absorption to be made.
If a depart-mental promotion committee exists, what is its composition.
Circumstances in which Union Public Service Commission is to be consul-ted in making recruitment 8 9 10 11 12 13 14 Not applicable No. Two years
(i) 60% by promotion failing which by direct recruitment.
(ii) 40% by direct recruitment Promotion Junior Intelligence Officer Grade-I (Wireless Telegraphy) in Pay Band-1, Rs.5200-20200 plus Grade pay of Rs.2800 with six years regular service in the grade who have already successfully completed one of the Departmental training course.
Note-1: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Note 2: Ten percent of the promotion quota shall be filled up under Fast Track Promotion Scheme through Limited Departmental Competitive Examination from amongst the Junior Intelligence Officer Grade-I (Wireless Telegraphy) in Pay Band-1, Rs.5200=-20200 plus Grade Pay of Rs.2800 with four years regular service in the grade and possessing a Bachelors Degree or Diploma from a recognized university or equivalent as per the rules of Limited Departmental Competitive Examination Notified by the Govt. from time to time.
Note-3: For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to the 1st January, 2006 or the date from which the revised pay structure based on the Sixth Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding grade pay or pay scale extended based on the recommendations of the Commission.
Group C Departmental Promotion Committee:
(For considering Promotion) consisting of:
1. Deputy Director, Intelligence Bureau, Chairman
2. Two Assistant Director, Intelligence Bureau Members.
Group-C Departmental Promotion Committee (for considering confirmation) consisting of:
Three officers of the rank of Assistant Director, Intelligence Bureau Members, Senior most amongst them shall be the Chairman.
11. It is obvious that the Recruitment Rules, 2011 do not contain any provision for appointment by deputation/ absorption as had been the case under the previous Recruitment Rules, 2004 and, therefore, the question of absorption under the new Recruitment Rules or appointment by deputation would not arise.
12. Now, we take up the issue that whether applicant would continue to be governed in respect of his service matters by the Recruitment Rules, 2004 as has been vehemently stressed by the learned counsel for the applicant or by the new Recruitment Rules, 2011 which came into force w.e.f. 03.06.2011. In this regard, the guiding principle is that the rules themselves provide as to from which date they would come into effect. Both these recruitment rules had been framed under the powers conferred by the provision of Article 309 of the Constitution. It is pertinent to mention here that the Recruitment Rules, 2004 were framed in supersession of the earlier Recruitment Rules, 1973. On the other hand, the Recruitment Rules, 2011 had been framed in exercise of powers conferred under Article 309 of the Constitution by the President to amend the Recruitment Rules, 2004. The Recruitment Rules, 2011 carry the full nomenclature of Intelligence Bureau (Non-Gazetted Technical Posts) Recruitment Rules, 2011.
13. The above provisions do not leave the issue in any form of doubt that the Recruitment Rules, 2011 have the effect of amending the Recruitment Rules, 2004 and that they have come into effect from the date of their issue that being 03.06.2011 after which date the earlier Recruitment Rules, 2004 ceased to exist. Though in face of such clear enunciations the matter does not require any further exposition, we delve deeper in the matter.
14. In the Kusumam Hotels (Pvt.) Ltd. versus Kerala State Electricity Board & Others (supra), the issue involved was different. Here the Honble Supreme Court went into the question of policy decision made by the State and its impact upon the State Electricity Board. The Honble Supreme Court has held that though the State was entitled to change or alter the economic policy and the appellants in that case did not have any vested rights to enjoy the concessions granted to them forever, any policy decision adopted by the State would not be binding on the Board save and as provided for in the Act. A dispute involving the issue whether the question is or is not of appointment involving public interest, the Central Government is empowered to review or withdraw the policy. It is a well settled principle of law that the doctrine of promissory estoppels would apply equally to the State and that all administrative orders are ordinarily to be considered prospective in nature. In para 25 of the Judgment, the Honble Supreme court has held as under:-
25. It is not necessary for us to notice a large number of decisions on promissory estoppel as the principle thereof has recently been noticed by this Court in Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio & Ors. [(2007) 5 SCC 447] wherein it was stated :
"100. We are also unable to agree with Mr. Andhyarujina that exemption from tax is a mere concession defeasible by the Government and does not confer any accrued right to the receipient. Right of exemption with a valid notification issued gives rise to an accrued right. It is a vested right. Such right had been granted to them permanently. "Permanence" would mean unless altered by statute. Thus, when a right is accrued or vested, the same can be taken away only by reason of a statute and not otherwise. Thus, a notification which was duly issued would continue to govern unless the same is repealed."
It was further held :
"126. This Court distinguished its earlier decision in Kasinka Trading v. Union of India55 whereupon Mr Andhyarujina placed strong reliance, in the following terms:
"40. The case of Kasinka Trading v. Union of India cited by the appellant is an authority for the proposition that the mere issuance of an exemption notification under a provision in a fiscal statute such as Section 25 of the Customs Act, 1962, could not create any promissory estoppel because such an exemption by its very nature is susceptible to being revoked or modified or subjected to other conditions. In other words, there is no unequivocal representation. The seeds of equivocation are inherent in the power to grant exemption. Therefore, an exemption notification can be revoked without falling foul of the principle of promissory estoppel. It would not, in the circumstances, be necessary for the Government to establish an overriding equity in its favour to defeat the petitioner's plea of promissory estoppel. The Court also held that the Government of India had justified the withdrawal of exemption notification on relevant reasons in the public interest. Incidentally, the Court also noticed the lack of established prejudice to the promises when it said :
22.`The burden of customs duty, etc. is passed on to the consumer and therefore the question of the appellants being put to a huge loss is not understandable. However, the instant case is in a different context altogether. Here, one rule has been amended by another set of rules. Though, no doubt a policy decision is involved but the said policy decision has the effect of amendment in the recruitment rules. Therefore, the facts in the aforesaid case being not similar, the same would not be applicable at all in the present case. The applicant has heavily relied upon the case of K. Pradeep Kumar & Others versus Union of India & Others (supra) wherein the Honble High Court of Delhi has considered the policy dated 01.12.2010 issued by the respondents. The said policy under the subject Absorption in the Non-Gazetted Executive Ranks Instructions/Guidelines was issued with reference to the IB Hqrs. OM dated 13.01.1992 outlining the following steps:-
(i) The officer would be eligible for absorption only after completion of 3 years minimum continuous deputation tenure in IB. DIB can relax this period keeping in view special requirements of the Department.
(ii) The cases of absorption should be processed six months in advance of the expiry of the 3 years deputation period.
(iii) The officer should have good record of service and aptitude for intelligence work. He should have at least 5 years left for retirement. ON absorption, he should be prepared to serve anywhere in India.
(iv) The absorption is to be considered in the rank in which the officer is officiating.
(v) Date of order for absorption after completing all the administrative processes would be the date of absorption.
(vi) Cases for absorption should be recommended by the officers JD & above keeping in view the usefulness of the officer to the organization.
(vii) On receipt of the recommendations for absorption, concurrence of Lending Organization, a Screening Committee at IB Hrs. will assess the deputationist officer (s) for absorption on the basis of service record as fit or unit. The recommendation about his fitness or otherwise would require the approval of the Competent Authority.
(viii) The number of absorbees should not exceed 12=% of direct recruitment quota in any rank.
(ix) On absorption, the seniority of the absorbed officer would be determined as per the provisions contained in DOP&T OM No.22?11786-Estt.(D) dated 3.7.1986 as amended from time to time and DOP&T OM F.No. 2011/1/2000-Estt.(D) dated 27.03.2001 which among other things stipulates that in case of a person who is initially taken on deputation and absorbed later, his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been already holding (on the date of his absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade should also be taken inot account in fixing his seniority subject to the condition that he will be given seniority from the date he has been holding the post on deputation or the date on which he has been appointed on regular basis to the same or equivalent grade in his parent department, whichever is earlier.
(x) Once a deputationist is absorbed, he becomes a departmental employee and is placed in the seniority list with reference to departmental employees. His confirmation will be considered along with departmental candidates of that year. He will, however, continue to hold his lien in his parent department till he is confirmed in the IB after his officiating absorption.
(xi) The absorbee will be entitled to pensionary benefits under Central Government in terms of CCS Pension Rules, 1972/New Pension Scheme 2004 in accordance with date of appointment in Central Governmetn Service, once he is substantively appointed in the IB. Until he is confirmed in the IB, he will continue to be governed by the Pension Rules of his parent state. In case he superannuates/retires or ceases to be in service for any reason before acquiring a lien on any post under the Central Government, he will be governed by the rules regulating pensions and other retirement benefits of his parent state. Once an officer is absorbed, he will not be de-absorbed under any circumstances. However, two things stand out. One is that these steps merely define as to how one is to go about the process of absorption and the second is that the number of absorbees should not exceed 12=% of direct recruitment quota in any rank. On the other hand, the respondent organization have issued policy guidelines regarding deputation and absorption of Combatised CAPFs Personnel in other organization vide letter dated 17.01.2012, provision 13 whereof provides as under:-
13. A requisition made by borrowing Organization/ Department or willingness tendered by a person for absorption, will not automatically confer any right on an individual or the borrowing department to claim absorption as a matter of right. The discretion to accept or reject, a request for absorption will be exclusively with the parent CAPF or the cadre controlling authority, i.e. Ministry of Home Affairs, as the case may be. In case of Subordinate Officers and Other Ranks, the proposal for absorption shall be decided by the Director General of CAPF concerned. Provision 13 aforesaid provides that a requisition by borrowing organization for absorption does not automatically confer any right on an individual or borrowing department to claim absorption as a matter of right, whereas the discretion vests exclusively with the parent CAPF or the cadre controlling authority i.e. MHA.
15. Here, the basic question is that whether in the Recruitment Rules there is any provision for appointment by deputation/absorption. As we have already discussed, under the Recruitment Rules, 2011, there is no provision for appointment by deputation/absorption whatsoever. These Rules have been framed under Article 309 of the Constitution and also have the assent of the President. Therefore, they take precedence over any guidelines issued whether by the department or even by the DOP&T. The Rules can only be amended following the prescribed procedure. Here, the rules do not clearly provide for absorption. Therefore, we find that the facts of the case in K. Pradeep Kumar & Others versus Union of India & Others (supra) are not applicable to the facts of the instant case. No amount of arguments can bring to light a provision which does not exist.
16. We find that in the matter of Kunal Nanda versus Union of India & Anr. [2000 (5) SCC 362] relied upon by the learned counsel for the respondents, the Honble Supreme Court has clearly held that a deputationist has no right to absorption but it can be considered only in the context of what has been provided within the rules. Since no provision exists qua appointment by deputation/absorption in the Recruitment Rules, 2011, no person on deputation can be considered for absorption, not least the applicant in the instant OA.
17. This has been considered in a series of recent decisions by this Tribunal in the matter of R.P. Juyal versus Union of India & Others (supra) and Sandesh Kumar & Others versus Union of India & Others [OA No.1215/2014 & other connected OAs decided by a common order on 05.11.2014], wherein the matter has been thoroughly examined as also the issue regarding rights of deputationists and held as under:-
We have already discussed all the issues individually. We start with the general principle that a deputationist would have no right to continue on deputation or for absorption unless so provided by rules and statutes, subject to suitability. Where there is no provision in the recruitment rules for absorption, question does not arise for acceding to the request of the deputation for his permanent absorption. The applicant had been brought on deputation under Recruitment Rules, 2004, which ceased to exist after promulgation of Recruitment Rules, 2011 w.e.f. 03.06.2011. As already noted above, the respondents, after having obtaining the NOC from SSB that being the parent department of the applicant, submitted the file before the Secretary of the Administrative Ministry for extension of deputation tenure for the 4th year but the same was declined. Hence, the applicants repatriation does not attract the clause of prior notice of three months not being a case of premature repatriation.
18. Coming to the second issue, we again call back upon the Office Memorandum dated 17.01.2012. The learned counsel for the applicant has raised doubt about its applicability to the facts of the present case. However, we find that these policy guidelines are very much applicable to all such cases which may happen to be attracted including the case in hand. They govern, subject to the guidelines issued by the DOP&T, the issue of deputation and absorption of combatised CAPFs personnel in other organizations. Under the Rules, those on deputation would be deemed to have been relieved on the date of expiry of the deputation period, unless the competent authority has, with requisite approvals, extended the period of deputation in writing, prior to such date of expiry. Further, in the event of an officer overstaying for any reason whatsoever, he would be liable to disciplinary action including the period of deputation being treated unauthorized overstay. For the sake of greater clarity, these provisions are being extracted herein below:-
8. The deputationist officer, including those who are presently on deputation would be deemed to have been relieved on the date of expiry of the deputation period, unless the competent authority has, with requisite approvals, extended the period of deputation in writing, prior to such date of expiry. It will be the responsibility of the immediate superior officer, in the Organization/Department, where the officer is on deputation to ensure that the deputationist does not overstay.
9. Furthermore, in the event of the officer overstaying for any reason whatsoever, he shall be liable to disciplinary action and any other adverse legal/service consequences which may include the period of unauthorized overstay not counting as service for the purpose of pension, etc. and that any increment due during the period of unauthorized overstay shall be deferred, till the date on which the officer rejoins his parent CAPF with cumulative effect. From the above it is clear that mere issue of NOC for extension does not confer any right that the extension has taken place. In this regard, the DOP&T OM dated 29.11.2006 clearly provides to the similar effect in order to discourage unauthorized overstay at the places of deputation. It also stipulates that a person shall be deemed to be relieved on the date his deputation is complete unless it has been duly extended by the competent authority. However, for the sake of greater clarity, the afore DOP&T OM is reproduced hereunder:-
Implications of overstay while on deputation. -- It has been brought to notice of the Government that that even though the terms and conditions of deputation issued by the various, Ministries/Departments/Offices specify the period of deputation, there have been a number of cases' of overstay without the approval of the competent authority. A number of proposals for regularization of such overstay are also being received for approval by the Competent Authority. It is necessary to ensure that there is no laxity on the part of the controlling authorities in relieving the deputationist and the deputationist should not go by the presumption that he needs to join his parent cadre only after being formally relieved, by the borrowing department. It has, therefore, been decided that in future all cases of deputation shall be regulated by the following conditions viz.:-
(i) The terms and conditions of deputation shall clearly lay down not only period of deputation as per the Recruitment Rules for the post or as approved by the competent authority but also the 'date of relieving of the deputationist. No further orders for relieving the officer will be necessary;
(ii) The deputationist officer including those who are presently on deputation would be deemed to have been relieved on the date of expiry of the deputation period unless the competent authority has with requisite approvals, extended the period of deputation, in writing, prior to the date of its expiry. It will be the responsibility of the immediate superior officer to ensure that the deputationist does not overstay. In cases where offices are on deputation on the date of issue of these orders and the' normal tenures are getting over in a period of six months, the concerned officers/Organizations may be allowed an extension of not more than one month, on a case to case basis with the approval of the DOPT.
(iii) That in the event of the officer overstaying for any reason, whatsoever, he is liable to disciplinary action and other adverse Civil/Service consequences which would include that the period of unauthorized overstay shall not count against service for the purpose of pension and that any increment due during- the period of unauthorized overstay shall be deferred, with cumulative effect, till the date on which the officer rejoins his parent cadre.
2. Written consent of the officer concerned shall be taken to the terms and conditions of deputation (inclusive of the conditions in para 1 ibid) before the .deputation orders are issued. The contents of these instructions will be conveyed to a1l officers presently on deputation for information/ compliance.
3. These instructions will apply to all deputationists including State Government Officers/All India Services officers joining Central Government posts on deputation and to officers proceeding on deputation to State Government/autonomous & statutory institutions/foreign Bodies, etc. .
4. If the' borrowing Organizations would like a relaxation from these terms, they should obtain approval of DoPT to it, prior to the start of deputation.
19. We further find that the case of the applicant for extension of deputation was put up before the Secretary (Home) who declined to give his consent. Therefore, the deputation cannot be deemed to have been extended by mere fact of granting NOC by the parent department. The respondent department was, therefore, very correct in repatriating the applicant to his parent department. On the other hand, we wonder how the applicant claims to have continued on deputation despite his repatriation. He should have, by all reasoning, reported to his parent organization.
20. We have seen that a deputationist has no right except what is conferred within the Rules. We also find that the Recruitment Rules, 2011, as is evident, do not have any provision for appointment by deputation/absorption. We further find that under clause 18 of the Circular dated 17.01.2012 of the respondent organization if a person is aggrieved by rejection for permanent absorption in an organization outside the force, he may prefer a representation to the DG of the concerned Force, which has not been so in the instant case. This would render the OA infructuous in terms of Section 20 of the Administrative Tribunals Act, 1985. However, since the case has been heard on merit, we are deciding the same exercising our original jurisdiction.
21. In totality of facts and circumstances of the case and in view of our above discussion, we find no merit whatsoever in these two cases and dismiss the same accordingly. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/