Central Administrative Tribunal - Delhi
Yogesh Kumar Sharma vs Union Of India Through on 24 December, 2014
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.3416/2013
Reserved on: 22.07.2014
Pronounced on: 24.12.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Yogesh Kumar Sharma
S/o late Sh. Rajendra Prasad Sharma
R/o Village Mirpur, Post Baghwala,
District Bulandshahar, UP
(PIS 105379). Applicant
(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 Industrial Security Force
Ministry of Home Affairs,
Government of India
COG Complex, Lodhi Road,
New Delhi. Respondents
(By Advocates: Sh. Rajeev Kumar for R-1 & R-2
Sh. R.N. Singh for R-3).
O R D E R
By Dr. B.K. Sinha, Member (A):
The applicant in the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 is aggrieved with the Memorandum dated 11.06.2013 rejecting his request for permanent absorption in the Intelligence Bureau.
2. The applicant has sought the following relief(s):-
(a) Direct the respondents to absorb the applicant and take all steps to obtain N.O.C. from the parent department and complete other formalities.
(b) Quash and set aside the Office Memorandum dated 11.06.2013 rejecting the request of the applicant of absorption and declare that the applicant is entitled to be considered for absorption.
(c) 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 of the applicant, briefly stated, are that the applicant was appointed as Constable (Exe.) in the Central Industrial Security Force in 1990. On 11.08.2008, he joined the Intelligence Bureau as SA, Ct/G on deputation following due selection process. On completion of three years of service with the respondent organization, the applicant applied for absorption within the terms of OM dated 01.12.2010 having fulfilled the criterion prescribed for eligibility including 5 years of service remaining prior to his retirement. He received the impugned Memorandum dated 11.06.2013 intimating that his request for absorption could not be acceded to as he had no field experience.
4. The applicant has submitted that the ground for rejection of his application for absorption is belied by the very fact that the respondents have sanctioned his TA claim involving field duties. It has been further pleaded that the applicant meets the entire eligibility criteria prescribed for absorption and has had an outstanding track record including period of deputation rendered in the respondent organization, and that the impugned Memorandum is against the principles of natural justice inasmuch as he has not been given any opportunity to present his case before rejection of his claim for absorption, which is highly arbitrary and iniquitous as other similarly placed persons have been absorbed in the Intelligence Bureau.
5. The respondent nos.1 and 2 have filed their counter affidavit rebutting the contentions raised in the OA by the applicant. The respondents have submitted that the applicant had been taken on deputation with the Intelligence Bureau on 11.08.2008 for a period of 5 years. His application dated 27.07.2011 for absorption had been simply forwarded by his Controlling Officer on 23.05.2013 without recording any specific recommendation. The case was examined and it was observed that since the applicant was having no field experience, his absorption would yield a little benefit to the organization. Accordingly, the controlling officer of the applicant was informed about the inability to absorb the applicant in Intelligence Bureau. Subsequently, the case of the applicant was re-examined and specific comments were sought from his controlling officer with regard to his absorption in IB, who, in turn, did not recommend the case of the applicant for absorption for want of lack of field experience required for intelligence work, average performance and his remaining on frequent leave.
6. The learned counsel for the respondents has argued that a deputationist has no right for permanent absorption in the borrowing organization and that absorption of a deputationist is decided on the basis of recommendation of his controlling officer and his service records in the department. Since the case of absorption of the applicant had been declined and the applicant had a deputation period of 5 years, orders of repatriation were issued on 27.09.2013 but could not be served upon the applicant as he had left the office early on 27.09.2013 without having informed his Supervisory Officer and subsequently followed it up with medical certificates advising rest for 15 days. The learned counsel further argued that the applicant utilized this period for filing the instant OA and this Tribunal had directed maintenance of status quo on 11.10.2013. The learned counsel for the respondents further submitted that the OM dated 01.12.2010 provides that cases for absorption have to be mandatorily recommended by the officer of the rank of JD and above keeping in view the usefulness of the officer to the organization. The case is then sent to a Screening Committee which categorizes the case either fit or unfit on the basis of his service record, performance, utility to the organization etc. The learned counsel again submitted that the experience of the applicant was confined to the procurement of provisions for stores and that TA is regularly given to all employees as a matter of allowance as per the system prevailing within the respondent organization. The Intelligence Bureau is an intelligence collecting organization with requirements of covert field operation. A person absorbed with the experience of procurement of ration like the applicant in the instant case would not be of much use to the organization and, therefore, his request for absorption had been declined.
7. The applicant has filed a rejoinder wherein he has enclosed copies of the orders giving duty allowances, log book maintained by him and his salary slips. He has submitted that the remarks recorded in his ACRs find him as sincere, devoted and dutiful who could be assigned any special task. The applicant has further submitted that he had availed only 96 earned leave as against 163 at his credit.
8. The respondents have also submitted written submission stating their case.
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 only issue that merits our consideration is that whether the rejection of claim of absorption of the applicant is contrary to the records of the respondent organization, against the rules of natural justice and discriminatory in nature?
10. We start examination of the issue by taking note of the fact that the deputation in itself confers no right to the deputationist for absorption. The only right that is available to applicant is that of consideration for absorption. This legal position has been espoused by the Honble Supreme Court in the case of Kunal Nanda versus Union of India & Anr. [2000 (5) SCC 362] in the following terms:-
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 of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The above decision was further discussed and reiterated in the case of Union of India versus S.A. Khaliq Pasa and Another [Civil Appeal No.368-369 of 2009) in the following terms:-
"On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the 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 of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd is inappropriate since the consideration therein was in the light of the statutory Rules for absorption and the scope of those Rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree needs mention, only to be rejected. The stand of the respondent Department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e. a degree is a must and essential and that there could be no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that Department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."
In the case of Mahesh Kumar K. Parmar and Others versus SI. G. of Police and Others [2002(9) SCC 485], the issue before the Honble Supreme Court was that the petitioners were Head Constable in Gujarat Police who came on deputation to IB and had served there for 8 years. The petitioners were subsequently repatriated to their parent organization. The claim of the petitioners was that since they had already served the respondents for 8 years, they must be held to have acquired a right to be permanently absorbed in the respondent Bureau or at least a legitimate expectation to be absorbed. The learned counsel appearing for the petitioners argued that the petitioners had served in the Bureau to satisfaction of the respondents, passed certain tests and there was nothing adverse against them. The Honble Supreme Court held as under:-
Having considered the rival submissions and also the relevant provisions of the rules, we do not see any enforceable right with the petitioners for being permanently absorbed though we see sufficient force in the contention of Dr. Dhawan that the appropriate government should be well advised to consider the retention of these petitioners permanently in the bureau having regard to the case that they have already rendered services from 1991 till the 1999, and that the rules itself contemplate to man the post on transfer. While, therefore, we are unable to issue any mandamus to the state government requiring them to permanently absorb these petitioners in the bureau, we would observe that the state government may consider the case of these petitioners for absorption on transfer in accordance with the rules, if they are found otherwise suitable. In that case the administration would be better served on account of experience, the petitioners have already got in the bureau by serving for eight years.
11. It would be evident from the above that the Honble Court did not issue any mandamus in favour of the applicants for absorption but only directed consideration. In the case in hand, the case of the applicant for absorption has already been considered and rejected. A large part of the case revolves around the issue that the refusal of the controlling officer is non-speaking and contrary to the facts and is, therefore, discriminatory. Here, we take a note of the argument of the learned counsel for the respondents that the respondent organization is a Secret Service Organization with mandate of counter espionage, intelligence gathering and covert operations. These require personnel of different merit and abilities to the requirements of the organization. We also take a note of the fact that the applicants job was restricted to procurement of provisions for stores. Travelling allowance is granted to all employees as per the policy of the department. We also take a note of the fact that the respondent organization is covered under Article 33 of the Constitution of India as it is the premier organization for counter espionage and security of the country. The remarks in the ACRs of the applicant have been made in respect of the duties which he was performing i.e. for acquisition of stores. However, we are equally swayed by the fact that the controlling officer based his remarks upon the fact that the experience of the applicant was limited to acquisition of stores and did not cover other vital areas of intelligence gathering, dissemination and operations. It was in view of this that the decision not to absorb the applicant had been taken. We are convinced that keeping in view the nature of the respondent organization, the decision taken by the respondents is in the interest of organization. We are also of the opinion that the authorities concerned are the best judge to decide as to who would be suitable to be absorbed in their organization. We further find from the records that nothing discriminatory has been committed against the applicant qua the principles of natural justice at any point as the right of the applicant lays only for consideration and the applicants stand has been considered and rejected.
12. We, therefore, find in conclusion that no rights of the applicant have been put to jeopardy or stand violated. To the contrary, it is the applicant who has been evading acceptance of service of repatriation order. In totality of facts and circumstances of the case, we find the instant case devoid of merit and, therefore, dismiss the same without there being any order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/