Central Administrative Tribunal - Delhi
Shri Surender Singh vs Union Of India Through on 12 March, 2015
Central Administrative Tribunal
Principal Bench
OA No.2098/2014
Order reserved on: 07.11.2014
Pronounced on:12.03.2015
Honble Mr.Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Shri Surender Singh, SA/G
S/o late Sh. Hoshiar Singh,
R/o C/o Sh. Arun Kumar,
VPO Barwala, Delhi -110039
(PIS 129171) Applicant
(By Advocate: Ms. Jyoti Singh, Sr. Advocate,
Ms Tinu Bajwa, Shri Amandeep Joshi and Ms. Natasha)
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
Government of India
13, CGO Complex
Lodhi Road, New Delhi-110003.
4. Foreigners Regional Registration Office
Bureau of Immigration,
R.K. Puram, New Delhi. Respondents
(By advocate: Shri Rajender Nischal)
O R D E R
Honble Dr. B.K. Sinha, Member (A) :-
By the instant Application filed under Section 19 of the Administrative Tribunals Act., 1985, the applicant seeks to challenge the memorandum dated 2.6.2014 whereby his claim for permanent absorption with the respondent-organization has been rejected.
2. The applicant has prayed for the following reliefs:-
(a) Direct the respondents to absorb the applicant with all consequential benefits.
(b) Declare the decision of the Screening Committee dated 2.6.2014 to be illegal and marred by arbitrariness and discrimination:
(c) Direct the respondents to produce the whole record/file relating to applicants application for absorption; and
(d) 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, a Constable, joined the organization of the respondent No.1, that being the Intelligence Bureau, following the due process of selection. On 21.03.2011, the applicant had indicated his willingness for permanent absorption with the respondent-organization. It is the case of the applicant that his work had been outstanding and was appreciated by the respondent No.1. He was allowed due promotion in his parent cadre sometime in the year 2012. On 25.02.2013, the applicant indicated his unwillingness for the promotion in his parent cadre as he had been recommended for permanent absorption in the respondent organization. However, on 5.6.2013, the respondents repatriated him without having indicated reasons for rejecting his application for absorption. The applicant approached the Honble High Court of Delhi by way of a Writ Petition bearing WP(C) No.3942/2013, which initially granted him the interim stay. On 25.03.2014, the Honble High Court decided the said Writ Petition with a direction to the respondents to assign reasons for rejecting the applicants application for absorption by the Screening Committee. The impugned order dated 02.06.2014 has been issued in compliance of the order of the Honble High Court of Delhi.
4. The principal grounds adopted by the applicant in this OA include that his case was recommended by his next higher authority but was rejected. The respondent No.1 had himself moved and obtained No Objection Certificate from his parent department that being respondent No.3. The applicant had also declined the promotion to which he was due in the year 2012 in his parent department. In the second place, the impugned order dated 2.6.2014 does not indicate any reason for prior absorption and the same is, therefore, arbitrary and in violation of Articles 14 and 16 of the Constitution of India. In the third place, the applicant has completed five years on deputation to the entire satisfaction of the respondent organization and all through his ACRs have been outstanding. During the course of arguments it was submitted by the learned counsel for the applicant that once all the ACRs of the applicant were Outstanding and that he had been recommended by his Controlling Officer, there were no grounds on the basis of which his case could have been rejected by the Screening Committee.
5. The respondent Nos.2 & 4 have filed their counter affidavit stating therein that absorption of a deputationist is a tripartite agreement amongst the lending department, the borrowing department and the individual concerned in terms of OM dated 3.10.1989. It is submitted by the respondents that though the No Objection Certificate had been sought from the parent department before processing the case further, but the applicant being a deputationist is not vested with any right of permanent absorption. It is only the Screening Committee which is competent to take final decision in all cases of permanent absorption or on holistic assessment of abilities and performance of the deputationists during their tenures of deputation and potential for contributing towards larger organizational goal. The tenure of the applicant was due for expiry on 10.06.2013 and, hence, the order of repatriation was issued on 05.06.2013 to be relieved by 10.6.2013. Thereafter, his repatriation has been put on hold in compliance of the interim stay granted by the Honble High Court directing that the decision of the Screening Committee should be communicated to the applicant along with reasons for the same. Accordingly, the impugned order dated 02.06.2014 was issued to the applicant in compliance of the afore order of the Honble High Court. The respondents further submitted that obtaining of NOC and completing other formalities involved is part of the process while the final decision rests with the Screening Committee. The respondents have further submitted that a deputationist has no vested right for permanent absorption, and placed reliance upon the decision of the Honble Supreme Court in the case of Kunal Nanda Vs. UOI [ 2005 SCC (5) 362] wherein it has been held that a deputationist has no vested right to continue on deputation.
6. We have closely examined the pleadings of the rival parties as also the documents submitted by them and have also taken careful note of the arguments advanced by the learned counsels for the rival parties in their respective oral submissions. The only issue to be decided in the instant case is whether the impugned order dated 02.06.2014 infringes the right of the applicant constitutionally or in any other way?
7. In this regard, we start by asking ourselves as to what is the right of a deptuationist to get permanently absorbed? This very question has been answered by the Honble Apex Court in the case of Kunal Nanda Vs. U.O.I. (Supra) wherein the issue involved was identical. The appellant in that case was an ASI in CRPF on deputation to CBI and the CBI sought concurrence of the CRPF for permanent absorption, which was duly granted. In the meantime, the appellant had been promoted as SI in his parent department. However, his case for absorption had also been recommended by the Screening Committee but was declined later. The Honble Apex Court, while examining legal right of the appellant to seek permanent absorption, held that it is well settled that unless the claim of the deputationist for 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 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 in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd., (1999) 8 SCC 381] made by the applicant is inappropriate since the consideration therein was in the light of statutory rules for absorption and the scope of those rules.
8. In the instant case, a reference has been made to the Policy Guidelines dated 17.01.2012 meant for deputation and absorption of combatized CAPF personnel in other organizations. These guidelines equally provide in paras 12 & 13, as under:-
12. A CAPF personnel proposed to be absorbed by the borrowing Organization/ Department should have a minimum of 18 years of service on the date, on which the absorption is proposed by the borrowing Organization /Department. Also the person proposed to be absorbed should already be on deputation with the said Organization/ Department. This condition of 18 years shall be read as 15 years in case of low medical category personnel.
13. A requisition made by borrowing Organization/ Department or willingness tendered by a person for absorption will not automatically confer any right on a 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 the case of Subordinate Officers and Other Ranks, the proposal for absorption shall be decided by the Director General of the CAPF concerned.
9. It is further provided in para 8 of the Guidelines that 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.
10. Similar question came up for consideration in the case of R.P. Juyal (Section Officer) Vs. Union of India & Ors. [OA no.4137/2013 decided on 06.02.2014] wherein the issue framed were also similar. This Bench also examined a number of cases. In the said case, the applicant had been prematurely repatriated. This Bench, after examining a number of decisions including that of Purshottam Lal Dhingra vs. Union of India & Ors [AIR 1958 SC 36], Mr. Sushovan Banerjee, IPS vs. Union of India & Ors [OA 387/2010 decided by the Mumbai Bench of the Tribunal on 8.9.2010]; Mr. Saurabh Kumar Mallick vs. Comptroller & Auditor General of India & Another [151 (2008) DLT 261(DB); Syndicate Bank vs. Chamundi Industries & Ors. [WP No.22505 of 1998 decided by the Honble High Court of Karnataka on 06.10.2001]; Mr. Ashim Chaudhary vs. Union of India and Ors. [OA No.736/2013 decided on 17.07.2013], came to the firm conclusion that a deputationist has no right to continue on deputation or right to permanent absorption except to the extent bestowed by the rules/statue under which he comes on deputation.
11. This leads to the next question that whether the repatriation of the applicant by way of impugned order violates any of the rules. We have already taken note of the provision contended in paras 12 & 13 of the Guidelines, which clearly provide that a requisition made by the borrowing organization/department or willingness tendered by a person for absorption will not automatically confer any right on an individual to claim permanent absorption as a matter of right. This right squarely rests with the appropriate mechanism which in this case is the Screening Committee, which was required to take a decision. We take note of the fact that the Screening Committee decided the case of absorption of the applicant against him twice.
12. The next question that we are compelled to answer ourselves is as to whether outstanding ACRs are sufficient to warrant absorption of an employee into the borrowing organization. We feel that it is not the case here. Had it been so, there would have been no need for setting up of a Screening Committee and the process would have been simplified to the point of clerical calculation that a person having particular number of ACRs in Outstanding grade would be absorbed into the respondent organization suo moto. There was no need to subject the aspirants for absorption to the procedure of a Screening Committee. We do not agree with this proposition raised by the learned counsel for the respondents. To the contrary, we find that there is much more to the consideration given by the Screening Committee than mere ACRs. Here, we are inclined to agree with the argument of the learned counsel for the respondents that the Screening Committee holistically judges the overall capacities and potentials of an individual to serve in the respondent organization in the longer run. It may be the case that a person despite having outstanding ACRs may be lacking in some of the attributes/qualities that make a good Intelligence Officer. Hence, there is something more than the gradings of the ACRs which the Screening Committee examines. There is no denying that the respondent organization has counter espionage as its main task. It is a secret organization with the sole output/input intelligence relating to security of the country against incursion of foreign and internal elements, provocateurs and subversive elements that hide within us. None can deny that the persons selected for this organization should have the qualities of maintaining secrecy, merging into crowds, infiltrating the enemy ranks/organizations, gleaning and distilling intelligence inputs out of them. Therefore, it is the Screening Committee along which is competent to judge the functional utility of a deputationist in the long run for his potential to fit into the aforesaid role, and only such persons are retained who have the long time potential for this kind of work.
13. We also take note of the arguments of the learned counsel for the respondents that the applicant during the entire period of deputation was only discharging record keeping role and was not in the intelligence cadre. It is well recognized that Courts/Tribunals have been prohibited by the Honble Apex Court to act as Superior Appellate Authorities over the decision of the DPC/Screening Committee/Appellant Authority in the departmental proceedings [Diwan Singh vs. L.I.C. (Civil Appeal No. 3655/10 decided on 5.1.2015 Manu SC/0001 /2015)]. We do agree that the applicant had pinned his hope upon absorption in anticipation of which he had foregone his promotion in his parent cadre. It does appear harsh at the first instance that he should be denied absorption. However, this is one sphere where we have no equity jurisdiction to exercise as the interest of the security of the country takes a precedence over all other considerations.
14. In conclusion, we find that a deputationist has no right to get absorbed permanently in the borrowing organization, as the decision thereon rests with the Screening Committee alone. We are of the view that since the Screening Committee has taken a decision based on overall potential and the longer run possibilities of intelligence yield/input/output, this Tribunal cannot act as a superior appellate authority to that of the Screening Committee. Therefore, there is no justifiable reason to interfere with the impugned order of repatriation. In the result, the OA fails and is dismissed. However, taking note of the fact that the applicant has foregone his promotion in the parent organization on his own in expectation of permanent absorption in the borrowing department, which belied and further has been repatriated, which has caused double jeopardy to the applicant. In this view of the matter, we direct the respondent No.3 to consider the applicant for promotion as per his eligibility from the due dates within three months from the date of his joining the parent department, and in the event he is found suitable for promotion, the same is to be given forthwith w.e.f. the date his juniors have been promoted. In the event he is not found suitable for promotion, the respondents shall pass a reasoned order and communicate the same to the applicant within the aforesaid period.
15. With the above directions, this Application stands dismissed. However, there shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam)
(Member (A) Chairman
/mk/