Central Administrative Tribunal - Delhi
Udai Pal Singh S/O. Late Bhagmal Singh vs Union Of India (Uoi) (Through ... on 1 February, 2007
Equivalent citations: [2007]3SCL284(NULL)
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought the following reliefs:
(a) Quash and set aside the order dated 27.10.2006 (Annexure A-1) and dated 08.07.2005 (Annexure A-2) and declare the same as illegal and arbitrary.
Hold and declare that the applicant stands deemed absorbed in the Intelligence Bureau.
Direct the respondents to consider/re-consider the applicant for permanent absorption in IB in a fair and reasonable manner vis-`-vis his juniors and other similarly situated persons, i.e. those who already stand absorbed in the Intelligence Bureau.
Direct the respondents to pass appropriate orders, absorbing the applicant from the date of joining the Intelligence Bureau.
Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
2. The bare facts of the case, shorn of all embellishments, are that the applicant joined the Border Security Force (BSF, for short) as a Constable on 10.04.1987. Respondent No. 3, vide orders dated 06.07.1999 and 25.08.1999, placed the services of the applicant, among others, at the disposal of the Intelligence Bureau (IB, for short) on deputation. The applicant joined IB on 24.09.1999. IB, vide order dated 08.07.2005, repatriated the applicant to BSF w.e.f. 31.07.2005. The applicant, thereupon, filed OA No. 1565/2005 challenging the said repatriation order. During the pendency of the said OA, the repatriation order of IB dated 31.07.2005 (supra) was stayed by the Tribunal's interim order dated 22.07.2005. Thereafter, this Tribunal disposed of the OA, vide final order dated 28.07.2006, with the following direction to the respondents:
11. In the result, for the foregoing reasons, we dispose of this OA with a direction that the claim of the applicant for permanent absorption be reexamined and also to be taken up and processed in accordance with rules and suitability of the applicant and thereafter a final decision shall be taken on consultation with the parent department within a period of three months from the date of receipt of copy of this order. It goes without saying that status quo of the applicant as of date shall be maintained till then. No costs.
3. In compliance of the order of this Tribunal aforementioned, respondent No. 3 issued the impugned order dated 27.10.2006, as follows:
ORDER In compliance with CAT, PB, New Delhi Order dated 28.7.2006 delivered on OA No. 1565/2005 Shri Udai Pal Singh, SA/G, PIS No. 109304, a deputationist Constable ( No. _434031), BSF is repatriated to his parent department and stands relieved of his duties from the Intelligence Bureau Hqrs. New Delhi with effect from the afternoon of 31-10-2006, with the direction to report to the Deputy Commandant/Estt. Directorate General, BSF, Block No. 10, CGO Complex, Lodhi Road, New Delhi-03.
Sd/-
JOINT DIRECTOR/E
4. Thereupon, the applicant filed the present OA. On 31.10.2006, when the OA came up for admission, this Tribunal ordered interim stay of the impugned order, which has continued till date. In the meanwhile, the respondents filed MA No. 2336/2006 seeking vacation of the stay order granted by this Tribunal aforementioned.
5. The applicant has stated that Rule 6 of the IB (Non-Gazetted Executive Posts) Recruitment Rules, 1982 [Recruitment Rules, for short], empowers Central Government to relax any of the provisions of the Recruitment Rules ibid. Mode of appointment of Security Assistants is 75% by direct recruitment from open market and, 25% by deputation/transfer. However, as per O.M. dated 13.01.1992, issued by the IB, subject to certain conditions, i.e. good service record, officers from these organizations can be absorbed. As per these instructions, read with instructions on deputation, issued through DoPT O.M. dated 05.01.1994, which supplement the rules and are in no manner inconsistent with it, provision for absorption of deputationists shall be deemed to exist in the Rules.
6. The applicant has further stated that as per the Recruitment Rules of Security Assistants in the IB, it is open to take on deputation/transfer suitable persons of State Police or Central Police Organization and the period of deputation should not ordinarily exceed 5 years but may be curtailed or extended as per the Government of India's instructions contained in the O.M. dated 05.01.1994 (supra). These instructions, which are part of the Statutory Rules and supplement them, are not contrary to the same. As the Rules are silent on absorption, these instructions are to be treated as Rules for absorption. It is further submitted that as per para 4 (iv) of O.M. dated 13.01.1992, the cases of absorption should be processed six months in advance of the expiry of the deputation period and if the officer is not willing to be absorbed, he should be repatriated immediately on the expiry of his deputation period. In the present case, no such process was initiated prior to six months of the end of deputation period of five years and the applicant was allowed to continue despite non-concurrence by the parent department. Therefore, the applicant is deemed to have been absorbed as per the provisions of DOP&T O.M. dated 05.01.1994.
7. The applicant has pointed out that respondent No. 2 (IB) had, time and again, recommended the case of the applicant for extension but the parent department (BSF) did not give its consent for absorption in IB. The IB had recommended the case of the applicant for extension on 15.03.2004 and 11.04.2005 but the parent department did not give its consent for extension. On the other hand, the BSF, i.e. respondent No. 3, had given NOC to the applicant's juniors, namely, S/Shri Satish Chander, Virender Singh, Anil Kumar, and Pradeep Bhatacharya on 30.04.2001, 28.08.2001, 20.09.2001 and 28.08.2001 respectively, in terms of Standing Operating Procedure (SOP, for short) dated 17.07.2000. It has been also submitted that, recently, respondent No. 3 had given NOC to Shri Dinesh Kumar on 01.02.2005, to three other persons, namely, Amar Singh, Rajinder Kumar and Kalwa Khan, vide order dated 01.08.2006, to Satish Rathi, Assistant Commandant, vide order dated 12.05.2006 and to Naresh Kumar, Dhanpat Rai, and Desh Raj, vide order dated 17.03.2006.
8. The applicant has averred that after completion of five years of deputation and on stoppage of deputation allowance, the services of the applicant had been continued and no orders for repatriation were issued immediately on completion of five years of service, i.e. maximum period of deputation. Persons, who were, in all respect, fit and eligible as per the rules, could not have been continued on deputation and they should have been given deemed absorption status. Respondent No. 2 has absorbed many such persons permanently. The case of the applicant is similar insofar as he has continued with IB beyond the period of 5 years and is not drawing deputation allowance. Stoppage of deputation allowance is one of the conditions, as per the law laid down by the Hon'ble Supreme Court in the matter of Rameshwar Prasad v. Managing Director, UP, Rajkiya Nirman Limited and Ors. , for being absorbed in the office of respondent No. 2. Hence the applicant has to be declared as deemed absorbed in IB.
9. The applicant has further argued that Satender Pal and others, similarly situated persons, who were on deputation with respondent No. 2, filed OA No. 3202/2001, which was dismissed by the Tribunal, vide order dated 11.11. 2002 on the ground that it had no jurisdiction to issue direction to respondent No. 3, an Armed Force. Thereafter, the applicants in the said OA filed Writ Petition No. 7406/2002 against the order of the Tribunal. The Hon'ble High Court, while disposing of the said Writ Petition, set aside the order of this Tribunal and held that the order of repatriation, under challenge before the Tribunal, was passed by IB and any challenge to it squarely fell within the jurisdiction of the Tribunal. The Hon'ble High Court further directed to revive OA No. 3202/2001 and dispose it of. The said OA was accordingly disposed of, vide order dated 16.01.2003, with the following directions:
24. In the result, for the foregoing reasons, the impugned order cannot be sustained in law and the same is quashed and set aside. Respondents are directed to take steps to seek relaxation with regard to no objection certificate by the parent department as per Clause 10 of the DoPT's OM dated 5.1.1994 for permanent absorption of the applicants in respect of grades/posts from DoPT. Till then they shall continue the applicants except retiree on deputation. With these observations, OA is partly allowed. No Costs.
10. The applicant has further stated that the work and conduct of the applicant has been to the maximum satisfaction of the senior officers and there is nothing adverse against him. The applicant has earned appreciations for his work and conduct while on deputation with IB.
11. Respondent Nos. 1 & 3, in their counter reply, have stated that the applicant, while posted in STS-II BSF, Bangalore, was sent on deputation to IB for a period of three years w.e.f. 24.09.1999 to 23.09.2002, vide orders dated 06.07.1999 and 25.08.1999. On completion of his prescribed period of deputation, BSF approached IB to repatriate the applicant to report to his parent organization, i.e. BSF, vide letters dated 14.07.2003, 04.11.2003, 30.12.2004 and 14.03.2005, but the applicant was not relieved in spite of repeated requests from BSF. Instead, IB had approached BSF for conveying concurrence for extension of deputation of the applicant upto 23.09.2005, i.e. for sixth year, vide letters dated 11.04.2005 and 26.05.2005. The matter was examined by BSF and the competent authority took a decision not to convey NOC for the purpose, as requested by borrowing department for extension of deputation of the applicant, due to administrative as well as operational reasons. Accordingly, IB was informed and requested, vide letters dated 21.04.2005 and 02.06.2005, respectively, to repatriate the applicant immediately as the prescribed period of his deputation had already expired on 23.09.2002.
12. The respondents have further stated that IB, vide order dated 08.07.2005, repatriated the applicant w.e.f. 31.07.2005. However, the applicant filed OA No. 1565/2005 in this Tribunal against the said repatriation order, which was disposed of, vide order dated 28.07.2006, with the direction that the claim of the applicant for permanent absorption be re-examined and a final decision should be taken in consultation with the parent Department within a period of three months from the date of receipt of copy of the said order and that status quo of the applicant, as of date, should be maintained till then. In the light of the said order of this Tribunal dated 28.07.2006, IB, vide their letter dated 10.10.2006, proposed to repatriate the applicant w.e.f. 31.10.2006 and asked for the comments of BSF. Since the applicant had already completed his prescribed tenure of deputation from 24.09.1999 to 23.09.2002 and was not eligible for any further extension in terms of BSF (Tenure of Posting & Deputation) Rules, 2000 or for issue of NOC for permanent absorption, as he had not completed required 20 years' of service in terms of Standard Operating Procedure (SOP, for short) dated 17.07.2000, IB was apprised about the rule position with a request to decide the case in accordance with existing provisions, vide BSF letter dated 21.10.2006. IB, accordingly, issued order dated 27.10.2006 repatriating the applicant w.e.f. 31.10.2006, which has been, inter alia, impugned in this OA.
13. In this context, the answering - respondents have further submitted that the applicant is a member of the BSF, which is governed by BSF Act, 1968 and BSF Rules, 1969. BSF is an Armed Force of the Union and, in terms of Section 2 of the Administrative Tribunals Act, 1985, the provisions of the said Act shall not apply to any member of the Naval, Military or Air Force or any other Armed Forces of the Union. It has been, therefore, submitted that this Tribunal has no jurisdiction to entertain the present OA. It has been further submitted that in an identical case, in COA 1721, 1889 and 1895/97 titled Union of India v. Shri Mathura Dutt, the Hon'ble High Court, in its judgment dated 30.05.1997, quashed and set aside the orders passed by the Tribunal and resultantly the applications of the respondents were dismissed. In the said Writ Petition, 157 Constables, who were on deputation to CBI from various Central Police Organization, approached the Tribunal seeking directions against respondents (CBI) that the Constable deputationists in CBI shall not be repatriated before they are considered by the appropriate Selection Committee for absorption against 60% quota available for those appointed against transfer on deputation/ transfer. In the said judgment, Hon'ble Division Bench of the Delhi High Court held as under:
The entire basis of the impugned order of the Tribunal being erroneous that the respondents had a valuable right, which in fact is not there, the impugned order cannot be sustained. The same is vitiated in as much as the respondent deputationists had no vested right to be considered for absorption in accordance with the Recruitment Rules and now a Policy decision has been taken not to absorb any person unless he is totally indispensable to the working of CBI. In such like policy decision, in the absence of any right, no challenge could have been made thereto. The impugned decision of the Tribunal, thus, being bad in law and on totally erroneous assumption of the supposed right of the respondents, is liable to be quashed and set aside.
14. The answering-respondents have argued that in another landmark judgment by the Division Bench of the Hon'ble High Court of Delhi delivered on 17.03.2006 in WP (C) Nos. 17343, 11278, 17412 and 13037 of 2004, titled Shyam Singh and Ors. v. Union of India and Ors. 2006 (2) ATJ 569, it has been held that a deputationist cannot assert any right to claim absorption. Absorption can only be claimed as a matter of right if it is based upon any Statutory Rules or some provisions having the force of law.
15. The answering-respondents have further stated that the applicant has quoted the names of certain individuals, who were given NOC, for his own convenience and has not mentioned names of other similarly placed personnel in whose cases the lending department (BSF) had denied it. Even S/Shri Amar Singh, Rajinder Kumar, Kalwa Khan, Dhanpat Rai and Desh Raj Singh, quoted by the applicant, do not belong to BSF but to other Forces, i.e. CRPF/CISF.
16. It has been further averred that in DOP&T O.M. dated 05.01.1994 (supra), instructions have been issued regarding procedure for exercising option for pay fixation, tenure of deputationists, admissibility of allowances and benefits while on deputation, premature reversion etc., but not for absorption. The averment that the applicant is deemed to be absorbed as per instructions issued, vide the said O.M., is wrong and denied. It has been submitted that the matter of absorption is based on a tripartite agreement comprising consent of lending department, borrowing department as well as the person concerned and not simply on the basis of the wish of a deputationist alone. A deputationist has no vested right to be absorbed in the borrowing organization. After completion of the prescribed period of deputation, he has to revert back to his parent organization.
17. Respondent No. 2, apart from reiterating some of the averments made by respondent Nos. 1 & 3, has stated that the applicant had challenged his repatriation before the Tribunal by filing OA No. 1565/2005, which was decided vide Tribunal's order dated 28.07.2006, with a direction to the Department to examine the claim of the applicant for absorption and to take up and process his case in accordance with rules and suitability of the applicant and to take final decision in consultation with the parent department within a period of three months. The said orders of the Tribunal have been complied with by the respondents. The suitability of the applicant for absorption in IB was assessed through his Controlling Officer, who opined that the applicant was not suitable for absorption in IB. Thereafter, the matter was taken up with BSF, who, vide their letter dated 21.10.2006, conveyed that the individual was not eligible for absorption in the borrowing organization as he had not completed 20 years of service. Accordingly the impugned order of repatriation was issued.
18. Respondent No. 2 has further stated that a deputationist has no legal and equitable right to claim absorption in a borrowing organization and absorption is always a tripartite agreement among the borrowing department, the lending department and the concerned deputationist. In the instant case, the borrowing department has not found the applicant suitable for absorption in IB as he does not possess mental ability for intelligence work nor has he displayed eagerness to learn intelligence traits.
19. The applicant has not filed any rejoinder.
20. Shri K.C. Mittal, learned Counsel for the applicant, in the course of oral arguments, inter alia, made the following averments:
A composite reading of columns 11 to 13 of the Schedule attached to the Recruitment Rules (Annexure A-7) for the post of Security Assistant in IB, would imply that there is a specific 25% quota for recruitment to the post by deputation/transfer. Thus, a person on deputation against this post does not join on deputation simpliciter, as prescribed in DoPT O.M. dated 05.01.1994. After initial deputation, he has to be considered for transfer/absorption.
(a) The condition precedent relating to 20 years of service before BSF deputationist can be issued NOC for absorption in the borrowing organization, has been prescribed through an executive instruction, i.e. SOP dated 17.07.2000 (Annexure A-5). It cannot overrule the provisions of statutory Recruitment Rules ibid.
(b) Similarly, fixing a quota of 12=% (vide O.M. dated 13.01.1992) for absorption through executive instruction is also ultra vires of the Recruitment Rules.
The ceiling of 3 years for deputation and the condition of 20 years of service before issue of NOC for absorption, are only instructions not rules. In any case, they are not relevant since the applicant is governed by the Recruitment Rules of IB.
Several juniors of the applicant, who too had not completed 20 years of service, were issued NOC for absorption in IB (respondent No. 3). In one case, an Assistant Commandant of BSF has been absorbed by respondent No. 2, in spite of the fact that there are no rules for his deputation or absorption [Annexure A-6 (Colly.)].
The impugned order is a non-speaking order and does not comply with the direction of this Tribunal issued in OA No. 1565/2005 dated 28.07.2005. It does not deal with all the issues raised in the said order of this Tribunal.
Respondent No. 2, in his counter (para 6), has stated that the applicant was not found suitable for absorption in IB as he did not possess mental ability required for intelligence work nor did he display eagerness to learn intelligence traits. Such grounds have been mentioned to deny absorption to the applicant, without giving him opportunity of being heard. On the other hand, an officer of the respondents' organization, while forwarding the applicant's request for extension of deputation, vide letter dated 15.03.2005 (Annexure A-12) stated that the applicant is a sincere dedicated and committed worker who has discharged his responsibilities satisfactorily.
The pick and choose policy of respondent No. 2 in granting NOC for absorption in the borrowing organization is arbitrary and without transparency and is violative of the direction of the Honble Supreme Court given in the case of Shyam Singh and Ors. v. Union of India and Ors. (supra).
21. Shri R.N. Singh, learned Counsel for respondent Nos. 1 & 3, stated that, firstly, the order dated 06.07.1999 [Annexure R-1 (Colly.)] placing the services of the applicant and others at the disposal of IB had clearly and unambiguous stated that he was being sent on deputation. Secondly, respondent No. 3 had requested for repatriation of a large number of its employees working in the IB [Annexure R-2 (Colly.)] and, therefore, it was not just the applicant who was singled out for this purpose. Finally, this had been done not only to meet the administrative needs of respondent No. 3, but also in order to protect the promotional career of the applicant and others (vide letter dated 30.12.2004).
22. As regards the implementation of the order of this Tribunal in OA No. 1565/2005 (supra), there was no direction to issue the order in any particular manner. The respondents were directed to re-examine the matter in accordance with rules and suitability of applicant in consultation with the parent department. The impugned order was accordingly passed taking into account the rules and regulations of the borrower as well as the borrowee organizations after due consultation [vide Annexures R-6 & R-7 (Colly.) dated 10.10.2006 and 21.10.2006 respectively].
23. Shri Singh further stated that the applicant's request to declare him deemed to have been absorbed in the IB [vide relief Clause 8(b) of O.A.] by virtue of having served there for over 7 years, much beyond the permissible 5 years, is clearly an afterthought insofar as in his own letter dated 11.03.2005 (Annexure A-8) he has stated that he is on deputation. Thus, this relief is prima facie not maintainable.
24. The learned Counsel also averred that 'deputation/transfer' is not the same thing as 'transfer on deputation'. Column 11 of the Recruitment Rules ibid. implies two modes, viz. deputation and transfer. Hence, the respondents have fixed a ceiling of 12%, out of 25%, for transfer/absorption.
25. Shri Singh finally stated that if, for the sake of argument, some others have been wrongly issued NOC for absorption in IB in violation of the existing rules and regulations, it does not create any right for the applicant. There are also no allegations of mala fides.
26. Shri Ravinder Kumar Sharma, learned Counsel for respondent No. 2, stated that since respondent No. 3 did not issue the NOC, the applicant was ordered to be relieved by the impugned order.
27. We have heard the learned Counsel for both the parties and perused the material on record.
MA No. 2336/200628. In this MA the respondents had sought vacation of the stay orders issued by this Tribunal, vide order dated 31.10.2006. However, since the arguments in the OA itself have finally been heard, this MA is disposed of as infructuous.
OA No. 2250/200629. During the course of the oral arguments, the learned Counsel for the applicant stated that he would not press for relief sought at para No. 8(b) relating to deemed absorption of the applicant in IB. We also note that challenge to respondents' order dated 05.07.2005 is also not res integra, insofar as it was the subject matter of O.A. No. 1565/2005 decided on 28.07.2006.
30. Before we arrive at any findings and conclusions in the present case, it would be appropriate to look at the evolution of jurisprudence in the cases cited by the two parties relating to absorption of BSF employee sent on deputation to IB. In the case of Satender Pal and Ors. v. Union of India and Ors. OA No. 3202/2001 (supra), heavy reliance was placed on the judgment of the Apex Court in Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman Nigam Limited and Ors. (supra), as follows:
18. The Apex while concluding the petition, in Rameshwar Prasad's case (supra) has also made the following observations:
17. In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent No. 1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at whim or caprice of any individual. In the present case, as stated earlier, the General Manager (N.E.Z.) specifically pointed out as early as in the year 1988 that appellant's service record was excellent; he was useful in service and appropriate order of his absorption may be passed. His application for absorption was within three years as provided in Rule 5. There is nothing on record to indicate that for any reason whatsoever, he was not required or fit to be absorbed or the power under Rule 5(1) of the U.P. Absorption of Government Servants in Public 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 applicable in case of appellant because his case was considered for absorption in the year 1988. Further on completion of five years on 19.11.1990 he could not have ordinarily been continued on deputation in the service of Nigam. It is apparent that he was absorbed from 19.11.90 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for non-payment of deputation allowance. So on the basis of statutory rules as well as the policy, appellant stand absorbed in the service of Nigam.
18. In this view of the matter, these appeals are allowed, the impugned order dated 9.4.1997 passed by the High Court in Civil Miscellaneous Writ Petition No. 19892 of 1995 and Writ Petition No. 7640 of 1995 is quashed and set aside. The impugned order dated 11th July, 1995 relieving the appellant from the post which he was holding in the U.P. Rajkiya Nirman Nigam Ltd., Lucknow is quashed and set aside. Respondent No. 1-Nigam is directed to pass order on or before 31st December, 1999 absorbing the appellant at appropriate place and from appropriate date in accordance with the Rules. There will be no order as to costs.
19. In one has regard to the aforesaid ratio laid down by the Apex Court though the absorption in service is a policy matter but once the policy accepted and rules are framed, before rejecting the application, there must be justifiable reasons. Although the power of absorption is discriminatory but it should not be exercised with arbitrariness of with caprice although in the aforesaid case, the General Manager wrote about the excellent record of the applicant and in absence of any material, as to unfitness of the petitioner therein, his deemed deputation was held from 19.11.1990, as on that date the deputation allowance has been stopped. It is also made clear that in that case as well, no objection certificate has not been accorded by the parent department.
20. In the light of the aforesaid ratio and also in the conspectus of the present case, whereas the applicants have been continued on deputation on completion of five years, their deputation allowance has been stopped and moreover, as per the OM dated 13.1.1992, the number of absorption in a direct recruitment quota was restricted to 12.5% and there exists a provision under the administrative instructions, which has the force of law not inconsistent with the statutory rules, rather supplementing the same, there is nothing on record to establish that cases of absorption of the applicants have been proceeded six months in advance of the expiry of the deputation period and once their deputation allowance has been stopped, no other conclusion except their deemed absorption is to be arrived in the light of the decision of the Apex Court supra. It is also not the case of the respondents that applicants at any time have been found lacking in the performance rather they have also given their no objection for permanent absorption.
21. Accordingly, if one has regard to the aforesaid observations, orders passed by the respondents after maximum period of five years deputation in the case of applicants for repatriating to their parent department on the ground of refusal of the parent department to grant 'No Objection Certificate' cannot come in their way, and would not be an impediment for permanent absorption in the light of Clause 10 of the DoPT's OM dated 5.1.1994 wherein on the concurrence of the DoPT, any rules and terms and conditions for absorption can be relaxed.
31. The Tribunal, in the said case, held as follows:
24. In the result, for the foregoing reasons, the impugned order cannot be sustained in law and the same is quashed and set aside. Respondents are directed to take steps to seek relaxation with regard to no objection certificate by the parent department as per Clause 10 of the DoPT's OM dated 5.1.1994 for permanent absorption of the applicants in respect of grades/posts from DoPT. Till then they shall continue the applicants except retiree on deputation. With these observations, OA is partly allowed. No costs.
32. However, in the earlier case of the present applicant, decided by this Tribunal in OA No. 1565/2005 (supra), the Tribunal took note of the judgment of the Hon'ble Supreme Court in Union of India v. S.N. Panikar 2002 SCC (L&S) 905, as follows:
6. As per the Apex Court decision in Union of India and Ors. v. S.N. Panikar in 2002 SCC (L&S) 905, deputationists have no right of absorption, if extension by the parent department has been turned down. It is equally settled that in the matter of deputation, one cannot claim right on a deemed absorption as law is very clear to this effect that permanent absorption cannot be claimed as a right but has to be operated as a tripartite agreement and to be governed by implication of the rules on the subject. In the present case, what we find is that the applicant's deputation has been sought to be extended for the sixth year and to this effect NOC sought from the BSF having been turned down, the applicant has been repatriated. Nowhere we find that the borrowing department i.e. IB has acted upon the request of the applicant for permanent absorption and in furtherance have sought no objection certificate from the parent department as regards permanent absorption of the applicant.
x x x
8. The decision of the High Court of Delhi may hold good in the circumstances where a deemed absorption sought alleging discrimination has been repelled. But in the present case when the respondents have not even processed the case of the applicant for consideration for permanent absorption and what has been received from the parent department is refusal of extension, the same cannot be construed as a consideration for permanent absorption in order to have one permanently absorbed. Whereas in the tripartite agreement, a condition precedent is the consent of the person to be absorbed, the consent of the borrowing department and lastly the consent of the parent department. This consent would be delivered only when a reference to this effect goes from the borrowing department as a proposal of permanent absorption regarding concerned person's consent, failing which, whatever, refusal has come would be construed as a refusal to the extension but cannot be treated as a refusal to the permanent absorption of the applicant, the claim for which has never been initiated in any manner. In such view of the matter, the claim of the applicant is clearly distinguisdable to the effect that this case for permanent absorption has never been processed which though may not be claimed as a right but in all fairness and keeping in light the discretion rests with the respondents should have been apparently exercised in a judicious manner. Withholding the claim of the person for permanent absorption and not processing it, whereas in the case of juniors, the same having been processed, is a clear cut discrimination which cannot be countenanced in law. Though the rules pertaining to recruitment for the post of constable in IB prescribe as transfer, one of the modes of appointment yet this has not been considered by the respondents. Though the applicant has no right to the permanent absorption, yet the legitimate expectation when he had been continued in the borrowing department for number of years in the wake of equitable principle of law gives rise to hope of his being considered in a true perspective in accordance with the rules.
9. In this view of the matter, though we are bound by the doctrine of precedent enshrined under Article 141 of the Constitution of India as to the decision of the Apex Court, yet there may be cases whereon a ratio decidendi though right cannot be claimed but a right for consideration is of paramount importance, which has to be not only considered it but to be disposed of in a non arbitrary and reasonable manner. In Mahesh Kumar (supra), we find that the claim of the similarity circumstanced who have been brought on deputation in Gujarat Intelligence Bureau though the Apex Court ruled that one has no right of permanent absorption but keeping in light the service rendered for a period of more than 5 years and also the contemplation of the Act and statutory rules where provision for such appointment exists but not without issuing mandamus the respondents therein have been directed to consider the petitioners in accordance with rules and as per the suitability.
In the light of the foregoing observations and findings, the Tribunal, as aforementioned, directed only re-examination of the claim of the applicant for permanent absorption.
33. In the present case, the learned Counsel for respondent Nos. 1 & 3 has invited attention to the recent judgment dated 17.03.2006 of the Hon'ble High Court of Delhi in the case of Shyam Sunder and Ors. v. Union of India and Ors. (supra) wherein it was held:
15. In view of the above, we do not find any merit in the present writ petition. However, we may add a word of caution. A large number of writ petitions and original applications have been filed challenging and questioning orders passed by Border Security Force and other Central Police Forces refusing to grant no objection certificates for absorption in the borrowing organisation like Intelligence Bureau, C.B.I. etc. Allegations have also been made that favourtism, 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 openness and clear-cut policy in the parent departments, so that these allegations are not repeatedly made and no doubt is created. We expect the Border Security Force would adopt such a policy soon and report compliance. When such allegations are repeatedly made 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 Border 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 the 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 merit in the present writ petition and other connected writ petitions and they are dismissed. However, there will be no order as to costs.
34. Even though this judgment was pronounced before the date of the order of this Tribunal in OA No. 1565/2005, it was not placed before the Coordinate Bench. In this case, the Hon'ble High Court has examined the ratio of the judgments of the Hon'ble Supreme Court in the cases of Ramehswar Prasad v. Managing Director, U.P. Rajkiya Nirman Nigam Limited and Ors. (supra); Kunal Nand v. Union of India and Anr. 2000 (5) SC 362; State of Punjab v. Inder Singh ; Mahesh Kumar K. Parmar v. S.I.G. of Police and Ors. , et al. as well as the order of this Tribunal in Satender Pal and Ors. v. Union of India and Ors. (supra), before coming to the conclusions aforementioned. Thus the law, from being somewhat in favour of the applicant, has now tilted in favour of the respondents. Thus, irrespective of the fact whether a proper policy for release of deputationist for absorption in the borrowing department is in place or not in the parent department and, if in place, whether it is being strictly followed or not, one thing is crystal clear that the proposition of the applicant 'whether-you-like-it-or-not-I-should-be-your-absorbee' is not enforceable.
35. As regards the issue of implementation of the direction of this Tribunal in OA No. 1565/2005 (supra), as pointed out by the learned Counsel for respondent Nos. 1 & 3, the direction has been substantially complied with. The rules and procedure of both the borrower and borrowee organizations have been taken into account in this exercise.
36. Further, as again pointed out by the learned Counsel for respondents, the provision in the Recruitment Rules is for deputation/transfer which is not the same thing as transfer on deputation. The Recruitment Rules of IB, therefore, make provision for two modes of recruitment under the 25% quota, namely, deputation and transfer, which are clearly distinguishable.
37. During the oral arguments, the learned Counsel for the applicant had averred that the deputation of application to IB was in terms of the Recruitment Rules of IB and it had nothing to do with the general instructions of DoPT relating to deputation. He also gave short-shrift to IB O.M. dated 13.01.1992 as being violative of Recruitment Rules. However, in the written pleadings it has been stated that the IB O.M. dated 13.01.1992, read with DoPT O.M. dated 05.01.1994, supplement the Recruitment Rules and are in no way inconsistent with them. As a matter of fact, the applicant has claimed that he should be deemed to have been absorbed as per the provisions of O.M. dated 05.01.1994. The applicant has indeed quoted scriptures to his purpose.
38. The applicant has argued that since the deputation was continued beyond the fifth year, he should be deemed to have been absorbed in terms of the O.M. dated 05.01.1994 (supra). Actually the import of the O.M. dated 05.01.1994 (supra), on a composite reading, is quite contrary. The prescription of DoPT approval for extension of deputation beyond fifth year or second year in excess of the period prescribed in the Recruitment Rules (pars 8.4 & 8.5), stoppage of deputation (duty) allowance after the fifth year etc., are meant to discourage officials continuing on deputation in excess of the prescribed period. If there is any doubt on this score, it should be put at rest from a plain reading of para 8.3 of the O.M. dated 05.01.1994 as follows:
8.3 The borrowing Ministries/Departments/ Organizations may extend the period of deputation for the fifth year or for the second year in excess of the period prescribed in the Recruitment Rules where absolutely necessary, subject to the following conditions:
While according extension for the fifth year, or the second year in excess of the period prescribed in the Recruitment Rules the directive issued for rigid application of the tenure rules should be taken into consideration and only in rare and exceptional circumstances such extension should be granted.
The extension should be strictly in public interest and with the specific prior approval of the concerned Minister of the borrowing Ministry/Department and in respect of other organization, with the approval of the Minister/Ministry/ Department with which they are administratively attached.
Where such extension is granted, it would be on the specific understanding that the officer would not be entitled to draw deputation (duty) allowance.
The extension would be subject to the prior approval of the lending organization, the officer on deputation, and wherever necessary the UPSC/State Public Service Commission and Appointments Committee of the Cabinet (ACC).
If the borrowing organization wishes to retain an officer beyond the prescribed tenure, it shall initiate action as above for seeking concurrence of lending organization, individual concerned etc. 6 months before the date of expiry of tenure. In no case it should retrain an officer beyond the sanctioned term unless concurrence of lending organization has been received.
This does not advance the case of the applicant. As a matter of fact, having not initiated the process of extension of deputation six months in advance of completion of 5 years, the respondent No. 2 clearly could not have expected any favourable response from respondent No. 3. Moreover, as pointed by respondents, this O.M. is about deputation and not absorption.
39. The respondents have, inter alia, stated that in terms of the orders of Hon'ble High Court dated 30.05.1997 in the case of Union of India v. Shri Mathura Dutt (supra), this Tribunal has no jurisdiction to entertain the present O.A. Suffice it to say that this plea, having not been raised before or having been not entertained by the Hon'ble High Court in W.P. No. 7406/2002, decided on 11.11.2002 (supra) cannot now be raised before us. In any case, the operative para of the said judgment (Union of India v. Shri Mathura Dutt), cited by the answering-respondent, is a decision on merits of the case of the petitioner and not in terms of jurisdiction of this Tribunal.
40. Finally, as argued by the learned Counsel for the respondents, if, for the sake of arguments, some other persons have been wrongly issued NOC for absorption in IB, in violation of the existing rules and regulations, it does not create any legal right in favour of the applicant to claim permanent absorption in IB. In a catena of cases, the Hon'ble Supreme Court has held that the petitioner must have an enforceable right. If some persons derive benefit illegally, other similarly circumstanced cannot claim the same benefit on the ground of equality as that would amount to perpetuating the illegality through the judicial process, which the Court cannot do. Only a claim, which is just and legal, can constitute a ground for discrimination on the basis that it has been extended to some and denied to others [State of Bihar and Ors. v. Kameshwar Parsad Singh and Anr. 2000 (1) SCSLJ 478; Faridabad CT. Scan Centre v. D.G. Health Services and Ors. ; State of Haryana and Ors. v. Ram Kumar Mann ; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors. ; and Gursharan Singh and Ors. etc. v. New Delhi Municipal Committee and Ors. ].
41. Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that the applicant has not been able to establish his legal right for being absorbed in IB. If an organization takes a person on deputation, it does not create any obligation to absorb him de hors the Recruitment Rules. We are, therefore, in respectful agreement with the decision of the Hon'ble High Court of Delhi in Shyam Singh and Ors. v. Union of India and Ors. (supra) that the issue of NOC to certain other deputationists, who had not completed years of service in the parent department, cannot be a valid ground to issue direction to respondent Nos. 1 & 3 to issue NOC to the applicant.
42. In the result, the OA is without merit and is, therefore, accordingly dismissed. The stay order dated 31.10.2006 accordingly stands vacated. There will be no order as to costs.
43. Before parting with the case, we would like to reiterate the advice of the Hon'ble High Court of Delhi in Shyam Singh and Ors. v. Union of India and Ors. (supra) that the respondents should evolve a transparent and clear cut policy, preferably statutory rules, regarding absorption of deputationists so that allegations of favouritsm, arbitrariness and pick and choose do not drive persons, like the applicant, to knock at the door of the courts time and again. We also hope that in terms of the direction of the Hon'ble High Court, the BSF would formulate such a policy soon and report compliance.