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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.

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.
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.