t V * IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITION fCIVlLl NO. 13037 of 2004 % Date of Decision : March 2006. NETRAM CHOURASIYA.... Petitioner in WP(C).Nos. 11278 & 17412/2004. KALPANATH YADAV Petitioner in WP(C) No. 13037/2004. Through Mr. K.C. Mittal, Advocate. VERSUS UNION OF INDIA & ORS. .... Respondents Through Mr. Kailash Gambhir with Mr. Gaurav Sharma, Advocates. CORAM: HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA HON'BLE MR.JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? SANJIV KHANNA. J: For detailedjudgment, see W.P(C) No. 17343/2004 (Shyam Singh V. Union of India & Ors) pronounced on 17.3.2006. [SANJW KHANNA) JUDGE ./I March , 2006. (DR.MUKUNDAKAMSHARMA) vkr/P. JUDGE WP(C)17343/2004 Page i of i Digitally Signed By:AMULYA Signing Date:22.08.2023 15:55 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified IN THE HIGH COURT OF DELHIAT NEW DELHI +WRITPETTTIONfCTVTLl NOS. 17343,11278,17412AND_ ifinaT of 2004 Date ofDecision: Mnrr.h 1^,2006. c^HYAMSINGH .... Petitionerin WP(C) No.17343/2004. NCTRAMCHOURASIYA....PetitionerinWP(C).Nos.11278& 17412/2004. KALPANATHYADAV PetitionerinW(C) No 13037/2004, • ThroughMr. K.C. Mittal. Advocate. VERSUS UNION OF INDIA&ORS. Respondents ThroughMr. KailashGambhirwithMr. Gaurav Sharma, Advocates. CORAM: HON'BLEDR. JUSTICE MUKUNDAKAM SHARMA HON'BLEMR.JUSTICE SANJIVKHANNA 1. Whether Reportersoflocalpapers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? s 3. Whetherthejudgmentshouldbe reported Ves. in the Digest ? SANJIV KHANNA. J: 1, These are a group of writ petitionsinvolvingsimilarquestion of law and facts and, therefore,being disposed ofby this common judgment. At the time of arguments W.P.(C) 17343/2004titled Shuam SinahversusUnionofIndiaand Otherswas treatedas a lead case and we will be referringto the facts ofthis case. However,we wereinformedthat the facts ofthe other cases are not different. 2L The petitionerwas/is an employee of Border Security Force (hereinafterreferredto as respondent-BSF,for short) and was sent on deputationto IntelligenceBureaufor a periodoffive years.Even WPtC)17343/2004 ^ afterthe expiiyof the Said period,the petitionercontinuedto be on deputationwith the IntelligenceBureauand he was not repatriated to his parentorganisation.It Is the contentionofthe petitionerthat he shouldbe deemedto have beenabsorbedin IntelligenceBureau, immediatelyon completionoffive years ofdeputationservle.In this regard reliance has been placed upon judgment of the Supreme Court m the case of RameshmnrPrashnri ILP ^irAcm Niqcm JT (1999) 7 SC 44. It is also the contentionof the petitionerthat IntelligenceBureauhas from time to time recommendedthe case of the petitionerfor absorptionbut the parentdepartment,i.e. BSF has wronglyand illegallynot given its consentfor absorption. Allegationsof discriminationhave also beenmadewith the allegationthattheparentdepartmenthas given consent or no objection certificates for absorption of juniors/others. 3. Smillarcontentionswere also raised by the petitionerbefore the learned Central Administrative Tribunal but the said intentionswere rejected by relying upon decision of Delhi High Court in the case of SatenderPal and nth^r. India and nthfrs in Civil Writ No. 7406/2002 decided on 20'>' November, 2002. The Tribunal also relied upon Its Full Bench decision, inter alia, holding that deputationistscannot claim for deemedabsorptionin IntelligenceBureauand theyalso do nothave any right to be consideredfor absorption,without consentof the parent department in view of the Office Memorandum dated 30.1.1992. WP(C)17343/2004 Page 2 of 11 4. Learned counsel for the respondent in addition to relying upon the order of the Tribunal, has also referred to decision by this Court in W.P(C) No. 7989/2005 titled Santosh Kumari versus Union of India and Others decided on 6.5.2005. In the said decision, this Court relied upon several earlier decisions including Ariufi Sinah Neoi versus Union of India in Civil Writ No. 2366/2003 and Constable Nafe Sinah versus Union of India '(mU Others. Civil Writ No. 5220/1997. In the last case, this Court has relied upon judgment of the Supreme Court in the case of m State of Madhua Pradesh versus Ashok Deshmukh and Another , (1988) 3 SLR 336. 5. We have considered the submissions made by the learned counsel for the parties. In view of the decisions of this Court in the " case of Ariun Sinah (supra), Nafe Singh (supra) and Santosh Kumari (supra), there cannot be any dispute that the deputationlsts have no legal and vested right to claim absorption and resist ^ repatriation to their parent department. 6. As per the Intelligence Bureau (Non-Gazetted) Recruitment Rules, 1982 (hereinafter referred to the Rules, for short] 75% of the posts of Security Assistant in Intelligence-Bureau were/are to be filled up by direct recruitment and 25% of the posts were/are to be filled up by deputation/transfer. Suitable persons from State police service or Central Police Organisations or Defence Forces were/are taken on deputation in Intelligence Bureau. As per the recruitment rules, ordlncirily the deputation period should not exceed five years but_the same can be extended by the borrowing s WP(C)17343/2004 Page3 of 11 w e h" department. It maty also be noticed that tliere is no provision under the Rules for permanent absorption for employees who come on deputation. However, there is an Office Membrgindum of Intelligence Bureau dated 31.1.1992 under which subject to certain conditions like good service records etc., officers who come on deputation can be absorbed but the number of ^absorbees should not exceed 12.5% of the persons in any rank. 7. In the light of the Rules and the Office Memorandum dated 31.1.1992, we proceed to examine case law on the subject. In the case of.Rameshwar Prashad (supra), the deputationists had applied to U.P. Rajkiya Nirman Nigam Limited for absorption through proper channel though they did not have no objection certificate from their parent department. The relevant service rules in the said case envisaged absorption of deputationists on certain terms and conditions. Further under Rule 4 and 5 of U.P. Absorptionof GovernmentServants in Public Undertaking Rules, 1984, no Government servant was ordinarily permitted to remain on deputation for period exceeding five years. Keeping all these aspects, Supreme Court held as under:- 14. "We agree with the learned counsel for Respondent 1 and make it clear that an employee who is on deputation has no right to be absorbed ' in the service where he is workmg on deputation. However, in some cases it may depend upon statutory rules to the contr£iiy. It the rules provide for absorption of employees on deputation then such employee has a right to be considered for absorption in accordance with the said rules. As quoted above; Rule 16(3) of the recruitment rules of the Nigam and Rule 5 of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 provide for absorption of employees who are on deputation. 15. In the present case, considering the facts, it is apjjarent that inaction of Respondent 1 of not passmg the order either for repatriation or ^ /^rsrsA ^ ^ A r 11 tJ on d^p'Xton appoinS ffisis "ofisr.&uS= w uifdp^a1S?ifg,{][P°^''gg™e"tServantsin Public iS'HiSs- =f;'Ss iSSSSSfsp^S r-e^'d •£ appeU^wai^t™b?'IS 'i^at the serviceemployeesfSeH ^2+-^ service but in- an interinf order rSti^ni^^ Vfi'' obtained S'Sf ?«?'Sffills %?«°S « «„tSS-'|f8"SSS x^psss^s" '^pugfcdS M1?'iSTthl"® (a) it vi^as a policydecision; " fsatea-sssr" order (C) the High^CourthaspasSiSerim dJoutetiSSfstribbulVbe'SLrtSj not IS a policymatter hut n?^?.? service or the policy is accented ^ same time, once such'^abs^rptioS?feforeT^^ for SS'ie mustV_Justiflable there must^be^stSableleSS?,^^application, cannotactarbii?rarilyby^cl^^g^lnd^ToXTL^ WP(C)17343/2004 Page 5 of 11 deputationlsts for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual. In the present case, as stated earlier, the • General vlanager (NEZ) specifically pointed out as early as m the year 1988 that the appellant's service record was excellent: he was useful in service eind riate order of his absorption may be massed. His application for absorption was within -hree years as provided in Rule 5. Tliere 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. :s jqu Interim order dated 17-7- allowance. So on the basis of the statutory rules as well as the policy, the appellant stands absorbed in the service of the Nigam." : pc Absorption of Government Servants in Public Undertakings Rules, 1984 was not required to be exercised in his favour. 1991 passed by the High Court would not be applicable in the case oT the appellant because his case was considered for absorption in the year 1988. Further on completion of nve years on 19-11-1990 he could not have ordinarily been continued on deputation in the service of the N^am. It is apparent that he was absorbed from 19-11-1990 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for non-oavment of the deputation 8. Learned Tribunal also in its order dated 5^ July, 2004 has noticed that lien of Rameshwar Prasad had been terminated w.e.f. 30"" April, 1994 and therefore,it was not necessaryfor the SupremeCourtto examineand go into the questionof necessity or otherwiseofthe no objectioncertificatefor absorption from the- parent organisation. This is not so in the present case. 9. In the case of the petitioner, the lending/parent department i.e. Border Security Force, has expressed its inability to issue no objectioncertificatefor the proposedabsorption of the petitioner on the ground that he has not completed 20 years of service. It is further stated that as per policy adopted by Border Security Force, serviceof20 years in the said force is requiredfor grant of N.O.C. for permanent absorption in another organisation. The WP(C)17343/2004 Page 6 of 11 petitionerwas appointed in Border SecurityForce in the year 1987and had put in about 16 years ofservicein BorderSecurity Forceand. therefore,in view of the policydecisiontakenby tliem no objectioncertificatewas not issuedfor permanentabsorption ofthe petitionerin IntelligenceBureau. It may also be relevantto statehere thatno one has arightto claimpermanentabsorption manotherdepartmentand courtsnormallyhesitatein issuinga ^'j'Mandamusfor grantof no objectioncertificateunless it can be • shown that the parent departmenthas acted capriciouslyor in ^ an arbitrarymanneramountingto violationofArticles14, 15 and 16 of the Constitutionof India. Tlie parent departmenthas discretionnot to grant no objectioncertificatein- terms of their .1 policy guidelines. No objection certificatecan also be denied where the parentorganisaUonfeels that it requiresserviceof an employeefor administrativeor operationalrequirement/ground. lO.TheDOP&TO.M dated 5.1.1994statesthatperiodofdeputation is normallysubjectto amaximumperiodofthreeyears exceptfor » postswherelongertenureis prescribedin the recruitmentrules. As perthe recruitmentrulesIn question,the periodofdeputation should not ordinarilyexceed five yeai's but the same may be curtailed or extended by the borrowing authority. The recruitmentrules further provide for extension of deputation period beyond five years subjectto certain conditionsincluding approvalfrom the Secretaryfrom the B"- yearand approvalof the concernedMinister/Ministiyfor the 7" Year. The said O.M. also providesthat any extensionbeyondthe secondyearin excess of WP(C)17343/2004 „ , , Page 7 of 11 the period prescribed, the deputationists would not be entitled to draw deputation/duty allowance. In the case of the petitioner, the deputation tenure was extended beyond the 7"" year after obtaining concurrent approval of the competent authority and, therefore, in terms of O.M. Dated 5.1.1994 he was not beingpaid deputation allowance. It is. therefore, incorrect to state that the deputation allowance was not being paid to the petitioner A % , ^because he was permanently absorbed. 11. Supreme Court has examined the concept of deputation and right of absorption of a deputatiionist in the case of Kunal . A Nanda uarsus Union of India and Anothp.r , (2000) 5 SC 362 wherein it has been observed as under;- 6. "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 wfiich he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D.. U.P. Rqjkiya 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 WP(C)17343/2004 Page8of 11 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. 12. Similarly,in the case of State ofPunjabversusInderSingh rennrtpA in (1997) 8 SCC 372 it has been held as under "18. The concept of "deputation" is well understood in service law and has a recognised • meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation"is ofno help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and .he would, therefore, know his rights and privileged in the deputation post, llie law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be. 19. It is no doubt really harsh on the respondents to be sent back after they have served the CID for number of years in higher rank though on ad hoc basis and now when they go back they have to work either as Constables or Head Constables." V 13.1n the case of Mahesh Kumar k. Parmar versus S.I.G. Of Police reported in f2Q021 9 SCC 455, it has been observed by the Supreme Court that unless rules contemplate permanent absorption of employees on deputation no mandamus can be WP(C) 17343/2004 Page 9 of 11 'c • issued. 14. In the case of OhanderPal Sinah versus Union ofIndia (2003)Vol. II AD (Delhi)772, it has beenheldthatpolicydecision was within the domato of the parent departmentand it was for the said parentdepartmentto decide whetherIt should agree to s-^end out its employeesand also lay down parametersand on the basis of administrative convenience decide whether or not to issue no objectioncertificate. It was further held that the basic principleunderlyingdeputationwas/is that a personcan always be repatriated to his parent department to serve at his substantive post. A deputationist cannot assert any right to claimabsorption. Absorptioncan onlybe claimedas a matter of right, if it is based upon any statutory rules or some provision having force of law. 15. In view of the above, we do not find any merit in the present writ petition. However, we rtiay add a word of caution.A laxge ^ numberofwrit petitionsand originalapplicationshave beenfiled ch^enging and questioningorders passed by Border Security Force and' other Central Police Forces refusing to grant no objectioncertificatesfor absorptionin the borrowingorganisation like IntelligenceBureau, C.B.I, etc. Allegationshave also been made that favoiirtisni, 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 opennessand clear-cutpolicyin the parent departments,so that these allegations are not repeatedly made and no doubt is created.We expectthe BorderSecurityForcewould adoptsuch a policy soon arid report compliance.When such allegationsare repeatedlymade with instancesand 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 Bprder 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 r petitions and they ^e dismissed. However, there will be no order as to costs. March 17^^, 2006. vkr/P. WP(C)17343/2004 i (SANJIV KHANNA) JUDGE —-A/VV" ' (DR.MUKUNDAKAM SHARMA) JUDGE Paee 11 of 11