WP(C) 191/2010 BEFORE THE HON’BLE MR. JUSTICE I.A. ANSARI Heard Mr. P.D. Nair, learned counsel for the petitioner, and Mr. R. Sharma, lear ned Asstt. S.G.I, appearing on behalf of the respondents. 2. The material facts, as discernible from the hearing of the parties and o n perusal of the records may, in brief, be set out as under: The petitioner joined Special Service Bureau (in short, ’the SSB’) as a constabl e on 4/9/1986. By memorandum bearing No.2/69/03/SSB/E.III/3248, dated 26/9/2003, issued by the respondent No.3, namely, Director General, Special Service Bureau , the petitioner was allowed to go on deputation to Intelligence Bureau (in shor t, ’the IB’). In terms of the direction so issued, by memorandum, dated 26/9/03, aforementioned, an order was made, on 20/11/03, by the Commandant 12th Bn. SSB, Valmikinagar, relieving the petitioner enabling him to join the IB on deputatio n. The petitioner, accordingly, joined the Subsidiary Intelligence Bureau (SIB), which is a part of the IB, in the post of Security Assistant (General) at Guwah ati. By Government notification, issued on 27/3/2004, the Special Service Bureau was named as Sashastra Seema Bal and by enactment of Sashastra Seema Bal Act, 2 007, a new para military force was raised. 3. On having completed more than 3(three) years of service in SIB, the peti tioner, on 19/9/2007, made a representation to the respondent No.5 namely, Assis tant Director/(A), Subsidiary Intelligence Bureau, Guwahati, requesting him to c onsider the petitioner’s case for permanent absorption. Acting on the petitioner ’s said representation, respondent No.5 issued an order, dated 22/4/2008, addres sed to the respondent No.3, namely, Director General, SSB, requesting concurrenc e of the SSB and also issuance of a No Objection Certificate by the SSB for perm anent absorption of the petitioner and one more person in the SIB. By memorandum , dated 23/7/2008, issued by the Section Officer/(G), SIB, the petitioner was re quested to submit duly filled up forms for his absorption in the IB. By another memorandum, dated 18/8/2008, respondent No.6, namely, Additional Deputy Director , SIB, with the approval of the respondent No.5, namely, Joint Director, SIB, re commended the petitioner’s case for permanent absorption and also issued an orde r, dated 17/12/2008, requesting respondent No.3, namely, Director General, SSB, to give concurrence and requisite NOC in order to enable the IB to permanently a bsorb the petitioner. By order, dated 07.01.09, issued by the Assistant Director , SSB, the SSB expressed its inability to issue NOC for the petitioner’s absorpt ion and also the absorption of some others, namely, Jadab Kumar Dutta ,Manoj Kum ar Gogoi, Milan Ch.Shil, C.M. Subedi and Siddharth Baruah. 4. Some of these persons, including Manoj Kumar Gogoi and Jadab Kumar Dutta , who belonged to SSB, but were on deputation, in the IB, filed a writ petition, which gave raise to WP(C) No. 80(AP) of 2009, seeking appropriate direction fro m the Court so that they may be absorbed in the IB. By order, dated 23-06-2009, the said writ petition was disposed of by making an observation to the effect th at while the SSB, being the parent Department, had not agreed to the absorption, the IB was willing to absorb the petitioner, who had filed the said writ petiti on, and, hence, a direction was issued by the Court to the IB for considering th e petitioner’s representation for absorption making it clear that while deciding the question of absorption, the IB shall obtain the consent of the parent depar tment, i.e., SSB. Another writ petition, which had given rise to WP(C) No. 128(A P) of 2009, was also disposed of in terms of the directions already passed in WP (C) No. 80(AP) of 2009. Thereafter, NOC having been issued, on 19-10-2010, by SS B, an order was made, on 13-08-2009, by the IB absorbing five persons, namely, S hri Manoj Kumar Gogoi, Shri Indreswar Pegu, Shri Jadab Kumar Dutta, Shri Rupak K umar Deka and Shri Dipu Patangia, in the IB. 5. By order, dated 02-12-2009, issued by respondent No. 4, namely, the Join t Director, SIB, it was directed that the present petitioner would be repatriate d with effect from 04-12-2009. This order was, however, modified by another orde r, dated 03-12-2009, whereby the petitioner was to stand repatriated with effect from 15-12-2009. This was, again, modified by yet another order, 04-12-2009, ma king it clear that the petitioner would stand repatriated with effect from 31-12 -2009. The order, dated 03-12-2009 and 04-12-2009, according to the petitioner, was served on the petitioner, on 23-12-2009, informing him about his repatriatio n to the SSB. The petitioner, then, submitted a representation, dated 04-01-2010 , to the respondent No. 5, namely, Assistant Director/(A), SIB, Guwahati, reques ting him to consider his case for permanent absorption. 6. As the SSB remained reluctant to grant NOC, resulting thereby the denial of absorption of the petitioner by the IB, the petitioner has filed this writ p etition challenging, inter alia, the orders, dated 02-12-2009, 03-12-2009 and 04 -12-2009, aforementioned, whereby he stands repatriated to SSB. By this writ pet ition, the petitioner has also sought for direction to be issued not only to all ow him to continue to render service in IB, but also to permanently absorb him i n the SIB. 7. There is no dispute that there have been cases of deputationists from SS B being absorbed by the SIB. In the case of the petitioner, the SSB has declined to give requisiate NOC enabling the petitioner’s absorption in the IB. The peti tioner challenges this decision of the SSB on the ground that it is discriminato ry in nature inasmuch as other persons, similarly situated, have been, according to the petitioner, allowed to be absorbed by IB, prominent amongst them, accord ing to the petitioner, being Manoj Kumar Gogoi and Jadab Kumar Dutta. Refuting t he allegation of discrimination, which the petitioner alleges to have been meted out to him, respondent, in the affidavit-in-opposition, have averred as under: Further, the deponent begs to state that the petitioner even otherwise cannot complain prejudice because the doors of his parent department are not closed for him in view of the continuance of his lien therewith, with all applicable allow ances. This apart, the examples as has been cited by the petitioner to buttress his contention of being prejudiced is totally unfounded and not correct and for this aspect the deponent would like to state as follows - Sri Alok Nath did not have much experience in working under the answering respondents whereas the peti tioner was deputed after he had already served for more than 17 years under the SSB and was thus an experienced employee of the answering respondents. Similar i s the case of Sri J.D. Bhattarai, Sri J.P. Gogoi, Sri Prashant Baruah and Sri Ki shore Kumar Pathat all of them are similar to the case of Sri Alok Nath as all o f them did not have mush experience of working under the SSB as the petitioner h as. Thus, the inability of the answering respondents in issuing the NOC which arises from shortage of manpower is also further compounded due to the absence of expe rienced manpower. That being so the service of the petitioner who is an experien ce employee of the answering respondent is valuable to the answering respondents and that being so the answering respondents are unable to issue NOC in respect of his absorption in the IB. Thus, in the absence of any statutory Rule, regulation or order, having the forc e of law, to trace the right and claim of the petitioner for permanent absorptio n in the SIB having been violated by the answering respondent while refusing to issue the NOC in question in favour of the petitioner the allegation of any viol ation of natural justice, fundamental right as has been alleged by the petitione r in his writ petition is not correct and completely untenable in any view of th e matter. That apart it is pertinent to mention herein that the IB Headquarters in view of the no-receipt of the NOC from the answering respondents has already issued dir ections to the SIB, Guwahati to repatriate the petitioner to his department imme diately vide Memo No.21/EST(G-1)/2003(136)-4981 dated 13.11.09. 8. From the averments made above, what becomes clear is that the SSB does n ot want to agree to the absorption of the present petitioner in the IB, because of the fact that the petitioner had already spent more than 17 years in the SSB before he was sent, on deputation, to IB particularly, when it (SSB), according to the SSB, has been facing acute shortage of experienced employees. There can b e no dispute that a person, on deputation, cannot be refused to be repatriated b y the borrowing department to the parent department nor is it in dispute that a deputationist cannot be absorbed by the borrowing department without the consent of the parent department. It is also not in dispute that a deputationist cannot , as of right, demand absorption in the department to which he was sent on deput ation. For the purpose of not permitting the petitioner’s absorption, no special reason is required to be assigned by the parent Department. 9. In the present case, however, the petitioner’s case rests on discriminat ion. The petitioner has, however, not been able to show that his case stands on the same footing as do the cases of those of others including Manoj Kumar Gogoi and Jadab Kumar Dutta, who have been absorbed, except the fact that the said per sons too were, on deputation, in the IB from SSB. In the face of the categorical stand taken by the SSB that they are unwilling to agree to the absorption of th e petitioner, because of the fact that the petitioner, unlike some others, is an experienced person, for, he, unlike others, has worked in the SSB for as long a s 17 years, this Court cannot sit on the merit of this decision inasmuch as the SSB, as parent Department, has the discretion in the matter and unless such disc retion can be said to have been arbitrarily exercised or actuated by malafide, t he exercise of the discretion cannot be interfered with. 10. In the case at hand, as already indicated above, there is no material re cord to show that the absorption, which has not been consented to by SSB, is act uated by mala fide and/or is discriminatory. In such circumstances, the petition er’s case cannot be said to be similar to the ones, who have been absorbed. For contending, therefore, that the refusal to permit the petitioner to be absorbed suffers from discrimination, the petitioner has not been able to make out any ca se. 11. At the time of hearing of this writ petition, it was sought to be conten ded, on behalf of the petitioner, that the nature of the duties, in the SSB, hav e materially changed from what the duties one had, in SSB, before the Sashatra S eema Bal was constituted in 2007. Though the petitioner has mentioned, in his wr it petition, at para 2, that the nature of the duties of his erstwhile organisat ion stand changed, he has not challenged the authority of the SSB to demand his repatriation nor has the petitioner contended that the passing of the said Act o f 2007 or, his repatriation to the SSB suffers from jurisdiction. 12. Situated thus, this Court does not find that the petitioner has been abl e to make out any case calling for interference by this Court in exercise of pow ers under Article 226 of the Constitution of India. 13. This writ petition, therefore, fails and the same shall accordingly stan d dismissed. 14. No order as to cost.