JUDGMENT P.P. Naolekar, C.J. 1. The facts in brief are that the present Respondent was appointed as Principal in Navodaya Vidyalaya on deputation basis by the Director, Navodaya Vidyalaya Samiti by order dated 28.4.95. This appointment was made initially for a period of 2 years. It was extended for one year by order dated 10.7.96 to be expired on 21.6.97. Thereafter, an order was issued on 27.3.98 for repatriation w.e.f. 30.4.98. This order was challenged by the present Respondent by filing a writ petition before the Gauhati High Court assailing the action of the present Petitioners in repatriating him in his parent department instead of absorption in the post which he was holding on deputation. The High Court passed an interim order suspending the order of repatriation. The said petition was eventually transferred to the Central Administrative Tribunal. The Central Administrative Tribunal after hearing the parties directed the Respondents/Petitioners herein to consider the case of the Respondent for permanent absorption in the post of Principal in conformity with the law. The said order was passed on 5.6.2001. Pursuant to the order passed by the Central Administrative Tribunal, the present Respondent made a representation. The representation was considered and by an order dated 20.8.2001 the prayer for absorption in the department was rejected on the ground that he cannot be absorbed for want of vacancy and consequent thereof the orders were issued on 29.8.2001 and 3.9.2001 repatriating the present Respondent from his post from 3.9.2001. This order was challenged by filing a petition before the Central Administrative Tribunal. The Central Administrative Tribunal by its order dated 27.3.2001 has quashed the order of repatriation dated 29.8.2001 and directed the Respondents to pass appropriate orders according to law and pay the salary and allowances which is said to be not paid to the present Respondent since 1.8.2001. Further direction was issued that till completion of the above exercise for absorption by the present Petitioners/Respondents the applicant shall hold the post of Principal, NVS which he is holding on the basis of the order dated 23.4.98 passed by the High Court in Civil Rule No. 14/1998. The Petitioners herein were also directed to pass necessary order for absorption of the Respondent/Petitioner on and from the appropriate date in accordance with law. The Petitioners herein were also directed to pass necessary order for absorption of the Respondent/Petitioner on and from the appropriate date in accordance with law. This order was passed on the basis that the reasons given for non-absorption of the Respondent/Petitioner in the post for non availability of post was found to be nonexistent. The Tribunal has held that the order of non-absorbing the applicant has been issued taking into account the factors which were irrelevant and extraneous and in derogation of the policy of absorption. The Tribunal has reached to the conclusion that the department has no right in saying that the posts were not available for absorption of the Petitioner, on the fact of the admitted fact that the authority themselves had advertised 40 vacancies for appointment on deputation basis by Employment News dated 13.10.2001, accordance with the provision of law applicable to the employees of Navodaya Vidyalaya. 2. The Navodaya Vidyalaya Samiti has framed Rules in exercise of the powers conferred under Rule 24 of the Rules of Navodaya Vidyalaya Samiti, the Executive Committee of the Samiti for regulating the method of recruitment to all the posts in Navodaya Vidyalaya Samiti. These Rules are called Navodaya Vidyalaya Samiti Recruitment (Revised) Rules, 1995. Under Sub-rule (III) of Rule 2 of the Rules, 1995, it is provided as under: 2(iii) Persons who have joined on deputation to various posts in the Samiti one year before the date of notification of these Rules, shall be given one opportunity of consideration for permanent absorption in their respective post after notification of these Rules, against direct recruitment vacancies unless otherwise specified in the Schedule hereto. Such of the deputationists who are not recommended for absorption shall continue in the same capacity till completion of their deputation period subject to administrative exigencies. Thereafter any deputationist seeking permanent employment in the Samiti will have to apply for direct recruitment as per prescribed rules. Any person appointed for deputation one year before the date of notification dated 22.6.95 can be considered for absorption against the direct recruitment vacancies. Thereafter any deputationist seeking permanent employment in the Samiti will have to apply for direct recruitment as per prescribed rules. Any person appointed for deputation one year before the date of notification dated 22.6.95 can be considered for absorption against the direct recruitment vacancies. Person who has not fallen within the category had to apply for direct recruitment, that is to say, the person who is on deputation and does not fall within the category of Sub-rule (iii) of Rule 2 of the Rules, 1995 cannot be absorbed in the post which he is holding on deputation and he has to make an application for direct recruitment to the post. It appears, while passing an order directing the Petitioners to consider the case of the Respondent the Tribunal took note of the notification dated 21.6.2001, which is a notification issued by the Chairman, NVS, whereby the Sub-rule (iii) of Rule 2 has been amended and the amendment reads as under: Persons working on deputation for atleast 02 years on a post in the Samiti may be considered for permanent absorption. Relying on this Rule, the Tribunal was of the view that since the applicant/Respondent was holding the post on deputation for more than 02 years under the amended Rule, he was entitled to be absorbed permanently in the post which he is holding. 3. The learned Counsel for the Petitioner has pointed out that the notification dated 21.6.2001 cannot be said to be the amended of the Rules unless and until the amended Rule is rectified by the Executive Committee or unless there is anything placed on record showing that the Executive Committee has delegated its power to the Chairman, NVS to amend the Rules in this regard. The learned Counsel has brought to our notice Rule 24 of the Rules under which the Executive Committee was given powers to frame regulations, not inconsistent with the Rules, for the administration and management of the affairs of the Society. The learned Counsel has brought to our notice Rule 24 of the Rules under which the Executive Committee was given powers to frame regulations, not inconsistent with the Rules, for the administration and management of the affairs of the Society. Sub-rule (d) of Rule 24 authorises the Executive Committee to create posts and lay down procedure for selection and appointment of the officers and staff of the Society, the schools and the other institutions managed by the Society, subject to the conditions as may be prescribed by the Government of India from time to time, provided that prior consent of the Government of India would be necessary, if the maximum of scale of pay of the post exceeds Rs. 1600 per month. Thus the creation of posts and procedure for selection and appointment of the officers and staff of the Society it to be guided by the Rules framed by the Executive Committee. 4. The Executive Committee, under Rule 20 of the Rules, consists the following members: 1. Minister of Human Resource Development-Chairman 2. Vice-Chairman of the Society 3. Director of the Society 4. Representative of the Ministry of Human Resource Development 5. Representative of the Ministry of Finance in the Society 6. Director, National Council of Educational Research and Training 7. Director, National Institute of Educational Planning and Administration 8. Chairman, Central Board of Secondary Education 9. Commissioner, Kendriya Vidyalaya Sangathan 10-11. Two educationalists who are members of the Society 12. Joint Director (Academic) 13. Joint Director (Admn.) and ex-officio Secretary of the Society The Executive Committee consists of 13 members and by no stretch of imagination it can be said that the Chairman of the Society can exercise powers of creating post and lay down procedure for selection and appointment replacing the Executive Committee. Rule 24(i)(d) lays down the procedure for selection and appointment of the Officers and staff of the Society, which has to be made by the Executive Committee and not by the Chairman. The Chairman having no authority could not have issued notification amending the Rules whereby the persons having 02 years of service in the post on deputation can be considered for permanent absorption. Till the notification issued on 21.6.2001 is rectified by the Executive Committee, it has no force of law and the absorption in the service of the Samiti shall be governed by the Recruitment Rules, 1995 as it stands un-amended. Till the notification issued on 21.6.2001 is rectified by the Executive Committee, it has no force of law and the absorption in the service of the Samiti shall be governed by the Recruitment Rules, 1995 as it stands un-amended. It is clear from the Sub-rule (iii) of Rule 2 of the Rules, 1995 that the absorption can only be made of the officers who was holding the post for one year on deputation before the date of notification. The date of notification being 22.6.95 and the applicant/Respondent not being the person falling under the category of eligible person cannot claim absorption in the post of Principal, there being the legal impediment on the absorption of the Petitioner in the post of Principal, which he is holding on account of his appointment in the post on deputation. 5. The submission of the learned Counsel for the Respondent that the question of legal impediment having been raised for the first time before this Court during the course of argument he had no opportunity to place materials on record before this Court or before the Tribunal indicating that the Executive Committee has delegated its power to the Chairman to amend the Rules or the fact that the Executive Committee has rectified the amendment of the Rules made by the Chairman of the Samiti and, therefore, the Petitioners should not be permitted to raise this question. It is clear from the record that the notification dated 21.6.2001 (the amended notification) was produced before the Tribunal by the applicant and Thus it was for him to place relevant records before the court, proving that the notification dated 21.6.2001 making him eligible for absorption has been issued by the authority competent to do so or subsequent acts by competent authority giving validity to the amendments. The counsel for the Petitioners is perfectly within his right to contend before this Court that the notification dated 21.6.2001 has not been issued by an authority having jurisdiction to amend the Rules and therefore, cannot be used as source of power for appointment by absorption. The counsel for the Petitioners is perfectly within his right to contend before this Court that the notification dated 21.6.2001 has not been issued by an authority having jurisdiction to amend the Rules and therefore, cannot be used as source of power for appointment by absorption. The learned Counsel for the Petitioners has placed before this Court a subsequent notification dated 26.7.2001 wherein it has been made clear that the Chairman of the Samiti has approved the amendment of the Recruitment Rules for appointment of the Principal in the NVS subject to notification dated 21.6.2001 cannot be given legal effect nor the applicant/Respondent could be considered for absorption in the post he is holding on deputation being the Principal serving for 02 years. Absorption shall be governed by sub-rule (iii) of Rule 2 of the Rules, 1995. The applicant/Respondent having not been qualified for absorption under the relevant Rules, no direction can be issued for absorption of the applicant/Respondent only on the ground that the posts are available to fill up on deputation. The learned Member of the Tribunal has failed to take note of the fact that there is a difference between the post to be filled in on deputation and the post being filled in by absorption. Once the service of the person is absorbed, he become the permanent member of the service whereas when the appointment is made on deputation, he remains the member of the service in the parent department and does not become the member of the service where he is holding the post on deputation. Availability of the post to be filled in by deputation cannot be held to be availability of the post for absorption, there should be clear vacancy available in the department whereas the post on deputation can be filled in on temporary vacancies or as stop gap arrangement to meet the immediate and urgent need of the department concerned. 6. For the aforesaid reasons, we hold that the applicant/Respondent cannot be considered for absorption in the post of Principal, Navodaya Vidyalaya. The writ petition is allowed. The order dated 27.3.2001 passed by the Central Administrative Tribunal, Guwahati Bench in O.A. No. 354/2001 is hereby set aside. 7. 6. For the aforesaid reasons, we hold that the applicant/Respondent cannot be considered for absorption in the post of Principal, Navodaya Vidyalaya. The writ petition is allowed. The order dated 27.3.2001 passed by the Central Administrative Tribunal, Guwahati Bench in O.A. No. 354/2001 is hereby set aside. 7. However, it is seen by us that by virtue of the stay order granted by this Court in C.R. No. 14/98 the Respondent has continued to be in service as Principal, Navodaya Vidyalaya and as such he would be entitled for salaries for the period he has served in the post of Principal. The Petitioners are duty bound to pay the salaries to the Respondent/applicant for the service rendered by him. The salary shall be paid by the authority within a period of there months from today. Petition allowed.