P. K. BHASIN, J. ( 1 ) BY way of this writ petition under Article 226 of the constitution of India, the petitioner has challenged the correctness of the judgment dated 5th January, 2004 passed by the Central Administrative Tribunal, Principal bench, New Delhi (for short the 'tribunal') in OA No. 3131/2003 whereby his claim for absorption as a Legal Assistant in the Department of Law, Justice and legislative Affairs of the Government of NCT of Delhi w. e. f. 6. 10. 98 when he joined there on deputation has been rejected. ( 2 ) THE brief facts of the case as per the case set up by the petitioner are as follows: (a) The petitioner joined as Grade IV employee in the Delhi Administration subordinate Services (DASS) on 18th December, 1965 and he claims to have worked as Legal Assistant (Grade II DASS) in the year 1982-83 while he was in Grade. (b) He was appointed in Delhi Financial Corporation on deputation to the post of Legal Assistant in July, 1986 and worked there as such for more than two years. (c) On 6th October, 1998 he joined as Legal Assistant in the Law and justice Department (hereinafter referred to as the 'department') of the Delhi Government on deputation basis. The pay scale for that post which was Group C non-gazetted post was Rs. 5500-9000 (revised ). It was to be filled up from amongst officers of Grade II of DASS possessing Degree in law and three years experience in legal work in a Government Department or from officers holding analogous posts in Central/state Governments and Union Territories. The initial period of deputation was one year but the same was extended from time-to-time. (d) In April, 2002, the petitioner made a representation to the Government for being absorbed in the Department on the post of Legal assistant with effect from 6th October, 1998 when he had been appointed in the Department on deputation. (e) It was recommended by the General Administration Department of the Delhi Government to absorb him as Legal Assistant retrospectively from 6th October, 1998. While recommending the case of absorption of the petitioner retrospectively with effect from 6th october, 1998 the General Administration Department also issued a circular dated 2nd August, 2002 inviting objections, if any, from the officials working as Grade-II DASS against the proposed absorption of the petitioner as Legal Assistant with retrospective effect. While recommending the case of absorption of the petitioner retrospectively with effect from 6th october, 1998 the General Administration Department also issued a circular dated 2nd August, 2002 inviting objections, if any, from the officials working as Grade-II DASS against the proposed absorption of the petitioner as Legal Assistant with retrospective effect. It was stated in that circular that if no objection is received by 10th August, 2002, it would be presumed that none of the officials of Govt. of NCT of Delhi had any objection in absorbing sh. N. K. Tyagi as Legal Assistant with retrospective effect from 6th October, 1998. No official raised any objection to that proposal. However, the Lt. Governor of Delhi passed an order on 12. 11. 2002 for the absorption of the petitioner w. e. f. 15. 11. 2002. (f) Before the absorption of the petitioner in the Department, one vacancy for the post of Assistant Legal Advisor (Group B Gazetted) in the pay scale of Rs. 6500-10,500/- arose in the said department and the Government proposed to fill it up by transfer on deputation basis by its circular dated 23rd April, 2002. Options were invited from officers holding analogous posts under Central/ state Government possessing Degree in Law and having adequate experience of legislative and/or advice work in Law Departments and also from officers of Delhi Judicial Service with four years of service. (g) The petitioner made a representation for being promoted to the said post of Assistant Legal Advisor because of his having worked as a legal Assistant in that department since 6th October, 1998. As per the relevant rules for the said post, the first mode of appointment to that post is by promotion and in case there is no candidate available then only the same could be filled by way of transfer on deputation. The petitioner's case was, however, not considered for the post of assistant Legal Advisor by the respondents. (h) Thereafter one post of Under Secretary (Law) in the Law Department of Government of NCT of Delhi in the pay scale of Rs. 6500- 10,500/- fell vacant and the Government issued a circular dated 20th June, 2003 proposing to fill it up on deputation. (h) Thereafter one post of Under Secretary (Law) in the Law Department of Government of NCT of Delhi in the pay scale of Rs. 6500- 10,500/- fell vacant and the Government issued a circular dated 20th June, 2003 proposing to fill it up on deputation. As per the said circular, the officers of the Central Government/judicial Services of the Statement Government/union Territories holding analogous posts on regular basis or with three years' regular service in the posts in the scale of Rs. 5500-9000 or with eight years' regular service in the scale of 4500-7000 or equivalent and having a degree in law from a recognized University and two years experience in legislative and/or advice work in Law Department or two years' practice as an Advocate were eligible to be considered for appointment to the said post on deputation basis. The petitioner claims to have applied for the said post also, claiming that he was of Grade ii DASS with effect from July, 1997 but his application was not considered since according to him, the benefit of his services as legal Assistant with effect from 6th October, 1998 in the Law department was not given to him. (i) Since the petitioner was wrongly denied the absorption in the department as a Legal Assistant with effect from 6th October, 1998 when he joined there on deputation basis he had filed an OA before the Central Administrative Tribunal, Principal Bench, New Delhi (being OA No. 3131/2003 ). He had challenged the respondents' decision in not considering his case for promotion as an Assistant legal Advisor and he had also claimed that his service as Legal assistant should be considered as regular service from 6. 10. 98. ( 3 ) ACCORDING to the respondents the post of Assistant Legal Advisor could be filled up by way of promotion only from amongst those departmental candidates who had rendered three years' regular service as a Legal Assistant in the department of Law and Justice which the petitioner had not done. It was also the case of the respondents that since there was no one available for promotion as a departmental candidate the said post was sought to be filled up on deputation basis and as far as the petitioner is concerned he could not be considered for that post on deputation basis because he was not holding an analogous post. It was also the case of the respondents that since there was no one available for promotion as a departmental candidate the said post was sought to be filled up on deputation basis and as far as the petitioner is concerned he could not be considered for that post on deputation basis because he was not holding an analogous post. ( 4 ) THE Tribunal rejected the O. A. of the petitioner on the ground that his regular appointment in the Law Department was only from 12th December, 2002 and so his period of service from 6th October, 1998 as a deputationist cannot be considered as regular service in the Law Department. ( 5 ) FEELING aggrieved this writ petition has been filed by the petitioner wherein he has prayed for quashing the said order dated 5th January, 2004 of the Tribunal and also for directions to the respondents to treat him as a regular appointee on the post of Legal Assistant with effect from 6th October, 1998 as had been recommended by the General Administration department and for giving him all consequential benefits in view of their circular dated 2nd August, 2002 and also to consider his case for appointment on the post of Assistant Legal Advisor taking into account the services rendered by him on the post of Legal Assistant with effect from 6th October, 1998. ( 6 ) THIS writ petition has been resisted by the respondents on the ground that the petitioner cannot get any benefit of the period of his service in the Department on deputation basis and he can be considered to be in regular service in the said department only from 15th November, 2002 when he was absorbed in the department and if his period of service on deputation was not to be considered he could not be said to be eligible either for the post of Assistant Legal Advisor or that of Under Secretary (Law) on the dates when he had applied for the same. ( 7 ) THE learned Counsel for the petitioner Mr. ( 7 ) THE learned Counsel for the petitioner Mr. Yatish Mohan submitted as follows: (a) If the period of his service as a Legal Assistant in the Department from 6th October, 1998, when he joined the said department on deputation had been considered, he would have been eligible to be promoted to the posts of Assistant Legal Advisor as well as Under secretary (Law) while similar benefit was given to others. (b) The petitioner made a representation on 4th August, 2003 alleging that his service as Legal Assistant had not been counted with effect from 6th October, 1998 and consequently he was not being considered for promotion as Assistant Legal Advisor while in case of one p. S. Pannar his service as Legal Assistant from his initial appointment was counted, ( 8 ) THE learned Counsel for the respondent Mr. Kamal Deep submitted as follows: (a) The period of service of the petitioner in the Department on deputation basis cannot be considered to be 'regular service' in the said department and, therefore, the period of his service on deputation basis from 6th October, 1998 to 14th November, 2002 could not be taken into consideration for his promotion. (b) Learned Counsel for the respondents has also relied upon the following instructions of the Government regarding seniority of deputationists who are absorbed in the borrowing departments (taken from Swamy's Manual and annexed to the counter affidavit as Annexure 'a'): "seniority of Absorbees 3. 4. 1 In the case of a person who is initially taken on deputation and absorbed later (. e. , where the relevant Recruitment Rules provide for 'deputation/absorption'), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation. (or) the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is earlier. (or) the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is earlier. " ( 9 ) THE principal question in this petition is whether the petitioner had a right to be absorbed in the Department with effect from 6th October, 1998 and whether the petitioner's service on deputation basis in the Department from 6th October, 1998 till 14th December, 2002 could be taken into consideration for the purposes of eligibility criteria for higher posts of Assistant Legal Advisor and Under secretary (Law) in that Department. As far as the claim of a deputationist for his absorption in the borrowing department is concerned the Hon'ble Supreme Court in Kunal Nanda v. UOI, V (2000) SLT 148= (2000) 5 SCC 362 , had held that a deputationist can claim absorption in the Department where he is working on deputation if there is any statutory rule or regulation or order having the force of law. The relevant paragraph of the aforesaid judgment reads as follows: " (6) It is well settled that unless the claim of the deputation for 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. " ( 10 ) IN the present case it is undisputed that there was a recommendation of general Administration Department of Delhi Government to absorb the petitioner with effect from 6th October, 1998. As noticed already, a Circular dated 2nd august, 2002 was also issued with the approval of the Chief Secretary proposing to absorb the petitioner retrospectively with effect from 6th October, 1998. This shows that the relevant Rules provided for absorption of deputationists and also that the petitioner was eligible for regular appointment to the post of Legal assistant in October, 1998 itself when he was taken on deputation basis in the department. The said Circular dated 2. 8. 2002 would also clearly fall within the scope of the order having force of law as laid down in Kunal Nanda's case. This department has admittedly been absorbing the deputationists. ( 11 ) DURING the course of hearing it was pointed out before this Court on 1st march, 2005 by the learned Counsel for the petitioner that one deputationist Mr. 2002 would also clearly fall within the scope of the order having force of law as laid down in Kunal Nanda's case. This department has admittedly been absorbing the deputationists. ( 11 ) DURING the course of hearing it was pointed out before this Court on 1st march, 2005 by the learned Counsel for the petitioner that one deputationist Mr. P. S. Parmar was absorbed retrospectively and to substantiate this plea a copy of one document purporting to be a Corrigendum issued by the General Administration department (GAD) on 15th April, 1999 regarding the date of absorption of Mr. P. S. Parmar as Legal Assistant in the Department was also placed on record. This document shows that one Mr. P. S. Parmar who had joined the Department on deputation was absorbed retrospectively. Consequently, this Court had asked the respondents vide order dated 1st March, 2005 to explain as to how the respondents could discriminate against the petitioner. Accordingly an affidavit of Shri J. G. Nanda, Deputy Secretary, GAD was filed wherein it was stated that Mr. P. S. Parmar had joined as Legal Assistant on deputation in the Department on 22nd march, 1983 for a period of one year which was subsequently extended upto 21st march, 1985 and he was absorbed w. e. f. 22nd March, 1985. It was submitted on behalf of the respondents that Mr. P. S. Parmar was also not absorbed from the date of his joining the Law Department on deputation and so the petitioner cannot allege any sort of discrimination. ( 12 ) THE office order (Corrigendum) dated 15th April, 1999 of GAD in respect of Shri P. S. Parmar reads like this: "no. F. 17 (16)/96-GAD/ govt. OF N. C. T. OF DELHI (GENERAL ADMINISTRATION DEPARTMENT) 5, Sham Nath Marg, Delhi-54. Dated the 15. 4. 99 corrigendum in partial modification to this department earlier order No. 17 (16)/96- gad/5577-84 dated 29. 10. 96 regarding the absorption of Sh. P. S. Parmar to the post of Legal Asstt. on deputation basis in Law, Justice and l. A. Department, Govt. of NCT of Delhi, the date of absorption may be read as w. e. f. 22. 3. 85 instead of with immediate effect. This issues with the prior approval of Pr. Secy. (GAD ). 96 regarding the absorption of Sh. P. S. Parmar to the post of Legal Asstt. on deputation basis in Law, Justice and l. A. Department, Govt. of NCT of Delhi, the date of absorption may be read as w. e. f. 22. 3. 85 instead of with immediate effect. This issues with the prior approval of Pr. Secy. (GAD ). Sd/- (V. S. RAWAT) deputy SECRTARY (ADMN.)" From this document and the additional affidavit of Shri J. G. Nanda it becomes clear that Sh. P. S. Parmar had joined the Law and Justice Department on deputation with effect from 22nd March, 1983 and that deputation was extended from time-to-time and finally on 29th October, 1996 he was absorbed with effect from 22nd March, 1985. He was thus given the benefit of retrospective absorption. According to the respondents, case of Sh. P. S. Parmar is not similar to that of the petitioner. However, it has not been explained as to how this is so. As noted already, the GAD had itself made a proposal for the retrospective absorption of the petitioner with effect from 6th October, 1998. This shows that retrospective absorption of deputationists was also permissible. The non-implementation of the proposal in respect of the petitioner has not been explained to us. Therefore, when the respondents gave benefit of retrospective absorption to one similarly placed official, namely Mr. P. S. Parmar, the denial of the similar relief to the petitioner in the absence of any explanation or rule to the contrary has to be held to be unjustified and arbitrary. The petitioner definitely has been discriminated against. If there is a policy of retrospective absorption of deputationists, that policy has to be applied equally in the case of similarly placed deputationists and that decision cannot be left to the whims and fancy of the concerned authority. A pick and choose application of the policy cannot be permitted. For this view we are fortified by a decision of the Hon'ble Supreme Court in Rameshwar Prasad v. Managing director, U. P. Rajkiya Nirman Nigam Ltd. and Ors. , VIII (1999) SLT 303= (1999) 8 SCC 381 in which it was held that the power of absorption even though is a discretionary but it is coupled with the duty not to act arbitrarily or at the whim or caprice of any individual. , VIII (1999) SLT 303= (1999) 8 SCC 381 in which it was held that the power of absorption even though is a discretionary but it is coupled with the duty not to act arbitrarily or at the whim or caprice of any individual. ( 13 ) FROM the impugned order of the Tribunal we find that nothing has been said therein regarding the claim of the petitioner for his absorption with effect from 6th October, 1998 although there is a reference to the plea taken in that behalf by the petitioner in his O. A. The Tribunal has not said anything as to why the petitioner's claim for his absorption with effect from 6th October, 1998 was unjustified. Further, the Tribunal has failed to appreciate that the respondents have no justification for not adhering to their Circular dated 2nd August, 2002 which was issued with the approval of the Chief Secretary proposing to absorb the services of the petitioner with effect from 6th October, 1998. ( 14 ) A perusal of the impugned order of the Tribunal dated 5th January, 2004 in O. A. No. 3131/2003 shows that the order is devoid of any worthwhile reasoning. The relevant paragraphs of the order in response to the pleas of both the Counsel are as follows: "we have carefully considered the said submissions. The initial order, by virtue of which the applicant was taken on deputation, clearly states in an unambiguous terms that he was taken on deputation rather than appointment was made on regular basis. Otherwise also, as per the Recruitment rules, the Lt. Governor, Delhi is the appointing authority. The order appointing the applicant on deputation is passed by the Pr. Secretary (GAD) and not by the appointing authority. Therefore, the said order cannot confer on the applicant the status of regular appointment. He was appointed only on 12. 12. 2002 and from that date, he can only count the necessary years as regular appointment. 4. Taking stock of these facts, the pleas raised by the applicant must be held to be devoid of any merit. OA must fail and is dismissed in limine. " ( 15 ) WE do not consider this view of the Tribunal to be sustainable at all. 4. Taking stock of these facts, the pleas raised by the applicant must be held to be devoid of any merit. OA must fail and is dismissed in limine. " ( 15 ) WE do not consider this view of the Tribunal to be sustainable at all. It was not even the case of the Government that the petitioner's appointment on deputation in the Law and Justice Department was not proper because of having been ordered by the Principal Secretary (GAD ). Therefore, the impugned order of the tribunal is liable to be set aside and the petitioner deserves to be given the relief of absorption in the Department from the date of his initial appointment therein on deputation. ( 16 ) CONSEQUENTLY, we allow this writ petition and set aside the order dated 5th january 2004 passed by the Central Administrative Tribunal, Principal Bench, new Delhi in O. A. No. 3131/2003. It is directed that the respondents would treat the petitioner absorbed in the Department with effect from 6th October, 1998 and give consequential benefits to the petitioner with effect from that date within eight weeks from today and not later than 7th December, 2006. Writ Petition allowed.