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2015 DIGILAW 1250 (GAU)

Ujjal Bhuyan v. Union of India

2015-09-29

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. 1. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 21.10.2013 and further seeks a direction to the respondents to issue no objection certificate (NOC) in favour of the petitioner enabling his absorption in National Highway Authority of India (NHAI). 2. Petitioner had joined Border Roads Organization (BRO), which is also known as General Reserve Engineering Force (GREF) as an Assistant Executive Engineer (Civil) in the year 1995. In the course of his service, he was promoted to the post of Executive Engineer (Civil) in the year 2003. 3. An advertisement was issued by the NHAI, which was published in the Employment News in its issue dated 9th to 15th January 2010, inviting applications from Officers under the Central/State Government departments/Autonomous bodies/Public Sector undertakings for appointment on deputation basis to the post of Deputy General Manager (Technical). Number of vacancies notified was 86. 4. Since the offer was found to be lucrative and would be a step in the career progression of the petitioner and as he fulfilled the eligibility conditions, he responded to the said advertisement and appeared in the selection. Petitioner was found suitable and offered appointment by the NHAI. He was relieved by his parent department, i.e., BRO, on 19.07.2010. Thereafter, office order dated 13.09.2010 was issued by the NHAI appointing the petitioner as Deputy General Manager (Technical) on deputation basis, w.e.f. 20.07.2010 initially for a period of 3 (three) years or until further orders, whichever was earlier. 5. NHAI issued circular dated 18.04.2013 inviting applications from officers in the rank of Deputy General Manager (Technical), who were currently on deputation in NHAI and who were willing to get absorbed as per the eligibility criteria mentioned. It was stated that NOC from the parent department and its verification may be submitted later on. 6. In response to the above circular, petitioner submitted application expressing his willingness for absorption in the NHAI in the post of Deputy General Manager (Technical). 7. However, NHAI was informed by the office of the Directorate General, BRO that there was a ban on forwarding of application for proceeding on outside employment/permanent absorption/inter-department transfer in the organization. Therefore, NHAI authority was requested not to consider the application of the petitioner, who was on deputation with NHAI, for his permanent absorption. 8. 7. However, NHAI was informed by the office of the Directorate General, BRO that there was a ban on forwarding of application for proceeding on outside employment/permanent absorption/inter-department transfer in the organization. Therefore, NHAI authority was requested not to consider the application of the petitioner, who was on deputation with NHAI, for his permanent absorption. 8. Citing various reasons including better career prospects and personal difficulties, petitioner vide his letter dated 14.06.2013, requested the Directorate General, BRO, to issue NOC for his absorption in the NHAI in the post of Deputy General Manager (Technical). In the meanwhile, petitioner was informed by the NHAI vide letter dated 30.07.2013 that on the basis of the recommendation and approval of the competent authority he was appointed in NHAI on absorption basis to the post of Deputy General Manager (Technical). Petitioner was informed that absorption in NHAI was subject to submission of verification of various documents including consent of the cadre controlling authority in the parent department though this condition may be dispensed with in case of resignation/voluntary retirement accepted by the parent department. 9. Petitioner, thereafter, wrote to the BRO authorities tendering his technical resignation and requesting issuance of NOC and Vigilance Clearance to enable his absorption in NHAI. He further requested that his post in BRO be kept retained as lien for a period of 2 (two) years. 10. BRO authorities informed the petitioner vide impugned letter dated 21.10.2013 that the request of the petitioner for accepting his technical resignation and to relieve him from BRO with NOC for absorption in NHAI was not accepted by the competent authority. 11. Thereafter, Chief Engineer (Civil), BRO, requested the NHAI authorities for repatriation of the petitioner. It appears that at that stage the petitioner moved the National Commission for Scheduled Castes with the complaint that he belonged to the Scheduled Caste (SC) category and that BRO authority was acting in a manner detrimental to the interest of an SC officer. The National Commission for Scheduled Castes informed the Secretary, Border Road Development Board that the matter of repatriation of the petitioner may be kept in abeyance till finalisation of the case of the petitioner by the Commission. 12. By office order dated 11.12.2013, issued by the NHAI, petitioner was repatriated to his parent department, i.e., BRO with immediate effect. The National Commission for Scheduled Castes informed the Secretary, Border Road Development Board that the matter of repatriation of the petitioner may be kept in abeyance till finalisation of the case of the petitioner by the Commission. 12. By office order dated 11.12.2013, issued by the NHAI, petitioner was repatriated to his parent department, i.e., BRO with immediate effect. It was stated that offer of appointment dated 30.07.2013 given to the petitioner for absorption in the post of Deputy General Manager (Technical) stood cancelled. This was followed by subsequent order dated 16.12.2013, relieving the petitioner from the services of NHAI to enable him to join his parent department, i.e., BRO. 13. Petitioner approached the Central Administrative Tribunal (CAT), Guwahati Bench, assailing the order of repatriation dated 11.12.2013 and the relieving order dated 16.12.2013 by filing Original Application (OA) No. 393 of 2013. Initially an interim order was passed by the CAT keeping in abeyance the aforesaid 2 (two) orders. 14. In the meanwhile, National Commission for Scheduled Castes took the view that injustice was caused to the petitioner and accordingly, BRO was directed to issue NOC to the petitioner for his permanent absorption in NHAI. Thereafter, the National Commission for Scheduled Castes issued further direction on 10.03.2014, directing BRO to relieve the petitioner to enable him to join NHAI. 15. CAT vide its order dated 03.09.2014 allowed the Original Application and set aside the orders dated 11.12.2013 and 16.12.2013. It was clarified that offer of appointment on absorption dated 30.07.2013 stood restored. 16. Thereafter, a number of representations were filed by the petitioner for issuance of NOC to enable his absorption in NHAI. 17. Alleging that no decision was taken thereon in spite of intervention by the National Commission for Scheduled Castes and the order of the CAT, present writ petition has been filed, seeking the reliefs as indicated above. 18. Petitioner has filed an additional affidavit disclosing that the sanctioned strength of Executive Engineer (Civil) in the BRO is 194 and as on 01.01.2014, out of 194, 192 posts were filled up. Therefore, contention of BRO that there was deficiency of engineers in the rank of Executive Engineer (Civil) for which petitioner could not be relieved for absorption in NHAI, was not correct. Therefore, contention of BRO that there was deficiency of engineers in the rank of Executive Engineer (Civil) for which petitioner could not be relieved for absorption in NHAI, was not correct. Even, as on 01.01.2015, against the sanctioned strength of 194, 189 posts were filled up by Executive Engineer (Civil) personnel, the deficiency being just 5, which is quite normal in any cadre. Therefore, petitioner would contend that firstly, there is no deficiency of Executive Engineer (Civil) in BRO and consequently, absorption of petitioner in NHAI is a step in career advancement and monetary gain for the petitioner which should be allowed. 19. A common affidavit has been filed on behalf of respondent Nos. 1, 2, 3 and 4. Stand taken in the affidavit is that petitioner was sent on deputation to NHAI for a period of 3 (three) years, which period was over. On expiry of the deputation period, petitioner was required to be reverted back to the parent department. There is no departmental policy in BRO, which allows automatic absorption of a deputationist in the borrowing department. It is contended that permanent absorption of the petitioner is not feasible owing to departmental policies. As a matter of fact, there is a complete ban on forwarding of applications for permanent absorption. Petitioner has been employed by the BRO and his service is of paramount importance to the organization. Therefore, repatriation of the petitioner on completion of the deputation period is vital. Technical resignation would come into effect only when BRO gives approval for permanent absorption. In such circumstance, issuance of NOC is not possible. Petitioner had also submitted an undertaking dated 24.05.2010 before proceeding on deputation that he would revert back to the parent department after completion of the approved deputation period. 20. Petitioner has also filed rejoinder affidavit contending that action of the BRO in preventing him from getting absorption in NHAI has become oppressive besides being arbitrary and unreasonable. Therefore, mandamus may be issued to the BRO to issue NOC to the petitioner for his absorption in NHAI. 21. Heard Mr. D. Bora, learned counsel for the petitioner and Mr. S.C. Keyal, learned Assistant Solicitor General for BRO. Also heard Mr. C. Baruah, learned counsel and Captain Pradip Kumar, learned counsel for NHAI. 22. Therefore, mandamus may be issued to the BRO to issue NOC to the petitioner for his absorption in NHAI. 21. Heard Mr. D. Bora, learned counsel for the petitioner and Mr. S.C. Keyal, learned Assistant Solicitor General for BRO. Also heard Mr. C. Baruah, learned counsel and Captain Pradip Kumar, learned counsel for NHAI. 22. Learned counsel for the petitioner has elaborately taken the Court to the various documents on record and submits that there is no justification at all in not issuing NOC to the petitioner for his permanent absorption in NHAI. In his parent organization, he was serving in the rank of Executive Engineer (Civil) and there is a real possibility of his service stagnation in BRO. The post of Deputy General Manager (Technical) in the NHAI, to which he was sent on deputation, is a higher post, both in status and in monetary terms. Therefore, petitioner has a right to career advancement and the BRO authorities cannot put up one obstacle after the other to deny the petitioner the benefit of such career advancement with monetary benefit. After referring to various orders passed by the National Commission for Scheduled Castes and CAT, learned counsel submits that there is, in fact, malice in law affecting the decision making process of the respondents. He has also referred to some decisions of the Delhi High Court in support of his contention that in similar circumstances, relief was granted to the officers of BRO going on deputation to other organisations. 23. Opposing the submissions made by learned counsel for the petitioner, both Mr. Keyal, learned Assistant Solicitor General and Captain Pradip Kumar, learned counsel for NHAI, have strenuously argued that petitioner has no right to claim permanent absorption in NHAI. He being an officer of the BRO is bound by the terms and conditions of service under the BRO. He was sent on deputation to the NHAI for a specified period and for a specific purpose, i.e. to acquire more knowledge and skill which can be utilised by the parent department. After the deputation period is over, petitioner has got no right to remain in the borrowing department and claim absorption. Therefore, the claim of the petitioner is devoid of any merit and the writ petition should accordingly be dismissed. 24. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 25. After the deputation period is over, petitioner has got no right to remain in the borrowing department and claim absorption. Therefore, the claim of the petitioner is devoid of any merit and the writ petition should accordingly be dismissed. 24. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 25. Shorn of details, basic case of the petitioner is claim of permanent absorption in NHAI for which NOC of the parent department, i.e., BRO is required. His request for NOC has been turned down Hence, mandamus is sought for directing issuance of NOC by the BRO. 26. Law relating to repatriation of a deputationist has, by now, been settled by a catena of decisions of the Hon'ble Supreme Court. In Kunal Nanda vs. Union of India & Another, (2000) 5 SCC 362 , the Apex Court held that it is well settled that unless the claim of the deputationist 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. The Supreme Court further held that 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 which he had gone on deputation. 27. In Mahesh Kumar K Parmar vs. SIG of Police, (2002) 9 SCC 485 , the Hon'ble Supreme Court held in the facts of that case that, question of issuing mandamus for permanent absorption of deputationists in the department in which they were on deputation, does not arise because such deputationists have no enforceable right of permanent absorption in the department in which they are on deputation. 28. Following the above decisions of the Hon'ble Supreme Court, this Court in Nabab Ali Sheikh vs. State of Assam, 2014 (1) GLT 406, has held that while the process of sending an employee on deputation is consensual, there is no requirement of such consensus in the case of repatriation. 28. Following the above decisions of the Hon'ble Supreme Court, this Court in Nabab Ali Sheikh vs. State of Assam, 2014 (1) GLT 406, has held that while the process of sending an employee on deputation is consensual, there is no requirement of such consensus in the case of repatriation. The deputationist indisputably has no legal right to continue on deputation and he also has no right to claim absorption in the post to which he is deputed. 29. Having noticed the legal position as above, the relevant facts relating to the claim of the petitioner may now be adverted to. 30. In the advertisement of the NHAI, it was specifically mentioned that appointment to the post of Deputy General Manager (Technical) would be on deputation basis. Accordingly, petitioner was recruited to the said post on deputation basis. The order dated 13.09.2010 is very specific. As per the said order competent authority of NHAI had appointed the petitioner as Deputy General Manager (Technical) on deputation basis w.e.f. 20.07.2010 for a period of 3 (three) years or until further orders, whichever was earlier. When NHAI invited applications from officers in the rank of Deputy General Manager (Technical) on deputation to NHAI for permanent absorption, it was clarified that NOC from the parent department would be required but the same could be submitted later on. Though petitioner was selected by NHAI for permanent absorption, NOC has not been issued by the parent department, i.e., BRO, citing ban on outside permanent absorption and also for other administrative reasons. NHAI, thereafter, clarified it to the petitioner that his permanent absorption in NHAI would be subject to consent of the parent department, i.e., BRO, which condition can be dispensed with in the event of his resignation or voluntary retirement being accepted by the parent department. By the impugned order dated 21.10.2013, the parent department, i.e., BRO has rejected the prayer of the petitioner for issuance of NOC to enable his permanent absorption in NHAI. In the meanwhile, the deputation period of 3 (three) years of the petitioner had expired on 19.07.2013. At the time of going on deputation, petitioner had given an undertaking to his parent department that over stay on deputation beyond the sanctioned period would be treated as dies non. Further petitioner had given a certificate dated 24.05.2010 that after his deputation period was over he would revert back to the parent department. At the time of going on deputation, petitioner had given an undertaking to his parent department that over stay on deputation beyond the sanctioned period would be treated as dies non. Further petitioner had given a certificate dated 24.05.2010 that after his deputation period was over he would revert back to the parent department. As has been held by the Apex Court, petitioner has no indefeasible right to continue his deputation beyond the period of deputation and he cannot claim absorption in the post on deputation as a matter of right. Once the deputation period is over, at the instance of either of the departments, he can be repatriated back to the parent department. It is not necessary for the Court to examine the adequacy or justification of such decision for repatriation. 31. In the light of the above, no mandamus can be issued to direct the BRO to issue NOC to the petitioner for his permanent absorption in the post of Deputy General Manager (Technical) in NHAI. 32. There is no merit in the writ petition, which is accordingly dismissed. 33. No costs.