In a writ petition filed before the Delhi High Court to assail an order dated 31-07-2023 whereby the petitioner’s representation was rejected by the Director General (DG), a Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla dismissed the petition, holding that the petitioner’s claim had been defeated by the executive instructions, his own order of deputation, and the legal position of judicial pronouncements.
The petitioner was recruited as an Assistant Sub-Inspector/Radio Mechanic in the Border Security Force (BSF) on 01-02-2012. The BSF Group B Recruitment Rules, 2012, envisaged filling up the post of Sub-Inspector/Junior Engineer on deputation/absorption basis. Deputation/absorption could either be from outside BSF or from within. Deputation was also permissible for serving BSF personnel in the rank of ASI in Pay Band I, possessing a three-year Diploma in Electrical Engineering from a recognized institute, with 6 years of regular service as an ASI in BSF.
On 31-01-2013, the DG, BSF issued a Standard Operating Procedure for absorption of deputationists in BSF. On 18-02-2019, the petitioner was appointed as a Junior Engineer/Sub-Inspector (Electrical) on deputation for a period of three years, with immediate effect. The petitioner’s deputation was extended by one year, till 23-04-2023. After his deputation was over, the petitioner represented to the DG, seeking to be absorbed as an SI/JE in the BSF as per the said SOP.
Without any favourable decision, the petitioner was repatriated to his parent 95th battalion in BSF, along with a movement order directing the petitioner to report to the battalion. This order was challenged by the petitioner by a writ petition before this Court. The BSF informed the Court that a new policy dated 24-11-2016 was in operation and that the petitioner’s case fell under the said policy. Hence, the petitioner withdrew his petition.
Thereafter, another petition was filed by the petitioner seeking absorption as per the said SOP, which was disposed of, directing the respondents to decide the case. By an order dated 31-07-2023, the petitioner’s representation was rejected by the DG, stating that the petitioner had not completed 18 years of service and that his deputation had ended, among other reasons. Aggrieved, the present petition was filed.
The petitioner contended that the stipulation in the MHA letter dated 22/24 November, 2016, requiring 18 years of service as of the date absorption was proposed, exceeded the prescription in the Recruitment Rules. The respondents asserted that the petitioner had subscribed to an undertaking that he would not submit any representation seeking absorption, which is why he could not lay any legitimate claim to absorption.
The Court refused to accept the undertaking and stated that no such undertaking could be thrust upon an employee. It was said that an employee is always open to representing for service benefits, including absorption and promotion. The Court unequivocally disapproved of taking such an undertaking from the petitioner.
Regarding the requirement of 18 years of service, the Court stated that this clause was unenforceable in law as it travelled beyond the prescribed qualification and eligibility for deputation/absorption as contained in the Recruitment Rules. It was stated that executive instructions cannot override stipulations contained in the Rules.
While citing reasons for the failure of the present petition, the Court stated that a deputationist has no right to absorption in the borrowing department and that he can be repatriated at any time, even before the expiry of the period of deputation. It was noted that the petitioner’s appointment order made it clear that he had no right to absorption, and that the decision on whether to absorb a deputationist was vested entirely with the BSF. It was stated that eligibility to a post does not ipso facto entitle the employee to that post.
The Court stated that the SOP mentioned that for a deputationist to be considered for absorption, his deputation period had to be ongoing, whereas the petitioner’s deputation had ended beforehand, because of which he was disentitled to absorption. Hence, the Court held that there was no illegality in the petitioner’s repatriation once the deputation period had ended. It was said that a deputationist who stands legally repatriated to his parent department cannot be considered for absorption in the borrowing department thereafter.
Stating that ‘absent a right, there can be no remedy in law’, the Court dismissed the petition while holding that the petitioner’s claim was defeated by the existing executive instructions, his order of deputation, and the legal position of judicial pronouncements.
Appearances:
For Petitioner – Mr. Abhay Kumar Bhargava, Mr. Satyaarth Sinha, Ms. Shradha Mewati
For Respondents – Mr. Raj Kumar (CGSC), Ms. Vandana Sachdeva, Mr. Ankit Choudhary, Mr. Sumit Choudhary, Mr. Sushant Rana, Ms. Vidushi Sah
