Kunal Nanda Vs. Union of India & ANR
[2000] INSC 242 (24 April 2000)
S.S.Ahamad, Doraiswami Raju
Raju, J.
Special leave granted.
The appellant, who lost before the Tribunal
as well as the High Court, has come up before this Court challenging the
judgment of the High Court declining to interfere with the order dated 16.4.99
of the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A.
No.241 of 1999 which, in turn, repelled a challenge to the repatriation of the
appellant to his parent department. The appellant, a member of CRPF and serving
as an Assistant Sub-Inspector in the said parent department w.e.f. 1.1.87,
joined the service of CBI on deputation in the same capacity as ASI on 1.8.91.
He continued to work as ASI on the deputation terms for the initial period,
which came to be extended from time to time with the mutual consent of the
lending and borrowing department. In the year 1994, no doubt, the borrowing
department expressed an inclination for permanent absorption in the CBI and
sought for the concurrence of the CRPF to which, it appears, the lending
department also conveyed its clearance.
It may be noticed at this stage that while on
such deputation in the CBI, the appellant was also appointed as Sub-Inspector
on 1.6.95 and in his parent department also he was promoted as such. There are
no specific statutory rules as such governing the question of absorption of a
deputationist. On the other hand, the said subject is governed by departmental
instructions and circular orders as per which the qualification and experience
of the Officers to be selected should be comparable to those prescribed for
direct recruits to such posts where direct recruitment has also been prescribed
as one of the methods of the appointment in the Recruitment Rules. In
consonance with such procedure, the appellant was asked to undertake a written
test. He made a formal application disclosing his credentials and on the basis
of his performance in the written test, the record relating to last five years
A.C.Rs. (Part-I - Personal Data) for the period 1993-94 to 1997/98 in which the
appellant mentioned about his basic educational qualification as B.A. and his
performance in the interview, the Screening Committee constituted for the
purpose recommended the absorption of the appellant in the CBI as
Sub-Inspector. But when the appellant was asked to produce the documents in
original in support of his educational qualifications etc., the appellant
started explaining that for a person of his standing in service the basic educational
qualification of passing Senior Secondary Examination is enough and passing of
degree examination, may not be insisted upon. This was not only contrary to his
earlier representation that he was a graduate but the Screening Committees
recommendation for absorption in CBI was also on the basis that the appellant
was a graduate, as disclosed by him. This seems to have been taken also as
proof of his doubtful integrity in furnishing wrong information about his
educational qualification to be graduation to some how gain absorption. Since,
in terms of the relevant rules the total period of deputation in the rank of
ASI/SI including that of deputation in any other cadre/cadre post cannot be for
more than five years, the appellant was repatriated to his parent department
and also relieved with effect from 31.1.99. (A.N.) with a direction to report
for duty to the parent department. Apprehending the same, the appellant moved
the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A. No.241
of 99.
The Tribunal by its order dated 16.4.99,
rejected the claim of the appellant holding that he had no vested right to
absorption, that he was not totally an indispensable person in CBI and that he
being not a graduate cannot be absorbed, under the relevant rules. The
grievance of alleged differential treatment has also been found to be not
substantiated - in that the absorption erroneously made of N.N. Mishra (a
mistaken reference to N.P. Mishra) is sought to be undone by already initiating
action in that direction and that the case of N.P.Pandey - a departmental
officer has to be treated as regular promotion and not to be treated as a
deputationist. It was ultimately held for those reasons that the CBI cannot be
compelled to absorb the appellant, and consequently the order of repatriation
dated 29.1.99 did not call for any interference. Not satisfied the appellant
moved the Delhi High Court by means of Writ Petition (Civil) No.2533 of 1999
and a Division Bench of the High Court, by an order dated 26.7.99 rejected the
same observing that there are no merits in the petition and find no grounds to
interfere with the order of the Tribunal under challenge. Relentless, the
appellant has approached this court.
Heard the learned counsel for the appellant
and Shri R.N. Trivedi, learned Additional Solicitor General. The least said
about the conduct of the appellant is better for him. The appellant,
indisputably, is only a deputationist so far as CBI is concerned and his parent
department is only CRPF and his substantive position and appointment is only in
that department and ordinarily a deputation, as per governing rules, cannot
last for a period more than five years. The frivolous claim that a person like
him need not be a graduate for absorption and appointment in CBI, apart, the
appellant appears to have rendered himself unreliable by making, to put it in
most mild terms, an incorrect representation of his basic educational
qualification to be a graduate while factually it is not so, and this one
ground, strongly urged is enough to non-suit him. This itself will be
sufficient to dis-entitle him to even continue in the CBI any longer. The
Screening Committee which appears to have initially recommended for absorption
also seem to have proceeded on the basis of the erroneous representation of the
appellant of his basic educational qualification and the copy of the
proceedings made available disclose this serious lapse and consequently no
advantage can be claimed on the basis of the recommendation, made on a mistaken
view of the facts more so, when such mistake was the making of the appellant
himself. This assertion of the respondent- CBI Department was specific and
reiterated in unmistakable terms from the beginning before the Tribunal (vide
para 4 (h) and 5 of the reply) and thereafter before the High Court in the
counter filed (vide para 3 (e) and finally before this Court also (vide para 5
(c) of the counter filed on behalf of the respondent). Throughout, the response
of the appellant to those assertions at various stages was evasive and nebulous
and neither direct nor specific in refutation of facts in particular. Being an
appeal under Act 136 of the Constitution of India, this Court will be justified
in even rejecting this appeal, on this ground alone.
On the legal submissions made also there are
no merits whatsoever. 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 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. The reference to the decision reported in Rameshwar Prasad vs M.D.,
U.P. Rajkiya Nirman Nigam Ltd. and Others [1999 (8) SCC 381] is inappropriate
since, the consideration therein was in the light of statutory rules for
absorption and the scope of those rules. The claim that he need not be a
graduate for absorption and being a service candidate, on completing service of
10 years he is exempt from the requirement of possessing a degree need mention,
only to be rejected. The stand of the respondent department that the absorption
of a deputationist being one against the direct quota, the possession of basic
educational qualification prescribed for direct recruitment i.e., a degree is a
must and essential and that there could no comparison of the claim of such a
person with one to be dealt with on promotion of a candidate who is already in
service in that department is well merited and deserves to be sustained and we
see no infirmity whatsoever in the said claim.
For all the reasons stated above, we see no
merit in this appeal which shall stand dismissed. No costs.
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