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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
RAJANI DUBEY, J.
Mohite Gajanan Madhav, S/o. Madhav Mohite - Petitioner
Versus
The Union of India, through Secretary, Ministry of Home Affairs and Ors. - Respondents
WPS No. 3930 Of 2015
Decided On : 29-01-2024
Article 226 - Challenging action of respondent authorities - BSF Combatised Para-Medical Staff Recruitment Rules, 2013 - 9.9.2014 order - 30.1.2015 orders - Absorption of HC (NA) - Repatriation order - Representation pending
Fact of the Case:
The petitioner challenges the respondent authorities' action of not considering his candidature for absorption as Head Constable (Nursing Assistant) and the order repatriating him to his parent department. He had given willingness and irrevocable option for absorption but was not considered, and his representation is pending.
Finding of the Court:
The court found that the petitioner's case for absorption was duly considered, but due to unsatisfactory performance and professional knowledge, he was not absorbed and repatriated to his parent department. The court dismissed the petition as the petitioner did not have a legal right to claim absorption through writ jurisdiction.
Issues: The main issue was the petitioner's challenge against not being considered for absorption and the repatriation order. The court also considered the maintainability of the petition before dismissing it.
Ratio Decidendi: The court held that the petitioner's representation did not create a right to claim absorption through writ jurisdiction. It also emphasized that a deputationist does not have a legally enforceable right to continue on the deputed post.
Final Decision: The petition was dismissed as the court found it without substance, and the petitioner was not entitled to claim absorption through writ jurisdiction.
ORDER :
By way of this petition under Article 226 of the Constitution of India, the petitioner is challenging the action of the respondent authorities whereby his candidature for absorption on the post of Head Constable (Nursing Assistant) has not even been considered despite his giving willingness and irrevocable option for his absorption and is also challenging the order dated 30.1.2015 (Annexure P/5) repatriating the petitioner to his parent department.
2. Brief facts of the case, as narrated in the petition, are that the petitioner was appointed on the post of Constable in Border Security Force (BSF) and vide order dated 11.10.2011 (Annexure P/1) he was appointed on deputation by respondent No.3 on the post of Head Constable (Nursing Assistant) {in short “HC (NA)”} at the hospital of 45 Battalion, BSF, Mulla Camp, Bhanupratappur, Distt. Kanker. For filling up the post of HC (NA) from amongst the HC/Constables by deputation/absorption in light of Standard Operating Procedure dated 15.09.2010 (Annexure P/3), respondent No.3 issued an order on 9.9.2014 (Annexure P/2) and sought willingness and irrevocable option from the HC (NA) who are working on deputation and willing to be permanently absorbed on the post of HC (NA).
The petitioner was having requisite qualification and was working as HC (NA) on deputation since 2011, hence he submitted his willingness and irrevocable option for being permanently absorbed on the said post. However, when the absorption order dated 30.1.2015 (Annexure P/4) was issued by respondent No.3, the petitioner’s name was not there and thereafter, another order was issued by respondent No.3 on the same day i.e. 30.1.2015 whereby the petitioner was repatriated to his parent cadre as Constable (GD) vide Annexure P/5. The petitioner submitted a representation against non-consideration of his candidature for absorption on 3.2.2015 (Annexure P/6) before respondent No.2 which is still pending. Hence this petition for the following reliefs:
10.2 This Hon’ble Court may kindly be pleased to issue a direction to the respondent’s authorities absorb the service of the petitioner in the post of Head Constable (Nursing Assistant).
10.3 That, this Honourable Court may kindly be pleased to quash the repatriation order dated 30/01/15 (Annexure P/5).
10.4 That, this Honourable court may kindly be pleased to direct the respondent no.2 to decide the representation (Annexure P/6) pending before him.
10.5 Any other relief or reliefs that may be deemed fit and proper in the facts and circumstances of the case may also be kindly granted.”
3. Learned counsel for the petitioner submits that though the petitioner has given his willingness and irrevocable option as per requirement of the respondents for permanent absorption on the post of HC (NA), but his candidature was not considered which appears from the list Appendix A attached to the absorption order dated 30.1.2015, which is a list of candidates who gave their willingness and irrevocable option for permanent absorption whereas the other candidates were absorbed on the said post. The petitioner has a good experience over the post of HC (NA) which was served by him on deputation and has a good performance without any adverse remark, even then he was not absorbed on the said post which is per se illegal and arbitrary. The committee did not even consider the case of the petitioner for the reason best known to it, for his absorption on the post of HC (NA) and the impugned order dated 30.1.2015 was passed repatriating him to his parent department, which is wholly illegal. The petitioner has made a representation against the same on 3.2.2015 (Annexure P/6) to respondent No.2 which is still pending. Hence the impugned order is liable to be set aside and the respondent N
A deputationist does not have a legally enforceable right to claim absorption through writ jurisdiction.
Refusal to grant NOC - Period of Deputation - Petitioners did not fulfill the eligibility condition for absorption and petitioners had no right to claim absorption.
Deputationists lack inherent rights to absorption in borrowing departments unless supported by statutory provisions, necessitating consent from both parent and borrowing entities.
Deputationists do not possess an inherent right to claim permanent absorption in the borrowing department without statutory backing or appropriate NOCs.
Deputationists do not have any inherent right of being considered for absorption in the borrowing department. The consent of both the departments for the same is a condition precedent.
A government employee on deputation does not have an absolute right to choose when to move to another department, and the refusal of the parent department to issue a No Objection Certificate (NOC) fo....
Legitimate expectation for absorption in CBI based on NOC from the parent department and commendable service in CBI justified the court's decision to set aside the Tribunal's order and direct the pet....
Absorption cannot be claimed as a matter of right unless based upon statutory Rule, Regulation, or Order having the force of law. The discretion to accept or reject a request for absorption lies with....
Deputationists do not have an inherent right to absorption unless supported by statutory rules; abolition of posts negates claims for absorption.
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