The court emphasized that the denial of NOC based on proforma promotion in the parent department lacked a legal basis and directed the CRPF to reconsider the issuance of NOC.

S. RAVINDRA BHAT, J.

1. The petitioner in these proceedings under Article 226 of the Constitution of India seeks a direction to the second respondent (hereafter referred to as “the CRPF”) to issue a No Objection Certificate (hereafter referred to as “the NOC”) to him to facilitate his absorption within the Intelligence Bureau (IB).

2. The brief facts are that the petitioner was enlisted with the CRPF on 05.04.1991. At the relevant time, he was working with the 126th Batallion of the CRPF. He was selected for deputation with the IB with the approval of the CRPF. He reported to the IB on 28.05.2009. During the currency of his deputation, the petitioner was promoted to the rank of Head Constable/General Duty (hereafter referred to as “HC/GD”) by an order dated 16.10.2009 which was followed up by proforma promotion order dated 01.08.2011. His deputation period – (of 5 years) was to end on 27.05.2014. In the meanwhile, he had sought for permanent absorption in the rank of SA/G, i.e. Constable (GD). The CRPF declined permission for permanent absorption and refused to grant an NOC, and relied upon the instructions of the Department of Personnel and Training (DOPT) dated 17.06.2010. It was inter alia stated by the CRPF that the proforma promotion in the rank of HC/GD meant that the petitioner would not be released for permanent absorption with the IB. In these circumstances, on 14.03.2014, the CRPF wrote to the IB expressing its inability to grant no objection.

3. It is argued by the petitioner that the CRPF’s refusal is arbitrary and not based upon any rationale. Contending that the ground cited, i.e. proforma promotion, learned counsel for the petitioner submits that none of the instructions relied upon by the CRPF stated that the mere grant of promotion can disentitle an individual sent on deputation to the IB to a claim for absorption. It is also argued that the instructions relied upon only pertained to fixation of pay and the period or tenure of deputation; they nowhere spell out any disentitlement once promotion is granted, and that too, on a proforma basis.

4. Learned counsel for the CRPF, during the course of hearing, produced a letter/order declining the issuance of NOC for permanent absorption dated 14.03.2014. The said document narrates that in terms of the DOPT instruction dated 17.06.2010, the deputation tenure is three years and extendable on year to year basis upto the fifth year. The said order goes on to cite as follows:

“06. In this connection, it is to inform that as per provision contained in para 3 of DoPT OM dated 17/6/2010 & OM dated 30/11/2012 a deputationist who has been allowed proforma promotion can be considered for permanent absorption in borrowing department to the post carrying pay scale equivalent to the pay scale to which he has been granted proforma promotion in parent department. Further, once proforma promotion is allowed, individual cannot make request to forgo promotion subsequently. In view of above, further action in respect of personnel mentioned at para 05 above may also be initiated as per discussion during the meeting on 11/3/2014 and therafter case for permanent absorption may be forwarded to this Dte.”

5. Learned counsel also submitted that the petitioner never expressly opted out of his entitlement to promotion to the rank of HC/GD. It was, therefore, submitted that once the petitioner failed to report to duty and continued with the tenure of deputation, he became entitled to the appropriate posting in the promotional post, after repatriation. Such being the case, he would have been posted as HC/GD. Learned counsel highlighted that there is no provision to enable such a promoted employee (who is posted to the promotional post after his repatriation), the facility of an NOC, for absorption in the lower post. It is argued that it is evident from the above narrative that the petitioner was initially sent on deputation to the IB, from the CRPF, in accordance with the prevailing norms