A deputationist has no automatic right to be absorbed in the deputation department unless based on statutory rules.

JUDGMENT :

S. Muralidhar, J.

1. The Petitioner, who joined the Border Security Force ("BSF") as a Constable through direct recruitment on 24th April, 1991, was selected for deputation with the Intelligence Bureau ("IB") (Respondent No. 3) as Security Assistant with effect from 11th October, 2010. Aggrieved by the order dated 2nd November, 2016 by which his parent department, the BSF (Respondent No. 2), declined to grant concurrence to the continuation of his deputation with the IB, the Petitioner has approached this Court with present writ petition.

2. The Petitioner also challenges the consequent order dated 23rd December, 2016 issued by the IB repatriating him to his parent department on account of BSF declining to grant a No Objection Certificate ("NOC") for his absorption in the IB.

3. Along with the writ petition, the Petitioner filed CM No. 780/2017 seeking the stay of his repatriation to his parent department. When the writ petition and the application for stay came up for hearing on 10th January, 2017 this Court passed the following order:

"Issue notice. Mr. R. Mishra, Advocate appearing on behalf of the respondents accepts the notice. Counter-affidavit be filed within six weeks. Rejoinder thereto be filed within two weeks thereafter.

Prima-facie, the petitioner has no vested right to absorption in the Department in which he has been posted on deputation. The petitioner is prima-facie not entitled to the interim orders prayed for. However, considering that both the children of the petitioner are appearing in board examinations and the Class XII Board Examinations end on 17th April, 2017, we direct that the petitioner shall be allowed to continue in his present post till the Board Examination is over on 17th April, 2017. The petitioner shall positively report back to his parent cadre within 24th April, 2017.

List on 3rd May, 2017.

Dasti."

4. Soon thereafter, the Petitioner filed CM No. 13791/2017 which too came to be disposed of on 18th July, 2017 as having become infructuous since by then the Petitioner had joined the parent department i.e. BSF on repatriation. This Court, however, clarified that the disposal of that application would not affect the final outcome of the writ petition.

5. At the hearing on 16th October, 2017 the Court called for the files of both the IB and the BSF with reference to a letter dated 9th February, 2016 written by the IB to the BSF seeking concurrence for the absorption of six personnel, five of whom were Head Constables and one was the present Petitioner who was a Constable. On 22nd April, 2019 CM No. 780/2017 was dismissed after noting that the Petitioner had been working in the parent department since his repatriation.

6. The case of the Petitioner is that he was selected on deputation for the IB against 25% quota of posts of Security Assistants which were to be filled up under the relevant Recruitment Rules, 2011 (RR). In terms of the said RRs deputation/absorption was a method of recruitment. The requirements for absorption are laid down in guidelines dated 17th January, 2012 framed by the Ministry of Home Affairs ("MHA"). It is contended that the Petitioner fulfilled the requirements of the RRs as well as the guidelines.

7. Mr. K.C. Mittal, learned counsel for the Petitioner, submitted that the BSF refused the NOC on the ground that the request for absorption was received late from the borrowing department. According to the BSF, the overstay was beyond the five-year period for which the Petitioner was sent on deputation to the IB. Mr. Mittal submitted that the Petitioner was discriminated against, since NOC was granted in the case of overstay by other similarly placed whereas the Petitioner was refused concurrence for absorption.

8. Mr. Mittal submitted that the impugned orders declining concurrence and repatriating the Petitioner to the BSF were arbitrary, illegal and not justified. The Petitioner had continued on deputation till 10th October, 2016. Consequently, there was no question of overstay