Gireesh Kumar, Madhumon M, A. Ramesh and N. Babu v Union of India and others (WP(C) No. 15748 of 2021)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943 WP(C) NO. 15748 OF 2021 ``` ## **`PETITIONER/S:`** - **`1 GIREESH KUMAR AGED 47 YEARS`** - **`S/O PRABHAKARAN PILLAI, CHELAKKAPALLIL HOUSE, MANJOOR SOUTH P.O.KOTTAYAM-686 603. CONSTABLE (GD0 IN BORDER SECURITY FORCE, ON DEPUTATION IN THE C.B I AS POLICE CONSTABLE, CENTRAL BUREAU OF INVESTIGATION, ANTI CORRUPTION BRANCH, KATHRIKADAVU, COCHIN-682 017.`** - **`2 MADHUMON M, AGED 44 YEARS`** - **`S/O MADHAVAN V, KADAPPAKUZHI PUTHEN VEEDU, VELANTHARA P.O.SASTHAMCOTTA, KOLLAM-690 521. CONSTABLE (GD) BORDER SECURITY FORCE, ON DEPUTATION IN THE CENTRAL BUREAU OF INVESTIGATION AS POLICE CONSTABLE POSTED AT CENTRAL BUREAU OF INVESTIGATION, SPECIAL CRIME BRANCH T.C.1757/5/CBI OCR COMPLEX, MUTTATHARA, VALLAKADAVU P.O.THIRUVANANTHAPURAM-695 008.`** - **`3 A.RAMESH, AGED 45 YEARS`** - **`S/O ANANDPADMANABHAN, KALLUVEERANIVILAI, EATHAMUZHI P.O.KANYAKUMARI DISTRICT, TAMIL NADU-629 501. CONSTABLE (GD) BORDER SECURITY FORCE, ON DEPUTATION IN THE CENTRAL BUREAU OF INVESTITATION AS POLICE CONSTABLE POSTED AT CENTRAL BUREAU OF INVESTIGATION, SPECIAL CRIME BRANCH T.C.1757/5/ CBI OCR COMPLEX, MUTTATHARA, VALLAKADAVU P.O.THIRUVANANTHAPURAM-695 008.`** - **`4 N BABU, AGED 48 YEARS`** - **`S/O P NARAYANA PILLAI, MADATHIL AYIKATHU PUTHEN VEEDU, KAMPONCODE, VAYAKALL P.O.KOLLAM, PIN-691 548. CONSTABLE (GD0 BORDER SECUTIRY FORCE, ON DEPUTION IN THE CENTRAL BUREAU OF INVESTIGATION AS POLICE ONSTABLE POSTED AT CENTRAL BUREAU OF INVESTIGATION, SPECIAL CRIME BRANCH T.C 1757/5, CBI OCR COMPLEX, MUTTATHARA, VALLAKADAVU P.O.THIRUVANANTHAPURAM-695 008.`** ``` BY ADVS. AYYAPPAN SANKAR S.HRIDYA ``` ## **`RESPONDENT/S:`** ``` 1UNION OF INDIA ``` ``` WP(C) NO. 15748 OF 2021 ``` ``` 2 ``` ## **`REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.`** - **`2 DIRECTOR GENERAL BORDER SECURITY FORCE, C.G.O COMPLEX, LODHI ROAD, NEW DELHI-10 001.`** - **`3 CENTRAL BUREAU OF INVESTIGATION HEAD OFFICE, PLOT NO 5-B, 7TH FLOOR, C.G.O COMPLEX, LODHI ROAD, NEW DELHI 110 001.`** - **`4 CENTRAL BUREAU OF INVESTIGATION ADMINISTRATION DIVISION, DELHI SPECIAL POLICE ESTABLISHMENT (CBI), CBI HEAD QUARTERS, PLOT NO 5-B, 7TH FLOOR, C.G.O COMPLEX, LODHI ROAD, NEW DELHI-110 001.`** - **`5 CENTRAL BUREAU OF INVESTIGATION THROUGH SUPERINTENDENT OF POLICE, ANTI CORRUPTION BRANCH, KATHRIKADAVU, COCHIN-682 017.`** - **`6 CENTRAL BUREAU OF INVESTIGATION THROUGH SUPERINTENDENT OF POLICE, SPECIAL CRIME BRANCH T.C.1757/5, CBI OCR COMPLEX, MUTTATHARA, VALLAKADAVU P.O.THIRUVANANTHAPURAM-695 008. BY ADVS.`** ``` SMT.MINI GOPINATH, CGC GOVERNMENT PLEADER MANU S., ASG OF INDIA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 15748 OF 2021 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 17[th] day of March, 2022** Petitioners are Central Armed Police Forces (CAPF) personnel holding the post of Constable (General Duty) in the Border Security Force (BSF) and were deputed to the Central Bureau of Investigation on various dates. The deputation, which was for three years initially, was being extended on a year to year basis. While so, Ext.P3 proceedings for absorption of deputationist Constables was initiated by the CBI and the names of the petitioners were forwarded from their respective units. After assessment by a Screening Committee, the petitioners selected for absorption and their names forwarded to the parent department under Ext.P5. However, the parent department was unable to issue NOC (No Objection Certificate) as the applications for extension of the petitioner’s deputation was pending before the Government. Despite recommendation of borrowing and parent departments for regularizing the period of overstay, the 1[st] respondent issued Ext.P8, refusing to issue NOC to the Constables enlisted in the order and directing repatriation to their parent cadre/ organization with immediate ``` WP(C) NO. 15748 OF 2021 ``` ``` 4 ``` effect. On the other hand regularization of period of overstay was granted to 71 of the personnel selected along with the petitioners and approval / NOC for their permanent absorption in the CBI issued under Ext.P7. In the light of Ext.P8 order, petitioners were repatriated to their parent department. Aggrieved by Ext.P8 and alleging discrimination, the writ petition is filed seeking the following reliefs:- “I)Issue a writ of mandamus commanding the 1[st] respondent to recall order No.1-45020/17/2018-Pres-II dated 12.7.2021 and the consequential Exhibits P8 to P11 Orders issued by Respondents 3 to 6, to the extent it operates as against the petitioners, and to direct Respondents 1 to 4 to re-examine the issue of grant of No Objection Certificate to petitioners for their permanent absorption in CBI, the borrowing institution, as recommended as per Exhibit-P5, applying and adopting the very same considerations and the very same policy as adopted in respect of Exhibit-P7 sanctioning No Objection Certificate to other similarly placed deputationist constables for permanent absorption in C.B.I. ii)Issue a writ of mandamus commanding the respondents to issue copy of Order No.145020/17/2018-Pers-II dated 12.7.2021 issued by 1[st] respondent declining No Objection Certificate to ``` WP(C) NO. 15748 OF 2021 ``` ``` 5 ``` petitioners for their permanent absorption in CBI., forthwith, to the petitioners, so as to enable them to pursue the remedy as provided in clauses 19 and 21 of the Policy Guidelines For Deputation of Combatised CAPF & AR Personnel in other organizations, 2016, and other remedy there against; iii) Issue a Writ of mandamus or any other appropriate writ, order or direction, commanding Respondents 1 and 2 to restore all the service benefits legitimately due to the Petitioners in the parent Organizations / department, including their Scale of pay, seniority, promotions and all other benefits which they have waived and relinquished during the period of their overstay in the borrowing department, solely on account of the inordinate delay on the part of the 1[st] respondent in passing orders on the applications for extension of their deputation period and in the matter of issuance of NOC for their absorption in the borrowing department.” 2.Learned counsel for the petitioner submitted that the petitioners had legitimate expectation of being absorbed in the CBI, since the parent organization and the borrowing department had consented. It is contended that the petitioners having successfully completed the screening process and included in the list of persons eligible for absorption, denial of ``` WP(C) NO. 15748 OF 2021 ``` ``` 6 ``` absorption to the petitioners, while permitting absorption of other similarly placed personnel is arbitrory and illegal. Learned counsel for the petitioner relies on the decision **Rameshwar** **Prasad Vs Managing Director [(1999) 8 SCC 381]** to contend that even if the absorption of deputationists is a policy matter, once the policy for absorption is accepted and rules framed, there must be justifiable reasons for refusing to permit the absorption. 3.Learned ASG referred to the decision of the High Court Delhi in **R. Sugumaram & Others v Union of India & Others** (Judgment dated 23.07.2021 in W.P.(C) No. 6892 of 2021 and connected cases) and submitted that writ petition is filed by identically placed persons, whose request for NOC was rejected under Ext. P8 itself, stand dismissed after elaborate consideration. Reliance is placed on the decision of the Apex Court in **Kunal Nanda v Union of India [(2000) 5 SCC 362** ] to contend that petitioners have no vestige of legal right in view of the basis principle governing deputation that a deputationist can be repatriated to his parent department at any point of time. Clause 18 of Ext.R2(f) Policy Guidelines is relied, to contend ``` WP(C) NO. 15748 OF 2021 ``` ``` 7 ``` that, neither the deputationist or the borrowing department/ organization can demand absorption. Attention is drawn to Clause 19 of R2 (f) to point out the alternative remedy available to the petitioners. 4.Leaned counsel for the petitioner attempted to distinguish the judgment in **R. Sugumaram (supra)** . It is submitted that in **R.Sugumaran (supra)** the question considered was whether the petitioners therein have a right to be considered for absorption, while in the instant case, such question do not arise since the petitioners had proved their eligibility for absorption and the parent, as well as the borrowing department had recommended their absorption. 5.A perusal of judgment of the Delhi High Court in **R. Sugumaram (supra)** reveals that the writ petition were filed by identically placed deputationists and the challenge therein was also against Ext P8 and the selective denial of absorption. The judgment was rendered after elaborate consideration of the relevant and facts relying on the decisions of the Apex Court in **Kunal Nanda Vs. Union of India, [(2005) 5 SCC 362]** and ``` WP(C) NO. 15748 OF 2021 ``` ``` 8 ``` ## **Pawan Kumar Vs. Union of India [(2018) SCC Online Del** **12615].** The Division Bench held that the discretion to accept the request for absorption is vested exclusively with the parent CAPFs or the Cadre Controlling Authority ie; respondent No.1. Every organization should determine the requirement of personnel and thereupon decide whether they want to give NOC, for absorption of their personnel in another organization. Similarly, it is for the borrowing department to decide whether they want to permanently absorb the deputationists working with them or to extend the period of deputation. 6.Herein, statements have been filed by the parent department and the MHA making it clear that, as on date they are not in favour of the petitioners absorption in the CBI. Going by Clause 18 of the Policy Guidelines, requisition made by the borrowing organization / Department or willingness tendered by a person for absorption, will not automatically confer a right on an individual or the borrowing department to claim absorption as a matter of right. As per clause 19 of the Guidelines, any subordinate officer or other rank personnel, aggrieved by the rejection of permanent absorption in an organization outside the ``` WP(C) NO. 15748 OF 2021 ``` ``` 9 ``` force, can prefer a representation to the DG of the concerned force. A committee consisting of three members will consider such representations and make appropriate recommendations to the DG of the concerned CAPF, keeping in view all relevant facts and taking into account the Standard Operating Procedure (SOP), Transfer Rules and any other rules / instructions issued on the subject from time to time. The DG of the concerned CAPF can consider recommendations thus made by the Committee and take a decision. The decision so taken will be conveyed to the official concerned. 7. In view of the efficacious remedy available, I deem it appropriate to relegate the petitioner to the remedy under Clause 19, rather than deciding their writ petition on merits. Learned CGC points out that the 1st petitioner has submitted an application for voluntary retirement. It is for the Committee to consider the impact of such an application. The writ petition is hence disposed of relegating the petitioners to the remedy under Clause 19. If applications under Clause 19 are filed by the petitioners, the Committee shall take ``` WP(C) NO. 15748 OF 2021 ``` ``` 10 ``` a decision thereon, after affording an opportunity of hearing to the petitioners. The petitioners are at liberty to raise all contentions and place relevant citation before the Committee. The decision, as directed above, shall be rendered within two months of submission of the applications. The writ petition is disposed of accordingly. **Sd/V.G ARUN JUDGE** SJ ``` WP(C) NO. 15748 OF 2021 ``` ``` 11 ``` ## **`APPENDIX OF WP(C) 15748/2021`** |**`PETITIONER EXHIBITS`**|| |---|---| |**`Exhibit P1`**|**`TRUE PHOTOCOPY OF THE OFFICE ORDER NO`**| ||**`1561/2013 DATED 13.9.2013 ISSUED FROM THE`**| ||**`OFFICE OF THE 3RD RESPONDENT`**| |**`Exhibit P2`**|**`TRUE PHOTOCOPY OF REQUEST FOR APPROVAL OF`**| ||**`EXTENSION OF DEPUTATION SERVICE OF 2ND`**| ||**`PETITIONER IN C.B I ISSUED FROM THE OFFICE`**| ||**`OF THE 6TH RESPONDENT TO THE 3RD RESPONDENT`**| |**`Exhibit P3`**|**`TRUE PHOTOCOPY OF THE PROCEEDINGS DATED`**| ||**`3.8.2018 AS TO ABSORPTION OF DEPUTATIONIST`**| ||**`CONSTABLES IN C.B I ISSUED FROM THE OFFICE`**| ||**`OF THE 4TH RESPONDENT`**| |**`Exhibit P4`**|**`TRUE PHOTOCOPY OF PROCEEDINGS DATED`**| ||**`23.8.2018 ISSUED FROM THE OFFICE OF THE 4TH`**| ||**`RESPONDENT`**| |**`Exhibit P5`**|**`TRUE PHOTOCOPY OF THE PROCEEDINGS DATED`**| ||**`30.1.2019 ISSUED FROM THE OFFICE OF 4TH`**| ||**`RESPONDENT`**| |**`Exhibit P6`**|**`TRUE PHOTOCOPY OF COMMUNICATION DATED`**| ||**`28.12.2018 ISSUED FROM THE OFFICE OF THE`**| ||**`1ST RESPONDENT TO THE 2ND RESPONDENT`**| |**`Exhibit P7`**|**`TRUE PHOTOCOPY OF THE PROCEEDINGS NO 1-`**| ||**`45020/17/2018-PERS-11 DATED 4.7.2019 ISSUED`**| ||**`FROM THE OFFICE OF 1ST RESPONDENT`**| |**`Exhibit P8`**|**`TRUE PHOTOCOPY OF THE ORDER NO CBI ID NO`**| ||**`DPERS 3/2021/A-40011/1/2017(CT)(MHA)/1250`**| ||**`DATED 13.7.2021 ISSUED BY 4TH RESPONDENT`**| |**`Exhibit P9`**|**`TRUE PHOTOCOPY OF THE COMMUNICATION NO CBI`**| ||**`ID NO DPPERS 3/2021/A-40011/1/2017 9CT0`**| ||**`(MHA0 1251 DATED 13.7.2021 ISSUED BY 4TH`**| ||**`RESPONDENT`**| |**`Exhibit P10`**|**`TRUE PHOTOCOPY OF THE OFFICE ORDER NO`**| ||**`131/2021 DATED 14.7.2021 ISSUED BY 5TH`**| ||**`RESPONDENT`**| |**`Exhibit P11`**|**`TRUE PHOTOCOPY OF THE OFFICE ORDER NO`**| ||**`95/2021 DATED 14.7.2021 ISSUED BY 6TH`**| ||**`RESPONDENT`**| |**`RESPONDENT EXHIBITS`**|| |**`Exhibit R5(a)`**|**`TRUE COPY OF THE COMMON JUDGMENT DATED`**| ||**`23.7.2021 IN WP(C) NO.6892/2021 AND WPC NO.`**| ||**`6395/2021 OF THIS HON’BLE COURT`**| |**`Exhibit R5(b)`**|**`TRUE COPY OF THE GUIDELINES, BY LETTER`**| ||**`NO.I-12022/03/2016-PERS.II DATED 22.11.2016`**| ``` WP(C) NO. 15748 OF 2021 ``` ``` 12 ``` ``` ISSUED BY MINISTRY OF HOME AFFAIRS ``` ``` Exhibit R5(c)TRUE COPY OF ORDER OF DEPUTATION BY OFFICE ORDER NO.1561/2013 DATED 13.7.2013 OF THE 1ST PETITONER ``` ``` Exhibit R5(d)TRUE COPY OF ORDER OF DEPUTATION BY LETTER NO.DPPERS3/2013/723/A-35013/3/2012 DATED 1.03.2013 OF THE 2ND PETITIONER Exhibit R5(e)TRUE COPY OF DEPUTATION BY OFFICE ORDER NO.61/2013 DATED 26.4.2013 OF THE 3RD PETITIONER ``` ``` Exhibit R5(f)TRUE COPY OF DEPUTATION BY LETTER NO.DPPERS/2011/2165 A-35013/3/2011 DATED 05.08.2011 OF THE 4TH PETITIONER Exhibit R5(g)TRUE COPY OF THE ORDER OF MINISTRY DATED 12.7.2021 DECLINING NOCS IN FAVOUR OF PETITONERS AND OTHERS ```