JUDGMENT V.B. Bansal, J.
(1) In this writ petition under Article 226 of the Constitution of India the petitions have made the following prayers:- (a) Declare that the purported/impugned decision of the respondents I & 2 to absorb the respondent No. 3 as Chief Superintendent (Training) Rs. 5100-5700 on permanent basis to be illegal and void, and issue an appropriate writ order or direction quashing the same; (b) issue a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the respondents 1 and 2 to take prompt steps as in accordance with the relevant provisions of the Power Engineers Training Society (Recruitment) Rules, 1980 as applicable/adopted by N.P.T.I. for filling the post of Chief Superintendent (Training) Rs. 5100-5700 by promotion from amongst the eligible incumbents; (e) issue rule in terms of prayers (a) and (b) above and make the same absolute after Notice to the respondents; (d) issue any other appropriate writ, order or direction as this Hon'ble Court may. deem fit in the circumstances of the case.
(2) Briefly stated, the facts leading to the filing of this writ petition are as under:-
(3) The petitioner No. 1 is an Association registered under the Societies Registration Act with the main object to work for the welfare and rights of the officers working in National Power Training Institute (hereinafter referred to as NPTI). The petitioner No's.2 to 4 are Directors (Technical/Faculty) working at the Training Institute at Badarpur, New Delhi, who arc in the Group 'A' post carrying the pay scale of Rs. 3,700-5,000. The Regional Power Training Institute is functioning directly under N.T.P.I.
(4) In the year 1980 Power Engineers Training Society was established by the Government of India to function as a National apex body for meeting the training needs of the power sector in the country. However, all the assets and liabilities of the Power Engineers Training Society, including all its personnel with their then existing terms and conditions and rules of service were transferred to N.P.T.I. vide notification dated 1.4.1993. In this way they all have become the employees of the N.P.T.I. The main objects of N.P.T.I. have been to function as a National Organisation for training in the field of operation and maintenance of power stations and all other aspects of electrical energy system, including transmission, sub-transmission and distribution; to act as an apex body for initiating and coordinating training programme in the power sector in the country; and establish a training institute for engineers, operators, technicians and other personnel of the power sector and to identify and assess the training needs of the power sector in the country.
(5) The N.P.T.I. is a 'State' within the meaning of Article 12 of the Constitution of India and, thus, amenable to the writ jurisdiction of this Court. Its affairs are managed, administered and regulated by the Governing Council which comprises all important functionaries of the Government of India.
(6) There are Power Engineers Training Society (Conditions of Service) Rules, 1988, governing the appointment and other conditions of service of the employees. There is a schedule attached to these rules and serial No. (2) deals with the appointment of Head, Power Training Resources Unit/Chief Superintendent (Training), which is a Group 'A' post, carrying the pay-scale of Rs. 5,100-5,700 and it is a selection post. Column 10 deals with the method of recruitment whether by direct recruitment or promotion or by deputation and it has been provided that the recruitment is by promotion, failing which by deputation/transfer, failing both by direction recruitment (including short term contract). Column 11 relates to "In case of recruitment by promotion/deputation, grade from which promotion/deputation to be made" and the following entry exists: "By Promotion/deputation: Engineering officer of the level of Director or equivalent with 3 (three) years service in the grade rendered after appointment thereto on a regular basis with a total of 15 years experience including 10 years experience in design, construction, erection, operation and maintenance of power generation stations, transmission system and training. The period of deputation/short-term contract including the period of deputation/contract in another ex-cadre post held immediately preceding this appointment in the same or some other Organization/department of Central Government shall be not exceeding 5 (five) years."
(7) Union of India, respondent No. 1 is the appointing authority for this post. In the year 1988 vacancies existed when eligible officers were not available in the' N.P.T.I. and, so, after following the procedure prescribed under the rules, Shri R. Arunchalam, Manager, Bhel, was appointed to the post of Chief Superintendent (Training) on deputation basis vide letter dated 9.3.1988. His appointment was for a period of 5 years. In pursuance of this letter the respondent No. 3 joint the N.P.T.I. on 29.4.1988.
(8) The case of the petitioners has been that before the completion of five years deputation of the respondent No. 3, nine officers working as Directors in N.P.T.I. became eligible for promotion to the post of Chief Superintendent (Training), which is held by the respondent No. 3 on deputation and the petitioners No. 2 to 4 are out of the aforesaid nine officers who have, thus, a right to be considered for promotion to the post being held by respondent No. 3. It has also been pleaded that respondents 1 & 2 with a view to circumvent the relevant service rules have manipulated the permanent absorption of respondent No. 3 to the prejudice of the petitioners. It has also been claimed that no steps whatsoever have been taken by the respondents to screen the probable promotees or to hold the D.P.C. to fill up this post in accordance with the rules with a view to absorb the respondent No. 3 on the post in contravention of the rules and regulations, which is not permissible and, thus, this writ petition.
(9) The writ petition has been contested by the respondents. A counter in reply to the show cause notice has been filed by the respondents 1 & 2 wherein it has been pleaded that the Power Engineers Training Society was established on 1.1.1980 as an autonomous body under the Department of Power which has four regional institutes, including the one at Badarpur and that a new Society under the name of N.P.T.I. was established in which all the assets and liabilities of the erstwhile Power Engineers Training Society have vested. It is also claimed that in the year 1987-88 four vacancies of Chief Superintendent (Training)/Head, Training Resources Unit, had fallen vacant, which were advertised for their filling up by deputation/direct recruitment method and by following the procedure one post was filled up by direct recruitment while three posts were filled up by deputation for a period of five years and Shri R. Arunachalam, respondent No. 3, was one of the officers taken on deputation. It has also been pleaded that two deputationists have already left the Organisation and one resulting vacancy has already been filled up by promotion on 25.6.93 while the other vacancy has become available on 1.5.93 for which steps are being taken to fill up by promotion. It has also been claimed that before the expiry of the five years deputation period of the respondent No. 3, which started on 29.4.1988 steps were taken for his permanent absorption in this post, as per the existing rules and the competent authority in the Government of India has already approved the permanent absorption of the respondent No. 3.
(10) It has also been pleaded that on account of the stay order dated 21.5.1993 granted by this Court the final order regarding the permanent absorption of respondent No. 3 could not be issued. A prayer, has, therefore, been made that the writ petition may be dismissed.
(11) Respondent No. 3 has filed a separate counter affidavit. It has also been claimed that the respondent No. 3 was being absorbed in terms of the service rules which could not be challenged by the petitioners. It has also been claimed that earlier also there has been permanent absorption of deputationists in several cases at various level of posts and it is not for the first time that respondent was being permanently absorbed after joining the respondent No. 2 on deputation. He has given the names of 18 officers who have been absorbed on different posts. It has further been pleaded that Column 11 of Serial No. 2 of the Schedule to the Rules would be applicable only when there is a vacancy declared and that since he was hold ing the post and had given his willingness for permanent absorption in August 1992, i.e. much before the expiry of his tenure, hence, there was no vacancy. It has also been pleaded that respondent No. I had the authority to reduce or extend the period of deputation and have agreed to consider the permanent absorption of respondent No. 3 which has since been approved by the appropriate authority. A prayer has, thus, been made that the writ petition may be dismissed.
(12) Learned Counsel for the petitioner has submitted that under the rules for appointment to the post of Chief Superintendent (Training), a post held by respondent No. 3, the method of recruitment is by promotion and it is.only if eligible officers are not available for promotion that recourse could be had to take persons on deputation/transfer and failing both by direct recruitment, including short term contract. He has further submitted that the maximum period for which an officer could be taken on deputation is five years and it is not permissible for the respondents to continue to have the respondent No. 3 on the same post beyond the permissible period of five years. He has further submitted that initially officers were not eligible for promotion but now eligible officers are available and, so, there could possibly be neither justification nor any requirement for the respondents to permanently absorb the respondent No. 3, thereby reducing the chances of promotion of the petitions and other eligible officers. In any case the steps taken by the respondents 1 & 2 for permanent absorption of respondent No. 3 have not been finalised during the period of deputation and now he cannot be permanently absorbed. An error has, therefore, been made that the writ petition may be allowed and the respondents may be restrained from permanently absorbing the respondent No. 3.
(13) Learned Counsel for the respondents have on the other hand submitted that the Power Engineers Training Society (Recruitment) Rules, 1988 have made clear provision for appointment by promotion, failing which by deputation/ transfer and, thus, it cannot be said that the respondents 1 & 2 were acting beyond their power in taking steps to confirm the respondent No. 3, who was earlier taken on deputation from B.H.E.L. It has further been submitted that steps were initiated for his confirmation well in advance and the consent of the parent department of the respondent No. 3 was obtained on 8.1.1993. It has also been submitted that the proposal for permanent absorption of respondent No. 3 was approved by the Minister-in-Charge on 29.3.1993, i.e. one month prior to the expiry of the deputation period and the matter was sent to the Appointments Committee of the Cabinet, wherefrom, on approval of the matter, letter dated 23.6.93 was written, conveying the approval of the aforesaid Appointments Committee of the Cabinet. It has further been submitted that merely on account of procedural delay it cannot be said that the respondent No. 3 could not be confirmed. It has, therefore, been submitted that there is no substance in the writ petition and a prayer is made that the writ petition may be dismissed.
(14) There is no dispute with regard to the existence of the Recruitment Rules 1988 which govern the appointment of the officers on different posts, including the post of Head, Training Resources Unit/Chief Superintendent (Training), p=09 the post which is held by the respondent No. 3. It is also an admitted fact that officers of National Power Training Institute were not eligible for appointment to the post of the Chief Superintendent (Training) when the respondent No. 3 was appointed on deputation. The first question for consideration is as to whether the respondent No. 3, who was initially taken on deputation, could be permanently absorbed by the respondent No. 2, of course, with the approval of the appropriate authorities, or not. There can possibly be not much of a difference between 'deputation' and 'transfer' and when deputationist is permanently absorbed he is under the rules appointed on transfer. I find support for this view from the case K. Madhavan and Another v. Union of India and Others .
(15) The main grievance of the petitioners appears to be that the respondent No. 3 is being permanently absorbed after the expiry of the permissible period of deputation, which is not possible and any such steps would be in contravention of the recruitment rules. It is also the case of the petitiones that since the petitioners 2 to 4 and others are now eligible for being appointed to the post held by the respondent No. 3, there could possibly be no question of respondent No. 3 being appointed on that post so as to affect the chances of promotion of the petitioners. The rule which merely affects the chances of promotion cannot be regarded as varying the conditions of service. A right for promotion is a condition of service but mere chance of promotion is not. Reference in this regard can be made to .the case Ramchandra Shankar Deodhar and Others v. The State of Maharashtra and Others and Mohammad Shujat Ali and Others v. Union of india & Others .
(16) Learned Counsel for respondents 1 &. 2 has produced the file for perusal and it has been noticed that in response to a letter dated 16.12.1992 of the Government of India consent was received from the parent department of the respondent No. 3, i.e. B.H.E.L., vide letter dated 8.1.1993 that there is no objection to the permanent absorption of the respondent No. 3 by the respondent No. 2. A proposal for the permanent absorption of the respondent No. 3 was approved by the Minister-in-Charge on 29.3.1993 and the matter was referred to the Appointments Committee of the Cabinet. Merely because more time was taken for the approval by the Appointments Committee of the Cabinet would not mean that the whole process would be reduced to non-entity, thereby not enabling the respondent No. 2 to permanently absorb the respondent No. 3, who, otherwise, was found to be competent and suitable for the post on which he was taken on deputation. The question about the eligible officers of the department for promotion could be considered if the post had actually fallen vacant on repatriation of respondent No. 3. However, in the instant case the respondent No. 3 continued to hold the post and the process of his permanent absorption was initiated much prior to the expiry of the period of deputation. In these circumstances, I am clearly of the view that no defect can be found in respondents 1 & 2 deciding to permanently absorb the respondent No. 3. It is not disputed that other persons who were taken on deputation were repatriated and the eligible officers of the department were considered and promotion was given. Learned Counsel for the respondents has submitted that on other posts which are likely to fall vacant the appointments would be made from amongst the eligible officers of the respondent No. 2. Considering all these facts, I am clearly of the view that there is no force in the writ petition and, thus, has to be dismissed. In view of the aforesaid discussion, I hold that there is no substance in the writ petition and the same is dismissed with costs.