Bashishtha Rai vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 843 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule DB. With the consent of parties, the writ petition is taken up for final hearing.

2. The present writ petition by the petitioner arises from the dismissal on 15th April, 2005 by the CAT Delhi of the O.A. No. 2270/2004 filed by him which O.A. challenged the order dated 16th January, 2003 passed by the Central Water Commission (CWC)/respondent No. 1, rejecting the petitioner's prayer for a third deputation to the Bihar State Hydro Electric Power Corporation (B.S.H.E.P.C.). The following impugned order was passed in the CAT on 16th January, 2003 by respondent No. 1:

ANNEXURE P-8

No. 3/1/2002-Estt.III/95

Government of India

Ministry of Water Resources

Central Water Commission

New Delhi, the 16th January, 2003

OFFICE MEMORANDUM

Shri Bashishtha Rai, AD is informed that his application for the post of Executive Engineer (Civil) in Bihar State Hydro Electric Power Corporation Ltd. is proposed to be forwarded only if they were ready to take him on immediate absorption basis. He should communicate his willingness or otherwise to the above to the undersigned within 7 days from the date of issue of this Office Memorandum.

Sd/-

(J.S.S. SASTRY)

UNDER SECRETARY (E.I)

Shri Bashishtha Raim

Assistant Director (NandBC), Kalindi Bhawan,

CWC, New Delhi

3. Para 8 of Chapter 49 of Swamy's Administration and Establishment Manual dealing with Deputation (Duty) Allowance has provided that 'the period of deputation/foreign service shall be subject to a maximum for a period of 3 years in all cases except for those posts where a longer period of tenure is prescribed in the recruitment rules. But the Administrative Ministry/borrowing organisation may grant extension beyond this limit up to one year, after obtaining orders of their Secretary/equivalent level officer in other cases where such extension is considered necessary in public interest'. If further provided that 'the borrowing Ministries/Departments/Organisations may extend the period of deputation for the 5th year or for the second year in excess of the period prescribed in the recruitment rules wherein too, sub conditions which have also been laid down'. Para 9 has provided that 'normally, when an employee was appointed on deputation/foreign service, his services are placed at the disposal of the parent Ministry/Department at the end of the tenure. However, as and when a situation arises for premature reversion to the parent cadre of the deputation, his services could be so returned after giving advance intimation of reasonable period to the lending Ministry/Department and the employee concerned'. Para 10 on the other hand 'deals with relaxation of conditions'. It says that any relaxation of these terms and conditions require the prior concurrence of Department of Personnel and Training. FR 110 (b) on the other hand has provided as under:

(b) Transfer to foreign service outside India and in India maybe sanctioned by the Central Government subject to any restrictions, which it may deem fit to impose by general or special order.

4. The rules as such have provided, a normal spell for a maximum period of 3 years on deputation, but the period of temporary deputation has to be regulated by the recruitment rules of the borrowing department and the initial period of 3 years is extendable by a period of 2 years. The Government has power to impose instructions, which may deem fit on transfer to a foreign service. It can be done by issue of a general or special order. The CWC had framed its own guidelines for sending its officers to BSHEPC to work on deputation and fixed the maximum period in which an officer could work on deputation in a foreign department as 10 years. None of the employees can claim an indefeasible right to proceed on deputation, therefore, it is doubtful that the rejection of the request of the employee to proceed on deputation to a foreign department is justifiable in law or it could be legally enforceable by the Tribunal or this Court under Article 226 of the Constitution.

5. The respondents have pleaded that they have framed guide-lines way back in 1987 prescribing 10 years as maximum period of deputation for its officers, the applicant has denied that any such guidelines existed and if there are such guidelines, it is stated that they are unfair, arbitrary and discriminatory. The petitioner has also admitted that he has already worked in BSHEPC for more than 10 years in two different spells 'first from 3.5.1985 to 1.5.1990 and second spell of deputation was without his consent. This argument is manifestly untenable since he could not have been forced to proceed on deputation. There can be no deputation without the consent of the person so deputed. The petitioner accepted his posting on deputation basis in BSHEPC and he also worked for over 5 years before he was repatriated to his parent office' CWC.

6. It is not in dispute that out of the total tenure of 22 years the petitioner had worked for more than 10 years on deputation with the Bihar State Hydro Electric Power Corporation. The petitioner's counsel had conceded before the Tribunal that he does not have a legally enforceable right to compel the CWC, his parent employer to allow him to proceed on deputation. In the light of this concession, the petitioner's insistence on seeking the deputation merely on the ground that a circular was issued to him about the impending vacancy in CWC cannot be permitted. The learned Counsel for the petitioner Mr. Jai Bansal has further raised a plea that his second deputation to the B.S.H.E.P.C. was involuntary and without his consent. Nothing has however been brought on record by the petitioner to show that the petitioner registered any protest about his enforced second deputation. Thus this plea also cannot be accepted.

7. The Tribunal recorded the following findings:

(a) The Guidelines of CWC, the petitioner's employer, provide a maximum period which an officer could stay on deputation as 10 years.

(b) The petitioner conceded that the petitioner did not have a legally enforceable right to secure a deputation.

(c) Out of 22 years of service by the petitioner with CWC he had spent a period of 10 years on deputation with B.S.H.E.P.C.

8. Since the petitioner does not dispute that he had served 10 years on deputation, no fault can be found with the above findings recorded by the Tribunal and the impugned order suffers from no such infirmity which warrants interference under Article 226 of the of the Constitution of India. We have also noted that notwithstanding the petitioner's 10 years stint with the BSHEPC, the respondent No. 1 CWC, had permitted the petitioner to be immediately absorbed in BSHEPC, which offer the petitioner seemed inexplicably disinclined to accept.

9. In light of this we are satisfied that no interference is called for in this writ petition.

The writ petition is accordingly dismissed and stands disposed of.