Jharana Nayak vs Union Of India & Ors
2010 Latest Caselaw 3343 Del

23
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C)No.4633/2010 and CM No.9160/2010

                                       Date of Decision : 19th July, 2010
%

      JHARANA NAYAK                       ..... Petitioner
                           Through : Mr. A.K. Trivedi, Adv.

                      versus

      UNION OF INDIA & ORS          ..... Respondents
                     Through : Mr. Ravinder Agarwal, Adv. for
                               C.G.S.C.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                    NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                   NO

3.      Whether the judgment should be                           NO
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. The petitioner assails the order dated 9th July, 2010

whereby the Central Bureau of Investigation („CBI‟ for brevity)

has directed that she be relieved from her posting on

deputation and be repatriated to the CRPF, her parent

department.

2. Mr. Ravinder Agarwal, learned Standing Counsel for the

respondents has contended that the respondents have followed

the Standing Order No.D.I.1/2001-Pers.II dated 30th May, 2001

issued by the Director General, CRPF with regard to deputation

of Non-Gazetted (Executive) Force Personnel to

NSG/SPG/NPA/MEA and other organizations in taking action in

the matter. Our attention is drawn to the conditions stipulated

at serial No.6 under the heading "General" which governs

consideration of the matter relating to deputation of CRPF

personnel to other organizations. It is contended that the

petitioner could not be issued a N.O.C. for permanent

absorption with the C.B.I. on the ground that she had not

completed 39 years of age which was required under the

instructions and that no special circumstances were made out

which could justify exercise of discretion conferred on the

respondents in this regard to relax or depart from the

stipulated conditions.

3. The petitioner contends that under the Standing Order,

the respondents are adequately empowered to depart from the

instructions which govern the subject. It is contended that the

respondents have in certain cases prior thereto departed from

the mandate of these instructions.

4. We have heard learned counsel for the parties. The

Standing Order dated 30th May, 2001 clearly stipulates that the

no objection certificate for absorption in the borrowing

organization in respect of the deputationist can be issued only

to personnel who are of 39 years of age or above. These

instructions have stipulated that any departure from the above

instructions shall be with the approval of the Director General,

CRPF.

5. Before dealing with the contentions of the parties, we

may usefully extract the relevant portion of the aforenoted

Standing Order dated 30th May, 2001 which reads as follows:-

"GENERAL

i) The numbers of person of any rank sent on deputation to outside organizations, except the SPG, NSG, should not exceed 10% of the sanctioned strength in that rank.

ii) No person of any rank should be sent on deputation to Ex--cadre post, except in SPG, NSG if the number of vacancies in that rank exceed 10%.

iii) Personnel shall not approach the borrowing department directly.

iv) NOC for permanent absorption in other borrowing organization can be issued to the personnel who are of 39 years of age or above.

v) Personnel on repatriation from deputation outside the organization/Country shall not be considered for static posting and posting will be in the Battalion deployed in operational area for a minimum period of 2 years.

vi) Concerned Unit/GCs shall be solely responsible for watching service interest of deputationist and getting them repatriated after completion of terms of deputation. They should also inform the Directorate General at least 1 year in advance in case of Superannuation of personnel on deputation.

vii) The service records of the personnel who proceed on deputation/nominated will be brought upto date and dispatched to other organizations including Mission, abroad duly completed in all respects.

Any departure from the above instructions shall be with approval of the Director General, CRPF."

6. So far as the factual matrix is concerned, there is no

dispute. The petitioner was recruited into the Central Reserve

Police Force on 20th January, 1994 as Constable (Mahila). While

serving with the CRPF, she was sent on deputation to the

Central Bureau of Investigation on 8th January, 2003 for a

period of three years. Her tenure as a deputationist after

having granted yearly extensions twice ultimately expired on

7th January, 2008. The petitioner places reliance on a

communication dated 26th March, 2010 from the Central

Bureau of Investigation to Central Reserve Police Force for her

permanent absorption with the investigation agency. The

Central Reserve Police Force has however refused the requisite

no objection certificate for the permanent absorption. In this

background, the Central Bureau of Investigation has issued the

order dated 9th July, 2010 relieving the petitioner and

repatriating her to her parent department.

7. The petitioner has also placed reliance on the relaxation

in favour of a mahila Constable Ms. Kaushalya wherein the

respondent is stated to have given a no objection for her

permanent absorption in C.B.I. It is contended that this

Constable was junior to the petitioner and had also not

completed 39 years of age. The petitioner, on this basis, has

contended individual discrimination in the exercise of the

discretion conferred on the CRPF under the said instructions.

8. On the other hand, it is submitted by Mr. Ravinder

Aggarwal, learned Standing Counsel for the respondents that

the case of Constable Kaushalya falls well within the

parameters of exceptional hardship. It is submitted that this

Constable had suffered loss of her husband on account of

death on 6th June, 2009 and urged that she was single handedly

raising her 12 years old child for within any assistance. It was

in this background that the respondents were persuaded to

exercise the power conferred under the instructions of 2001.

No such exceptional circumstances have been brought to

our notice so far as the petitioner is concerned.

9. The learned counsel for the petitioner has placed reliance

on the communication dated 26th March, 2010 issued by the

Deputy Director (Admn.) of the C.B.I. to the respondents

requesting for the permanent absorption of the petitioner on

the ground that she along with three other CRPF personnel who

were on deputation with it had become familiar with the

working of the C.B.I. because of their long association and

performance with it.

10. The respondents have not found the same to be sufficient

justification for permanent absorption of the petitioner and in

this background refused to grant no objection to her

permanent absorption. The petitioner cannot claim issuance of

the no objection by her parent department for permanent

absorption in the borrowing department as of right. The

respondents are governed by the standing instructions and

appear to have followed the same.

In view of the above reasons, we find no merit in this writ

petition, which is dismissed.

11. At this stage, learned counsel for the petitioner submits

that he may be permitted to make representation to the

respondents to place special circumstances which could justify

issuance of the no objection. It is open to the petitioner to

represent to the respondent in this regard in case such special

circumstances exist. Such representation, as and when made,

shall be considered in the light of the applicable rules,

instructions and policy.

12. This writ petition and application are dismissed in the

above terms.

GITA MITTAL, J

J.R. MIDHA, J JULY 19, 2010 mk