Delhi High Court
Satish Kumar And Ors vs Union Of India & Ors. on 21 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3969/2016
Reserved on: 24th July,2017
Date of decision : 21st August, 2017
SATISH KUMAR AND ORS. .....Petitioners
Through Ms.Garima Sachdeva, Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through Mrs.Abha Malhotra, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J.
The petitioners, who are working as Head Constable(s)
(Electrician/Mechanist/Mason/Fitter) on deputation with National
Disaster Response Force (in short NDRF), have filed the present writ
petition, praying for the respondents to consider them for absorption in
accordance with the BSF (Engineering/Electrical) Group 'C' Posts
Recruitment Rules, 2012 (in short BSF Rules-2012) and if found fit, to
absorb them in their present post of Head Constable and not to
repatriate them without considering them for permanent absorption as
per BSF Rule-2012.
2. The petitioners had joined the Border Security Force (BSF) as
Constable(s) (General Duty) on different dates between 1995 to 2002
and based on their technical qualifications were selected for
deputation to the post of Head Constable (Electrician/Technician) in
NDRF vide Order No.49001/30/06/Staff(E)/BSF/8617-27 dated
27.04.2011, initially for a period of one year extendable upto 3 years
on year to year basis. The permissible tenure of deputation of the
petitioners was further extended to 5 years. The petitioners'
contended that NDRF is a part of the BSF and in accordance with the
BSF Rules-2012 and the Standing Operating Procedure dated
31.01.2013, they are entitled to be considered for permanent
absorption in the post of Head Constable. They further assert that
similarly placed deputationists working in BSF battalion have been
permanently absorbed as Head Constables. The petitioners, therefore,
have prayed for consideration for permanent absorption.
3. Upon issuance of notice, the respondent BSF, has filed its
counter affidavit. It has been submitted that as per Section 44 of the
Disaster Management Act, 2005, a National Disaster Response Force
(NDRF) was constituted under the superintendence, direction and
control of the National Disaster Management Authority (in short
NDMA) for the purpose of specialized response to a threatening
disaster situation or disaster. It is further submitted that the Ministry
of Home Affairs vide order dated 19.01.2006 constituted the NDRF by
upgrading/conversion of eight Standard Battalions of Central Para
Military Forces (two Bn each from BSF, CRPF, CISF and ITBP).
Initially, 1st NDRF and 2nd NDRF Bn was raised by converting 128 Bn
of BSF and 106 Bn of BSF respectively. The Central Government by
notification dated 13.02.2008 notified the Disaster Management
(National Disaster Response Force) Rules, 2008. In terms of Rule 3,
the personnel deputed from the Central Para Military Forces by the
Central Government vide order dated 19.01.2006 shall be deemed to
have been deputed in the NDRF under the said Rules. Rule 3(2)
further empowers the Central Government to depute, as and when
required, such number of personnel from the Central Para Military
Force to the NDRF for the purpose of Disaster Management, having
skills, capabilities, qualifications and experience of handling disasters
and their management and such other technical qualification as may be
prescribed on this behalf. Rule 3(3) specifically provides that the
personnel of a battalion deputed to NDRF under the rules, shall remain
ordinarily in such battalion for a period of five years. Rule 4 stipulates
that the superintendence, direction and control of NDRF shall vest in
the NDMA while command and supervision shall vest in the Director
General of NDRF to be appointed by the Central Government.
4. Thereafter, the Central Government further notified the
National Disaster Response Force, Technical Group 'C' Post
Recruitment Rules, 2010 ("Recruitment Rules, 2010") on 26.02.2010.
In terms of the said rules, the post of Head Constable (Technician) and
Head Constable (Electrician/Electrical) were to be filled through
deputation from officials of the Central or State Government(s) or
Union Territories or Armed Forces, Central Para Military Forces or
Central or State Police Organizations. The Recruitment Rules, 2010
specifically provide that the period of deputation, including the period
of deputation in another ex-cadre post held immediately preceding the
appointment under the said rules in the same or some other
organization or department of the Central Government shall ordinarily
not exceed five years. There was no provision for appointment
through absorption or absorption of the deputationist for the said post.
5. At the outset, we may note that there are in all ten petitioners
who have filed the present petition. In the additional short affidavit
filed on 25.10.2016 by the respondents, it has been stated that five out
of ten petitioners have been repatriated and stand relieved by the
NDRF, to join their parent cardre/post. As far as, the remaining
petitioners are concerned, it is stated that this Court vide order dated
23.09.2016 had passed status quo order with regard to their services,
however, as they have also completed the period of their deputation,
they are liable to be repatriated to their parent cadre.
6. As far as the claim of the petitioners for their consideration for
absorption is concerned, we agree with the submission of the
respondents that NDRF being a separate force constituted under the
Disaster Management Act, the said force cannot be held to be a part of
the BSF. NDRF is governed by its own Recruitment Rules and more
specifically the Recruitment Rules dated 26.02.2010, referred by us
above. In accordance with the said rules, recruitment to the post of
Head Constable (Technician) and Head Constable (Electrician/
Electrical) can only be made through deputation (including short term
contract). Therefore, there is no provision for recruitment through
absorption. In absence of Rules providing for appointment through
absorption, the petitioners cannot claim any legal right to be so
absorbed in NDRF. It is settled law that unless the claim of the
deputationist for a permanent absorption in the department where he
works on deputation is based upon any statutory rules, regulation or an
order having the force of law, a deputationist cannot assert and
succeed in any such claim for absorption.
7. As far as the claim for absorption in BSF under BSF Rule-2012
and SOP dated 31.01.2013 is concerned, the same is clearly based on
misreading of BSF Rules-2012. The said Rules will apply to those
officers who are working on deputation with BSF and not to those
working on deputation with NDRF. The claim of the petitioner in this
regard is clearly based on an incorrect surmise that NDRF is a part of
BSF. This is not correct. As mentioned above, NDRF is an
independent Force, though initially it may have been created by
conversion/upgrading inter-alia BSF Battalions. It is, therefore, not
governed by BSF Rules-2012 nor can an officer working on
deputation with NDRF claim to be working on deputation with BSF.
The claim of petitioners that other officers have been absorbed while
they are being ignored, is ill-founded as a bare reading of order dated
09.02.2015, placed on record by them shows that these officers were
working on deputation as Head Constable Technical (Electrical) in
BSF and not in NDRF. In any case, the respondents have filed before
us an order dated 30.09.2016 rejecting such claims or contention on
behalf of the petitioners. The same is not in challenge before us and,
therefore, we refrain from making any comment on one way or the
other on the same.
8. In view of above, we find no merits in the present petition and
same is accordingly dismissed with no order as to cost.
NAVIN CHAWLA, J
SANJIV KHANNA, J
AUGUST 21, 2017/vp
