The Delhi High Court has held that an employee, as a matter of right cannot seek deputation to any other Organisation or Department.
The Division Bench comprising of Justice Manmohan and Justice Navin Chawla noted the above while dealing with a plea filed by an employee at Border Roads Organisation challenging the rejection letter and show cause notice, thereby seeking direction to his employer to allow the his application for deputation to the NHAI on the ground of parity.
In the writ petition so filed, it has been averred that the Petitioner is an Executive Engineer (Civil) in the Border Roads Organisation and is aggrieved by the non-grant of departmental permission to proceed on deputation to NHAI. It was further averred in the writ petition that the Petitioner had applied for deputation to NHAI and had forwarded a copy of his application to be processed by the Border Roads Organisation. According to the Petitioner, after receiving the consent of all senior officers, including the Additional Director General Border Roads, the Petitioner’s Application was forwarded to the Director General Border Roads, however, his application was rejected vide impugned letter dated 18th February, 2021 on the ground that the Border Roads Organisation intends to post the Petitioner to a high altitude area to fill vacant positions of Executive Engineers in the ongoing Border Roads Organisation projects.
It was the case of the petitioner that he had already completed the pre-condition of two years service in the high altitude area, as mandated under Clause 7 (k) of Standard Operating Procedure on Deputation. He emphasised that the Petitioner had served three years and three months in high altitude area, five years in extremely hostile area and three years and ten months in Hard Hard Area (HHA). Consequently, he contended that the petitioner satisfied the eligibility criteria for proceeding on deputation and denial of Departmental consent on the ground that Petitioner was to be posted to a high altitude area was erroneous.
It was further being stated that the strength of Executive Engineers (Civil) in the Border Roads Organisation is in excess of the strength of Executive Engineer posts. In support of his contention, he relied upon the sparability certificate issued by the Respondent itself. Thus, according to him, allowing the Petitioner to proceed on deputation would not lead to any deficiency in the cadre strength of Executive Engineers in Border Roads Organisation.
Learned Counsel for the Petitioner stated that it was not open to the Petitioner to withdraw his application for deputation and if the same was withdrawn, it would be prejudicial to the interest of the petitioner. He pointed out that as per Clause 2 of the Important Instructions of the Advertisement floated by NHAI, the applicants were barred from withdrawing their candidature.
He further stated that the Petitioner had requested the Department to reconsider and allow the Petitioner’s application for deputation. He pointed out that rather than processing the Petitioner’s requests in accordance with the similarly placed Officers, the Border Roads Organisation issued a show cause notice dated 10th January, 2022, alleging that the Petitioner had appeared before the NHAI Interview Board on 19th April, 2021 without obtaining prior approval whereas the request of similarly placed officers had been acceded to in the past.
It was being pointed out that in one the case of a similar case, the present High Court had struck down high altitude area postings as a reason to deny permission for deputation given that many others had been granted permission to go on deputation. He stated that the decision of learned Single Judge was later confirmed by the Division Bench.
The Counsel however, admitted that a Division Bench of the Gauhati High Court in the case of Shyam Singh & Ors. vs. Union of India & Ors. had rejected the claim for parity. However, he emphasised that the sole ground for rejecting the candidature therein was that the petitioner had not completed minimum twenty years of service before seeking deputation and thus maintained his avertments in the case he represented before the Court.
High Court Observation
The Court at the outset viewed with calrity that an employee of Border Roads Organisation has to work primarily in the said Organisation. An employee of the Border Roads Organisation has no fundamental right to claim a deputation to any other Organisation or Department like NHAI. The employee has only a right of fair consideration in accordance with the policy and needs of the organisation.
Examining the grounds of rejection of the petitioner's application, the Court remarked that it is settled law that if the senior management of the organisation is of the opinion that the organisation’s interest would be better served if the employee continues to work within the organisation, then the Court would not substitute its own judgment for the judgment of the management.
Therefore, the Court opined that the organisational interest of Border Roads Organisation is of paramount importance and if the superior officers of the Border Roads Organisation are of the opinion that the Petitioner is a ‘Suitable Officer’ to be posted in a high altitude area, then the same calls for no interference in writ jurisdiction, especially when the impugned decision is not perverse.
Rejecting the petitioner's contention of there were extra employees than required for the post in the organisation, the Court observed that merely because number of officers appointed are in excess of the sanctioned strength does not vest any right in any of the officers to claim permission to proceed on deputation.
Noting that the present plea being based on Article 14 is completely vague and without any merit, the Court stated:
"In the present case, apart from asserting that 15(fifteen) officers have been allowed by the respondent-BRO to proceed on deputation while the petitioner’s application has been rejected, the petitioner has not provided the details of these officers or how his case for being allowed to proceed on deputation is superior to them. This court is not expected to indulge in a fishing and roving inquiry to determine the comparative merit and demerit of the cases of these officers, especially in their absence."
The Court also put it straight that it is in disagreement with the view taken by Gauhati High Court and observed that the consistent view of this Court has been that Article 14 of the Constitution of India is a positive concept and does not promote negative equality.
To substantiate observations in the present case, referrence was made to SC Rulings in Basawaraj & ANR. Vs. The SPL. Land Acquisition Officer, 2013 Latest Caselaw 569 SC.
The Court opined that the intent of the Petitioner in appearing before the Interview Board without prior permission was to ‘force the hand’ of the respondent/ Border Roads Organisation, had he withdrew his application, he would have suffered no real prejudice as the only consequence of withdrawal of application is that Petitioner’s name would not be considered for deputation to NHAI for the next three years. In view of the Petitioner’s next posting to high altitude area, it is highly unlikely that he would be in a position to apply for deputation to NHAI for the next three years.
The petition was accordingly dismissed.
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