* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : March 01, 2011
Judgment Delivered on: April 25, 2011
+ WP(C) No. 1357 Of 2011
SHAMSHER SINGH ..... PETITIONER
Through: Mr. K.C. Mittal, Mr. U. Srivastava,
Mr. Tarunesh Kumar, Advocates
Versus
UNION OF INDIA & ORS. ..... RESPONDENTS
Through: Mr. Jatan Singh, Adv. for UOI
Mr. R.N. Singh, Mr. A.S. Singh, Advs.
for Respondent Nos. 2 and 3
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3 Whether the judgment should be reported in the Digest? YES
DIPAK MISRA, CJ
The petitioner, a constable in the Central Industrial Security Force
(CISF), was sent on deputation to the National Crime Research Bureau
(NCRB) for a period of three years on 24.4.2006. By order dated 19.3.2007,
WP(C) No.1357/2011 page 1 of 9
he was repatriated to his parent department. Being dissatisfied by the said
order of repatriation, he approached the Central Administrative Tribunal,
Principal Bench (for short ‘the tribunal’), in O.A. No. 487/2007 wherein the
tribunal, vide order dated 1.5.2007, directed to take the petitioner back in
service on deputation with a further direction that he should be allowed to
continue up to his full tenure. The said order was challenged by the
employer but without any success and, accordingly, the petitioner
continued to work in NCRB on deputation upto 23.4.2009. Thereafter, he
submitted an application for absorption in NCRB on the ground of illness
of his parents and his wife was living with him in Delhi. The NCRB
entered into correspondence on 3.9.2009 with the CISF, the parent
department of the petitioner, seeking its no objection to the absorption of
the petitioner in NCRB. Eventually, the parent department gave its no
objection on 17.11.2009 to the proposal of NCRB. Thereafter, a meeting of
the Departmental Promotion Committee (DPC) was convened to consider
the suitability of the petitioner for absorption under NCRB, the second
respondent herein. The DPC did not find the petitioner suitable for
absorption and, accordingly, made the recommendation which was
accepted by the Director General of NCRB and ultimately, an order was
WP(C) No.1357/2011 page 2 of 9
passed on 21.4.2010 repatriating him to his parent department. The case of
the petitioner for absorption was rejected by the DPC on the ground that
the Crime and Criminal Tracking Network and System Project (CCTNS
Project) in which the petitioner was working was going to be integrated
with the Automated Fingerprint System and it would be appropriate to
induct constables who had experience of fingerprint work for better
professional management of the NCRB.
2. Being dissatisfied with the non-absorption, the petitioner
approached the tribunal vide O.A. No.1313/2010 which was decided on
16.11.2010, wherein the tribunal has directed the respondents to re-
consider the repatriation of the petitioner. In pursuance of the order
passed by the tribunal, the second respondent-NCRB considered the case
of the petitioner and passed an order to the effect that in view of the
emerging future requirements in the context of Crime and Criminal
Tracking Network and System (CCTNS) Project, the CFPB would require
constables having experience of working in the State Finger Print Bureaus
in the field of fingerprint or constables having experience of working in
Finger Print Unit/Branch at the District level in the field of fingerprint
WP(C) No.1357/2011 page 3 of 9
and, hence, the petitioner could not be accommodated against the post of
constable in CFPB and could not be permanently absorbed.
3. Grieved by the aforesaid order, the petitioner approached the
tribunal in OA No. 4215/2010 contending, inter alia, that the respondent
No.2 had misconstrued the direction of the tribunal in the earlier order
dated 16.11.2010 and, hence, the order passed by the NCRB was absolutely
flawed. It was urged that the nature of work had not been changed and
the petitioner, who was working in CCTNS Project, had performed
extremely well which is reflectible from his recommendation for
honorarium and, hence, there was no justification not to absorb him and
the repatriation was founded on extraneous grounds. The said stand was
opposed by the respondents contending, inter alia, that the tribunal had
issued a limited direction to the respondents in O.A. No.1313/2010 and
regard being had to the directions given by the tribunal, the case of the
petitioner was considered by the NCRB which is reflectible from the reasons
given by the respondents. Be it noted, the file containing the reasons was
produced before the tribunal. The tribunal, after perusal of the reasons and
after referring to its earlier order, came to hold that the needs of the
organization were paramount and, therefore, the respondents were fully
WP(C) No.1357/2011 page 4 of 9
justified in deciding not to absorb the petitioner in the organization as he
would not meet the requirements of the technology used by them.
4. It is worth noting here that the petitioner had filed a contempt
petition forming the subject matter of CP No.697/2010 before the tribunal
which was also decided along with the Original Application. The tribunal
did not find merit in the Original Application as well as in the Contempt
Petition holding that there was no violation of the order and, accordingly,
did not proceed with the same.
5. We had heard Mr. K.C. Mittal, learned counsel for the petitioner,
Mr.Jatan Singh, learned standing counsel for the Union of India and
Mr.R.N. Singh, learned counsel for the respondent Nos. 2 and 3.
6. Questioning the legal tenability of the order passed by the tribunal,
it was submitted by Mr. Mittal that when there was a policy decision to
absorb the petitioner, the petitioner was entitled to be absorbed and the
same could not have been denied by taking extraneous pleas which were
absolutely arbitrary and unjustified but the tribunal did not address the
issue from that angle and, hence, the order was vitiated. The learned
counsel would submit that absorption and non-absorption might be a
WP(C) No.1357/2011 page 5 of 9
matter of policy but the policy cannot be applied in an arbitrary,
unjustified and unfettered manner, but must be founded on cogent and
germane reasons. In the case at hand, the respondent No.2 initially
entered into communication with the parent department of the petitioner
seeking his absorption as a permanent employee and thereafter found him
unsuitable and, hence, the entire action smacks of arbitrariness making it
vulnerable. Mr. Mittal, to buttress his submissions, has commended us to
the decision in Rameshwar Prasad v. Managing Director, U.P. Rajkiya
Nirman Nigam Limited & Ors., (1999) 8 SCC 381.
7. Mr. Jatan Singh, learned standing counsel for the Union of India,
supporting the order of the tribunal, contended that the need of the
department regard being had to the involvement in crime research had to be
given more accentuation and when the DPC found that a person of a
different technical experience should not be absorbed or brought in, it cannot
be said that the policy decision was applied in a capricious or whimsical
manner. It was canvassed by him that the decision taken by the authority of
the respondent No.2 in not allowing the petitioner to be absorbed in the
department was based on cogent and acceptable reasons and by no stretch of
imagination could be regarded as unjust, unfair or arbitrary decision. The
WP(C) No.1357/2011 page 6 of 9
learned counsel would further submit that the respondent No.2 was directed
by the tribunal on the first round relating to absorption to consider his case
within limited parameters and when the said exercise was done with utmost
objectivity, the approach of the tribunal, while scrutinizing the order in
exercise of judicial review, cannot be found fault with.
8. To appreciate the submissions raised at the bar, it is apposite to refer
to the earlier order of the tribunal passed in OA No. 1313/2010:
“7. …The basic issue, however, raised by the
respondents is that the applicant does not have the
expertise for the work which is the requirement of the
department. A proper procedure was adopted to
consider permanent absorption of the applicant. DPC
was convened with the recommendations as already
referred to above. On a proper application of mind, the
respondent Bureau has not considered it appropriate to
permanently absorb the applicant in its organization. The
applicant does not have any right of absorption. At the
most, he has a right of being considered. Consideration
has been done by the respondent Bureau, and on cogent
grounds, it appears, a decision has been taken not to
absorb the applicant. His services may have been useful
for the department for the work that was entrusted to him,
but since the requirement of the job, for the reasons as
mentioned in the additional affidavit, is different and the
applicant does not have the requisite expertise therein,
the decision has been taken to repatriate him. There
cannot be any exception to the order passed by the
respondents. Present may be a case where the court or
tribunal may sympathize with the applicant, but in theWP(C) No.1357/2011 page 7 of 9
facts and circumstances of the case, no directions can be
issued to the respondents to absorb the applicant.
8. In totality of the facts and circumstances of the
case, at the most, the respondent NCRB can be asked to
consider if the work which was entrusted to the applicant
while on deputation is available and he could be
accommodated. As in the said work, in any case, the
applicant was performing exceedingly well, the
respondents may reconsider his case for absorption. If
the respondents may be of the view that there is no scope
whatsoever to accommodate the applicant, and he has to
be replaced by a person who may have expertise for the
job as required, the applicant may be asked to quit, but,
as mentioned above, if the applicant can be
accommodate, we would only require the respondents to
consider it sympathetically. The respondents may take
the decision within a month from today, and we would
only direct the respondents not to repatriate the applicant
till such time the decision is taken by them.
9. In view of the discussion as made above, we give a
limited direction to the respondent Bureau to consider the
case of the applicant for absorption if the work which he
is already doing is available with it, and not to repatriate
him till such time the decision in that regard is taken.
There shall, however, be no order as to costs.”
9. From the aforesaid order, it is clear as day that the tribunal on the
earlier occasion had already foreclosed the issue of absorption by holding
that the petitioner had no right of absorption but had right to due
consideration; that the proper procedure should be adopted to consider the
request of the petitioner for permanent absorption. There cannot be any
WP(C) No.1357/2011 page 8 of 9
exception to the order passed by the tribunal. What the tribunal had
directed, pertained to a limited direction to consider his case for absorption if
the work which he was already doing was available and required by them.
As is luminescent, the respondent NCRB had taken a policy decision to
recruit CCTNS with technical expertise in processing and matching finger
prints. The petitioner does not have the said qualification. NCRB has not
considered it appropriate to absorb the petitioner in the nature of work he
was performing regard being had to the spectrum of the work and the
employees required as per needs and requirements of NCRB.
10. In view of the aforesaid analysis, we do not perceive any error in the
order passed by the tribunal and, accordingly, the writ petition, being devoid
of merit, stands dismissed without any order as to costs.
CHIEF JUSTICE
APRIL 25, 2011 SANJIV KHANNA, J.
pk
WP(C) No.1357/2011 page 9 of 9