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2023 (5) TMI 1392 - HC - Indian LawsInaction of the Respondents in not convening and finalizing the Departmental Promotion Committee (DPC) for selection on absorption to the post of Assistant Registrar, National Company Law Tribunal (NCLT) - permanent absorption under Rule 10 of the 2020 Rules - HELD THAT - The grievance ventilated by the Petitioner before this Court is that while she was working on deputation with NCLT, she had opted for permanent absorption and was duly qualified and eligible. She was willing for absorption and her department also had no objection. Thus, there is no plausible reason or justification why the process be not taken to its logical end. It is not open to the Respondents to terminate and abandon the process mid-way as Petitioner has a right of consideration for absorption albeit there may not be a right to assert that she must be absorbed. Parties are ad idem that Rule 10 of 2020 Rules read with Schedule I provides absorption on deputation as a mode of appointment to the post of Assistant Registrar, NCLT, with the approval of Central Government mandated under Rule 7 of the said Rules. Process of permanent absorption was initiated by NCLT and thus, the moot question that arises for consideration is whether the Petitioner can insist that the process must be taken to its logical end by convening a DPC and considering those who had applied/opted for permanent absorption. It is a settled law that filling up of posts, mode of recruitment, category from which the recruitment is to be made, etc. are all matters exclusively within the domain of the Executive. In State of Andhra Pradesh and Another v. V. Sadanandam and Others, 1989 (5) TMI 325 - SUPREME COURT , the Supreme Court held that it is not for judicial bodies to sit in judgment over the wisdom of the Executive in choosing the mode of recruitment, as these are matters of policy decision falling exclusively within the purview of the Executive. The Supreme Court has affirmed and re-affirmed that no person can have an indefeasible right to assert that he or she must be appointed, even where a person is placed on a select list and much less where the process has not even reached the stage of holding an examination or convening a DPC, as the case may be, for appointment or selection. No candidate has a right to insist that all or any vacancies, which are lying unfilled, must be filled and the employer must necessarily initiate the process of appointment or adopt a particular mode of appointment from among the modes provided in the respective recruitment rules - In view of the wealth of judicial precedents, it can hardly be argued by the Petitioner that there is a legal right to insist that the DPC must be convened and the post of Assistant Registrar must be filled by the mode of permanent absorption as against the mode of deputation sought to be adopted by NCLT. Now all that is need to be tested is if the impugned action is arbitrary. It is stated in the short affidavit filed on behalf of Respondent No.2/NCLT that a decision was taken to fill up the Senior Level positions in the office of NCLT, New Delhi and its Regional Benches on deputation in order to attract new and fresh candidates, as a part of the initiative of the President, NCLT to improve the working of all Benches more efficiently in terms of administration. Thus, a conscious decision was taken to adopt the mode of deputation instead of absorption. Rules 2020 governing appointment to the post of Assistant Registrar, provide for deputation as a mode of appointment and the decision is within the framework of the Rules. Following the binding dictum of the Supreme Court, it is not for this Court to dictate the mode and manner of appointment and/or issue a mandamus to the Respondents to necessarily fill up the post of Assistant Registrar on permanent absorption basis. The matter can be examined from another angle. The law on deputation and absorption is fairly well settled. A deputationist has no right to either continue on deputation or to claim permanent absorption in the borrowing department. It was held by the Supreme Court in Kunal Nanda v. Union of India and Another, 2000 (4) TMI 828 - SUPREME COURT , that the basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position and there is no right to claim continuance on deputation or seek absorption. In the present case, Petitioner was appointed on deputation as Assistant Registrar, NCLT by an order dated 05.03.2018 for a period of one year, which was extended up to 01.04.2022 after which she has been relieved and has joined her parent department. Merely because the process of permanent absorption was initiated would not give a vested right to the Petitioner to seek a mandamus to the Respondents to convene a DPC in the wake of a conscious decision taken by the Respondents to terminate the process of permanent absorption and resort to deputation as a mode of appointment to the post of Assistant Registrar, which is clearly a mode of appointment under Rule 10 of 2020 Rules. The Court is of the view that Petitioner cannot seek a writ of mandamus to the Respondents to convene a DPC for consideration of her case on permanent absorption in NCLT and the writ petition deserves to be dismissed - petition dismissed.
Issues Involved:
1. Inaction in convening and finalizing the Departmental Promotion Committee (DPC) for absorption to the post of Assistant Registrar, NCLT. 2. Legal right to be considered for permanent absorption under Rule 10 of the 2020 Rules. 3. Termination of the absorption process and decision to fill posts on deputation basis. 4. Right of a deputationist to claim permanent absorption. 5. Allegations of arbitrariness in the decision-making process. Detailed Analysis: 1. Inaction in Convening and Finalizing the DPC: The petitioner challenged the delay in convening the DPC for absorption to the post of Assistant Registrar at NCLT, despite the process being initiated and a member being nominated to the DPC. The petitioner argued that the process was unduly prolonged, leading to her being relieved from her deputation position without finalizing the absorption process. The court noted that while the process had reached the stage of nominating a DPC member, it did not proceed further, and the petitioner was repatriated to her parent department. 2. Legal Right to be Considered for Permanent Absorption: The petitioner contended that under Rule 10 of the 2020 Rules, she had a legal right to be considered for permanent absorption, having fulfilled the eligibility criteria and obtained a no-objection certificate from her parent department. The court highlighted that while Rule 10 provides for absorption on deputation as a mode of appointment, it does not confer an indefeasible right to be absorbed. The court referenced the Supreme Court's judgment in Rameshwar Prasad, emphasizing that while there is a right to be considered for absorption, it does not guarantee appointment. 3. Termination of the Absorption Process and Decision to Fill Posts on Deputation Basis: The respondents argued that a decision was made to fill senior posts, including the Assistant Registrar, on deputation basis to attract new candidates and improve administrative efficiency. The court recognized that decisions regarding recruitment modes fall within the executive's domain and are policy decisions not subject to judicial interference. The court cited precedents affirming that candidates do not have a right to insist that vacancies be filled or that a particular recruitment mode be adopted. 4. Right of a Deputationist to Claim Permanent Absorption: The court reiterated that a deputationist does not have a right to continue on deputation or claim permanent absorption. The Supreme Court in Kunal Nanda affirmed that deputationists can be repatriated at any time, and there is no inherent right to absorption. The petitioner's reliance on the initiation of the absorption process did not create a vested right to demand its completion, especially after being relieved from her deputation position. 5. Allegations of Arbitrariness in the Decision-Making Process: The petitioner alleged that the termination of the absorption process was arbitrary. The court examined whether the decision was arbitrary and found that it was a conscious policy decision to fill posts on deputation, within the framework of the 2020 Rules. The court emphasized that judicial intervention is unwarranted unless the decision is arbitrary or capricious, which was not established in this case. Conclusion: The court concluded that the petitioner could not compel the respondents to convene a DPC for her permanent absorption at NCLT. The decision to fill the post on deputation was a policy decision within the executive's purview, and the petitioner had no vested right to insist on absorption. The writ petition was dismissed for lack of merit.
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