9911796707
TMI Blog1999 (9) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... arch. 1981 issued by Respondent No. I, U.P. Rajkiya Nirman Nigam Ltd.. Lucknow ( Nigam for short) for the post of Chief Project Manager, appellant applied through U.P. S.I.C. Respondent No. 1 Nigam wrote letter to U.P. S.I.C. for No Objection Certificate along with confidential record of the appellant for ten years. After obtaining the requisite information, Nigam by letter dated 31 May. 1985 request U.P. S.I.C. to relieve the appellant for joining Nigam on deputation on usual terms and conditions as applicable to U.P. Government employees. On 18.11.1985, the appellant was relieved by U.P. S.I.C. and on 19.11.1985 he joined respondent No.1, Nigam. On 29th November, 1985, Nigam issued Office Order stating that the appellant had joined with effect from 19.11.1985 and is designated as Project Manager and will be given the same pay-scale as in the parent department with 20% deputation allowance. On 22nd December, 1987, the General Manager (H.Q.) wrote to the appellant that if he was willing for permanent absorption in the Nigam, then he should send his option letter in the prescribed format to Deputy Manager (Personnel) through proper channel on or before 31st December. 1987. It was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Thereafter on 6th May. 1994, appellant sent representation to respondent No. 1 for the benefits of absorption as well as for corresponding promotional benefits equivalent in the parent organization. In response to that letter, on 28th October, 1994, respondent no. 1 issued a letter intimating that absorption of the appellant was not possible. The appellant sent representation dated 14.11,1994 and 23.11.1994 without any avail. Hence on 9th December, 1994, he filed Writ Petition No. 39594 of 1994 challenging the order dated 28th October, 1994. The High Court disposed of the said writ petition by order dated 9th December, 1994 directing the Nigam to decide the representations filed by the appellant within two months from the date of the production of the certified copy of the order. On 4th March, 1995, Nigam passed an order, in pursuance of the directions given by the High Court, rejecting the representations by stating inter alia that the employee working on deputation has no legal right to be absorbed in the concerned institution as it depends on policy decision and circumstances regarding the concerned institution. Secondly, the option to be absorbed as Project Manager gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five years. Rule 5 further provides for absorption of deputationists in Public Undertaking if an application is made by him within three years and the Government agrees to such absorption in public interest. The aforesaid rules are binding on respondent No.l. On the basis of the said rules. Appellant was asked to exercise option of being absorbed in December 1987. Learned counsel has further pointed out that even the Board of respondent No. 1 has re-affirmed the said policy by resolution dated 25th October, 1994 which is as under:- After considering the proposal the Board of Directors approved the following principles regarding absorption of employees working on deputation:- 1. The employees working on deputation should be considered for absorption against the vacant post in the direct recruitment source. 2. The absorption should be done as per the provisions of Rules of 1984 as issued by the government and the absorption of those officers and staff who have come on deputation from sources other than the Government should also be done on the basis of fundamental policies laid down under these Rules. As against this, the learned counsel for Nigam submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaking. It has been, therefore, pointed out by the learned counsel for the appellant that as deputation period of five years was over, appellant was deemed to be absorbed in the service of respondent No. I. He has exercised his option for that purpose in December 1987, as suggested by the General Manager of respondent No. 1. He, therefore, contended that on the basis of option being exercised and as he stood absorbed, respondent No. 1 stopped paying deputation allowance from 19.11.1990, that is, exactly after five years period of deputation. We agree with the learned Counsel for the Respondent No. I and made it clear that an employee who is on deputation has no right to be absorbed in the service where he is working on deputation. However, in some cases it may depend upon statutory rules to the contrary, If rules provide for absorption of employees on deputation then such employee has a right to be considered for absorption in accordance with the said rules. As quoted above. Rule 16(3) of the Recruitment Rules of the Nigam and Rule 5 of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 provide for absorption of employees who are on deputation. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court and High Court directed Nigam to consider his representations, me impugned order rejecting the appellant's representations was passed. In the said order, it is stated that:- (a) it was a policy decision; (b) some engineers who were in service objected to absorption; and (c) the High Court has passed Interim Order on 17-7-91. In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent No. 1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with me duty not to act arbitrarily, or at whim or caprice of any individual. In the present case, as stated earlier, the General Manager (N.E.Z.) specifically pointed out as early as in the year 1988 that appellant's service record was excellent; he has useful in service and appropriate order of his absorption may be passed. His application for absorption was within three years as provided in R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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