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TMI Blog2023 (5) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod 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. - HON BLE MS. JUSTICE JYOTI SINGH For the Appellant : Mr. Shanker Raju, Mr. Nilansh Gaur, Ms. Anubha Bhardwaj and Mr. Rajesh Sachdeva, Advocates For the Respondent : Mr. Chetan Sharma, Additional Solicitor General with Mr. Apoorv Kurup, Central Government Standing Counsel, Mr. Amit Gupta, Mr. Ojaswa Pathak and Mr. Vikramaditya Singh, Advocates JUDGEMENT JYOTI SINGH, J. 1. By this writ petition, Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as getting unduly prolonged and her tenure on deputation was coming to an end on 01.04.2022, she requested for further extension of deputation till finalization of the process of permanent absorption, vide representation dated 25.03.2022. However, instead of convening and finalizing the DPC, NCLT issued an order dated 01.04.2022, relieving the Petitioner on completion of the deputation tenure and also sanctioned one month end of tenure leave, beginning from 04.04.2022 with an assurance that the leave period salary and allowances shall be paid by NCLT. Since there was complete stalemate on the absorption process, Petitioner approached this Court seeking direction to the Respondents to convene a DPC and finalise the absorption process. 6. Contention of the Petitioner is that Rule 10 of 2020 Rules provides absorption on deputation as one of the modes of appointment to the post of Assistant Registrar and stipulates that persons appointed on deputation basis, who fulfil the qualifications and experience laid down in the Rules and are considered suitable by the Department Promotion Committee, shall be eligible for absorption, subject to such person exercising option for absorption and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Rules. 10. Responding to the arguments on behalf of the Petitioner, Mr. Chetan Sharma, learned Additional Solicitor General, at the outset, takes a position that the writ petition is infructuous since Rule 10 of 2020 Rules mandates that option of absorption in the services of NCLT can be exercised only by a person who is on deputation with NCLT and in this case, admittedly, Petitioner has been relieved from the post of Assistant Registrar, NCLT w.e.f. 01.04.2022 and has also availed one month of end of term leave which was sanctioned pursuant to para 7.6(c)(iii) of DoPT O.M. dated 17.06.2010. Further, even the said leave has ended on 03.05.2022 and Petitioner s application for extension of leave has been forwarded to her parent employer i.e. Directorate of Training and Employment, U.P. Clearly, after a person demits the post held on deputation, he/she is not eligible for absorption under Rule 10 of 2020 Rules. On this count itself, the judgment in Rameshwar Prasad (supra) is distinguishable, as in the said case, Petitioner was not repatriated but continued on deputation at the time of seeking relief. 11. It was urged that NCLT issued a Notification dated 24.02.2022 for fill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up all or any vacancies. Analysis: 14. Petitioner is indisputably an employee of Directorate of Training and Employment, Government of U.P, where she is employed as Assistant Employment Officer w.e.f. 28.12.1999. Petitioner applied for appointment on deputation basis with NCLT and on qualifying the selection process, she was appointed on deputation basis vide order dated 05.03.2018. While Petitioner was working on deputation, options were invited vide O.M. dated 21.12.2020 for appointment on permanent absorption basis in NCLT to the post of Assistant Registrar. Petitioner gave her option and her parent department also sent the NOC. Process of permanent absorption reached the stage of appointing a member of the DPC but rested at that stage and it is an admitted position that Petitioner has been repatriated to her parent department and stands relieved from NCLT w.e.f. 01.04.2022. 15. 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) SCC 541, the Supreme Court observed that High Court fell into patent error in issuing the mandamus since it is the authoritative pronouncement of the Supreme Court that even if a vacancy is available and the employer bonafidely declines to make an appointment, even the candidate placed on a select list has no right to insist that he must be appointed. In State of Haryana v. Subash Chander Marwaha and Others, (1974) 3 SCC 220, the Supreme Court held that the existence of vacancies does not give legal right to a candidate for appointment. It is open to the Government to decide whether to make appointments and if so against how many vacancies. It was observed that in order that a mandamus may issue to compel an authority to do something, it must be shown that the Statute imposes a legal duty on that authority and the aggrieved party has a legal right under a Statute to enforce its performance. 19. From a conspectus of the aforesaid judgments, it is clear that 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 eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orne in mind is that a candidate who applies does not have a legal right to insist that the recruitment process set in motion be carried to its logical end . It was observed that even inclusion of a candidate in the select list may not clothe the candidate with such a right. Adding a caveat that this did not imply that the employer is free to act arbitrarily, the Supreme Court ruled that the direction by the High Court to conclude the recruitment process, was clearly untenable. 21. In light of the aforesaid judgments, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of employees on deputation, then the employee has a right to be considered. However, the point that the Petitioner overlooks is that in the said case, the Supreme Court noticed in para 15 of the judgment that there was total inaction on the part of Respondent No.1 in not passing the order either for repatriation or for absorption qua the Appellant and this was unjustified and arbitrary and in this context, the Supreme Court held that the delay or inadvertent inaction on the part of the Officers of the Respondents in not passing appropriate order would not affect Appellant s right to be considered for absorption under the Recruitment Rules. The Supreme Court observed that if the Appellant was not to be absorbed, he ought to have been repatriated when he had completed 5 years on deputation. 24. It is relevant to note that in an additional affidavit filed on behalf of NCLT, it is stated that after the Petitioner was repatriated to her parent department, she has assumed charge of her duties on 12.07.2022 and NCLT has already forwarded her service book to the Directorate of Training and Employment, Government of U.P. pursuant to their request vide letter dated 03.08.2022. It is also s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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