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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NOS. 368-369    OF 2009

[Arising out of SLP(C) Nos. 20212-20213/2005]

UNION OF INDIA AND ORS. ... APPELLANT(S)

:VERSUS:

S.A. KHAILIQ PASHA AND ANR. ... RESPONDENT(S)

O R D E R

Nobody appears for Respondent No. 1.

Leave granted.

Respondent  No.1,  who  was  a  Head  Constable  in  the  State  of  Andhra

Pradesh,  was  sent  on  deputation  to  the  Subsidiary  Intelligence  Bureau  (“SIB”),

Ministry of Home Affairs, Hyderabad, on or about 9.3.1992 for a period of 5 years.

While working with  the transferee organization,  he was promoted to the post  of

Assistant Central Intelligence Officer-II, with effect from 10.8.1994.

He filed a representation in the year 2001 praying for his absorption. His

representation for permanent absorption was rejected. Aggrieved by and dissatisfied

therewith, he filed original application before the Central Administrative Tribunal.

By  a  judgment  and  order  dated  31.8.2004,  the  said  application  was  allowed.

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Appellant herein was directed to give effect to the order of absorption, aggrieved

whereby it filed a writ petition which by reason of the impugned judgment has been

dismissed by the High Court.  

Before the High Court, reliance was placed on a purported Memo dated

17.4.2003 issued by the SIB, in terms whereof those who had only one year’s service

left  for  retirement,  were  not  to  be  considered  for  absorption,  inter  alia  on  the

premise  that  the  said  Memo will  have  prospective  effect.  The  contention  of  the

appellant was rejected by the High Court, stating:  

“But this communication, as already observed by us, is not based on

legal  position as available in the Rules. The very contention of the

Department is that the personnel shown in the letter dated 19.7.2001

are entitled for absorption in the Central Services and consequent on

their  absorption,  their  lien  in  the  parent  department  will  be

terminated. It is also on record that number of police personnel were

absorbed in the IB and also continuing in the IB Service. In view of

this, it is not understood as to how the Government could refuse the

same benefit in respect of the 1st respondent.”

Mr.  Radhakrishnan,  learned  senior  counsel  appearing  on  behalf  of  the

appellant would submit that the first respondent having no right to be absorbed in

the appellant services, the impugned judgment is wholly unsustainable.   

Mr. Chowdhary, learned senior counsel appearing on behalf of the State of

Andhra Pradesh, supported the contention of the appellants.  

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Nothing  has  been shown  either  before  the  Tribunal  or  before  the  High

Court by or on behalf of the first respondent herein that he had a statutory right to

be absorbed in the appellants' services.   

In this case, the State of Andhra Pradesh, which was the lending authority,

did not accede to the prayer of the first respondent for permanent absorption in the

services of the SIB. The first respondent while on deputation, was holding lien in the

State of Andhra Pradesh.  The employer, therefore, had a right to give or withhold

its consent for permanent absorption of its employee.

Furthermore, in absence of any statutory rules, an employee does not have

any legal right to be absorbed in the services.  It is so held in Kunal Nanda vs. Union

of India and Anr. [2000 (5) SCC 362], in the following terms:  

“On the legal submissions also made there are no merits whatsoever.

It  is  well  settled  that  unless  the  claim  of  the  deputationist  for  a

permanent  absorption  in  the  department  where  he  works  on

deputation  is  based  upon  any  statutory  rule,  regulation  or  order

having the force of law, a deputationist cannot assert and succeed in

any  such  claim  for  absorption.   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  therein  at  the  instance  of  either  of  the

departments and there is no vested right in such a person to continue

for long on  deputation or get absorbed in the department to which he

had gone on deputation.  The reference to the decision reported in

Rameshwar  Prasad  v.  M.D.,  U.P.  Rajkiya  Nirman  Nigam  Ltd  is

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inappropriate since the consideration therein was in the light of the

statutory Rules for  absorption and the scope of  those Rules.   The

claim that  he  need not  be  a graduate  for  absorption  and being  a

service candidate, on completing service of 10 years he is exempt from

the requirement  of  possessing  a  degree  needs  mention,  only  to  be

rejected.   The  stand  of  the  respondent  Department  that  the

absorption of a deputationist being one against the direct quota, the

possession  of  basic  educational  qualification  prescribed  for  direct

recruitment i.e. a degree is a must and essential and that there could

be no comparison of the claim of such a person with one to be dealt

with on promotion of a candidate who is already in service in that

Department is well merited and deserves to be sustained and we see

no infirmity whatsoever in the said claim.”

See also Mahesh Kumar K. Parmar and Ors. Vs. SI.G. of Police and Ors., [2002 (9)

SCC 485].

In that view of the matter, the High Court must be held to have proceeded

on a wrong legal premise.

It is, however, accepted at the Bar that the 1st respondent has since retired

from service.  

We, therefore, keeping in view the peculiar facts and circumstances of this

case, particularly in view of the fact that, rightly or wrongly, he has been allowed to

continue in the services of the SIB till he attained the age of superannuation, i.e. 60

years, it is not a fit case where any order should be passed against him at this stage

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in exercise of our jurisdiction under Article 136 of the Constitution of India.  

We  make  it  clear  that  we  have  refused  to  exercise  our  discretionary

jurisdiction in the matter only having  regard to the facts and circumstances of this

case.  

Subject to the declaration of law as mentioned hereinabove, the appeals are

dismissed with the aforementioned observation.

..........................J (S.B. SINHA)

..........................J   (Dr. MUKUNDAKAM SHARMA)    

..........................J (ASOK KUMAR GANGULY)

NEW DELHI, JANUARY 13, 2009.