Jaga Ram v. Union of India & Ors

SURESH KAIT, J.

¶1In the instant writ petition the petitioner has sought mandamus to quash letter dated 23.07.2010 consequently directing the respondent No.2 (CRPF) to accept the request of respondent No.3 (CBI) and issue no objection for permanent absorption of the petitioner in CBI.

¶2The facts of the present case in brief are that the petitioner was appointed as Constable (GD) in CRPF vide his appointment letter dated 18.01.1994.

¶3Vide order dated 19.02.2004 respondent No.3

(CBI) requested respondent No.2 (CRPF) for necessary

sanction for deputation of the petitioner in CBI initially for a period of three years, which was approved by respondent No.2 (CRPF). On 11.03.2004 a movement order was issued by respondent No.2 (CRPF) with directions to the petitioner to report to the Superintendent of Police, CBI SC-II, Block No.3, CGO Complex, Lodhi Road, New Delhi. Pursuant to the aforesaid movement order the petitioner joined CBI on deputation on 12.03.2004.

¶4Thereafter vide letter dated 01.12.2006 the respondent No. 2 (CRPF) made a request to respondent No. 3 (CBI) for extension of the deputation tenure of the petitioner by two years till 11.03.2009. Respondent No. 3 gave their approval on extension of the deputation tenure of the petitioner vide letter dated 21.12.2006 extending the period till 11.03.2008 i.e. for the 4th year.

¶5On 24.09.2007 the respondent No.3 (CBI) made another request to respondent No. 2, CRPF for extension of deputation tenure of the petitioner for the 5th year vide letter dated 05.10.2007. Accordingly office order dated

01.11.1007 was issued by respondent No.3 (CBI).

¶6The petitioner became eligible for permanent absorption in CBI. Accordingly, on 12.12.1007 petitioner made an application for permanent absorption. Respondent No.3 (CBI) vide memo dated 12.02.2009 directed the petitioner and other eligible constables to appear for an interview on 05.03.2009 before the committee constituted by Director CBI. The Screening Committee found petitioner suitable for permanent absorption in CBI. On recommendation of the Screening Committee the Director

CBI approved absorption of petitioner in CBI.

¶7Here the problem was created by respondent No.2 (CRPF) by issuing a letter dated 29.01.2010 to the respondent No.3 (CBI) requesting to relieve the petitioner and three other persons i.e. Sh.S.K.Jadeja, Sh.Parvat Singh and Ms.Jharna Nayak for repatriation to CRPF.

¶8On

26.03.2010 respondent No.3

(CBI) addressed a letter to respondent No.2 (CRPF) requesting that as the above four persons including petitioner were found eligible for absorption in CBI by a Screening Committee and that the Director CBI had also approved their absorption as per the recommendation of the Screening Committee. Further, respondent No. 3 requested respondent No.2 (CRPF) to reconsider the matter and convey no objection for absorption of the above mentioned four persons including the petitioner.

¶9Pursuant to the request of respondent No.3 (CBI) the respondent No.2 (CRPF) granted no objection to Sh.S.K.Jadeja and Sh.Parvat Singh for permanent absorption in CBI, whereas, the petitioner was discriminated against and NOC was refused to the petitioner.

¶10The Deputy Director (Administration), CBI Headquarter, New Delhi addressed a letter dated

23.07.2010 to DIG, CBI, SC-II, New Delhi to relieve the petitioner immediately for repatriation to CRPF, pursuant to the refusal by respondent No.2 (CRPF) not granting 'No Objection' to the petitioner.

¶11Petitioner apprehending that relieving orders would be issued to him approached this Court by filing the

present writ petition. A notice was issued vide order dated

30.07.2010 in the writ petition and C.M.10040/2010 an application for stay. On the same day the order dated

23.07.2010 which is impugned in the writ petition was also stayed.

¶12The contesting respondent filed their counter affidavit stating that as per CRPF deputation policy only those constables who have completed 39 years of age can be allowed for permanent absorption in other department. Since, the petitioner had not attained the age of 39 years, he was ineligible for same and thus NOC was not allowed. Further respondent No.2 (CRPF) submitted that on receipt of the request of NOC for permanent absorption from CBI authorities, in case of four persons, including petitioner, the department conveyed NOC to only two persons as they fulfilled the eligibility criteria for permanent absorption, whereas, remaining two candidates including petitioner were not meeting the age criteria for permanent absorption, as they were short of the minimum age requirement i.e. 39 years and the petitioner was 2 years short for this.

¶13The petitioner had filed rejoinder and stated in para 2 of the rejoinder that the policy decision cited by respondent No.2 (CRPF) for not granting NOC to the petitioner is a complete sham and eye-wash with a view to mislead this Court inasmuch as many personnel of CRPF have been granted vide order dated 04.03.2011 despite not being 39 years on the date of grant of NOC. He has cited few examples which are as under:-

Force No. Name Date of Birth NOC issued on Age at time of issue of NOC 910880119 Ct.Prem Kumari

01.02.1971

27.03.2008 37 years 923040168 Ct.Champa

18.05.1969

27.02.2004 36 years 921000178 Ct.Daya Sharma

07.08.1969

27.02.2004 36 years 953356422 Ct. Kaushalya

12.09.1974 May, 2010 36 years 9132252912 Ct.Mahesh Chand Yadav

22.12.1972

31.03.2003 32 years 923020270 Ct.K.Latha

10.09.1972

31.03.2003 31 years

¶14The petitioner further alleged that respondent No.2 (CRPF) had adopted 'pick and choose' policy to grant NOC for permanent absorption of personnel in other department as is evident from the annexure filed by the respondents themselves. Inasmuch as vide letter dated

10.08.2009, respondent No.3

(CBI) had sought concurrence of respondent No.2 (CRPF) for permanent absorption of 1 head constable and 7 constables in CBI, including the petitioner. The respondent No.2 (CRPF) vide their letter dated 07.12.2009 accorded concurrence for only 1 out of 8 deputationist namely, Dimple Rani thereafter NOC was granted to 2 more deputationist namely Sh.S.K.Jadega and Mr.Parvat Singh.

¶15The petitioner further has alleged that even otherwise there is no rational reason for fixing the age limit of 39 years for granting NOC and is, therefore, arbitrary and

legible to be struck off. Further the petitioner has submitted that the CBI has been repeatedly making requests for granting of NOC for permanent absorption of the petitioner as he had become acquainted and familiarize with the working of CBI because of his long association and considering the performance of the petitioner in CBI. Further, the petitioner was found eligible for permanent absorption in CBI by a Screening Committee constituted in this regard.

¶16Since the petitioner in his rejoinder mentioned 6 names those who were 31 to 37 years of age and were granted NOC for permanent absorption in CBI, the respondent No.2 (CRPF) admitted this fact in their sur-rejoinder by giving vague reasons of issuing NOC as under:-

Sl.No. Name Reasons of issuing NOC CT/Mahila Kaushalya Competent Authority has granted NOC to her on 31/12/2009 on Compassionate Ground due to death of her husband

2.

¶3CT/Mahila K Latha

CT/GD Mahesh C Yadav Both Individual were granted NOC by thisDirectorate on 23/06/03 after approval of Ministry of Home Affairs on the file dated 28.05.2003

¶4.

5.

¶6CT/GD Mahila Prem Kumari CT/Mahila Champa CT/Mahila Daya Bal Sharma These Mahila personnel were granted NOC by the Competent Authority after taking into account special circumstances surrounding each individual's case

¶17The petitioner has relied upon the similar judgment/order dated

20.04.2009 passed in W.P.(C) 1098/2007 and W.P.(C) 1476/2007 in the lead case of Udai Pal Vs. UOI wherein the petitioners joined Border Security Force as constables on 10.04.1987. Petitioners were placed among other officers at the disposal of the Intelligence Bureau on deputation. The petitioner joined I.B. on

24.09.1999. Vide order dated 08.07.2005, I.B. repatriated the petitioner to BSF with effect from 31.07.2005. The said repatriation order initially was challenged before Central Administrative Tribunal wherein during the pendency of the aforesaid O.A., the repatriation order dated 31.07.2005 issued by the I.B. was stayed by the Tribunal vide order dated 22.07.205.

¶18Finally the aforesaid matter came before this Court in the shape of rolling stone. The matter was finally adjudicated on 20.04.2009 and the respondents were directed to formulate such a policy, whereunder, such type of issues do not raise again and again within 3 months from the date of said judgment and thereafter compliance report in respect of the same be sent to this Court and the matter was disposed of.

¶19The respondents therein had filed C.M.No.10293/2009 for the clarification that the Standing Operating Procedure 02.07.2007 and absorption of BSF personnel in other organization is not commented upon thus it is not clear whether in spite of existence of said policy

framed in compliance of order of this Court passed in a case of Shyam Singh Vs.UOI & Ors. requires the respondents to frame another policy or the respondents need to review the said policy or the said policy satisfied the requirement of formulation of such a policy where the responsibility of questioning the NOC by BSF regarding absorption of its personnel in other organization does not arise again and again.

¶20On aforesaid application order dated

21.08.2009 was passed as under:-

"21.08.2009

Present: None for the applicant. Ms.Ruchika Mittal with Mr.Surjeet Kumar Singh, Advocates.

C.M.No.10293/2009 in W.P.(C) No.1098/2007

Our judgment dated 20.04.2009 is very clear and no clarification is required. Obviously, the respondents should consider bringing the Standing Operating Procedure 12.07.2007 in in tune with the observations made by this Court in the aforesaid judgment by making necessary amendments, if needed.

This application is disposed of accordingly."

¶21We are informed the Central Government had filed Special Leave Petition before Supreme Court in the case of Udai Pal (Supra) but the same was dismissed.

¶22In the instant case, we have perused the case of six constables which respondent No.2 (CRPF) has given the reasons for issuing NOC in spite of the fact that all six are under age of 39 years on the date of grant of NOC. Against Sl.No.1 Ct./Mahila Kaushlya, NOC was granted to her on

31.12.2009 on compassionate ground due to death of her

husband. For Sl.No.2 and 3 Ct./Mahila K.Lata and Ct./GD Mahesh Yadav, both were granted NOC on 23.06.2009 after approval of Ministry of Home Affairs on file dated

28.05.2003; whereas Sl.No.4,5, and 6 Ct./GD/Mahila Prem Kumari, Ct./Mahila Champa and Ct./Mahila Dayabal Sharma respectively were granted NOC by competent authority after taking into account the special circumstances surrounding each individual's case.

¶23We see that the age of 39 years is not the hard and fast rule and the respondents are flaunting their policy as and when they feel in a favourite case.

¶24The petitioner has completed more than 7 years with respondent No.3 (CBI). There has been request again and again by the respondent No.3 (CBI) to respondent No.2

(CRPF) to issue NOC to the petitioner as he had passed through the screening and was found eligible for absorption in CBI by Screening Committee and further approved by Director, CBI for absorption, we are of the considered opinion that the petitioner is entitled for NOC.

¶25We, therefore, quash the order dated 23.07.2010 and direct the respondent No.2 (CRPF) to issue NOC in favour of the petitioner within 4 weeks from the date of the receipt of this judgment.

¶26We have come across a number of cases where no proper policy for absorption has been formulated by the paramilitary forces and we note that pick and choose and favouritism has been noticed while granting NOC for absorption in other departments.

Though vide judgment/order dated 20.04.2009 the respondents including

Ministry of Home Affairs were directed to formulate a proper policy so that it stops giving birth to such type of writ petition. But as we have been informed no policy has been formulated by the Ministry of Home Affairs till date.

¶27Though the Court should not interfere in the policies being formulated by the Government or any department of the Government but, when the Court see that there is a margin of discretion, favouritism and corruption then the Court cannot oversight such type of defective policies. The direction already passed in W.P.(C)1098/2007 and further passed clarificatory order but, we see no policy has been formulated. We again direct the respondent No.1 (Ministry of Home Affairs) to formulate the policy applicable to all the paramilitary forces within 2 months of the receipt of this order. A copy of this judgment be sent to the Secretary, Ministry of Home Affairs.

¶28The writ petition is allowed.

¶29No costs.

(SURESH KAIT) JUDGE

(PRADEEP NANDRAJOG) JUDGE

APRIL 27, 2011 'mr'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : 8th April,2011 Judgment delivered on :27th April, 2011 + W.P.(C) 5091/2010 JAGA RAM ..... Petitioner Through: Mr.Ravi Sikri and Mr.Ayushya Kumar, Advocates versus UNION OF INDIA & ORS. ….. Respondents Through: Mr.Virendra Sood and Mr.G.D.Parashar, Advocates for R-1 and 2. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to Reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES