Month: April 2023

-Report by Moksh Kapoor

The appellant’s contention was set aside by the Supreme Court in the case of RAJIV KUMAR JINDAL AND OTHERS VERSUS BCI STAFF COLONY RESIDENTIAL WELFARE ASSOCIATION AND OTHER. Decided on 27-04-2023.

FACTS

BCI was deemed a sick company, and assets of BCI were disposed of in accordance with the directions of the Board for Industrial and Financial Reconstruction. (BIFR) commenced the procedure of inviting sealed cover proposals for the sale of assets of the captioned unit under Section 20(4) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the “Act 1985”) through IDBI – the Operating Agency. In a public notice dated May 24, 2004, offers were invited for various blocks, with the interested parties being asked to deposit earnest money of Rs.6 lakhs for Block IV and submit their tenders in a sealed cover within 30 days of the date of the 3 advertisements, and for further information, the interested parties may contact Mr. P.M. Nair, DGM, IDBI, Mumbai, the office of the BIFR’s Assets Sale Committee, and the agency reserved the right to accept or reject any bid without assigning any reason. In accordance with Section 21(c) of the Act, 1985, the Operating Agency was required to evaluate the realisable value of the property from the approved valuer and then notify the reserve price in the auction notice, which was not done, and the solitary bid submitted by the appellants in Civil Appeal No. 10128 of 2011 of Rs.2,84,00,000/- on 22nd June 2004 was accepted by the authority. The appellants were directed to provide a bank guarantee for a bid value of Rs.2,84,00,000/- for a term of one year by August 27, 2004, and to deposit payment in instalments. The appellants were hesitant to provide the bank guarantee of Rs.2,84,00,000/ from the start, but they allegedly showed their willingness to pay the value of the assets in accordance with the bid within six months. However, the appellants did not submit a bank guarantee of Rs.2,84,00,000/- or deposit a penny after the ASC approved the proposal by communication dated August 12, 2004. Because the appellants (in this case) are unwilling to follow the ASC rules, the Bench declined to accept the proposal.

APPELLANT’S CONTENTION 

The advertisement was published by the IDBI (Operating Agency), but the ASC guidelines were not attached, and the parties were not informed. They are required to furnish a bank guarantee as security for the bid amount, and requiring the appellants to act on the guidelines and furnish a bank guarantee at the stage of bid acceptance was not justified, as determined by the AAIFR in its order dated 1st April 2005, and which has not been properly appreciated by the High Court. Appellants paid the entire sale consideration on June 3rd and 7th, 2005, in accordance with the tripartite Memorandum of Understanding. The High Court made a manifest error in failing to consider that once the auction sale is confirmed, objections to the said auction can only be entertained if there are material irregularities and fraud appellants had scrupulously adhered to the conditions of the ASC and were ready to pay the entire saleconsideration, and until September 2004, the appellants were never informed that a bank guarantee equal to the bid sum would be required. The appellants herein made over the bid sum of Rs.2,84,00,000/- on 3rd and 7th June 2005, immediately after their appeal was approved by the AAIFR, and hence there was no breach of any terms and circumstances of the sale of assets.

RESPONDENT’S CONTENTION

The appellants submitted an offer of Rs.3 crores, which was more than their bid in Civil Appeal No.10128 of 2011, and they were successfully residing for a sufficiently long time over the property in question put up for auction, at the very least they seek the Court’s indulgence that their offer 2 (2018) 8 SCC 243 10 be accepted and the authorities be directed to execute the sale certificate in their favour the employees of the company in liquidation have not participated in the proceedings but their dues are still outstanding and could not have been made over in the absence of funds available. Upholding the Division Bench of the High Court’s decision, the BIFR or the Official Liquidator may be summoned to launch a new bidding procedure to maximise the value of the property that may provide some comfort to the staff whose dues have been outstanding for a long time and they have a superior claim over the company’s financial creditors in a liquidation.

JUDGEMENT

Undisputedly, the appellants (auction bidder) have not paid the selling consideration in accordance with clause (h) of the rules, nor have they provided the bank guarantee within 15 days of the acceptance of the offer bid in accordance with the guidelines’ clause (i). When the case was heard by the BIFR, the Bench noted that the appellants, M/s Rajiv Kumar Jindal and others, were the lone bidder for Block IV of the Rajpura Unit and had not followed the ASC criteria. Taking both facts into account; (i) the appellant being the lone bidder; and (ii) ASC guidelines not being followed, the appellants’ bid was not confirmed, However, when the appellants filed an appeal, the AAIFR ignored the fact that the ASC’s standards were not followed and the appellant was wrongfully convicted, The single bidder, because there was no competition bidding, which is usually important to ensure that the property’s worth is maximised. The Tripartite MOU was executed with no substance because the procedure initiated by the Operating Agency in the first instance was defective from the start, and prior to the initiation of the 20 auction proceedings, neither the value of the property was assessed through the approved valuer nor the reserve price was notified in the auction notice dated May 24, 2004, The appellants’ money paid in Civil Appeal No. 10128 of 2011 shall be refunded in accordance with the impugned High Court ruling dated February 5th, 2010. Simultaneously, the official liquidator may use all reasonable means to obtain the highest possible value for the property in order to achieve the purpose of public auction.

READ FULL JUDGEMENT: https://bit.ly/42aWVRn

-Report by Sejal Jethva

The State of Uttar Pradesh and Others v. Rachna Hills and Others this instance, Section 16-FF of the Act and Regulation 17 of the Regulations outlines the process for choosing and appointing heads of institutions and teachers at minority institutions. Although the specific selection process is outlined in Regulation 17, Section 16-FF, subsection (3) of the Act requires that the District Inspector of Schools provide his or her approval before appointing a teacher.

FACTS

Two minority institutions took the lead in the teacher selection process and submitted their requests for DIOS clearance. The Government changed Regulation 17 to include a new selection process before the required permission was given. In order to ensure that the proposal complied with the new method, the DIOS returned it. By submitting writ petitions in accordance with Article 226 of the Constitution, the institutions contested the DIOS’s decision forcing the Management to abide by the new Rules.

According to the decisions challenged before us, the High Court determined that the selection process was complete and the suggested candidates had a vested right to be appointed after Management sent the names to the DIOS for approval. The High Court also made reference to and relied on the rule that vacancies that occur before rules are amended must be regulated by the rules in effect at the time of the occurrence of the vacancy. We are hearing an appeal from the State of U.P.

APPELLANT’S CONTENTION

We have maintained that the selection process doesn’t end until the DIOS has given its required clearance. A considered appointment has no place, according to our analysis of the legislative framework and the supporting laws. Additionally, we have made it clear that in light of recent decisions by this Court, the concept used by the High Court in order to apply outdated standards to previous vacancies is neither appropriate to the circumstances of the current cases nor sound legal precedent.

RESPONDENT’S CONTENTION

The Respondent-candidates appealed the DIOS’s judgment in question by submitting a writ petition to Allahabad’s High Court of Judicature4. The judgment was overturned and the DIOS was instructed to rethink it by the learned Single Judge in an order dated 07.05.2018 on the grounds that the modified Regulations would not apply because the selection procedure had reached its conclusion.

JUDGMENT

1. In order to evaluate the Respondents’ claims that individuals whose names are submitted to the Management for approval by the DIOS acquire a vested right to be appointed as Teachers, it is important to look at Section 16-FF.

2. Respondents claim that in accordance with Regulation 1815, suggested candidates should be presumed to have been appointed if the DIOS fails to approve them within 15 days following the Management’s proposal.

3. The Division Bench and the High Court’s Single Judge accepted the selected candidates’ argument that the 19 Rules and Regulations in effect at the time the vacancies arose and not the Regulations that would later be amended could only be used to fill the vacancies for the post of a teacher.

4. In light of the law’s unambiguous formulation, we have no qualms about rejecting the learned counsels for the respondents’ argument that the vacancies that existed before the alteration to Regulation 17 of Chapter II must be regulated by unaltered norms.

5. Civil Appeal No. 1882 of 2023, Civil Appeal No. 1883 of 2023, and Civil Appeal No. 1884 of 2023 are all accepted for the reasons mentioned above. As a result, the decisions rendered by the High Court of Judicature in Allahabad on January 16, 2019, January 16, 2019, and January 18, 2019, in the cases of Special Appeal Defective No. 42 of 2019 and Writ Appeal No. 27341 of 2018 and Special Appeal Defective No. 38 of 2019, respectively, are annulled.

6. No cost-related order.

READ FULL JUDGEMENT: https://bit.ly/3LAs0Y3

About Firm

Founded in 1985 by Mr V Lakshmikumaran and Mr V Sridharan with humble beginnings, the firm started with a Tax Practice but has gradually expanded to other areas. We are now a full-service law firm offering litigation, consulting and advisory services in Tax, International Trade, Corporate, Commercial Dispute Resolution, Intellectual Property Rights and Food Safety Law through the support of our 700+ professionals.

Job Title

Associate – Customs Litigation

Requirements

• Qualification: LLB from a known Law School with a strong academic track record.
• Prior experience in Indirect Tax would be preferred i. e. Customs, Foreign Trade Policy, Special Economic Zone, etc.
• Excellent communication skills (written and verbal in English) and a well-rounded personality.
• Experience: 0-2 years of experience

Responsibilities

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The chambers of Mr. Anirban Bhattacharya is inviting applications for the post of Associate.

Experience Required

0-3 years

Areas of practice

Insolvency and Bankruptcy Code, Criminal Law and Litigation, White Collar crimes, Corporate and Commercial Litigation, Property, Arbitration, Consumer Protection, and General Civil Laws.

Forums

Supreme Court, Delhi High Court, District Courts of Delhi NCR, National Company Law Tribunal, National Company Law Appellate Tribunal, National Consumer Disputes Redressal Commission.

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C-465, LGF, Defence Colony, New Delhi

Position

Associate

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In-office

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Full-time

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Interested candidates may send their CV at anirban@ablawchambers.in , with the email subject *“Application for the Position of Associate.”

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Any final-year law student or a second-year student of three years law course and a fourth or fifth-year student of five years law course.

Responsibilities

1) Legal Research
2) Maintaining Case Files and updating Case Status
3) Drafting legal Documents including but not limited to Legal Notice, Agreements
4) Attending Court Hearings.

Skills

1) Strong Research and Analytical Skills.
2) Excellent Communication and interpersonal skits.
3) Ability to work as part of a team.
4) Ability to manage multiple tasks and prioritize work.

Work Area

Delhi High Court and District Courts in Delhi NCR and tribunals.

Application Procedure

Interested candidates may send their 2-page CV to Deepakjoshiclc@gmail.com with the subject title CV for internship.

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Lexpeeps Pvt. ltd. is an organization that works to assist and help law schools in organizing and managing their events. We’re seeking to provide young and dynamic law students with a platform to experience the legal world in their academic capacities. We organize different events where budding lawyers can experience the legal world. With a self-directed educational strategy and the guidance of industry experts, Lexpeeps also provide you with the recent happening in the legal world in the form of news, opportunities where you can find what suits you the best, articles to explore your interests, and many more.

Lexpeeps Placement Cell established in 2021 operates with a vision to ensure maximum placement of students studying in different law schools across the country. The sole purpose of Lexpeeps Pvt. Ltd. is to provide law students and law schools quality and to create value for the legal fraternity.

Lexpeeps Xcell is an Initiative of Lexpeeps Pvt Ltd to bring the practical aspects of law subjects to the desk of law students via personalized and curated courses.

Lexpeeps provides you with internships, where legal experts and budding lawyers come in touch with each other and grow by associating with the company. Lexpeeps Pvt. Ltd. has taken an oath to ensure the right of the student and to help them in every possible way so that they reach immense heights of success.

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• Reviewing two legal news and preparing an analysis of the same on a daily basis
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• Analyzing weekly important judgments and key happenings

Eligibility:

• The students currently pursuing their bachelor’s degree in law i.e., a 3-Year LL.B. course or 5-Year LL.B. course from any recognized university/college in India.
• A student pursuing their Post Graduation.

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• Internship Certificate on completion of the internship.
• Best Research intern of the month award.
• Discount on paid events organized by Lexpeeps Pvt. Ltd.
• Publication on Lexpeeps blogs
• Live session every Saturday/ Sunday for our interns to boost their legal researching skills. (Optional)

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About Lexpeeps Pvt. Ltd.

Lexpeeps Pvt. Ltd. is an organization that works to assist and help law schools in organizing and managing their events. We’re seeking to provide young and dynamic law students with a platform to experience the legal world in their academic capacities. We organize different events where budding lawyers can experience the legal world. With a self-directed educational strategy and the guidance of industry experts, Lexpeeps also provide you with the recent happening in the legal world in the form of news, opportunities where you can find what suits you the best, articles to explore your interests and many more.

Lexpeeps Placement Cell established in 2021 operates with a vision to ensure maximum placement of students studying in different law schools across the country. The sole purpose of Lexpeeps Pvt. Ltd. is to provide law students and law schools quality and to create value for the legal fraternity

Lexpeeps Xcell is an Initiative of Lexpeeps Pvt Ltd to bring the practical aspects of law subjects to the desk of law students via personalized and curated courses.

Lexpeeps provides you with internships, where legal experts and budding lawyers come in touch with each other and grow by associating with the company. Lexpeeps Pvt. Ltd. has taken an oath to ensure the right of the student and to help them in every possible way so that they reach immense heights of success.

“Lexpeeps Pvt. Ltd. thrives on commitment and creativity”.

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• To research legal articles and draft an article.
• To analyze different cases allotted.

Required Skills:

• The Student should have good research and article drafting skills.
• Must have relevant information about the allotted work

Eligibility:

• The students currently pursuing their bachelor’s degree in law i.e., a 3-Year LL.B. course or 5-Year LL.B. course from any recognized university/college in India.
• A student pursuing their Post Graduation.

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Online

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• Internship Certificate on completion of the internship.
• Best Research intern of the month award.
• Discount on paid events organized by Lexpeeps Pvt. Ltd.
• Publication on Lexpeeps blogs
• Work Opportunity at Lexpeeps Pvt. Ltd.

Stipend:

None

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-Report by Neha Mishra

In the case of STATE OF GUJARAT VS DR. P. A BHATT, the question of whether Allopathy doctors and doctors of indigenous medicine can be said to be performing “equal work” so as to be entitled to “equal pay” is answered.

FACTS

A High-Power Committee was established on May 3, 1990, with Shri R.K. Tikku as its chairman, to enhance the working conditions and career prospects for doctors employed by the government. This was done by a Memorandum of Settlement signed by the Ministry of Health and Family Welfare on August 21, 1989, and the Joint Action Council of Service Doctors Organisation. This committee held 30 meetings between June 1990 and October 1990, and on October 31, 1990, it issued a report with its recommendations. The recommendations in this Report were only applicable to service physicians with MBBS degrees, post-graduate medical degrees, degrees in super-specialities, and individuals working on both the teaching and nonteaching sides of medicine.

The Ministry of Health and Family Welfare established a second High-Power Committee on November 19, 1990, with the same person serving as its chairman—Shri R.K. Tikku—toconsider career advancement and cadre restructuring for practitioners of Indian Systems of Medicine and Homoeopathy. On February 26, 1991, this Committee issued a second Report that was limited to individuals who practised alternative systems of medicine and had degrees in Ayurveda, Unani, Siddha, or homoeopathy.

The Local Fund Audit, Ahmedabad requested clarifications via letters dated 04.03.1998 and 21.04.1998, as to whether the same benefits are available to non-MBBS medical officers holding qualifications such as G.A.F.M/LMP, following the implementation of the recommendations of the Tikku Committee dated 31.10.1990 in respect of allopathic doctors in the State of Gujarat by the Government Resolution dated 17.10.1994.

In response, the Gujarati government’s Health and Family Welfare Department published a government resolution stating that non-MBBS medical officers are also qualified for the benefit. In addition, this letter indicated that, by a government resolution dated 01.07.1997, the Tikku Committee’s recommendations were extended to physicians who were covered by the Employees State Insurance Scheme.

The respondents in this case, who were initially hired on an as-needed basis under the “Community Health Volunteer Medical Officers Scheme” put forth by the Government of India and who were subsequently absorbed by the State of Gujarat in May 1999, filed four writ petitions on the file of the High Court of Gujarat seeking an extension of the benefit of higher pay scales based on the recommendations of the Tikku Pay Commission. The Medical Officers (Ayurved) Association, made up of individuals initially appointed as Medical Officers Class-III, filed a separate writ petition. This Association requested a similar remedy to that outlined in the group of four writ petitions.

The High Court’s Division Bench dismissed all intra-court appeals, ruling that (i) non-MBBS doctors and MBBS doctors both belong to the same cadre and that, as a result, there may be no discrimination based on educational background; and (ii) non-MBBS doctors were performing the same duties and functions as MBBS doctors and even manning primary health centres independently, making them equally qualified for employment.

PETITIONER’S CONTENTION

On behalf of the State, it is argued that the recommendations of the Tikku Pay Commission for raising pay scales were per se applicable only to MBBS doctors; that the revision of pay scales in favour of allopathic physicians was justified by the ongoing shortage of allopathic physicians; and that the State Government had to fulfil its constitutional duty to provide adequate healthcare infrastructure. 

The assailed order is incorrect in law and law and on facts because the High Court shamefully failed to recognize the fundamentally distinct nature of duties and responsibilities undertaken by Allopathy doctors and AYUSH doctors.

RESPONDENT’S CONTENTION

The learned attorney for the respondents responds by arguing that both Allopathy and AYUSH doctors are appointed to the position of Medical Officer falling under Class-II of Gujarat Medical Services; that once individuals with various qualifications are appointed to one unified cadre with a common pay scale and governed by one set of rules, then at a later stage, the Government cannot make a classification; and that all Medical Officers, regardless of their educational backgrounds, are subject to the same rules.

The appeals are likely to be dismissed because the findings of fact made by the learned Single Judge and the Division Bench of the High Court that both types of doctors are conducting equivalent work do not call for any interference under Article 136 of the Constitution.

JUDGEMENT

In our judgment, two issues come up for discussion in these appeals. They are: (i) Is it possible to set different pay scales for officers appointed to the same cadre based on their educational backgrounds? (ii) Can allopathic physicians and practitioners of indigenous medicine be deemed to have “equal work” to warrant “equal pay”?

This Court determined that the classification of Tracers into two pay scales—one for matriculates with a higher pay scale and the other for nonmatriculated with a lower pay scale—does not violate Articles 14 and 16 of the Constitution.

Doctors who practice allopathy must handle emergencies and treat trauma patients. The emergency duties and trauma care that Allopathy doctors are capable of executing, as well as the advancements in science and current medical technology, cannot be performed by Ayurvedic doctors due to the nature of their practice and the advancements in science and modern medical technology.

Ayurved doctors are also unable to assist surgeons in undertaking difficult surgeries, but MBBS doctors can. We do not intend for this to imply that one medical system is better than another. It is well known that MBBS doctors are required to care for hundreds of patients during outpatient days (OPD) in ordinary hospitals in cities and towns, however, this is not the case with Ayurvedic doctors.

We are unable to distinguish between Ayurvedic physicians who have already obtained some benefits thanks to the temporary injunction issued by this Court and those who have not.Additionally, we cannot ignore the fundamental rule that states a person cannot be permitted to keep a benefit obtained through an interim order issued by a court if the case’s final result was averse to that person.

As a result, all appeals are granted, the High Court’s contested order is revoked, and the respondents’ writ petitions are denied. All interlocutory applications, including the impleadment application(s), and the contempt petitions are likewise rejected. No fees

READ FULL JUDGEMENT: https://bit.ly/3Nol96x

-Report by Utkarsh Kamal

In the present case supreme court discusses the conviction when the trails court records are absent and can not be obtained. White discussing the present case by the division bench of Justice Krishna Murari and Justice Sanjay Karol observed that the job of the Court of Appeal is not to depend on the lower Court’s judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon…Had there been properly preserved records of the Trial Court, the issue in the present appeal as to whether the High Court could uphold a conviction having not perused the complete Trial Court record, would not have arisen they also talk about the digitalisation of the court for smoothening the judicial process.

Facts of the case:

The prosecution has been successful in proving that accused J.K Rode being working at the post of a   Public   Servant as   Assistant   Commercial Manager,   Northern   Railway,   Lucknow made a 2 demand of   Rupees   Five   Hundred from   Chief Ticket   Inspector   Shri   Jai   Prakash   Narayan Upadhyay on 03.05.95 to dispose of the charge sheet issued against him. He was caught red-handed receiving the bribe on 03.05.95. He received Rs. 500 (Rupees five hundred) from said J.P.N Upadhya being posted as a public servant misusing his post as a public servant for his gain in a corrupt and illegal manner.   Thus,   the offence under sections 7, 13(1) and 13(2) of the PC Act 1988 is proved against the accused and he is liable to be punished for these charges. Accused is on bail and his bail bonds are discharged. The accused should be taken into custody then the accused person moves to the High Court where the High Court upheld the conviction of the accused person.

Legal issue:

1)Whether in the absence of the records of the Court of Trial, the appellate Court could have upheld the conviction and enhanced the quantum of the fine.

2)Whether, given the language employed under Section 385 of CrPC, the present situation constitutes a violation of the accused’s fundamental rights under Article 21 of the Indian constitution

Related laws:

1)Sec 7 of the Prevention of corruption act: Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

2) Sec 13(1),Sec13(2) of the prevention of the corruption act 

3)SEC.385. of Criminal Procedure code Procedure for hearing appeals not dismissed summarily.—(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given—

(i) to the Appellant or his pleader;

(ii) to such officer as the State Government may appoint on this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;

Appellant’s contention:

On the surface of the record, it is clear that the relevant portions of the record, in particular, could never have been recreated by the relevant District Court. Despite this, the Court sustained the conviction on the basis of the partially reconstructed record, which only contained a few documents, such as the FIR. The knowledgeable attorney for the appellant claims that the law is clear on the matter and that without these records, it is impossible to say that a conviction was obtained on solid evidence and is therefore subject to being overturned.

Respondent’s contention : 

Not every conviction alters a person’s personality forever. A conviction may occasionally have little to no effect on a person’s behaviour and character. Furthermore, even though key evidence was lacking, it would be reasonable to uphold the conviction in particular circumstances. Although 500 rupees may not seem like much, if the evidence leads to a conviction, the accused should still be held accountable for their acts. The absence of an appeal does not necessarily imply that the defendant is innocent or deserves a second chance. Instead, in order to reach a fair and just judgment, the relevant data should be thoroughly analyzed and taken into account

Judgment: 

The Court of Appeal’s responsibility is to reach a decision on the matter “based on the record available to duly called from the Trial Court and the arguments advanced before it,” rather than relying on the lower court’s decision to affirm the conviction. The Court further held that in the absence of a fair legal process, the protection of Article 21 rights includes the freedom from any restrictions thereon. This includes the right of the person filing an appeal to contest the findings of fact made by the trial court, which can only be done when the record is available to the Court of Appeal. We hold that noncompliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find to be the case in the instant case. Therefore, in the considered opinion of this Court, it is not within prudence to lay down a straightjacket formula.

As a result, the Court overturned the appellant’s conviction.

Court also directed the High Court to the digitization of the lower courts so these kinds of situations could not arise in the future.

READ FULL JUDGEMENT: https://bit.ly/3oRvPjS

-Report Himanshi Chauhan

The recent judgement of P.V. Satheesan v. UOI & Ors deals with the question that whether a person can get absorbed in the department to which he had gone on deputation. Herein, the original application of the person was rejected by the Tribunal. Therefore, a writ petition was filed in the Delhi High Court challenging the order passed by the Tribunal.

FACTUAL BACKGROUND:

The petitioner was appointed as LDC in General Reserve Engineering Force (‘GREF’ in short). He was selected as LDC on a deputation basis in CBI on September 13, 2002. He initially worked in Chennai. In 2004, he applied for permanent absorption in CBI. Subsequently, on May 3, 2005, he was transferred to Delhi. CBI required a NOC for the petitioner’s permanent absorption in CBI. According to the petitioner, on March 24, 2005, GRPF/ parent department issued NOC for his absorption. But even after submitting NOC, CBI did not absorb deputationist as LDC/ SCS in CBI.

Thereafter, CBI requested for further extension of the petitioner’s deputation in CBI but the GREF did not accede to the same request. Accordingly, the Head Office of CBI vides Fax directed SP, CBI, AC-II to repatriate the petitioner to his parent department by March 26, 2006. 

Therefore, the petitioner approached the Central Administrative Tribunal, Principal Bench, New Delhi. However, the original application of the petitioner was dismissed by the Tribunal stating that a person underlying deputation has no right to continue for long on deputation or get absorbed in the department to which he had gone on the department. 

The petitioner, therefore, aggrieved by the order of the Tribunal moves to the Delhi High Court.

PETITIONER’S CONTENTIONS:

➢ The learned counsel for the petitioner submits that the petitioner joined the CBI on December 10, 2002, on a deputation basis and subsequently, as requested by the CBI, the GREF gave NOC for the absorption of the petitioner. However, after receiving NOC, the CBI denied the permanent absorption of the petitioner.

➢ The learned counsel further submits that the petitioner has served CBI for more than 20 years and in fact, he is superannuating on April 30, 2023.

➢ Furthermore, during his service in CBI, his work has been appreciated by the CBI by conferring “CBI Day Award”, “ATI UTKRISHT SEWA PATAK, 2016” and Commendation Certificates in 2006, 2015, 2016 & 2017.

➢ The learned counsel further submits that in the given background, if the petitioner is compelled to be repatriated then his entire family would be put to irreparable loss and injury.

➢ The learned counsel further states that it would be inequitable for the respondents to repatriate the petitioner to GREF, at this point, when the petitioner is on the verge of retirement after putting in more than 20 years of service which is more than his tenure in GREF.

RESPONDENT’S CONTENTIONS:

➢ The learned counsel for the respondent (CBI) submitted that the petitioner cannot claim absorption as a matter of right when CBI has already decided not to absorb deputation’s LDC/ SCS. 

➢ He also submitted that, since 2005, no absorption of deputations LDC/ SCS has been effected.

➢ The learned counsel further relied upon the judgment of the Supreme Court in the case of Kunal Nanda v. UOI & Anr., (2000) 5 SCC 362, in this case, the petitioner, who had come on deputation from CRPF, sought his absorption in CBI. This request was rejected and he was repatriated. The decision was upheld by the Supreme Court. The learned counsel, therefore, contends that similar should be the outcome in this case as well.

JUDGEMENT:

The Delhi High Court observes that the petitioner has worked for 12 years in GREF as against 20 years of service in the CBI. Therefore, the court held that it is inequitable to deny the absorption of the petitioner in CBI. Insofar as the judgement of Kunal Nanda is concerned, the same shall not be applicable to the facts of this case, as the CBI (in that case) has rejected the prayer of the petitioner for absorption in CBI on the ground of unreliability. But in the present case, there is no issue of integrity raised by the CBI against the petitioner herein.

Thereby, the High Court opined that the petitioner should be absorbed in the CBI from the date when NOC was given by the GREF with all the consequential benefits that would flow pursuant to his absorption in CBI from that date. Accordingly, the Hon’ble High Court set aside the impugned order passed by the Tribunal.

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