If an employee selected on deputation basis, has right to be absorbed in an central autonomous body covered under DoPT recruitment rules for class- I post. He has worked for 2.5 years on deputation basis with provision of absorption in his appointment letter like " based on his performance, he can even be absorbed". Under what condition he can be absorbed. Initially, Post is advertised for deputation. Is it necessary to advertise the post for absorption? please provide copies all judgements of supreme court of India for absorption.
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The post to be absorbed from the cadre of deputation, then no advertisement is required to be made.
Only in the case of fresh appointment such advertisement is done. For internal recruitment pubic notice is not necessary.
The judicial precedents sis essential if there is rule against internal absorption without advertisement.
please provide recruitment rule of department of personal training of autonomous body , govt. of India. What is rule of absorption if working on deputation basis selected by the competent authority. Has the employee right of absorption? please provide list of supreme court judgement copies of absorption. can he file a writ for absorption and for stay on current post in a high court.
Unless there is Rule of absorption there is no right of it even after deputation of many ears.
In the case of Kunal Nanda V. Union of India and Another reported in (2000) 5 SCC 362; the Honble Apex Court has been pleased to observe that a deputationist cannot assert and succeed in his claim for permanent absorption in the department where he works on deputation, unless his claim is based upon a statutory rule, regulation or order having the force of law.
35.7.1 Recruitment Rules for some posts prescribe inter-alia ‘Absorption’ as a mode of recruitment. ‘Absorption’ means permanent absorption in the post. Consultation with the UPSC is necessary in all cases of appointment by ‘Absorption’ to Group ‘A’ and Group ‘B’ posts. With a view to having a uniform approach and to enable the UPSC to consider proposals for absorption by ‘Absorption’ expeditiously, the following guidelines are laid down.
35.7.2 Cases of absorption fall into two categories viz.
Where Recruitment rules provide for appointment by Deputation/Absorption and the proposal is only to absorb an officer already selected on deputation.
Where Recruitment Rules provide for Deputation only at the time of initial selection of the officer concerned, but have been amended subsequently to include Absorption.
35.7.3 So far as the first category is concerned, the Commission will consider the proposals for absorption where the following conditions are fulfilled:-
The initial selection on deputation basis should have been made in consultation with the commission.
The administrative Department should certify that there is no other deputationist in position appointed earlier to the officer now proposed for absorption, and in case there is any such person, he is not willing to be considered for appointment on Absorption basis.
The person concerned and the lending authority have given their willingness for such permanent absorption.
The original circular letter calling for nomination for deputation should have clearly mentioned the possibility of permanent absorption (i.e. Absorption).
35.7.4 In the second category of cases, i.e., where ‘Absorption’ has been provided in the Rules subsequent to the selection of a person on Deputation, the Ministries/Departments should re-circulate the post, clearly indicating ‘Absorption’ as a mode of recruitment and then only make a reference to the Commission. Such circulation will also be necessary in the other category of cases if the original circular letter calling for nomination for deputation did not clearly mention the possibility of permanent absorption vide (iv) above.
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SC has ruled that no inherent right of employee to get absorb unless based on statutory rules, order having force etc.
Appointment letter speak " based on his performance, he can even be absorbed but it is discretionary and mandatory.
Yes advertisement is necessary
When an officer working outside the cadre or outside the direct line of promotion is regularly absorbed in the post/grade, the post is treated as having been filled by the method of absorption.
therefore, there is no need to advertise the post for absorption.
Regards
In the case of V. Venkata Prasad & Ors vs High Court Of A.P. it has been held that absorption is not a right
When an officer is appointed from outside the cadre or from outside the direct line of promotion for a limited period by the end of which he will have to revert to his parent cadre, he is known to be on deputation or on short-term contract.
When an officer working outside the cadre or outside the direct line of promotion is regularly absorbed in the post/grade, the post is treated as having been filled by the method of absorption.
It must be noted that Deputation is not the same as Absorption. There is a considerable distinction between the two terms. With regards to Absorption, the officer who at the onset begins in Deputation, might be absorbed into a permanent position, if the rules of recruitment impose that absorption can be given due recognition as the prescribed procedure of recruitment. Such mode can only be brought about in the circumstances of those Central or State Government officers/ officials who are already on deputation.
In the matter of State of Punjab and others v. Inder Singh and others, it is stated that the idea behind the term ‘Deputation’ is commonly understood in service law and the meaning behind it is well recognized. It is simply stated that Deputation means service outside the cadre or originating/ parent department. To depute is to transfer an employee to a post outside his original position, perhaps to a new department or new position for a temporary period. On expiration of the period of deputation, the employee must return to his original department and continue to hold the same position as held before his temporary post, unless he has during that time earned a promotion to a higher position within his parental department in accordance with the Recruitment Rules.
In another case decided by the Supreme Court, in Umapati Choudhary v. State of Bihar and Another, deputation can be appropriately defined as an assignment of the deputations(another word for an employee ) from one office or department more known as the lending authority or parent body, to a different organization or department also commonly known as the borrowing authority.
Lal Bahadur Chaudhary vs Union Of India Through Secretary on 31 March, 2015
permanent absorption after deputation
23. In the case of Kunal Nanda V. Union of India (Supra), the Honble Apex Court has been pleased to observe that a deputationist cannot assert and succeed in his claim for permanent absorption in the department where he works on deputation, unless his claim is based upon a statutory rule, regulation or order having the force of law. Once again, it is reiterated that without any rules or regulation in the respondents organization, the respondents organization absorbed seven similarly situated employees right from 1968 till 2000 and ignored the claim of the applicant whereas the landing department given there no objection for permanent absorption way back in 1995.
The decision by CAT, Lukcnow in the above case is :
31. Accordingly, the impugned orders dated 8.10.2013 and 15.12.2013 as contained in Annexure 1 and 2 are liable to be quashed and accordingly they are quashed. The respondents are directed to absorb the applicant as it has been done earlier in respect of other similarly situated persons.
32. With the above observation, O.A. is allowed. No order as to costs.
In Shri Sandesh Kumar vs Secretary on 5 November, 2014 before CAT, Delhi,
3. Whether while effecting repatriation of the applicant, have the respondents violated any rules?
4. What relief, if any, could be granted to the applicant?
9. Insofar as the first of the issues is concerned, it is well recognized that a deputationist does not have any right to continue on deputation and unless the claim of deputationist for permanent absorption is based upon any statutory rules, regulations or orders having force of law at that point of time, he cannot succeed in his claim of permanent absorption in the borrowing department. This is supported by series of cases which include cases of Kunal Nanda versus Union of India & Anr. [2000 (5) SCC 362], Rameshwar Prasav Versus Managing Director, UP Rajakiya Nirman Nigam Ltd. & Others [JT 1999 (7) SC 44] and Mahesh Kumar K. Parmar & Others versus SI.G. of Police & Others [2002 (9) SCC 485]. In the case of Union of India versus S.A. Khaliq Pasa & Anr. [Civil Appeal No.368-369 of 2009], respondent no.1, a Head Constable in the State of Andhra Pradesh, who was on deputation to the Subsidiary Intelligence Bureau ("SIB"), Ministry of Home Affairs, Hyderabad for a period of 5 years w.e.f. 09.03.1992, filed a representation in the year 2001 praying for his absorption. His representation for permanent absorption was rejected. Aggrieved, he filed Original Application before the Tribunal at its Hyderabad Bench, which was allowed with direction to give effect to the order of absorption, and sustained subsequently by the Honble High Court. The State went in appeal against the decision of the High Court. The Honble Supreme Court relying upon its earlier decision in Kunal Nanda versus Union of India & Another (supra) held that nothing was shown to substantiate that respondent had a statutory right to be absorbed in the appellants' services. However, considering the fact that since the respondent had already retired, the Honble Supreme Court, while upholding this principle, did not alter the order in the case.
17. We have already discussed all the issues individually. We start with the general principle that a deputationist would have no right to continue on deputation or for absorption unless so provided by rules and statutes, subject to suitability. Where there is no provision in the recruitment rules for absorption, question does not arise for acceding to the request of the deputation for his permanent absorption. The applicant had been brought on deputation under Recruitment Rules, 2004, which ceased to exist after promulgation of Recruitment Rules, 2011 w.e.f. 03.06.2011. As already noted above, the respondents, after having obtaining the NOC from SSB that being the parent department of the applicant, submitted the file before the Secretary of the Administrative Ministry for extension of deputation tenure for the 4th year, but the same was declined. Hence, the applicants repatriation does not attract the clause of prior notice of three months not being a case of premature repatriation.
You may find plenty of such judgments in your favor on a search.