Karnataka High Court
Sri N K Payannavar vs The State Of Karnataka on 5 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 4, 2021 (1) AKR 625
Author: R Devdas
Bench: R. Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
BEFORE
THE HON' BLE MR.JUSTICE R. DEVDAS
WRIT PETITION NO.41873 OF 2019 (S-RES)
BETWEEN
SRI N K PAYANNAVAR
S/O KALLAPPA PAYANNAVAR,
AGED ABOUT 58 YEARS,
WORKING AS DEPUTY GENERAL MANAGER,
KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED (KREDL)
REGIONAL OFFICER, NO.44, 1ST FLOOR,
ARALIKATTI BUILDING, SANMATINAGAR,
3RD MAIN, KELGERI ROAD,
DHARWAD-580008
R/O H.NO.235, "BHAVANA SUDHA",
7TH CROSS, KRUSHI COLONY,
BHAGYANAGAR, BELAGAVI-590006
...PETITIONER
(BY SRI CHANDRAKANTH R GOULAY, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS ADDL. CHIEF SECRETARY,
DEPARTMENT OF ENERGY,
VIKAS BUILDING,
BENGALURU-560001.
2
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF PUBLIC ADMINISTRATION
AND REFORMS
VIDHANA SOUDHA,
BANGALORE-560001.
3. THE CONTROLLER AND AUDIT GENERAL
IN KARNATAKA (COMMERCIAL WING)
REPRESENTED BY ITS DEPUTY
ACCOUNTANT GENERAL MANAGER
AUDIT BHAVAN, C BLOCK,
POST BAG NO.5398
BANGALORE-560001
4. THE MANAGING DIRECTOR
KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED,
NO.39, 'SHANTHI GRUHA'
BHARATH SCOUTS & GUIDES BUILDING,
PALACE ROAD,
BENGALURU-560001.
5. THE KARNATAKA STATE COUNCIL
FOR SCIENCE AND TECHNOLOGY,
INDIAN INSTITUTE OF SCIENCE CAMPUS,
BENGALURU-560012
6. THE BOARD OF DIRECTORS,
KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED
NO.39, 'SHANTHI GRUHA'
BHARATH SCOUTS & GUIDES BUILDING,
PALACE ROAD,
BENGALURU-560001
...RESPONDENTS
(BY SRI G S KANNUR, SENIOR COUNSEL FOR
SRI MURUGESH V CHARATI, ADVOCATE FOR R4 & R6
SMT M C NAGASHREE, AGA FOR R1 & R2
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SRI PRADEEP S SAWKAR, ADVOCATE &
SRI KAREESH SHARMA.M, ADVOCATE FOR R5
SMT ANUPAMA HEGDE, ASG FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD:31.8.2019 ISSUED BY THE R-4 AS PER
ANNEXURE-ZG AND ORDER DTD:3.9.2019 VIDE ANNEXURE-ZH
ISSUED BY THE R-4 AS ARBITRARY, ILLEGAL AND VOID AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 22.12.2020 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner who was initially appointed during the year 1988 with the respondent No.5-Karnataka State Council for Science and Technology (hereinafter referred to as "KSCST") as Project Manager was deputed to the respondent No.6-Karnataka Renewable Energy Development Limited (for short "KREDL"), at the request of KREDL. On being satisfied with the performance of the petitioner, the KREDL wrote to the State Government seeking permission to permanently absorb the petitioner and to promote him from the post of Technical Officer to Assistant General Manager. The State Government by order dated 16.12.2003 accorded permission to 4 permanently absorb and promote the petitioner as AGM. Consequently, by order dated 30.12.2003, passed by the 4th respondent Managing Director of KREDL, the services of the petitioner was permanently transferred from KSCST to KREDL w.e.f., 31.07.2001.
2. The Board of KREDL in its 42nd Board Meeting, resolved to promote the petitioner from the post of AGM to DGM. Consequently, the petitioner has been serving in the capacity of DGM. However, it appears that in a communication dated 03.01.2011, the Senior Audit Officer, Commercial Audit Wing of Indian Audit and Accounts Department, Office of the Principal Accountant General (C&CA), Karnataka brought to the notice of the Managing Director of KREDL several irregularities in the company, including the absorption and promotion of the petitioner, which was allegedly without following the procedure laid down in that regard.
3. Taking note of the communication dated 03.01.2011, the Board of KREDL, in its 60th meeting discussed and authorized the Managing Director to refer the matter to the Department of Personnel and Administrative Reforms (DPAR), Government of 5 Karnataka to verify and advise, taking note of the applicable Rules and Regulations. The DPAR wrote back to the Managing Director on 06.02.2016 that since the absorption and promotion of the petitioner with retrospective effect is irregular, action in accordance with law may be taken. Consequently, the Board, its 81st meeting, authorized the Managing Director of KREDL to take immediate action to withdraw the absorption and consequent promotions given to the petitioner and to relieve the petitioner from the services of the KREDL and repatriate the petitioner to his parent organization, KSCST.
4. The petitioner had approached this Court in W.P.No.63169/2019. This Court by order dated 28.02.2019, quashed the resolution passed by the Board and directed the Board to reconsider the matter in the light of the observations made therein. The petitioner was permitted to submit a representation within 10 days and the Board was directed to consider such representation and pass orders in accordance with law, within an outer limit of three months.
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5. Learned counsel for the petitioner submits that in terms of the directions given by this Court, the petitioner gave a representation dated 25.03.2019 to the respondents. Since no decision was taken, the petitioner once again gave a representation dated 09.06.2019. In the meanwhile, a joint-committee was constituted by the Board in its meeting dated 06.06.2019, consisting of the Secretary to Government, Forest, Environment and Ecology Department and the Managing Director of BESCOM, who were also on the Board of KREDL, to go into the issue. The joint committee submitted its report on 19.08.2019 holding that the deputation, absorption and promotion of the petitioner was not in accordance with law and therefore the order of absorption and promotion was directed to be withdrawn, while repatriating the petitioner to the parent organisation. The Board, in its 92nd meeting, held on 20.08.2019 resolved to accept the report of the joint committee and held that the deputation of the petitioner to KREDL was not in accordance with the rules of the KREDL. Consequently, the absorption and promotion given to the petitioner was directed to be withdrawn and repatriate the petitioner to KSCST. It was however resolved not to recover the difference of 7 salary paid to the petitioner. Following the resolution the impugned office order dated 31.08.2019 was issued by the Managing Director, KREDL to the petitioner.
6. Learned counsel for the petitioner submits that on the previous occasion, when the petitioner had approached this Court, the petitioner had drawn the attention of this Court to clause 3.8 of the Cadre and Recruitment Rules of KREDL. It is submitted that it was noticed that the Board was competent to absorb all such employees who were working since 2 years and above in the company as on the date of commencement of the Rules, either on deputation basis or on adhoc basis. It is submitted that the respondent KREDL gave an invitation by way of a written communication dated 21.05.1996 seeking consent of the petitioner and KSCST, to take the petitioner on deputation. The petitioner started working on deputation from 27.08.1996, at KREDL. The Karnataka Renewable Energy Development Services (Cadre, Recruitment and Condition of Service) Rules, 2001 came into effect in the year 2001. It is therefore submitted that dehors the deputation of the petitioner from KSCST, the Board was empowered 8 to absorb the petitioner in terms of clause 3.8 of the Rules. On deputation of the petitioner from 27.08.1996, the petitioner had completed 5 years of service on deputation. The respondent KREDL had sought for all the required information from KSCST with regard to the appointment and service conditions of the petitioner. The KREDL, thereafter sought the approval of the State Government for absorption of the petitioner. At the instance of KREDL, the KSCST had given its principle approval vide letter dated 29/30.08.2001 and 19.10.2001 to lend the services of the petitioner, permanently. On verification of the required documents and having regard to the power of the Board to absorb any employee who had put in more than two years of service as per clause 3.8, the State Government gave its approval to absorb the petitioner on 16.12.2003. The State Government had also expressly given its consent to promote the petitioner from the post of Technical Officer to AGM w.e.f., 28.08.2001. A second promotion was also given from the post of AGM to DGM, on 30.12.2006. it was also pointed out that before promotion was accorded to the petitioner, a Departmental Promotion Committee (DPC) meeting was held on 30.12.2006. Most importantly, it is submitted that the petitioner has rendered 9 blemishless service and is on the verge of retirement, with six months left to go. It is also submitted that the respondent No.5 KSCST has been on record in the statement of objections filed to this writ petition and the previous writ petition that the services of the petitioner having permanently been absorbed way back in the year 1996, there is no lien of the petitioner in KSCST. Therefore, the petitioner will be left in the lurch if the impugned order is not set aside.
7. Learned Senior Counsel Sri G.S.Kannur, appearing for KREDL draws the attention of this Court to the report submitted by the joint committee. It is submitted that the relevant provisions of law including clause 3.7, 3.8, 3.4.1 to 3.4.4 of the rules have been elaborately considered by the joint committee. It is submitted that clause 3.7 of the Rules clearly provides that Government may appoint to a post by deputation of an Officer holding equivalent/analogues post. However, such period of deputation shall not exceed three years. The committee also noticed that the term 'employee' was defined as a person who is regularly appointed to any service or post in connection with the affairs of the company. It was noticed that KSCST has given a relieving order on 10 07.01.2004, post facto, while the services of the petitioner was absorbed w.e.f., 31.07.2001.
8. On the validity of the promotion given to the petitioner, the committee noticed that in terms of clause 3.4.3 of the Rules, a promotional committee constituted by the Board was required to consider the suitability of candidates for promotion to Group-A and B posts. It was noticed that the promotion given to the petitioner from the post of Technical Officer to the post of AGM was not preceded by a DPC meeting.
9. The learned Senior Counsel further submits that the committee noticed that the initial appointment of the petitioner as Project Engineer at KSCST was a temporary appointment, on contract basis, for a period of one year, commencing from 17.11.1988. The committee also noticed that thereafter the services of the petitioner was continued until further orders. The committee has therefore held that since the petitioner was not a permanent employee of KSCST, in terms of clause 3.7, he could not be deputed to KREDL. In view of the findings of the joint committee, it is submitted that no fault could be found in the 11 decision of the Board of KREDL, in withdrawing the absorption and promotion given to the petitioner.
10. The 5th respondent KSCST has filed its objections to the writ petition reiterating its earlier stand that when once the petitioner was relieved from KSCST on permanent transfer, the lien of the petitioner in KSCST was irretrievably concluded. There being no lien of the petitioner with KSCST, question of repatriation of the petitioner to KSCST does not arise. Moreover, more than 24 years have elapsed since the lien of the petitioner was severed from KSCST, which is all the more a reason for declining to accept repatriation of the petitioner. On the allegation made by the KREDL that full information regarding the appointment and service conditions of the petitioner not being furnished to KREDL, it has been emphatically denied by KSCST. It is submitted that all the relevant information about the petitioners initial appointment on 17.11.1988, for a period of one year, the subsequent order of appointment dated 5.12.1994 until further orders, the conditions of service of the petitioner, including pay scale, leave, allowances etc., was made available to KREDL. It is submitted that the Principal 12 Secretary, Energy Department had also requested KSCST to examine and discuss the candidature of the petitioner for promotion from the post of Technical Officer to AGM. The Board of KSCST, in its 6th Board Meeting had delegated the powers to its Managing Director in terms of clause 5.10 of its Regulations for fixation of pay for deputationist upto and including the Superintending Engineers. In its 10th Board Meeting, three posts of Assistant General Manages were approved by the Board, giving powers to the Managing Directors to fill up the posts at his sole discretion, depending on the business exigencies. The Cadre and Recruitment Rules of KREDL was approved by the Board of KREDL on 27.09.1999. While discussing the request for promotion of the petitioner to the post of AGM, the subject was taken up by the Board as supplement to the main agenda. The Board took a conscious decision, having regard to all the above aspects and since the Government had directed appointment of the petitioner to the post of AGM and fixation of pay scale applicable to the posts, the Board appointed the petitioner as AGM and fixed his pay scale. All this information is available in the communication dated 03.02.2004, made by the Secretary of KSCST to the Managing Director, KREDL. In the said communication it is 13 also stated that the original service register of the petitioner, duly signed is stated have been furnished to KREDL for permanent record of KREDL. When the first proposal was given during January
- February, 2016, to repatriate the services of the petitioner to KSCST, the concerned Minister for Energy, by order dated 16.09.2016, communicated to the Addl. Chief Secretary, Energy Department that the petitioner had rendered service for more than 15 years at KREDL and it is not right to consider repatriation of the petitioner. The learned counsel representing KSCST, submits that the decision of KREDL to withdraw the order of deputation and promotions of the petitioner and to repatriate him to KSCST, is unacceptable.
11. Heard the learned counsels and perused the petition papers.
12. The entire episode of reconsideration of the deputation and repatriation of the petitioner seems to have stemmed from the objection note put up by the Senior Audit Officer while going into the irregularities at KREDL. In the earlier round of litigation, in W.P.No.63169/2016, in the order dated 29.02.2019, this Court had 14 referred to clause 3.8 of the Regulations of KREDL. It was observed that the Board was competent to absorb all such employees who were working for not less than two years in the company as on the date of commencement of the Rules. While remanding the matter back to the Board for fresh consideration, this Court had directed the Board to consider the matter in the light of the observations made by this Court. It is another matter that the Board deputed the decision making process to a joint committee. The committee has not bestowed its attention to clause 3.8 of the Regulations and the observations made by this Court. Sufficient material has been placed before this Court in the form of Annexures - A20, 21, 22, 23 and 24 to show that the Board of KREDL had acted in terms of clause 3.8 of the Regulations and absorbed the services of the several persons on regular basis and confirmed their services in the company. Such a benefit was not given to the petitioner, though he was entitled for absorption. In para No.12 and 13 of the order passed by this Court, the relevant aspects which were required to be considered by the Board was also noticed. This Court had observed that when the State Government communicated to KREDL on 16.12.2003, it had clearly stated that KREDL may permanently 15 appoint the petitioner as AGM. It was on the basis of the approval granted by the State Government that KREDL permanently appointed the petitioner. It was noticed that both the absorption and promotion of the petitioner was with the prior permission of the State Government. It was therefore held that even if there was an irregularity, the same stood ratified at the hands of the State Government. On the question of pay scale, this court had observed that the records demonstrate that at the time of deputation of the petitioner to KREDL and when the order of absorption and promotion was passed, the petitioner was receiving regular pay scale attached to the post of Technical Officer and therefore even if the regularisation was with retrospective effect, KREDL did not incur additional financial burden.
13. The learned Senior Counsel for KREDL had made reference to certain provisions in the KSCST Service Rules, 1984 to buttress his argument that the petitioner was appointed to a temporary post and unless a person is a permanent employee, he could not have been deputed to KREDL. There are two kinds of posts at the KSCST, permanent and temporary posts. Both 16 permanent and temporary posts are posts sanctioned by the Executive Committee, but while the permanent posts are without any time limit, the temporary posts are for a fixed period. It is not in dispute that the petitioner was initially appointed as Technical Officer on 17.11.1988, for a period of one year. Nevertheless, he was continued with artificial breaks. By order dated 05.12.1994, the petitioner was continued in the said post, until further orders. When admittedly the post of Technical Officer is a sanctioned post and in the order dated 05.12.1994, the services of the petitioner was to be continued until further orders, the same would amount to permanent appointment, in terms of clause 13.1.1 read with clause 11.1 of the Rules, 1984. The Board of KREDL has not gone into all these aspects.
14. It is by now well settled that repatriation of an employee cannot be ordered if the lien is not continued in the parent department. This Court is also of the opinion that the question of validity of the appointment cannot be reopened at the fag end of the career of an employee. This view is fortified by a decision of a Division Bench of Patna High Court in the case of 17 Ashok Kumar and others /vs./ State of Bihar and others, reported in 1994 (2) BLJ 499. It was held that even if the appointment of the petitioner were initially wrong, after regularisation the question of the validity of the appointment cannot be reopened after a lapse of about 12 years. In the case of Rabindranath Bose and others /vs./ Union of India and others reported in (1970) 1 SCC 84 ,it was held that Courts should not be anxious to throw out petitions, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the rights of an employee which had accrued to him. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of number of years.
15. In the case of T.Shantharam /vs./ State of Karnataka and others, reported in (1995) 2 SCC 538, the Apex court held that though initially a person might have mistakenly been deputed to hold higher post, however, since such an employee had obviously discharged his duties and higher 18 responsibilities to the satisfaction of all concerned, at this distance of time, it is highly unjust to send him back to hold the post in the parent department which he was entitled to hold. The Apex Court set aside the order of the Tribunal which had interfered with the action of the department which had absorbed the appellant therein as per its earlier orders.
16. As noticed earlier, the petitioner was absorbed on deputation in the year 1996 and is due to attain the age of superannuation six months hence. The action initiated by the Board of KREDL is on the basis of the Audit Objections. The objections are based on certain technicalities and definitely not making any allegations against the petitioner. For the reasons stated above, this Court is of the considered opinion that the impugned order repatriating the petitioner to his parent department cannot be sustained.
17. As a result, the writ petition is allowed. The impugned order dated 31.08.2019 at Annexure-ZG and order dated 03.09.2019 at Annexure-ZH are hereby quashed and set aside. 19 The petitioner shall continue as Deputy General Manager at KREDL till he attains the age of superannuation. The petitioner shall be entitled to all consequential benefits, subject to any pending disciplinary proceedings.
18. In view of the disposal of the main matter, all pending interlocutory applications do not survive for consideration and are accordingly disposed of.
Ordered accordingly.
SD/-
JUDGE KLY/