Karnataka High Court
Sri. Venugopala M vs The State Of Karnataka on 3 August, 2012
Author: Subhash B.Adi
Bench: Subhash B. Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B. ADI
WRIT PETITION No.26294/2012(S-RES)
R
BETWEEN :
SRI. VENUGOPALA M
S/O MUNISWAMY REDDY M N
AGED ABOUT 51 YEARS
WORKING AS DEPUTY MANAGER (TECHNICAL)
KARNATAKA STATE FINANCE CORPORATION
BANGALORE, ON DEPUTATION TO
BRUHATH BENGALURU MAHANAGARA PALIKE
(BBMP) AS EXECUTIVE ENGINEER,
K R PURAM DIVISION
N.H.4, OLD MADRAS ROAD
K R PURAM, BANGALORE-560 036.
...PETITIONER
( BY SRI. B B BAJENTRI, ADV. )
AND :
1 THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA
BANGALORE-560001
2 THE COMMISSIONER
BRUHATH BENGALURU MAHANAGARA PALIKE
N R SQUARE
BANGALORE-560 002
2
3 THE MANAGING DIRECTOR
KARNATAKA STATE FINANCE CORPORATION
K S F C BHAVAN, NO.1/1, THIMMAIAH ROAD,
BANGALORE-560 052
...RESPONDENTS
( BY SMT. MANJULA KAMMADOLLI, HCGP FOR R1
SRI. I G GACHCHINAMATH, ADV. FOR R-2 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE 2ND
RESPONDENT TO CONTINUE IN THE SERVICES OF THE
PETITIONER IN BRUHATH BENGALURU MAHANAGAR PALIKE
TILL HE COMPLETES THE PERIOD OF DEPUTATION INTERMS OF
THE GOVERNMENT CIRCULAR DATD 11/11/2011 (ANNEXURE-L).
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is directed against the order of repatriation dated 30th April 2012 produced at Annexure `Q`, wherein the petitioner has been repatriated to parent department with effect from 31st July 2012.
2. The facts leading up to this case are:
The petitioner was appointed initially as a Deputy Manager (Technical) on 18.05.1987 in the third respondent - Karnataka State Finance Corporation. On formation of Bruhat Bangalore Mahanagara Palike 3 (BBMP), new zones were created and the Corporation was in need of Engineering Services. As such, the petitioner was deputed by order dated 17.01.2007 to the second respondent - Corporation. He worked up to 04.08.2010 on deputation. However, his services on deputation was continued by notification dated 04.08.2010 issued by respondent No.2 inter alia continuing the deputation of the petitioner for a further period of two years or until further orders. By order dated 26.11.2010, petitioner`s services were repatriated to the parent department. However, by another office order dated 29.11.2010, the order of repatriation was withdrawn and the petitioner was continued in the same place where he was deputed. Again on 25.06.2011, services of the petitioner were repatriated to the parent department. However, even the said order was also recalled by another office order dated 01.07.2011. Thereafter, on 28.07.2011, he was repatriated to his parent department. This order was called in question by the petitioner in W.P. Nos.29134 to 29142 of 2011, in which, the petitioner was arrayed as 6th petitioner. This Court, stayed repatriation order by its order dated 1st August 2011.
In the meanwhile, the Division Bench of this Court in writ petition No.30954/2011 by order dated 05.09.2011, directed the State to frame 4 guidelines and evolve a policy concerning the deputation of employees from other departments to BBMP and till such time, persons, who were on deputation were continued.
By order dated 11.11.2011, the Government framed scheme relating to the deputation of employees from other departments to BBMP. Thereafter, this Court, by order dated 08.02.2012, allowed W.P. Nos.29134-29142/2011 filed by the petitioner before this Court and others inter alia reserving liberty to BBMP to consider the case of the petitioners in terms of the approved policy concerning deputation of employees from other departments to BBMP dated 11.11.2011. After the disposal of the writ petitions, by order dated 30.04.2012 as per Annexure `Q`, the services of the petitioner have been repatriated to parent department with effect from 31st July 2012. It is after the said order was passed, this petitioner has filed this writ petition on 27th July 2012 anticipating that he would be relieved on 31st July 2012. In the meanwhile, the petitioner had also made a representation as per Annexure `P` dated 02.07.2012.
3. The contention of the learned counsel for the petitioner is that in view of the scheme framed by the Government dated 11.11.2011, the minimum 5 period of deputation is 3 years and as such, the petitioner, who has been on deputation from 01.07.2011 has to be continued till the expiry of the period of three years. However, contrary to the guidelines, the impugned order of repatriation has been passed.
4. Nextly, he contented that even in case of repatriation before the expiry of the said period, it should be only on the recommendation of the Commissioner - respondent No.2, but, the order of repatriation is made by the Joint Commissioner (Administration). He also relied upon the judgement of the Apex Court in (2005) 8 SCC page 394 in the matter of UNION OF INDIA VS. V. RAMA KRISHNA AND OTHERS and submitted that if the tenure is fixed for deputation, deputationist should not be withdrawn before the expiry of the said period except on the ground unsuitability or unsatisfactory performance.
5. On the other hand, the learned Government Pleader submitted that the petitioner is on deputation from 2007 till july 2012. Though there were some orders of repatriation, the same were recalled and one way or the other, the deputation of the petitioner has been continued. Even according to Annexure `E` dated 04.08.2010, petitioner was deputed only for a period of two years 6 and as such, as on 31st July 2012, the petitioner had completed more than three years of service. Alternatively, the Government Pleader also submitted that in case of deputation, the guidelines fix the upper limit of three years as the Government had noticed several of the employees, who were on deputation were continued for a longer period in the deputation post. In these circumstances, the policy was evolved to fix the upper limit as three years and the same cannot be construed as lower limit.
6. The learned counsel for the respondent No.2 - Corporation also submitted that apart from other things, the petitioner has completed more than three years of service in the Corporation and he cannot be imposed on the Corporation to continue in the same post.
7. In the light of the above submission, the points that arise for consideration is:
(i) Whether clause 3 of the scheme ensures minimum period of 3 years in the deputation post.
(ii) Whether the order impugned at annexure Q is contrary ot the repatriation scheme ?.7
8. As far as the scheme dated 11.11.2011 is concerned, clause 3 refers to the period of deputation, which means up to three years and in case if there is any need for extension, the same could be only for one year thereafter and not more than that. Clause 3 of guidelines reads as under:
"3. ¸ÀPÁðgÀzÀ DzÉñÀözÀ ¸ÀASÉåB r¦JDgï 16 J¸ïrE 83, ¢£ÁAPÀ 16-07-1983 ºÁUÀÆ PÀ£ÁðlPÀ £ÁUÀjPÀ ¸ÉêÀ ¤AiÀĪÀiÁªÀ½UÀ¼À ¤AiÀĪÀÄ 50(3) ºÁUÀÆ 419 (©) ¥ÀæPÁgÀ J¯Áè C¢üPÁj/ £ËPÀgÀgÀ ¤AiÉÄÃöd£Á CªÀ¢ü PÀqÁØAiÀĪÁV ªÀÄÆgÀÄ ªÀµÀðPÉÌ ªÀiÁvÀæ «ÄwUÉÆö½¹zÉ. C¤ªÁAiÀÄðªÁV PÉ®ªÉÆöAzÀÄ C¢üPÁj/£ËPÀgÀgÀ ¤AiÉÆöÃd£ÉAiÀÄ£ÀÄß ªÀÄÄAzÀĪÀgɸÀ®Ã§ÃPÁzÀ C¤ªÁAiÀÄð ¸ÀAzÀ¨sÀðUÀ¼À°è ¸ÀªÀÄxÀð¤ÃAiÀÄ ¸ÀPÁgÀtUÀ¼ÉÆöA¢UÉ CAvÀºÀ C¢üPÁj/ £ËPÀgÀgÀ ¤AiÉÆöÃd£Á CªÀ¢üAiÀÄ£ÀÄß ªÀÄvÉÆöÛAzÀÄ ªÀµÀðPÉÌ ªÀiÁvÀæ ªÀÄÄAzÀĪÀgɸÀ®Ä ¤AiÉÆöÃd£Á CªÀ¢ü ªÀÄÄVAiÀÄĪÀ JgÀqÀÄ wAUÀ¼À ªÀÄÄAZÉAiÀÄà DAiÀÄÄPÀÛgÀÄ ¸ÀPÁðgÀPÉÌ ²¥üÁgÀ¸ÀÄì ªÀiÁqÀvÀPÀÌzÀÄÝ. "
Reading of clause 3 makes it clear that in order to fix the upper limit of deputation, the Government has evolved a policy not to allow the employees on deputation for more than three years. However, it does not preclude the parent department to recall the person on deputation before the completion of three years.
9. The Apex Court in the judgement referred to by the learned counsel 8 for the petitioner in Union of India`s case referred supra at para 32, has observed that the deputationist has no legal right to continue in a post. A deputationist indisputably has no right to be absorbed in the post to which, he is deputed. However, the Apex Court has also observed that if the tenure of deputation is specified, despite a deputationist not having an infeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on ground of unsuitability or unsatisfactory performance, otherwise, the repatriation can be only questioned on mala fides. Para 32 of the said judgement reads as under:
"32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It maybe true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure 9 is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post- haste manned also indicates malice. (see Bahadursinh lakhubhai Gohil v. Jagdishbhai M.Kamalia SCC para 25).
10. From the judgement of the Apex Court, it is clear that the person on deputation has no legal right to continue in the post nor he has any right to be absorbed in the post, to which he is disputed. However, in exceptional circumstances, if the tenure of deputation is specified and if the deputationist had to be disturbed before the expiry of the period of deputation, it should be only on the ground of unsuitability or unsatisfactory performance. However, Annexure `E`, the order of deputation dated 04.08.2010 specifies that the petitioner would be on deputation for a period of two years. It is also not in dispute that the petitioner is continuing on deputation from 2007 though the said period was extended only for two years. No doubt, repatriation orders were passed on 26.11.2010 and 25.06.2011. However, both the orders were recalled by another order dated 29.11.2010 and 01.07.2011 and the petitioner was continued in the said post. Though the petitioner was repatriated again on 28.07.2011, however, pursuant to the interim order dated 01.08.2011, he continued in deputation post. Even by the impugned order dated 30th April 2012, his repatriation is given effect from 31.07.2012. Considering this also, 10 it shows that the petitioner has been continued in deputation from 2007 onwards and he wants to continue in the said post for all the time to come. From 2007 onwards, one way or the other, the petitioner has been continued in the said post of deputation.
11. Apart from this, clause 3 of the scheme concerning the deputation of Government servant from other departments to the BBMP - respondent No.2, fixes the upper limit of three years. The mandatory requirement is that, no deputation shall be made for more than three years. Only in exceptional cases, the tenure of deputation is extended for one year. It cannot be understood that a deputationist must be continued in the said post for a minimum period of three years. The deputation does not create any right in the Government servant to continue as a deputationist. It is an administrative arrangement in need of services of such services from departments other than parent department, the deputations are made. Such deputations are not meant to be continued in perpetuity.
12. The Apex Court has held that the deputationist has no legal right to continue in the post and only where the tenure of the deputation is specified, to avoid unnecessary complication, it is observed that the term of deputation 11 should not be curtailed except on the ground of unsuitability or unsatisfactory performance. The scheme on which the petitioner has relied, does not apply to him because he has already completed the period of deputation. Secondly, scheme does not stipulate that deputation should be for a minimum period of three years. The object of the scheme is that the deputationist shall not be continued for more than three years and only in exceptional cases, extension for one year thereafter could be made. Viewed from any angle, I find that there is no reason to interfere with the impugned order of repatriation dated 30.04.2012 as per Annexure `Q`.
In the circumstances, the Writ Petition fails and same is dismissed.
Sd/-
JUDGE sma