Karnataka High Court
Karnataka State Road Transport ... vs State Of Karnataka on 13 April, 2023
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE VIJAYKUMAR A. PATIL
W.A. No.2369 OF 2019 (S-KSRTC)
C/W
W.A. No.2370 OF 2019 (S-KSRTC)
W.A. No.2371 OF 2019 (S-KSRTC)
W.A. No.2372 OF 2019 (S-KSRTC)
W.A. No.2373 OF 2019 (S-KSRTC)
W.A. No.2374 OF 2019 (S-KSRTC)
W.A. No.3881 OF 2019 (S-KSRTC)
IN W.A. No.2369 OF 2019
BETWEEN:
1. KARNATAKA STATE ROAD TRANSPORT
CORPORATION
CENTRAL OFFICE, K H ROAD
SHANTHINGAR, BANGALORE-560027
BY ITS MANAGING DIRECTOR
REPRESENTED BY
ITS CHIEF LAW OFFICER.
2. BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, SHANTHINAGAR
BANGALORE -560027
MANAGING DIRECTOR
2
REP. BY ITS CHIEF LAW OFFICER.
3. NORTH EAST KARNATAKA
ROAD TRANSPORT CORPORATION
CENTRAL OFFICE, STATION ROAD
KALABURAGI
BY ITS MANAGING DIRECTOR
REPRESENTED BY ITS CHIEF LAW OFFICER.
4. THE DEPOT MANAGER
DEPOT NO.31, BMTC
BANGALORE
REPRESENTED BY ITS CHIEF LAW OFFICER.
... APPELLANTS
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SMT. RENUKA H.R. ADV.,)
AND:
1. STATE OF KARNATAKA
VIDHANA SOUDHA
BENGALURU
BY ITS CHIEF SECRETARY.
2. RAVIKUMAR .G
S/O GURUBASAPPA K.B.
AGED ABOUT 50 YEARS
PRESENTLY WORKING AT
DEPOT MANAGER
BMTC, BENGALURU
NO.942, 3RD CROSS
I.T.I. LAYOUT
BENGALURU-560072.
... RESPONDENTS
(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1
SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR
SRI. L. SHEKAR, ADV.,)
3
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
APPEAL, SET ASIDE THE ORDER OF THE LEARNED SINGLE
JUDGE DATED 28/05/2019 IN W.P.NO.31145/2015.
IN W.A. No.2370 OF 2019
BETWEEN:
1. KARNATAKA STATE ROAD TRANSPORT CORPORATION
CENTRAL OFFICE, K H ROAD
SHANTHINAGAR
BANGALORE-560 027
BY ITS MANAGING DIRECTOR
REPRESENTED BY ITS CHIEF LAW OFFICER.
2. BANGALORE METROPOLITAN TRANSPORT
CORPORATION
CENTRAL OFFICE, K H ROAD
SHANTHINAGAR, BANGALORE-560 027
BY ITS MANAGING DIRECTOR
REPRESENTED BY ITS CHIEF LAW OFFICER.
3. NORTH EAST KARNATAKA ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, STATION ROAD
KALBURGI
BY ITS MANAGING DIRECTOR
REP. BY CHIEF LAW OFFICER-585105.
4. THE DEPOT MANAGER
DEPOT NO 31, BMTC
BANGALORE - 560 025
NOW REPRESENTED BY ITS
CHIEF LAW OFFICER.
... APPELLANTS
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SMT. RENUKA H.R. ADV.,)
4
AND:
1. STATE OF KARNATAKA
VIDHANA SOUDHA
BENGALURU-560001
BY ITS CHIEF SECRETARY.
2. B.M. SATISH
S/O MADAPPA
AGED ABOUT 45 YEARS
DIVISIONAL MECHANICAL ENGINEER
KSRTC, KOLAR DIVISION
NO.95, BISANAHALLI NADAVATTI (POST)
VIA KADUGODI, BENGALURU - 560072.
... RESPONDENTS
(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1
SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR
SRI. L. SHEKAR, ADV., FOR R2)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
APPEAL, SET-ASIDE THE ORDER OF THE LEARNED SINGLE
JUDGE DATED 28/05/2019 IN WP NO.58300/2015.
IN W.A. NO.2371 OF 2019
BETWEEN
1. KARNATAKA STATE ROAD TRANSPORT
CORPORATION
CENTRAL OFFICE
KH ROAD, SHANTHINAGAR
BANGALORE -560 027
BY ITS MANAGING DIRECTOR
REP BY ITS CHIEF LAW OFFICER.
2. CHIEF PERSONNEL MANAGER (PERSONNEL)
CENTRAL OFFICES, KH ROAD
BANGALORE-560 027
5
REP. BY ITS CHIEF LAW OFFICER.
3. KARNATAKA STATE ROAD TRANSPORT
CORPORATION
PUTTUR DIVISION, PUTTUR
MANGALORE DISTRICT-574 201
BY ITS CHIEF LAW OFFICER.
...APPELLANTS
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SMT. RENUKA H.R. ADV.,)
AND
1. ABDUL AZIZ
S/O LATE K. MOOSA KUNHI
AGED ABOUT 59 YEARS
NO.1/20, MITHUR HOUSE, IDKIDU POST
BANWAL TALUK
DAKSHINA KANNADA DISTRICT-574 220.
......RESPONDENT
(BY SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR
SRI. L. SHEKAR, ADV.,)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
APPEAL, SET ASIDE THE ORDER OF THE LEARNED SINGLE
JUDGE DATED 28/05/2019 IN W.P.NO.6694/2017.
IN W.A. NO.2372 OF 2019
BETWEEN
1. KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, SHANTHINAGAR
BANGALORE -560027
BY ITS CHAIRMAN
REPRESENTED BY
6
CHIEF LAW OFFICER.
2. KARNATAKA STATE ROAD TRANSPORT
CORPORATION
CENTRAL OFFICE, SHANTHINAGAR
BANGALORE -560027
BY ITS MANAGING DIRECTOR
REPRESENTED BY CHIEF LAW OFFICER.
3. KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, SHANTHINAGAR
BANGALORE -560027
BY ITS DIRECTOR
(PERSONNEL AND ENVIRONMENT)
REPRESENTED BY CHIEF LAW OFFICER.
4. BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, SHANTHINAGAR
BANGALORE 560027
BY ITS MANAGING DIRECTOR
REP. BY ITS CHIEF LAW OFFICER.
5. NORTH EAST KARNATAKA
ROAD TRANSPORT CORPORATION
CENTRAL OFFICE, KALABUGI
BY ITS MANAGING DIRECTOR
REPRESENTED BY ITS CHIEF LAW OFFICER.
...APPELLANTS
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SMT. RENUKA H.R. ADV.,)
AND:
1. H.C. BASAVARAJAPPA
S/O LATE T. CHANDRASHEKARAPPA
AGED ABOUT 57 YEARS
WORKING AS DIVISIONAL CONTROLLER
7
EAST DIVISION
BANGALORE METROPOLITAN TRANSPORT
CORPORATION, SHANTINAGAR
BENGALURU - 560027
RESIDENT OF NO. 82, 3RD MAIN
3RD CROSS, RAMAKRISHNANAGAR
NANDINI LAYOUT
4TH BLOCK, BANGALORE 560096.
....RESPONDENT
(BY SRI. H.C. BASAVARAJAPPA, PARTY-IN-PERSON)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
APPEAL, SET-ASIDE THE ORDER OF THE LEARNED SINGLE
JUDGE DATED 28/05/2019 IN WP NO.23621/2015.
IN W.A. NO.2373 OF 2019
BETWEEN:
1. KARNATAKA STATE ROAD TRANSPORT
CORPORATION
CENTRAL OFFICE, K H ROAD
SHANTHINGAR, BANGALORE-560 027
BY ITS MANAGING DIRECTOR
REPRESENTED BY
CHIEF LAW OFFICER.
2. BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, K H ROAD
SHANTHINAGAR, BANGALORE-560 027
BY ITS MANAGING DIRECTOR
REPRESENTED BY CHIEF LAW OFFICER.
3. NORTH EAST KARNATAKA ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, STATION ROAD
KALABURAGI
8
BY ITS MANAGING DIRECTOR
REPRESENTED BY CHIEF LAW OFFICER.
...APPELLANTS
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SMT. RENUKA H.R. ADV.,)
AND:
1. H.C. BASAVARAJAPPA
S/O LATE T. CHANDRASHEKARAPPA
AGED ABOUT 56 YEARS
PRESENTLY WORKING AT
DIVISIONAL CONTROLLER
EAST DIVISION, BANGALORE METROPOLITAN
TRANSPORT CORPORATION
SHANTINAGAR, BANGALORE
RESIDENT OF NO.82, 3RD MAIN
3RD CROSS, RAMAKRISHNAGAR
NANDINI LAYOUT
4TH BLOCK, BANGALORE-560096.
....RESPONDENT
(BY SRI. H.C. BASAVARAJAPPA, PARTY-IN-PERSON)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
APPEAL, SET-ASIDE THE ORDER OF THE LEARNED SINGLE
JUDGE DATED 28/05/2019 IN WP NO.2756/2016.
IN W.A. NO.2374 OF 2019
BETWEEN:
1. KARNATAKA STATE ROAD TRANSPORT CORPORATION
CENTRAL OFFICE, SHANTHINAGAR
BANGALORE -560027
BY ITS MANAGING DIRECTOR
REP. BY CHIEF LAW OFFICER.
9
2. NORTH EAST KARNATAKA
ROAD TRANSPORT CORPORATION
CENTRAL OFFICE, STATION ROAD
KALABURAGI-585105
MANAGING DIRECTOR
REP. BY ITS CHIEF LAW OFFICER.
...APPELLANTS
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SMT. RENUKA H.R. ADV.,)
AND:
1. RAVIKUMAR .G
S/O GURUBASAPPA K.B.
AGED ABOUT 50 YEARS
PRESENTLY WORKING AT
DEPOT MANAGER, NO.942
3RD CROSS, I.T.I LAYOUT
BENGALURU-560072.
2. K.M. THAMMIAH
MAJOR IN AGE
RETD DISTRICT AND SESSIONS JUDGE
ENQUIRY OFFICER
C/O KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, SHANTHINAGAR
BANGALORE-560027.
...RESPONDENTS
(BY SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR
SRI. L. SHEKAR, ADV., FOR R1
V/O DTD:09.10.2019 NOTICE TO R2 IS D/W)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
APPEAL, SET-ASIDE THE ORDER OF THE LEARNED SINGLE
JUDGE DATED 28/05/2019 IN WP NO.54089/2016.
10
IN W.A. NO.3881 OF 2019
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
CHIEF SECRETARY TO GOVERNMENT
VIDHANA SOUDHA
DR. B.R. AMBEDKAR VEEDHI
BENGALURU-560001.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS
CHIEF SECRETARY TO GOVERNMENT
VIDHANA SOUDHA
DR. B.R. AMBEDKAR VEEDHI
BENGALURU-560001.
...APPELLANTS
(BY SRI. B. RAJENDRA PRASAD, HCGP)
AND:
1. SRI. RAVIKUMAR .G
S/O GURUBASAPPA K B
AGED ABOUT 48 YEARS
WORKING AS DEPOT MANAGER
(ASSISTANT MECHANICAL ENGINEER)
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
R/O NO.942, 3RD CROSS
ITI LAYOUT, BENGALURU-560072.
2. THE MANAGING DIRECTOR
KARNATAKA STATE ROAD TRANSPORT CORPORATION,
CENTRAL OFFICE
SHANTHI NAGAR
BENGALURU-560027.
3. THE MANAGING DIRECTOR
BANGALORE METROPOLITAN TRANSPORT
CORPORATION, SHANTI NAGAR
11
BENGALURU-560027.
4. THE MANAGING DIRECTOR
NORTH EAST ROAD TRANSPORT
CORPORATION, KALABURAGI-97.
5. THE DEPOT MANAGER
DEPOT NO.31, BMTC
BENGALURU-560002.
6. SRI. B.M. SATHISH
S/O MADAPPA
AGED ABOUT 43 YEARS
DIVISIONAL MECHANICAL ENGINEER
KSRTC, KOLARA DIVISION
R/O NO.95, BISANAHALLI
NADAVATTI POST, VIA KADUGODI
BENGALURU-560072.
7. THE MANAGING DIRECTOR
KARNATAKA STATE ROAD TRANSPORT CORPORATION,
CENTRAL OFFICE
SHANTHI NAGAR, BENGALURU-560027.
8. THE MANAGING DIRECTOR
BANGALORE METROPOLITAN TRANSPORT
CORPORATION, SHANTHI NAGAR
BENGALURU-560027.
9. THE MANAGING DIRECTOR
NORTH EAST ROAD TRANSPORT CORPORATION
YADGIR DISTRICT-585201.
10. THE DEPOT MANAGER
DEPOT NO.31, BMTC
BENGALURU-560025.
....RESPONDENTS
(BY SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR
SRI. L. SHEKAR, ADV., FOR R1 & R6
12
SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SMT. RENUKA H.R. ADV., FOR R2-R5 & R7-R10)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
WRIT APPEAL. SET ASIDE THE IMPUGNED ORDER DATED
28/05/2019 PASSED BY THE LEARNED SINGLE JUDGE OF
THIS HON'BLE COURT IN WRIT PETITION NO.31145/2015
AND WRIT PETITION NO.58300/2015 (S-KSRTC).
THESE WRIT APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11.04.2023, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These intra court appeals emanate from a common order dated 28.05.2019 passed by Learned Single Judge in W.P.No.6694/2017 and other connected writ petitions. The issue in these appeals pertain to validity of Clause 3 of Government Order dated 05.08.2000 issued under Section 34 of The Road Transport Corporations Act, 1950 (hereinafter referred to as 'the Act' for short) and validity of orders of deputation issued in respect of respondents. The appeals were 13 therefore, heard analogously and are being decided by this common judgment.
2. The Road Transport Corporations Act, 1950 is an Act to provide for incorporation and Regulation of Road Transport Corporations. Section 3 of the Act provides for establishment of Road Transport Corporations in a State. Section 14 of the Act deals with officers and servants of the Corporation.
3. Section 34 of the Act deals with directions by the State Government. The said Section empowers the State Government to give to the Corporation general instructions, which have to be followed by the Corporation and such instructions include directions relating to recruitment, conditions of service and training of its employees, wages to be paid to the employees etc. Section 45 of the Act deals with power to 14 make Regulations. Section 45(2)(c) inter alia provides that such Regulations may provide for conditions for employment and service and the scales of pay of the officers and other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and Financial Advisor or as the case may be Chief Accounts office cum Financial Advisor.
4. In exercise of powers under Section 3 of the Act, Karnataka State Road Transport Corporation (KSRTC) was established as a single transport corporation in the State of Karnataka. Thereafter, by an order dated 07.08.1997, issued in exercise of powers under Section 34 of the Act, the State Government issued an order. The relevant extract of the order reads as under: 15
3. Class III and IV employees working in Bangalore South and Bangalore North Divisions of KSRTC as on 14.08.1997 shall submit their options as to whether they would like to continue as employees of KSRTC or would like to remain in the BMTC proposed to be established within three months. Such of those employees who do not submit their options would be deemed to have opted to become employees of BMTC.
5. The State Government by an order dated 10.09.1997 established North West Karnataka Road Transport Corporation with effect from 01.11.1997. The State Government thereafter, issued an order dated 22.10.1997 in respect of transfer of assets, operation of liabilities etc. The relevant extract of the order dated 22.10.1997 reads as under:
16
Government order in exercise of powers conferred by S.34 of the Act ordered transfer of assets, operations, liabilities etc. to NWKRTC making following provisions for staff allocation and management.
1. Vice-Chairman and Managing Director of KSRTC is empowered to depute effective from 1.11.1997 initially for a period of one year all class-III and IV employees working presently at Belgaum, Dharwad, Gadag, Haveri, Bijapur, Bagalkote and Uttara Kannada Districts (except those working in Yelburga, Kushtagi, and Koppal) to the NWKRTC and to extend the deputation or end the deputation depending on needs. Employees will not be eligible for any deputation allowance on such deputation.
2. Vice-Chairman and Managing Director of KSRTC is empowered to 17 depute all classes of officers, employees, and staff to NWKRTC.
3. Such of those class-III and IV employees of KSRTC who will be deputed to the newly established Corporation shall submit to the General Manager, KSRTC in the prescribed from within six months from such deputation option as to whether they would like to continue as employees of KSRTC or would like to remain in the NWKRTC proposed to be established. Such of those employees who do not submit their options would be deemed to have opted to become employees of NWKRTC.
[Other clauses of the order dealing with transfer of assets, operations, liabilities are omitted as not relevant for the present purpose].
6. The State Government thereafter, by an order 04.08.2000 established North East 18 Karnataka Road Transport Corporation (NEKRTC) with effect from 15.08.2000 and issued an order on 05.08.2000 in exercise of powers under Section 34 of the Act in respect of transfer of assets, operations, liabilities to North East Karnataka Road Transport Corporation (NEKRTC). Clause (3) of the order provides that Class III ad Class IV employees working in Bidar, Gulbarga, Raichur, Koppal, Bellary and Yadgir Districts shall continue to be on deputation in the newly established Corporations. Clause (3) further provides that option shall be obtained from those employees within six months as to whether they would like to work in KSRTC or continue in new Corporation and decision shall be taken. Clause(3) further provides that present Class I and Class II officers an d Class III Supervisory staff shall be deputed by 19 KSRTC only. However, the Karnataka State Road Transport Corporation was retained.
7. For the facility of reference, facts from W.A.No.2369/2019 are being referred to. The petitioner (hereinafter referred to as 'the employee' for short) was an employee of KSRTC by an order dated 05.07.2014, he was transferred as Depot manager, KGF Depot, Kolar division. The employee in para 4 of the writ petition has averred that he was working deputation to KGF depot. The employee thereafter, by an order dated 22.09.2014 was transferred to BMTC, Bangalore. Thereafter, again by an order of deputation dated 23.07.2015, the employee was sent on deputation as depot manager, Vijayapura Depot in NERTC. The employee thereupon filed a writ petition in which the employee challenged the validity of the 20 Government order dated 05.08.2000 and sought quashment of order of deputation dated 23.07.2015.
8. The Learned Single Judge by an order dated 28.05.2019 inter alia held that the moment the employee of one corporation is transferred on deputation to another corporation such an employee becomes an employee of the corporation to where he is deputed and therefore, an employee of KSRTC cannot be transferred without his consent to BMTC, NWKRTC or NEKRTC. It was further held that Clause 3 of order dated 05.08.2000 is in excess of Section 34 of the Act. The Learned Single Judge quashed a part of Clause 3 of the Government Order dated 05.08.2000, which enabled KSRTC to depute the officers to the Corporation and also quash the 21 order of deputation dated 23.07.2015. In the aforesaid factual background, these appeals have been filed.
9. Learned Senior Counsel for the appellant submitted that Learned Single Judge ought to have appreciated that challenge to Clause 3 of the order dated 05.08.2000 issued under Section 34 of the Act is barred by res judicata as a similarly worded clause in the order dated 07.08.1997 issued under Section 34 of the Act was challenged and the validity of paragraph 3 of the order was upheld by a division bench of this court vide judgment dated 28.08.2013 passed in W.A.No.18459/2007 and the said order was upheld in Special Leave Petition by Hon'ble Supreme Court. Therefore, on the principles of res judicata / finality of litigation as well as principles 22 analogous to res judicata, the judgment passed by division bench on an earlier occasion was binding on the Learned Single Judge. It is also contended that Learned Single Judge ought to have appreciated that the employees after creation of the Corporations, were sent on deemed deputations and their accorded promotions, which they had accepted without any demur and therefore, had acquiesced with the situation. In any case, the employees have taken the benefit of a part of the order dated 05.08.2000 and could not have challenged the other part of the order.
10. It is contended that Learned Single Judge grossly erred in treating the order dated 23.07.2015 to be an order of transfer, whereas, the same was treated by the employee itself to be an order of deputation. It is contended that 23 decisions of Hon'ble Supreme Court in 'JAWAHARLAL UNIVERSITY VS.
DR.K.S.JAVATKAR', (1989) SUPP 1 SCC 679 and 'STATE OF MYSORE VS. H.PAPANNA GOWDA', (1970) 3 SCC 545 have no application to the facts of these case, as the same pertain to permanent transfer. It is also urged that the decision of Hon'ble Supreme Court in 'PRASAR BHARTHI AND ORS. VS. AMARJEET SINGH AND OTHERS', (2007) 9 SCC 539 applies to the facts of the case. It ought to have been appreciated that even on deputation, the status of the employees did not change and they continued to be the employees of KSRTC and their appointing authority continued to be MD KSRTC. In support of aforesaid submissions, reference has been made to decisions in 'MYSORE STATE ROAD 24 TRANSPORT CORPORATION VS. GOPINATH GUNDACHAR', AIR 1968 SC 464', KAVIRAJ VS. STATE OF JAMMU AND KASHMIR', (2013) 3 SCC 526, AND K.L. PLANTATION VS. STATE OF KARNATAKA', (2011) 9 SCC 1.
11. Learned Senior counsel for the employees in W.A.2369/2019, W.A.No.2370/2019, W.A.No.2371/2019 and W.A.No.2374/2019 submits that the validity of the orders issued under Section 24 of the Act dated 07.08.1997 and 22.10.1997 was not the subject matter in previous round of litigation and therefore, the question of subsequent writ petition filed by the employees, being barred by res judicata does not arise. It is also pointed out that employees were not parties in the earlier round of litigation. It is contended that Section 34 of the Act cannot be read in 25 isolation but has to be read with Section 3 to 6 of the Act. It is submitted that clause 3 of the order dated 05.08.2000 issued under Section 34 of the Act is in contravention of Section 3 of the Act and an employee can be deputed to another Corporation only with his consent. In this connection, learned Senior counsel for the employees has invited the attention to Regulation 3(g) of Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations, 1982. It is also urged that there can be no acquiescence / estoppel against a statute and issue regarding inherent lack of jurisdiction can be questioned any time. In support of aforesaid submissions, reliance has been placed on decisions in SUKALU RAM GOND VS. STATE OF M.P.', (1994) 5 SCC 570, 'STATE OF PUNJAB VS. 26 INDER SINGH', (1997) 8 SCC 372, 'BCPP MAZDOOR SANGH VS. NTPC', 92007) 14 SCC 234 AND DIPAK BABARIA VS. STATE OF GUJARAT', (2014) 3 SCC 502.
12. Party in person in W.A.No.2372/2019 and W.A.No.2373/2019 submitted that he has retired on 31.01.2023 and the order of deputation undermines the concept of formation of new corporations. It is further submitted that the order of deputation is in violation of Article 14, 16 and 23 of the constitution of India. However, it is fairly admitted by party in person that by an order dated 12.05.2012, he was promoted as Divisional Manager in NWKRTC and he has not challenged the order dated 05.08.2000 issued under Section 34 of the Act. While adopting the submissions made by learned Senior counsel for the 27 respondents in other connected writ appeals, it is contended that order of deputation cannot be issued unilaterally.
13. By way of rejoinder, learned Senior counsel for the appellants submitted that even if other corporations have been formed, the employees continue to be employees of KSRTC and the managing director of KSRTC has been authorized to depute the employees to other corporations subject to administrative exigency. It is urged that consent can be implied by conduct. It is pointed out that in pursuance of interim orders dated 11.02.2020 passed in W.A.No.2373/2019 and W.A.No.2374/2019, an enquiry has been conducted against the employee and a penalty has been imposed on him. Learned Senior Counsel for the appellant further submitted that the Learned 28 Single Judge grossly erred in treating the case to be a case of transfer on deputation. It is further submitted that the concept 'transfer' and 'deputation' are different and distinct concepts in law and cannot be mixed up. In support of aforesaid submissions, reliance has been placed on the decision of Hon'ble Supreme Court in 'THE MANAGER M/S PYARCHAND KESARIMAL PORWAL BIDI FACTORY VS. ONKAR LAXMAN THENGE AND OTHERS', AIR 1970 SC 823.
14. Learned Government Advocate in W.A.No.3881/2019 has adopted the submissions made on behalf of Learned Senior Counsel for KSRTC and has submitted that the State Government has power to issue directions under Section 34 of the Act. In support of aforesaid submission, reference has been made to decision 29 of Hon'ble Supreme Court in 'MYSORE STATE ROAD TRANSPORT CORPORATION VS.
GOPINATH GUNDACHAR CHAR', AIR 1968 SC
464.
15. We have considered the submissions made on both sides and have perused the record. The issues, which arise for consideration in this batch of appeals are as under:
(i) Whether challenge to clause 3 of Government order dated 05.08.2000 issued under Section 34 of the Act is barred on the principles of res judicata or on principles analogous thereto?
(ii) Whether the order dated 23.07.2015 is an order of deputation or an order of transfer?
(iii) Whether clause 3 of the Government order dated 05.08.2000 30 issued under Section 34 of the Act is valid?
(iv) Whether the employees who had accepted their deputation and promotion in other Corporations earlier, can be permitted now to assail the order of deputation?
(v) Alternatively, whether deemed consent for deputation can be inferred from the conduct of the employees?
16. Now we shall proceed to deal with the issues ad seriatim. Clause 3 of the Government order dated 05.08.2000 reads as under:
"3. Such of those Classes-III and IV employees presently working in Bidar, Gulbarga, Raichur, Koppal, Bellary and Yadgir Divisions shall be continued on deputation in the newly established Corporation. Options shall be obtained 31 from those employees within six months as to whether they would like to work in KSRTC or continue in the new corporation and decision shall be taken. If any such employee does not submit option it will be deemed that he/she has opted to be employees of NEKRTC.
For the present Class-I and Class-II Officers and Class-III Supervisory staff shall be deputed by KSRTC only. The Vice-Chairman and Managing Director of KSRTC is empowered to depute any category of employee to NEKRTC or to withdraw such deputation."
17. The bifurcation of KSRTC and orders of State Government dated 07.08.1987, 10.09.1997 and 01.11.2000 establishing 3 independent Corporations in addition to KSRTC were challenged in a writ petition namely 32 W.P.No.22194/1997. The aforesaid writ petition along with other connected petitions were allowed by the learned Single Judge by common judgment dated 02.07.2007 and the Government order was quashed. The KSRTC challenged the common judgment dated 02.07.2007 passed by the learned Single Judge in writ appeals namely W.A.No.1459/2007 and other connected writ appeals. Paragraph 18 of the aforesaid judgment reads as under:
"18. The learned Counsel for the parties put forth their respective contentions before the learned Single Judge. On the aforesaid pleadings and the rival contentions urged, the learned Single Judge framed the following five points for consideration:
POINTS FOR CONSIDERATION
33
BEFORE THE LEARNED SINGLE
JUDGE
1. Whether the petitioners have got locus standi to challenge the impugned orders and notifications and are they 'aggrieved persons' to file the writ petition?
2. Whether the impugned orders and notifications bifurcating KSRTC and establishing 3 separate Corporations is traceable to Section 3 of the Act?
3. Whether Sec.17-A of the Act is applicable to the fact situation?
4. Whether judicial review power can be exercised by this Court in this petition at this juncture?
5. What order?"
18. Similarly, paragraph 29 of the aforesaid judgment reads as under:
"29. In the light of the aforesaid contention, the 34 points that arise for consideration in these batch of appeals are as under: POINTS FOR CONSIDERATION (1) Whether the State Government has the power to establish three Road Transport Corporations after establishment of the Karnataka State Road Transport Corporation under Section 3 of the Act?
(2) In the absence of specific provisions in the Act providing for bifurcation of Karnataka State Road Transport Corporation, whether the State Government could have established the three Road Transport Corporations as parts of the State?"
19. Thus, it is evident that issue with regard to validity of Clause 3 of Government order dated 35 05.08.2000 as well as order of deputation dated 23.07.2015 was not the subject matter of either the earlier writ petitions or the writ appeals. The employees were not parties in the writ petitions. Therefore, neither on the principles analogous to res judicata nor on the principles of res judicata, the writ petitions filed by the employees cannot be said to be barred.
20. Now we may advert to the second issue namely whether the order dated 23.07.2015 is an order of deputation on an order of transfer. The distinction between transfer and deputation is well settled. The Hon'ble Supreme Court in 'PRASAR BHARTHI AND ORS. Supra has held as under:
13. There exists a distinction between "transfer" and "deputation".
"Deputation" connotes service outside the 36 cadre or outside the parent department in which an employee is serving. "Transfer", however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications.
The principles laid down in aforesaid decision were referred to with approval in 'UNION OF INDIA VS. R.THIYAGARAJAN', (2020) 5 SCC 201.
21. The employee himself in paragraph 8 of the writ petition has described the order dated 23.07.2015 as an order of deputation. Relevant extract of paragraph 8 reads as under:
"8. The matter stood thus, while the petitioner is working in depot No.31 in terms of the roder of repatriation dated 22.09.2014 and 26.09.2014 as per Annexures-E and F, very surprisingly, 37 one more order of deputation was issued by the 2nd respondent Managing Director dated 23.07.2015, therein the petitioner is now sent on deputation as Depot Manager, Vijayapura Depot-1 which is locating within the territorial jurisdiction of North-East Road Transport Corporation and the petition is now sent on deputation from B.M.T.C., Bangalore."
22. Similarly, the KSRTC in paragraph 1 of the statement of objection has described the order dated 23.07.2015 to be an order of deputation. The relevant extract reads as under:
"The petitioner has also sought for a consequential relief for quashing of the roder of deputation dated 23.07.2015, whereunder the petitioner who was working in BMTC has been placed on deputation to Vijayapura Depot as 38 Deputy Manager within the jurisdiction of NEKSRTC."
23. Thus, in view of aforesaid stand taken by KSRTC as well as the employee, it is axiomatic that order dated 23.07.2015 is an order of deputation and the same cannot be treated as transfer by deputation. Accordingly, issue No.2 is answered by stating that order dated 23.07.2015 is an order of deputation.
24. We shall now deal with the issue with regard to validity of clause 3 of Government Order dated 05.08.2000. Section 3 of the Act deals with establishment or Road Transport Corporations in the States. Section 4 of the Act provides that every Corporation shall be a body corporate having perpetual succession and common seal. Section 5 39 of the Act deals with Management of the Corporation and Board of Directors. Section 14 of the Act deals with officers and servants of the Corporation. Section 14 is extracted below for the facility of reference:
14. Officers and servants of the Corporation.--(1) Every Corporation shall have a Managing Director, a Chief Accounts Officer and a Financial Adviser, appointed by the State Government: Provided that the same person may be appointed as the Chief Accounts Officer and the Financial Adviser.
(2) A Corporation may appoint a Secretary and such other officers and employees as it considers necessary for the efficient performance of its functions.
(3) The conditions of appointment and service and the 40 scales of pay of the officers and employees of a Corporation shall--
(a) as respects the Managing Director, the Chief Accounts Officer and the Financial Adviser, or, as the case may be, the Chief Accounts Officer-cum-Financial Adviser, be such, as may be prescribed, and
(b) as respects the other officers and employees, be such, as may, subject to the provisions of section 34, be determined by regulations made under this Act.] Thus, from perusal of Section 14(3)(b) it is evident that conditions of appointment, services and scales of pay of the officers and employees of a Corporation shall be subject to provisions of Section 34 of the Act.
25. Section 34 of the Act deals with directions by the Government and reads as under: 41
34. Directions by the State Government.--(1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. (2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub-section (1) except with the previous permission of the State Government.42
Thus, the State Government has power to issue directions relating to recruitment, conditions of service and training of its employees, wages to be paid to the employees etc. Section 45 of the Act confers the power on the Corporation to make Regulations, which are not inconsistent with the Act. The relevant extract of Section 45 reads as under:
45. Power to make regulations.--(1) A Corporation may with the previous sanction of the State Government and by notification in the Official Gazette], make regulations, not inconsistent with this Act and the rules made thereunder for the administration of the affairs of the Corporation.
(2) In particular and without prejudice to the generality of the 43 foregoing power, such regulations may provide for all or any of the following matters, namely:--
(a) the manner in which, and the purposes for which, persons may be associated with the Board under section 10;
(b) the time and place of meetings of a the 3 [Board] and the procedure to be followed in regard to transaction of business at such meetings;
(c) the conditions of appointment and service and the scales of pay of officers and 4 [other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Accounts Officer-
cum-Financial Adviser.
44
26. In the instant cases, the employees have been sent on deputation and not on transfer. Therefore, there is no change of employer. The conditions of appointment and service and the scales of pay of officers and employees of a Corporation is subject to Section 34 of the Act and shall be determined by Regulations made under the Act. Section 34 of the Act permits the State Government to issue directions relating to recruitment, conditions of service. The State Government in exercise of powers under Section 34 of the Act has issued an order dated 05.08.2000. The employees continue to be the employees of KSRTC as they have been sent to other Corporations on deputation. A conjoint reading of Sections 14(3)(b), Section 34 and 45 Section 45(2)(c) is that appointment of officers and servants and their conditions of service must conform to directions, if any, issued by the State Government under Section 34 of the Act and the Regulations, if any, framed under Section 45(2)(c) of the Act. [See: 'MYSORE STATE ROAD TRANSPORT CORPORATION VS. GOPINATH GUNDACHAR CHA', AIR 1969 SC 464. Therefore, Clause 3 of the order dated 05.08.2000 does not suffer from any infirmity and does not violate any of the provisions of the Act. Accordingly, the third issue is answered in the affirmative and it is held that clause 3 of the Government order dated 05.08.2000 is valid.
27. Before dealing with the 4th issue, it is apposite to take note of the principles laid down in UNION OF INDIA AND OTHERS Vs. 46 N.MURUGESAN ETC. (2022) 2 SCC 25 with regard to doctrine of approbate and reprobate. Paragraph 26 and relevant extract of paragraph 27 read as under:
"26. These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same.47
Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally. State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144:
"22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide 48 CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216]).
23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under: (SCC pp. 687-88, para 10) "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be 49 entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage'."
25. The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd. [Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
50
Rajasthan State Industrial Development•26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had." & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470:
"I. Approbate and reprobate
15. A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, 51 or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 :
(2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869], Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260] .]
16. Thus, it is evident that the doctrine of election is based on the rule of estoppel--
the principle that one cannot approbate 52 and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."
28. In the instant case, the employees have been transferred on deputation to previous occasions and have been promoted in different Corporations. The details are extracted below in tabular form for the facility of reference:
W.A No. Ravi Kumar 05.07.2014
2369/2019 POSTED AS DEPOT MANAGER IN
KGF,KSRTC
01.09.2014
POSTED TO TUMKUR DIVISION
22.09.2014 TRANSFERRED TO BMTC 23.07.2015 DEPUTED AS DEPOT MANAGER, VIJAYAPURA, NEKRTC W.A No. Satish 08.09.1997 2370/2019 APPOINTED AS ASST MECHANICAL ENGINEER IN KSRTC FEBRUARY 1998 53 TRANSFERRED TO GANGAVATHI,KSRTC NOVEMBER 1999:
POSTED AS DEPOT MANAGER IN DEPOT 7,BMTC 31.12.2002 DEPOT MANAGER AT CHINTAMANI 2007 PROMOTED AS DIVISIONAL MECHANICAL ENGINEER AT BMTC 02.07.2015 DEPUTED TO YADHGIR DISTRICT` AS DIVISIONAL MECHANICAL ENGINEER NEKRTC W.A 2371 /2019 Abdul Aziz 09.04.1987 APPOINTED AS JUNIOR ASSISSTANT, KSRTC, MANGALORE SUBSEQUENTLY PROMOTED AS ASSISTANT AND ESTABLISHMENT SUPERVISOR 01.09.2016 TRANSFERRED TO PUTTUR DEPOT,KSRTC 20.01.2017 DEPUTED TO KALBURGI,NEKRTC W.A 2372/2019 Basavarajappa 22.06.1998 H.C APPOINTED AS ASST. MECHANICAL ENGINEER 1992-1993 DIVISIONAL CONTROLLER AT SIRSI, LIMITS OF NWKRTC 14.02.2013 POSTED TO CENTRAL OFFICE,KSRTC 28.02.2015 TRANSFERRED TO BANGALORE AS DIVISIONAL CONTROLLER OF EAST BANGALORE, BMTC 12.05.2105 AND 29.05.2015 54 DEPUTED AS DEPUTY CHIEF MECHNANICAL ENGINEER, NEKRTC W.A 2374/2019 G. Ravikumar 22.09.2014 TRANSFERRED TO B.M.T.C BANGALORE(referred as repartiation) 23.07.2015 DEPUTED TO VIJAYNAGARA, NEKRTC
29. Thus, the employees have taken the benefit of the orders of promotion passed in pursuance of Clause 3 of the Government order dated 05.08.2000. The employees were also sent on deputation to other Corporations. However, so long as the posting of the employees was to their liking, they did not challenge either Clause 3 of the Government order dated 05.08.2000 or orders of their deputation. Therefore, on the principles of approbate and reprobate, the employees cannot be permitted now to assail their orders of deputation.
Accordingly, the 4th issue is answered in the negative and it is held that the employees who had 55 accepted their deputation and promotion in other Corporations earlier cannot be permitted now to assail the order of deputation.
30. Now, we advert to the 5th issue. Hon'ble Supreme Court in KAVIRAJ Vs. STATE OF JAMMU AND KASHMIR AND OTHERS (2013) 3 SCC 526 has held that willingness of posting beyond the cadre or parent department need not be expressly sought and it can be implied. It has further been held that consent of posting beyond the cadre or parent department is inferable from the conduct of the employee. From the aforementioned conduct of the employees in accepting their previous orders of deputation and orders of promotion, the deemed consent for deputation can be inferred from their conduct. 56 The 5th issue is therefore, answered in the affirmative.
31. The Government order dated 05.08.2000 has been issued in exercise of powers under Section 34 of the Act, which enables the Government to issue directions with regard to recruitment, conditions of service, wages etc. to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. In exercise of powers under Section 34 of the Act, the State Government can issue a direction with regard to recruitment and conditions of service of the employees and the Corporation has to obey the directions. The finding recorded by the Learned Single Judge that government order dated 05.08.2000 is in excess of powers conferred under Section 34 of the Act and the Managing Director of 57 KSRTC cannot be given power to appoint or transfer on deputation any employee of KSRTC to any other Corporation cannot be sustained. Similarly, the finding recorded by the Learned Single Judge that instance case is a case of transfer by deputation also cannot be sustained as transfer and deputations have distinct and different connotation in law.
32. Even otherwise, in PRASAR BHARTHI supra the Hon'ble Supreme Court has dealt with the concept of deemed deputation. From the conduct of the employees, in accepting the earlier orders of deputation and promotion in different Corporations, even otherwise deemed consent can be inferred. The deputation of the employees to another Corporation does not amount to change of employer. Para 3 of the government order dated 58 05.08.2000 does not violate the guarantee enshrined in Articles 14 and 16 of the Constitution of India.
33. We may also take note of subsequent events during pendency of these appeals. In W.A.No.2369/2019, the employee viz., Ravi Kumar was deputed by an order dated 23.07.2015 from BMTC to Vijaypura in NEKRTC and reported for duty on 09.09.2016 after a lapse of one year and two months. For his unauthorized absence, a departmental enquiry was initiated which is pending. In W.A.No.2370/2019, the employee viz., Sri.B.M.Sathish was deputed by an order dated 02.07.2015 from KSRTC Kolar zone to Yadgir in NEKRTC. He reported for duty after a period of four years, for which a disciplinary proceeding was initiated which is pending. In W.A.No.2371/2019, 59 employee viz., Sri.Abdul Azeez attained the age of superannuation in August 2022. He was sent on deputation by an order dated 20.01.2017 from KSRTC to Kalburgi NEKRTC. However, he reported for duty after two and half years, for which a disciplinary proceeding was initiated and by an order dated 17.08.2020, the period of absence was treated as not on duty and he was denied the wages and gratuity for the period of absence. In W.A.No.2372/2019, the employee viz., Sri.Basavarajappa has superannuated on 31.01.2023. By an order dated 29.05.2015, he was deputed from BMTC to NEKRTC. However, he reported for duty after one year and two months on 10.09.2016. A penalty of stoppage of one increment with cumulative effect treating the 60 period of absence as not on duty has been imposed by an order dated 28.01.2023.
34. In view of preceding analysis, the common order dated 28.05.2019 passed in W.P.No.6694/2017 and other connected writ petitions is set aside.
In the result, the appeals are allowed and Writ Petitions filed by the employees are dismissed.
Sd/-
JUDGE Sd/-
JUDGE SS