Karnataka High Court
Sri Nagesh M D vs The State Of Karnataka on 8 February, 2022
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
W.P.No.19132 OF 2021(S-RES)
BETWEEN:
Sri. Nagesh M. D.,
S/o Devaraj,
Executive Engineer Harangi,
Rehabilitation Division,
Kushalnagar, Somvarpet taluk,
Madikeri District, R/o 135,
Nabha Nilaya, 3rd Main Road,
Bogaderukoppalu, Solgarne Road,
Hassan. ... Petitioner
(By Sri. M.R. Rajagopal, Senior Counsel for
Sri H.N.Basavaraju, Advocate (VC))
AND:
1. The State of Karnataka by its
Additional Chief Secretary,
Department of Water Resources,
(Sevices-A), Vikasa Soudha,
Bengaluru-560 001.
2. The State of Karnataka,
By its Secretary,
Department of Energy,
Vidhana Soudha,
Bengaluru-560 001.
2
3. Karnataka Power Transmission
Corporation Limited,
By its Managing Director,
Corporation Office, Cauvery Bhavan,
K.G.Road, Bengaluru-560 801.
4. The Managing Director,
Cauvery Niravari Nigama Ltd,
Ananda Rao Circle,
Sheshadri Road, Lakshmanapuri,
Gandhinagar, Bengaluru-560 001.
5. The Chief Engineer,
Irrigation (South) Zone,
Public Office building,
New Sayyajirao Road,
Mysore-570003.
6. Superintendent Engineer,
Harangi Planning Circle Kushalnagar,
Somavarpet Taluk,
Madikeri District. ... Respondents
(By R.Subramanya, Additional Advocate General
A/w. Smt.M.C.Nagashree, AGA for R1, 2, 5 and 6(PH):
Sri V.Srinivasagupta, Advocate for R3 (PH):
Sri B.S.Gowtham, Advocate for R4)
This writ petition is filed under Article 226 of the
Constitution of India praying to quash the impugned
Government order dated: 07.10.2021 issued by the R1 as
per Annexure-D on so far as the petitioner is concerned
whose name is figured at Sl.No.2 in the said Government
order and etc.
This writ petition, coming on for orders, this day,
the Court, made the following:
3
ORDER
This writ petition is filed under Article 226 of the Constitution of India by the petitioner challenging the order dated 07.10.2021 passed by the first respondent vide Annexure-D, wherein the petitioner has been repatriated to his parent department.
2. The case of the petitioner is that he was appointed as a Civil Engineer in the third respondent - Karnataka Electricity Supply Company Limited. The first respondent requested to lend the services of the petitioner from Electricity Supply Company to the Department of Water Resources. Pursuant to that, by order dated 01.07.2021 vide Annexure-B the petitioner has been posted to Kaveri Neeravari Nigama Niyamita, for a period of one year till 15.05.2022 or until further orders, whichever is earlier, subject to the conditions mentioned in Annexure-B. Pursuant to that, the petitioner has 4 taken charge and he has been continued as deputationist on the request of first respondent. When the petitioner has been working on deputation in the first respondent, before completion of his tenure, the impugned order vide Annexure-D dated 07.10.2021 has been passed wherein the petitioner has been repatriated to the parent department, i.e., respondent No.3. Being aggrieved by the same, the petitioner has approached this Court challenging the impugned order vide Annexure-D.
3. Sri M.R.Rajagopal, the learned Senior Counsel appearing for the petitioner has submitted that the petitioner has been deputed to first respondent pursuant to Annexure-B for a particular term, i.e., for one year till 15.05.2022. Before his term is complete, the impugned order has been passed and he has been repatriated to the parent department by cutting short the term fixed. The repatriation is contrary to the 5 order passed by the third respondent vide Annexure- B. In support of his contention he has relied on the judgment of the Hon'ble Apex Court in the case of UNION OF INDIA THROUGH GOVT. OF PONDICHERRY AND ANOTHER vs. V.RAMAKRISHNAN AND OTHERS reported in (2005) 8 SCC 394 and contended that where deputation is for a specific term, that cannot be curtailed without giving any proper reason and without giving any opportunity to the petitioner.
4. He further contended that even though in the deputation order it has been mentioned that the period is for one year or until further orders, whichever is earlier, they cannot exercise that power unilaterally when the term has been fixed. This action of the respondents curtailing the term is arbitrary and capricious. In support of his contention, he has relied on the judgment of the Hon'ble Apex Court in the case 6 of UNION OF INDIA AND ANOTHER vs. S.N.MAITY AND ANOTHER reported in (2015) 4 SCC 164. He has taken me through paragraph 15, wherein it is stated that when the term has been fixed, to curtail the term, there should be some rationale, just because the words "until further orders"
are used, it would not confer allowance on the employer to act with caprice.
5. He further submitted that the Government has passed an order without application of mind, it exercised the power only on the basis of the letter issued by the Karnataka Engineering Association. The same is produced as Annexure-C. Since the impugned order Annexure-D is passed without application of mind, the same is unsustainable.
6. Sri Rajagopal further argued that it is very clear from the impugned order - Annexure-D that there is a reference that the petitioners are not 7 suitable to work. Since this observation has caused a stigma, without giving any opportunity, such an order cannot be passed. It is violation of right of the petitioner guaranteed under Articles 14 and 16 of the Constitution of India.
7. The learned Senior Counsel has argued that the Government has issued the G.O. dated 13.08.2020 for absorption of employees who were on deputation. Since the petitioner is also on deputation, he has the right to opt for absorption, by repatriating, his right has been curtailed for seeking for absorption. In support of his contentions he has relied on the judgment of the Hon'ble Apex Court in the case of RAMESHWAR PRASAD vs. MANAGING DIRECTOR, U.P.RAJKIYA NIRMAN NIGAM LIMITED AND OTHERS reported in (1999) 8 SCC 381 and he has referred to para 15 of the said judgment and contended that the petitioner has right to seek for 8 absorption, the respondent unilaterally cannot repatriate him to the parent department, by which his right to absorption has been affected.
8. Lastly he contended that the Government cannot make any discrimination between the person employed in the State Government and the employee under the Corporation to make absorption. If such a distinction is made, it violates their right. In support of his contention, he has relied on the judgment of this Court in W.P.No.28000/2003 and connected matters disposed of on 22.03.2012.
9. Per contra, Sri R.Subramanya, the learned Additional Advocate General has submitted that the petitioner has been deputed to first respondent Department. The petitioner is the employee of the third respondent Corporation. It is very clear from the deputation order vide Annexure-B that the deputation is for a period of one year or until further orders. It 9 is not indefinite deputation of petitioner to first respondent. The Government finds that the petitioner has not completed the departmental examinations. Since he is the employee of the Karnataka Power Corporation, he cannot perform the duties of the first respondent in the Department of Water Resources. Therefore, he has been repatriated to his Parent Department.
10. He further submitted that vide Annexure-B there is no right created to the petitioner to continue his services in the Water Resources Department. He has been deputed for a period of one year or until further orders. Since the first respondent wants to repatriate him to the parent department, the impugned order vide Annexure-D has been passed.
11. He further submitted that the Hon'ble Apex Court in the case of KUNAL NANDA vs. UNION OF INDIA AND ANOTHER reported in (2000) 5 SCC 10 362 at para 6 has held that the deputationist has no right to seek continuation of his services, he can always and at any time be repatriated to his parent department to serve in his substantive position at the instance of either of the departments, he cannot claim it as a right. He further submitted that in the impugned order vide Annexure-D there is a clear reference that the petitioner has not passed the departmental examination and he is not experienced in discharging his duties in the Water Resources Department, hence he has been repatriated to his Parent Department. It is not on the basis of any letter given by the Karnataka Engineering Association.
12. He further submitted that in the judgment cited by the petitioner in V.RAMAKRISHNAN (supra) the Government can even repatriate the employee on the ground of unsuitability or unsatisfactory performance. Therefore, the petitioner 11 cannot claim that it causes any stigma on him. He further submitted that even in the deputation order vide Annexure-B there is a specific condition that they can be repatriated to their Parent Department at any time. When he has accepted the condition now he cannot turn down and say that his services cannot be repatriated. In support of his contentions he has relied on the judgment of the Hon'ble Apex Court in the case of STATE OF MAHARASHTRA AND OTHERS vs. ANITA AND ANOTHER reported in (2016) 8 SCC 293.
13. The learned AAG further submitted that the petitioner in this writ petition has not sought for any relief of absorption in the Water Resources Department and he has not given any representation giving his option to continue in the Water Resources Department. He further submitted that there is no 12 such rules in the Water Resources Department for absorption of the petitioner.
14. The learned AAG further submitted that the Government Order dated 13.08.2020 is only for absorption of the employees working in Public Works Department, RDPR and Water Resources Department, the employees working in the Corporation or Board are not entitled to seek absorption under the said Government Order. He further submitted that the Government Order has been issued for absorption on one time measure, the list of persons who are eligible for absorption and who have filed the applications, their list also enclosed along with the Government Order dated 13.08.2020. Since the petitioner is not entitled to seek absorption under the said Government Order, the contention of the petitioner that by order of repatriation his right to absorption has been affected 13 is not correct. Therefore, he sought for dismissal of the writ petition.
15. Heard Sri M.R.Rajagopal, learned Senior Counsel for the petitioner, Sri R.Subramanya, learned Additional Advocate General for State and Sri V.Srinivasa Gupta, learned counsel appearing for respondent No.3.
16. The petitioner is a Civil Engineer working in the third respondent Corporation. On request of the first respondent he has been deputed to the Department of Water Resources by order of deputation dated 01.07.2021 vide Annexure-B with a condition that the deputation is for a term of one year i.e., till 15.05.2022 or until further orders, whichever is earlier. Accepting the said condition the petitioner reported for duty with respondent No.4. Once accepted the condition, later he cannot turn up and say that he cannot be repatriated. Since the petitioner 14 is on deputation, he can be repatriated to his parent department at the instance of either of the departments, the deputationist has no vested right to continue on deputation and seek for absorption. The Hon'ble Apex Court in the case of KUNAL NANDA (supra) has held as hereinbelow:
"6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to 15 continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in RAMESHWAR PRASAD vs M.D., U.P. RAJKIYA NIRMAN NIGAM LTD. AND OTHERS reported in 1999 (8) SCC 381 is inappropriate since, the consideration therein was in the light of statutory rules for absorption and the scope of those rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree need mention, only to be rejected. The stand of the respondent department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e., a degree is a must and essential and that there could no comparison of the claim of such a person with one to be dealt with on promotion of a 16 candidate who is already in service in that department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim. "
17. In view of the above, it is very clear that the petitioner has no vested right to seek to continue in the deputation post or seek for absorption, he can be repatriated to his parent department at the instance of either of the departments.
18. In respect of contention of the petitioner that the deputation is for specified term, that cannot be curtailed without giving any proper reason is concerned, in fact, in the impugned order vide Annexure-D it is specifically mentioned that the petitioner has not passed the departmental examination and not having special expertise in doing the work relating to the Water Resources Department. Even in the judgment which is relied on by the petitioner in the case of V.RAMAKRISHNAN 17 (supra), the Apex Court has held that when a deputation is for a specified term, that cannot be curtailed except on the ground such as unsuitability or unsatisfactory performance. In the case on hand, the order of deputation is very clear that he can be repatriated to his parent organization at any time by respondents. Even then the respondent has given a reason for repatriation of petitioner to his parent organization. Therefore, the contention of the petitioner that the impugned order is passed without giving any reason is unsustainable.
19. The further contention of the learned Senior Counsel for the petitioner is that even though the word "until further orders" is mentioned in the order of deputation, that power cannot be exercised arbitrarily. In support of his contention he has relied on the judgment of the Hon'ble Apex Court in the case of S.N.MAITY (supra). In that case, the facts are 18 that the department called an application from eligible candidates to fill up the post by transfer on deputation, including short term contract. The petitioner in that case has been selected after conducting an interview by the UPSC and appointed for a period of five years. Before the term of the contract has been expired, the deputation order has been passed. Therefore, the Hon'ble Apex Court has held that since it was not a case of simpliciter deputation, before term is completed the deputation order is passed, therefore, the action of the respondent is caprice. In paragraph 15 of the said judgment the Hon'ble Apex Court has held as follows:
"15. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an 19 equivalent post from one cadre to another or one department to another. It is not a deputation from a Government Department to a Government Corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the 1st respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But, a pregnant one, this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words 'until further orders' are used, it would not confer allowance on the employer to act with caprice."
But in the case on hand, it is a simple transfer. He has been deputed for a certain period or until further orders whichever is earlier. Therefore, there is 20 no right created to the petitioner. The said judgment is not applicable to the petitioner's case. In fact the Hon'ble Apex Court in the said judgment has observed that where the case of transfer or deputation is from one cadre to another or from one Government Department to a Government Corporation or one Government to the other, no right of the petitioner will be affected, if it is a simple transfer. In view of the above, the contention of the petitioner that the impugned order is passed arbitrarily also holds no water.
20. In respect of the contention of the petitioner that the impugned repatriation order has been passed at the instance of the Karnataka Engineering Association is concerned, it is very clear from the deputation order vide Annexure-B that they can be repatriated to their parent department at any time at the instance of first respondent. Even in the impugned 21 deputation order vide Annexure-D they have given a specific reason that since the petitioner has not passed the departmental examination and not experienced in carrying out the work of Water Resources Department, he has been repatriated to his parent department. Therefore, the contention of the petitioner that the impugned order is passed at the instance of the Karnataka Engineering Association is unsustainable.
21. The last ground urged by the petitioner that in view of repatriation his right to seek for absorption in Water Resources Department has been denied is concerned, in fact in the writ petition there is no such prayer seeking for absorption and also the petitioner has not filed any application seeking his absorption in the first respondent Water Resources Department. The Government Order dated 13.08.2020 relied upon by the petitioner is not applicable to the petitioner. 22 Pursuant to the Government Order dated 13.08.2020 the persons eligible under that order have filed applications along with the required documents and the list of persons who are entitled to absorption has also been annexed with the said Government Order. The name of the petitioner is not in the list. Even in the judgment relied upon by the petitioner in the case of RAMESHWAR PRASAD (supra) is concerned, that is a case where the Department has framed the Rules for absorption of deputationist and there is provision for filing an application seeking for absorption by the deputationist. The petitioner has opted for absorption pursuance to the rules. During the pendency of the applications for consideration, repatriation order has been passed. In the case on hand the petitioner has not filed any application opting for absorption before any authority. Therefore, the said judgment is not applicable. Hence, the contention of the petitioner 23 that in view of order of repatriation his right to seek for absorption is affected, is unsustainable.
22. In view of the above, the petitioner has not made out any ground to allow the writ petition The writ petition is devoid of merit and accordingly dismissed.
In view of dismissal of the main writ petition, the pending IAs. do not survive for consideration.
Sd/-
JUDGE Cm/-