Karnataka High Court
Mallikarjun Jaka vs The State Of Karnataka And Ors on 9 July, 2024
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WA No. 200095 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
WRIT APPEAL NO.200095 OF 2024 (S-RES)
BETWEEN:
SRI. MALLIKARJUN JAKA
S/O CHENNABASAPPA JAKA,
AGED ABOUT 54 YEARS,
OCC: WORKING AS EXECUTIVE ENGINEER
KIADB - KALABURAGI,
R/o FLAT NO.75, NGO LAYOUT,
SEDAM ROAD, KALABURAGI.
...APPELLANT
(BY SRI.R.S.KADGANCHI, ADVOCATE)
Digitally signed by
BASALINGAPPA
SHIVARAJ AND:
DHUTTARGAON
Location: HIGH
COURT OF 1. THE STATE OF KARNATAKA
KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF INDUSTRIES
AND COMMERCE,
VIDHANA SOUHDA,
BENGALURU -560 001.
2. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF PUBLIC WORKS
(SERVICE -A) VIDHAN SOUDHA,
BENGALURU -560 001.
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NC: 2024:KHC-K:4716-DB
WA No. 200095 of 2024
3. THE CHIEF EXECUTIVE OFFICER
KIADB, NO.49, 4TH FLOOR,
KHANIJA BHAVAN, RACE COURSE ROAD,
BENGALURU -560 001.
4. SRI. ASHOK KHANDRE
S/O NOT KNOWN,
WORKING AS EXECUTIVE ENGINEER,
URBAN DEVELOPMENT AUTHORITY,
KALABURAGI,
AGED ABOUT 58 YEARS,
R/o KALABURAGI -585 101.
...RESPONDENTS
(BY SMT. MAYA T. R., HCGP FOR R1 AND R2;
SRI. A. M. NAGARAL FOR R3,
SRI. GOURISH S. KHASHAMPUR, ADV. FOR
SMT. JYOTI CHANDRAKANT, ADVOCATE FOR C/R4)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
FINAL ORDER DATED 13.03.2024 PASSED BY THE LEARNED
SINGLE JUDGE IN WRIT PETITION NO.200253/2024 BY
RELYING UPON THE GUIDELINES ISSUED BY THE
GOVERNMENT OF KARNATAKA IN REGARD TO TRANSFER OF
GOVERNMENT SERVANT WHILE ORDER NO.DPAR 4 STR 2001
DATED 22.11.2001 WHICH IS NOT AT ALL APPLICABLE TO THE
APPELLANT CASE ON THE OTHER HAND, IT IS APPLICABLE TO
THE RESPONDENT WHO IS BEING TRANSFERRED WITHOUT
UNDERGOING THE COOLING PERIOD OF 2 YEARS AND
WITHOUT OBTAINING THE PRIOR PERMISSION OF THE
HON'BLE CHIEF MINISTER.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
R.NATARAJ J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-K:4716-DB
WA No. 200095 of 2024
JUDGMENT
The appellant has challenged the order dated 13.03.2024 passed by the learned Single Judge in W.P.No.200253/2024 refusing to interfere with an order posting the respondent No.4 at the place of appellant.
2. The appellant was appointed as an Engineer at Hutti Gold Mines Company Limited during the year 2005 and continued till 2010 and was under the administrative control of Department of Mines and Geology. He was deputed to Water Resources Department on 24.12.2012 and posted as an Executive Engineer at KBJNL, Kalaburagi. He was thereafter, posted as an Executive Engineer at KNNL, Kalaburagi, between 2017 and 2019 and then between 2019 and 2020, he was posted as an Executive Engineer at Bheema Lift Irrigation Scheme, KNNL. Again from 2020 to 2021, the petitioner served as an Executive Engineer at Gauging Division at Kalaburagi. From 2021 to 2022, he was deputed to KNNL, Afzalpur Division, Kalaburagi. He was thereafter relieved from the Irrigation -4- NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 Department on 23.02.2022 and repatriated to his parent department. The services of the appellant as Deputy Manager (Civil) were placed with the Department of Industries and Commerce on 19.10.2022. The appellant was then posted as an Executive Engineer at KIADB on 06.12.2022 until further orders. The respondent No.1 by an order dated 30.12.2023, recalled the respondent No.4 from the Urban Development Department, Kalaburagi and placed his services with the Department of Industries and Commerce. Later, by order dated 19.01.2024, respondent No.1 posted the respondent No.4 as the Executive Engineer of KIADB, Zonal Office, Kalaburagi and repatriated the services of appellant to his parent department i.e., Department of Mines and Geology.
3. Being aggrieved by the said order of repatriation, the appellant filed W.P.No.200253/2024 challenging the order of repatriation primarily on two grounds namely: (i) That the repatriation was done only to accommodate respondent No.4; and (ii) That the -5- NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 repatriation was done without following the transfer guidelines dated 07.06.2013, as it was done during the middle of the year and without obtaining proper approval from the competent authority.
4. The learned Single Judge after considering the contentions of the parties held that the questions that had to be considered was whether the impugned order was approved by the Hon'ble Chief Minister and was it required to be supported by reasons. The learned Single Judge held that the order repatriating the services of the appellant was duly approved by the Hon'ble Chief Minister. It was also held that there was no need to assign reasons for repatriating the appellant. The learned Single Judge in terms of the order dated 13.03.2024 held that deputation, as per the circular dated 12.09.2023 issued by the respondent No.1 mandated that it shall not be for more than 05 years and any deputation in breach of it, shall be cancelled and he/she shall be repatriated to the parent department. The learned Single Judge also held that the -6- NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 guidelines relating to deputation categorically mandated that deputation should be resorted to only when there were no suitable officials in the Cadre. The learned Single Judge held that the appellant was deputed on his own payscale which was lesser than the payscale of the post to which he was deputed. Therefore, it was held that the deputation of appellant itself was not in consonance with the transfer guidelines. The learned Single Judge also held that the appellant who was earlier deputed to the Department of Irrigation worked continuously for nearly 10 years and that he did not undergo cooling period of 02 years between two successive deputations. Therefore, it was held that the deputation of the appellant was in violation of the transfer guidelines. Consequently, learned Single Judge answered the questions framed and dismissed the petition in terms of the order dated 13.03.2024. Being aggrieved by the said order, the appellant is before this Court.
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5. Learned counsel for the appellant contended that the grounds on which the learned Single Judge had dismissed the writ petition were wholly incorrect inasmuch as payscale of the appellant at his parent department was equal to the payscale of Executive Engineer at the KIADB. He therefore, contends that the basis on which the learned Single Judge had dismissed the writ petition was incorrect.
6. In order to support his contention, learned counsel for the appellant has placed on record the salary details of the appellant and contended that the appellant was in E-5 Grade in the pay scale of Rs.61,900/- - Rs.1,08,900/- while the payscale of the Executive Engineer at KIADB was Rs.67,550/- - Rs.1,04,600/-. He further contends that as per transfer guidelines, the appellant could not have been disturbed during the middle of the academic year and that the order repatriating the appellant to his parent department was only to accommodate respondent No.4.
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7. In support of his contention, learned counsel for the appellant relied upon the judgment of the Co-ordinate Bench of this Court in W.P.No.226384/2020 (S-KAT) in the case of Sri.C.B. Chikkalagi vs. The State of Karnataka and Others (D.D.28.09.2020) and contends that, this Court after noticing a case of deputation without hearing the employee, reversed the order of deputation and restored the services of the employee. The learned counsel contends that in the case on hand too, the appellant was not informed or consulted before repatriating his services and therefore, the order of repatriation was in a way punitive. He also relied upon the judgments of Co-ordinate Bench of this Court in W.P.No.3537/2022 in the case of Smt. Jenifer Lolita.C vs. State of Karnataka and Others (D.D.12.04.2022), W.P.No.21643/2023 in the case of Sri.K.M. Prashanth Kumar vs. State of Karnataka and Others (D.D.20.12.2023) and W.P.No.45916/2018 in the case of Sri Rajashekar.M. vs. State of Karnataka and Others (D.D.13.11.2018).
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8. Per contra, learned counsel for the respondent No.4 contended that the appellant has from the last ten years managed to be on deputation at the Irrigation Department in Kalaburagi which was in violation of the Rules relating to the deputation as the maximum period during which a Government Servant could be on deputation was five years. He submits that the appellant was not repatriated to his parent department after completion of five years which was a cooling period prescribed under the Rules. He further contended that soon after appellant was repatriated after ten years of deputation, without undergoing the mandatory cooling period, the appellant managed to be again deputed to the Department of Industries and Commerce. He therefore contends that the deputation of the appellant to the KIADB was itself wrong and therefore submits that the appellant was not entitled to any relief. Besides this, he contends that the appellant had sought deputation to the Department of Industries and Commerce on his own scale, while the pay scale of Executive Engineer of KIADB was far
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NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 higher than the pay scale of the appellant. Therefore, he contended that the deputation was not against an equivalent post. Besides this, he contends that respondent No.4 was also placed at the Department of Industries and Commerce and that respondent No.1 in its wisdom felt that the services of respondent No.4 could be better utilized than the appellant and therefore, the appellant was repatriated back to his parent department. He contends that there is no error committed by the learned Single Judge in refusing any relief to the appellant.
9. In support of his contentions, learned counsel for respondent No.4 relied upon the judgment of a Division Bench of this Court in W.P.No.24786/2023 and connected petitions in the case of Smt. Veena H.s. vs. State of Karnataka and Others (D.D.22.01.2024) and the judgment of a Division Bench of this Court in W.P.No.205950/2019 in the case of Sri Dhammkirti S/o Eknathrao Waghmare vs. Sate of Karnataka and Others (D.D.20.01.2020) and contended that an
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NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 employee seeking deputation on his own scale is not entitled for the benefit of deputation and that the approval of the Chief Minister is obtained and that there was no necessity of furnishing reasons to repatriate the services of the appellant.
10. The learned High Court Government Pleader supported the contentions of learned counsel for respondent No.4 and contended that the appellant was not entitled to be deputed at the Department of Industries and Commerce without he undergoing the cooling period of two years and that in the wisdom of respondent No.1, the services of respondent No.4 was preferred over the services of the appellant and therefore, the respondent No.1 felt it appropriate to repatriate the services of the appellant. She submits that there is no error in the respondent No.1 doing so, warranting interference by this Court.
11. We have considered the submissions of the learned counsel for the appellant as well as the learned
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NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 High Court Government Pleader and the learned counsel for respondent No.4.
12. Once the employee enters service under the State, the incidents of services such as transfer and deputation are inherent and inevitable. However, in order to ensure that there is no mindless transfer/deputation and that there is no discrimination or favoritism in the matters of transfer and deputation, the State Government has brought the transfer guidelines on 07.06.2013 which is held to have statutory force by this Court in the case of Smt. Veena H.S. vs. State of Karnataka and Others. A perusal of the guidelines show that deputation can be from one department to another department against an equivalent post. It also shows that such transfer and deputation shall be as minimal as payable, which at any rate shall not exceed 6% of the cadre strength of that cadre. While deputing an employee, care shall be taken to ensure that the maximum time of such deputation does not exceed five years and after such deputation, an
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NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 employee has to be repatriated to the parent department to undergo the cooling period of two years. It also mandates that a Government servant shall not be deputed to the same post again and again. It also mandates that deputation should be resorted only when there are no suitable and eligible candidates in that department. Further, it mandates that mutual transfer/deputation shall be given only once during the services of an employee. The guidelines regarding deputation underwent a change after the respondent No.1 issued a Circular dated 12.09.2023, which mandated as follows:
i. Deputation shall not be permitted if there was no provision in the cadre and amended rules.
ii. The deputation shall not exceed a period of five years and unless there are special circumstances, the deputationist should be repatriated to his parent department.
iii. An employee can be deputed only against an equivalent post and only in exceptional cases such deputation shall be resorted to.
iv. The employee on deputation shall not be deputed to higher rank post even on his own pay scale.
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13. If we peruse the facts and circumstances of this case, the appellant who was employed in the Hutti Gold Mines under the Department of Mines and Geology was on deputation from December 2012 till December 2022. This therefore indicated that the deputation of the appellant was way beyond the maximum limit prescribed under the guidelines dated 07.06.2013. This apart, the appellant did not undergo the mandatory cooling period in his parent department. On the contrary, soon after he was relieved from the Irrigation Department, he managed to obtain a deputation to the Department of Industries and Commerce and then was posted on his own scale against a post with a higher scale of pay. Therefore, the deputation of the appellant itself was in violation of the guidelines prescribed. The appellant was therefore not entitled to be continued at the deputed post, as the guidelines itself prescribed that any violation of the guidelines had to be viewed every year and undone, so that all employees toe the line laid down under transfer guidelines. The appellant was therefore repatriated back to his parent department in
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NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 terms of the impugned order and respondent No.4 who was earlier with the Department of Urban Development was placed in the Department of Industries and Commerce and posted as Executive Engineer of KIADB which was occupied by the appellant. This apart, the pay scale of the appellant was lesser than the pay scale attached to the office of the Executive Engineer, KIADB and this too was in violation of the circular issued by the respondent No.1 dated 12.09.2023, extracted above. At any rate, deputation being an incident of service, an employee on deputation does not have any indefeasible right to continue in the borrowing department. Repatriation of an employee could be done on various grounds, such as suitability or unsuitability or satisfaction of the borrowing department of the services of the employee deputed or if another suitable employee is available in the department. So long as the order of repatriation does not amount to a penalty or reduction in rank or is vitiated by bias, such order of repatriation cannot be interfered with. This is also settled law in view of the judgment of the Hon'ble Apex
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NC: 2024:KHC-K:4716-DB WA No. 200095 of 2024 Court in the case of Prasar Bharati and Others vs. Amarjeeth Singh and Others, (2007) 9 SCC 539 and in the case of Kunal Nanda vs. Union of India and Another, (2000) 5 SCC 362 and in the case of Umapati Choudhary vs. State of Bihar and Another, (1999) 4 SCC 659.
14. In that view of the matter, we do not see any error in the reasoning of the learned Single Judge warranting interference in this intra court appeal. Consequently, the appeal lacks merits and is dismissed. It is made clear that we are not expressing any opinion about the validity of the posting of respondent No.4.
In view of dismissal of the appeal, I.A.2/2024 for production of documents also stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE VNR/LG List No.: 1 Sl No.: 14