Karnataka High Court
Sri. Mahaboob Basha Arasikere vs The State Of Karnataka on 21 September, 2017
Bench: L.Narayana Swamy, H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA , DHARWAD BENCH
DATED THIS THE 21ST DAY OF SEPTEMBER, 2017
PRESENT
THE HON'BLE Mr. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION NO.109206 OF 2017 (S-KAT)
Between:
Sri. Mahaboob Basha Arasikere,
S/o. Chandra Hussainsab. A,
Aged about 36 years,
Occ: presently working as Office Superintendent,
At Tribal Welfare office, Kudligi,
Kudligi Taluk, Ballari District,
R/o. C/o. S.M. Shivarudrayya,
Bapuji Nagar,
2nd Ward, near Hiremath computer center,
Kudligi post & taluk,
Ballari district- 583 134.
... Petitioner
(By Sri. Sathish M.S. Advocate)
And:
1. The State of Karnataka,
Represented by its Secretary to Government,
Department of Social Welfare, M.S. Building,
Bengaluru-560 001.
2. The Director,
Department of Tribal Welfare,
Krishi Bhavan, Nrupathunga Road,
Bengaluru - 560 001.
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3. The District Social Tribal Officer,
Valmiki Bhavan, Nallacharavu area,
Ballari - 583 102.
4. B. Manjula W/o Thindappa,
Aged about 59 years,
Occ: Office Superintendent,
(Relieved from the office of the
Tribal Welfare Officer, Kudligi)
R/o. behind CPI office, Anjaneya Badawane,
Near Anjineya Temple, Kottur Post,
Kudligi Taluk,
Ballari District-583 134.
...Respondents
(By Smt. Veena Hegde, AGA for R1)
This Writ Petition is filed under Articles 226 & 227 of
Cr.P.C., praying to quash the impugned order passed by
Karnataka State Administrative Tribunal, Bangalore in
application No.5066/2017, date:31.08.2017 vide
Annexure-H and etc.
This Petition coming on for Preliminary Hearing this
day, Dr. H.B.Prabhakara Sastry J, made the following:
ORDER
It is the case of the petitioner that he is working as Office Superintendent/Manager at Tribal Welfare Office, Kudligi, by virtue of Official Memorandum dated 22.8.2017 issued by respondent No.2, whereunder he was posted to the said place. He took charge of the said office on 24.8.2017. By another Official Memorandum issued by respondent No.3 and dated 24.8.2017, the respondent No.4 was repatriated to her parental department with a 3 WP NO 109206 OF 2017 direction to report before the Commissioner, Social Welfare Department. It is the further case of the petitioner that Office of the Schedule Tribe Welfare Department has been separated from the Social Welfare Department, Bengaluru, as per the Karnataka State Government Notification No.SWD 187 PAVAYO 2009, Bengaluru dated 24.4.2013. Therefore, the appointment of the petitioner is from separate department.
2. According to the petitioner, after receipt of the Official Memorandum, respondent No.4 challenged the said memorandum of her repatriation before the Karnataka State Administrative Tribunal at Bengaluru in Application No. 5066/2017. The said Tribunal by its order dated 31.8.2017 allowed the application and repatriation passed by the respondent Nos.2 and 3 was set aside. The Tribunal also directed the writ petitioner to hand over the charge to the 4th respondent/applicant before the Karnataka Administrative Tribunal and directed to immediately report before the respondent No.2 to seek posting order.
3. Being aggrieved by the said order of the Karnataka Administrative Tribunal (henceforth for brevity 4 WP NO 109206 OF 2017 called as ' the Tribunal ' ) the writ petitioner who was the 4th respondent before the Tribunal has preferred this writ petition.
4. It is the contention of the writ petitioner as well the argument of the learned counsel for the petitioner that the 4th respondent who was the applicant before the Tribunal had mislead the Tribunal stating that she was at the verge of retirement even though she had every opportunity to seek for the appropriate posting before her parental department. It is also stated by the petitioner as well his counsel in his argument that transfer and deputations are incidents of service and not a condition of service. The transfer or deputation can be interfered with by the court in suitable cases. As such in the instant case, there is every necessity for the court to interfere with the order passed by the Tribunal.
5. The Additional Government Advocate has taken notice for respondent No.1.
6. Though this matter came up for preliminary hearing, by consent of the learned counsel of both sides taken up for final disposal.
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7. Admittedly, the parent department of the 4th respondent herein is the Social Welfare Department. However, she has been working as Office Superintendent in the office of the Tribal Welfare Office at Kudligi, Bellary District, since the date of deputation i.e. on 15.10.2015. The petitioner is the Office Superintendent in the Schedule Tribe Welfare Department presently working at Kudligi. The 4th respondent was deputed to the Schedule Tribe Welfare Department at Kudligi as Office Superintendent by the order of the Government of Karnataka under the signature of the Deputy Secretary-I, Social Welfare Department, Government of Karnataka, Bengaluru vide Notification No.Sakae 260 SLP 2015 dated 1.10.2015. Accordingly, the 4th respondent reported in the office of the Taluk Schedule Tribe Welfare, Kudligi Taluk. That being the case, the Director, Directorate of Welfare of the Schedule Tribes, Bengaluru by his order No.PAVAKA/SIBHANDI:1/cr-52/2017-18 dated 22.8.2017 deputed the present petitioner to the place of the respondent No.4 and repatriated the respondent No.4 to her parental department. Thereafter, the District Schedule Tribe Welfare Officer, Bellary, by his order No.G PAVA 6 WP NO 109206 OF 2017 KA/SIBHANDI/TAPaVaKaVa dated 24.8.2017 permitted the petitioner herein to report for his place on deputation and relieved the respondent No.4 from the office directing her to report to her parent department. It is the said orders respondent No.4 challenged before the Tribunal in her Application No.5066/2017 which the Tribunal by its order dated 31.8.2017 allowed the application and set aside the order of both the Director and the District Welfare Officer of the Schedule Tribe Welfare Department.
8. Learned counsel for the petitioner in his argument relied upon a judgment of a co-ordinate Bench of this court in Sri.Desayappa Sharanappa Hawaldar v. The State of Karnataka and Others in Writ Petition No..65191/2012 (S-KAT) dated 16.7.2012 (unreported), wherein a Division Bench of this court was pleased to observe that the basic principle underlying deputation itself is that the person concerned can always at any time be repatriated to his parental department to serve any substantive position therein at the instance of either of the departments. There is no vested right in such a person to continue for long on deputation.
7 WP NO 109206 OF 2017 No doubt, the 4th respondent herein has no vested right to continue for long on deputation in the place where she was working prior to her repatriation vide order dated 22.8.2017. However, the point in question is whether the authority who has passed the repatriation order dated 22.8.2017 was the authority authorised to repatriate. Admittedly, the 4th respondent was repatriated by the Government of Karnataka, Social Welfare Department as per the order at Annexure-A1. It is mentioned in the said order of repatriation that the said order has been approved by the Hon'ble Chief Minister, whereas the order of repatriation at Annexure-A4 dated 22.8.2017 is passed by the Director, Directorate of Schedule Tribe Welfare, Bengaluru. Admittedly, the said authority is not the very same authority or higher authority of which has passed the order of deputation.
9. In Union of India Vs. V.Ramakrishnan reported in 2005(8) SCC 394, on the point of deputation under service law, the Hon'ble Supreme Court was pleased to observe that a repatriation to the parental department and relieving of an official from his duties without assigning any reason and without consulting the lending 8 WP NO 109206 OF 2017 department and without adhering to the Recruitment Rules was incorrect.
10. In the instant case, as observed above, there is no mention in the order of repatriation at Annexure- A4 dated 22.8.2017 about the reasons for repatriation or about the repatriating officer or repatriating department consulting the parental department of respondent No.4 before repatriation. Undisputedly the repatriating officer is not equivalent or superior to the deputing authority. For these reasons, the order of repatriation dated 22.8.2017 cannot sustain. The Tribunal has quashed the order of repatriation which order of the Tribunal cannot be found fault with. Thus, we do not find any merit in this writ petition.
11. Accordingly, the writ petition stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE Msu