Karnataka High Court
Sri. M. Kempegowda, vs The State Of Karnataka on 23 October, 2018
Bench: Raghvendra S.Chauhan, B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER 2018
PRESENT
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
WRIT APPEAL NOs. 2783 - 2788 OF 2018 (S-RES)
BETWEEN:
1. SRI. M. KEMPEGOWDA
S/O. LATE MUNISONNAPPA
AGED ABOUT 56 YEARS
WORKING AS EXECUTIVE ENGINEER
ROAD INFRASTRUCTURE, DASARAHALLI ZONE
BRUHATH BANGALORE MAHANAGARA PALIKE
BANGALORE - 560 001.
2. SRI. MOHAN GOWDA
S/O. LATE. D.H. RUDRE GOWDA
AGED ABOUT 54 YEARS
WORKING AS EXECUTIVE ENGINEER
SARVAJNA NAGAR DIVISION
EAST ZONE, BRUHATH BANGALORE
MAHANAGARA PALIKE
BANGALORE - 560 002.
3. SRI. K.M. VASU
S/O. LATE K.N. MANJUNATHA RAO
AGED ABOUT 57 YEARS
WORKING AS EXECUTIVE ENGINEER
YELAHANKA DIVISION, YELAHANKA ZONE
BRUHATH BANGALORE MAHANAGARA PALIKE
BANGALORE - 560 064.
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4. SRI. B.S. MUKUNDA
S/O. B.M. SHANTHAPPA GOWDA
AGED ABOUT 55 YEARS
WORKING AS EXECUTIVE ENGINEER
ROAD INFRASTRUCTURE, YELAHANKA ZONE
BRUHATH BANGALORE MAHANAGARA PALIKE
BANGALORE - 560 064.
5. SRI. SHIVAKUMARA S.
S/O. C.S. SIDDAPPA
AGED ABOUT 50 YEARS
WORKING AS EXECUTIVE ENGINEER
STORM WATER DRAIN, DASARAHALLI DIVISION
BRUHATH BANGALORE MAHANAGARA PALIKE
BANGALORE - 560 001.
6. SRI. M.C. LAKSHMEESHA
S/O. M.L. CHANNAPPA
AGED ABOUT 54 YEARS,
WORKING AS EXECUTIVE ENGINEER
QUALITY CONTROL, SOUTH DIVISION
BRUHATH BANGALORE MAHANAGARA PALIKE
N.R. SQUARE, BANGALORE.
... APPELLANTS
(BY SRI. M.S. BHAGWAT, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA, BANGALORE - 560 001.
2. THE COMMISSIONER
BRUHATH BANGALORE MAHANAGARA PALIKE
N.R. SQUARE, BANGALORE - 560 002.
... RESPONDENTS
(BY SRI. H. VENKATESHA DODDERI, AGA FOR R-1)
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THESE WRIT APPEALS ARE FILED UNDER SECTION
4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO 'SET
ASIDE' THE IMPUGNED ORDER DATED 06.09.2018
PASSED IN WRIT PETITION NOS.39744-39749 OF 2018 BY
THE LEARNED SINGLE JUDGE AND CONSEQUENTLY
ALLOW THE SAID WRIT PETITION NOS.39744-39749/2018
AS PRAYED FOR, FILED BY THE APPELLANT HEREIN.
THESE APPEALS COMING ON FOR PRELIMINARY
HEARING THIS DAY, B.M. SHYAM PRASAD J., DELIVERED
THE FOLLOWING:
JUDGMENT
These appeals are filed by the appellants, who are Officers with the Karnataka State Financial Corporation ('KSFC', for short) on deputation with Bruhat Bengaluru Mahanagara Palike (the respondent No.2). The appellants have filed Writ Petition Nos.39744-749 of 2018, calling in question the Order dated 3.9.2018 ("impugned repatriation order", for short) issued by the respondent No.1 repatriating the appellants to their parent department, KSFC. The Writ Court dismissed these Writ petitions by the impugned order dated 06.09.2018 at the stage of preliminary hearing. 4
2. The Writ Court has dismissed the writ petitions taking note of the fact that most of the appellants have been on deputation for over four years, and some of them have been on deputation for over eight years. The Writ Court has held that a deputationist cannot assert a vested right to continue on deputation with the borrowing department. Further, the Writ Court has concluded that the Government Circular dated 15.1.1977, for prior consultation between the lending and the borrowing departments before deputation or repatriation, is issued only as a communication.
3. Mr. M.S. Bhagawat, the learned counsel for the appellants urged the following grounds in support of the appeal:
(i) every repatriation order should be preceded by prior consultation between the lending and the borrowing departments in view of the Government Circular dated 15.1.1977. But, the impugned 5 repatriation order, which is impugned in the writ petitions, is indisputably issued without prior consultation between the respondent Nos.1 and 2.
(ii) The State Government has also issued Official Memorandum dated 11.4.1984 reiterating the need for prior consultation between the lending and the borrowing departments before any repatriation order is made. The State Government has issued this Official Memorandum dated 11.4.1984 in view of certain observations made by the Karnataka Administrative Tribunal (for short, 'KAT'). The State Government, vide this Official Memorandum, has also instructed the Heads of the Department to strictly adhere to this requirement of prior consultation informing them that if this instruction is ignored, the Government would be obliged to take action to recover any expenditure that could be incurred by the Government as a consequence of the difficulties presented by the failure to adhere to such instructions. The tenor and purpose of the 6 Circular dated 15.1.1977 and the Official Memorandum dated 11.4.1984 is to ensure that there is strict compliance. As such, the impugned repatriation order should have been preceded by prior consultation.
(iii) The appellant Nos.1, 2, 4 and 6 have continued on deputation pursuant to the interim orders granted by the Writ Court in the respective writ petitions filed by these appellants. The impugned repatriation order is issued only to circumvent the interim orders and frustrate such writ proceedings.
(iv) In the case of appellant Nos.1, 2 , 3, 4 and 6, the deputation was extended by a period of one year in the month of March 2018. But, within the period of one year, the impugned repatriation order is issued. The respondent No. 2 could not have issued the impugned repatriation order within the period of one year from the respective dates.7
(v) The appellant No. 5 was sent on deputation with the respondent No. 2 only in the month of May 2017 for a period of one year or until further orders.
The appellant No.5 has not yet completed one year. The impugned repatriation order would tantamount to premature displacement inasmuch as the appellant No.5 is denied the benefit of a minimum tenure of two years in a particular list and place that a Group -A Officer like the petitioner would be entitled to.
4. It is not disputed that the appellants, except appellant No.5, have been on deputation for a period between eight and five years. The appellant No.5 has been posted on deputation with the respondent No. 2 in the year 2017 for a period of one year or until further orders whichever is earlier. The impugned repatriation order is on the ground that the appellants have been on deputation in excess of three years and that the services of the appellants are not required by the 8 respondent No.2. Therefore, the impugned repatriation order is issued in the interest of administration.
5. It is settled that an officer/employee on deputation has no legal right to continue in the post to which he is deputed. It is as against this settled principle of law that the appellants rely upon the Government Circular dated 15.01.1977 to contend that this Circular confers upon the deputationists - appellants - a right to continue on deputation unless the repatriation orders are issued after prior consultation in that regard between the lending and borrowing departments. The intendment in issuing the Circular is obvious from the following paragraph of the Circular dated 15.01.1977:-
"Where such postings are done without prior consultation and where the officer posted is not acceptable to the borrowing department, it creates avoidable inconvenience to both the Departments and embarrassment to the officers posted. It is also not correct for the lending department to withdraw the services of 9 lent officers without giving a reasonable notice to the borrowing department so as to enable it to make alternative arrangements. Similarly, it is not proper on the part of the borrowing departments to surrender the lent officer and replace his services at the disposal of the Sending department all of a sudden without any notice as is being done by some departments at present."
6. Further, there is nothing to indicate in the language of the Government Circular dated 15.01.1977, or the subsequent Official Memorandum dated 11.4.1984, that the purpose of the Government Circular/Official Memorandum is to create any semblance of right contrary to the general rule that a deputationist has no legal right to continue on deputation, or a right to lien on the post to which he/she is deputed. Neither the Government Circular dated 15.01.1977 nor the Official Memorandum dated 11.4.1984, stipulate that any repatriation order in the absence of such prior consultation would be per se illegal. On the other hand, it is obvious that the Circular dated 15.01.1977 is issued only to bring in 10 efficacy between the lending and borrowing departments by ironing out creases that may arise while issuing orders of deputation and repatriation. As such, neither the Government Circular dated 15.01.1977 nor the Official Memorandum dated 11.4.1984 can be construed as an exception to the settled law that deputationists cannot claim a right to continue on deputation with the borrowing department unless the repatriation orders are preceded by prior consultation between the lending and borrowing departments. Therefore, the reliance upon the Circular dated 15.01.1977 and the Official Memorandum dated 11.4.1984 to assert a right to continue on deputation unless such deputation is recalled after prior consultation between the lending and borrowing departments cannot be accepted.
7. The other contentions that the deputation of the appellants was recently extended for a period of one 11 year, and during such extended period of one year, the impugned repatriation order is issued; therefore, the impugned repatriation order is bad in law also cannot be accepted for the following reasons. Firstly, the extension of deputation (and the deputation of the appellant No.5 for a period of one year) is admittedly subject to the condition that the extension/deputation shall be for a period of one year or until further orders. Therefore, the appellants cannot contend that there was any definite and fixed tenure of deputation. Secondly, the appellants have been on deputation for eight and five years. The contention that they must be continued on deputation only because their deputation is extended is too specious and against the grain of the settled law. It is settled principle of law that, the deputationists can always be recalled or repatriated at any time depending upon the exigencies of administration. 12
8. The Hon'ble Supreme Court in Kunal Nanda vs. Union of India (2000)5 SCC 362 has held thus:
"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 continue for long on deputation or get absorbed in the department to which he had gone on deputation"
.
9. Lastly, the impugned order dated 03.09.2018 is issued because the respondent No. 2 - Commissioner, BBMP, has opined that the services of the appellants are no longer required by the respondent No.2 and that their repatriation is necessitated in the interest of administration. The respondent No. 2 by the impugned order has not only repatriated the appellants, who are on deputation with KSFC, but has also repatriated other officers/executive engineers who were on deputation from the Public Works Department. As such, it cannot 13 be said that the impugned repatriation order is veracious. Furthermore, the mere pendency of prior Writ Petitions or interim orders is those writ petitions staying earlier orders of repatriation or transfer cannot bind the concerned to take decisions to meet administrative exigencies in extant circumstances.
10. For the aforesaid reasons, this Court is of the considered opinion that the appellants have not made out any grounds for interference in this intra-court appeal with the impugned order dated 06.09.2018 in W.P. Nos. 39744-749/2018 (S-RES). Accordingly, the writ appeals are dismissed.
SD/-
JUDGE SD/-
JUDGE nv/SA