Karnataka High Court
H.M. Mohan Kumar And Ors. vs Karnataka Slum Clearance Board And Ors. on 23 January, 2006
Equivalent citations: 2006(2)KARLJ90
Author: B.S. Patil
Bench: B.S. Patil
ORDER B.S. Patil, J.
1. Four employees of the Karnataka Slum Clearance Board (hereinafter referred to as the 'Board'), who are presently working as Assistant Executive Engineers are before this Court challenging the order dated 29-9-2004 issued by the 2nd respondent appointing the 3rd respondent as Executive Engineer of the Board on deputation basis. They have also sought for quashing the order dated 16-3-2005 passed by the 5th respondent directing absorption of the services of the 3rd respondent under the Board.
2. Petitioner 1 has joined the services of the Board as Assistant Engineer on 1-8-1989. The other three petitioners claim to have joined the services as Assistant Engineers on 1-4-1992. The conditions of service of the Officers and servants of the Board are governed by the Rules framed by the State in exercise of the powers conferred under Sections 38 and 71 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 (for short, 'the Act'). The said rules, known as the Karnataka Slum Clearance Board Services (Cadre and Recruitment and Condition of Service) Rules, 1999 (for short, 'the Rules'), have come into force on 2-7-1999. The petitioners are promoted as Assistant Executive Engineers as per these Rules. They further contend that there are two posts of Executive Engineers which are required to be filled up by deputation of an officer in the cadre of Executive Engineer, Public Works Engineering Department, as provided under Rule 6 read with Schedule I to the Rules. In the department of Public Works of the State of Karnataka, the posts of Executive Engineers are filled up by the promotion from the cadre of Graduate Assistant Executive Engineers having minimum qualifying service of 5 years. Since the respondent-Board had Assistant Executive Engineers internally available for promotion to the next higher cadre of Executive Engineers and the petitioners had put in 5 years service as Assistant Executive Engineers, the Engineers working in the Board represented to the Board and to the Government for amendment of the Recruitment Rules. The Board accepted the representations and recommended to the State Government to amend the Rules. In the proposed amendment, it is provided that the posts of Executive Engineers in the Board shall be filled up promotion from the cadre of Assistant Executive Engineers in the Board and if no suitable candidate is available for promotion the post of Executive Engineers shall be filled up by deputation of an officer in the equivalent cadre from Public Works Department. Petitioners contend that as no objections were received to the proposed amendment, the Government has processed all suggestions and the Draft Rules, 1997 were required to be finalised and notified and the petitioners were looking forward for the finalisation of the Rules and for consideration of their cases for promotion to the cadre of Executive Engineer. They further contend that some of the provisions of the Draft Rules, 1997 like increase in posts have already been given effect to,
3. When things stood thus, on a representation made by the 4th respondent, an order came to be passed by the 5th respondent directing absorption of the 3rd respondent into the services of the Board as Executive Engineer, The 3rd respondent is an employee of the Housing and Urban Development Corporation (HUDCO), the 6th respondent herein. He joined the services of the 6th respondent-HUDCO as an Assistant Appraisal Officer in the year 1999 on contract basis. His services were regularised in the year 2001. The post of Assistant Appraisal Officer held by him is comparable to the Assistant Engineer in the Board and the next promotional post from Assistant Appraisal Officer in HUDCO is Appraisal Officer which is comparable to Assistant Executive Engineer in the services of the Board. Likewise, the next higher post of Senior Appraisal Officer in HUDCO is comparable to the post of Executive Engineer in the Board, though the pay scale of the Assistant Appraisal Officer in HUDCO is more than the pay scale of Assistant Executive Engineer in the Board as HUDCO is a Central Government undertaking having higher pay scales to its employees. Thus, the petitioners contend that though the 3rd respondent did not possess the eligibility or qualification essential to reach the post of Executive Engineer in the Public Works Department and was thus not qualified to be sent on deputation as Executive Engineer under the Board, he is illegally sought to be absorbed as Executive Engineer under the services of the Board, Ignoring the nature of duties and responsibilities of the post held by respondent 3 in HUDCO and the post of Executive Engineer in the Board, respondent 3 was taken on deputation vide. Notification dated 29-9-2004 as Executive Engineer. The provisions made in the Recruitment Rules did not authorise filling up of the post of Executive Engineer by any other mode other than on deputation from the Public Works Department. The principle that while taking a person on deputation, he could only be appointed on equivalent post and not on any higher post is also sacrificed and all this was done at the instance of respondent 4, a Member of the Legislative Assembly for political considerations and respondent 3 is the beneficiary of political influence that he wields is the contentions urged by the petitioners. As the 5th respondent ordered absorption of the 3rd respondent as Executive Engineer, the petitioners and the other employees submitted representations to the Board requesting them not to succumb to the pressure of the Government as it would affect the service conditions of the petitioners. Since the Board was making efforts to implement the directions issued by the 5th respondent and as the service conditions of the petitioners regarding their career advancement were being affected by the absorption of the 3rd respondent, left with no alternative, they have approached this Court.
4. The respondents have filed their statement of objections. The State Government has contended that the 5th respondent has endorsed on the letter of the 4th respondent requesting absorption of the services of the 3rd respondent in the Board. A Government Order needed to be issued to enable the 3rd respondent to get absorbed in the 1st respondent-Board and all the required procedure in this regard needs to be followed and the employer of the 3rd respondent namely, HUDCO should also concur the proposal. Though the Cadre and Recruitment Rules of the 1st respondent-Board provide for deputation from the Public Works Department to the post of Project Manager (Technical) in the Board, it had been the practice of the Government and the Board to effect deputation of the Executive Engineers from various Government undertakings including Land Army Corporation, Power Corporation, State Financial Corporation etc., and therefore the action in preferring an Officer of the HUDCO is unexceptionable. It is contended that the Government will examine the suitability of the 3rd respondent before considering his absorption under the 1st respondent.
5. The 3rd respondent has filed his statement of objections contending inter alia that the petitioners had no locus standi to challenge the deputation, as admittedly the post of Executive Engineer in the 1st respondent-Board can be filled up only by way of deputation as per the Cadre and Recruitment Rules in force. He further contends that the petitioners are admittedly working as Assistant Executive Engineers and as per the Rules they are not entitled for promotion. He has further contended that the post in which he was working in the HUDCO as Assistant Appraisal Officer is equivalent to the cadre of Assistant Executive Engineer and that the 3rd respondent in order to render services to his home State had desired to work in the 1st respondent so as to contribute to the development of the Board and that he was in fact loosing financially around Rs. 15,000/- as salary every month. He has denied the political influence and considerations behind his deputation.
6. The respondent 1-Board has filed its statement of objections inter alia contending that the question of absorption of the 3rd respondent is required to be examined by the Government as per the provisions of the Cadre and Recruitment Rules. The 6th respondent-HUDCO is a well-established funding agency with technical knowledge regarding various housing and other allied infrastructure schemes. The 3rd respondent being an Engineering Graduate reported to be well-versed with the various schemes of the 1st respondent and as the 1st respondent had availed various loan facilities from HUDCO, the services of the 3rd respondent were made use of on deputation. The Board admits that the petitioners have right to raise objections for any deputation or absorption either before the Government or before the Board if there is any violation of the provisions of the Cadre and Recruitment Rules. Although, the 3rd respondent has been on deputation since 29-9-2004, petitioners never raised any objections and thus it amounts to acceptance of the 3rd respondent and his deputation by the petitioners. The order passed by the 5th respondent was only formal. Hence, the relief sought by the petitioners did not merit consideration is the contention of the Board.
7. I have heard the learned Counsels appearing for the parties.
8. Learned Counsel for the petitioners Sri Rajagopal has raised the following contentions:
(i) Rule 4(d) of the 1999 Rules provides for absorption as one of the modes of appointment and the same is restricted to persons who are already working in a supernumerary post in the equivalent cadre in the Board and Rule 4-E prescribes deputation as a mode of appointment which is subject to the condition that deputation can only be of a person who is working in any of the State Civil Services in the equivalent grade and it can be resorted to only if eligible candidates are not available in the Board and the deputation should not normally exceed the time limit prescribed by the Government from time to time. None of the requirements of the rules are satisfied by the 3rd respondent for deputation to the Board service and for absorption. Placing reliance on Rule 419 of the Karnataka Civil Services Rules, 1958, he submits that tenure of deputation should not generally exceed 5 years;
(ii) Referring to Rule 6 of the Cadre and Recruitment Rules of the Board and Schedule I appended to the Rules, he submits that the post of Executive Engineer under the Board is required to be filled up by deputation of an officer in the cadre of Executive Engineer, Public Works Engineering Department Service and the appointment of 3rd respondent who is not an Executive Engineer of the Public Works Engineering Department is illegal;
(iii) Placing reliance on the Karnataka Civil Services (Service and Kannada Language) Examinations Rules, 1974, he contends that unless the person seeking appointment has passed service examinations prescribed under Rule 2(3) and Rule 2(6) he cannot be considered for appointment;
(iv) He next contends that the Draft Rules, 1997 are published by the Government proposing the amendment providing for filling up of the post of Executive Engineer in the Board by promotion from the cadre of Assistant Executive Engineer. The attempt made to absorb respondent 3 will deprive the petitioners of the opportunity of promotion;
(v) He has also contended that the entire action of bringing the 3rd respondent on deputation culminating in the impugned order passed by the 5th respondent directing his absorption under the 1st respondent is on account of political influence exerted and is contrary to the Rules;
(vi) A contention is also urged stating that as per Section 37(3) of the Act, the Appointing Authority is the Board and not the Government.
9. In support of his contentions, he has relied on the following judgments:
(i) Lakhi Ram v. State of Haryana and Ors. ;
(ii) Prem Singh and Ors. v. Haryana State Electricity Board and Ors. ;
(iii) P. Lal v. Union of India and Ors.
(iv) Kunal Nanda v. Union of India and Anr.
(v) Bangalore Medical Trust v. B.S. Muddappa and Ors.
(vi) Orissa Industrial Infrastructure Development Corporation v. Sarat Chandra Patnaik ;
(vii) A.M. Mani v. Kerala State Electricity Board, Trivendrum and Ors. AIR 1968 Ker. 76 (FB);
(viii) Abraham Jacob and Ors. v. Union of India .
10. Learned Counsel appearing for the respondents reiterating the stand taken in their statement of objections have strenuously contended that the petitioners cannot rely on the Draft Rules, 1997 and seek to enforce their rights based on the same. That there is no locus standi for the petitioners to challenge the deputation of respondent 3 and the action initiated for his absorption. In the past, services of officials from other departments other than Public Works Department were availed on deputation in the cadre of Executive Engineer and therefore the deputation of 3rd respondent who is from the other department coming under the Central Government Services cannot be found fault with.
11. Learned Counsel appearing for the 3rd respondent-Sri L.M. Chidanandayya and the Counsel appearing for the 1st respondent Sri Prakash have placed reliance on the following judgments:
(i) Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and Ors. ;
(ii) Mani Subrat Jain and Ors. v. State of Haryana and Ors.
(iii) D, Nagaraj and Ors. v. State of Karnataka and Ors. ;
(iv) R.K. Jain v. Union of India and Ors. ;
(v) Vinoy Kumar v. State of Uttar Pradesh and Ors. .
12. Mr. Keshava Reddy, Additional Government Advocate has contended that none of the rights of the petitioners are affected. If at all anybody could make any grievance it was the Executive Engineers of the Public Works Department who could have maintained any grievance stating that their case was not considered for deputation. He has drawn support from the decision in the case of Nanjundaswamy N. and Anr. v. State of Karnataka and Anr. 1080(1) Kar. L.J. 306 to contend that any proposal for amendment of a Rule cannot be a ground to ignore the existing Rules. He has also placed reliance on the judgment in the case of K. Kuppuswamy and Anr. v. State of Tamil Nadu and Ors. , to contend that the Draft Rules, 1997 do not clothe the petitioners with any rights and till the Rule is amended the Rules in force are applicable. In all other respects, he has supported the contentions urged by the learned Counsel appearing for respondents 1 and 3. He has further submitted that the communication vide Annexure-F which is impugned in this writ petition is only a recommendation and it is not an order issued by the Government and such a letter/communication cannot be questioned by the petitioners.
13. Upon hearing the learned Counsels appearing for the parties and in the light of the respective contentions urged, the points that arise for consideration in this case is:
"(1) Whether the petitioners have any locus standi to maintain this writ petition?
(2) If yes, whether the impugned order dated 29-9-2004 issued by the 2nd respondent appointing the 3rd respondent as Executive Engineer, Karnataka Slum Clearance Board on deputation and the subsequent order dated 16-3-2005 passed by the 5th respondent in issuing a direction to absorb the services of the 3rd respondent under the 1st respondent-Board are illegal and unsustainable in law?"
14. On the question of locus standi, considerable arguments are advanced by the Counsels appearing for the parties. The sum and substance of the arguments advanced by Sri L.M. Chidanandayya is that a person who is not aggrieved by the action complained cannot maintain the writ petition. He submits that the Rules as are existence at present do not clothe the petitioners with a right to seek promotion to the cadre of Executive Engineer. Whether the Board fills up the post by deputation or by absorbing a deputationist it cannot in any manner affect the rights of the petitioners as they are not entitled to claim any right in the post is the main contention. In the case of D. Nagaraj, on which reliance is placed by Sri Chidanandayya the Supreme Court was dealing with the challenge made to the constitutional validity of the provisions of the Karnataka Village Offices Abolition Act, 1961 by the Village Officers who did not respond to the notification issued by the Recruitment Committee and who did not possess the prescribed qualification. The Apex Court in those circumstances held that they cannot complain against unconstitutionality of the rules or infringement of Articles 14 and 16 of the Constitution. In Mani Subrat Jain's case, relied upon by the Counsel for 3rd respondent, the Apex Court, in the context of a mandamus sought directing the respondents to appoint the appellants to the post of Additional District and Sessions Judge held that no one can ask for a mandamus without a legal right. The law laid down is to the effect that there must be a judicially enforceable right as well as a legally protected one before a person suffering a legal grievance can ask for a mandamus. Again in Jasbhai Motibhai Desai's case, the Apex Court has explained the connotation of the expression, 'aggrieved person' in the context where a proprietor of a cinema theatre holding a licence for exhibiting cinematograph films invoked the certiorari jurisdiction calling the 'No Objection Certificate' granted to a rival operator. It has been clearly observed in paragraph 13 that the concept of aggrieved person cannot be confined within the bounds of a rigid, exact and comprehensive definition. That the Court will in its discretion deny a stranger the extraordinary remedy save in very special circumstances. Again the cases in Vinoy Kumar and R.K. Jain, have no relevance to the facts of the present case.
15. The petitioners in the present case cannot be said to be strangers nor can it be said that they are not aggrieved persons. The reason for this is manifold. They are attacking the appointment of the 3rd respondent on the ground that he is taken on deputation and sought to be absorbed though the post which he is holding in the parent department is lower in rank to the one to which he is sought to be deputed and the petitioners are made to work as immediate subordinates of the 3rd respondent as a result of the deputation. Secondly, the intended absorption of the 3rd respondent as Executive Engineer would put an end to the prospects of the petitioners to claim further promotion and their career advancement is going to be seriously affected particularly in the wake of the Draft Rules, 1997 that are already published providing for promotional opportunities to the petitioners who are holding the post of Assistant Executive Engineers. The provision made in the Draft Rules, 1997 providing promotional opportunity as Executive Engineer is itself the result of the struggle and the persuasion of the petitioners as contended by them. Thirdly, the deputation is resorted to contrary to the Rules. The Rules provide for deputation of an employee holding the equivalent post of Assistant Executive Engineer in the Department of Public Works Engineering whereas the present deputation of the 3rd respondent is from different service not provided under the Rules. These facts very clearly indicate that petitioners are in fact aggrieved persons.
16. Learned Counsel for the petitioners has rightly placed reliance on a judgment in the case of Prem Singh. In this case, excess number of candidates beyond the number of posts advertised were selected and appointed. The validity of the appointments was called in question. Dealing with the question of maintainability of the writ petition challenging the selection and appointment of candidates by persons who were not eligible on the last date fixed for receiving applications the Apex Court held that the petitioner who was not eligible had a just grievance as due to appointments of candidates in excess of the posts advertised, he was deprived of the right of consideration for appointment against the posts which would have become vacant after he acquired eligibility. When an ineligible person to hold a post is sought to be appointed without following the Rules and the person who are made to work under the incumbent complain about the illegal methods adopted in making the appointment, it cannot be said that they are not aggrieved persons and therefore they cannot challenge the appointment made. In essence, the challenge made then in the said context would mean that the real attack on the appointment would be on the ground of ineligibility. Although the prayer sought may be couched in different language, the Court is ultimately invited to issue a suitable order and direction, is held in the case of State of Haryana v. Haryana Co-operative Transport Limited and Ors. . In that case, writ of quo warranto was issued. Observing that there was no magic in the use of the formula, though the relief of certiorari asked for by the petitioner was inappropriate in the facts of the case, the Apex Court found that if the High Court found that the person appointed to the post was ineligible or not qualified to hold the same, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ of direction. To strike down the usurpation of office is the function and duty of a High Court in exercise of their Constitutional powers under Articles 226 and 227 is the observation made by the Apex Court in paragraph 9 of the said judgment. In the instant case, petitioner has clearly demonstrated that the respondent 3 was not eligible to be appointed to the post as per Rule, in that, it was only an Officer of the cadre of Executive Engineer serving in the department of Public Works Engineering who could be brought on deputation and whose services could be absorbed as per rules and not others. The petitioner does not fit into this requirement, spelt out in the rules. The Apex Court in the decision reported in the case of Ghulam Khadir v. Special Tribunal and Ors. , at paragraph 38 has held that, the orthodox rule regarding the locus standi of a person to approach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the case of dislodging claim of a litigant merely on hyper-technical grounds if the claim made is not based on mere expectation or windfall. The 3rd respondent has not produced any material to show that the post of Assistant Appraisal Officer which he was holding in HUDCO is equivalent to the post of Executive Engineer. When the petitioners have specifically contended that the post of Executive Engineer is two rank above to the post held by the petitioner as Assistant Appraisal Officer in HUDCO, it was incumbent on the third respondent who wants the benefit of deputation and absorption in the said post to show that it was an equivalent post to that of Executive Engineer. At least the Board or for that matter the State Government could have produced material to show that the post held by the third respondent is an equivalent post held by him in the parent department. None of them have produced any materials in this regard.
17. Looked from the angle of the right of the third respondent regarding his right as a deputationist to ask for permanent absorption in the department where he is under deputation, it has to be stated that unless his claim is based upon any statutory rules, regulations or order having the force of law, he cannot claim absorption and he can at any time be repatriated to his parent department at the instance of either the borrowing department or the parent department. There is no vested right in the third respondent to continue for long on deputation or get absorbed in the borrowing department. This is the law well-enunciated and useful reference can be made in this regard to the decisions in Kunal's case; Union of India v. S.N. Panicked and the latest judgment in the case of Union of India through Government of Pondicherry and Anr. v. V. Ramakrishnan and Ors. . In the instant case the claim made by the third respondent for absorption in the department where he is now working is not based on any statutory rule or regulation or order having force of law. Therefore, the third respondent cannot claim absorption. Hence, if his claim is sought to be preferred by violating the existing provisions and circumventing them the said arbitrary and illegal action can be assailed by the persons who are immediately juniors to the deputationist.
18. Yet another aspect of the matter is that the petitioners are legitimately expecting an opportunity for career advancement. Their cries are heard and the Draft Rules, 1997 are framed providing for an opportunity for promotion. It is often said that the appointments in any organisation, public or private are not made on the principle of hiring a hand but their services are engaged to enable him to have a whole career. It is in this background that provisions are made of advancement providing opportunities in that direction. The opportunity for advancement is requirement for progress. It is an incentive. In this view of the matter, steps are initiated for providing such opportunities to the petitioners by amending the rule to enable the petitioners to claim promotion. If the said opportunities are sought to be taken away by adopting an illegal process of absorbing a deputationist, the grievance made by the affected employees/officials cannot be turned down on the ground that they have no locus standi to approach the Court. In that view of the matter, looked from all angles, it cannot be said that the petitioners do not have locus standi.
19. As regards the validity of the order of deputation, it is seen that Rule 6 of the Cadre and Recruitment Rules of the Board read with Schedule I appended to the Rule, makes it clear that the post of Executive Engineer in the Board is required to be filled up by deputation of an officer in the cadre of Executive Engineer, Public Works Engineering Department. Admittedly the third respondent is not an Executive Engineer of the Public Works Engineering Department. If that is so his deputation is contrary to the Recruitment Rules. The justification offered by the Board and the State Government stating that in the past Engineers from the other departments were posted on deputation and the action taken therefore is not a departure from the past practice followed cannot be accepted. When the rules of recruitment specifically provide a mode for appointment on deputation, there cannot be any deviation. No justification can be offered for the same on the ground that in the past also the rule was not adhered to or was deviated from.
20. As regards the proposed action pertaining to absorption, Rule 4(d) of the Recruitment Rules, 1999 provides absorption as one of the modes of appointment and the same is restricted to persons who are already working in the Board in any supernumerary post. It can be clearly seen that the petitioner does not satisfy the requirement of Rule 4(d) either. He has also not been able to show that he was working in any equivalent grade in HUDCO. Therefore, he is not entitled for absorption as per the relevant rules. Moreover, as per Rule 6 read with Schedule I, the deputation could have been from the equivalent cadre of Executive Engineer from Public Works Engineering Department. Whether the order passed by the 5th respondent is only a recommendation or it actually clothes the 3rd respondent with any right does not require any elaborate discussion at this stage as it is held that the 3rd respondent is not entitled as per the Rules to seek absorption. As the contentions urged by the petitioners on these legal aspects are upheld, it is unnecessary to deal with the other contentions urged by the petitioners regarding the allegations pertaining to the political influence exerted by the 3rd respondent and the arguments advanced taking recourse to the requirement of the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974 pertaining to the requirement of passing service examination prescribed in the rules therein. The argument advanced stating that under Section 37(3) the Board is the Appointing Authority and the rules framed read with Schedule I making the State Government as Appointing Authority is illegal need not be examined in this case, particularly because no challenge is made to the Rules and nothing is urged in the petition in this regard. It is also unnecessary to refer to the other decisions relied on by the learned Counsel for the petitioners in view of what is stated hereinabove.
For the reasons stated above, the petitioners are entitled to succeed in this writ petition. Hence, I pass the following order:
ORDER Writ petition is allowed. The impugned Notification dated 29-9-2004 issued by the 2nd respondent appointing the 3rd respondent as Executive Engineer, Karnataka Slum Clearance Board on deputation is quashed. The impugned order dated 16-3-2005 passed by the 5th respondent issuing a direction to absorb the services of the petitioners in the respondent-Board is also quashed.
Writ petition is disposed off accordingly with no order as to costs.