Karnataka High Court
Shri M.Venugopal vs State Of Karnataka on 13 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 893
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2020
BEFORE:
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION No.634/2020 (S - TR) c/w
W.P.No.52350/2019 (S - RES)
IN W.P.No.634/2020:
BETWEEN:
SHRI M.VENUGOPAL
S/O LATE M.M.MUNISWAMY REDDY
AGE.59 YEARS 4 MONTHS
WORKING AS SUPERINTENDENT ENGINEER
UPPER BHADRA PROJECT, CIRCLE NO.1
VISVESWARAYA JAL NIGAM LIMITED
WATER RESOURCE LIMITED
B.R.PROJECT, BANGALORE
R/AT HIG-9/4, 9TH CROSS
KHB COLONY, 2ND STAGE
BASAVESHWARNAGAR
BANGALORE-560 79 ... PETITIONER
[BY SRI A.S.PONNANNA, SENIOR COUNSEL FOR
SRI VIJAYAKUMAR, ADV.]
AND:
1. STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
WATER RESOURCE DEPARTMENT
VIKAS SOUDHA, BANGALORE-560 001
2. THE MANAGING DIRECTOR
VISVESWARAYA JAL NIGAM LIMITED
GANDHINAGAR, K.G.ROAD,
BANGALORE-560009.
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3. THE MANAGING DIRECTOR
KARNATAKA STATE FINANCIAL
CORPORATION, KSFC BUILDING
THIMMAIAH ROAD,
VASANTHANAGAR
BANGALORE-560 052 ...RESPONDENTS
[BY SRI R.SUBRAMANYA, ADDL. A.G. ALONG WITH
SRI M.V.RAMESH JOIS, AGA FOR R-1;
SRI M.R.C.RAVI, ADV. FOR R-2;
SRI BIPIN HEGDE, ADV. FOR R-3.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS RELATING TO ISSUE OF THE IMPUGNED
NOTIFICATION DATED 09.01.2020 ISSUED BY THE R-1 VIDE
ANNEXURE-E AND AFTER PERUSAL SET ASIDE THE SAME IN
SO FAR IT RELATES TO THE PETITIONERS.
IN W.P.No.52350/2019:
BETWEEN:
SRI M.VENUGOPAL
S/O LATE M.N.MUNISWAMY REDDY
AGED ABOUT 59 YEARS 6 MONTHS
WORKING AS SUPERINTENDING ENGINEER
UPPER BHADRA PROJECT, CIRCLE NO.1
VISVESWARAIAH JAL NIGAM LIMITED
WATER RESOURCE DEPARTMENT
B.R.PROJECT, BENGALURU
R/AT HIG-9/4, 9TH CROSS
KHB COLONY, 2ND STAGE
BASAVESHWARNAGAR
BENGALURU-560 79 ... PETITIONER
[BY SRI A.S.PONNANNA, SENIOR COUNSEL FOR
SRI VIJAYAKUMAR, ADV.]
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AND:
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
WATER RESOURCE DEPARTMENT
VIKAS SOUDHA, BANGALORE-560 001
2. THE MANAGING DIRECTOR
VISVESWARAIAH JAL NIGAM LIMITED
BANGALORE-560001.
3. SRI F.H.LAMANI
AGE: MAJOR,
SUPERINTENDING ENGINEER
(UNDER RULE 32 OF KCSR)
No.1, UPPER BHADRA PROJECT
MUDDINAKOPPA DIVISION, KADUR,
CHIKAMAGALURU DISTRICT-577301.
4. THE MANAGING DIRECTOR
KSFC, KSFC BUILDING
THIMMAIAH ROAD
VASANTHANAGAR
BANGALORE-560 001
(CAUSE TITLE AMENDED VIDE
COURT ORDER DATED 18.12.2019.) ...RESPONDENTS
[BY SRI R.SUBRAMANYA, ADDL. A.G. ALONG WITH
SRI M.V.RAMESH JOIS, AGA FOR R-1;
SRI M.R.C.RAVI, ADV. FOR R-2;
SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI VINAYAKA B., ADV. FOR R-3.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RELEVANT RECORDS RELATING TO ISSUE OF IMPUGNED
NOTIFICATION DATED 06.12.2019 ISSUED BY THE R-1 VIDE
ANNEXURE-E AND AFTER PERUSAL SET ASIDE THE SAME.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:-
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ORDER
Since similar and akin issues are involved in these matters, the same are heard together and disposed of by this common order.
2. The petitioner who is on deputation from KSFC to the 1st respondent-State Government was posted to Water Resource Department, B.R.Project, Bangalore by an order dated 11.7.2018. As per the Notification dated 06.12.2019 respondent No.4 has been posted to the place of petitioner, transferring the petitioner without posting which is the subject matter of W.P.No.52350/19. This Court vide order dated 18.12.2019 was pleased to pass an interim order staying the operation of the impugned Notification dated 6.12.2019 issued by the 1st respondent. During the pendency of the said proceedings, vide order dated 6.1.2020 impugned in W.P.No.634/2020, the services of the petitioner are being repatriated to the parental -5- Department-Karnataka State Financial Corporation. Hence, these writ petitions.
3. Learned Senior counsel Sri.A.S.Ponnanna representing the petitioner submitted that there was tripartite agreement between the Government of Karnataka, KSFC and the worker's Union, pursuant to which the petitioner was deputed to Water Resource Department in terms of the Government Order dated 25.6.2015. The minimum tenure was for a period of five years. No unilateral decision of repatriation can be taken by the Government of Karnataka without the consent of the lending department-KSFC and the employee. The order of repatriation passed during the operation of the interim order passed in W.P.No.52350/19 is ab initio void. It was argued that the transfer order dated 6.12.2019 passed to accommodate the respondent No.3-Sri. F.H.Lamani without giving the posting to the petitioner is untenable. -6- It was submitted that the petitioner being the regular employee, priority should be given to him rather than the respondent No.3 appointed under Rule 32 of the Karnataka Civil Service Rules. The transfer order issued at the request of the private respondent suffers from legal malice. In support of his contentions learned counsel has placed reliance on the following judgments:
1. Union of India Vs. V. Ramakrishnan and others reported in (2005)8 SCC 394.
2. Sri.C. Vasudeva Vs. The State of Karnataka in W.P.No.24572/2015 (D.D.22.7.2015).
3. Miss.Seema H Vs. The State of Karnataka in W.P.No.48499/2016 (D.D.16.9.2016).
4. Sri.Raghurama Shetty Vs. The State of Karnataka in W.P.No.14393/2012 (7.6.2012).
4. Learned senior counsel Sri. Ashok Haranahalli representing the private respondent -7- supporting the transfer order submitted that the petitioner was directed to report at the Water Resource Department in terms of the transfer order impugned.
As such, it cannot be held that no posting is given to the petitioner. It was submitted that the petitioner has suppressed several material facts. The petitioner was posted to work in the Water Resource Department on contract basis vide Government Order dated 25.6.2015 on certain terms and conditions imposed by the State Government which was purely on contract basis and the same will be in force until further orders. The petitioner is not an employee of the State Government. Clause 5 of the terms and conditions of the Government order dated 25.6.2015 empowers the Government to repatriate the petitioner at any time without assigning any reasons. Neither the transfer order nor the repatriation order impugned suffers from any legal flaws.
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5. Learned Additional Advocate General appearing for the State of Karnataka submitted that the Government order dated 25.6.2015 empowers the Government to repatriate the petitioner who was borrowed to the Water Resource Department from the lending Department KSFC on contract basis. No lien can be claimed by the petitioner in the said post. The Government has reserved the right to terminate the contract appointment of the official at any time during the contract period without assigning any reasons and the contract appointee shall stand repatriated to the parent organization in terms of Clause 5(f) of the Government order dated 25.6.2015. In view of the repatriation order passed, Writ Petition No.52350/2019 filed by the petitioner challenging the transfer order would not survive for consideration.
6. Leaned Additional Advocate General has referred to the following judgments.
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1. Kunal Nanda Vs. Union of India and another reported in (2000)5 SCC 362
2. Managing Director, U.P.Rajkiya Nirman Nigam Vs. P.K.Bhatnagar and others reported in (2007)14 SCC 498
7. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record.
8. It is not in dispute that the petitioner is due for his retirement on 31.05.2020. It is well settled law that no employee on deputation has a vested right to continue in the post to which he has been deputed. The Government Circular dated 15.1.1977 or the subsequent Official Memorandum dated 11.4.1984 stipulate that any repatriation order in the absence of such prior consultation would be per se illegal. The aforesaid Circular/Official Memorandum cannot be construed as an exception to the law, that no vested
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right has accrued/shall continue on deputation with the borrowing department unless the repatriation orders are preceded by clear consultation between the lending and borrowing department. However, it is equally settled position that no repatriation order could be passed at the verge of retirement of an employee.
9. This court in the case of R. Suresh Vs. The State of Karnataka in W.P.No.24622/2015 (D.D.22.6.2015) has held that while the transfer policy may be statutory in nature, ipso facto, it is not mandatory in nature. Item No.9(a)(i) of the transfer policy relating to premature/delayed transfer has been considered and the word "generally there should not be any premature transfer" has been interpreted. The said ruling has been followed by the Cognate Bench of this Court in Sri.C.C.Vasudeva's case, supra and it has been observed thus:
"When an employee is at the last lap of his service, he is inundated with numerous
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responsibilities, numerous concerns, and is inflicted with numerous anxieties, both with regard the remaining service period, and most importantly, with regard to post-retiremental life that he would be required to undergo. In order to ensure that the transitional period at the fag end of his life is a smooth one, in order to ensure that he has sufficient time to tie up the lose-ends of his service tenure, that he has ample time to move his papers for seeking the retiremental benefit, and for settling any other dispute that his life may face, ample time has to be given to an employee for doing the needful. Keeping this beneficial purpose in mind, the policy is laid down which generally debars the Government from transferring an employee at the dusk of his life. Therefore, before an employee can be transferred within two years of his date of retirement, some extraordinary circumstances or reasons must exist for disturbing his peaceful life."
10. It is further observed that the State is duty bound to keep in mind the short tenure of the employee who is expected to retire. If the State thought such employee is fit to work at one place for many years, the state has failed to show any reason whatsoever for suddenly transferring the petitioner from the particular place and keeping him awaiting posting orders. This
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case would be squarely applicable to the facts of the present case.
11. Similarly, the Division Bench of this Court in Miss.Seema's case, supra has categorically observed that so long as there is no vacancy at the original place, the question of posting is without any foundation. It is beneficial to quote para. 6 of the judgment which reads as under:
"6. There are two serious infirmities in the transfer order. One is that when the petitioner is transferred from the post of Assistant Conservator of Forest, there is no clear posting order at a particular post of the petitioner. Unless the petitioner is lifted from one place and posted at another place, it cannot be said that any vacancy has arisen of the petitioner and such an exercise of the power cannot be appreciated even if one keeps in mind the administrative circumstances for the public interest as the case may be. It is hardly required to be stated that when 'A' is posted in place of 'B' from one place to another then only there will be a vacancy of 'A' and 'B' can be posted at the place of 'A'. If 'A' is lifted and his posting is kept in lurch and 'B' is posted vice-A such practice cannot be appreciated and deserves to be rather deprecated and the reason being
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that the officer who is lifted from one place is not certain at which place he has to join the duty and unless he joins the duty at different place, it cannot be said that vacancy in law had arisen at his original place. So long as there is no vacancy at the original place, the question of posting is without any foundation. Hence, the said transfer order can be said to be with the exercise of legal malafide."
12. Considering Rule 32 of the Karnataka Civil Service Rules, yet another Division Bench of this Court in Shri Raghurama Shetty's case, supra has held that when an appointment is made under Rule 32 of the Rules or if a government servant is appointed to be in- charge of the current duties, it is only in respect of a vacant post. Existence of vacant post is sine qua non for application of Rule 32 which does not deal or make a distinction in respect of persons holding the post on deputation or the person who is holding the post by way of regular promotion. In the light of the said legal position, the order of posting the private respondent to the place of the petitioner is void ab initio.
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13. As regards the arguments advanced by the learned counsel for the respondents referring to the Government order dated 25.6.2015, it is apt to refer to clause 5(f) which reads as under:
" 5(f) The Government reserves the right to terminate the contract appointment of the official at any time during the contract period without assigning any reason and the contract appointee shall stand repatriated to the parent organization."
14. It is the main contention of the respondents that the said order was on contract basis which was amenable to termination in view of the right reserved by the Government at any time during the contract period. The aforesaid condition would not be applicable to the case on hand for the reason that no order of termination has been passed by the Government terminating the contract appointment of the petitioner. On the other hand, the order of repatriation has been passed.
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Putting the cart before the horse is not permissible. Fair play should be the hall mark of the statutory authorities/Government. Even if the power is vested with the Government to pass the repatriation order without assigning the reasons, the principles of reasonableness cannot be dispensed with, reasonableness is the mandatory requirement to be complied with. No employee can be made to suffer at the dusk of his service without any posting where he is required to move his paper for seeking the retiremental benefits and for other related issues. Fag end of the service period of an employee should be conducive to keep him away from anxieties and stress.
15. The repatriation order passed during the operation of the stay order would indicate the conduct of the respondent, what could be inferred is, in order to negate/overcome the interim order of this court, the repatriation order is passed. In this context, the
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judgments referred to by the Learned counsel for the respondents are of little assistance to the respondents. Viewed from any angle, the impugned Notifications dated 9.1.2020 at Annexure-E in W.P.No.634/2020 and 6.12.2019 at Annexure-E in W.P.No.52350/2019 cannot be sustained. Hence, the following:
ORDER Both the writ petitions are allowed. The impugned Notifications dated 6.12.2019 and 9.1.2020 issued by the respondent No.1 are set aside.
No order as to costs.
Sd/-
JUDGE Dvr/NC.