The Karnataka High Court on Monday (28th September) observed that the Government being a model employer cannot act like the East India Company of the bygone days when the conditions of service are broadly regulated by the Service Rules.
The Bench of Justice Krishna P. Dixit and Justice P. N. Desai was hearing a Writ Petition filed by a Civil Servant of the State, challenging the order dated 12.08.2020 made by the Kalaburagi Bench of Karnataka State Administrative Tribunal (hereafter 'KSAT') in his Application No.1270/2020 denying him the relief against the unilateral termination of his deputation by the borrowing department (RDPR) on the ground of efflux of time.
Vide Notification dated 09.05.2017, the State of Karnataka had lent the services of the petitioner on deputation to the first respondent-RDPR Department, which in turn issued a Notification dated 02.06.2017, posted him as the Assistant Executive Engineer in the Project Sub-Division, Vijayapur.
Further, the borrowing RDPR Dept. vide Notification dated 15.07.2017 had shifted the petitioner as Technical Assistant, Project Division at Bagalkot, which he had called in question in Application No.4434/2017 and the KSAT had continued him in the earlier post by granting an interim order of stay against this displacement.
The borrowing dept. vide Notification dated 27.02.2020 (Annexure-A6) unilaterally cancelled the deputation of the petitioner and sent him back to his parent department i.e., PWD; the petitioner challenged this Notification in Application No.1270/2020, which came to be negatived by the KSAT vide an order, therefore, the Petitioner had to knock at the doors of Writ Court.
Court's Analysis and Decision
Going by the text and context of various rules as enumerated in the KCS (CCA) Rules, 1957, the Court was of the view that in the matter of deputation in Government service, an employee may not have much say.
However, the Court opined,
"No department can thrust its employee on deputation to another, as a general rule; similarly, a borrowing department cannot cut short the tenure of the deputation unilaterally, in the absence of authorization."
In the present case, the Court noted, the borrowing department unilaterally sent the petitioner back to the parent department abruptly and unceremoniously, that too without any prior or post-consultation with the lending department; this according to the Court, "apart from being contrary to rules, involves denigration of the civil servant who needs to be treated with some respect" (emphasis supplied)
The Court also observed that the idea of deputation involves three ingredients namely, the lending department, the borrowing department and the lent hand; ordinarily, a valid deputation envisages a consensus amongst all the three agencies involved unless the law otherwise states.
Further, the Court said,
"It hardly needs to be stated that the Government being a model employer cannot act like the East India Company of the bygone days when the conditions of service are broadly regulated by the Service Rules; thus, the impugned action falls short of "fair standard procedures"
The Court gathered an impression that the impugned action of the borrowing department was prompted by the act of petitioner in approaching the KSAT earlier and getting reprieve against his displacement.
The Court was of the view that the deputationist has no legal right to the post/office to which he is deputed, but that is not the case here and therefore this decision does not come to the rescue of the respondents especially when Rule 50 of KCSR provides for a maximum period of five years for deputation.
The Court further took into account the fact that there are some Government Orders presumably issued under this Rule, which broadly formulates the policy of deputation and its tenure.
The Court acknowledged the fact that the Government Order dated 19.11.1981, prescribes the consultation between the borrowing and the lending departments as a precondition for cutting short the tenure of or extending the period of deputation
In this context, the Court opined,
"True it is that these Government Orders/Circulars arguably may not have the force of law so as to give a concrete cause of action for a legal proceeding; but they provide the standards with which the validity of administrative action can be assessed; even these orders have not been borne in mind by the first respondent in issuing the impugned Notification." (emphasis supplied)
In the above circumstances, this writ petition succeeded. A Writ of Certiorari was issued quashing the impugned order of the KSAT; a direction issues to the respondent Nos.1 & 2 to restore the petitioner to the office which he had held on deputation immediately preceding the impugned Notification dated 27.02.2020, time for compliance is 15 days.
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