Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit and P.N. Desai, JJ., while allowing a writ petition by a civil servant, observes,

“Government being a model employer cannot act like the East India Company of the bygone days”

The present writ petition is sought by a Civil Servant of the State, challenging an order dated 12-08-2020, made by, the Kalaburagi bench of the Karnataka State Administrative Tribunal (‘KSAT’), denying relief against the unilateral termination of his deputation by the borrowing department (RDPR) on the ground of ‘efflux of time.’ The series of events are categorically stated hereunder:

  1. That vide notification dated 09-05-2017, the Karnataka State Government sent the petitioner on deputation to the respondent 1; RDPR department.
  2. That vide notification dated 02-06-2017, the RDPR department posted the petitioner as an Assistant Executive Engineer, project subdivision – Vijayapur.
  3. That vide notification dated 15-07-2017, the RDPR department further transferred the petitioner as a Technical Assistant, project division – Bagalkot.
  4. That the aforementioned notification was called in question through application no. 4434 of 2014 and the KSAT had thereby allowed the petitioner to continue at his previous position by an interim order against the last deputation.
  5. That the borrowing department vide notification dated 27-02-2020, unilaterally cancelled the deputation of the petitioner and sent him back to his parent department; PWD.
  6. That the petitioner challenged this notification in application no. 1270/2020, which was eventually denied by the KSAT vide an order, and hence the petitioner has sought relief through the instant Writ Petition. 

Observations

The Court made significant remarks with respect to deputation in public services.

Citing the Supreme Court decision in, State of Punjab v. Inder Singh, (1997) 8 SCC 372, wherein it was said, “Concept of deputation is well understood in service law and has a recognized meaning. Deputation has a different connotation in service law and the dictionary meaning of the word deputation is of no help. In simple words, deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per recruitment rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed.”

The Court further cited Rule 50 of the Karnataka Civil Services Rule, which reads as,

“50(1). When a Government Servant is permanently transferred or deputed from one department to the other, under the provisions of Rule 16 of General Recruitment Rules, 1977, he will draw pay in the new post at the same stage in which he was drawing in the old post and earn the next increment on the date on which he would have earned it had he continued in the old post.”

Decision

While issuing the writ of certiorari, the Court directed respondents 1 & 2 to restore the petitioner to the office which he had held on deputation immediately preceding the impugned notification dated 27-02-2020. It further said that the borrowing department has sent the petitioner back to the parent department abruptly and unilaterally, without any prior consultation with the lending department, which infact, is in deep contravention of the service rules.[C.B. Chikkalagi v. State of Karnataka, WP No 226384 of 2020, decided on 28-09-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of Subodh Abhyankar, J. by the petitioner who was working on deputation against the order whereby his services were repatriated to the parent department.

Petitioner challenged the impugned order on the ground that the nature of deputation in the instant case was different from the normal transfer on deputation. It was only after selection of petitioner that he was appointed on deputation. Thus, petitioner could not have been repatriated.

Petitioner submitted that the instant petition filed was covered under the decision passed in the case of Ram Avtar Singh v. State of M.P., WP No.13505 of 2018, where the impugned order of repatriation was set aside and Court made clear that the order would not come in the way of respondents to repatriate petitioners in accordance with law.

High Court in the facts and circumstances of the case set aside the impugned order of repatriation in the light of the order passed in the aforementioned case and since impugned order of repatriation was quashed petitioner was allowed to work at his deputation. Therefore, this petition was allowed. [Rajendra Prasad Nayak v. State of M.P., 2019 SCC OnLine MP 258, dated 14-02-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A petition challenging the transfer order of the petitioner was dismissed by a Single Judge Bench comprising of Sanjeev Kumar, J.

The petitioner challenged his transfer order passed by the Animal Husbandry Department. The petitioner, a Veterinary Assistant Surgeon was posted as Municipal Veterinary Officer in Jammu Municipal Corporation. He was, however, asked to report to the Director, Animal Husbandry Department, Jammu for further posting. The petitioner challenged the Government Order stating that his transfer was premature and the said order was actuated by mala fides.

The High Court rejected both the contentions of the petitioner. The Court held that the petitioner (assistant veterinary surgeon) had no vested right to remain on deputation in the Jammu Municipal Corporation for an indefinite period. Further, in absence of any material placed on record, no mala fides could be attributed to the Secretary to the Government in passing the impugned order. Thus, the petition was dismissed by the High Court holding it to be sans merit. [Jaswant Singh v. R.K. Bhagat, 2018 SCC OnLine J&K 326, 30-05-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Sanjiv Khanna and Navin Chawla, JJ, ruled in favour of an Air Force officer on deputation to the BSF Air Wing, enforcing the rule laid down in Group Captain Joe Emmanuel Stephen v. Commandant (Personell), Directorate General of BSF, 2013 SCC OnLine Del 2472, that there cannot be two different pay scales, one applicable to deputationists and the other to the officer of the parent cadre/department when both are performing identical and same duties.

The petitioner was an IAF officer (Squadron Leader) on deputation to the BSF Air Wing (Sr.AME) from 2004, drawing the salary applicable to IAF officers with minimal deputation pay. The pay scales applicable to BSF Air Wing pilots were different. The pilots of the BSF Air Wing drew flying incentives as per actual flying hours undertaken and hence had a heftier take home salary. The issue was brought forth and rectified by settlement vide agreement dated 08.02.2008. The agreement allowed flying incentives to IAF officers on a par with BSF Air Wing officers. The issue arose in the period between 01.02.2007 to 07.02.2008. During this period the petitioner was drawing pay termed as “BSF kind of pay” under an option provided by the BSF Air Wing to IAF officers on deputation. The payment of flying incentive to IAF officers was objected to in an audit, the grounds being that the terms of deputation of the petitioner and other IAF officers should be according to the memorandum dated 16.04.2004. Moreover, the Directorate initiated recovery proceedings for recovery of excess payment against the petitioner. Aggrieved, the petitioner filed the present writ petition.

The Court, admitting that there may be some merit in the argument that the petitioner was not entitled to flying incentive during the period between 01.02.2007 to 07.02.2008 in view of the MOU dated 16.04.2004. However, for the issue at hand, the Court found no merit in the arguments of the respondents. The Court referred to State of Punjab v. Rafiq Masih, (2015) 4 SCC 334, stating that in any case of recovery of excess payment, if the court arrives at the conclusion, that recovery, if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover, then such recovery cannot be allowed to be made. The Court again stated that though the agreement dated 08.02.2008 did not have retrospective effect, it did correct an anomaly which could not have been correct in law. The respondents were ordered to pay back the amount already recovered/withheld. Petition allowed. [Wing Commander Arvind Kumar v. Directorate General, BSF, 2017 SCC OnLine Del 10880, decided on 14.09.2017]