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Judgment
B.S. Patil, J.—Petitioner is aggrieved by the order dated 25.02.2010 passed by the Karnataka Administrative Tribunal, Bangalore (hereinafter referred to as ''the Tribunal'', for short) allowing the application tiled by Respondent No. 1-Pullaiah, and thereby quashing the order of transfer dated 25.12.2009.
Respondent No. 1-Pullaiah was working as Assistant Executive Engineer under Respondent No. 4-Karnataka Neeravari Nigam Limited at Bhadravathi. He was on deputation from the Public Works Department with effect from 01.12.2007
Petitioner herein/Respondent No. 4 before the Tribunal was given promotion to the post of Assistant Executive Engineer as per Rule 32 of the Karnataka Civil Service Rules thereinafter referred to as ''the Rules'', for short) and his services were placed at the disposal of the Rural Development and Panchayatraj Department, on deputation. Both the Petitioner and Respondent No. 4 are the employees of Public Works Department.
By the impugned notification challenged before the Tribunal vide Annexure-A-2, the services of the Petitioner were withdrawn with immediate effect from Rural Development and Panchayatraj Department and were made available to the Water Resources Department on deputation, for being posted to the place of the applicant at Bhadravathi under the Karnataka Neeravari Nigam Limited. As a consequence, the services of Respondent No. 1-Pullaiah were withdrawn from the Water Resources Department to the parent department to provide him separate posting. Applicant-Respondent No. 1 herein assailed this order before the Tribunal contending inter-alia that by the said action in order to accommodate Petitioner-Mohd. Hussain. Respondent No. 2 committed an illegality in directly transferring him to the post of the applicant. It was alleged that Respondent No. 2 had no power or authority to directly transfer the Petitioner herein to the post of the Respondent No. 1 at Bhadravathi in another department, namely Water Resources Department He urged that at best Respondent No. 2 could have placed the services of the Petitioner herein with the Water Resources Department and thereafter it was for the Water Resources Department to give him a posting wherever it deemed fit. He also contended that the impugned order was an order of transfer which was issued in the middle of the academic year and therefore it affected the studies of his children in the Engineering College at Bhadravathi. The applicant further contended that the order of transfer was not issued by the cadre management authority and therefore the procedure contemplated in the transfer guidelines issued on 22.11.2001, were violated.
5 The Petitioner herein resisted the application Contending that on his promotion as Assistant Executive Engineer, his services were placed at the disposal of the Rural Development and Panchayatraj Department. Despite the same, he was not relieved from his earlier post and was not provided any posting in Rural Development and Panchayatraj Department. Taking note of the same, by the impugned notification dated 15.12.2009, his services were withdrawn from Rural Development and Panchayatraj Department and were placed at the disposal of Water Resources Department, and therefore, there was nothing wrong in the action of the authority. It was also contended by him that this was not a case of transfer of the Petitioner to the post held by Respondent No. 1, on the contrary, it was a case of placing the services of the Petitioner at the disposal of the Water Resources Department for being posted to Bhadravathi and that it will be for the Managing Director of Karnataka Neeravari Nigam Limited to issue the posting and re-posting orders.
The Tribunal having considered the contentions of the parties before it, has held that the notification impugned before it was an order of transfer and the said transfer was not effected by the cadre management authority as per the guidelines contained in the Government Order dated 22.11.2001. Holding that the action of the Respondent-authorities in withdrawing the services of the Petitioner herein and placing the same at the disposal of the Water Resources Department to be appointed in the place of applicant-Pullaiah was contrary to the judgment of this Hon''ble Court in the case of State of Karnataka v. K.C. Krishne Gowda AIR 2006 KAR 541, the Tribunal set aside the order impugned before it and issued a direction to retain Pullaiah, the applicant in the same place at Bhadravathi till his tenure as per the guidelines was over as per Government Order dated 22.11,2001. It is this order that is challenged before us.
Learned Counsel appearing for the Petitioner Sri Bhagawat contends that the order impugned before the Tribunal was not an order of transfer and that the Tribunal erred in holding that the Government Order dated 22.11.2001 laying down certain guidelines for transfers were violated. His contention is that the notification dated 15.12.2009 impugned before the Tribunal was an order, by which the applicant has been sent on deputation to the Water Resources Department by withdrawing his services from Rural Development and Panchayatraj Department, to be posted as Assistant Executive Engineer at Bhadravathi under the Karnataka Neeravari Nigam Limited, therefore, the Tribunal erred in proceeding on the basis that it was a transfer order. He further contended that even if it is an order of transfer, merely because certain guidelines were violated, the Tribunal ought not to have interfered unless it was shown that the said order was passed without competence or with a malafide intention. He has relied on the decision in the case of Kunal Nanda Vs. Union of India and Another, to contend that Respondent No. 1 herein who has been repatriated to his parent department cannot claim any vested right to continue in the place of deputation. He has also placed reliance on the judgment in the case of Rajakeeya Nirman Nigama v. P.K. Bhatnagar 2007 (14) SCC 498, to emphasize that the deputationist cannot claim to continue in the place of deputation till his tenure completes.
Learned Senior Counsel Sri Subbarao appearing for Respondent No. 1 has strongly supported the order of the Tribunal.
We have heard the learned Counsel for the Petitioner and the contesting Respondent and also the learned Additional Government Advocate.
It is not in dispute that both the Petitioner and Respondent No. 1 are the employees of Public Works Department of the Government of Karnataka. The Petitioner was on deputation to Rural Development and Panchayatraj Department, but was not given any posting in the said department nor was he relieved of his post in the parent department. Respondent No. 1 was on deputation to Water Resources Department with effect from 01.12.2007 and was working at Bhadravathi under the Karnataka Neervari Nigam Limited. Earlier to that, he was on deputation to Urban Development Department. By the impugned notification, his services have been withdrawn to the parent department with a view to give him posting in the parent department. This is resorted to, in order to facilitate the deputation and posting of the writ Petitioner to the Water Resources Department for being posted to the post held by the applicant at Bhadravathi. Thus, this is not a case of transfer of an official within his own department. This is a case where the services of the applicant who was on deputation to Water Resources Department are withdrawn to the parent department and in his place the Petitioner herein is deputed though with a condition super added stating that the Petitioner services are deputed to Water Resources Department for the purpose of posting him in the place of the applicant at Bhadravathi under the Karnataka Neeravari Nigam Limited. Merely because such a condition is super added, it does not mean that the order dated 15.12.2009 partakes the characteristics of a transfer order and cannot be called as an order of deputation. Further, merely because the impugned order has the effect of withdrawing the deputation of one officer and sending another officer on deputation to his place, it cannot be called as a transfer order.
However, as rightly contended by the learned Senior Counsel Sri Subba Rac appearing for the contesting Respondent, the department which deputes its officer to another department cannot directly post that officer to any particular post in the foreign department, and that it is for the said department to whom the services are deputed, to give the employee posting to any particular post. To this extent, learned Senior Counsel is justified in inviting our attention to the order passed by the Division Bench of this Court in the case of H.K. Narayana v. Secretary To Government and Ors., in W.P. No. 33802/2004 disposed off on 15.9.2004. In the said case at paragraph No. 9, the Division Bench of this Court has observed that once the services of the Government employee are kept at the disposal of the Neeravari Nigam Limited the Nigam should have liberty to decide where his services should be utilised. However, in the facts of the instant case the Tribunal has misconstrued the tenor and purport of the impugned order while treating it as a transfer order in coming to the conclusion that the same was against the transfer guidelines issued by the State Government on 22.112001. The Tribunal has mainly proceeded on the basis that the impugned order before it was an order of transfer and as the said order was issued violating the guidelines contained in the Government Order dated 22.11.2001 without the approval of the cadre management authority, the same was unsustainable. This approach of the Tribunal has vitiated its conclusion. It is on the strength of this reasoning that the Tribunal has found that the applicant before it could not have been transferred without necessary orders from the cadre management authority and before the tenure of the official in the post was completed as per the transfer guidelines issued on 22.11.2001.
Though it is contended by the learned Senior Counsel Sri Subba Rao that the promotion by way of independent charge under Rule 32 of the Rules can only be to a vacant post and in the instant case as the applicant was regularly working as Assistant Executive Engineer at Bhadravathi, the transfer of the Petitioner herein to the post of the applicant was impermissible, this contention is not tenable as we have held that this is not a case of transfer of the Petitioner herein to the post held by the applicant. This is a case of deputation of the Petitioner from Public Works Department to Water Resources Department to be placed at the disposal of Kamataka Neervarai Nigam Limited. Though the order makes a reference that the deputation is made to replace the applicant working at Bhadravathi, it is to be construed that such a condition is added as the services of the applicant are sought to be withdrawn to the parent department. There cannot be any doubt that the parent department has the power to withdraw the services of its employee whose services are lent to another department. It cannot be also disputed that the employee whose services are lent to another department has no vested right to continue in the said department, unless such right can be traced to any statutory provision. In this regard, Counsel for the writ Petitioner is right and justified in inviting the attention of the Court to two decisions in the case of Kunal Nanda Vs. Union of India and Another, and Rajakeeya Nirman Nigama v. P.K. Bhatnagar 2007 (14) SCC 498.
We are therefore, of the considered view that the Tribunal committed a serious error in proceeding on the basis that the impugned order was an order of transfer and was therefore liable to be interfered with for contravening the guidelines issued vide Government Order dated 22.11.2001. However, in so far as the finding recorded by the Tribunal that the placing of officers borrowed on deputation, will be at the discretion of the Head of the Department/Competent Authority of the Department and the parent department has no authority to issue a direction to post him to any particular place while deputing the services of the official to another department, the same cannot be found fault with.
In the result and for the foregoing, this writ petition is allowed in part. The order passed by the Tribunal quashing the notification dated 15.12.2009 is set aside. The deputation of the services of the writ Petitioner to the Water Resources Department of the Government of Karnataka to be placed at the disposal of Karnataka Neeravari Nigam Limited is upheld. Similarly, the withdrawal of the services of the applicant Respondent No. 1 herein from Water Resources Department to his parent department - Public Works Department, is also upheld. However, the condition imposed in the order of deputation stating that the deputation is for the purpose of posting him at the place of the applicant Pullaiah in Bhadravathi is set aside, making it clear that it is for the competent authority in Karnataka Neeravari Nigam Limited to utilize the services of the Petitioner either at Bhadravathi or at any other place depending on the exigencies of service.