Karnataka State Road Transport ... vs State Of Karnataka
2023 Latest Caselaw 2204 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF APRIL 2023

                       PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

      THE HON'BLE MR.JUSTICE VIJAYKUMAR A. PATIL

            W.A. No.2369 OF 2019 (S-KSRTC)
                          C/W
            W.A. No.2370 OF 2019 (S-KSRTC)
            W.A. No.2371 OF 2019 (S-KSRTC)
            W.A. No.2372 OF 2019 (S-KSRTC)
            W.A. No.2373 OF 2019 (S-KSRTC)
            W.A. No.2374 OF 2019 (S-KSRTC)
            W.A. No.3881 OF 2019 (S-KSRTC)

IN W.A. No.2369 OF 2019

BETWEEN:

1.    KARNATAKA STATE ROAD TRANSPORT
      CORPORATION
      CENTRAL OFFICE, K H ROAD
      SHANTHINGAR, BANGALORE-560027
      BY ITS MANAGING DIRECTOR
      REPRESENTED BY
      ITS CHIEF LAW OFFICER.

2.    BANGALORE METROPOLITAN
      TRANSPORT CORPORATION
      CENTRAL OFFICE, SHANTHINAGAR
      BANGALORE -560027
      MANAGING DIRECTOR
                             2



       REP. BY ITS CHIEF LAW OFFICER.

3.     NORTH EAST KARNATAKA
       ROAD TRANSPORT CORPORATION
       CENTRAL OFFICE, STATION ROAD
       KALABURAGI
       BY ITS MANAGING DIRECTOR
       REPRESENTED BY ITS CHIEF LAW OFFICER.

4.     THE DEPOT MANAGER
       DEPOT NO.31, BMTC
       BANGALORE
       REPRESENTED BY ITS CHIEF LAW OFFICER.

                                        ... APPELLANTS

(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
   SMT. RENUKA H.R. ADV.,)

AND:

1. STATE OF KARNATAKA
   VIDHANA SOUDHA
   BENGALURU
   BY ITS CHIEF SECRETARY.

2.     RAVIKUMAR .G
       S/O GURUBASAPPA K.B.
       AGED ABOUT 50 YEARS
       PRESENTLY WORKING AT
       DEPOT MANAGER
       BMTC, BENGALURU
       NO.942, 3RD CROSS
       I.T.I. LAYOUT
       BENGALURU-560072.

                                    ... RESPONDENTS

(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1
    SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR
    SRI. L. SHEKAR, ADV.,)
                            3



                          ---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS APPEAL, SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 28/05/2019 IN W.P.NO.31145/2015.

IN W.A. No.2370 OF 2019

BETWEEN:

1. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, K H ROAD SHANTHINAGAR BANGALORE-560 027 BY ITS MANAGING DIRECTOR REPRESENTED BY ITS CHIEF LAW OFFICER.

2. BANGALORE METROPOLITAN TRANSPORT CORPORATION CENTRAL OFFICE, K H ROAD SHANTHINAGAR, BANGALORE-560 027 BY ITS MANAGING DIRECTOR REPRESENTED BY ITS CHIEF LAW OFFICER.

3. NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION CENTRAL OFFICE, STATION ROAD KALBURGI BY ITS MANAGING DIRECTOR REP. BY CHIEF LAW OFFICER-585105.

4. THE DEPOT MANAGER DEPOT NO 31, BMTC BANGALORE - 560 025 NOW REPRESENTED BY ITS CHIEF LAW OFFICER.

... APPELLANTS (BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR SMT. RENUKA H.R. ADV.,)

AND:

1. STATE OF KARNATAKA VIDHANA SOUDHA BENGALURU-560001 BY ITS CHIEF SECRETARY.

2. B.M. SATISH S/O MADAPPA AGED ABOUT 45 YEARS DIVISIONAL MECHANICAL ENGINEER KSRTC, KOLAR DIVISION NO.95, BISANAHALLI NADAVATTI (POST) VIA KADUGODI, BENGALURU - 560072.

... RESPONDENTS

(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1 SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR SRI. L. SHEKAR, ADV., FOR R2)

---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS APPEAL, SET-ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 28/05/2019 IN WP NO.58300/2015.

IN W.A. NO.2371 OF 2019

BETWEEN

1. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE KH ROAD, SHANTHINAGAR BANGALORE -560 027 BY ITS MANAGING DIRECTOR REP BY ITS CHIEF LAW OFFICER.

2. CHIEF PERSONNEL MANAGER (PERSONNEL) CENTRAL OFFICES, KH ROAD BANGALORE-560 027

REP. BY ITS CHIEF LAW OFFICER.

3. KARNATAKA STATE ROAD TRANSPORT CORPORATION PUTTUR DIVISION, PUTTUR MANGALORE DISTRICT-574 201 BY ITS CHIEF LAW OFFICER.

...APPELLANTS (BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR SMT. RENUKA H.R. ADV.,)

AND

1. ABDUL AZIZ S/O LATE K. MOOSA KUNHI AGED ABOUT 59 YEARS NO.1/20, MITHUR HOUSE, IDKIDU POST BANWAL TALUK DAKSHINA KANNADA DISTRICT-574 220.

......RESPONDENT (BY SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR SRI. L. SHEKAR, ADV.,)

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS APPEAL, SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 28/05/2019 IN W.P.NO.6694/2017.

IN W.A. NO.2372 OF 2019

BETWEEN

1. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, SHANTHINAGAR BANGALORE -560027 BY ITS CHAIRMAN REPRESENTED BY

CHIEF LAW OFFICER.

2. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, SHANTHINAGAR BANGALORE -560027 BY ITS MANAGING DIRECTOR REPRESENTED BY CHIEF LAW OFFICER.

3. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, SHANTHINAGAR BANGALORE -560027 BY ITS DIRECTOR (PERSONNEL AND ENVIRONMENT) REPRESENTED BY CHIEF LAW OFFICER.

4. BANGALORE METROPOLITAN TRANSPORT CORPORATION CENTRAL OFFICE, SHANTHINAGAR BANGALORE 560027 BY ITS MANAGING DIRECTOR REP. BY ITS CHIEF LAW OFFICER.

5. NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION CENTRAL OFFICE, KALABUGI BY ITS MANAGING DIRECTOR REPRESENTED BY ITS CHIEF LAW OFFICER.

...APPELLANTS (BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR SMT. RENUKA H.R. ADV.,)

AND:

1. H.C. BASAVARAJAPPA S/O LATE T. CHANDRASHEKARAPPA AGED ABOUT 57 YEARS WORKING AS DIVISIONAL CONTROLLER

EAST DIVISION BANGALORE METROPOLITAN TRANSPORT CORPORATION, SHANTINAGAR BENGALURU - 560027 RESIDENT OF NO. 82, 3RD MAIN 3RD CROSS, RAMAKRISHNANAGAR NANDINI LAYOUT 4TH BLOCK, BANGALORE 560096.

....RESPONDENT

(BY SRI. H.C. BASAVARAJAPPA, PARTY-IN-PERSON)

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS APPEAL, SET-ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 28/05/2019 IN WP NO.23621/2015.

IN W.A. NO.2373 OF 2019

BETWEEN:

1. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, K H ROAD SHANTHINGAR, BANGALORE-560 027 BY ITS MANAGING DIRECTOR REPRESENTED BY CHIEF LAW OFFICER.

2. BANGALORE METROPOLITAN TRANSPORT CORPORATION CENTRAL OFFICE, K H ROAD SHANTHINAGAR, BANGALORE-560 027 BY ITS MANAGING DIRECTOR REPRESENTED BY CHIEF LAW OFFICER.

3. NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION CENTRAL OFFICE, STATION ROAD KALABURAGI

BY ITS MANAGING DIRECTOR REPRESENTED BY CHIEF LAW OFFICER.

...APPELLANTS (BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR SMT. RENUKA H.R. ADV.,)

AND:

1. H.C. BASAVARAJAPPA S/O LATE T. CHANDRASHEKARAPPA AGED ABOUT 56 YEARS PRESENTLY WORKING AT DIVISIONAL CONTROLLER EAST DIVISION, BANGALORE METROPOLITAN TRANSPORT CORPORATION SHANTINAGAR, BANGALORE RESIDENT OF NO.82, 3RD MAIN 3RD CROSS, RAMAKRISHNAGAR NANDINI LAYOUT 4TH BLOCK, BANGALORE-560096.

....RESPONDENT

(BY SRI. H.C. BASAVARAJAPPA, PARTY-IN-PERSON)

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS APPEAL, SET-ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 28/05/2019 IN WP NO.2756/2016.

IN W.A. NO.2374 OF 2019

BETWEEN:

1. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, SHANTHINAGAR BANGALORE -560027 BY ITS MANAGING DIRECTOR REP. BY CHIEF LAW OFFICER.

2. NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION CENTRAL OFFICE, STATION ROAD KALABURAGI-585105 MANAGING DIRECTOR REP. BY ITS CHIEF LAW OFFICER.

...APPELLANTS (BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR SMT. RENUKA H.R. ADV.,)

AND:

1. RAVIKUMAR .G S/O GURUBASAPPA K.B.

AGED ABOUT 50 YEARS PRESENTLY WORKING AT DEPOT MANAGER, NO.942 3RD CROSS, I.T.I LAYOUT BENGALURU-560072.

2. K.M. THAMMIAH MAJOR IN AGE RETD DISTRICT AND SESSIONS JUDGE ENQUIRY OFFICER C/O KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, SHANTHINAGAR BANGALORE-560027.

...RESPONDENTS

(BY SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR SRI. L. SHEKAR, ADV., FOR R1 V/O DTD:09.10.2019 NOTICE TO R2 IS D/W)

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS APPEAL, SET-ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 28/05/2019 IN WP NO.54089/2016.

IN W.A. NO.3881 OF 2019

BETWEEN:

1. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT VIDHANA SOUDHA DR. B.R. AMBEDKAR VEEDHI BENGALURU-560001.

2. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT VIDHANA SOUDHA DR. B.R. AMBEDKAR VEEDHI BENGALURU-560001.

...APPELLANTS (BY SRI. B. RAJENDRA PRASAD, HCGP)

AND:

1. SRI. RAVIKUMAR .G S/O GURUBASAPPA K B AGED ABOUT 48 YEARS WORKING AS DEPOT MANAGER (ASSISTANT MECHANICAL ENGINEER) BANGALORE METROPOLITAN TRANSPORT CORPORATION R/O NO.942, 3RD CROSS ITI LAYOUT, BENGALURU-560072.

2. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL OFFICE SHANTHI NAGAR BENGALURU-560027.

3. THE MANAGING DIRECTOR BANGALORE METROPOLITAN TRANSPORT CORPORATION, SHANTI NAGAR

BENGALURU-560027.

4. THE MANAGING DIRECTOR NORTH EAST ROAD TRANSPORT CORPORATION, KALABURAGI-97.

5. THE DEPOT MANAGER DEPOT NO.31, BMTC BENGALURU-560002.

6. SRI. B.M. SATHISH S/O MADAPPA AGED ABOUT 43 YEARS DIVISIONAL MECHANICAL ENGINEER KSRTC, KOLARA DIVISION R/O NO.95, BISANAHALLI NADAVATTI POST, VIA KADUGODI BENGALURU-560072.

7. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL OFFICE SHANTHI NAGAR, BENGALURU-560027.

8. THE MANAGING DIRECTOR BANGALORE METROPOLITAN TRANSPORT CORPORATION, SHANTHI NAGAR BENGALURU-560027.

9. THE MANAGING DIRECTOR NORTH EAST ROAD TRANSPORT CORPORATION YADGIR DISTRICT-585201.

10. THE DEPOT MANAGER DEPOT NO.31, BMTC BENGALURU-560025.

....RESPONDENTS

(BY SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR SRI. L. SHEKAR, ADV., FOR R1 & R6

SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR SMT. RENUKA H.R. ADV., FOR R2-R5 & R7-R10)

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS WRIT APPEAL. SET ASIDE THE IMPUGNED ORDER DATED 28/05/2019 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN WRIT PETITION NO.31145/2015 AND WRIT PETITION NO.58300/2015 (S-KSRTC).

THESE WRIT APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.04.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

These intra court appeals emanate from a

common order dated 28.05.2019 passed by

Learned Single Judge in W.P.No.6694/2017 and

other connected writ petitions. The issue in these

appeals pertain to validity of Clause 3 of

Government Order dated 05.08.2000 issued under

Section 34 of The Road Transport Corporations

Act, 1950 (hereinafter referred to as 'the Act' for

short) and validity of orders of deputation issued

in respect of respondents. The appeals were

therefore, heard analogously and are being

decided by this common judgment.

2. The Road Transport Corporations Act, 1950 is an Act to provide for incorporation and Regulation of Road Transport Corporations. Section 3 of the Act provides for establishment of Road Transport Corporations in a State. Section 14 of the Act deals with officers and servants of the Corporation.

3. Section 34 of the Act deals with

directions by the State Government. The said

Section empowers the State Government to give to

the Corporation general instructions, which have

to be followed by the Corporation and such

instructions include directions relating to

recruitment, conditions of service and training of

its employees, wages to be paid to the employees

etc. Section 45 of the Act deals with power to

make Regulations. Section 45(2)(c) inter alia

provides that such Regulations may provide for

conditions for employment and service and the

scales of pay of the officers and other employees of

the Corporation other than the Managing Director,

the Chief Accounts Officer and Financial Advisor

or as the case may be Chief Accounts office cum

Financial Advisor.

4. In exercise of powers under Section 3 of

the Act, Karnataka State Road Transport

Corporation (KSRTC) was established as a single

transport corporation in the State of Karnataka.

Thereafter, by an order dated 07.08.1997, issued

in exercise of powers under Section 34 of the Act,

the State Government issued an order. The

relevant extract of the order reads as under:

3. Class III and IV employees working in Bangalore South and Bangalore North Divisions of KSRTC as on 14.08.1997 shall submit their options as to whether they would like to continue as employees of KSRTC or would like to remain in the BMTC proposed to be established within three months. Such of those employees who do not submit their options would be deemed to have opted to become employees of BMTC.

5. The State Government by an order dated

10.09.1997 established North West Karnataka

Road Transport Corporation with effect from

01.11.1997. The State Government thereafter,

issued an order dated 22.10.1997 in respect of

transfer of assets, operation of liabilities etc. The

relevant extract of the order dated 22.10.1997

reads as under:

Government order in exercise of powers conferred by S.34 of the Act ordered transfer of assets, operations, liabilities etc. to NWKRTC making following provisions for staff allocation and management.

1. Vice-Chairman and Managing Director of KSRTC is empowered to depute effective from 1.11.1997 initially for a period of one year all class-III and IV employees working presently at Belgaum, Dharwad, Gadag, Haveri, Bijapur, Bagalkote and Uttara Kannada Districts (except those working in Yelburga, Kushtagi, and Koppal) to the NWKRTC and to extend the deputation or end the deputation depending on needs. Employees will not be eligible for any deputation allowance on such deputation.

2. Vice-Chairman and Managing Director of KSRTC is empowered to

depute all classes of officers, employees, and staff to NWKRTC.

3. Such of those class-III and IV employees of KSRTC who will be deputed to the newly established Corporation shall submit to the General Manager, KSRTC in the prescribed from within six months from such deputation option as to whether they would like to continue as employees of KSRTC or would like to remain in the NWKRTC proposed to be established. Such of those employees who do not submit their options would be deemed to have opted to become employees of NWKRTC.

[Other clauses of the order dealing with transfer of assets, operations, liabilities are omitted as not relevant for the present purpose].

6. The State Government thereafter, by an

order 04.08.2000 established North East

Karnataka Road Transport Corporation (NEKRTC)

with effect from 15.08.2000 and issued an order

on 05.08.2000 in exercise of powers under Section

34 of the Act in respect of transfer of assets,

operations, liabilities to North East Karnataka

Road Transport Corporation (NEKRTC). Clause (3)

of the order provides that Class III ad Class IV

employees working in Bidar, Gulbarga, Raichur,

Koppal, Bellary and Yadgir Districts shall continue

to be on deputation in the newly established

Corporations. Clause (3) further provides that

option shall be obtained from those employees

within six months as to whether they would like to

work in KSRTC or continue in new Corporation

and decision shall be taken. Clause(3) further

provides that present Class I and Class II officers

an d Class III Supervisory staff shall be deputed by

KSRTC only. However, the Karnataka State Road

Transport Corporation was retained.

7. For the facility of reference, facts from

W.A.No.2369/2019 are being referred to. The

petitioner (hereinafter referred to as 'the employee'

for short) was an employee of KSRTC by an order

dated 05.07.2014, he was transferred as Depot

manager, KGF Depot, Kolar division. The employee

in para 4 of the writ petition has averred that he

was working deputation to KGF depot. The

employee thereafter, by an order dated 22.09.2014

was transferred to BMTC, Bangalore. Thereafter,

again by an order of deputation dated 23.07.2015,

the employee was sent on deputation as depot

manager, Vijayapura Depot in NERTC. The

employee thereupon filed a writ petition in which

the employee challenged the validity of the

Government order dated 05.08.2000 and sought

quashment of order of deputation dated

23.07.2015.

8. The Learned Single Judge by an order

dated 28.05.2019 inter alia held that the moment

the employee of one corporation is transferred on

deputation to another corporation such an

employee becomes an employee of the corporation

to where he is deputed and therefore, an employee

of KSRTC cannot be transferred without his

consent to BMTC, NWKRTC or NEKRTC. It was

further held that Clause 3 of order dated

05.08.2000 is in excess of Section 34 of the Act.

The Learned Single Judge quashed a part of

Clause 3 of the Government Order dated

05.08.2000, which enabled KSRTC to depute the

officers to the Corporation and also quash the

order of deputation dated 23.07.2015. In the

aforesaid factual background, these appeals have

been filed.

9. Learned Senior Counsel for the appellant

submitted that Learned Single Judge ought to

have appreciated that challenge to Clause 3 of the

order dated 05.08.2000 issued under Section 34 of

the Act is barred by res judicata as a similarly

worded clause in the order dated 07.08.1997

issued under Section 34 of the Act was challenged

and the validity of paragraph 3 of the order was

upheld by a division bench of this court vide

judgment dated 28.08.2013 passed in

W.A.No.18459/2007 and the said order was

upheld in Special Leave Petition by Hon'ble

Supreme Court. Therefore, on the principles of res

judicata / finality of litigation as well as principles

analogous to res judicata, the judgment passed by

division bench on an earlier occasion was binding

on the Learned Single Judge. It is also contended

that Learned Single Judge ought to have

appreciated that the employees after creation of

the Corporations, were sent on deemed

deputations and their accorded promotions, which

they had accepted without any demur and

therefore, had acquiesced with the situation. In

any case, the employees have taken the benefit of

a part of the order dated 05.08.2000 and could not

have challenged the other part of the order.

10. It is contended that Learned Single

Judge grossly erred in treating the order dated

23.07.2015 to be an order of transfer, whereas,

the same was treated by the employee itself to be

an order of deputation. It is contended that

decisions of Hon'ble Supreme Court in

'JAWAHARLAL UNIVERSITY VS.

DR.K.S.JAVATKAR', (1989) SUPP 1 SCC 679

and 'STATE OF MYSORE VS. H.PAPANNA

GOWDA', (1970) 3 SCC 545 have no application

to the facts of these case, as the same pertain to

permanent transfer. It is also urged that the

decision of Hon'ble Supreme Court in 'PRASAR

BHARTHI AND ORS. VS. AMARJEET SINGH AND

OTHERS', (2007) 9 SCC 539 applies to the facts

of the case. It ought to have been appreciated that

even on deputation, the status of the employees

did not change and they continued to be the

employees of KSRTC and their appointing

authority continued to be MD KSRTC. In support

of aforesaid submissions, reference has been made

to decisions in 'MYSORE STATE ROAD

TRANSPORT CORPORATION VS. GOPINATH

GUNDACHAR', AIR 1968 SC 464', KAVIRAJ VS.

STATE OF JAMMU AND KASHMIR', (2013) 3 SCC

526, AND K.L. PLANTATION VS. STATE OF

KARNATAKA', (2011) 9 SCC 1.

11. Learned Senior counsel for the

employees in W.A.2369/2019, W.A.No.2370/2019,

W.A.No.2371/2019 and W.A.No.2374/2019

submits that the validity of the orders issued

under Section 24 of the Act dated 07.08.1997 and

22.10.1997 was not the subject matter in previous

round of litigation and therefore, the question of

subsequent writ petition filed by the employees,

being barred by res judicata does not arise. It is

also pointed out that employees were not parties

in the earlier round of litigation. It is contended

that Section 34 of the Act cannot be read in

isolation but has to be read with Section 3 to 6 of

the Act. It is submitted that clause 3 of the order

dated 05.08.2000 issued under Section 34 of the

Act is in contravention of Section 3 of the Act and

an employee can be deputed to another

Corporation only with his consent. In this

connection, learned Senior counsel for the

employees has invited the attention to Regulation

3(g) of Karnataka State Road Transport

Corporation (Cadre and Recruitment) Regulations,

1982. It is also urged that there can be no

acquiescence / estoppel against a statute and

issue regarding inherent lack of jurisdiction can be

questioned any time. In support of aforesaid

submissions, reliance has been placed on

decisions in SUKALU RAM GOND VS. STATE OF

M.P.', (1994) 5 SCC 570, 'STATE OF PUNJAB VS.

INDER SINGH', (1997) 8 SCC 372, 'BCPP

MAZDOOR SANGH VS. NTPC', 92007) 14 SCC

234 AND DIPAK BABARIA VS. STATE OF

GUJARAT', (2014) 3 SCC 502.

12. Party in person in W.A.No.2372/2019

and W.A.No.2373/2019 submitted that he has

retired on 31.01.2023 and the order of deputation

undermines the concept of formation of new

corporations. It is further submitted that the order

of deputation is in violation of Article 14, 16 and

23 of the constitution of India. However, it is fairly

admitted by party in person that by an order dated

12.05.2012, he was promoted as Divisional

Manager in NWKRTC and he has not challenged

the order dated 05.08.2000 issued under Section

34 of the Act. While adopting the submissions

made by learned Senior counsel for the

respondents in other connected writ appeals, it is

contended that order of deputation cannot be

issued unilaterally.

13. By way of rejoinder, learned Senior

counsel for the appellants submitted that even if

other corporations have been formed, the

employees continue to be employees of KSRTC and

the managing director of KSRTC has been

authorized to depute the employees to other

corporations subject to administrative exigency. It

is urged that consent can be implied by conduct. It

is pointed out that in pursuance of interim orders

dated 11.02.2020 passed in W.A.No.2373/2019

and W.A.No.2374/2019, an enquiry has been

conducted against the employee and a penalty has

been imposed on him. Learned Senior Counsel for

the appellant further submitted that the Learned

Single Judge grossly erred in treating the case to

be a case of transfer on deputation. It is further

submitted that the concept 'transfer' and

'deputation' are different and distinct concepts in

law and cannot be mixed up. In support of

aforesaid submissions, reliance has been placed

on the decision of Hon'ble Supreme Court in 'THE

MANAGER M/S PYARCHAND KESARIMAL

PORWAL BIDI FACTORY VS. ONKAR LAXMAN

THENGE AND OTHERS', AIR 1970 SC 823.

14. Learned Government Advocate in

W.A.No.3881/2019 has adopted the submissions

made on behalf of Learned Senior Counsel for

KSRTC and has submitted that the State

Government has power to issue directions under

Section 34 of the Act. In support of aforesaid

submission, reference has been made to decision

of Hon'ble Supreme Court in 'MYSORE STATE

ROAD TRANSPORT CORPORATION VS.

GOPINATH GUNDACHAR CHAR', AIR 1968 SC

464.

15. We have considered the submissions

made on both sides and have perused the record.

The issues, which arise for consideration in this

batch of appeals are as under:

(i) Whether challenge to clause 3 of Government order dated 05.08.2000 issued under Section 34 of the Act is barred on the principles of res judicata or on principles analogous thereto?

(ii) Whether the order dated 23.07.2015 is an order of deputation or an order of transfer?

(iii) Whether clause 3 of the Government order dated 05.08.2000

issued under Section 34 of the Act is valid?

(iv) Whether the employees who had accepted their deputation and promotion in other Corporations earlier, can be permitted now to assail the order of deputation?

(v) Alternatively, whether deemed consent for deputation can be inferred from the conduct of the employees?

16. Now we shall proceed to deal with the

issues ad seriatim. Clause 3 of the Government

order dated 05.08.2000 reads as under:

"3. Such of those Classes-III and IV employees presently working in Bidar, Gulbarga, Raichur, Koppal, Bellary and Yadgir Divisions shall be continued on deputation in the newly established Corporation. Options shall be obtained

from those employees within six months as to whether they would like to work in KSRTC or continue in the new corporation and decision shall be taken. If any such employee does not submit option it will be deemed that he/she has opted to be employees of NEKRTC.

For the present Class-I and Class-II Officers and Class-III Supervisory staff shall be deputed by KSRTC only. The Vice-Chairman and Managing Director of KSRTC is empowered to depute any category of employee to NEKRTC or to withdraw such deputation."

17. The bifurcation of KSRTC and orders of

State Government dated 07.08.1987, 10.09.1997

and 01.11.2000 establishing 3 independent

Corporations in addition to KSRTC were

challenged in a writ petition namely

W.P.No.22194/1997. The aforesaid writ petition

along with other connected petitions were allowed

by the learned Single Judge by common judgment

dated 02.07.2007 and the Government order was

quashed. The KSRTC challenged the common

judgment dated 02.07.2007 passed by the learned

Single Judge in writ appeals namely

W.A.No.1459/2007 and other connected writ

appeals. Paragraph 18 of the aforesaid judgment

reads as under:

"18. The learned Counsel for the parties put forth their respective contentions before the learned Single Judge. On the aforesaid pleadings and the rival contentions urged, the learned Single Judge framed the following five points for consideration:

    POINTS         FOR       CONSIDERATION





    BEFORE THE LEARNED SINGLE
    JUDGE

1. Whether the petitioners have got locus standi to challenge the impugned orders and notifications and are they 'aggrieved persons' to file the writ petition?

2. Whether the impugned orders and notifications bifurcating KSRTC and establishing 3 separate Corporations is traceable to Section 3 of the Act?

3. Whether Sec.17-A of the Act is applicable to the fact situation?

4. Whether judicial review power can be exercised by this Court in this petition at this juncture?

5. What order?"

18. Similarly, paragraph 29 of the aforesaid

judgment reads as under:

"29. In the light of the aforesaid contention, the

points that arise for consideration in these batch of appeals are as under: POINTS FOR CONSIDERATION (1) Whether the State Government has the power to establish three Road Transport Corporations after establishment of the Karnataka State Road Transport Corporation under Section 3 of the Act?

(2) In the absence of specific provisions in the Act providing for bifurcation of Karnataka State Road Transport Corporation, whether the State Government could have established the three Road Transport Corporations as parts of the State?"

19. Thus, it is evident that issue with regard

to validity of Clause 3 of Government order dated

05.08.2000 as well as order of deputation dated

23.07.2015 was not the subject matter of either

the earlier writ petitions or the writ appeals. The

employees were not parties in the writ petitions.

Therefore, neither on the principles analogous to

res judicata nor on the principles of res judicata,

the writ petitions filed by the employees cannot be

said to be barred.

20. Now we may advert to the second issue

namely whether the order dated 23.07.2015 is an

order of deputation on an order of transfer. The

distinction between transfer and deputation is well

settled. The Hon'ble Supreme Court in 'PRASAR

BHARTHI AND ORS. Supra has held as under:

13. There exists a distinction between "transfer" and "deputation". "Deputation" connotes service outside the

cadre or outside the parent department in which an employee is serving. "Transfer", however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications.

The principles laid down in aforesaid decision

were referred to with approval in 'UNION OF INDIA

VS. R.THIYAGARAJAN', (2020) 5 SCC 201.

21. The employee himself in paragraph 8 of

the writ petition has described the order dated

23.07.2015 as an order of deputation. Relevant

extract of paragraph 8 reads as under:

"8. The matter stood thus, while the petitioner is working in depot No.31 in terms of the roder of repatriation dated 22.09.2014 and 26.09.2014 as per Annexures-E and F, very surprisingly,

one more order of deputation was issued by the 2nd respondent Managing Director dated 23.07.2015, therein the petitioner is now sent on deputation as Depot Manager, Vijayapura Depot-1 which is locating within the territorial jurisdiction of North-East Road Transport Corporation and the petition is now sent on deputation from B.M.T.C., Bangalore."

22. Similarly, the KSRTC in paragraph 1 of

the statement of objection has described the order

dated 23.07.2015 to be an order of deputation.

The relevant extract reads as under:

"The petitioner has also sought for a consequential relief for quashing of the roder of deputation dated 23.07.2015, whereunder the petitioner who was working in BMTC has been placed on deputation to Vijayapura Depot as

Deputy Manager within the jurisdiction of NEKSRTC."

23. Thus, in view of aforesaid stand taken by

KSRTC as well as the employee, it is axiomatic

that order dated 23.07.2015 is an order of

deputation and the same cannot be treated as

transfer by deputation. Accordingly, issue No.2 is

answered by stating that order dated 23.07.2015

is an order of deputation.

24. We shall now deal with the issue with

regard to validity of clause 3 of Government Order

dated 05.08.2000. Section 3 of the Act deals with

establishment or Road Transport Corporations in

the States. Section 4 of the Act provides that every

Corporation shall be a body corporate having

perpetual succession and common seal. Section 5

of the Act deals with Management of the

Corporation and Board of Directors. Section 14 of

the Act deals with officers and servants of the

Corporation. Section 14 is extracted below for the

facility of reference:

14. Officers and servants of the Corporation.--(1) Every Corporation shall have a Managing Director, a Chief Accounts Officer and a Financial Adviser, appointed by the State Government: Provided that the same person may be appointed as the Chief Accounts Officer and the Financial Adviser.

(2) A Corporation may appoint a Secretary and such other officers and employees as it considers necessary for the efficient performance of its functions.

(3) The conditions of appointment and service and the

scales of pay of the officers and employees of a Corporation shall--

(a) as respects the Managing Director, the Chief Accounts Officer and the Financial Adviser, or, as the case may be, the Chief Accounts Officer-cum-Financial Adviser, be such, as may be prescribed, and

(b) as respects the other officers and employees, be such, as may, subject to the provisions of section 34, be determined by regulations made under this Act.] Thus, from perusal of Section 14(3)(b) it is

evident that conditions of appointment, services

and scales of pay of the officers and employees of a

Corporation shall be subject to provisions of

Section 34 of the Act.

25. Section 34 of the Act deals with

directions by the Government and reads as under:

34. Directions by the State Government.--(1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. (2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub-section (1) except with the previous permission of the State Government.

Thus, the State Government has power to

issue directions relating to recruitment, conditions

of service and training of its employees, wages to

be paid to the employees etc. Section 45 of the Act

confers the power on the Corporation to make

Regulations, which are not inconsistent with the

Act. The relevant extract of Section 45 reads as

under:

               45.     Power       to      make
         regulations.--(1)      A    Corporation

may with the previous sanction of the State Government and by notification in the Official Gazette], make regulations, not inconsistent with this Act and the rules made thereunder for the administration of the affairs of the Corporation.

(2) In particular and without prejudice to the generality of the

foregoing power, such regulations may provide for all or any of the following matters, namely:--

(a) the manner in which, and the purposes for which, persons may be associated with the Board under section 10;

(b) the time and place of meetings of a the 3 [Board] and the procedure to be followed in regard to transaction of business at such meetings;

(c) the conditions of appointment and service and the scales of pay of officers and 4 [other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Accounts Officer- cum-Financial Adviser.

26. In the instant cases, the employees have

been sent on deputation and not on transfer.

Therefore, there is no change of employer. The

conditions of appointment and service and the

scales of pay of officers and employees of a

Corporation is subject to Section 34 of the Act and

shall be determined by Regulations made under

the Act. Section 34 of the Act permits the State

Government to issue directions relating to

recruitment, conditions of service. The State

Government in exercise of powers under Section

34 of the Act has issued an order dated

05.08.2000. The employees continue to be the

employees of KSRTC as they have been sent to

other Corporations on deputation. A conjoint

reading of Sections 14(3)(b), Section 34 and

Section 45(2)(c) is that appointment of officers and

servants and their conditions of service must

conform to directions, if any, issued by the State

Government under Section 34 of the Act and the

Regulations, if any, framed under Section 45(2)(c)

of the Act. [See: 'MYSORE STATE ROAD

TRANSPORT CORPORATION VS. GOPINATH

GUNDACHAR CHA', AIR 1969 SC 464. Therefore,

Clause 3 of the order dated 05.08.2000 does not

suffer from any infirmity and does not violate any

of the provisions of the Act. Accordingly, the third

issue is answered in the affirmative and it is held

that clause 3 of the Government order dated

05.08.2000 is valid.

27. Before dealing with the 4th issue, it is

apposite to take note of the principles laid down in

UNION OF INDIA AND OTHERS Vs.

N.MURUGESAN ETC. (2022) 2 SCC 25 with

regard to doctrine of approbate and reprobate.

Paragraph 26 and relevant extract of paragraph 27

read as under:

"26. These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same.

Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally. State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144:

"22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide

CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216]).

23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329] .) In R.N. Gosain v. Yashpal Dhir [R.N.

Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under: (SCC pp. 687-88, para 10) "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be

entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage'."

25. The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd. [Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.

Rajasthan State Industrial Development•26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had." & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470:

"I. Approbate and reprobate

15. A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of,

or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869], Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260] .]

16. Thus, it is evident that the doctrine of election is based on the rule of estoppel-- the principle that one cannot approbate

and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."

28. In the instant case, the employees have

been transferred on deputation to previous

occasions and have been promoted in different

Corporations. The details are extracted below in

tabular form for the facility of reference:

W.A No. Ravi Kumar 05.07.2014 2369/2019 POSTED AS DEPOT MANAGER IN KGF,KSRTC

01.09.2014 POSTED TO TUMKUR DIVISION

22.09.2014 TRANSFERRED TO BMTC

23.07.2015 DEPUTED AS DEPOT MANAGER, VIJAYAPURA, NEKRTC W.A No. Satish 08.09.1997 2370/2019 APPOINTED AS ASST MECHANICAL ENGINEER IN KSRTC

FEBRUARY 1998

TRANSFERRED TO GANGAVATHI,KSRTC

NOVEMBER 1999:

POSTED AS DEPOT MANAGER IN DEPOT 7,BMTC

31.12.2002 DEPOT MANAGER AT CHINTAMANI

PROMOTED AS DIVISIONAL MECHANICAL ENGINEER AT BMTC

02.07.2015 DEPUTED TO YADHGIR DISTRICT` AS DIVISIONAL MECHANICAL ENGINEER NEKRTC W.A 2371 /2019 Abdul Aziz 09.04.1987 APPOINTED AS JUNIOR ASSISSTANT, KSRTC, MANGALORE

SUBSEQUENTLY PROMOTED AS ASSISTANT AND ESTABLISHMENT SUPERVISOR

01.09.2016 TRANSFERRED TO PUTTUR DEPOT,KSRTC

20.01.2017 DEPUTED TO KALBURGI,NEKRTC W.A 2372/2019 Basavarajappa 22.06.1998 H.C APPOINTED AS ASST. MECHANICAL ENGINEER

1992-1993 DIVISIONAL CONTROLLER AT SIRSI, LIMITS OF NWKRTC

14.02.2013 POSTED TO CENTRAL OFFICE,KSRTC

28.02.2015 TRANSFERRED TO BANGALORE AS DIVISIONAL CONTROLLER OF EAST BANGALORE, BMTC

12.05.2105 AND 29.05.2015

DEPUTED AS DEPUTY CHIEF MECHNANICAL ENGINEER, NEKRTC W.A 2374/2019 G. Ravikumar 22.09.2014 TRANSFERRED TO B.M.T.C BANGALORE(referred as repartiation)

23.07.2015 DEPUTED TO VIJAYNAGARA, NEKRTC

29. Thus, the employees have taken the

benefit of the orders of promotion passed in

pursuance of Clause 3 of the Government order

dated 05.08.2000. The employees were also sent

on deputation to other Corporations. However, so

long as the posting of the employees was to their

liking, they did not challenge either Clause 3 of

the Government order dated 05.08.2000 or orders

of their deputation. Therefore, on the principles of

approbate and reprobate, the employees cannot be

permitted now to assail their orders of deputation.

Accordingly, the 4th issue is answered in the

negative and it is held that the employees who had

accepted their deputation and promotion in other

Corporations earlier cannot be permitted now to

assail the order of deputation.

30. Now, we advert to the 5th issue. Hon'ble

Supreme Court in KAVIRAJ Vs. STATE OF

JAMMU AND KASHMIR AND OTHERS (2013) 3

SCC 526 has held that willingness of posting

beyond the cadre or parent department need not

be expressly sought and it can be implied. It has

further been held that consent of posting beyond

the cadre or parent department is inferable from

the conduct of the employee. From the

aforementioned conduct of the employees in

accepting their previous orders of deputation and

orders of promotion, the deemed consent for

deputation can be inferred from their conduct.

The 5th issue is therefore, answered in the

affirmative.

31. The Government order dated 05.08.2000

has been issued in exercise of powers under

Section 34 of the Act, which enables the

Government to issue directions with regard to

recruitment, conditions of service, wages etc. to be

paid to the employees, reserves to be maintained

by it and disposal of its profits or stocks. In

exercise of powers under Section 34 of the Act, the

State Government can issue a direction with

regard to recruitment and conditions of service of

the employees and the Corporation has to obey the

directions. The finding recorded by the Learned

Single Judge that government order dated

05.08.2000 is in excess of powers conferred under

Section 34 of the Act and the Managing Director of

KSRTC cannot be given power to appoint or

transfer on deputation any employee of KSRTC to

any other Corporation cannot be sustained.

Similarly, the finding recorded by the Learned

Single Judge that instance case is a case of

transfer by deputation also cannot be sustained as

transfer and deputations have distinct and

different connotation in law.

32. Even otherwise, in PRASAR BHARTHI

supra the Hon'ble Supreme Court has dealt with

the concept of deemed deputation. From the

conduct of the employees, in accepting the earlier

orders of deputation and promotion in different

Corporations, even otherwise deemed consent can

be inferred. The deputation of the employees to

another Corporation does not amount to change of

employer. Para 3 of the government order dated

05.08.2000 does not violate the guarantee

enshrined in Articles 14 and 16 of the

Constitution of India.

33. We may also take note of subsequent

events during pendency of these appeals. In

W.A.No.2369/2019, the employee viz., Ravi Kumar

was deputed by an order dated 23.07.2015 from

BMTC to Vijaypura in NEKRTC and reported for

duty on 09.09.2016 after a lapse of one year and

two months. For his unauthorized absence, a

departmental enquiry was initiated which is

pending. In W.A.No.2370/2019, the employee viz.,

Sri.B.M.Sathish was deputed by an order dated

02.07.2015 from KSRTC Kolar zone to Yadgir in

NEKRTC. He reported for duty after a period of

four years, for which a disciplinary proceeding was

initiated which is pending. In W.A.No.2371/2019,

employee viz., Sri.Abdul Azeez attained the age of

superannuation in August 2022. He was sent on

deputation by an order dated 20.01.2017 from

KSRTC to Kalburgi NEKRTC. However, he reported

for duty after two and half years, for which a

disciplinary proceeding was initiated and by an

order dated 17.08.2020, the period of absence was

treated as not on duty and he was denied the

wages and gratuity for the period of absence. In

W.A.No.2372/2019, the employee viz.,

Sri.Basavarajappa has superannuated on

31.01.2023. By an order dated 29.05.2015, he was

deputed from BMTC to NEKRTC. However, he

reported for duty after one year and two months

on 10.09.2016. A penalty of stoppage of one

increment with cumulative effect treating the

period of absence as not on duty has been

imposed by an order dated 28.01.2023.

34. In view of preceding analysis, the

common order dated 28.05.2019 passed in

W.P.No.6694/2017 and other connected writ

petitions is set aside.

In the result, the appeals are allowed and

Writ Petitions filed by the employees are

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

SS