Sri. Devaraj Kumbar vs The State Of Karnataka
2024 Latest Caselaw 25686 Kant

Karnataka High Court

Sri. Devaraj Kumbar vs The State Of Karnataka on 29 October, 2024

Author: Krishna S Dixit

Bench: Krishna S Dixit

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                                                      NC: 2024:KHC:43541-DB
                                                      WP No. 28750 of 2024




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 29TH DAY OF OCTOBER, 2024
                                          PRESENT
                        THE HON'BLE MR JUSTICE KRISHNA S DIXIT
                                             AND
                            THE HON'BLE MR JUSTICE C M JOSHI
                        WRIT PETITION NO. 28750 OF 2024 (S-KSAT)
                   BETWEEN:

                   SRI. DEVARAJ KUMBAR,
                   DEPUTY CONTROLLER KSAAD,
                   AGED ABOUT 40 YEARS
                   (EARLIER WORKING AS FINANCIAL ADVISOR
                   UNDER KARNATAKA STATE POLICE HOUSING)
                   KARNTAKA STATE POLICE HOUSING AND
                   INFRASTRUCUTRE DEVELOPMENT CORPORATION LTD
                   NO. 59, RICHMOND ROAD,
                   BENGALURU - 560 025.
                                                             ...PETITIONER
                   (BY SRI. D R RAVISHANKAR., SENIOR COUNSEL A/W
                       SRI. CHANDRASHEKHAR WALISHETTAR.,ADVOCATE)
Digitally signed
by SHARADA         AND:
VANI B
Location: HIGH     1.   THE STATE OF KARNATAKA
COURT OF
KARNATAKA               REPRESENTED BY ITS PRINCIPAL SECRETARY
                        FINANCE DEPARTMENT,
                        VIDHANA SOUDHA,
                        BANGALORE 560 001.

                   2.   THE STATE OF KARNATAKA
                        REP BY ITS ADDITIONAL CHIEF SECRETARY
                        HOME DEPARTMENT, VIDHANA SOUDHA,
                        BANGALORE 560 001.

                   3.   KARNATAKA STATE POLICE HOUSING AND
                        INFRATRUCTURE DEVELOPMENT CORPORATION LTD.,
                        NO. 59, RICHMOND ROAD, BENGALURU 560 025.
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                                      NC: 2024:KHC:43541-DB
                                       WP No. 28750 of 2024



4.   SMT. B GAYATHRI,
     FINANCIAL ADVISOR
     (KARNATAKA STATE POLICE HOUSING)
     W/O DODDA SWAMY K,
     AGED ABOUT 42 YEARS,
     R.AT BALAJI HILL VIEW APARTMENT,
     FLAT NO. 002, 6TH A CROSS,
     ITTAMADU MAIN ROAD,
     BANASHANKARI 3RD STAGE,
     BENGALURU 560 085.
                                         ...RESPONDENTS
(BY SMT. SARITHA KULKARNI., HCGP FOR R1 & R2;
    SRI.C M NAGABHUSHANA.,ADVOCATE FOR C/R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE WRIT OR ORDER BY GRANTING FOLLOWING RELIEFS A)
CALL FOR RECORDS AND B) SET ASIDE THE IMPUGNED ORDER
DATED 23/09/2024 PASSED BY THE HONBLE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL IN A.NO.3143/2024 C/W
4091/2024 IN ANNEXURE-A AND ETC.,

     THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:       HON'BLE MR JUSTICE KRISHNA S DIXIT
             and
             HON'BLE MR JUSTICE C M JOSHI

                        ORAL ORDER

(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

Petitioner, a civil servant is knocking at the doors of

Writ Court for assailing the Karnataka State Administrative

Tribunal's order dated 23.09.2024 whereby, 4th

respondent's Application No.3143/2024 C/w Application

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No.4091/2024 having been allowed, relief has been

accorded to him. In Application No.3143/2024, the prayer

was inter alia for a Writ of Mandamus for implementing the

Government Order dated 29.05.2024 and thereby,

permitting the applicant to report for duty as Financial

Advisor. In Application No.4091/2024, she had prayed for

the quashment of Government Order dated 12.08.2024

and to continue her deputation in the respondent-Police

Housing Corporation.

2. FOUNDATIONAL FACTS OF THE CASE:

2.1. Petitioner was working on deputation in the respondent-Housing Corporation as Chief Accounts Officer/Financial Advisor on his own Pay Scale vide G.O dated 16.10.2021. However, the said order was kept in abeyance by another order dated 26.10.2021, eventually leading to modification of his posting only as Chief Accounts Officer w.e.f. 4.11.2021.

2.2. Petitioner filed Application No.4600/2023 inter alia challenging the order dated 17.10.2023 whereby, his repatriation was directed and the Tribunal vide judgment dated 15.12.2023 allowed the application quashing the said order and remitting the matter for fresh

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consideration. Till such consideration took place, he was 'required to be continued in the present place.' Aggrieved thereby, the 4th respondent filed W.P.No.28708/2023 which came to be dismissed by a Coordinate Bench on 20.03.2024.

2.3. In terms of Tribunal's judgment as confirmed by the Coordinate Bench's, government issued Notification dated 29.05.2024 deputing the 4th respondent as Financial Advisor to the respondent-Housing Corporation and posting the petitioner herein as Principal Director, Karnataka State Audit and Accounts Department. This was challenged by the 4th respondent herein in Application No.3143/2024 which came to be allowed by the Tribunal after hearing the parties, directing the government to implement order dated 29.05.2024 and thereby, permitting the said respondent 'to report for duty as Financial Advisor in the 3rd respondent-Corporation forthwith' by relieving the petitioner herein. A further direction was given to regularize waiting period of the said respondent. This is put in challenge in the petition at our hands.

3. Having heard the learned counsel for the parties

and having perused the Petition Papers, we decline

indulgence in the matter for the following reasons:

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3.1. The first submission of learned Sr. Advocate appearing for the petitioner that his client's deputation period could not have been unilaterally cut-short eventually repatriating him to the parent department when the respondent-Corporation itself had requested for continuation of service, is unsustainable, cannot be countenanced. Ordinarily, deputation is a tripartite arrangement: it involves lending department, borrowing department and the employee concerned, unless the rules otherwise provide. Admittedly, the deputation period having expired as pointed out in the order dated 29.05.2024 itself, none has a right to seek continuation nor to challenge determination of deputation by efflux of time. In the absence of legal right, no writ petition is maintainable, whatever be the arguable infirmity in the Tribunal's judgment.

3.2. The second submission of petitioner's counsel that the 4th respondent does not have requisite qualification in terms of draft C & R Rules, although his client has, no relief could have been granted to the said respondent, again is bit difficult to countenance. Firstly, the said Rules admittedly are still in draft stage; true it is that even such Rules can be acted upon in certain circumstances as observed by the Apex Court in JANTIA HILL TRUCK OWNERS ASSOCIATION vs. SHAILANG AREA COAL DEALER AND TRUCK OWNER

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ASSOCIATION1. However, it is only when there is a clear intention on the part of the Rule Maker to enforce them in the near future, as specifically stated in the said decision. That is not forthcoming from the draft Rules or contemporaneous Government Orders/Circulars. At para 6 of the decision it is observed as under:

"The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation..."

Despite passionate submission, learned Sr. Advocate

appearing for the petitioner is not in a position to

demonstrate the satisfaction of twin test spoken of in the

above decision.

3.3. The related submission that in earlier round of litigation i.e., in W.P.No.28708/2023 (S-KAT) already mentioned above, the enforceability of subject draft Rules has attained finality in favour of petitioner and that would operate as constructive res judicata or "cause of action

(2009) 8 SCC 492

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estoppel"/"issue estoppel", is difficult to agree with. If the case was fought on a cause of action which did not arise in public law, there was scope for entertaining the said contention. When public law elements galore, the concept of res judicata and estoppel will have restrictive contours compared to the one between two private parties, litigating remotely from the precincts from the public law. An argument to the contrary would undermine the public interest which animates inter alia actions in public administration or those warranted in the exigencies of public service. This aspect has not been discussed in the said writ petition to which parties herein were parties. Much is not necessary to discuss.

3.4. There is one more aspect of justice: it is not that the petitioner herein has been put to prejudice by the eclipse of deputation period. Apparently, his lien is in the parent department, whichever be the post. He is an alien to the borrowing department, which has no justiciable right to seek extension of deputation, once the prescribed period has expired, as per the tripartite arrangement. The Apex Court in UNION OF INDIA vs. R.THIYAGARAJAN2 has reiterated its earlier view:

"Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or

2020 SCC OnLine SC 349

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cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not..."

No Rule or Ruling to the contra is cited before us.

3.5. It is not that petitioner is not shown any place or posting. He has been given a glorious position of Director in the Karnataka State Audit and Accounts Department, consistent with his credentials. Service disputes relating to deputation often are like shadow boxing, which courts cannot spend much of their valuable time on. After all, in the light of L.CHANDRA KUMAR vs. UNION OF INDIA3, the power exercised by the Service Tribunals is akin to writ jurisdiction under Articles 226 & 227 of the Constitution of India. Therefore, arguable infraction of law per se sans legally cognizable prejudice, cannot invariably be ground for the grant of relief. If the challenged action has brought about a just result, that can be one of the factors in adjudging the cause as to whether

AIR 1997 SC 1125

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relief needs to be granted to the litigant in statutory jurisdictions that have the trappings of writ jurisdiction. In our considered opinion, no prejudice is occasioned to the petitioner by the impugned judgment of the Tribunal, as rightly contended by learned counsel Prof.C.M.Nagabhushana appearing for the 4th respondent.

In the above circumstances, this petition being

devoid of merits, is liable to be and accordingly dismissed,

costs having been made easy.

Sd/-

(KRISHNA S DIXIT) JUDGE

Sd/-

(C M JOSHI) JUDGE

Bsv/cbc