Kerala High Court
State Of Kerala vs K.N.Hazeena, W/O M.K.Kareem Sahib on 23 May, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
O.P. (KAT) No. 136 of 2024 :1:
2025:KER:35537
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947
OP(KAT) NO. 136 OF 2024
ORDER DATED 25.01.2023 IN OA NO.444 OF 2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 AND 2 IN O.A:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA, PIN - 695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.
BY ADV. SRI. B. UNNIKRISHNA KAIMAL, SR. GOVERNMENT PLEADER
RESPONDENTS/APPLICANTS AND 3RD RESPONDENT IN OA:
1 K.N.HAZEENA, AGED 58 YEARS,
W/O M.K.KAREEM SAHIB, RETRIED AS SECRETARY CUM TREASURE,
KERALA STATE TEACHING AND NON-TEACHING STAFF WELFARE
CORPORATION, IN THE CADRE OF SENIOR ADMINISTRATIVE
ASSISTANT, RESIDING AT PALLITHEKKETHIL HOUSE, MULAKKUZHA
P.O, CHENGANNOOR, ALAPPUZHA DISTRICT, PIN: 689 505.
2 VILASINI KETHARAMANGALATH,
AGED 58 YEARS, W/O KRISHNA DAS, RETIRED AS SENIOR
ADMINISTRATIVE ASSISTANT (NOON MEAL), OFFICE OF THE DIRECTOR
OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM, PIN: 695
014, RESIDING AT CHIRI, ANATHAZHATH, MADAVANA, PANANGAD P.O,
ERNAKULAM, KERALA, PIN - 682 506.
3 THE SECRETARY CUM TREASURER,
KERALA STATE TEACHING & NON-TEACHING STAFF WELFARE
CORPORATION, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD
ON 23.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P. (KAT) No. 136 of 2024 :2:
2025:KER:35537
'CR'
A.MUHAMED MUSTAQUE & JOHNSON JOHN, JJ.
---------------------------------------------------------
O.P. (KAT) No. 136 of 2024
---------------------------------------------------------
Dated this the 23rd day of May, 2025
JUDGMENT
Johnson John, J.
As per the impugned order, the Kerala Administrative Tribunal
directed the State Government to ensure that arrears of pay revision
along with interest due to the applicants for the period when they were
on foreign deputation are sanctioned and disbursed to them within a
period of one month.
2. The State Government and the parent Department are
challenging the above order on the ground that employees on foreign
deputation are entitled to draw their arrears of salary only from the
borrowing organization.
3. It is not in dispute that while respondents 1 and 2 herein were
working in the General Education Department, they opted for deputation
to the 3rd respondent Corporation and the dispute is regarding the
arrears of pay during the period of deputation.
2025:KER:35537
4. The learned Government Pleader argued that when an
employee is on deputation, it is the duty of the foreign employer to
release the pay to the employee and the same cannot be claimed from
the parent Department.
5. The learned counsel for respondents 1 and 2 would point out
that as per clause 9 in Annexure A1 Circular No.46/2016/Fin. dated
19.05.2016, it is the duty of the Drawing and Disbursing Officer of the
parent Department to draw and disburse the arrears. But, the learned
Government Pleader would point out that clause 9 in Annexure A1 is
subject to clause 3 which reads thus:
"The foreign employer should remit the total amount of arrear in
lump for the period from 01.07.2014 to 31.01.2016 or upto the period
they have worked on deputation along with interest at the rate of 8.7%
per annum for the period from 01.02.2016 to the date of remittance,
before 31.03.2017. The details of remittance to Government account
along with the copy of Pay-in-slip should be forwarded to the Drawing
and Disbursing Officer concerned in the parent department."
6. Admittedly, the foreign employer has not remitted any amount
to the Government as required in clause 3 of Annexure A1 and in that
2025:KER:35537
circumstance, it cannot be held that the Drawing and Disbursing Officer
of the parent Department is liable to draw and disburse the arrears of
salary as per clause 9 in Annexure A1.
7. In State of Punjab v. Inder Singh [(1997) 8 SCC 372],
the Honourable Supreme Court, after considering the concept of
deputation and the particular rights and liabilities associated with
deputation, which occurs only with the consent of the employee, held as
follows:
"18. The concept of "deputation" is well understood in service
law and has a recognised 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
the 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 and he
would, therefore, know his rights and privileges in the deputation
post. The law on deputation and repatriation is quite settled as we
have also seen in various judgments which we have referred to above.
..."
2025:KER:35537
8. In Umapati Choudhary v. State of Bihar [(1999) 4 SCC
659], the Honourable Supreme Court considered the tripartite nature
of a deputation and held as under:
"8. Deputation can be aptly described as an assignment of an
employee (commonly referred to as the deputationist) of one
department or 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. In
the case at hand all the three conditions were fulfilled. ..."
9. It cannot be disputed that arrears and other benefits of an
employee on deputation are generally determined by the borrowing
organization's rules and regulations and not the parent Department. Rule
144 in Chapter XI of Part I of Kerala Service Rules clearly shows that an
officer in foreign service will draw pay from the foreign employer from
the date on which he relinquishes charge of his post in Government
service. Therefore, we find that when an employee is on deputation, it is
the duty of the foreign employer to draw and disburse the arrears of
2025:KER:35537
salary during the period of deputation and the same cannot be fastened
on the Government.
10. In the result, the impugned order of the Tribunal is set aside
to the extent it directed the State Government to draw and disburse the
arrears of salary due to the applicants during the period of deputation
and instead, we direct the 3rd respondent Corporation (borrowing
organization) to ensure that arrears of pay revision and interest due to
respondents 1 and 2 herein are sanctioned and disbursed to them within
a period of one month from the date of receipt of a copy of this order.
This Original Petition is allowed as above.
sd/-
A.MUHAMED MUSTAQUE,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
2025:KER:35537
APPENDIX OF OP(KAT) 136/2024
PETITIONERS' ANNEXURES:
ANNEXURE A1 PHOTOCOPY OF THE CIRCULAR NO.46/2016/FIN. DATED
19.05.2016 ISSUED BY THE FINANCE DEPARTMENT.
ANNEXURE A2 PHOTO COPY OF THE REPRESENTATION DATED 16.12.2017
SUBMITTED BY THE 1ST APPLICANT BEFORE THE 2ND
RESPONDENT.
ANNEXURE A3 PHOTOCOPY OF THE REPRESENTATION DATED 27.03.2018
SUBMITTED BY THE 1ST APPLICANT BEFORE THE 2ND
RESPONDENT.
ANNEXURE A4 PHOTOCOPY OF THE REPRESENTATION DATED 27.03.2018
SUBMITTED BY THE 1ST APPLICANT BEFORE THE 1ST
RESPONDENT.
ANNEXURE A5 PHOTOCOPY OF THE REPRESENTATION DATED 23.11.2016
SUBMITTED BY THE 2ND APPLICANT BEFORE THE 2ND
RESPONDENT.
ANNEXURE A6 PHOTOCOPY OF THE REPRESENTATION DATED 01.01.2018
SUBMITTED BY THE 2ND APPLICANT BEFORE THE 1ST
RESPONDENT.
ANNEXURE A7 PHOTOCOPY OF THE LETTER NO.K3/62213/2017/DPI DATED
30.10.2017 OF THE 2ND RESPONDENT TO THE 3RD
RESPONDENT.
ANNEXURE A8 PHOTOCOPY OF THE LETTER NO.K6/16701/2018/DPI DATED
30.05.2018 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE R2(a) TRUE COPY OF THE LETTER NO.HC.10039/19 DATED
01.04.2019.
EXHIBIT P1 PHOTO COPY OF THE O.A NO.444/2019.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND
PETITIONER ON 24.05.2019.
EXHIBIT P3 PHOTO COPY OF THE IMPUGNED ORDER BY THE TRIBUNAL IN
OA.444/2019 ON 25.01.2023.
RESPONDENTS' ANNEXURES: NIL
/True Copy/
P.S to Judge.
rv
