Telangana High Court

Smt.Bharathi Johanna vs The Government Of Telangana on 8 January, 2025

Author: G.Radha Rani

Bench: G.Radha Rani

          THE HONOURABLE SRI JUSTICE SUJOY PAUL
                        AND
       THE HONOURABLE DR. JUSTICE G. RADHA RANI

                  WRIT PETITION (TR) No.2915 of 2017
                                 and
                  CONTEMP CASE (TR) No.244 of 2017


COMMON ORDER (Oral): (Per Hon'ble Justice Sujoy Paul)

The petitioner initially filed petition in O.A.No.6124 of 2014

before the Andhra Pradesh Administrative Tribunal at Hyderabad

(Tribunal) and upon abolishment of the said Tribunal, the matter

is transferred to this Court and re-registered as W.P.(TR)No.2915

of 2017. In the said O.A., the Tribunal granted interim protection

to the petitioner by its order dated 27.10.2014, which was

subsequently extended till 21.11.2014 and 02.12.2014 and finally,

on 01.12.2014, the said interim protection was extended until

further orders. As the said order was disobeyed by the

respondents, the petitioner initiated contempt proceedings before

the Tribunal and the same is transferred to this Court and re-

registered as C.C.(TR).No.244 of 2017 on the abolishment of the

Tribunal.

Contentions of the petitioner:

2. Sri K. Kiran Kumar, learned counsel representing Sri N.

Ashwani Kumar, learned counsel for the petitioner submits that

the petitioner's parent department is the Regional Director of

Medical and Health Services, Kadapa, i.e., respondent No.9. The

petitioner was sent to work on deputation in the Director of MNJ

Institute of Oncology and Regional Cancer Centre, Red Hills,

Hyderabad, i.e., respondent No.8. The age of the superannuation

of the employees working in the petitioner's category in Telangana

State was 58 years, whereas it was 60 years in the State of Andhra

Pradesh. Since the respondents did not permit the petitioner to

continue on deputation, she filed O.A.No.6124 of 2014 before the

Tribunal with following relief:

"to declare the action of the respondents in not taking steps to continue the services of the applicant as Head Nurse in MNJ Institute of Oncology and Regional Cancer Centre Hyderabad on the strength of Govt.Memo No.10411/Incl/SR/A1/2014, dated 15.05.2014 issued by the 4th respondent till she attains the age of superannuation of 60 years in light of the orders issued by the Government of AP vide G.O.Ms.No.147 Finance HRMIV Department dated 30.06.2014 and Letter in Rc.No.1337/2014 dated 09.09.2014 of the 9th respondent as being arbitrary illegal unjust discriminative and violative of Articles 14, 16 and 21 of the Constitution of India besides being opposed to the principles of equity and fair play and consequently hold that the applicant is entitled to be continued as Head Nurse at MNJ Institute of Oncology and Regional Cancer Centre Hyderabad on the strength of Govt. Memo No.1044Incl/SR/A1/2014 dated 15.05.2014 issued by the 4th respondent by extending the benefit of encashment of the age of superannuation from 58 to that of 60 years as per G.O.Ms.No.147 Finance HRMIV Department dated 30.06.2014 issued by the Government of Andhra Pradesh and on the strength of Letter in Rc.No.1337/B/1/2014, dated 09.09.2014 of the 9th respondent with all consequential benefits and pass such other orders."

(Emphasis Supplied)

3. Learned counsel for the petitioner fairly submits that the

petitioner stood retired and received all her retirement benefits in

view of order passed in separate legal proceedings. In the instant

case, the relief is only about salary for the period between

27.10.2014 to 31.10.2016. To elaborate, it is submitted that

against the action of respondents in not continuing the petitioner,

the O.A. was filed before the Tribunal. The Tribunal on

27.10.2014 directed the respondents to continue the petitioner in

respondent No.8 institution. In furtherance thereof, the petitioner

continued for some time and respondent No.8 paid her salary upto

January, 2015. Thereafter, she was not allowed to continue and

no salary was paid to her. Thus, learned counsel for the petitioner

fairly submits that the petitioner is only claiming salary from

January, 2015 to 31.10.2016 in the present proceedings.

4. It is submitted by the learned counsel for the petitioner that

the said interim order passed by the Tribunal was continued on

01.12.2014 till further orders, despite the fact that the State filed

application for vacating the said interim order on 14.11.2014. It

is further submitted that respondent No.8 institution is in Tenth

Schedule of the Andhra Pradesh Reorganisation Act, 2014

(Reorganisation Act). Being institution under Tenth Schedule, all

the 'facilities' available before the appointed date i.e., 02.06.2014

should have been continued in favour of the petitioner. 'Facilities'

includes the 'facility' to serve department till attaining the age of

60 years.

5. Non-payment of salary was criticized by placing reliance on

the order passed by the Supreme Court in Transmission

Corporation of Andhra Pradesh Ltd and ors. v. P.B.Karunakar

and ors. 1. It is submitted that if employees were continued to

remain in the services of the department, they were bound to work

and it was duty of the employer to assign the work and extract

work from them. Respondent No.8 could not have deprived the

petitioner from the fruits of salary. In order to support the

contention based on Section 75 of the Reorginisation Act, the

judgment of the Supreme Court in the case of Andhra Pradesh

State Council of Higher Education v. Union of India 2 was

referred. Learned counsel for the petitioner submits that although

said judgment relates to the assets, the analogy can be drawn

from the said judgment for the purpose of interpreting Section 75

(1) of the Reorginasation Act.

Special Leave to Appeal (C) Nos.35299-35302/2015, dated 08.04.2016.

Civil Appeal Nos.3019-3020 of 2016, dated 18.03.2016.

6. In nutshell, learned counsel for the petitioner submits that

pursuant to the interim order which is subsisting till date, the

petitioner should have been continued in respondent No.8

institution and she is entitled to get salary from February, 2015 to

31.10.2016.

Contentions of the respondents:

7. Ms. M. Shalini, learned Government Pleader for Services-II

appearing for respondent Nos.1 and 3, Sri Santhapur

Satyanarayana Rao, learned Government Pleader for Services-I

appearing for respondent Nos.5 and 8 and Sri B. Rajeshwar

Reddy, learned Government Pleader for the State of Andhra

Pradesh for respondent Nos.2, 4, 6, 7, and 9 commonly submitted

that the parent department of the petitioner was the Regional

Director of Medical and Health Services, Kadapa, Andhra Pradesh

i.e., respondent No.9. The petitioner came to Hyderabad as

'deputationist' to work in the Director of MNJ Institute of Oncology

and Regional Cancer Centre, Red Hills, Hyderabad, i.e.,

respondent No.8. The deputationist has no enforceable right to

remain on deputation as per her choice. Respondent No.8 while

considering the fact that the age of superannuation in the State of

Andhra Pradesh is 60 years, whereas in the State of

Telangana/Hyderabad is 58 years communicated to the parent

department of the petitioner for repatriation. After certain internal

communications, a specific order of repatriation was duly

communicated to the petitioner, which is filed by the petitioner

herself along with the rejoinder. Heavy reliance is placed on the

Rc.No.1337/B1/2014, dated 22.11.2014, whereby the petitioner

was repatriated and thereby, directed to report before respondent

No.9. The said order was duly endorsed to the petitioner. Thus, it

is urged that this course of repatriation is permissible under

Section 79 of the Reorganisation Act. Learned counsel for the

respondents also relied on certain judgments to submit that the

petitioner is not entitled for any relief.

8. No other point is pressed.

9. We have heard the parties at length and perused the record.

Findings:-

10. Admittedly, the parent department of the petitioner is

respondent No.9 and order was passed directing the petitioner to

work on deputation in respondent No.8. It is trite that

deputationist has no indefeasible right to continue on deputation.

The borrowing department or lending department has right to

repatriate the deputationist at any time. The Supreme Court in

Kunal Nanda v. Union of India 3, held as under:

"6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation."

11. Thus, it is clear that petitioner has no vested, statutory or

constitutional right to remain posted on deputation in respondent

No.8 institution.

12. To wriggle out of this aspect, learned counsel for the

petitioner placed heavy reliance on Section 75 of the

Reorganisation Act, which reads thus:

"75. Continuance of facilities in certain State institutions.--

(1) The Government of the State of Andhra Pradesh or the State of Telangana, as the case may be, shall, in respect of the institutions specified in the Tenth Schedule to this Act, located in that State, continue to provide facilities to the people of the other State which shall not, in any respect, be less favourable to such people than what were being provided to them before the appointed day, for such period and upon such terms and conditions as may be agreed upon between the two State Governments within a period of one year from the appointed day or, if no agreement is reached within the

(2000) 5 SCC 362

said period, as may be fixed by order of the Central Government.

(2) The Central Government may, at any time within one year from the appointed day, by notification in the Official Gazette, specify in the Tenth Schedule referred to in sub-section (1) any other institution existing on the appointed day in the States of Andhra Pradesh and Telangana and, on the issue of such notification, such Schedule shall be deemed to be amended by the inclusion of the said institution therein."

(Emphasis Supplied)

13. Pertinently, Section 75 forms part of the Part-VII of

Reorganisation Act, which talks about 'Provisions as to certain

Corporations'. Respondent No.8 by no stretch of imagination can

be said to be a corporation. Thus, Part-VII is not applicable for the

purpose of superannuation of the petitioner. So far, Section 75

aforesaid is concerned, a minute reading of this provision makes it

clear that it talks about the 'Continuance of facilities in certain

State institutions' and provides that the facilities are to be

continued 'for the people'. The provision does not deal with

service conditions of the employees of the state institution at all.

On the contrary, it talks about other general facilities available to

the people.

14. Part-VIII of the Reorganisation Act deals with 'Provisions as

to services'. Section 79 of the said Act reads thus:

"79. Provisions as to continuance of officers in same post.--

Every person who, immediately before the appointed day, is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Andhra Pradesh in any area which on that day falls within one of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or other appropriate authority in, that successor State:

Provided that nothing in this section shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to such person any order affecting the continuance in such post or office."

(Emphasis Supplied)

15. The proviso of Section 79 leaves no room for any doubt that

the Competent Authority is equipped with the power to pass a

specific order relating to an employee for his/her continuance in

the post/office. In view of this enabling provision, the repatriation

order dated 22.11.2014 was issued and the petitioner was

repatriated. Apart from this, the prayer clause of the O.A.No.6124

of 2014 shows that the respondents had already discontinued the

petitioner. The petitioner could not make out any legal ground to

continue in employment with respondent No.8.

16. Thus, we do not find any illegality or unconstitutionality in

the process adopted by the respondents. The petitioner had no