Dr. A. Rangaswamy vs The State of Karnataka and others. Writ Petition 44995/2016 decided on 10 October 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340658/1/WP44995-16-10-09-2020.pdf
Relevant Paragraphs: 6….The learned counsel for the petitioner would place reliance on the ruling of the Hon’ble Apex Court rendered in the case of Union of India through Govt. of Pondicherry and Another Vs. V. Ramakrishnan and Others stated supra and the learned counsel for the petitioner places reliance on the observation of the Hon’ble Apex Court in paragraph 32 and 35 to buttress his contention. “32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates malice. (See Bahadursinh lakhubhai Gohil v. Jagdishbai M. Kamalia SCC para 25.)” and would submit that no reasons have been assigned while repatriating the petitioner to his parent department.
7. From a reading of paragraph 32 it is apparent that recording of reasons is mandated by the Hon’ble Apex Court where the deputation is for fixed tenure. In the event of deputation without a fixed tenure, the order of repatriation or reversion can be questioned only when the order of reversion is malafide or is vitiated by legal malice. From a reading of the facts obtaining in the citation and the judgment cited supra, it is apparent that the Hon’ble Apex Court was primarily dealing with a case of legal malice, wherein the subsequent incumbent was promoted by the respondent-State in contravention of the rules. A reading of the paragraphs 27 to 31 clearly demonstrates that the issue, that was considered by the Hon’ble Apex Court, was the malafide action of the Govt. in placing reliance on draft rules and further tinkering with Rules relating to promotion and the criteria prescribed under the existing rules.
In paragraph 31 the Hon’ble Apex Court has observed as under:- “31. In terms of Article 16 of the Constitution, the employees similarly situated cannot be discriminated. Employees having the same qualification, thus, must be considered by a duly constituted DPC consisting of the Chairman/Member, UPSC, Chief Secretary and Secretary (Works). It is unfortunate that the Government of Pondicherry instead and in place of asking UPSC to constitute a DPC for consideration of the cases of all eligible candidates, passed the order (vide letter dated 28-9-2005) on the same day on which the new rules came into effect, requesting UPSC to regularise the services of R. Sundar Raju as Chief Engineer from the date of his ad hoc promotion. Such an act betrays a lack of bona fides on the part of a State which is required to be performed in a fair and reasonable manner. It smacks of favouritism. Having regard to the unauthorised purpose for which the action has been taken, the same would attract the principle of malice in law.”
9. Nextly, the learned counsel for the petitioner has placed reliance on the ruling of the Co-ordinate Bench of this court rendered in the case of D. Shivalingaih Vs. The State of Karnataka and Others, in W.P. No.58744/2015 the Co-ordinate Bench after placing reliance on the case on the ruling of the Hon’ble Apex Court in V. Ramakrishnan case was pleased to allow the petition and quash the order of reversion. The case of the petitioner and the case of D. Shivalingaih stated supra are distinguishable. In the case of D. Shivalingah the petitioner’s tenure was for a fixed period of three years ……Hence, the Co-ordinate Bench placing reliance on the observation of the Hon’ble Apex Court in paragraph 32 concluded that there could not have been curtailment of the period of deputation without assigning any reasons. In the instant case, both the order of deputation …and notification fixing the terms and conditions …clearly stipulates that the deputation is until further orders from the Govt. In view of the above, the petition being devoid of merits, stands dismissed.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 