Partly allowed

Smt M Mangala Gowri v. State of Karnataka

Karnataka HC13 Mar 2024WP/18876/2022

Case brief

AI extract

What is this about?

A writ petition challenging a university endorsement refusing to give effect to a State deputation order appointing the petitioner as Deputy Registrar. The court held the deputation was issued without required consultation with the autonomous institutions, quashed the endorsement, but also barred giving effect to the unconsulted notification.

What did the court decide?

Impugned endorsement (Annexure-J) quashed in part; State directed not to give effect to the unconsulted notification dated 5.9.2022 and to consult both institutions and record reasons before any fresh

Smt M Mangala Gowri Vs State of Karnataka — Service and Employment | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF MARCH, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.18876 OF 2022 (S-RES)

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BETWEEN:

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SMT M MANGALA GOWRI AADHAR NO.66577574, W/O T M SRINIVAS, AGED ABOUT 54 YEARS, R/AT NO.1376, 24^TH MAIN ROAD, BSK II STAGE, NEAR CAFE COFFEE DAY, BANGALORE-560070

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...PETITIONER

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(BY SRI.ROHAN HOSMATH, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA DEPARTMENT OF HEALTH AND FAMILY WELFARE (MEDICAL EDUCATION) 6^TH FLOOR, M S BUILDINGS, BANGALORE-560001 REPRESENTED BY ITS UNDER SECRETARY

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2 . RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES REPRESENTED BY THE REGISTRAR, 4^TH T BLOCK, JAYANAGAR, BANGALORE-41

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3 . KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY M H MARIGOWDA ROAD, BANGALORE-560029 REP BY ITS DIRECTOR

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…RESPONDENTS

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(BY SRI.V.SHIVA REDDY, AGA FOR R1; SRI.ASHOK.N.NAYAK, ADVOCATE FOR R2; SRI.PIYUSH KUMAR JAIN.D, ADVOCATE FOR R3)

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED ENDORSEMENT ISSUED BY THE R2 DATED 12.09.2022 BEARING NO.RJU/EST/22/2022.23 PRODUCED HEREWITH AS ANENXURE-J.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 11.03.2024, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned writ petition is filed assailing the endorsement issued by respondent No.2-University as per Annexure-J wherein respondent No.2-University has declined to give effect to the deputation order passed by respondent No.1-State.

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The facts leading to the case are as under:

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The petitioner is a holder in Master of Science (M.Sc) and Master in Philosophy (M.Phil.) in

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Cytogenetics from Bengaluru Umniversity. Petitioner was appointed as an Assistant Research Scientist in respondent No.3-Institute of Oncology on 18.3.19893 and later was appointed as Assistant Professor of Cytogenetic studies by way of direct recruitment.

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Petitioner on account of continuance use of microscope developed a ‘retinal scar’ in her right eye and was diagnosed with ‘retinopathy’ in 2016 and therefore, at petitioner’s request, respondent No.1 deputed the services of the petitioner to respondent No.2-University where she was appointed to the post of Deputy Registrar for a period of three years or until further orders. On completion of deputation period respondent No.2-University repatriated petitioner to her parent department i.e. respondent No.3.

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4. Petitioner reported to the parent

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department and again submitted a representation on 4.9.2019 and also challenged the order of repatriation dated 31.08.2019 in W.P.No.43049/2019. This Court was not inclined to interfere with the order of repatriation. However, a direction was issued to respondent No.3-University to consider the petitioner’s representation sympathetically.

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Respondent No.1-State pursuant to the order passed by this Court in W.P.No.43049/2019, vide Notification dated 5.9.2022 exercising the power under Section 18 of Rajiv Gandhi University of Health Sciences Act, 1994 ( for short ‘RGUHS Act’) deputed the petitioner to fill up the vacancy of Deputy Registrar of respondent No.3-University for a further period of three years or until further orders.

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Respondent No.2-University has declined to

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give effect to the deputation order on the ground that petitioner is not eligible to hold the post of Deputy Registrar. Feeling aggrieved by this endorsement, petitioner has knocked the doors of this Court.

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The learned counsel for respondent No.2University has contested the petition by filing the statement of objections. Respondent No.2-University has resisted the relief sought on the ground that petitioner could not have been deputed as she had completed her deputation for a period of three years. Reliance is placed on Regulation 16(ii) of the Rajiv Gandhi University of Health Sciences Non-Teaching and Ministerial Posts (Cadre and Recruitment) Statutes, 2021 ( “for short RGUHS Statutes, 2021”).

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Heard the learned counsel for the

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petitioner. Learned AGA perused the records.

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9. It would be useful to cull out Regulation 16

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of RGUHS Statutes, 2021, which reads as under:

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“16. Appointment by deputation.- (1) Subject to the provisions of section 18 of the Act, notwithstanding anything to the contrary contained in these Statutes, in exceptional circumstances and for reasons to be recorded in writing, any post in the University may, after consulting the Board of Appointment, be filled by appointment on deputation of a person in the employment of,-

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(i) The State Government;

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(ii) Government autonomous medical colleges; and

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(iii) Government institutions affiliated to the university:

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Provided that, persons in employment of private medical colleges affiliated to the University shall not be taken on deputation to any posts.

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(2) Deputation shall be for a period not exceeding three years. The deputation shall be on such terms and conditions specified in the order of deputation issued with the approval of the Syndicate. Persons appointed on deputation shall carry their own pay and grade.”

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The petitioner is an employee of

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respondent No.3-Institute. On health grounds, she was deputed to respondent No.2-University and she

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has completed her deputation period and respondent

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No.2 has repatriated petitioner to her parent

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department.

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This case involves the action of respondent No.1-State in deputing an employee of respondent No.3-Institute, who has previously completed deputation without consulting the autonomous University. The refusal of Borrowing authority i.e. respondent No.2-University and an endorsement issued as per Annexure-J is assailed by the petitioner.

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In essence, the concept of deputation entails that individuals deputed from their parent cadre or department to another entity, whether it be within the same governmental structure, a different department, or even an external organization, do not inherently acquire legal entitlement to the position to which they are deputed. This principle has been reiterated and solidified through various judgments of

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the apex court, particularly exemplified in the

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following cases as under:

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(i) In Ashok Kumar Ratilal Patel v. Union of India, (2012) 7 SCC 757 : (2012) 2 SCC (L&S) 502 : 2012 SCC OnLine SC 525: 13. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, one organisation to another, or one Government to another; in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such case, deputation does not result into recruitment, as no recruitment in its true import and significance takes place as the person continues to be a member of the parent service.

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(ii) In Umapati Choudhary V. State of Bihar and another, 1999(4) SCC 659 and State of Punjab and others V. Inder Singh and others, (1997) 8 SCC 372:

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“The law regarding deputation is well settled and the necessity of deputation which arises is always in public interest to meet the exigencies of public service. The deputationists do not have any inherent right to be absorbed in the borrowing department. It depends on the consent of

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theparent department as well as the department in which absorption is sought.”

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(iii) In Ratilal B. Soni & Ors. v. State of Gujarat & Ors., AIR 1990 SC 112:

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“It is clear from the above quoted provision that a Panchayat servant who is not reallocated within a period of four years from. April 1, 1963 would be deemed to be finally allocated to the Panchayat Service. The High Court has held that the appellants have not been able to show that they made any such options before March 31, 1967. Even if it is assumed that the appellants gave some sort of option the same having not been accepted before March 31, 1967, the appellants stood finally allocated to the Panchayat Service. The appellants being on deputation they could be revert- ed to their parent cadre at any time and they do not get any right to be absorbed on the deputation-post. We see no infirmity in the judgment of the High Court and as such we dismiss the appeal. There shall be no order as o costs.”

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(emphasis supplied)

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The rationale behind this legal stance is

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grounded in the notion that deputation serves the broader public interest by facilitating the fulfillment of

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exigencies within public service. It is, therefore, a mechanism deployed for administrative efficiency and operational necessity rather than as a means for individuals to secure permanent positions in their deputed roles. This is further emphasized by the fact that the decision to absorb a deputationist into the borrowing department rests upon the consent of both the parent department and the department to which absorption is sought.

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Moreover, deputation is underpinned by the understanding that deputation does not constitute a form of recruitment in the traditional sense. Unlike recruitment, which implies a permanent placement within a particular service or cadre, deputation involves a temporary assignment wherein the individual remains a member of their parent service. This distinction is crucial as it delineates the temporary nature of the deputation arrangement and

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underscores the absence of any vested right or entitlement to the deputed position.

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The individuals deputed from their parent

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cadre or department do not inherently possess legal entitlements to the deputed position. Instead, deputation serves as a temporary measure necessitated by public interest and operational exigencies, with the decision regarding absorption into the borrowing department contingent upon the consent of both the parent and borrowing entities. This understanding is further reinforced by the transient nature of deputation arrangements and the absence of any vested rights or entitlements therein.

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After careful consideration of the

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arguments presented by both the parties and on a thorough view of the regulations which is culled out supra and the established procedures governing

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deputation, this Court is of the view that the impugned deputation order lacks consultation. Failure to consult with the two autonomous bodies i.e. respondents 2 and 3 before deputing petitioner violates established procedures and protocols. Deputing an employee who has previously completed a deputation without proper justification is amenable for judicial review. This Court also recognizes right of respondent No.2-University which is a borrowing authority to refuse to accept the deputation order. However, respondent No.2- University as a borrowing authority is required to provide clear and substantiated reasons for refusing to accept the deputation order. Respondent No.2-University is expected to act in accordance with the established procedures and guidelines governing inter-institutional agreements and deputation process.

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Therefore, in the light of the foregoing, this

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Court proceeds to pass the following:

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ORDER

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(i) The writ petition is allowed in part.

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(ii) The impugned endorsement issued by

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respondent no.2 as per Annexure-J is hereby quashed. However, respondent No.1-State shall not give effect to the notification dated

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5.9.2022 as per Annexure-F as the same is issued without consultation.

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(iii) This order will not come in the way of Respondent No.1 in consulting two

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autonomous institutions before entertaining the representation submitted by the petitioner.

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(iv) Respondent No.1-State shall provide valid reasons and justifications for re-deputing an employee who has previously completed

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deputation and shall also adhere to the regulations before ordering re-deputation.

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(v) Respondent No.2 being a borrowing authority shall provide clear and substantiated reasons for refusing to accept the deputation in the event a fresh deputation order is passed after consultation with respondents 2 and 3.

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(vi) Respondent No.1-State and both the institutions shall comply with the regulations.

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Sd/JUDGE

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*alb/-

Smt M Mangala Gowri v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt M Mangala Gowri v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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