Dismissed

Smt.Bharathi Johanna v. Sri B.Venkateswar Rao IAS

Telangana HC8 Jan 2025CC(TR)/244/2017

Case brief

AI extract

What is this about?

This court dismissed a writ petition and contempt case filed by a retired nurse seeking salary for the period between October 2014 and October 2016. The court held that deputationists have no vested right to remain in posting and that the specific Act did not mandate continuation of service facilities for employees.

What did the court decide?

Dismissal of Writ Petition No. 2915 of 2017 and Contempt Case No. 244 of 2017.

Smt.Bharathi Johanna Vs Sri B.Venkateswar Rao IAS — Service and Employment | Telangana HC (2025)

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[³⁴³⁰ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAJ, THE EIGHTH DAY OF JANUARY TWO THb USAND AND TWENTY FIVE

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PRESENT

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THE HONOU LE SRI JUSTICE SUJOY PAUL AND THE HONOURAB LE DR. JUSTICE G.RADHA RANI

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I WRIT PETI TION^(TR) NO: 2915 oF 2017 AND CONTEM I CASE^(TR )N O: 244 OF 2017

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Between:

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SI\NT.BHARATHI JOHAI NA, W/o.Anka Rao. Aged about 57 years, Workinq as Head Nurse, [Vl.N.J. lnstitute of Oncology and Regional Cancer Centrel Red Hills, Hyderabad.

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...PETITIONER

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AND

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The Government of Tela gana, Rep. by its Principal Secreta ryto

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Government, General Ad ministration Department, Secretaria Hyderabad

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The Government of And hlra Pradesh Rep. by its Principal Secretary to Government, General Administration Depa rtment, Secretariat, Hyderabad

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The Government of TelaIgana. Rep. by its Chief Secreta ry to Government, General Administration Department, Secretariat, H yderabad.

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The Government of And ra Pradesh Rep. by its Chief Secretary to

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Government, General Adlm'l inistration Department, Secretariat, Hyderabad

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1. The Government of TelaAq ana, Rep. by its Principal Secreta ryto Government, Health IVledic al and Family Welfare Departmen t Secretariat, Hyderabad

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The Government of And ra Pradesh. Rep. by its Principal Secreta ryto Government, Health Medical and Family Welfare Department, Secretariat, Hyderabad

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7 The Director of Public H alth and Family Welfare, A.P.Hyderabad

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8 The Director of It/lNJ lnst ute of Oncology & Regional Cancer, Centre, Red Hills, Hyderabad.

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I The Regional Director of edical and Health Services, Kadapa.

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...RESPONDENTS

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Petition und r Article 2 6 of the Constitution of lndia praying that in the circu mstances statbd in the ffidavit filed therewith, the High Court may be

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pleased to declare the^{action of} I^{the respondents in.nottaking steps tc continuethe} services of the^apclicantas I^{Head Nurse in MNJ lnstitute of ()ncology and} iegionat Cancer^{bentre, Hycierabad on the strength of Govt Memo'No10411 -} in.ilSRlRt tzot^{4, Dt. 15-05-i014issued by the 4th respondenttill she, attains the} ug; of .rp"trnnuaticn^{of 60 yearsin light of the orders issued by the Government} oiA^p. rio"^{G.O.tr4s.Nto.147,Finance(HRIr/-tV) Department,dated:10-06-2014and} ietter in Rc.No.t337l81^{t2O14,), dated 09-09-2014 of the 9th respcndentas being} ;;;i;rrt, iltegal,^{unjus;t,discriniinativeand violativeof Articles'1 4, 1ti and 21 of the} Constituiion 6t^{tnaiibesides being opposedto the principlesof eqLrily and fatrplay} and conseqrently^{hol,j that thelapplicantis entitled to be continued as Head Nurse} ut trlttrt.l. lnstitute^{ol'Cncologf and Regional Cancer Centre,Hydr:rabadon the} iirengl"r of Govt.t,4ermo.No.1-0411-tncl/SR/A'1l20'14,^{Dt- 15-05-201'4issued by the} 4th iespondent by^{extendin! the benefit of enhancement o" the ageof} superannuation^{fronr 58 to that of 60 yearsas perG-O.Ms.NO.147F:inance (HR[V1-} Vj Oepartment,^{Dt- 30-06-2014 issued by the Governmentof Andl'rraPradesh and} on the strength^{of L,:tter in Rc.No.1337tB 112014, dated09-09-12014of the gth} respondent ;ith all 'lonsequeniial^benefits

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l.A. NO: l OF 2017^{(WVMP (TR). NO:572 0F 2017)}

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Between:

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'l . The Governnrent of Telahgana, Rep. by its Principal Secretanr to , Government, cieneral Administration^{Department,secretarlatr-1y0eraDao.}

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The Governnlent ot^{Andhra Pradesh.Rep- by its Principal Seorelaryto} Government, Cieneral^{Administration Department,Secretariat'lyderabad'}

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The Governnrent^{ofTelanrgana. Rep. by its Chief Secretary to Ciovernment,} General Admiristration^{Department, Secretariat, Hyderabad'}

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The Governntent of^{Andhra Pradesh, Rep. by its Chief Secretary to} Government, General^{Ad,ministrationDeiartment,Secretariat, llyderabad'}

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The Governnr(:nt^{of TelaAgana, Rep.by its Principal Secretaryto} Government, l-lealth Medical^{and Family Welfare Department,Secretarlat,} Hyderabad.

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The Governnrernt^{of And} ra Pradesh. Rep. by its Principal^{Sesretary to.} Government. llealth^Med ical and Famity Weifare Department,^Secretariat, Hyderabad. l

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The Director of^{PublicHealthand FamilyWelfare, A.P.Hyderabad}

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The Director of^{MNJ lnstitute of Oncology& Regional Cancer (lentre,Red} Hills, Hyderab;rd.

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The Regional lirector^{of tvledical and HealthServices, Kadap:r'}

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...APPLICANTS/RESPONDENTS

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AND

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SMT.BHARATHI JOHAI\ NA, W/o.Anka Rao, Aqed about 57 Vears. Workino aS Head NUrSe, M.N.J. lnstitute of Oncology and Regional eancer Centrel Red Hills, Hyderabad.

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...RESPONDENT/APPLICANT

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Petition under Section^'1 1 CPC praying that in the circumstances stated in the affidavit filed in support df the petition, the High Court may be pleased to vacate the interim orders dated: 27 -1 O-2O1 4 in OA.No.61 241201 4

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Counsel for the Petitioner: SII K. KIRAN KUMAR REP., FOR SRI. N ASHWANI KUMAR

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Counsel for the Respondent os.1 & 3: Ms. M. SHALINI GP FOR SERVICES II

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Counsel for the Respondent J os.5&8: SRI SANTHAPUR SATYANARAYANA RAO GP FOR SERVICES I

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Counsel for the Respondent Nos.2,4,6,7&9: SRI B. RAJESHWAR REDDY Gp FOR THE STATE OF AP

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Between:

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SIVT.BHARATHI JOHA NNA, W/o.Anka Rao, aged about 58 years. Working as Head Nurse, II/-N.J. lnstitute of Oncology and Regional Cancer Centre-, Red Hills, Hyderabad.

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...PETITIONER

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AND

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Sri B.Venkateswar Rao I S, Principal Secretary to Government, General Administration Departmeh t, Secretariat, Hyderabad

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Sri Suresh Chandra lAS, Princi pal Secretary Government of Telangana HM and FW Department Secietaria t Hyderabad

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Sri Dr.N. Jayalatha, Director of I/.N.J.lnstitute of Oncology Regional Cancer Centre Red hills Hyderabad

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..RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the raffidavit filed therewith, the High court may be pleased to summon and punish the respondents for willful disobedience negligence and flouting of the interim orders dated 27.11.2014 in O.A.No.6124 of 2014 which was extended by hn order dr. 21 .11.2014 and 1.12.2014 until further orders under Section 10 lo 121of the Contempts of the Courts Act r/w. Sec.1 7 of the Administrative Tribunals Act'1985 and pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.

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Counsel for the^Petitioner:S KUMAR

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I K. KIRAN KUMAR REP.,^{FORSRI.N ASHWANI}

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Counsel for the^ResPondents GP FOR SERVICES^III

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The Court made^{the following} COMMON ORDER

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

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WRIT PETITION ITRI No.2915 of 2Ol7 and CONTEMP CASE lTRl No.244 of 2Ol7

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COMMON ORDER {Orall: (Per Hon'ble .lustice Sujog Paul)

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The petitioner initially filed petition in O.A.No.6124 of 2OI4 before the Andhra Pradesh Administrative Tribunal at Hvderabad (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 .IO .2014, which was subsequently extended till 21.11.2014 and 02.12.20 14 and iinally, on 0 1 . l2.2ol4 , 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 reregistered as C.C.(TR).No.244 of 2OI7 on the abolishment of the Tribunal.

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Contentions of the petrtip4er:

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Sri K. Kiran Kumar, learned counsel representing Sri^N. Ashwali Kumar, learned cor.rnsel for the petitioner submits that

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the petitionet's; parent department is the Regional Director of Medical and []r:a1th Services, Kadapa, i.e., respor-rdent No.9. The petitioner uras sent to work on deputation in the Diret:tor of MNJ Institute of Or-rcolory and Regional Cancer Centre, Red Hi1ls, Hyderabad, i.,:., respondent No.8. The age of the superannuation of the employees working in the petitioner's category in. Telangana State was 58^rzears, whereas it was 6O years in the State of Andhra Pradesh. Sinc,: the respondents did not permit the petitioner to continue on deputation, she hled O.A.No.6124 of 2014 before the Tribunal with follovuing relief:

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"to declare' the action of the respondents in not takilrg steps to continue the services of the applicant as Head lllurse in MNJ Ins;Litute of Oncology a1rd Regional Cancer Centre Hyderabacl on the strength of Go'rt.Memo No. 1041 LTlncl/SR/A1/2014, dated 15.05.2014 issued by the 4e respondent till she attains the age of superannuation of 60 years in light of the orders issued by the Government of AP uide G.O.Ms.No.147 Finance HRMIV Departme:nt dated 30.06.201.+ and Letter in Rc.No.1337 12074 daled 09'.O9.2014 of the^()t1 respondent as being arbitrary illega1 unjust discrimiriatrve and violative of Articles 14, 16 and 21 of the ConsLitu t,ior-r of India besides being opposed to [he principles of equitl, and fair play and consequently hold that the applicant- is entitled to be continued as Head Nurs,: at MNJ Institul,e of Oncologz and Regionai Cancer Centre Hl.derabad on the :;tre ngth of Govt. Memo No. 104 4lncl/SR I hl l2Ol4 datcd 15.()5.2014 issued by the 4tt respondent by r::rtending the bene irt- of encashment of the aqe of superannuation from 58 to thart of 60 years as per G.O.Ms.No. 147 Financc HRMIV Departmr:nt dated 30.06.2014 issued by the Government of Andhra Pradesh and on the strength of L,ctter in Rc.No. 1337/B lll2014, dated 09.O9.2014 of 1.he^gttr respondent with all consequential benefrts and rr ss such othcr or-dc rs."

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(Emphasis rSupplied)

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karned 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 reiief is only about salar5r for the period between 27.10.2014 to 31.10.2076. 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 27.1O.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 salar5r upto January, 2015. Thereafter, she was not allowed to continue and no salar5r was paid to her. Thus, learned counsel for the petitioner fairly submits that the petitioner 1S only claiming salarSr from January, 2015 to 31.1O.2O16 in the present proceedings

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It is submitted by the learned counsel for the petitioner that the said interim order passed by the Tribunal was continued^on Ol.12.2O14 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

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the 'facilities'^{ar ailable before the appointed date i e ', 02 06'2014} should have br:r:n^{continuedin favourof the petitioner. 'Faciiities'} includes the 'facility'^{to serve departmenttill attainingthe age of} 6O years.

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Non-payment of^{salary \vas criticized by placing 'relialce on} the order^parssed by^{theSupremeCourt inTtansmission} Corporation of Andhra^{PradeshLtd and ors' v' P'B'Karunakar} and ors.l. It^rs submitted^{that if employeeswere c:ontinuedto} remain in the services^{of the department, they rt'ere boutnd to work} and it was dut5r of the^{employer to assign the u'ork ald extract} work from thr:rn.^{Respondent No.8could not have rleprivedthe} petitioner from the fruits of^{salary. In order to support the} contention baLsed on Section^{75 of the Reorginisat:on Act, the} judgment of the Supreme Court in the^{case of AndhraPradesh}

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State Council of Higher^{Educationv.Union ofIndia2 was} referred. LearrLed counsel^{for the petitioner submitsthat although} said judgment relates to the^{assets,the analo&vcall.l be drawn} from the said^judgmentfor the^{purpose of interpreting,Section 75} (1) of the Reorginasation Act.

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I Special Leave to ,\ppcal (C) Nos 35299-35302i201i. datcd 08.04.20t6

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2 Civil Appeal Nos.3 ()l ')'-.1020 of 2016, datccl 18.01.2016.

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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.g institution and she is entitled to get salar5z from Februaqr, 2015 to 31. 10.2016.

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Contentions of the respondents:

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Ms. M. Sha]ini, learned Government pleader for Services II appearing for respondent Nos. 1 and 3, Sri Santhapur Satyalarayana Rao, learned Government pleader for Services_I appearing for respondent Nos.S and 8 and Sri B. Rajeshwar Reddy, learned Government Pleader for the State of Andhra Pradesh for respondent Nos.2, 4, 6, T, 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 carne to Hyderabad as 'deputationist' to work in the Director of MNJ Institute of Oncolory and Regional Cancer Centre, Red Hills, Hyderabad, i.e., respondent No.S. The deputationist has no enforceable right to remain on deputation as per her choice. Respondent No.g 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

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department of the^{petitionerfor repatriation.After cerl':Lin internal} communicatio'r,s, a specific^{order ofrepatriation was duiy} communicateil to the^{petitioner, rvhich is filed by th.e:petitioner} herself along^r,r'ith the rejoinder.^{Hea'"y relianceis placed on the} Rc.No,1337/81 12014,^{dated 22.11.2O14, wherebYttie petitioner} was repatriated and thereby,^{directed to reportbefore respondent} No.9. The sairl order^was duly^{endorsed to the petitiont:r. Thus, it} is urged that this course of^{repatriationispermis'sible under} Section 79 of t-he Reorganisation Act.^{Learnedcounsel for the} respondents a.1so relied on^{certainjudgments to sub.mitthat the} petitioner is n,rt, entitled for any^relief.

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No other point is pressed.

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g. We ha','e heard the^{partiesat length and perusedr-he record.}

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FindinEs:-

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Admitterlly, the parent department^{of the petitioneris} respondent N,r.9 and order was^{passed directing the} ltetitioner^to work on deprrtation in respondent No.8. It ir; trite^that deputationist has no indefeasible right to continue^{or:. deputation-} The borrowing department or lending department has right to

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)

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repatriate the deputationist at any time. The Supreme Court in Kunal Nanda v. Union oflndiag, held as under:

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"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 under\ring deputation itself is that the person concerned can always ind^-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.,,

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Thus, it is clear that petitioner has no vested, statutory or constitutional right to remain posted on deputation in respondent No.B institution.

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To wriggle out of this aspect, learned counsel for the petitioner placed hear,y relialce on Section Z S of the Reorganisation Act, which reads thus:

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

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(1) The Government of the State of Andhra pradesh or the State of Telangana, as the case may be, shall, in respect of the lnstltutions 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, rn 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 Gove rnments within a period of one year from the appointed day or, if no agreement is reached within the

' (2000) 5 scc 362

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said perir;cl, as may^{behxed byorder of the'3cntra1} Government.

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(2) The Ce:etral Government^{may, at any time within} 'lne^year from the appointed^{day, by notification in the Olficial (\azette,} specify in the Tenth^{Schedule referred to in sub-Section (1)} any other institution^{existingon the appointedda11 in the} Stites of .A.rLclhra Pradesh^{and Telanganaand, orL the issue of} "r.1'r^{n61i{ication,such Scheduleshall be dceme'i tobe} amended try the inclusion^{of the said institution thcreirL "}

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(trmphasis Suo plied)

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Pertinently, Section⁷ 5^{forms part of thePart VIIof} Reorganisation Act, which^{talks about 'Provisionsas to certain} Corporations'. Respondent^{No.8 by no stretch of imagination can} be said to be il corporation.^{Thus, Part-VII is not appiicablefor the} purpose of sltperannuation of the^{petitioner.So far, Section 75} aforesaid is corLcerrred, a minute^{reading of this provis'icn makesit} clear that it l-a.lks about the^{'Continuanceof facilitier; in certain} State institut.ions' and^provides that^{the facilitiesrare tobe} continued 'for the people'. The^{provisiondoes nol- deal with} service concLit.ions of the^{employees of the state institutron at all.} On the contrery, it talks about other^{general facilitiesavailableto} the peopie.

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Part-VIit of the Reorgalisation^{Act deals u'ith 'l)rovisionsas} to services'. Siection 79 of the^{said Act reads thus:}

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"79. Provirsions as to contlnua nce of officers in Samc f,(,Si..

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Every person who, immediately before the appointed day, is holding or discharging the duties of any post o. 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 ofhce in that successor State, and shail be deemed, on and from that day, to have been duiy appointed to the post or oflice by the Government of, or other appropriate authority in, thai successor State:

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Provided that nothing in this section shall be deemed to prevday,ent from a competpassinen^t in^authorily, relation on to such and froperson^{m the} anv^appointed order affectin sthe conttnuance in such post or office."

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(trmphasis Supplied)

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Tl;e prouiso 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 2074 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.g.

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Thus, we do not find any illegality or unconstitutionality in the process adopted by the respondents. The petitioner had no legal, statutory or constitutional right which has been infringed. Merely because an ex parte interim order was passed by the

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._r

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Tribunal, it rvill not^{reap any benefit of salary as clair:ledby the} petitioner.

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77 . in view- o[ the^{aforesaid,no relief is due to the r:etitioner'} The petition sans substance^{and accordingly, the Writ l)etitionas} well as the Contempt both^{are dismissed.There sha1l b': no order}

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as to costs. Miscellaneous^{applications,if any, shall strandclosed'}

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SD/. B. SATYAVATHI DEPUTY REGISTRAR I I j\ \ ,TRUE COPY// - I SEC T'ION OFFICER

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To,

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