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2008 DIGILAW 513 (KAR)

A. Aswathaiah v. State of Karnataka

2008-09-17

MOHAN M.SHANTANAGOUDAR, P.D.DINAKARAN

body2008
JUDGMENT (P.D. Dinakaran, J.) The unsuccessful applicant in Application No.3511/2008 before the Karnataka Administrative Tribunal, Bangalore (for short, the Tribunal) is the writ petitioner herein. 2. The Tribunal by its order dated 19.2008 dismissed the Application filed by the writ petitioner where he had challenged the proceedings dated 27.2008 passed by Respondents 1 and 2 transferring the petitioner, who was working in the Forest Department, as Assistant Conservator of Forests Chintamani sub-division, Chintamani was transferred to Karnataka Forest Development Corporation, Bangalore. 3. The challenge to the said order of transfer dated 27.2008 was made mainly on the ground that the writ petitioner applicant being a government servant cannot be transferred to the Corporation, a foreign service, in place of the 3rd respondent, against his will. The 1st respondent sustained the order dated 27.2008 placing reliance on the first proviso to Rule 419A of Karnataka Civil Service Rules. 4. The Tribunal, by its order dated 19.2008, held that the contention of the applicant that no government servant could be transferred to foreign service against his will, is not applicable to the case where a government servant is transferred to the service of a Body, incorporated or not, which is wholly or substantially owned or controlled by the Government and, therefore, the impugned order of transfer dated 27.2008 is thus protected by the first proviso to Rule 419 (a) of Karnataka Civil Service Rules. The Tribunal further held that the impugned order does not suffer from any illegality or want of jurisdiction. Hence, the present writ petition. 5. Heard the learned Counsel on both sides, who have reiterated the contentions that were made before the Tribunal. 6. The Tribunal further held that the impugned order does not suffer from any illegality or want of jurisdiction. Hence, the present writ petition. 5. Heard the learned Counsel on both sides, who have reiterated the contentions that were made before the Tribunal. 6. Rule 8(19) of Karnataka Civil Services Rules defines Foreign Service "Foreign Service" means service in which a Government servant receives his substantive pay with the sanction of Government, from any source other than the Consolidated Fund of the State." Rule 50 deals with deputation of a government servant to other departments, which reads: "50(1) When a Government servant permanently transferred or deputed from one department to another under the provisions of Rule 16 of he Karnataka Stat Civil Services (General Recruitment) Rules, 1957 { Now KCS(General Recruitment) Rules 1977} he will draw pay in the new post at the same stage in which he was drawing in the old post and earn the next increment on the date on which he would have earned it had he continued in the old post. (2)(a) When a Government servant deputed from one department to another returns to the parent department he will draw the pay but for his deputation to the other department. (b) where, however, a Government Servant is deputed to another department on special temporary duty against no sanctioned post, he will continue to draw pay in the grade of the post held by him in his parent department and will continue to retain a lien in his parent department. (3) Such deputations should not ordinarily extend beyond five years except under special orders of Government." 7. The Government has issued orders clarifying the position in the case of deputation of government servants from one department to another department and as to how their salary and pay has to be drawn and disbursed and the same read as follows: GOK ORDERS/OMs/CIRCULARS 1. Sub-rule (3) of Rule 50 and clause(b) of Rule 419 of KCSRs provides that the period of deputation of Government servant from one service to another under Government or to any foreign service should not generally exceed fiver years. In spite of this, proposals are often sent to Government to extend the terms of deputation beyond five years. Some times, such proposals are sent long after expiry of the five year period. In spite of this, proposals are often sent to Government to extend the terms of deputation beyond five years. Some times, such proposals are sent long after expiry of the five year period. Governments policy in this regard is that normally proposals to extend the period of deputation of Government servant to another service under Government or to a Foreign service beyond five years should not be considered at all unless there are exceptional reasons. This is because if Government servants are allowed to remain in the deputed service beyond the reasonable time of five years prescribed under the Rules, they would lose touch with working of their parent departments. Consequently, they may be found to be misfits in their parent Department on their reversion from the deputed service. The Secretaries to Government and Heads of Department are requested to take action in all such cases in accordance with this policy. (O.M.No.GAD 49 SRR 75 dated 20.9.1975) 2. Government servants deputed on Foreign service basis to Local Bodies, Boards, Corporations, Co-operative Institutions, Companies, etc., are governed by the general terms and conditions prescribed. The term etc., used in the general terms and conditions prescribed is rather vague and has given scope for the application of the orders and terms and conditions prescribed to the deputations of Government servants even to Government commercial Undertakings." A careful reading of the definition of Foreign Service and the clarification issued by the Government in the above Government orders in respect of deputation of a Government servant to other departments, would go to show that in the event of such deputation what is the status of a Government servant and how their salary or pay Should be drawn from the consolidated amount and disbursed to them. 8. On the other hand, in the case of transfer of a Government servant to foreign service, the only relevant provision is Rule 419 which reads as under: "419(a) No Government servant may be transferred to foreign service against his will: Provided that this sub-rule shall apply to the transfer of a Government servant to the service of a body, incorporated or not which is wholly or substantially owned or controlled by the Government. Provided further that this sub-rule shall not also apply to the transfer of a Government servant to the service under Government of India or under a Local Authority or a co-operative Institution registered under the Karnataka Co- operative Societies Act. (b) Subject to the provisions of Rule 425, a transfer to foreign service may be sanctioned by a competent authority. The tenure of such transfer should not generally exceed five years except under special orders of Government." {Emphasis supplied} Even though main Section 419(a) provides that no government servant may be transferred to foreign service against his will, the first proviso provides exemption to the main section in the case of transfer of a Government servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government. 9. In the instant case, there is no dispute as to the fact that the Corporation is an incorporated body, wholly owned and controlled by the Government and therefore, the transfer of the petitioner to foreign service is purely governed by the first proviso to Rule 419(a) of KCS Rules. It is settled law that deputation is different from transfer. Whereas deputation can be a service outside the cadre or outside the parent department in which employee is serving; Transfer, however, is limited to equivalent post in the same cadre and in the same department and deputation is a temporary phenomenon; transfer being antithesis must exhibit opposite indications. 10. The Supreme Court in the case of Prasar Bharati and Others Vs. Amarjeet Singh and Others (2007)9 see 539 held: There exists a distinction between "transfer" and "deputation". Deputation connotes service outside the cadre or outside the parent department in which employee is serving. "Transfer~ however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit opposite indications." In Jawaharlal Nehry University Vs. Dr. K.S. Jawatkar and Others, 1989 Supp. (1) SCC 679 though it is held that: "The position in law in clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied." But, the said rule is subject to the specific provision of the Rules. 10. The Apex Court in State of Punjab and Others Vs. (1) SCC 679 though it is held that: "The position in law in clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied." But, the said rule is subject to the specific provision of the Rules. 10. The Apex Court in State of Punjab and Others Vs. Inder Singh and Others reported in (1997)8 SCC 372 the word "deputation" has been succinctly dealt with: "The concept of "deputation" is well understood in service law and has a recognized 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." 11. In the instant case though a specific and special provision is provided that no government servant may be transferred to foreign service against his will, the same is not applicable in the case of transfer of a Government servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government. It is an undisputed fact that the Corporation where the petitioner is transferred is a body incorporate and wholly controlled by the Government. Therefore, it is clear that what is ordered in the impugned order is not an order of deputation, but an order of transfer simpliciter which is purely governed under the first proviso to Section 419(a) of KCS Rules. The impugned order of transfer does not suffer from want of jurisdiction or illegality. 12. We do not find any reason to interfere with the order of the Tribunal. Accordingly, Writ petition is dismissed.