Dr. Rajashree Ajith v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` WEDNESDAY,THE4[TH]DAYOFOCTOBER2023/12THASWINA,1945 WP(C)NO.2196OF2023 ``` ## **`PETITIONER/S:`** ``` DR.RAJASHREEAJITH, AGED54YEARS WIFEOFMR.P.S.AJITHKUMAR, RESIDINGATSHRENIHILLS,PANICKERSLANE, THIRUVANANTHAPURAM-695010,FORMERMANAGINGDIRECTOR, KERALATRANSPORTDEVELOPMENTFINANCECORPORATION LIMITED,THIRUVANANTHAPURAM. ``` ``` BYADVS. P.K.VIJAYAMOHANAN AISWARYAV.S. JOSEPHKODIYANTHARA(SR.) ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA, REPRESENTEDBYTHECHIEFSECRETARY, GOVERNMENTOFKERALA,SECRETARIAT, - THIRUVANANTHAPURAM,PIN695001 2PRINCIPALSECRETARYTOGOVERNMENT, TRANSPORTDEPARTMENT,GOVERNMENTOFKERALA, - SECRETARIAT,THIRUVANANTHAPURAM,PIN695001 ``` ``` 3KERALATRANSPORTDEVELOPMENTFINANCECORPORATION LIMITED,REPRESENTEDBYITSCHAIRMANANDMANAGING DIRECTOR,TRANSTOWERS,VAZHUTHAKKAD, - THIRUVANANTHAPURAM,PIN695014 ``` ``` 4THEBOARDOFDIRECTORSOFTHEKERALATRANSPORT DEVELOPMENTFINANCECORPORATIONLIMITED, REPRESENTEDBYITSCHAIRMAN,TRANSTOWERS, - VAZHUTHAKKAD,THIRUVANANTHAPURAM,PIN695014 ``` 2 WP(C) No.2196 of 2023 ``` 5THECHAIRMANANDMANAGINGDIRECTOR, KERALATRANSPORTDEVELOPMENTFINANCECORPORATION LIMITEDTRANSTOWERS,VAZHUTHAKKAD, - THIRUVANANTHAPURAM,PIN695014 ``` ``` SRI.JIMMYGEORGE,GP, SRI.TPSAJAN,SCFORKTDFC, ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON04.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` 3 WP(C) No.2196 of 2023 ## **JUDGMENT** The petitioner has approached this Court seeking a declaration that she is legally entitled to get repatriated to the post of Managing Director, Kerala Transport Development Finance Corporation Limited (KTDFC) on and from 6.8.2022 on termination of her deputation to the Kerala Institute of Tourism and Travel Studies ( KITTS) and for incidental reliefs. 2. The short facts of the case are as under: a. The KTDFC is a non banking financial company registered under the Companies Act, 1956. On 27.12.1996, by Ext.P9 order, the petitioner was appointed as Managing Director of the KTDFC. The petitioner asserts that while appointing her as aforesaid, no tenure of period of appointment was fixed. b. While she was working as aforesaid, she was sent on deputation to the Kerala State Audio Visual and Reprographic Centre by Ext.P11 order. Her pay in the post of Managing Director was, however, protected. She was appointed as Managing Director of the Kerala State Audio Visual and Reprographic Centre by Ext.P12 order dated 17.9.2008. She worked there as 4 WP(C) No.2196 of 2023 Managing Director for a period of four years. c. Thereafter, recognizing her experience and her position, she was again sent on deputation as Director of the Kerala Institute of Tourism and Travel Studies (KITTS), which functions under the Department of Tourism, by Ext.P13 order dated 9.3.2012. However, while sending her on deputation, it was made clear by Ext.P14 order that the petitioner shall be given the salary and allowances which she was drawing in the post of Managing Director in the KTDFC. d. The petitioner states that the deputation of the petitioner as Director in the KITTS was terminated, and she was relieved as per Ext.P1, Government Order dated 5.8.2022. e. The petitioner states that as she was sent by deputation from her parent company, that is, KTDFC, she has a legal entitlement to get repatriated to the parent company on termination of her deputation. She also asserts that her monthly salary and allowances in the post of Managing Director have been denied to her. f. While so, the 2nd respondent has issued Ext.P16 order dated 13.2.2023 in pursuance to which the 5th respondent has issued proceedings dated 20.2.2023 permitting the petitioner to rejoin duty as Manager in the scale of pay of Rs.24040-38840, sanctioning the leave subject to availability 5 WP(C) No.2196 of 2023 and on submission of the proper application. It was also stated therein that regularisation of the service can be taken up with the Government. g. The petitioner asserts that Ext.P17 order by which the petitioner was directed to join as Manager is punitive as there is reversion in the cadre as well as a reduction in the scale of pay and other emoluments. It is on these assertions that this writ petition is filed seeking the following reliefs: (i) To declare that the petitioner is legally entitled to get repatriated to her original post of Managing Director, Kerala Transport Development Finance Corporation Limited (KTDFC) on and from 06.08.2022 on termination of her deputation to Kerala Institute of Tourism and Travel Studies (KITTS); (ii) To issue a Writ of Mandamus or other appropriate writ, direction or order commanding respondents 2 to 5 to repatriate the petitioner to her original post of Managing Director, Kerala Transport Development Finance Corporation Limited (KTDFC) immediately; (iii) To issue Writ of Mandamus or other appropriate writ, direction or order directing the respondents 3 to 5 to disburse pay and allowances legitimately due to the petitioner from 06.08.2022 with penal interest expeditiously, and at any rate, within a period of 2 weeks; (iv) To dispense the filing of the English translation of the Malayalam documents produced in this Writ Petition; (v) To issue appropriate writ, direction or order which deems fit, just and proper in the circumstances of the case; (vi) To award exemplary costs to the petitioner ; 6 WP(C) No.2196 of 2023 (vii) To issue a writ of certirorari quashing Exhibits P16 and P17 as they are punitive, illegal and arbitrary, offending the constitutional guarantees under Articles 14 and 21 of the Constitution of India. 3. A counter affidavit has been filed by the 2nd respondent. After reiterating the sequence of events, it is stated that after extending the deputation of the petitioner, she was terminated as per order dated 5.8.2022. It is stated that the post of Managing Director, which is now designated as Chairman and Managing Director, is not vacant. Appointment to the post of the Managing Director is a policy decision of the Government. It is further stated that while her request for rejoining the parent department was under process, the petitioner had submitted a representation on 05.10.2022 requesting that her request for posting in the Transport Department be not taken forward and also sought for grant of No Objection Certificate for deputation as Managing Director in the KAMCO under the Agricultural Department. It is stated that the 5th respondent has conveyed its no objection to the deputation. It is stated that as per the general conditions, no person shall hold a lien as MD/CEO of a public sector undertaking, which shall be at the pleasure of the Government. It is further stated that under Article 37 of the Articles of Association of the KTDFC, which deals with the term of office of the Managing Director, it has 7 WP(C) No.2196 of 2023 been stipulated that the Managing Director shall hold office at the pleasure of the Governor. It was in the said circumstances that by Ext.P16 letter dated 13.2.2023, direction was issued to the CMD, KTDFC, to post the petitioner as a Manager in the parent company wherein her lien lies **.** It is stated that vigilance cases have been registered against the petitioner on various allegations of corruption while she was working as the Managing Director of KTDFC, which are pending. As and when the petitioner joins the KTDFC in terms of the Ext.P16 order, her posting will be regularized. 4. In the counter affidavit filed by respondents 3 and 5, they have reiterated the contention raised by the 2nd respondent in its counter. It is stated that appointment as MD/CEO of a company is at the pleasure of the Government, if the said person is removed from the post of CEO/MD, he will have to go back to the post where he holds such lien unless he has crossed the age of superannuation in the parent company. It is stated that the prayer of the petitioner that she shall be repatriated as Managing Director of the KTDFC cannot be accepted as the Government has already appointed a Managing Director for the KTDFC. 5. Sri. Joseph Kodiyanthara, the learned Senior counsel, as instructed by Sri. Vijayamohanan, the learned counsel, submitted that there is absolutely no justification on the part of the respondents in denying the repatriation of 8 WP(C) No.2196 of 2023 the petitioner to her original post as Managing Director. He would point out that the petitioner was sent on deputation in the public interest and to meet the exigencies of public service. If that is the case, the lending authority is legally obligated to take back the employee as and when the period of deputation comes to an end. It is submitted that, to make matters worse, the petitioner is not even being paid the monthly salary and allowances that are legitimately due to her. The learned Senior counsel has placed reliance on the judgments rendered by the Supreme Court in **State of Punjab and Others vs. Inder Singh and Others** [1997 (8) SCC 372] and also that in **Saritha Singh vs. Shree Infosoft Private Limited** [Civil Appeal No.346 of 2022 (arising out of SLP(C) No.32174 of 2018)] to substantiate his contentions that the deputed employee will have to come back to his parent department to occupy the same position, unless, in the meanwhile he was earned promotion in his parent department as per the Recruitment Rules. 6. Sri. Jimmy George, the learned Government Pleader, has controverted the submissions. He would reiterate the contentions in the counter, and it is submitted that the lien of the petitioner lies to the post of Manager. It is submitted that the petitioner cannot insist that she be posted as Managing Director of the company as the appointment of the Managing Director falls under the policy of the Government. 9 WP(C) No.2196 of 2023 7. Sri. TP Sajan, the learned Standing Counsel appearing for the KTDFC, supported the submissions of the learned Government Pleader. 8. I have considered the submissions. 9. There is no dispute with regard to the fact that it was while working as Manager in the KTDFC that the petitioner was appointed as Managing Director by order dated 27.12.1996. No tenure or period of appointment to the post of Managing Director was fixed, and the appointment was made substantively. It was while working as Managing Director that by order dated 17.9.2008, she was appointed as Managing Director of the KSAVRC on deputation. Later, she was sent on deputation to the KITTS by order dated 9.3.2012. It is pertinent to note that the petitioner was granted salary and allowances, which she was drawing in the post of Managing Director under the KTDFC. Finally, by Ext.P1 Government Order, the deputation of the petitioner as Director in the KITTS was terminated. However, no orders were passed permitting the petitioner to rejoin the KTDFC, her parent company. The request made by the petitioner was rejected on the premise that the petitioner would have no lien or right over the post of MD, KTDFC. The other reason is that the appointment as MD/CEO of a company shall be at the pleasure of the Government. By order dated 20.2.2023, which was issued pursuant to directions issued by this Court, the petitioner has been 10 WP(C) No.2196 of 2023 posted as Manager in the KTDFC. Her contention is that the said order is illegal and punitive as she has been reverted to a lower post, and there is a reduction in salary and emoluments. 10. The concept of the deputation was lucidly explained by the Hon’ble Supreme Court in **State of Punjab v. Inder Singh** , (1997) 8 SCC 372, wherein, in paragraph No 18 it was held as under: **18.** The concept of “deputation” is well understood in service law and has a recognised 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. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent 11 WP(C) No.2196 of 2023 departments and working there as Constables or Head Constables as the case may be. 11. It was held that the term "deputation" in service law refers to temporarily transferring an employee outside their cadre or parent department. Upon the deputation's expiration, the employee must return to their parent department unless they have earned a promotion as per Recruitment Rules. Deputation requires the employee's consent, and their rights and privileges in the deputation post are known to them. It was further held in **Inder Singh** (Supra) that it would be really harsh on the employee to work in a top post for years together and, when the deputation is over, to be sent back to the parent company and made to work in a lower post. 12. In **Union of India v. S N Maity** ( (2015) 4 SCC 164), the Hon’ble Supreme Court interpreted the terms of deputation strictly and disavowed acts of caprice on the part of the employer. It was held as follows in paragraph 15 of the judgment: 15. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a government department to a government corporation or one Government to the other. There is no cavil over the fact that 12 WP(C) No.2196 of 2023 the post falls in a different category and the first respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But… this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words “until further orders” are used, it would not confer allowance on the employer to act with caprice.” 13. In **Umapati Choudhary v. State of Bihar** [(1999) 4 SCC 629], - the Apex Court had held that deputation would also involve a third party the borrowing employer who discharges specific rights and obligations towards the employee and the lending employer. While clarifying the tripartite nature of a deputation, it was held as under: “8. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. …………..…” 13 WP(C) No.2196 of 2023 14. In **Sarita Singh V Shree Indosoft** [(2022) SCC Online Sc 65], the principles laid down above were reiterated. 15. In **R.L. Gupta v. Union of India** , [(1988) 2 SCC 250], it was held that many officers have to be sent on deputation in the public interest to other departments in order to meet the exigencies of public service and that before sending them on deputation their consent is invariably taken. Merely because they have given their consent to go on deputation, they should not be allowed to suffer unless there is a specific rule to the contrary or other good reason for it. That is the ratio of the decision in State of Mysore v. M.H. Bellary [AIR 1965 SC 868 : (1964) 7 SCR 471] and of the decision in State of Mysore v. P.N. Nanjundiah [(1969) 3 SCC 633: 1969 SLR 346]. These decisions declare that an officer on deputation is entitled to get increments in the pay scale attached to the post in their parent department and also to get a promotion when it is based on seniority-cum-merit as and when his junior in the parent department is promoted by the application of the “next below rule.” 16. In the present case, it is important to highlight that the petitioner, while serving as a Managing Director in the parent organization, underwent two instances of deputation to the same position. Notably, the pay scale 14 WP(C) No.2196 of 2023 during these deputations remained consistent with that of the Managing Director. It is evident that the petitioner's consent regarding these deputations is not in question, as an employee who shifts to a different department for service cannot reasonably be compelled to assume a lower-ranking position. Thus, the notion of reverting an individual to a lower post after offering a higher position and relevant years of experience is inherently illogical and capricious. Nevertheless, it is essential to reiterate, as emphasized in the **Sarita Singh** case (supra), that if an individual qualifies for promotion to a higher post within the parent department during their deputation, that benefit should not be withheld. Having considered the entire facts in the light of the principles laid down by the Apex Court, I have no doubt in my mind that the petitioner has been subjected to serious injustice by reverting her to a lower post after the termination of her deputation period. The years of experience achieved by the petitioner, as well as her qualifications, have been overlooked by the respondents. She is entitled to be restored to the position she would have occupied in the parent department if she had not been sent on deputation. The mere fact that she had consented to go on deputation should not subject a deputationist to adverse consequences, such as a loss of seniority in the parent department, unless there exists a valid and specific rule to the contrary or other compelling reasons. No such compelling reason is 15 WP(C) No.2196 of 2023 brought to the notice of this Court. 17. In the light of the discussion above, the petitioner is entitled to succeed. There will be a direction to the competent among respondents 1 to 5 to repatriate the petitioner to the post of Managing Director or any other equivalent post in the KTDFC on and from the termination of her deputation to the KITTS. There will be a further direction to the respondents to disburse the equivalent pay and benefits to the petitioner from the date of joining as ordered above. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS/5/10/2023 16 WP(C) No.2196 of 2023 ## **`APPENDIX OF WP(C) 2196/2023`** ## `PETITIONER EXHIBITS` ``` ExhibitP1ATRUECOPYOFTHEG.O.(MS)NO.7/2022/TSM DATED05.08.2022. ExhibitP2TRUECOPYOFTHEREPRESENTATIONOFTHE PETITIONERBEFORETHECHAIRMANANDMANAGING DIRECTOR.DATED06.08.2022 ExhibitP3TRUECOPYOFTHEREPRESENTATIONOFTHE PETITIONERBEFORETHE2NDRESPONDENTDATED 06.08.2022 ExhibitP4TRUECOPYOFTHEREPORTOFTRANSFEROF CHARGEDATED05.08.2022. ExhibitP5TRUECOPYOFTHEREPRESENTATIONDATED 22.08.2022OFTHEPETITIONERBEFORETHE5TH RESPONDENT ExhibitP6TRUECOPYOFTHEGOVERNMENTLETTERDATED 30.11.2022TOTHEPETITIONER ExhibitP7TRUECOPYOFTHEREPRESENTATIONDATED 29.12.2022OFTHEPETITIONERBEFORETHE2ND RESPONDENT ExhibitP8TRUECOPYOFTHELETTERDATED05.01.2023 FROMTHE5THRESPONDENTTOTHE2ND RESPONDENT. ExhibitP9TRUECOPYOFG.O.(MS)NO.140/96/PW&TDATED 27.12.1996 ExhibitP10TRUECOPYOFG.O.(MS)5/97/TRAN.DATED 27.10.1997. ExhibitP11TRUECOPYOFG.O.(RT)NO.209/08/H.EDN. DATED06.02.2008. ExhibitP12TRUECOPYOFG.O.(RT)NO.1383/08/H.EDN. DATED17.09.2008. ExhibitP13TRUECOPYOFTHEG.O.(RT)NO.1963/12/TSM DATED09.03.2012. ExhibitP14TRUECOPYOFTHEG.O.(RT)NO. 5106/2014/TSMDATED01.07.2014. ExhibitP15TRUECOPYOFTHEG.O.(MS)NO.4/2020/TSM DATED11.02.2020. ExhibitP16ATRUECOPYOFTHEGOVERNMENTLETTER ``` 17 WP(C) No.2196 of 2023 ``` NO.TRANS-A2/10/2023-TRANSDATED13.02.2023 ExhibitP17ATRUECOPYOFTHEPROCEEDINGSNO.ESTT. 1484/08/KTDFDATED20.02.2023OFTHE5TH RESPONDENT ExhibitP18ATRUECOPYOFTHEG.O.(MS)NO 25/2016/TRANDATED04.03.2016 ExhibitP19AtruecopyofthepetitionersBio-Data, ExhibitP20ThetruecopyoftheCertificateissuedby SriAjoyChaudhuriIAS ExhibitP21AtruecopyofTheletterofappreciation issuedbySri.JijiThomsonIAS,on 30.06.2008 ExhibitP22ThetruecopyoftheRankCertificateNo. 42/94Dated02.06.1994ofthedeponent ExhibitP23THETRUECOPYOFTHECERTIFICATEDATED 02.09.2022ASTOMYLASTDRAWNSALARYFROM THEKERALAINSTITUTEOFTOURISMANDTRAVEL STUDIES(KITTS) ``` ``` RESPONDENTEXHIBITS: ``` ``` ExhibitR3(a)AtruecopyofG.O(Ms)No.7/2022/Tourism dated05.08.2022 ExhibitR3(b)Atruecopyoftheforwardingletterdated 22.08.2022issuedbyKTDFC ExhibitR3(c)Atruecopyoftheletterdated05.01.23 issuedbyKTDFCtoSecretarytoGovernment ExhibitR3(d)AtruecopyoftheNo.Est.2/94dated 31.01.1995issuedbytheManagingDirector KTDFCappointingthepetitionertothepost ofManager ExhibitR3(e)AtruecopyoftheGO(Ms)No.19/09/Plg. dated20/05/2009prescribinggeneral conditionsofappointmentofMD/CEOsof PSUsincludinglien ExhibitR3(f)Atruecopyoftheletter No.TRANS-A1/201/2018-TRANSdated23.06.2020 ExhibitR3(g)AtruecopyoftheGO(Ms)No.81/2010/Tran dated06.12.2010issuedbytheGovernment ExhibitR3(h)Atruecopyoftheletterdated22.02.2023 issuedbyKTDFCtoGovernment ``` 18 WP(C) No.2196 of 2023 ``` ExhibitR2(a)TruecopyoftheGO(M)No.40/96/PWdated 27.12.1996 ExhibitR2(b)TruecopyoftheGO(Rt)No.503/2007/Tran dated24.10.2007 ExhibitR2(c)TruecopyoftheGO(Rt)No.23/2008/Trans dated24.01.2008 ExhibitR2(d)Truecopyoftherepresentationdated 05.10.2022 ExhibitR2(e)TruecopyoftheNOCissuedbythe5th respondentdated11.10.2022fordeputation ```