O.P.(KAT) No. 1 of 2019

O.P.(KAT)No. 1 of 2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940** **OP(KAT).No. 1 of 2019** **AGAINST THE ORDER IN OA(EKM)No.1641/2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 11-12-2018** ## **PETITIONER:** **SHAMSUDEEN A. AGED 50 YEARS S/O ABDUL KHADIR RAWTHER, SECRETARY, DISTRICT TOURISM PROMOTION COUNCIL, PATHANAMTHITTA, AT KOZHENCHERRY, PIN-686 641, RESIDING AT EMBRAYIL, PAZHAKULAM.P.O, ADOOR, PATHANAMTHITTA-691 523.** **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**TOURISM DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**DISTRICT TOURISM PROMOTION COUNCIL,**| ||**PATHANAMTHITTA AT KOZHENCHERRY, PIN-689 641,**| ||**REPRESENTED BY ITS CHAIRMAN.**| |**3**|**DEPUTY DIRECTOR OF TOURISM**| ||**COLLECTORATE, PATHANAMTHITTA, PIN-689 645.**| ## **GP SRI. ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 3.1.2019, THE COURT ON 6.2.2019 PASSED THE FOLLOWING:** O.P.(KAT)No. 1 of 2019 2 **“C.R”** ## **C.T.RAVIKUMAR & V.G.ARUN, JJ.** ----------------------------------------------O.P.(KAT)No. 1 of 2019 ----------------------------------------------Dated this the 6[th] day of February, 2019 ## **JUDGMENT** ## **V.G.Arun, J.** The petitioner, while working as Junior Clerk at the Taluk Office, Ponnani under the Land Revenue Department, was appointed on deputation, as Secretary, District Tourism Promotion Council (DTPC), Pathanamthitta. For the purpose of such appointment, the Government had issued Annexure-A2 order prescribing the education qualification, mode of appointment and method of selection. The prescribed mode of appointment under Annexure-A2 was by way of deputation from among Gazetted or non-Gazetted Officers in Government service, possessing the required qualification and experience or by way of contract appointment. The method of selection prescribed was written test and interview. Being a nonGazetted Officer in Government service with the required qualification and experience, the petitioner submitted his application pursuant to Annexure-A2 order and was appointed as per Annexure-A4, based on his performance in the O.P.(KAT)No. 1 of 2019 3 written test and interview. While the petitioner was continuing in the post of Secretary, DTPC, on deputation, the Government issued Annexure-A1 order dated 31.8.2018 relieving the petitioner from his post and repatriating him to the parent department. Thereupon, the petitioner approached the Kerala Administrative Tribunal challenging Annexure-A1 order. 2. The challenge against Annexure-A1 order was primarily on the ground that the order is vitiated for non-observance of the principles of natural justice and that the impugned order casts a stigma on the petitioner. It was contended that the District Collector, Pathanamthitta, who was the Chairperson of the DTPC had personnel enmity towards the petitioner, which had caused her to send a report to the Chief Secretary, raising baseless allegations against the petitioner. This had resulted in an enquiry being conducted against the petitioner, which was the real reason behind cancellation of the petitioner's deputation. 3. On behalf of the respondents, a reply statement was filed before the Tribunal, refuting the allegations in the Original Application and stating that, pursuant to a report of the District Collector and Chairman, DTPC, Pathanamthitta, the Director, Department of Tourism had submitted that the petitioner had O.P.(KAT)No. 1 of 2019 4 brought disrepute to the Tourism Department by his actions and had recommended to place the petitioner under suspension or to send him back to the parent department. Thereupon, a preliminary enquiry was conducted into the allegations against the petitioner and a report was submitted before the competent authority, wherein certain procedural errors and supervisory lapses on the part of the petitioner was pointed out. It was also stated that the normal period of deputation is one year, which in the case of the petitioner expired on 5.7.2018 and that given the laches and misconduct on the part of the petitioner the Government had decided not to extend the period of deputation and to repatriate the petitioner to his parent department. It was contended that an employee has no legally enforcible right to continue on deputation. 4. After a careful consideration of the contentions and scrutiny of the documents, the Tribunal came to the conclusion that the nature of the petitioner's appointment was deputation and that Annexure-A1 does not cast any aspersion or stigma on the petitioner and that it is only an order simplicitor, cancelling the deputation. Therefore, the Tribunal held that Annexure-A1 does not warrant any interference. On the request of the petitioner the Tribunal allowed him to continue as Secretary, O.P.(KAT)No. 1 of 2019 5 DTPC till 31.12.2018, by ordering that the cancellation of petitioner's deputation will be given effect only from 1.1.2019. 5. The impugned order of the Tribunal is challenged on the ground that there was no justifiable reason for repatriating the petitioner to his parent department and that the Tribunal went wrong in presuming that the appointment of the petitioner was made under Rule 9B of Part II K.S & S.S.R. It is contended that the petitioner having been appointed, pursuant to a due process of selection, his appointment cannot be termed as deputation and consequently the appointment of the petitioner could not have been cancelled as per Annexure-A1 order. It is also contended that from a reading of the reply statement filed before the Tribunal, it is evident that the petitioner was repatriated on the basis of the allegations raised against him by the District Collector and Chairman, DTPC and the consequential enquiry. It is therefore, contended that even though nothing has been specifically spelt out in Annexure-A1, it had resulted in casting aspersions and stigma on the petitioner. 6. There cannot be any dispute about the fact that the mode of appointment of the petitioner to the post of Secretary, DTPC, Pathanamthitta was by way of deputation, as prescribed in Annexure-A2 order. Annexure-A5 is the No Objection O.P.(KAT)No. 1 of 2019 6 Certificate issued from the petitioner's parent department stating that there was no objection in relieving the petitioner from the Revenue Department, on the petitioner being appointed in the Tourism Department on deputation basis. The order of appointment, Annexure-A4, also clearly state that the petitioner was being appointed on deputation basis. Therefore, merely for the reason that the petitioner was appointed pursuant to a written test and interview, it cannot be contended that his appointment was not on deputation, as per Rule 9B of Part II K.S & S.S.R. It is to be noted that the petitioner does not have a case that he was absorbed into the service of the Tourism Department and that he had lost his lien in the Revenue Department. 7. With respect to the contention that the cancellation of the petitioner's deputation vide Annexure-A1 casts aspersions and stigma on him, thereby adversely effecting the petitioner's future career, it would be appropriate to have a look at Annexure-A1, which reads as follows:- “Sri.Shamsudeen A, who was appointed as Secretary, DTPC, Pathanamthitta, as per Government Order referred above is relieved from his post and repatriated to the Revenue Department, which is his parent department. The Deputy Director of Tourism, Pathanamthitta is given charge of the Secretary, DTPC.” O.P.(KAT)No. 1 of 2019 7 There is nothing in the aforementioned order which would even indicate of any aspersion or stigma being cast on the petitioner. As was rightly held by the Tribunal, Annexure-A1 is an order simplicitor, cancelling the petitioner's deputation. In this context it may be relevant to note that the respondents have not challenged the finding in the impugned order that Annexure-A1 does not cast any stigma on the petitioner. No such contention was urged on behalf of the respondents, even during the course of argument in this Original Petition. These aspects are definitely indicative of the correctness of the finding of the Tribunal that Annexure-A1 does not cast any stigma on the petitioner. 8. As regards the contention of the petitioner that his deputation cannot be cancelled without providing him with an opportunity of hearing, it would be appropriate to refer to some of the decisions on the point. This Court in **Albert A v State of Kerala(ILR 1994(2) Kerala 587)** has held that Rule 9B creates a discretion in the Government to depute officers or receive officers on deputation. It was also held that the employee has no right to be deputed or to continue on deputation. The Apex Court, in **Kunal Nanda v Union of India (2000)5 SCC 362)** held as follows:- O.P.(KAT)No. 1 of 2019 8 “ The basic principles underlying deputation itself is that the person concerned can always and 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 to get absorbed in the department to which he had gone on deputation.” The decision in _**Kunal Nanda'**_ s case was followed by the Supreme Court in **U.P.Gram Panchayat Adhikari Sangh and others v Daya Ram Saroj and others (2007)2 SCC 138** . The legal position having thus been succinctly laid down, the contention that Annexure-A1 violates the principles of natural justice can only be rejected. 9. This being the position, the only other issue to be considered is as to whether there was any scope for interefrence by the Tribunal on Annexure-A1, in exercise of the power of judicial review. The power of judicial review over an administrative decision has time and again come up for consideration before the Apex Court. In **Sterling Computers** **Ltd** v. **M & N Publications Ltd.(1993)1 SCC 445)** , the legal position was explained as under:- “By way of judicial review, the court is not expected to act as a court of appeal while examining an administrative decision and to record the finding whether such decision would have been taken otherwise in the facts and O.P.(KAT)No. 1 of 2019 9 circumstances of the case. In the book Administrative Law, Prof.Wade; “the doctrine that powers must be exercised reasonably has to be reconcile with the no less important doctrine that the court does not usurp the discretion of the public authority which parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts _ultra vires_ . The court must therefore resist the temptation to draw the bounds to tightly, merely according to its own opinion. It must try to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended. The decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the courts functioning to look further into its merits. With the question whether a particular policy is wise or foolish the court is not concerned; it can only interfere if to pursue it is beyond the powers of the authority.” ## 10. In its decision in **Indian Railway Construction** ## **Co.Ltd. v. Ajay Kumar ((2003)4 SCC 579)** , the Apex Court elaborately considered the scope for judicial interference in matters of administrative decisions and ultimately came to the conclusion that in order to characterise a decision of the administrator as “irrational” the court has to hold, on materials, that it is a decision “so outrageous” as to be in total defiance of logic or moral standards. In essence, the test is to see whether there is any infirmity in the decision making process and not in O.P.(KAT)No. 1 of 2019 10 the decision itself. According to us, Annexure-A1 cannot be termed to be tainted with illegality, irrationality or procedural impropriety. Consequently, there is no scope for judicial review of Annexure-A1 order. For the reasons mentioned above, the Tribunal was justified in repelling the challenge against Annexure-A1. Hence, the decision of the Tribunal does not require any interference and consequently, the Original Petition is dismissed. Sd/- ## **C.T.RAVIKUMAR, JUDGE** Sd/- **V.G.ARUN, JUDGE** cms O.P.(KAT)No. 1 of 2019 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A(EKM)NO.1641 OF 2018 ALONG WITH THE ANNEXURES EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA(EKM)NO.1641/2018 EXHIBIT P3 TRUE COPY OF REJOINDER FILED BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 11/12/2018 IN OA(EKM)1641/2018.** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms