ORDER
Anand Byraredd, J.
1. The petition coming on for Preliminary Hearing on 22.6.2006 notice was directed to respondent No. 1 and was directed to be listed on 26.6.2006 for consideration of the interim prayer, and all parties were directed to maintain status quo till then. On 26.6.2006, the interim order was continued. The petitioner was heard on 3.72006. The petitioner's application seeking amendment was allowed and the matter was adjourned to 7.7,2006 to enable the respondents to file statement of objections. And the Karnataka Institute of Medical Sciences (KIMS for brevity) was directed to be impleaded as a party by the Court. The pleadings were complete (except for KIMS) on 7.7.2006 and the matter was heard for final disposal by consent of Counsel as the hearing on interim relief entailed a veritable hearing on the very merits of the main petition. Though KIMS had not filed its statement of objections - the Counsel appearing for KIMS was also heard at length on the issues urged.
2. The facts of the case are:
The petitioner was appointed as a Lecturer in anatomy in the KIMS. He was promoted as an Assistant Professor in the year 1991 and as a Professor in the year 1999. He was the Professor and Head of the Department (Ortho.) in the year 2001. The petitioner worked as In-charge Principal during the year 2004 and as Principal and In-charge Director from 1.1.2005 to 28.2.2005.
3. KIMS invited applications for the post of Director as per notice dated 19.3.2005 published in daily newspapers. The petitioner had applied. He was called for an interview along with other candidates by the Selection Committee consisting of a Chairman (The Minister for Medical Education in Karnataka) and three other members namely The Secretary to Government, Health and Family Welfare, The Director Health and Family Welfare Service, Bangalore and the Chief Administrative officer, KIMS, Hubli. One other member had remained absent.
4. Thereafter the petitioner was named as the Director, KIMS, on deputation for a period of two years by a notification dated 13.5.2005. It is the petitioner's case that as on 21.6.2006 his tenure has been abruptly curtailed and he has been reverted to the post of Professor, Mysore Medical College with immediate effect. Simultaneously, under the same notification, respondent No. 2 has been appointed in the place of the petitioner, until further orders. It is this action on the part of the first respondent which is under challenge.
5. Shri. P.S. Bhagwat appearing for the petitioner submits that the recruitment to the post of Director, KIMS, Hubli is governed by the Karnataka Institute of Medical Sciences, Hubli, Rules and Regulations, 1995 and the Karnataka Institute of Medical Sciences, Byelaws, 1995. He draws attention to Rule XVII which reads as follows:
XVII' Appointment of Director.
1. The First Director shall be appointed by the Government and such appointment shall be for a period of five years or till the incumbent attains 60 years.
2. The appointment of subsequent Directors consequent on superannuation, resignation, removal or death and cessation of the term of appointment of Director can be made temporarily by the Governing Council till the Director is appointed by the Government of Karnataka'.
He would submit that from the above it is plain that the post of Director is a tenure post and that the tenure is for a period of five years. And that the appointing authority is the State Government.
6. It is contended that the petitioner having applied for the post on the invitation for applications through the 'proper channel' as required of State Government Servants under the notification, the petitioner was interviewed with 18 other candidates by a Selection Committee constituted in terms of the Rules for the purpose of appointing a Director. The petitioner was selected and appointed under Rule 17(2) above. Upon such appointment he ceased to be a Government Servant and was employed by KIMS, which is an autonomous body. The service conditions of the petitioner are governed by Rule XXI of the Rules read with the Karnataka Institute of Medical Sciences (Pay, Recruitment Conditions of Services and Miscellaneous Provisions) Rule 1995.
7. The petitioner has been discharging his functions as the duly appointed Director. The action on the part of respondent No. 1 to curtail his tenure as Director and seeking to revert him to the post of Professor, when he had actually held a higher post of Principal before his appointment as the Director, KIMS smacks of a highly arbitrary and concerted action which is illegal and unjust warranting intervention of this Court.
8. Per contra Shri. P.S. Rajagopal appearing for the respondent No. 2 and opposing the petitioner would raise a preliminary objection to the maintainability of the writ petition. He contends that the petitioner is an employee of the Government of Karnataka. As is clear from the notification dated 13.5.2005 the petitioner was on deputation for a period of two years as Director, KIMS, now by the notification dated 21.6.2006 his deputation has been withdrawn and he is repatriated to the Parent department. If this is contended as being in alleged violation of the petitioner's service conditions, the petitioner's remedy lies before the Karnataka Administrative Tribunal in terms of Section 15 of the Administrative Tribunals Act, 1985. He would submit that this is a threshold bar to the petition.
9. Without prejudice to the above he would further submit that the second respondent and the petitioner, along with several others had been deputed by the Government to work at the institute. But they continued to be Government servants. As per Rule 7 of the Pay and Recruitment Rules of KIMS the posts in the institute could be filled by invitation, promotion, open advertisement or by deputation, by the appointing authority.
10. The second respondent was one of the candidates, who, along with the petitioner were called for an interview pursuant to their applications for the post of Director that was advertised on 19.3.2005. But no appointment was made by direct recruitment. The Government, however, has appointed the petitioner as Director on deputation for a period of two years. The notification dated 13.5.2005 also indicates that the terms and conditions of deputation would be issued separately. As the petitioner does not contend that any such conditions were in fact issued, the deputation itself is incomplete. In that, the terms ought to be communicated to the petitioner and he must in turn communicate his acceptance or otherwise the deputation is not complete in terms of the rules.
11. It is also contended that insofar as the curtailment of the tenure of two years mentioned in the notification dated 13.5.2005, is concerned, Shit P.S. Rajagopal would contend that Rule 420(1) of the Karnataka Civil Service Rules empowers the State Government to recall an employee on deputation in Foreign Service at any time.
12. It is alleged that the petitioner has indulged in abuse of office from inception. Such as appointment of personnel without following procedure and which were withdrawn only after the Administrative Officer of KIMS took exception. Similarly, the petitioner had made appointments of tutors inspite of the Governing Council expressly refusing approval he has allowed such persons to continue in appointment.
13. In respect of the above and other irregularities the Government had appointed a committee of enquiry and a report has been generated on which further action is awaited.
14. It is contended that the petitioner having accepted the order at Annexure-B to the petition whereby the petitioner was placed on deputation for a period of two years and the petitioner having accepted the same without demur is precluded from challenging the same, by acquiescence, waiver and estoppel.
15. It is further contended that the petitioner has in any event continued to be a Government servant by conduct. Firstly, the petitioner has, since May 2005 continued drawing his pay at the pay scale fixed for a professor and not that of a Director. Secondly, pursuant to the notification and interviews held by the Selection Committee in respect of candidates for the post of Director, no select list was published and the notification dated 13.5.2005 did not indicate that the petitioner was being appointed pursuant to the selection by the committee, but was categorically indicated as being on deputation for a tenure of two years.
16. Shri. Rajagopal places reliance on the following authorities in support of his contentions:
H. Hombalaiah v. Zilla Parishad : ILR1989KAR816 :
In this case, the appellant, a Government servant was on deputation with a Zilla Parishad. While on such assignment, the Chief Secretary of the Zilla Parishad, as the controlling authority had suspended the petitioner. This action having been challenged in a writ petition before this Court, a single judge had held that the petition was not maintainable in view of Section 15(1) of the Administrative Tribunals Act, 1985. This was challenged in appeal. In the appeal the Division Bench while affirming the order, held that Government servant holding a civil post under the Government should move the appropriate Tribunal, notwithstanding the fact that such Government servant was on deputation to a local or other authority or any corporation under the control of the State Government.
Major M.R. Penghal v. Union of India and Ors. : (1999)ILLJ1211SC : The appellant was selected for appointment as a clerk by the Posts and Telegraphs Service Selection Board. But due to want of vacancies in the unit of his choice, he was sent on deputation to the Indian Army Postal Service after obtaining his acceptance of the offer in this regard. He was posted as a civilian in the army service on deputation. In course of time he was promoted to various higher ranks including the rank of a major. Subsequently, he claimed that he was entitled to a further promotion as Lieutenant Colonel, which he was denied and directed to approach the Director General of Posts, since he was a civilian. In the meanwhile, an order was passed repatriating him to the Department of Posts. The appellant had immediately sought voluntary retirement from the Department and former sought permission to retire voluntarily direct from the Army Postal Service without reversion to civil duties. His request to retire voluntarily was accepted. The appellant sought to retract his request, this was turned down. The appellant challenged such refusal by way of a writ petition. The High Court found that he was not a member of the Armed Forces and therefore the court had no jurisdiction to entertain the petition. The appellant had then approached the Central Administrative Tribunal. The Tribunal did quash the impugned orders but directed the appellant to file an appeal before the Chief Postmaster General. That part of the order repatriating the appellant to the Postal Department remained in tact. Hence the appellant filed a second application before the Tribunal claiming he belonged to the Armed Forces. The Tribunal accepted that he belonged to the Armed Forces and held it had no jurisdiction to entertain the application. This resulted in the appellant approaching the Supreme Court.
17. The Supreme Court held that the appellant had a lien with the P and T Department working on deputation with the Army Postal Service, and at no point of time did he become a full fledged army personnel. His case was therefore covered under Section 14(1)(a) of the Administrative Tribunals Act, 1985. And hence held that the High Court was right in rejecting the writ petition and the Tribunal was wrong in accepting the contention of the appellant that he was a personnel of the Armed Forces. And remanded the matter to the Tribunal.
Dr. Shree Krishan v. Union of India and Ors. 1990 (5) SLR 251: It was laid down in this case that Central Government employees who are on deputation with a society registered under the Societies Registration Act and which is fully controlled by the Central Government - would constitute to be an employee of the Central Government till such time the Central Government passes orders relieving him from duty and repatriating him and would not stand absorbed in the society till such time.
C. Rangaswamaiah and Ors. v. Karnataka Lokayukta and Ors. : [1998]3SCR837 : Police officers of the State Government sent on deputation to Lok Ayukta were entrusted with extra duties by the State Government to conduct investigation in exercise of powers under the Prevention of Corruption Act, 1988. When the deputationists were half-way through the extra work the public servants against whom the investigation was on, had raised objection. The Supreme Court affirmed the view of a Division Bench of this Court that a person sent on deputation continues to remain employees of the lending authority with which master and servant relationship continues till it is terminated. And held, that the police officers continued to be public servants of the State Government until they are absorbed in the Lok Ayukta.
Kunal Nanda v. Union of India and Anr. : (2000)5SCC362 : A CRPF personnel was taken on deputation to the CBI. He was approved for permanent absorption in the CBI, on the basis of his representation that he was a graduate, which was an essential condition for direct recruitment in the CBI. The appellant however, was not in a position to produce certificates in this regard and sought to evade the requirement. The CBI doubting his integrity, instead of permanently absorbing him, repatriated him to his parent department. The Supreme Court while upholding this action held that a deputationist cannot assert his claim for permanent absorption in the department to which his services are lent, unless it is based upon a statutory rule, regulations, or order having the force of law. A deputationist can always and at any time be repatriated to his parent department, even at the instance of the borrowing department. There is no vested right in such a person to continue for long on deputation or get absorbed in the borrowing department.
State of Punjab v. Kmlash Nath : 1989CriLJ813 - Wherein the Supreme Court has explained that the term 'conditions of service' may be classified as salary or wages including subsistence allowance during suspension, periodical increments, pay scale, leave, provident fund, gratuity, confirmation, promotion, seniority, tenure or termination of service, compulsory or premature retirement, superannuation, deputation and disciplinary proceedings.
C. Beepathuma and Ors. v. Velasari Shankaranarayana Kadambolihaya and Ors. : [1964]5SCR836 : Has held that the doctrine of election may be stated thus: He who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument and must conform to all its provisions and renounce all rights that one inconsistent with it. To put it differently a person cannot approbate and reprobate the same transaction.
R.N. Gosain v. Yaskpal Dhir : AIR1993SC352 : In a case where the tenant after filing an undertaking of vacating the premises within one month could not be permitted to assail the eviction order. The court held that the law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election - a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn around and say it is void for the purpose of securing some other advantage.
Reliance is also placed on B.N. Nagarajan and Ors. v. State of Karnataka and Ors. etc. : (1979)IILLJ209SC .
18. Shri. S.Z.A. Qureshi the Additional Government Advocate appearing on behalf of the State reiterates the contentions on points of laws urged by Shri. P.S. Rajagopal and that the petitioner has no vested right as he was clearly on deputation for a tenure of two years. This tenure has however been curtailed by Government and such curtailment was well within its power. The petitioner continuing to have a lien over the post in his parent department, there is no illegality in the impugned notification.
19. The counsel has produced the original records pertaining to the case. And would point out that though the Selection Committee after having interviewed the petitioner and other candidates for the post of Director, unanimously chose the petitioner for the post, the State Government however chose to appoint the petitioner on deputation for a limited period of two years. This having been accepted by the petitioner without demur and never having insisted on the further terms and conditions of such deputation - even this was incomplete. He would further draw attention to the fact that there have been complaints and protests of various acts of malfeasance and misfeasance on the part of the petitioner, from inception, during his tenure as Director and the Government having initiated an enquiry has obtained a preliminary report which is adverse to the petitioner. Therefore there is no merit whatsoever in the writ petition and the same be dismissed.
20. Shri. Shiruguppi counsel appearing for KIMS -which was impleaded as a party at the instance of the court, pleads that since KIMS was not in a position to submit written pleadings at short notice - would limit his argument to contend that the State Government being the appointing authority insofar as the post of Director is concerned KIMS would be bound by the order of the Government. The petitioner was not appointed pursuant to his selection at the interview conducted by the Selection Committee but on the basis of Annexure-'B' to the petition which is clearly on deputation.
21. By way of reply, Shri. M.S. Bhagwat for petitioner would submit that before the order of appointment was made on 13.5.2005, he was holding the post of Head of the Department and, the post of the Director, to which he has been appointed, was higher than the other post. Hence, the contention that he has been deputed, would not be tenable. He would place reliance on Rule 17 of the Karnataka Civil Services (General Recruitment) Rules, 1977 (hereinafter referred to as 'the Recruitment Rules' for brevity) in support of his contention that the Government may appoint an officer to a post of an equivalent grade by transfer or deputation and therefore, the post of the Director being higher than the post held by him earlier, he could not have been sent on deputation to a higher post, which is as provided under the (iv) proviso to the said section, which reads as follows: -
Provided that appointment under this sub-clause shall not be -
(1) to a post lower than that held by such officer save with his consent;
(2) to a post higher than the post held by such officer except when the Government is of the opinion that there is no other equivalent post to which such officer can be appointed;
The second reason which would militate against such a contention, namely, that he has not been appointed to the post of Director but has only been sent on deputation, is the fact that the petitioner is paid the AICTE scales of pay and the contention on behalf of the respondent No. 2 that since the scale of pay of the petitioner has remained as would be payable in his earlier post, and therefore, was an indication that he continued to be a Government servant, is incorrect. The AICTE scales of pay are not the same as the scales of pay of Government servants and this is further verified by the fact that the petitioner has been paid a special pay of Rs. 1,000/- per month, which is in terms of the Government Order dated 1.6.1999, extending the AICTE scales of pay to the petitioner. And, in furtherance thereof, the petitioner has been drawing special pay as the Director of KIMS at the rate of Rs. 1,000/- per month. In this regard, the counsel for the petitioner has produced documents such as copy of the statement showing withdrawal of special pay dated 4.3.2006 and the pay slip indicating such additional special pay, under a memo dated 7.7.2006. The sequence of events leading up to the order at Annexure 'B' would clearly indicate that the petitioner's application for the post of Director and his subsequent participation at the interview and the admitted position by the State that the Selection Committee unanimously chose the petitioner for appointment as Director, would render the express order that he has been sent on deputation is entirely irrelevant. Deputation would not have warranted the issuance of a notification for filling up the post of Director and inviting the petitioner for an interview, if the petitioner was being really sent on deputation. The counsel would submit that the restriction of the tenure to two years, was squarely opposed to the rule in this regard and when the petitioner was appointed after selection by open invitation, the appointment is in terms of the rule and the order at Annexure 'B' restricting the tenure to two years, is inconsistent with the rule and the tenure will necessarily have to be treated as provided under the rule. He would also contend that the plea of estoppel, sought to be raised by the counsel for the respondent No. 2, would not apply in so far as the challenge to Annexure 'B', wherein the appointment, of the petitioner is stated to be on deputation, and restricting the term for two years being challenged at this point of time, on the footing that since the petitioner had accepted the express terms as contained in Annexure 'B', he was estopped from doing so. In this regard, he would submit that there can be no estoppel against a statute and since the rule clearly lays down that the term shall be by five years, it was not open for the Government to restrict the appointment to two years after having selected him by open advertisement.
22. In so far as the averments as regards enquiry proceedings having been initiated against the petitioner is concerned, the same is at the instance of disgruntled elements, who have been carrying on a slur campaign through the Press and Media against the petitioner. It is not relevant at this point of time having regard to the fact that such persons are even now seeking to lay the ground work by generating enquiry reports to malign the petitioner and that the petitioner has no notice of any such proceedings at this juncture. It is only during the pendency of these proceedings that the petitioner has sought for further particulars of the so-called enquiry having been conducted at the instance of the State Government.
23. He places reliance on the following authorities:
Government of Andhra Pradesh and Ors. v. M.A. Kareem and Ors. etc 1991 Supp (2) SCC 183: In support of his contention that there can be no estoppel against a statute and Elson Machines Pvt. Ltd. v. Collector of Central Excise 1989 Supp (1) SCC 671 also in this regard.
Dr. L.P. Agarwal v. Union of India and Ors. (1992) 3 SCC 526: wherein the appellant was appointed as a Director of All India Institute of Medical Sciences with effect from February 18, 1979. The appointment order stated that he was appointed as Director 'for a period of five years, or till he attains the age of 62 years, whichever is earlier'. He was sought to be retired from service on November 24,1980, by giving him three months' pay and allowances, in lieu of notice. The Recruitment Rules governing the post of Director, however provided for method of recruitment and the post was a tenure post for five years. The Supreme Court held that the Recruitment Rules of the Institute provide for a clear tenure. The appointment does not cease to be a tenure post. 'Tenure' means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure, unless curtailed on justifiable grounds. Such a person would not superannuate, but would only go out of the office on completion of his tenure. The question of retiring him prematurely, does not arise. The concept of superannuation is alien to tenure appointments which have a fixed life span.
The counsel for the petitioner would submit that the said judgment would apply on all fours to the present case on hand.
24. The further contention on the part of the respondents that respondent No. 2 has taken charge pursuant to Annexure 'E' is also not tenable in view of Rule 12 of the Karnataka Civil Service Rules, which reads as follows:
12. Unless, for special recorded reasons which must be of a public nature, the authority under whose orders the transfer takes place, permits or requires it to be made in any particular ease else where, or otherwise, the charge of an office must be made over at its headquarters, both the relieving and the relieved Government Servants being present.
In view of the tenor of the above rule, unless there was handing over and taking over charge, it cannot be presumed that the respondent No. 2 has taken charge since the petitioner was not even in station when the respondent No. 2 is said to have allegedly taken charge. Hence, on these contentions, he would submit that the petition deserves to be allowed.
25. On these rival contentions, on the question of maintainability, to hold whether the present writ petition is maintainable or if it is only the Karnataka Administrative Tribunal which would have jurisdiction, would require this Court to address a question whether the petitioner continues to be a Government servant or he is an employee of KIMS - respondent No. 3, as is apparent from the material on record. Though it transpires that the petitioner had responded to the notification inviting applications for the post of Director and he was interviewed by the Selection Committee specially constituted for the purpose of appointing a candidate to the post of Director and even though the said Selection Committee had unanimously recommended the name of the petitioner for appointment as Director, the Government, for reasons best known to it, which are not disclosed in the records that are produced, has chosen to appoint the petitioner not pursuant to the recommendation of the Selection Committee, but on deputation for a tenure of two years in terms of Annexure 'B', as is clearly expressed therein. It would have been open for the petitioner to have contended that the order of appointment is clearly erroneous as the petitioner was appointed by an open invitation and therefore, in terms of the rule, it could not be on deputation or for a tenure of two years only. The petitioner, however, chose to accept the said appointment without demur and even if it could be said that there is no estoppel against statute, by accepting the same for over a period of ones year, the petitioner would be estopped from challenging the said order, by waiver. In the result, it would follow that the petitioner continued to be a Government servant, who was on deputation as the Director of respondent No. 3, and the curtailment of such deputation was well within the power of the Government. In the instant case, Annexure 'B' clearly did state that the terms and conditions of the deputation would be communicated separately. However, it is not the petitioner's case that any such communication was forwarded and as contended by the respondents, it would be possible to hold that the deputation itself was not complete. Hence, it can be said that the petitioner continues to be a Government servant, and in the result, would necessarily have to approach the Tribunal under the Administrative Tribunals Act, 1985 in respect of his grievance, if any, as is sought to be urged in the present petition. Having answered the first question in the affirmative, it would not be appropriate to address other contentions on merits.
26. The writ petition is hence without jurisdiction and is accordingly dismissed.