K. Premananda Shetty vs State of Karnataka

Prior to 26-9-1974, the petitioner a permanent official of the Drugs Control Department of Government, was working on deputation in the Directorate of Health and Family Planning services, as Incharge Deputy Director (Pharmacy) and in Notification No. HMA 347 PTD 78 dt. 26-9-1974 (Exhibit-D) Government converted the said incharge arrangement into an officiating arrangement and he thus became a Deputy Director (Pharmacy) on an officiating basis. In Notification No. HMA 233 MSD 74 dt. 28-9-1974 (Exhibit-E) Government transferred and posted the petitioner as Deputy Director (Medical Stores) on his own pay in the place of one Dr. Muddanna and on that basis, the petitioner was working eversince 28-9-1974, in the Medical Stores of the Health Department. In Notification No. HMA 85 PTD 77 dt. 5th May 1977 (Exhibit-G) Government has repatriated the petitioner to his parent Department and has posted him as Assistant Drugs controllers, a Post lower to the post of Deputy Director. In this petition, under Art. 226 of the constitution, the petitioner has challenged this Notification in so far as it directs his posting to a lower post only. While issuing rule nisi on 11-5-1977 this court has stayed the operation of the same which was continued ever since then.

The petitioner has asserted that in the guise of repatriation, he has been reverted to a lower post in violation of Art. 311 of the constitution.

In its return, the respondent has asserted that petitioner was not eligible to be promoted to the posts of Superintendent and Deputy Director in the Drugs control Department and therefore, the reversion repatriation and posting as Assistant Drugs controller were justified. Secondly the respondent has urged that there was no vacancy in the post of Deputy Director and therefore, the petitioner has been posted as an Assistant Drugs controller which was the only available post in the Drugs Control Department.

Sri M. Narayanaswamy learned counsel for the petitioner contends that in the guise of repatriation, it was not open to Government to revert the petitioner from a high post to a lower post.

Sri H.L. Dathu, learned High Court Government pleader, appearing for respondent, has sought to justify the impugned order on every one of the grounds urged in its return.

As on the date the petitioner was ordered to be repatriated to the Drugs control Department, he was working as a Deputy Director on officiating basis is not disputed. At any rate the notifications dt. 26-9-1974 and 28-9-1974 (Exhibits D and E) issued by Government abundantly makes that position clear.

The petitioner does not dispute the power of Government to repatriate him to his parent department. Even otherwise Government had power to repatriate the petitioner to his parent department. So also the power of Government to revert the petitioner who was only holding the post of a Deputy Director on Officiating basis to the lower post, if the facts and circumstances warranted cannot be disputed. But all these powers cannot be used as enabling Government to revert a Civil servant from a higher post to a lower post while repatriating him to his parent Department. At any rate, there should at least be a prior or simultaneous order made reverting such Civil Servant from a higher post to a lower post setting forth the circumstances that necessitated such reversion to enable an examination of the same by this Court. In the absence of all these minimum requirements, it is not possible to hold that in the guise of repatriation to the parent Department, Government can revert a Civil Servant from a higher post to a lower post.

The anterior or a simultaneous order to revert the petitioner has not been made by Government is not in doubt. Even the impugned order does not say in express terms that the petitioner is reverted from the post of Deputy Director to a lower post much-less any reason in justification of the same. In the guise of repatriation or on transfer there can-not be reduction in rank of a Civil Servant is well settled and does not require reference to authorities. In this view, the impugned order made by Government resulting in reduction in rank of the petitioner without any reason is liable to be quashed.

So far as the first reason given by Government to sustain the reversion that there was only the post of Assistant Drugs Controller in the Drugs Control Department on the date of repatriation, has only be stated to be rejected. On any principle, this is hardly a ground to revert the petitioner to a lower post in the guise of repatriation without examining the necessity and applying the principles of last come first go. I have therefore no hesitation in rejecting this ground urged by the respondent.

Even the second reason stated by the respondent, viz., that the petitioner was not suitable to hold the lower post and his earlier promotions were all on officiating basis and were subject to review, had hardly any merit. Assuming that the petitioner had been promoted on officiating basis subject to review it was undoubtedly open to Government to exercise its power to review the earlier promotions and pass an appropriate order in that behalf. But before making any such order, it was not open to Government to revert the petitioner in the guise of repatriation. From this, it follows that the second ground urged by the respondent to sustain the order is also untenable.

In the light of my above discussion, I hold that the impugned order which is manifestly illegal, is liable to be quashed. I, therefore, quash the impugned order. But this order does not prevent the respondent from reverting the petitioner and repatriating him to his Department in accordance with law.

Writ Petition is disposed of in the above terms. But in the circumstances of the case, I direct the parties to bear their own costs.

Let this order be communicated to the respondent within 15 days from this day. Let a copy of this order be also furnished to the H.C.G.P. within the same time.