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2008 DIGILAW 1262 (PAT)

Ashwani Kumar v. Airport Authority Of India

2008-08-28

AJAY KUMAR TRIPATHI

body2008
Judgment 1. Petitioner wants quashing of the communication dated 7.12.2004 and 8.3.2005 issued by respondents by virtue of which even though he has been taken back in employment by the respondent-Airports Authority of India, he has been posted and ordered to rank juniormost amongst the Senior Superintendent Engineering (Civil). The order dated 7.12.2004 contained in Annexure-1 and 8.3.2005 of Annexure-2 are under challenge in the present writ application. 2. The background of the present dispute is that petitioner initially, on the basis of a selection, was appointed in the engineering service of Airports Authority of India (hereinafter to be called, the Authority) in the year 2000. An appointment letter dated 19.12.2000 was issued in his favour based on which he joined on 10.1.2001 on the post of Senior Superintendent Engineering (Civil) and came to be posted at Patna Airport. Petitioner was given his seniority based on the merit list at the time of selection. Petitioner started working under the respondents but may be allured by better prospects sat in yet another examination conducted by the Union Public Service Commission in the year 2002. He succeeded in the said examination and was selected for appointment as Assistant Executive Engineer in Boarder Roads Organization. Petitioner thereafter made a conscious decision to join Boarder Roads Organization and he filed an application before the Executive Director (ER), Kolkata on 30.1.2004. This application is marked as Annexure-4 to this writ application. Petitioner requested for grant of lien as per the rules of the Authority to join the Boarder Roads Organization. It seems that the request of the petitioner was accepted and a communication was made to the local authority by the Executive Director that the petitioner could be granted lien as per rules to join the Boarder Roads Organization. Petitioners technical resignation was accepted with lien for two years with effect from 9.7.2004 as would be evident from letter dated 9.7.2004 contained in Annexure-7. 3. Armed with this letter petitioner joined the Boarder Road Organization but it seems within a few months of his joining he had a change of mind and he decided to resign in terms of Rule 5(1) of CCS (Temporary Service) Rules, 1965 which was accepted on 9th December, 2004. Release order in favour of the petitioner came to be issued as would be evident from perusal of Annexure-8. 4. Petitioner returned and decided to rejoin the Authority again. Release order in favour of the petitioner came to be issued as would be evident from perusal of Annexure-8. 4. Petitioner returned and decided to rejoin the Authority again. He made an application for joining his duties which has been accepted as would be evident from a letter dated 21.12.2004 contained in Annexure-9. But Annexure-9 stated that he would rank juniormost on re-joining as Senior Superintendent Engineering (Civil). Petitioner filed representation dated 26.5.2005 through proper channel and made a grievance. Respondents, it seems, were in no mood to oblige the petitioner and one order dated 7.12.2004 has come to be issued affirming earlier position that the petitioner would rank juniormost on rejoining as Senior Superintendent Engineering (Civil). 5. Petitioner contends that the decision of the respondents to treat him as juniormost in the rank has no legal basis or substance. It is a totally arbitrary decision taken against the interest of the petitioner. The petitioner no doubt resigned from the service of the respondents but he was granted lien for two years and he decided within months to come back to his original post and he should be placed back to the position where he left. There is no law or rule to place him at the bottom of the list of Senior Superintendent Engineering (Civil). Petitioners resignation was a technical resignation with a lien granted to him in terms of the rules and nowhere does the rule talk of the petitioner losing his seniority or other benefits on return to service. 6. Respondents have filed a counter affidavit and they have justified their decision contained in Annexure-1 as well as the rejection of the prayer of the petitioner to grant him seniority contained in Annexure-2. The basic facts are not disputed that petitioner did resign on a permission granted to him and was given a two years lien. When the petitioners resignation was accepted he can only claim benefit of the said lien by being permitted to rejoin but he has to rank junior to other persons in the cadre because for all practical purposes the relationship of master and servant had come to an end on acceptance of resignation of the petitioner. Since there is a rule which envisages granting lien, petitioner was extended that benefit. 7. Since there is a rule which envisages granting lien, petitioner was extended that benefit. 7. Counsel for the respondents has brought on record Airports Authority of India (General Conditions of Service and Remuneration of Employees) Regulations, 2003. My attention has been drawn to Regulation 13 of the said Regulation. Regulation 13 is quoted hereinbelow for ready reference: "13. Retention of lien of Airports Authority of India employees. (1) The Authority, at its discretion, may allow lien to an employee generally for a maximum period of five years consequent upon his/her appointment in another Public Sector Enterprises or Government Department on direct recruitment basis. (2) Regular employees who are selected for foreign appointment with United Nation Bodies and Governments of Developed or Developing Countries of Asia & Africa on the basis of selection/nomination may be allowed to retain lien on their regular posts for a period not exceeding three years. An undertaking shall be obtained from him/ her that he/she would return to India after the expiry of his/her tenure abroad as foreign assignment. If any such employee proceeds on foreign assignment and wishes to change the Organization other than the one to which he/she was selected/nominated, he/she should first come back to India to resume his/her duty in the Authority: Provided that during the period of lien, the Authority shall not take any liability of payment of leave salary, provident fund, gratuity, pension contribution, etc. and the employee himself/ herself has to make arrangements for such payments. (3) ................................................ 8. A plain reading of this rule would show that an employee does have the freedom of being allowed lien for a maximum period of 5 years consequent to his employment in another Public Sector Enterprises or Government Departments on a direct recruitment basis and based on the said rule petitioner was granted lien in his case for two years. But then this rule is silent on the issue as to what would happen to an employee if he decides to return to the Authority prior to expiry of the period of lien and rejoin service as is the case in the present application. There is no explanation on this issue offered either by the respondents or the rule. The rule is silent. 9. Learned counsel appearing on behalf of the petitioner submits that expression "lien" is well known and its implications are well understood in service jurisprudence. There is no explanation on this issue offered either by the respondents or the rule. The rule is silent. 9. Learned counsel appearing on behalf of the petitioner submits that expression "lien" is well known and its implications are well understood in service jurisprudence. In this regard he relies on some decisions of the Supreme Court in the case of Triveni Shankar Saxena V/s. State of U.P. and Others, (1992) Supp.1 SCC 524 and in the case of P.P.Muralidharan V/s. Zonal Manager, Food Corporation of India, AIR 1995 SC 670 . According to him, in view of the above decisions the petitioner cannot be denied the benefit of coming back to his position from where he was allowed to leave on lien by the respondents. 10. Learned counsel appearing on behalf of the respondents, on the other hand, disputes the legal proposition urged at the bar. According to him, since the petitioner had tendered resignation therefore the actual benefit of lien will not be available to him and there is a distinction here according to the counsel for the respondents which is reflected in a decision in the case of Dr. S.K. Kacker V/s. All India Institute of Medical Sciences, (1996)10 SCC 734 with emphasis on para 9. A similar view is also reflected in one of the earlier decision in the case of Ramlal Khurana V/s. State of Punjab, (1989)4 SCC 99 as well as in the case of Sri B. P. Sinha V/s. Union of India and Others, 2003(3) PLJR 641 . 11. The propositions in law urged at the bar are not the issue. The issue is whether in absence of any rule or any condition having been laid down by the respondents while allowing the petitioner the benefit of lien of two years in terms of Annexure-7 could the respondents be permitted to take a decision contrary to the interest of the petitioner? In the opinion of the court the respondents do not have freedom to take a decision detrimental to the interest of the petitioner in absence of any terms and conditions having been imposed upon the petitioner when he was allowed to leave service as well as in absence of any rule or legal provision which confers them the power to do so. If any condition would have been indicated while issuing Annexure-7 or if Rule 13 would have taken care of such a situation then the occasion for interference of this Court would not have arisen. But in absence of either of the above, the Court has certain reservation in holding that the respondents decision contained in Annexure-1 or 2 is backed by any rule in their favour. If Regulation 13 gives benefit to an employee to take lien up to 5 years then the employee is entitled to come back and rejoin the post which he left and he cannot be relegated to the bottom of the list on his rejoining. Both the decisions dated 7.12.2004 and 8.3.2005 contained in Annexures-1 and 2 deserve to be quashed. Petitioner would be entitled to be restored to his original seniority. 12. Before parting the Court would also like to record that the respondents Airports Authority of India would be well advised to bring about appropriate amendment in the Regulation and incorporate such conditions which they would like to impose on an employee seeking employment with another Public Sector Undertakings or Government Departments while claiming lien in terms of Regulation 13(1). Such a change may help them in future litigations which may arise. For the present the Court has reservation on the decision of the respondents due to silence in the regulation in this regard and absence of conditions in the order granting lien contained in Annexure-7. 13. The writ application stands allowed and both the orders dated 7.12.2004 and 8.3.2005 contained in Annexures-1 and 2 respectively are quashed.