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2009 DIGILAW 507 (GAU)

Makam Kishore Kumar v. Union of India

2009-07-30

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. The writ Petitioner joined as Assistant Executive Engineer in the General Reserve Engineering Force (here-in-after referred to as GREF) against a regular post in the year 1991. According to the Petitioner, as per GREF Rules, after rendering qualifying service for a period of 5 (five) years, an Assistant Engineer becomes eligible to get promotion to the next higher post of Executive Engineer. Though the similarly recruited officers, in other Central Government Services, got promotion to the rank of Executive Engineer after completion of 5 (five) years of service as Assistant Executive Engineer, the Petitioner had to languish in the rank of Assistant Executive Engineer even after rendering 9 (nine) years of service. Failing to get promotion in his parent department, the Petitioner, in response to an advertisement, applied for a post of Assistant Professor in the College of Military Engineering, Pune and appeared in the selection process conducted by the Union Public Service Commission. As the Petitioner got selected for the said post, he approached the authority in his parent department seeking release on lien for joining in the post of Assistant Professor in the College of Military Engineering, Pune. In the said application for lien, the Petitioner clearly mentioned that he sought for lien to join another Government Department on the ground that his due promotion to the rank of Executive Engineer in GREF was not given to him and that he was compelled to seek the lien aforesaid for betterment of his career prospect. According to the Petitioner, subsequently he came to know that during the pendency of his application for lien, his name was considered, by the Departmental Promotion Committee in the parent department, for his promotion to the rank of Executive Engineer, but this information was not made available to him and thus he was denied the legitimate opportunity of apprising his option. As requested, the Petitioner was released on lien with effect from 01.08.2000. Subsequently, the said lien was extended for another year i.e. up to 31.08.2003. The Director General of Border Roads vide letter No. 16060/SL/DGBR/76/EID dated 13.11.2002 published a seniority list of Executive Engineers (Civil) in which the Petitioner's name was not shown. As requested, the Petitioner was released on lien with effect from 01.08.2000. Subsequently, the said lien was extended for another year i.e. up to 31.08.2003. The Director General of Border Roads vide letter No. 16060/SL/DGBR/76/EID dated 13.11.2002 published a seniority list of Executive Engineers (Civil) in which the Petitioner's name was not shown. The Petitioner, not finding his name in the seniority list submitted a representation to the Respondent No. 2 i.e. the Secretary, Border Roads Development Board on 31.12.2002 seeking inclusion of his name in the seniority list of Executive Engineers (Civil). In response to the Petitioner's said representation, the Border Roads Development Boards, vide letter No. F.BRDB04/1393/2003/GE-1 dated 19.05.2003, assured the Petitioner that his promotion will be considered only after his return to the parent cadre. Accordingly, before the expiry of his extended period of lien, the Petitioner, on 21.07.2003, reverted to the parent department. After his return, the Petitioner approached his parent department with a request to promote him with effect from February, 2001 i.e. the period when his batch mates were promoted. But to the surprise of the Petitioner, the authority had informed him that he could not be promoted in the vacancies for the year 2003-2004. However he was assured that his case would be considered against the vacancy of 2004-2005. 2. Being aggrieved, the Petitioner requested the authority to consider his case for promotion on the basis of the panel drawn for the year 2000-2001 as he was in the cadre strength of the organization on 01.01.2002. According to the Petitioner, the authority concerned kept him in dark about inclusion of his name in the panel prepared for promotion to the post of Executive Engineer during the year 2000-2001 and thus deprived him from exercising his option to revert to the parent cadre to avail the benefit of promotion. Hence the Petitioner has come up with this writ petition seeking relief in the nature of a direction to the Respondents to restore his seniority in the original inter se seniority list of Executive Engineers (Civil) as on 01.08.2002 and also for a direction to correct his seniority position. 3. Notice being issued, Mr. Anupam Chattapadhyay, Joint Director (Administration) OIC RLC(ES)C/099 APO filed on affidavit-in-opposition on behalf of all the Respondents. 3. Notice being issued, Mr. Anupam Chattapadhyay, Joint Director (Administration) OIC RLC(ES)C/099 APO filed on affidavit-in-opposition on behalf of all the Respondents. Admitting the Petitioner's contentions, the deponent stated that the Petitioner was considered and found eligible for promotion by the Departmental Promotion Committee and that his name was shown in the panel. The deponent further contended that, the proceeding of the Departmental Promotion Committee being maintained as highly confidential matter, there was no scope for informing the Petitioner regarding the decision of the Departmental Promotion Committee. It is further contended that as the Petitioner had gone on lien for 2 (two) years, his case for promotion to the Grade of Executive Engineer (Civil) for the period 2000-01 to 2003-04 could not be considered and that after his return to the original cadre his case was considered by the Departmental Promotion Committee for the period from 2004-05 and accordingly he was promoted to the Grade of Executive Engineer by an order vide No. BRDB/04/1568/2003/GE-1 dated 27.09.2004. According to the contesting Respondents, as the Petitioner went on lien, he was not in the cadre strength in the parent department as on 1st January, 2002 and as such his case could not be considered for promotion. 4. I have heard Mr. S. Bhattacharya, learned Counsel for the Petitioner and Mr. H. Rehman, learned Assistant Solicitor General Govt. of India appearing for the Respondents. Reliance has been placed on the decisions held in the following cases:- (1) State of Punjab and other vs. Inder Sing and other, (1997)8 SCC 372 (2) Mastan Singh vs. State of Haryana and other, 1994(1) SLR 103 (3) Kaushal Kishore Singh vs. Deputy Director of Education and other, AIR 2002 SC 488 (4) Satyanarayan Pareek vs. State of Rajasthan and another, (1996)8 SCC 654 (5) Triveni Shankar Saxena vs. State of U.P. and other, 1992 Supp (1) SCC 524 5. Mr. Bhattacharya, learned Counsel of the Petitioner has submitted that as the Petitioner went on lien, it was the duty of the Respondents to give him an opportunity to exercise his option for reverting to the parent department at the time of consideration of his promotion. The learned Counsel has also submitted that as the Petitioner had lawfully gone on lien, he was entitled to get all the benefits, which accrued to him in the parent department, during the said period of lien. 6. The learned Counsel has also submitted that as the Petitioner had lawfully gone on lien, he was entitled to get all the benefits, which accrued to him in the parent department, during the said period of lien. 6. Refuting the said argument, advanced by the learned Counsel for the Petitioner, Mr. Rehman, learned Assistant Solicitor General appearing for the Respondents submitted that the proceeding of the Departmental Promotion Committee being a confidential one, there was no scope to inform the Petitioner about the development regarding his promotion and that the Petitioner having gone on lien to an ex-cadre post was not entitled to get promotion during the lien period and that he was entitled to promotion in due course only after his return to the cadre post. 7. Admittedly, the Petitioner joined the College of Military Engineering at Pune after obtaining lien of 2 (two) years and the said lien was extended for another 1 (one) year. From the pleadings of the parties it is found that when the petition for lien was pending, his case for promotion was referred to the Departmental Promotion Committee and the Departmental Promotion Committee had recommended his name for promotion in the parent department. Subsequently, after the release of the Petitioner on lien with effect from 01.08.2000 and during the subsistence of the said lien, on the basis of the recommendation of the said Departmental Promotion Committee, the batch mates of the Petitioner were promoted to the posts of Executive Engineer without promoting the Petitioner to the next higher grade on the ground that he had joined an ex-cadre post on lien. The word "lien" means "binding" and it has originated from the Latin ligament. In the case of Triveni Shankar Saxena vs. State of U.P. and other, reported in 1992 Supp (1) SCC 524 the Apex Court held:- Lien means the life of a government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. In Halsbury's Laws of England, (4th Edition Volume 28 at page 221, Para 502) it is stated: In its primary or legal sense "lien" means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims are satisfied. In Halsbury's Laws of England, (4th Edition Volume 28 at page 221, Para 502) it is stated: In its primary or legal sense "lien" means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims are satisfied. In the said decision the following reference has been made from Stroud's Judicial Dictionary (5th Edition Volume 3 at page 1465) Lien (1) A lien--(without effecting a transference of the property in a thing)--is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general. So, as regards Scotland, 'lien' is defined as including 'the right of retention [Sale of Goods Act, 1893 (c. 71), S. 62] or it shall mean and include right of retention [Factors (Scotland) Act, 1890 (c.40), S. 1]; Great Eastern Railway Co. vs. Lord's Trustees reported in (1909) ACC 109; 78 LJ KB 160. 8. In the case of Satya Narain Pareek vs. State of Rajasthan and another, as reported in (1996)8 SCC 654 the principle of survival of lien of an employee, in the parent department, was considered and it was held that an employee serving in another department on deputation, after obtaining lien retains the lien in the parent department and on his going back to the parent department would be entitled to his claim in his right in that department. 9. In view of the above principle, as the Petitioner joined the ex-cadre post after obtaining lien against his substantive post in the parent department, he was entitled to all the benefits, which accrued to him in the parent department during the period of his absence on lien. There is no dispute that the Petitioner's case was considered for promotion and as per proposal of the Departmental Promotion Committee, the Petitioner, having been found eligible for promotion, was empanelled in the eligibility list. The Respondents' contention was that as there was no provision to give intimation to any officer at any stage before issuing the promotion order, the Petitioner was not informed about the proposal for promotion. In Swamy's Establishment and Administration, the procedure for promotion of officers on deputation and the promotion of officers serving on an ex-cadre post at his own volition has been mentioned as follows:- Promotions of officers on deputation. 17.4.1. In Swamy's Establishment and Administration, the procedure for promotion of officers on deputation and the promotion of officers serving on an ex-cadre post at his own volition has been mentioned as follows:- Promotions of officers on deputation. 17.4.1. If the panel contains the name of a person who has gone on deputation or on foreign service in the public interest including a person who has gone on study leave, provision should be made for his regaining the temporarily lost seniority in the higher grade in his return to the cadre. Therefore such an officer need not be reconsidered by a fresh DPC, if any, subsequently held, while he continues to be on deputation/foreign service/study leave so long as any officer junior to him in the panel is not required to be so considered by a fresh DPC irrespective of the fact whether he might or might not have got the benefit of pro forma promotion under the NBR. The same treatment will be given to an officer included in the panel who could have been promoted within the currency of the panel but for his being away on deputation. 17.4.2. In case the officer is serving on an ex-cadre post on his own volition by applying in response to an advertisement, he should be required to revert to his parent cadre immediately when due for promotion, failing which his name shall be removed from the panel. On his reverting to the parent cadre after a period of two years he will have no claim for promotion to the higher grade on the basis of that panel. He should be considered in the normal course along with other eligible officers when the next panel is prepared and he should be promoted to the higher grade according to his position in the fresh penal. His seniority, in that event, shall be determined on the basis of the position assigned to him in the fresh panel with reference to which he is promoted to the higher grade. (If the panel contains the name of an officer on study leave, he should be promoted to the higher post on return from the study and not on the basis of the date of promotion). 10. (If the panel contains the name of an officer on study leave, he should be promoted to the higher post on return from the study and not on the basis of the date of promotion). 10. At Clause 17.4.2 aforesaid it has been clearly mentioned that the officer serving on an ex-cadre post on his own volition by applying to an advertisement, he should be required to revert to his parent cadre immediately when due for promotion, failing which his name shall be removed form the panel and on his reverting to the parent cadre after a period of two years he will have no claim for promotion to the higher grade on the basis of the panel. In the present case, the Petitioner had joined an ex-cadre post on his own volition in response to an advertisement and he was on lien. Therefore, he should have been required to revert to his parent cadre when his promotion was due. In the event of his failure to do so, his name was liable to be removed from the panel. At paragraph 12 of the writ petition, the Petitioner very clearly stated that as his due promotion to the rank of Executive Engineer in GREF was not given to him, he was compelled to seek lien to join the College of Military Engineering at Pune for betterment of his career prospect. In reply to the said contention, the Respondents in their affidavit-in-opposition at paragraph 8 preferred not to offer any comment. As the Respondents failed to specifically deny the said specific averment of the Petitioner, it stood established that the Respondents had the knowledge and information that the Petitioner sought the lien aforesaid only for want of promotion in the parent department, thereby meaning that had there been promotion in the parent department, the Petitioner would not have gone on lien. Fact remains that process for promotion was initiated during the pendency of the Petitioner's petition for lien and the panel of the eligible officers including the name of the Petitioner was prepared during the subsistence of the said lien. Apparently, as claimed by the Respondents, the process of promotion being a confidential one, the Petitioner had no scope to know, before publication of the list of the promoted officers/gradation list, that the Petitioner's name was there in the panel. Apparently, as claimed by the Respondents, the process of promotion being a confidential one, the Petitioner had no scope to know, before publication of the list of the promoted officers/gradation list, that the Petitioner's name was there in the panel. In view of the above, for ends of justice it was the duty of the Respondents-authority to inform the Petitioner by offering an opportunity to exercise his option to revert to the parent cadre immediately to avail the benefit of promotion. But on the plea of maintaining confidentiality, the Respondents-authorities failed to inform the Petitioner that he was found eligible for promotion and that he should revert to the parent department to join the promoted post. In view of obtaining the lien, the Petitioner did not loose his right to get the lawful benefits accrued to him in the parent department. Therefore, ends of justice demanded that after completion of the process of promotion and finally preparing the panel on the basis of the recommendation of the D.P.C., the Respondents should have informed the Petitioner that he was found suitable/eligible for promotion and thus option should have been given to him to revert to the parent department. In view of failure to do so, I find no substance in the Respondents' contention that the Petitioner, having joined an ex-cadre post on lien, was not entitled to get the promotion along with his batch mates. Even if the Petitioner was holding an ex-cadre post, during the subsistence of the lien, he was entitled to get the benefits of promotion if found eligible as per rules. This being the position, the Petitioner's seniority should have been maintained as per the position of the Petitioner in the panel prepared for promotion. 11. In the light of the above discussions, I find sufficient merit in this writ petition. Accordingly, the writ petition is allowed directing the Respondents to correct the original seniority list as per rules. No costs. Petition allowed.