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2009 DIGILAW 803 (KAR)

Gulbarga University v. L. R. Patil

2009-10-23

ARAVIND KUMAR, S.ABDUL NAZEER

body2009
Judgment :- Aravind Kumar, J. Though the matter is posted for admission, by consent of the Learned Counsel for the parties, it is taken up for final hearing, heard and disposed of by this order. 2. The present appeal is filed by Gulbarga University questioning the order passed in W.P.4066/06 dated 27.8.2008 whereunder the Learned Single Judge has directed the University to extend promotional benefits to the writ petitioner, by holding that the writ petitioner had a lien over the post of Office Superintendent. 3. The facts leading to the filing of this writ appeal which are not in dispute are as follows: a) Writ petitioner was appointed as Junior Assistant in Bangalore University on 10.8.1972 and promoted as an Assistant on 8.8.1973. Petitioner was transferred from Bangalore University to Gulbarga University on 21.7.1981 and later promoted as Assistant Office Superintendent in the year 1983, and during 1987 was promoted as Office Superintendent. b) During the year 1993, appellant University had notified for appointment by direct recruitment to the post of Assistant Registrar. The 1st respondent herein applied to the said post and at the time of order applying he sought permission of the University and accordingly, by order dated 8.4.1993, he was relieved from his duties with effect from 4.2.1993 permitting him to accept appointment as Assistant Registrar Gulbarga University, which order is at Annexure-D. Prior to this, the Syndicate had passed a resolution whereunder it was resolved to grant permission to the 1st respondent to take up appointed post namely, Assistant Registrar, and he was accorded benefit of past service for the purpose of pension and leave, as required under Rule 252(b) of Karnataka Civil Service Rules, (hereinafter referred to as K.C.S.Rs. for short). On granting of such permission, the 1st respondent herein reported to duty on 4.2.1993. c) The said selection was subject matter of challenge before this Court in W.P.5364/93 by persons who also claimed that they ought to have been selected. This Court by order dated 24.6.1998 allowed the writ petition and the order of appointment dated 4.2.1993 was quashed. The 1st respondent herein, not being satisfied with the said order, assailed the same in W.A. No.3261/98 and appellant also filed W.A. No.3246/98, challenging the said order. The writ appeal came to be dismissed by order dated 29.9.2000 and the order of the Learned Single Judge came to be confirmed. The 1st respondent herein, not being satisfied with the said order, assailed the same in W.A. No.3261/98 and appellant also filed W.A. No.3246/98, challenging the said order. The writ appeal came to be dismissed by order dated 29.9.2000 and the order of the Learned Single Judge came to be confirmed. d) The appellant University pursuant to the said order of dismissal of the writ appeal convened the meeting of the Syndicate on 29.11.2000 for implementation of the order of this Court and accordingly, by resolution No.42, quashed the appointment of the 1st respondent herein as Assistant Registrar and retained him in the previous post of Office Superintendent, Gulbarga University with immediate effect, by order dated 23.12.2000 which is at Annexure-H. e) The 1st respondent on joining duty as Office Superintendent submitted a representation to the University stating that he had joined the post of Assistant Registrar after tendering resignation to the post of Office Superintendent and in accordance with Rule 252(b), K.C.S.Rs. and as per note No.4 of Rule 20 of the said Rules, he had a lien over the earlier post namely, Office Superintendent from which post he had been relieved on account of his appointment as Assistant Registrar being quashed by this Court, he was entitled to that post with effect from 7.8.1992 and since two of his juniors who were in the same cadre of Office Superintendent were promoted to the post of Assistant Registrar during this interregnum period, i.e. between 1993 and 2000, and as such sought for the same benefit being extended to him retrospectively. f) It was the contention of the 1st respondent that on account of his representation not being considered, he was per forced to approach this Court in W.P.22838/01 and the Learned Single Judge by order dated 21.3.2005 had directed the University to consider the representation dated 16.1.2001 by passing appropriate orders in accordance with law. The said representation on being considered by the University, an order came to be passed on 8.2.2006 holding that the claim of the 1st respondent herein could not be considered retrospectively for the reasons assigned therein, which order is at Annexure-Q, and accordingly rejected the claim of the 1st respondent. The said representation on being considered by the University, an order came to be passed on 8.2.2006 holding that the claim of the 1st respondent herein could not be considered retrospectively for the reasons assigned therein, which order is at Annexure-Q, and accordingly rejected the claim of the 1st respondent. g) The 1st respondent being aggrieved by the said order of the University dated 18.2.2006 approached this Court in W.P.4066/06 for quashing the same and sought for the following reliefs: a) issue writ certiorari or other appropriate writ or order quashing the order bearing No.GUG/ADM/2005-06:3292 dated 8.2.2006 passed by the 1st respondent at Annexure-Q; b) issue writ of mandamus or other appropriate writ or order directing 1st respondent to restore seniority of the petitioner in the cadre of Office Superintendent from the date of his original appointment to the said post and consider the promotion of the petitioner to the cadre of Assistant Registrar w.e.f.3.2.1996 when his junior was promoted to the said cadre and c) pass such other order or orders as deems fit to grant under the circumstances of the above case in the interest of justice and equity. h) On service of notice, University filed its detailed statement of objections. On considering the rival contentions of the parties, the Learned Single Judge by order dated 27.8.2008 allowed the writ petition and held that the writ petitioner on being appointed to the post of Assistant Registrar, did not severe his lien over the post of Office Superintendent which he was discharging as on the date of his relieving. As such, it was held that the writ petitioner had a lien over the previous post and since he had superannuated, the prayer for promotion at par with his juniors was not required to be considered and it was ordered that writ petitioner has to be granted monetary benefits including pension and service benefits which he would have been entitled to if he had been promoted. It is this order which is now assailed in this appeal by the University. 4. It is this order which is now assailed in this appeal by the University. 4. Sri Veeresh B. Patil, Learned Counsel appearing for the appellant would contend that the petitioner on being appointed to the post of Assistant Registrar which was by direct recruitment, 1st respondent herein had been relieved from the post of Office Superintendent by order dated 4.2.1993 which was issued in pursuance to Rule 252(b) read with Official Memorandum No. FD/263/SRS/71 dated 22.1.1972 and as such writ petitioner did not have a lien over the earlier post namely, Office Superintendent. Elaborating his submissions, Sri Veeresh Patil would contend that even if Rule 20 is applied, it would extend only to leave and pension and nothing beyond it. He would add that having resigned from the post of Office Superintendent on being appointed as Assistant Registrar, the writ petitioner could not have a lien over the earlier post. Hence, he submits that order of the Learned Single Judge is erroneous and seeks the same to be set aside and the writ appeal be allowed. 5. Per contra, Sri Chaga Shetty, Learned Counsel appearing for the 1st respondent would submit that the writ petitioner did not submit his resignation since he was already serving in the same University and he was only relieved of his earlier post by order dated 4.2.1993 wherein it is specifically made clear in the relieving order which is at Annexure-D that relieving was in pursuance to Rule 252(b), K.C.S. Rs. He also submits that the said Rule when read in conjunction with Note No. 4 of Rule 20, it would be clear that the writ petitioner continues to have been over the earlier post for two reasons, viz., i) He was not permanently absorbed in the post of Assistant Registrar; and ii) Probation period of Assistant Registrar was not extended. He would contend that writ petitioner was relieved from the post of Assistant Registrar by virtue of the order of the Court and thus, he cannot be denied the benefit that accrues to him and it is in this context he prays that the rule has to be read in a beneficial manner to the employee. He would contend that writ petitioner was relieved from the post of Assistant Registrar by virtue of the order of the Court and thus, he cannot be denied the benefit that accrues to him and it is in this context he prays that the rule has to be read in a beneficial manner to the employee. He would also submit that his juniors had been promoted during the interregnum period, i.e. between 1993 to 2000 when he was working as Assistant Registrar, and as such he seeks for monetary benefits accruing to him on such promotion on par with his juniors since he has now retired. 6. Sri Changa Shetty would rely upon the decision of this Court in the matter of G.S. MAHADEVAIAH vs. STATE OF MYSORE (1968(2) Mys.L.J.34) and submits that facts decided in the said case re squarely applicable to the facts of this case, and hence, seeks dismissal of the writ appeal. 7. Having heard the Learned Counsel for the parties, the points that arise for consideration are: .(1) Whether the writ petitioner can retain lien over the post of Office Superintendent though he was relieved on 4.2.1993 as per Annexure-D? .(2) By virtue of relieving order dated 4.2.1993 and on joining as Assistant Registrar, whether there was severance of lien over the earlier post namely, Office Superintendent or not? 8. In order to appreciate the rival contentions, it would be beneficial to extract the relevant provisions which have been pressed into service by the Learned Counsel for the parties. Rule 252(b): Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service. Rule 20(a) Note 4: When a Government servant who has secured employment in one Department under the rules of recruitment , seeks employment on his own accord in another unit or Department or in another cadre or grade in the same Department, his lien on the original appointment shall be continued to be maintained provided he has already been confirmed in the post till he is permanently absorbed in the Department or cadre in which he is newly appointed and he shall be given the benefit of the past service for purposes of leave and pension. If, however, he is temporary in the first appointment, he will cease to have any connection with his old appointment but he shall be given only the benefit of the past service for leave and pension. Official Memorandum No.FD 262 SRS 71 dated 22.1.1972: ‘Under Rule 252(b) of KCSRs, resignation of an appointment to take up with proper permission another appointment whether permanent or temporary service in which counts in full or part is not resignation from public service. A question has been raised whether in such cases a separate sanction should be issued indicating that the resignation has been accepted under the above provision, in order to enable the audit/Administrative Officer to regulate the consequential benefits in the matter of pay fixation, carry forward of leave, pension, etc. The matter has been considered and it has been decided that in cases of the above type the order accepting the resignation should clearly indicate that the employee is resigning to join another appointment with proper permission and that the benefits under Rule 252(b) ibid will be admissible to him. The contents of the above order should also be noted in the Service Book of individuals concerned under proper attestation. The issue of any separate sanction is considered not necessary.’ 9. It is not in dispute that the writ petitioner, to further his prospects, applied for the post of Assistant Registrar of Gulbarga University in the year 1993 which was by way of direct recruitment. Since he was already working as Office Superintendent in he same University, it was obligatory for him to seek permission for being relieved, and this matter having been placed before the Syndicate and thereafter by order dated 8.4.1993 as per Annexure-D, he was relieved with effect from 4.2.1993 to accept another appointment as Assistant Registrar. He had in fact reported to duty as Assistant Registrar on 4.2.1993 itself. The said permission granted by the competent authority was in exercise of power under Rule 252(b), K.C.S.Rs. which mandates that resignation can be accepted to enable the applicant to take up, with permission another appointment and accordingly permission was granted to the writ petitioner. In the relieving order, it is nowhere mentioned that the writ petitioner would be entitled to have lien over the post of Office Superintendent. 10. The other provision in K.C.S.Rs. which protects an employee of any eventuality is Rule 20. In the relieving order, it is nowhere mentioned that the writ petitioner would be entitled to have lien over the post of Office Superintendent. 10. The other provision in K.C.S.Rs. which protects an employee of any eventuality is Rule 20. Note No.4 appended to Rule 20 protects an employee not being permanently absorbed in the appointed post or probation not being extended, with regard to pension and leave. The said rule does not specify or enlarge it in scope that the employee would have a lien over the post. This fact clearly shows that the writ petitioner was fully conscious of the facts and circumstances under which he had sought for being relieved and was accordingly relieved on 8.4.1993 w.e.f. 4.2.1993. Hence, the contention of the Learned Counsel Sri Change Shetty that note No.4 of Rule 20 would also contemplate of having a lien over the post itself, does not appeal to us and accordingly, the said contention is rejected. 11. Yet another factor which requires to be noticed is, in the order of retention dated 23.12.2000 (Annexure-H) while passing the order, University has pressed into service General Rule 17, K.C.S.Rs. to hold that writ petitioner had not maintained lien over the post of Office Superintendent with prior approval of competent authority, and as such the writ petitioner’s prayer was rejected. It is not the case of the writ petitioner that at the time of being relieved, he sought for permission to have lien over the post of Office Superintendent, or that such permission was granted by the authorities. When such being the factual position, it would not be just and proper for him to contend, after being relieved from the post of Assistant Registrar, that he had a lien over the earlier post by pressing into service note No.4 of Rule 20. As observed by us, Rule 20 no doubt, gives a right of lien to the employee, but it is restricted to the extent of leave and pension only and nothing more. Hence, the contention of the Learned Counsel for the respondent is rejected. 12. In view of this discussion, we hold on point No.(1) that the writ petitioner did not have a lien over the pots of Office Superintendent. 13. Hence, the contention of the Learned Counsel for the respondent is rejected. 12. In view of this discussion, we hold on point No.(1) that the writ petitioner did not have a lien over the pots of Office Superintendent. 13. Insofar as the right to lien over the post of Office Superintendent is concerned, we find that the writ petitioner on being appointed as Assistant Registrar, severance was automatic to the post of Office Superintendent. The only umbilical cord which was holding to the post was leave and pension and not to the post itself. Hence, even insofar as point No.(2) is concerned, there was severance of right over the post of Office Superintendent with effect from 4.2.1993 itself by order dated 8.4.1993 as per Annexure-C. 14. Insofar as the decision in the case of MAHADEVAIAH relied upon by the Learned Counsel for the respondent, we find that in the said case, the petitioner though had been appointed as Second Grade Typist in substantive appointment, his permanent absorption to the said post was postponed by reason of difficulties by the State and hence, it was held that he had a lien over the post namely that of SDC to which he was confirmed. It is specifically mentioned in the said judgment to the following effect: ‘That being so, and since it is not contended before us that there has been a cessation of the lien of the petitioner on the post of second division clerk, it is not necessary to issue any direction in that regard. That lien can terminate only on his permanent absorption in the post of a second grade typist; until then it continues unimpaired. In effect, their Lordships have held that in the said case, there was no cessation of the earlier appointment whereas in the instant case, we find from the records produced by the standing Counsel representing the University and the order dated 4.2.1993 (Annexure-C) and relieving order dated 8.4.1993 (Annexure-D) that there was cessation to the earlier post of Office Superintendent w.e.f. 4.2.1993 itself except to the extent of leave and pension. Hence, with utmost respect, we hold that the said judgment pressed into service by the Learned Counsel would be of no assistance to the writ petitioner in the instant case. 15. In view of the above, we pass the following order: ORDER The writ appeal succeeds and it is accordingly allowed. Hence, with utmost respect, we hold that the said judgment pressed into service by the Learned Counsel would be of no assistance to the writ petitioner in the instant case. 15. In view of the above, we pass the following order: ORDER The writ appeal succeeds and it is accordingly allowed. The order dated 27.8.2008 passed in W.P.4066/06 is hereby set aside, and consequently the writ petition stands rejected. Parties shall bear their respective costs.