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2018 DIGILAW 62 (MAN)

R. K. Lalit Singh v. State of Manipur

2018-12-17

KH.NOBIN SINGH

body2018
JUDGMENT : Kh. Nobin Singh, J. 1. Heard Shri Kh. Tarunkumar, learned Advocate for the petitioner and Shri Y. Ashang, learned Government Advocate for the State respondents. 2. By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari to quash and set aside the order dated 07.03.2018 and to direct the respondents to allow the petitioner to continue as the Registrar of NIT, Manipur till the completion of 5 (five) years term as prescribed for the said post. 3.1. Facts and circumstances as narrated in the petition, are that on 05.06.1994, the Deputy Secretary, Department of Personnel and Training, Ministry of Personnel Public Grievances and Pensions, Government of India issued an Office Memorandum as regards the transfer on deputation/foreign service of Central Government employees to ex-cadre posts under the Central Government/State Government/Public Sector undertakings/Autonomous Bodies etc. wherein there are provisions which provide for tenure of deputation/foreign service and in particular, para 8.1 which provides that the period of deputation/foreign service shall be subject to a maximum of 3 (three) years in all cases except for those posts where a longer period of tenure is prescribed in a recruitment rules. 3.2. The post of Registrar in the NIT, Manipur is governed by a recruitment rules whereby it is to be filled up by way of direct recruitment failing which on deputation or on contract basis for a tenure period of upto 5 (five) years or till attaining the age of 62 years whichever is earlier or as fixed by the Government of India by orders issued in this regard from time to time. On 12.10.2012, the Director, NIT, Manipur issued a notification for filling up one post of Registrar laying down the essential qualifications and experience for the said post. As per the statute of NIT, Manipur, the Registrar is to be appointed for a fixed term of not exceeding 5 (five) years on deputation or contract basis. The petitioner being eligible for appointment to the post of Registrar, NIT, applied for it through proper channel. The petitioner was selected by a Selection/Interview Board for appointment to the post of Registrar in the NIT, Manipur under the recruitments rules as is evident from the letter dated 30.07.2013 of the Director, NIT whereby the petitioner was informed that he had been selected for appointment to the said post of Registrar. The petitioner was selected by a Selection/Interview Board for appointment to the post of Registrar in the NIT, Manipur under the recruitments rules as is evident from the letter dated 30.07.2013 of the Director, NIT whereby the petitioner was informed that he had been selected for appointment to the said post of Registrar. In the said letter, it has been clearly stated that the appointment to the said post of Registrar is on probation for a period of one year from the date of joining the said institute and the confirmation for the rest of the tenure period will be done only after the satisfactory completion of the probationary period. The tenure of the post of Registrar is for a period of 5 (five) years or till attaining the age of 62(sixty two) years whichever is earlier or as fixed by the Government of India in this regard from time to time. 3.3. After the petitioner having been selected for appointment to the post of Registrar, the Under Secretary (Hr. Edn.), Government of Manipur issued an order dated 26.08.2013 by which the petitioner was released from the Department of Higher Education, Government of Manipur so as to enable him to join the post of Registrar, NIT, Manipur. In the said release order, it has been clearly stated that the retention of his service lien shall be for one year extendable up to the period permissible under the rules. On 23.07.2014, the petitioner submitted an application to the Department of Higher Education, Government of Manipur praying for extension of his service lien, on the basis of which his service lien was extended for a term of one year vide order dated 23.08.2014. Similarly, the petitioner submitted another application dated 23.07.2015 for extension of his service lien which was duly allowed and accordingly, an order dated 16.09.2015 was issued by the Deputy Secretary (Hr.& Tech. Edn.), Government of Manipur extending his service lien for another one year as admissible under the rules. 3.4. On 30.08.2016, the Assistant Registrar, NIT, Manipur addressed a letter to the Director, Higher and Technical Education, Government of Manipur forwarding a letter submitted by the petitioner for extension of his service lien followed by the letters dated 23.08.2017 and 24.08.2017 and on receipt thereof, the Director of Higher Education, Government of Manipur addressed a letter dated 06.09.2017 to the Commissioner (Hr. & Tech. & Tech. Edn.), Government of Manipur for taking a decision as regards the retention of the service lien of the petitioner. On 07.03.2018, the Commissioner (Hr. Edn.), Government of Manipur issued an order to the effect that the service lien of the petitioner stood terminated w.e.f. 25.08.2016 as his service lien could not be extended beyond 3 (three) years. Being aggrieved by the said order dated 07.03.2018, the instant writ petition has been filed by the petitioner contending inter-alia that the post of Registrar, NIT, Manipur is a tenure post of 5 (five) years; that the impugned order being contrary to the Office memorandum dated 05.01.1994, is not sustainable in the eyes of law; that it is a legal settled position that the consent of the public servant is an essential condition for termination of his lien on a post and in the absence of a written request from the employee, his lien cannot be terminated; that the petitioner has not received any communication either from the respondent No. 1 or 2 rejecting his application seeking for extension of his service lien and that as per the FIR 14 A(d), a Government servant's lien on the post shall stand terminated on his acquiring a lien on a permanent post outside the cadre on which he is borne. 4. The stand of the respondents as indicated in the affidavit-in-opposition is that the post of Registrar, NIT was not held by the petitioner on deputation but on fresh appointment as is evident from the advertisement dated 12-01-2012 and the release order dated 26-08-2012 issued by the Department of Higher Education, Government of Manipur and his service lien was extended for two years vide orders dated 23-08-2014 and 16-09-2015 as admissible under the rules. The service lien of the petitioner was terminated as per the advice given by the Department of Personnel in terms of FR-13 & Government of India's order No. 2 (2) (5) which was not contradicted by the Law Department. In other words, the petitioner was neither appointed to the post of Registrar on deputation nor was he appointed on transfer but was appointed by way of direct recruitment. 5. During the course of hearing, it has been submitted by Shri Kh. In other words, the petitioner was neither appointed to the post of Registrar on deputation nor was he appointed on transfer but was appointed by way of direct recruitment. 5. During the course of hearing, it has been submitted by Shri Kh. Tarunkumar, the learned Advocate appearing for the petitioner that the post of Registrar, NIT being a tenure post, the petitioner was not appointed on regular basis and therefore, he did not acquire any lien to the post of Registrar. In terms of FR 14-A(d), a Government servant's lien on a post shall stand terminated on his acquiring a lien on another post. The provisions of FR 13 and 14-A(d) are to be read together. The petitioner has a right to continue to the post of Registrar, NIT. In support of his contention, he has relied upon two decisions rendered by the Hon'ble Supreme Court. The first is the one rendered in State of Haryana Vs. Shri Des Raj Sangar & anr, (1976) 2 SCC 844 wherein the respondent who was initially appointed as clerk in the Panchayat Department, was promoted and confirmed as Head Assistant. Later, he was appointed as Officer on Special Duty (Election) which was ex-cadre post and was re-designated as Panchayat Raj Election Officer with effect from 01-11-1961. On 13-04-1972, the said post of Panchayat Raj Election Officer was abolished and the respondent was directed to relinquish the charge immediately with the order that he would be entitled to pension/gratuity in accordance with rules. The respondent challenged the said order dated 13-04-1972 on the ground that the termination of his service was arbitrary and had no reasonable nexus with the object sought to be achieved and that since the post held by him was abolished, his lien got revived to the post of Head Assistant. The learned Single Judge held that the said order was arbitrary, unreasonable and violative of Article 14 and 16 of the Constitution and accordingly, the learned Single Judge did not go into the second contention. In the appeal, the Hon'ble Supreme Court, while allowing the appeal, held that the Government order abolishing the post of Panchayat Raj Election Officer did not suffer from any infirmity but also held that on the abolition of that post, the lien of the respondent on the post of Head Assistant stood revived. In the appeal, the Hon'ble Supreme Court, while allowing the appeal, held that the Government order abolishing the post of Panchayat Raj Election Officer did not suffer from any infirmity but also held that on the abolition of that post, the lien of the respondent on the post of Head Assistant stood revived. The relevant para 9 of the judgment and order is as under: “9. There appears to be, however, considerable force in the second contention advanced on behalf of the respondent that on the abolition of the post of Panchayati Raj Election Officer, his services should not have been terminated. According to clause (a)(2) of Rule 3.14 of Punjab Civil Services Rules, Vol. I, Part I as applicable to Haryana State, a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. According to clause (e) of that rule, a Government servant's lien which has been suspended under clause (a) of that rule shall revive as soon as he ceases to hold a lien on the post of the nature specified in sub-clauses (1), (2) or (3) of that clause. The above provisions were considered by us in the case of T.R. Sharma v. Prithvi Singh and it was held that in the absence of a written request by the employee concerned, the lien on the post permanently held by him cannot be terminated. It is nobody's case that any written request was made by the respondent for terminating his lien on the post of Head Assistant. As such, the lien of the respondent on the post of Head Assistant should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer was abolished.” Secondly, the decision in State of Rajasthan & anr. Vs. S.N. Tiwari & ors, (2009) 4 SCC 700 has been relied upon wherein the respondent was initially appointed as Investigator Grade-II in the Department of Economic and Industrial Surveys and the respondent and other similarly situated being found to be surplus, were sent to work in the Directorate of Medical and Health Service, Jaipur. Vs. S.N. Tiwari & ors, (2009) 4 SCC 700 has been relied upon wherein the respondent was initially appointed as Investigator Grade-II in the Department of Economic and Industrial Surveys and the respondent and other similarly situated being found to be surplus, were sent to work in the Directorate of Medical and Health Service, Jaipur. While the respondent was working as Statistical Inspector under the Medical and Health Department, he was appointed on purely urgent temporary basis as homeopathic doctor and he continued in that capacity till the age of superannuation. In relation to a letter dated 05-04-1991 of the Directorate of Economic and Statistics Department, the respondent vide his letter dated 08-04-1991 expressed his option to have lien continued in the statistical service. However, an issue came up before the High Court in writ petition being WP(C) No. 1663 of 1997 in which the High Court held that the respondent retained his lien in the Department of Economic and Statistics. The appeal preferred by the State of Rajasthan failed and the relevant paras thereof, are as under: “16. It is not the case of the State that the respondent employee was made permanent as a homoeopathic doctor in ESI Corporation. The respondent employee did not acquire any lien in ESI Corporation. The question of termination of lien does not arise since the respondent employee did not acquire a lien on a permanent post outside the cadre on which he is borne. 17. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post. 18. This Court in Ramlal Khurana v. State of Punjab observed that: (SCC p. 102, para 8) “8. ... Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed.” 19. It may not require a formal termination of lien over the previous permanent post. 18. This Court in Ramlal Khurana v. State of Punjab observed that: (SCC p. 102, para 8) “8. ... Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed.” 19. The term “lien” comes from the Latin term “ligament” meaning “binding”. The meaning of lien in service law is different from other meanings in the context of contract, common law, equity, etc. The lien of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed. (See Triveni Shankar Saxena v. State of U.P.) 20. The High Court upon appreciation of the material available on record found that lien of the respondent employee always continued in the Department of Economics and Statistics. His urgent temporary appointment as homoeopathic doctor vide order dated 3-12-1980 was not a substantive appointment for any definite period. The mere fact that the respondent employee continued to work for a long period itself would not result in loss of lien in the parent Department of Economics and Statistics. That even after the respondent employee joined as homoeopathic doctor in ESI Corporation in 1980 the parent department treated the respondent employee as belonging to its own cadre. We find no infirmity in the order passed by the High Court.” 6. On the other hand, Shri Y. Ashang, the learned Government Advocate has submitted that the petitioner was appointed as the Registrar, NIT by way of direct recruitment and since his service lien could not be extended for more than three years, his service lien was terminated by the State Government in terms of FR-13. 7. Since the learned counsels appearing for the parties have referred to and relied upon the provisions of the Fundamental Rules, the decision of this court will depend upon the interpretation thereof for the reason that they have relied upon the different provisions thereof. 7. Since the learned counsels appearing for the parties have referred to and relied upon the provisions of the Fundamental Rules, the decision of this court will depend upon the interpretation thereof for the reason that they have relied upon the different provisions thereof. The relevant provisions of the Fundamental Rules which are relevant for the purpose of deciding the issue involved herein, are as under: FR-9(13)- Lien means the title of a Government servant to hold on regular basis, either immediately or on the termination of a period or periods of absence, a post, including a tenure post, to which he has been appointed on regular basis and on which he is not on probation: Provided that the title to hold a regular post shall be subject to the condition that the junior most person in the grade will be liable to be reverted to the lower grade if the number of persons so entitled is more than the posts available in that grade. FR-9(30-A)- Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period. FR-13- A Government servant who has acquired lien on a post retains the lien on that post; (a) while performing the duties of that post; (b) while on foreign service, or holding a temporary post, or officiating in another post; (c) during joining time on transfer to another post, unless he is transferred along with his title to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the earlier post; (d) while on leave; and (e) while under suspension. Provided that no lien of a Government servant shall be retained: (i) Where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption; and (ii) On foreign service/deputation beyond the maximum limit admissible under the orders of the Government issued from time to time. FR-14-A (a)- Except as provided in Rule 13 and Clause (d) of this rule, a Government servant's lien on a post may in no circumstances be terminated, if the result will be to leave him without a lien upon a regular post. (b) Deleted. FR-14-A (a)- Except as provided in Rule 13 and Clause (d) of this rule, a Government servant's lien on a post may in no circumstances be terminated, if the result will be to leave him without a lien upon a regular post. (b) Deleted. (c) Deleted (d) A Government servant's lien on a post shall stand terminated on his acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which he is borne.” 8. From the aforesaid provisions, it is seen that the term “lien” is defined in FR-9(13) as the title of a Government servant to hold on regular basis to which he has been appointed on regular basis and on which he is not on probation. FR-13 provides that a Government servant who has acquired lien on a post, retains the same on that post while he is on foreign service or holding a temporary post or officiating in another post. FR-14-A provides that a Government servant's lien on a post may, in no circumstances, be terminated, if the result will be to leave him without a lien upon a regular post. A Government servant's lien on a post shall stand terminated on his acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which he is borne. The conjoint reading of the above provisions makes it very clear that a Government servant holds a lien on the post to which he has been appointed on regular basis and his lien on the said post will stand terminated only when he has acquired a lien on another post outside the cadre on which he is borne. Moreover, in the above two cases referred to in the preceding para and relied upon by the learned counsel appearing for the petitioner, the term “lien” has been examined and observed by the Hon'ble Supreme Court that it connotes the right of a civil servant to hold the post substantively to which he is appointed. Moreover, in the above two cases referred to in the preceding para and relied upon by the learned counsel appearing for the petitioner, the term “lien” has been examined and observed by the Hon'ble Supreme Court that it connotes the right of a civil servant to hold the post substantively to which he is appointed. It has also been held by the Hon'ble Supreme Court that the lien of a Government employee in service law is the right of the Government employee to hold a permanent post substantively to which he has been permanently appointed and when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. The lien of a Government employee over the previous post ends if he is appointed to another permanent post on permanent basis and in such a case, the lien of the employee shifts to the new permanent post. 9. In the present case, it is not in dispute that the petitioner was holding the post of Associate Professor in Economics on regular basis at G.P. Women's College and while he was working in that capacity, he applied for appointment to the post of the Registrar, NIT pursuant to a Notification dated 12-10-2012 issued by the Director, NIT. Admittedly, the post of the Registrar is for a fixed term of not exceeding 5 years and in other words, it is a tenure post and not a regular post. After the petitioner being duly selected, he was appointed as the Registrar, NIT to which he was permitted by the State Government to join vide letter dated 26-08-2013. At the time of granting the permission to join as the Registrar, NIT, the State Government was fully aware of the fact that the post of Registrar, NIT is a tenure post and the petitioner has a lien on the post to which he was initially appointed by the State Government. The stand of the State Government is that since the petitioner was appointed as the Registrar, NIT by direct recruitment, his lien could not be extended beyond three years in terms of FR-13. The stand of the State Government appears to be incorrect for certain reasons. The stand of the State Government is that since the petitioner was appointed as the Registrar, NIT by direct recruitment, his lien could not be extended beyond three years in terms of FR-13. The stand of the State Government appears to be incorrect for certain reasons. Firstly, it is nowhere mentioned in FR-13 that the lien of a Government servant who has been appointed against a tenure post and not on regular basis, cannot be extended beyond three years. Secondly, the petitioner was neither removed/dismissed from his service by the State Government in accordance with law nor did he tender his resignation from the post which he was holding on regular basis and since the relationship of master and servant between the petitioner and the State Government has remained un-severed, his lien can be said to have continued in the State Government. Moreover, during the period of two years of his retaining lien in the parent department, the petitioner ought to have been reverted to the parent department or he ought to have resigned from the post for which an undertaking to abide by the conditions, was to be taken from him which was not done at all. Thirdly, in terms of the provisions of the Fundamental Rules as well as the law laid down by the Hon'ble Supreme Court as aforesaid, the lien of the petitioner will have to continue as long as he does not acquire a lien on the new post. Having heard the learned counsels appearing for the parties, this Court is of the view that the petitioner does continue to have his lien in the State Government, as he has not acquired a lien on the new post, i.e., the Registrar, NIT. 10. In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the Government order dated 07-03-2018 issued by the Commissioner (Hr. & Tech. Edn.), Government of Manipur is quashed and set aside with no order as to costs.