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2019 DIGILAW 1413 (JHR)

Kumaresh Prasad Singh v. State of Jharkhand

2019-08-09

S.N.PATHAK

body2019
JUDGMENT : Dr. S.N. Pathak, J. 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the letter dated 09.08.2017 (Annexure-7) issued by respondent No. 4, whereby it has been informed to the petitioner that his request for acceptance of his joining against the post of Reader in Political Science in the service of the University has not been considered as the petitioner's leave with lien had expired on 14.04.2007. Petitioner has further prayed for a direction upon the respondent-University to allow him to join as Reader (now renamed as "Associate Professor") in Political Science with all consequential benefits in terms of the provisions contained under the Service Statutes as well as the provisions contained under the Jharkhand State Universities Act, 2000. 3. The factual exposition as has been delineated in the writ petition is that while the petitioner was working as Lecturer (Political Science) under Ranchi College, Ranchi, on recommendation made by the erstwhile University Selection Committee of the University, he was granted promotion to the post Reader (Political Science) w.e.f. 02.11.1986. During his posting as Reader, the erstwhile Bihar State University (Constituent Colleges) Service Commission, Patna invited applications from eligible candidates for consideration of their cases for appointment to the post of Registrar in different Universities within the State of Bihar and the petitioner, having fulfilled the requisite criteria, had applied for the said post. Thereafter, on the basis of his performance, his name was recommended for appointment against the post of Registrar in Veer Kunwar Singh University, Ara and said fact was communicated to the petitioner by the University vide its letter dated 19.03.2002. In response to the said letter, petitioner applied for extra ordinary leave with lien without pay before the Ranchi University, Ranchi and vide notification dated 03.04.2002, the lien for a period of two years was granted to the petitioner for enabling the petitioner to join the post of Registrar under Veer Kunwar Singh University, Ara (Bihar). After issuance of the said notification, the petitioner submitted his joining on 15.04.2002, which was duly accepted by the concerned authorities of the said University. 4. After issuance of the said notification, the petitioner submitted his joining on 15.04.2002, which was duly accepted by the concerned authorities of the said University. 4. Thereafter, upon completion of two years from the date of his joining, he made application before the Ranchi University, Ranchi for extension of the leave with lien and in response thereto, his lien with leave was extended from time to time and lastly, vide notification dated 09.05.2006, the Ranchi University extended the leave with lien for a further period of one year w.e.f. 15.04.2006. It transpires from the records that despite repeated representations/requests of the petitioner and ignoring the fact that the services of the petitioner has not been confirmed by the concerned University, no response whatsoever was given by the Ranchi University in this regard. When after lapse of almost 15 years, no action has been taken by the respondent-authorities for confirmation of his services, he made representation dated 13.06.2017 before the Registrar, Ranchi University, for allowing him to join against his parent post of Reader (Political Science), terminating the lien granted to him in April, 2002. However, when no action has been taken on his said representation, he again submitted his representation dated 22.07.2017, before the Vice Chancellor of Ranchi University, Ranchi requesting therein to take steps for terminating the lien granted to the petitioner in the month of April, 2002 and for allowing him to join against the post of Reader (Political Science) under Ranchi University, Ranchi. When no response has been gathered from the side of the respondents, he once again submitted his representation dated 29.08.2017 before the Registrar of the Ranchi University, Ranchi to allow him to join his parent post, in accordance with law. 5. However, vide impugned letter dated 09.08.2017, issued by the Registrar of Ranchi University, it was informed to the petitioner that his request for allowing him to join his parent post has been rejected on the ground that his lien had already expired on 14.04.2007. Assailing the said order, the present writ petition has been filed. 6. Mr. Ratnesh Kumar, learned counsel appearing for the petitioner submits that the impugned letter dated 09.08.2017 is arbitrary, unreasonable and in blatant disregard and violation of Article 14 of the Constitution of India and also against the provisions contained under the Service Statutes. Assailing the said order, the present writ petition has been filed. 6. Mr. Ratnesh Kumar, learned counsel appearing for the petitioner submits that the impugned letter dated 09.08.2017 is arbitrary, unreasonable and in blatant disregard and violation of Article 14 of the Constitution of India and also against the provisions contained under the Service Statutes. Learned counsel further argues that though vide letter dated 09.08.2017 it was informed to the petitioner that his lien has already expired on 14.04.2007 but prior to issuance of the said letter, no communication was made by the respondent-University to the petitioner informing thereby that his lien had already expired and as such, this fact clearly demonstrates and establishes the highhandedness and illegal deposition on the part of the concerned respondent-authorities under the Ranchi University. It has further been argued that although the petitioner had continued for 15 years as Registrar in different Universities within the State of Bihar but he was never given substantive appointment against the said post and therefore, the petitioner continues to retain his lien in the capacity of Reader (Political Science) under Ranchi University, Ranchi. Learned counsel further argued that similarly situated persons, who were also appointed along with the petitioner, were repatriated back to their parent University after serving for a long period. 7. To buttress his arguments, learned counsel for the petitioner places heavy reliance on the following judgments:- (I) State of Rajasthan & Anr. Vs. S.N. Tiwari & Ors. [ (2009) 4 SCC 700 )]; (II) State of Madhya Pradesh & Ors. Vs. Sandhya Tomar & Anr. [(2013) 11 SCC 257]. 8. Per contra, counter-affidavit has been filed. Dr. 7. To buttress his arguments, learned counsel for the petitioner places heavy reliance on the following judgments:- (I) State of Rajasthan & Anr. Vs. S.N. Tiwari & Ors. [ (2009) 4 SCC 700 )]; (II) State of Madhya Pradesh & Ors. Vs. Sandhya Tomar & Anr. [(2013) 11 SCC 257]. 8. Per contra, counter-affidavit has been filed. Dr. A.K. Singh, learned counsel appearing for the respondent-Ranchi University vehemently opposes the contention of the learned counsel appearing for the petitioner and argues that the provisions with regard to lien as contained in Jharkhand State Universities Act, 2000 reads as follows:- "Unless it is otherwise provided, a University Servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post." Learned counsel further argues that there is no concept of confirmation in service of a University Teacher in the Bihar State Universities Act, 1976 and/or Jharkhand State Universities Act, 2000 and unless the appointment of a person is clearly described in the order of appointment to be of officiating/ad hoc/casual/contingent or that of a like nature, it is clearly a substantive appointment and nothing else. Learned counsel further argues that the petitioner was appointed against the sanctioned and permanent post of Registrar, Veer Kunwar Singh University, Ara (Bihar) on the recommendation of Bihar State University (Constituent Colleges) Service Commission, on a substantive and permanent post and not a tenure appointment for a specific period at all. Learned counsel further argues that the vacancy created by cessation of lien of the petitioner was already filled-up on the recommendation of the Jharkhand Public Service Commission in 2008 itself on permanent and substantive post. Learned counsel lastly submits that in view of the aforesaid facts and circumstances, the instant writ petition is devoid of any merit and hence, fit to be dismissed outrightly. 9. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that the sole issue to be decided in the instant case is whether the petitioner was appointed on a substantive post of Registrar of Veer Kunwar Singh University and whether after appointment to the said post, he had lost his previous lien and had acquired the lien of the post of Registrar of Veer Kunwar Singh University. 10. 10. Before coming to a finding on this issue, it would be apposite to consider the term 'lien' in its proper perspective. 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. 11. The Hon'ble Apex Court in case of State of Rajasthan & Anr. Vs. S.N. Tiwari & Ors., reported in (2009) 4 SCC 700 has held that: "15. It may be necessary to notice Rule 18 of Rajasthan Service Rules which is re-produced in its entirety hereunder: "18. Termination of lien.-(a) A Government servant's lien on a post may in no circumstances be terminated, even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post. (b) A Government servant's lien on a post stands terminated on his acquiring a lien on a permanent post (whether under the Government or Central/other State Governments) outside the cadre on which he is borne." A bare reading of the Rule makes it clear that a government servant's lien on a post cannot be terminated in any circumstances even with his consent if it results in leaving the government servant without a lien or a suspended lien upon a permanent post. A government servant's lien on a post stands terminated only on his acquiring a lien on a permanent post outside the cadre on which he is borne." Further, in para-10 in case of State of M.P. v. Sandhya Tomar, reported in (2013) 11 SCC 357 , the Hon'ble Apex Court has held as under: "10. "Lien" connotes the civil right of a government servant to hold the post "to which he is appointed substantively". The necessary corollary to the aforesaid right is that such appointment must be in accordance with law. A person can be said to have acquired lien as regards a particular post only when his appointment has been confirmed, and when he has been made permanent to the said post. The necessary corollary to the aforesaid right is that such appointment must be in accordance with law. A person can be said to have acquired lien as regards a particular post only when his appointment has been confirmed, and when he has been made permanent to the said post. "The word 'lien' is a generic term and, standing alone, it includes lien acquired by way of contract, or by operation of law." Whether a person has lien, depends upon whether he has been appointed in accordance with law, in substantive capacity and whether he has been made permanent or has been confirmed to the said post." The Hon'ble Apex Court in case of Triveni Shankar Saxena v. State of U.P., reported in 1992 Supp. (1) SCC 524, has held as under: "17. We shall now examine what the word 'lien' means. The word 'lien' originally means "binding" from the Latin ligament. Its lexical meaning is "right to retain". The word 'lien' is now variously described and used under different contexts such as 'contractual lien', 'equitable lien', 'specific lien', 'general lien', 'partners lien', etc. In Halsbury's Laws of England, (4th edn. 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." 18. In Stroud's Judicial Dictionary, (5th edn. volume 3 at page 1465) the following passage is found: "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];" 19. In Words and Phrases, Permanent Edition, Vol. 25, the definition of word 'lien' when used to explain the equitable lien, is given thus: "A 'lien 'from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that there is something in existence to which it attaches." 20. In Words and Phrases, Permanent Edition, Vol. 25, the definition of word 'lien' when used to explain the equitable lien, is given thus: "A 'lien 'from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that there is something in existence to which it attaches." 20. At page 393 of the same volume it is stated: "The word 'lien' has a well known signification. In law it signifies an obligation, tie, or claim annexed to or attaching upon any property, without satisfying which such property cannot be demanded by its owner, vide Storm v. Waddell, N.Y." 21. Again at page 399 of the same volume it is stated: 'Lien' is a term of very large and comprehensive signification, but which never imports more than security, vide Mobile Building and Loan Assn. v. Robertson." 22. In Black's Law Dictionary, (6th edn., page 922) the following passage is found: "The word 'lien' is a generic term and, standing alone, includes liens acquired by contract or by operation of law." 23. Shelat, J. in Paresh Chandra Nandi v. Controller of Stores, while interpreting clause 14 of Rule 2003 of the Railway Fundamental Rules which defines lien has observed: (SCC p. 872, para 9) "Rule 2003 of the Railway Fundamental Rules defines in clauses 3 and 14 the terms 'cadre' and 'lien'. Lien', as defined in clause 14 means the title of a railway employee to hold substantively a permanent post to which he has been permanently appointed. According to this definition, therefore, the appellant and respondents 4 to 8 were entitled to, with effect from August 15, 1947 (when all of them were made permanent), a lien on the respective posts to which, as from that day, they were confirmed and made permanent." 24. A learned Single Judge of the Allahabad High Court in M.P. Tewari v. Union of India following the dictum laid down in the above Paresh Chandra case and distinguishing the decision of this Court in P.L. Dhingra v. Union of India. has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement." 12. has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement." 12. The argument advanced by the learned counsel for the respondent-University that there is no conception of confirmation in University Service, is not acceptable to this Court. From perusal of several documents brought on record, it appears that the services of the petitioner along with others have been confirmed in Ranchi University itself vide notification dated 29.05.1997, by the order of the Vice Chancellor, in pursuance of the decision taken by the Syndicate in its meeting held on 04.01.1997. It appears from the records of the case that the petitioner was never appointed on a substantive/permanent post of Registrar in Veer Kunwar Singh University. It is an admitted fact that appointment of the petitioner to the post of Registrar was made on a temporary post and his services were neither confirmed nor it was made on substantive basis and as such, the lien held by the petitioner against the post of Reader in Political Science under the Ranchi University, Ranchi, continues till date. 13. The other stand of the respondent-University that even if the appointment of the petitioner was not on a substantive post, as his lien has expired on 14.04.2007, acceptance of joining of the petitioner was rightly rejected as leave with lien has already expired on 14.04.2007, is not accepted to this Court. As the appointment of the petitioner was only for a period of two years and leave was granted by the Vice Chancellor with effect from the date of relieving, which was further extended for one year w.e.f. 15.04.2006, it is presumed that the lien was extended/continued till his functioning as Registrar but the services of the petitioner were not confirmed as Registrar. Even if the lien expired on 14.04.2007, it was incumbent upon the Registrar of the Ranchi University to communicate the petitioner regarding expiry of the lien and also regarding inclination for repatriation, as he was on lien to Veer Kunwar Singh University and the appointment was not on a substantive post. The mere fact that the petitioner continued to work for a long period itself would not result in loss of lien in the parent department. The mere fact that the petitioner continued to work for a long period itself would not result in loss of lien in the parent department. Admittedly, by joining the Veer Kunwar Singh University, the lien of the petitioner from Ranchi University was never terminated. Even nothing has been brought on record to show that the petitioner had been confirmed to the post of Registrar and he was holding that post in a substantive capacity on permanent basis. The lien on a post stands terminated only on acquiring the lien on a permanent post. In the instant case, the lien was never terminated as the petitioner never acquired lien on a permanent post. From perusal of the different documents brought on record, it also appears that the services of the petitioner was never confirmed in the capacity of Registrar in any of the three Universities, where he was posted in the said capacity. As such, his appointment was not liable to be treated as substantive in the capacity of Registrar, whereas, in view of notification dated 29.05.1997 issued by the Ranchi University, the services of the petitioner has been confirmed in the capacity of Lecturer in Political Science and the said appointment was on substantive basis. Only on confirmation of services to the post of Registrar, fresh lien would be acquired and the lien on the post of parent University would extinguish. From perusal of Annexures-10, 11, 12 and 13, it appears that appointment of the petitioner as Registrar was not on a substantive post. The said documents have not been refuted by the respondents. 14. Since the appointment of the petitioner as Registrar was not on a substantive post, the order dated 09.08.2017 (Annexure-7), issued by the Registrar of the Ranchi University, Ranchi regarding non-acceptance of joining of the petitioner on ground of expiry of the lien, is not sustainable in the eyes of law and is hereby quashed and set aside. 15. As cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, the respondent-University is directed to accept the joining of the petitioner to the post of Reader (now Associate Professor) in Political Science under Ranchi University, Ranchi along with all consequential benefits, in accordance with law, within a period of two months from the date of receipt/production of a copy of this order. 16. With the aforesaid observations and directions, the writ petition stands allowed.