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2019 DIGILAW 582 (JHR)

Bhola Prasad v. State of Jharkhand

2019-02-28

RAJESH KUMAR

body2019
JUDGMENT : 1. Heard learned counsel for the parties. 2. The present writ petition has been filed for quashing the reasoned order dated 02.05.2013, only with respect to claim for salary for the period from 27.05.2000 to 14.06.2005, which had been rejected. 3. As per the pleading, it appears that the petitioner, who was a regular employee of respondent authorities, has been posted in the cadre of Junior Engineer. The petitioner while posted in the Rural Development Department, his service had been reverted back to the parent department, vide order No.389 dated 20.12.1999. At the relevant time, petitioner was posted as a Junior Engineer on deputation under the Rural Development Department. 4. Vide order no.7014 dated 03.05.2000, the services of the petitioner had been taken back by the parent department i.e. Water Resources Department w.e.f. 30.06.2000. Accordingly, he had been asked to join the Head Quarters. The claim of the petitioner is that he has tried to submit his joining but his joining had not been accepted and accordingly, he had moved to the Hon’ble High Court by filing CWJC No.3580 of 2000. The said writ petition had been disposed of vide order dated 17.08.2001. Relevant portion of the said order is quoted hereinunder:- “By this writ petition the petitioner challenges an order dated 20.12.1999 by which he has been relieved from his erstwhile post. It appears from the submission at the bar that many developments took place during the intervening period including one by which the petitioner along with others was repatriated to his parent Department namely, Water Resources Department on 30.09.2000. The petitioner has not submitted his joining in the said department. Obviously, he has done so at the risk of being proceeded against. In any view he may not be held entitled to salary for the intervening period. For the present, I permit the petitioner to submit his joining in the parent department pursuant to the said notification dated 30.09.2000 by 21st of August, 2001.” 5. Thus, the decision had been taken on the basis that petitioner had failed to substantiate that he had submitted his joining to the Headquarter. 6. Learned counsel for the petitioner has relied upon the Rule 14, 25 and Rule 252 of the Bihar Service Code, which is quoted hereinunder:- 14. Thus, the decision had been taken on the basis that petitioner had failed to substantiate that he had submitted his joining to the Headquarter. 6. Learned counsel for the petitioner has relied upon the Rule 14, 25 and Rule 252 of the Bihar Service Code, which is quoted hereinunder:- 14. Duty-(a) Duty includes,- (i) Service in India, as a probationer or apprentice, if such service is followed by confirmation or by appointment to Government service; (ii) Joining time; (iii) Extra leave on average pay granted to a Government servant undergoing treatment at a Pasteur Institute. (b) On the occasion of his first arrival in India, a person appointed in England to Government service, who does not, before he reports himself at the seat of Government receives orders to take charge of a specified post is treated as on duty during the interval between the date of such report and the date on which he takes charge of his duties, provided that he shall not be so treated if the interval between the receipt of orders and the assumption of his duties exceeds the amount of joining time which would be admissible to a Government servant entitled to joining time under Rule 252 (a). (c) The State Government may issue orders declaring that in the circumstances mentioned below, or in similar circumstances, a Government servant may be treated as on duty:- (i) During a course of instruction or training in India. (ii) In the case of a student, stipendiary or otherwise, who is entitled to be appointed to the service of Government on passing through a course of Training at a University, College, or School in India during the interval between the satisfactory completion of the course and assumption of duties. (iii) During preparation for an examination in any oriental language. 25. Joining time means the time allowed to a Government servant in which to join a new post or to travel to or from a station to which he is posted. 252. Joining time may be granted to a Government servant to enable him- (a) to join a new post to which he is appointed while on duty in his old post; or (b) to join a new post,- i. on return from leave on average pay of not more than four month’s duration; or ii. 252. Joining time may be granted to a Government servant to enable him- (a) to join a new post to which he is appointed while on duty in his old post; or (b) to join a new post,- i. on return from leave on average pay of not more than four month’s duration; or ii. when he has not had sufficient notice of his appointment to the new post, on return from leave other than that specified in sub-clause (i); or (c) to travel from the post of debarkation and organize his domestic establishment when he returns from leave out of India of more than four month’s duration; or (d) on departure on or return from leave, to proceed from or to the place at which he is posted to or from specified stations when the place concerned is in a locality which has been declared by the State Government to be remote and difficult of access; or (e) on departure to or return from a course of training exceeding three months, to proceed to the place of training or return from it to the station to which he is posted. 7. It is a settled principle of law that an employee cannot remain without posting as salary is released only through post. A permanent employee deputed has lien over the post. A person cannot be allowed to suffer for non posting as the rule itself suggests that if a person is without posting, the said period has to be treated as a joining time and further joining time has been treated as period spent on duty. Thus, as per rule, joining time has been developed as a concept, which is one kind of leave although not leave. If a person is not posted, the salary for the said period cannot be denied by the respondents on the ground of non joining. 8. A person can be punished or leave period can be considered only when he has been posted against one or another post. 9. In absence of any posting, Rule 254 and Rule 14 will come into play for protection of the employee. 10. Further it can be looked from the angle of concept of lien. 11. Rule 68 to 71 of Jharkhand Service Code are relevant and quoted hereinunder:- 68. 9. In absence of any posting, Rule 254 and Rule 14 will come into play for protection of the employee. 10. Further it can be looked from the angle of concept of lien. 11. Rule 68 to 71 of Jharkhand Service Code are relevant and quoted hereinunder:- 68. Unless in any case it be otherwise provided in these rules a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired to any other post. 69. Unless his lien is suspended under rule 70 or transferred under rule 72 a Government servant holding substantively a permanent post retains a 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 substantively 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 old post, (d) while on leave, and (e) while under suspension 70. (a) The lien of a Government servant on permanent post which he holds substantively shall be suspended if he is appointed in a substantive capacity- (1) to a tenure post, or (2) to a permanent post outside the cadre on which he is borne, or (3) provisionally, to a post on which another Government servant would hold a lien had his lien not been suspended under this rule. (b) The State Government may, at its option, suspend the lien of a Government servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or, in circumstances not covered by Clause (a) of this rule is transferred, whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years. (c) Notwithstanding anything contained in Clause (a) or (b) of this rule a Government servant's lien on a tenure post may in no circumstances be suspended. (c) Notwithstanding anything contained in Clause (a) or (b) of this rule a Government servant's lien on a tenure post may in no circumstances be suspended. If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated. (d) If a Government servant's lien on a post is suspended under Clause (a) or (b) of this rule, the post may be filled substantively, and the Government servant appointed to hold it substantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revives. (e) A Government servant's lien which has been suspended under Clause (a) of this rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in sub-clauses (1),(2) or (3) of that clause. (f) A Government servant's lien which has been suspended under Clause (b) of this rule, shall revive as soon as he ceases to be on deputation out of India, or on foreign service or to hold a post in another cadre, provided that a suspended lien shall not revived because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India, or on foreign service, or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in sub-clauses (1), (2) or (3) of Clause (a). 71. (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) In a case covered by sub-clause (2) of clause (a) of Rule 70, the suspended lien may not, except on the written request of the Government servant concerned, be terminated while the Government servant remains in Government service. 12. Thus, law is clear that a permanent employee has lien against a permanent post. A situation cannot be created, where employee becomes without lien. It is mandate of the above Rule that lien cannot be terminated even with consent. 13. Lien means an employee has to be attached to a particular post. 14. 12. Thus, law is clear that a permanent employee has lien against a permanent post. A situation cannot be created, where employee becomes without lien. It is mandate of the above Rule that lien cannot be terminated even with consent. 13. Lien means an employee has to be attached to a particular post. 14. Thus, in absence of posting, the period has been covered under the concept of joining time. 15. In view of above facts, impugned order dated 02.05.2013 is, hereby, quashed to the limited extent for the payment of salary for the period 27.05.2000 to 14.06.2005 and the matter is remanded to the concerned authority for taking an informed decision in accordance with law within twelve weeks from the date of receipt/production of copy of this order. Petitioner is at liberty to file a detail representation before the concerned authority within three weeks. 16. Needless to say, if any dues is found payable pursuant to the decision taken by the concerned authority, the same will be paid to the petitioner within the aforesaid period. 17. With above observations and directions, the present writ petition stands disposed of.