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2021 DIGILAW 231 (UTT)

Dharmendra Kumar Shahi v. Board of Management

2021-04-12

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

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JUDGMENT : Sri Raghvendra Singh Chauhan, J. Aggrieved by the order dated 22.02.2021 passed by the Board of Management, D.A.V. P.G. College (respondent no.1), the petitioner, Dr. Dharmendra Kumar Shahi, has approached this Court. 2. Briefly stated, the facts of the case are that in 2000 the petitioner was appointed as the Associate Professor (Geography) by the Board of Management, D.A.V. P.G. College, the respondent no. 1. Meanwhile, the Jawahar Lal Nehru University (for short the “JNU”) advertised a vacancy for the post of Associate Professor, in the Centre for Russian and Central Asian Studies, School of International Studies at the University. Since the petitioner was eligible for the said post, he sought the permission of respondent no. 1, and of the Principal, D.A.V. College, the respondent no. 2. On 05.08.2019, an NOC was issued in his favour. The petitioner went through the selection process with the JNU. On 11.11.2020, the JNU offered him appointment to the post of Associate Professor. The petitioner accepted the appointment offer by his letter dated 13.11.2020. By letter dated 16.11.2020, the Registrar (Academics), JNU directed the petitioner to join the Centre for Russian and Central Asian Studies, School of International Studies within a period of four months. The petitioner was also informed that, in case the JNU does not hear from him about his accepting the offer of appointment, it will be deemed that he is no longer interested. 3. The petitioner claims that while he is eager to join the Centre for Russian and Central Asian Studies, School of International Studies at JNU, he still wants to retain his lien over his post as an Associate Professor with respondent nos. 1 and 2. Therefore, on 18.11.2020, on 18.01.2021 and on 02.02.2021, he has repeatedly represented to respondent nos. 1 and 2 that they should permit him to take one year’s leave without pay, and permit him to join the JNU. Moreover, they should permit him to retain his lien on the post of Associate Professor with respondent nos. 1 and 2. By order dated 22.02.2021, the petitioner’s request, for issuing of the relieving order on the basis of the NOC issued by the competent authority, has been declined by respondent no. 1. Moreover, they should permit him to retain his lien on the post of Associate Professor with respondent nos. 1 and 2. By order dated 22.02.2021, the petitioner’s request, for issuing of the relieving order on the basis of the NOC issued by the competent authority, has been declined by respondent no. 1. The grievance of the petitioner is that, although the respondents had granted an NOC, they are not willing to grant leave without pay for one year to him so that he can join the JNU. Hence, the present writ petition before this Court. 4. Mr. S.S. Yadav, the learned counsel for the petitioner, has raised the following contentions before this Court : Firstly, that on 26.12.2013, the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), Government of India had issued an Office Memorandum dealing with resignation, and lien to be retained by the government employees. Clause 1 of the said Office Memorandum defined the term “lien”. Clause 3 defined the term “lien on a post”. Clause (5) dealt with “retention of lien for appointment in another Central Government Department/Offices/State Government”. According to the learned counsel, “if a permanent employee is selected, on the basis of his application, for posts in other Central Government Department/Offices/State Government, his lien may be retained in the parent department for a period of two years. If the employee concerned is not permanently absorbed within a period of two years from the date of his appointment in the new post, he should immediately, on expiry of the period of two years, either resign from the service, or revert to his parent cadre. An undertaking to abide by this condition may be taken from him at the time of forwarding of his application to other departments/offices. The Office Memorandum dated 26.12.2013 has been reiterated in the Office Memorandum dated 27.08.2018 issued by the Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel & Training), Government of India. Thus, according to the learned counsel, since the petitioner had applied to JNU, and since he would be on probation for a period of two years at JNU, under Clause 5 of the said Office Memorandum, he can retain his lien with respondent nos. 1 and 2 for a period of two years. Despite the fact that he has a right to continue his lien with respondent nos. 1 and 2 for a period of two years. Despite the fact that he has a right to continue his lien with respondent nos. 1 and 2, the respondents have denied him the right to retain his lien in his parent department. Secondly, since the respondents had issued an NOC in favour of the petitioner, they are not justified in refusing to relieve the petitioner from the College. Moreover, they are unjustified in declining to permit the petitioner to retain the lien on the post of Associate Professor. Thirdly, relying on the case of State of Rajasthan and another v. S.N. Tiwari and others, [ (2009) 4 SCC 700 ], the learned counsel has pleaded that the lien of an employee is terminated from previous post when he is appointed substantively on another post, and acquires lien on that post. Since the petitioner has not acquired his lien on the post of Associate Professor at the JNU, he has a right to continue to hold his lien on his present post with the respondent nos. 1 and 2. Therefore, the respondents are not justified in denying the petitioner the right to retain his lien on the present post. Lastly, in a similar situation, which had occurred in the Chaudhary Charan Singh University, Meerut, where Professor Rajeev Sijaria was also appointed by JNU, the Vice-Chancellor of the said University had permitted Professor Rajeev Sijaria to retain his lien for one year. Therefore, the learned counsel submits that in order to maintain equality, the same benefit should have been extended by the respondents to the petitioner. 5. On the other hand, Mr. Ramji Srivastava, the learned counsel for the respondents, has raised the following counter-contentions before this Court : Firstly, the Office Memorandum dated 26.12.2013 is inapplicable to the respondents, and to the petitioner. For, the petitioner is neither a Central Government employee, nor a State Government employee. In fact, the petitioner’s service conditions are governed by the First Statute of the HNB Garhwal University, which were made under the U.P. State Universities Act, and were made applicable to the State of Uttarakhand. Therefore, the benefit provided to a Government employee, Central or State, cannot be claimed by the petitioner as of right. Secondly, the NOC dated 05.08.2019 was issued by the Principal of the College, respondent no. 2. Therefore, the benefit provided to a Government employee, Central or State, cannot be claimed by the petitioner as of right. Secondly, the NOC dated 05.08.2019 was issued by the Principal of the College, respondent no. 2. However, as the appointing authority was the Management Committee, the Principal was not authorised to issue such an NOC. Since an illegality has been committed by the Principal, already departmental action is being taken against the Principal. Moreover, the NOC issued merely stated that “the institution/organization has no objection to the candidature of the applicant being considered for the post of Professor/Associate Professor in JNU.” Therefore, the NOC was limited only with regard to the consideration of the petitioner’s candidacy for the post of Associate Professor in JNU. There was no commitment made by respondent no. 1, the Management Committee, that it will permit the petitioner to leave the College, and/or permit the petitioner to retain his lien on the post of Associate Professor in the College. Thirdly, considering the fact that there is lack of faculty in the College, and considering the interest of the students, the Management had already decided that any faculty member, who seeks an appointment on the same post in another educational institution, would not be granted the permission to leave the institution, or to retain his lien with respondent nos. 1 and 2. Keeping in mind the interest of the students, respondent no. 1 is well justified in declining the request of the petitioner. Fourthly, the selection of the petitioner in the JNU is a direct recruitment for the post of Associate Professor. Once selected, if the petitioner is desirous of joining the JNU, he cannot claim that he has a right to retain his lien with the College. For, the petitioner cannot be permitted to ride on two boats simultaneously : to retain his lien on the post of Associate Professor in the College, and yet to join another employer, and to discharge his duties as an Associate Professor with the University. Lastly, the case of S.N. Tiwari and others (supra) is distinguishable on the factual matrix. For, the said case dealt with deputation. Whereas, the petitioner is not going to JNU on deputation from the College. Hence, the petitioner’s reliance on the said case-law is highly misplaced. 6. Lastly, the case of S.N. Tiwari and others (supra) is distinguishable on the factual matrix. For, the said case dealt with deputation. Whereas, the petitioner is not going to JNU on deputation from the College. Hence, the petitioner’s reliance on the said case-law is highly misplaced. 6. Heard learned counsel for the parties, perused the impugned order, and examined the record submitted by both the parties. 7. The issue before this Court is whether the petitioner can claim the right to retain his lien on the post of Associate Professor in the College especially when he has been selected by JNU, or not? 8. Lien represents the right of an employee to hold a regular post, whether permanent or temporary, either immediately, or on the termination of the period of absence. The benefits of having a lien in a post/service/cadre is enjoyed by all employees who are confirmed in the post/service/cadre of entry, or who have been promoted to a higher post, and have completed the probation where it is so prescribed. 9. According to service jurisprudence, an employee, who has acquired a lien on a post, retains a lien on the said post : (a) while performing the duties of the said post; (b) while on foreign service, or holding a temporary post or officiating in another post; (c) while on leave; (d) while under suspension. However, ordinarily a person cannot claim the right to hold a lien under his old employer, once he has been selected by a new employer, unless the relevant Rules so provide. In case of fresh selection, he must sever his employer-employee relationship with the old employer. An employee cannot be permitted to ride on two boats simultaneously, unless the Rules so provide. Therefore, the petitioner is unjustified in claiming the he either has a civil right, or a fundamental right, to continue his lien on the post of Associate Professor with the respondents. 10. Needless to say, the petitioner is not a Government employee, Central or State. But is an employee of the College run by the Management Committee. The Management Committee is a Society. Thus, the petitioner is an employee of the Society, and not of the Government. Hence, both the Office Memorandums dated 26.12.2013 and 27.08.2018 are inapplicable to the present case. Therefore, the petitioner’s reliance on the said Office Memoranda is highly misplaced. But is an employee of the College run by the Management Committee. The Management Committee is a Society. Thus, the petitioner is an employee of the Society, and not of the Government. Hence, both the Office Memorandums dated 26.12.2013 and 27.08.2018 are inapplicable to the present case. Therefore, the petitioner’s reliance on the said Office Memoranda is highly misplaced. Thus, the petitioner does not derive any benefit from the said Office Memoranda. 11. The petitioner’s reliance on the NOC is unsustainable. For, a bare perusal of the NOC clearly reveals that, through the NOC, the respondents had merely stated that they have no objection if the candidacy of the petitioner were considered for the post of Associate Professor in JNU. Through the said NOC, they did not make any commitment that the petitioner would be permitted to leave the College, or that he will be permitted to retain his lien on the post of Associate Professor in the College. The NOC merely permitted the petitioner to undergo the selection process initiated by JNU. Therefore, the grant of NOC does not act as an estoppel against the respondents. 12. The case of S.N. Tiwari and others (supra) is distinguishable on factual matrix itself. For, in the said case, Mr. S.N. Tiwari, the respondent, was initially appointed as Investigator Grade-II in the Department of Economics and Industrial Surveys of the Government of Rajasthan. He joined his duty on 27.04.1959. However, subsequently the employees of the Department were declared as surplus. They were sent to work in the Directorate of Medical and Health Services, Jaipur. On 03.12.1980, while the respondent was working as a Statistical Inspector under the Medical and Health Department, he was appointed on purely urgent temporary basis as a homeopathic doctor under the ESI Scheme. The respondent continued with the ESI Corporation. Vide letter dated 05.04.1991, the Directorate of Economics and Statistics Department addressed a letter to the Director of the ESI Corporation, Jaipur requiring it to obtain the respondent’s option as to whether he wanted to return back to the services of the said Department, or to be made permanent in the ESI Corporation. The respondent exercised his option that he wanted to continue in the Department, and wanted the lien to be continued in the said Department. The respondent exercised his option that he wanted to continue in the Department, and wanted the lien to be continued in the said Department. Meanwhile, the respondent also filed two different Writ Petitions before the Hon’ble Rajasthan High Court, namely Writ Petition No. 4832 of 1991, wherein he prayed that the Health Department should be directed not to send him back to his parent department, and Writ Petition No. 1663 of 1997, wherein he prayed that the Director of the Directorate of Economics and Statistics Department should be directed to consider the respondent’s case for promotion against the vacancies from 1964 and onwards, and to give him all the promotions, seniority, financial benefits, pay-fixation, etc. from the date his juniors were granted the said benefits. Subsequently, he did not press the first Writ Petition, namely Writ Petition No. 4832 of 1991, but contended that, since he was temporarily appointed as a Homeopathic Doctor in the Medical and Health Services Department, he continued to hold his lien with the Directorate of Economics and Statistics Department. The Hon’ble Rajasthan High Court concluded that the respondent continued to hold his lien in the Directorate of Economics and Statistics Department as he was temporarily appointed in the Medical and Health Department. Aggrieved by the order passed by the Rajasthan High Court, the State of Rajasthan filed a SLP before the Hon’ble Supreme Court. The Hon’ble Supreme Court noted the fact that there was no controversy whatsoever that the respondent was appointed on permanent basis in the Directorate of Economics and Statistics Department initially, and thereafter sent to work in the Medical and Health Department on urgent temporary basis for a period of six months. Thus, he was sent on deputation. Since he was sent on deputation, he continued to retain his lien in his parent department. It is in these circumstances that the Hon’ble Supreme Court opined as under :- “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. 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.” 13. However, the present case is not a case of deputation. For, the petitioner is not being sent on deputation from the College to JNU. In fact, it is a case of direct recruitment of the petitioner, on the post of Associate Professor, by JNU. Therefore, the petitioner’s reliance on the case of S.N. Tiwari and others (supra) is highly misplaced. 14. The petitioner is equally unjustified in claiming that, since the Chaudhary Charan Singh University, Meerut had permitted Professor Rajeev Sijaria to retain his lien in the post of Professor while he joined the JNU, maintaining the equality, the same benefit should also be extended by the respondents to the petitioner. For, the respondent nos. 1 and 2, and the Chaudhary Charan Singh University are two independent and separate educational institutions. They are governed by different ordinances and by-laws. Therefore, the exercise of discretion by the Chaudhary Charan Singh University will not compel the respondents to exercise the same discretion, and to grant the same permission to the petitioner. 15. Moreover, the respondents are justified in claiming that due to dearth of faculty members, respondent no. 1 had decided not to permit any faculty member to leave the College in case he/she was applying for the same post in another educational institution. Since the interest of the students has to be paramount, the said decision is legally justified. 16. For the reasons stated above, this Court does not find any merit in the present Writ Petition. It is, hereby, dismissed.