Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. OF 2009
(Arising out of SLP ( C ) No.6088 of 2007)
State of Rajasthan & Anr. …Appellants
Versus
S.N.Tiwari & Ors. …Respondents
With
CIVIL APPEAL NO……… OF 2009
(Arising out of SLP ( C )No.7658 of 2007
J U D G M E N T
B.SUDERSHAN REDDY,J.
Leave granted.
2. These appeals are directed against the common
judgment and order of the High Court of Rajasthan,
Jaipur Bench dated 29.11.2006 in DBC Special Appeal No.
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606/01 and DBC Special Appeal No. 863/01 affirming the
judgment and order of the learned Single Judge.
3. The facts leading to filing of these appeals by the State
of Rajasthan required to be noticed are as under:
4. The sole respondent herein was initially appointed as
Investigator Grade-II in the Department of Economic and
Industrial Surveys of Government of Rajasthan. He joined
his duty on 27.4.1959. The respondent along with other
similarly situated employees were declared surplus by the
Department but all of them were sent to work in the
Directorate of Medical and Health Services, Jaipur. On
3.12.1980 while the respondent was working as a Statistical
Inspector under Medical and Health Department, he was
appointed on purely urgent temporary basis as a
Homeopathic Doctor under ESI Scheme for a period of 6
months or till the selection of a candidate by the Rajasthan
Public Service Commission whichever was earlier. He was
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accordingly relieved to join his duty as a Homeopathic
Doctor w.e.f 6.12.1980. The respondent continued in that
capacity till his retirement on 31.8.1994 on attaining the age
of superannuation since no alternative arrangement was
made by the State of Rajasthan.
5. The Directorate of Economic and Statistics Department
vide its letter dated 5.4.1991 addressed to the Director of
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 vide
letter dated 8.4.1991 addressed to the Director of
Economics and Statistics exercised his option to have lien
continued in the Subordinate Statistical Services for the
purposes of protection of financial interests/promotions to
higher post in statistical services. The respondent also
referred to and relied upon the Judgment of the Rajasthan
High Court dated 2.9.1988 whereunder the Court at the
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instance of the respondent directed the parent department
to determine the year-wise vacancies and to make
promotions from the post of Statistical Inspector to
Statistical Assistant in accordance with Rajasthan Service
Rules.
6. The respondent filed the writ petition No. 4832 of 1991
with a prayer seeking directions as against the Health
Department not to send him back to the parent department
and allow him to continue to work on the same post as
Homeopathic Doctor and fix his salary/pay in the regular
pay-scale attached to that post. The respondent also filed
writ petition No. 1663 of 1997 after 6 years of the aforesaid
writ petition in the year 1997 seeking directions as against
the Director of the Directorate of Economic and Statistics
Department to consider his case and recompute the
vacancies from 1964 and onwards and to give him all
promotions, seniority, financial benefits, pay fixation etc.
from the date, his immediate juniors have been promoted
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from the post of Statistical Inspector to Deputy Director.
The respondent also claimed the pensionary benefits by duly
fixing his seniority and promotion etc.
7. Both the writ petitions were taken up for hearing during
which the respondent requested the High Court to dismiss
the writ petition No. 4832 of 1991 filed by him as not
pressed. The High Court after an elaborate consideration of
the matter came to the right conclusion that the respondent
herein was temporarily appointed to work as Homeopathic
Doctor in Medical and Health Services Department and
always retained his lien in the Economic and Statistics
Department and therefore entitled to reliefs as claimed by
him in writ petition No. 1663 of 1997. No relief was granted
in writ petition No. 4832 of 1991 since the respondent/writ
petitioner did not press for the same. Hence these appeals
by the State of Rajasthan.
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8. Smt. Madhurima Tatia, learned counsel appearing for
the State of Rajasthan inter alia submitted that the
respondent having joined the Medical and Health Services
Department as Homeopathic Doctor continued on the same
post till the date of his retirement on attaining the age of
superannuation and that post of Homeopathic Doctor is not
encadered in the Rajasthan Subordinate Service Rules, 1971
and, therefore, he is not entitled to claim promotion and
other benefits in the Economics & Statistics Department
after 1980.
9. The learned counsel for the respondent supported the
impugned judgment and contended that the lien of the
respondent continued to be with parent department as he
was never made permanent as Homeopathic Doctor in ESI
Corporation where he was deputed to work.
10. We have carefully considered the submissions made by
the counsel appearing for the respective parties.
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11. There is no controversy whatsoever that respondent
employee was appointed on permanent basis in the
Directorate of Economic and Statistics Department initially
and thereafter sent to work in Medical & Health Department
from there he was sent on deputation on urgent temporary
basis as a Homeopathic Doctor under a Scheme for a period
of 6 months or till the selection of the candidate by the
Rajasthan Public Service Commission whichever was earlier.
Since no selection as such had taken place the respondent
continued in the said post until his attaining the age of
superannuation i.e. 31.8.1994. It is not the case of the
State that any Competent Authority terminated the lien of
the respondent in the parent department. There is no
material made available by the State to show that the
respondent had been confirmed in any permanent post and
that he was holding that appointment in a substantive
capacity on permanent basis. On the other hand, even while
working as Homeopathic Doctor in ESI Corporation, the
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respondent employee obtained directions as against the
State and Directorate of Economics & Statistics Department
to determine the year-wise vacancies and to make
promotions from the post of Statistical Inspector to
Statistical Assistant in accordance with the Rules. That
order attained its finality. The same would demonstrate that
the respondent employee always had a lien in the
Department of Economics and Statistics. 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.”
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12. 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. It is not the case of the State that the
respondent employee was made permanent as a
Homeopathic Doctor in ESI Corporation. The respondent
employee did not acquire any lien in the 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.
13. 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.
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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. This Court in Ram
Lal Khurana Vs. State of Punjab [ (1989) 4 SCC 99]
observed that 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.
14. 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
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Shankar Saxena Vs. State of U.P. (1992 Supp (1) SCC
524) ].
15. 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
& Statistics. His urgent temporary appointment as
Homeopathic 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 & Statistics. That even after the
respondent employee joined as Homeopathic 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.
16. Be it noted that no objections were raised when the
respondent employee gave his option on 8.4.1991 duly
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informing all the concerned that his lien in the Subordinate
Statistical Service, had to be maintained for the purposes of
promotions to higher posts/protection of financial interests
etc. In such view of the matter the respondent employee
always had his lien in his parent department. The State at
this stage cannot be allowed to turn round and say that the
respondent employee did not retain lien against his post in
the parent department.
17. The appeals, therefore, fail and are dismissed. In the
facts and circumstances of the case, we make no order as to
costs.
……………………………………J.
( S.B. Sinha )
……………………………………J.
( B. Sudershan Reddy )
……………………………………J.
( Mukundakam Sharma )
New Delhi;
March 16, 2009
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