State of Punjab & Ors Vs. Labhu
Ram & Ors  INSC 247 (15 October 1976)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1977 AIR 98 1977 SCR (1) 832 1976
SCC (4) 339
Punjab Civil Service Rules, vol. 1, Rides
2.49 and 3.10 to 3.16,--Junior Vernacular Cadre teachers officiating in senior
vernacular cadre entitled to benefit of their substantive posts.
The respondents, teachers of the junior
vernacular cadre, Punjab, were promoted to the senior vernacular cadre temporarily.
After the expiry of their probationary period, they were not confirmed, but
continued to work in the senior cadre and their names were dropped from the
junior vernacular cadre. Mean while, other teachers, junior to the respondents
in the junior cadre were offered better opportunities of being taken in a
"selection grade". The respondents filed a writ petition in the High
Court contending that they were entitled to the opportunity of moving into the
selection grade, as they were neither probationers nor confirmed members but
were only officiating in the senior cadre while retaining their substantive
places and liens in the junior cadre. The High Court allowed the writ.
Dismissing the appeal the Court.
HELD: The state was unable to substantiate the
submission that the petitioners-respondents became probationers in the senior
vernacular cadre. According to the rules, their lien in the junior vernacular
cadre was retained by them, and, it could not be suspended by the mere fact
that they were performing the duties of teachers working in the senior
vernacular cadre. [836 D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal.
No. 1745 of 1968.
(Appeal by Special Leave from the Judgment
and Order dated 13-10-1967 of the Punjab and Haryana High Court in Civil Writ
No. 1113 of 1966).
O.P. Sharma, for the appellants.
S. K, Mehta, K.R. Nagaraja and P.N. Puri, for
the Respondents, The Judgment of the Court was delivered by BEG, J.--The State
of Punjab has come up by special leave against the judgment of a Division Bench
of the High Court o[ Punjab & Haryana allowing the Writ petition of the
respondents who, it is admitted by the State, are teachers of the Junior
Vernacular grade working, on the dates on which they filed the Writ petition,
as "promotees" in the senior vernacular grade temporarily but had not
been confirmed there. It appears that the only difference between the junior
vernacular cadre and the senior vernacular cadre is that those who teach lower
classes were placed in the "junior" cadre and those who teach higher
classes were in the "senior vernacular cadre". But, for some reason,
working in senior vernacular cadre was considered a promotion.
After consideration of the whole position,
the two grades were integrated by the Government from 1st October. 1957, with
retrospective effect, under the Punjab Educational Service 833 (Provincialised
Cadre) Class III Service Rules, 1961. This meant that the Government recognised
that both the cadres should be really considered as one and that there were no
acceptable grounds for a differentiation. Nevertheless, it appears that the
names of the petitioners were dropped from the junior vernacular cadre as they
had been working for more than the probationary period in the senior vernacular
cadre. It is urged that it must be deemed that they were confirmed in the
senior vernacular cadre automatically.
However, they had to be
"probationers" in the senior cadre for such a result to enure. We
fail to see how they become "probationers" there.
Curiously, the prospects of those who were
not considered "promoted" to the senior vernacular cadre and were
junior to the petitioners respondents in that cadre, improved as they were
offered opportunities of being taken in a "selection grade". But, no
such opportunities were offered to the petitioners on the ground that they had
been removed from the junior vernacular cadre. The names of the petitioners
respondents had been automatically dropped from the cadre in which they held
their liens having been appointed there initially permanently.
The High Court of Punjab & Haryana held
that the petitioners respondents are entitled to the benefit of their
substantive posts, which were still in the junior vernacular cadre, as they
were never confirmed in the senior vernacular cadre whatever may be the
sentimental satisfaction of being considered as persons "promoted" to
and working in the "senior vernacular cadre". Subsequent events
showed that those who are junior to the petitioners, and, for that reason, did not
get the opportunity of serving in the "senior" cadre, had better
opportunities offered to them without any reasonable ground of discrimination
between the two cadres except that the petitioners were seniors and could
consider themselves "promoted" because they had been performing the
duties of teachers of the "senior" cadre.
The petitioners, after discovering that those
who were junior to them and had, therefore, not been given the opportunity of
serving in the senior vernacular cadre, had a better opportunity of moving into
the selection grade, which had not been offered to them, applied for this very
opportunity as they still continued in their substantive posts which were in
the junior vernacular cadre. They took up the correct position that they had
merely been officiating in the senior vernacular cadre but their right places
were in the junior vernacular cadre. The mere fact that they worked in the
senior cadre for longer periods than probationers would could not give them the
status of either more probationers or persons Confirmed in the senior
vernacular cadre. They could not, for that reason alone, be deprived of the
benefits of their substantive appointments in the junior vernacular cadre.
Hence, their Writ Petitions were allowed and they were afforded all the benefits
which would have accrued to them as members of the junior vernacular cadre to
which they did not really cease to belong.
Moreover, as already pointed out, the
Government had itself considered the position and had integrated the two cadres
into one with retrospective effect from 1st October, 1957.
834 The position of the petitioners appears
to us to be fully covered by the following rules contained in the Punjab Civil
Services Rules-Volume I:
"3.10. Unless in any case it be otherwise
distinctly provided the whole time of a Government servant is at the disposal
of the Government which pays. him and he may be employed in any manner required
by proper authority, without claim or additional remuneration, whether the
services required of him are such as would ordinarily be remunerated from Union
or State revenues, or from the revenues of a local fund.
Substantive Appointment and Lien.
3.11. (a) Two or more Government servants
cannot be appointed substantively to the same permanent post at the same time.
(b) A Government servant cannot be appointed
substantively except as a temporary measure, to two or more permanent posts at
the same time.
(c) A Government servant cannot be appointed
substantively to a post on which another Government servant holds a lien.
3.12. 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 on any other post.
3.13. Unless his lien is suspended under rule
3.14 or transferred under rule 3.16, a Government servant holding substantively
a permanent post retains a lien on that post-(a) while performing the duties of
(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) except as provided in Note below while on
and (e) while under suspension.
3.14. (a) A competent authority shall suspend
the lien of a Government servant on a permanent post which he 835 holds
substantively, 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 rule.
(b) A competent authority 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
(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-clause (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 revive 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-clause (1 ), (2) or (3) of clause (a).
3.15. (a) Except as provided in clause (c) of
this rule and in note under rule 3.13, a Government servant's 836 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
(b) In a case covered by sub-clause (2) of
clause (a) rule 3.14 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.
(c) Notwithstanding the provisions of rule 3.14(a).
the lien of a Government servant holding substantively a permanent post shah be
terminated on his appointment substantively to the post of Chief Engineer of
the Public Works Department.
3.16. Subject to the provisions of rule 3.17,
a competent authority may transfer to another permanent post in the same cadre
the lien of a Government servant who is not performing the duties of a post to
which the lien relates, even if that lien has been suspended." According
to the rules set out above, the lien of the petitioners in the junior vernacular
cadre was retained by them and it could not be suspended by the mere fact that
they were performing the duties of teachers working in' the senior vernacular
cadre. Nothing beyond this was disclosed by the facts of these cases.
The definition of a probationer, given in
rule 2.49 is as follows:
"2.49. Probationer means a Government
servant employed on probation in or against a substantive vacancy in the cadre
of a department. This term does not, however, cover a Government servant who
holds substantively a permanent post in a cadre and is merely appointed on
probation' to another post".
Learned Counsel for the State was unable to
substantiate the submission that the petitioners respondents were merely
probationers the senior vernacular cadre and not really persons whose
substantive posts were in the junior vernacular cadre, appointed to perform the
duties of persons put in another cadre. Their duties in the senior cadre
involved teaching somewhat higher classes. This additional experience could not
reasonably be looked up as a disqualification for the selection grade. The High
Court had, therefore, given the petitioner-respondents the benefits of the
cadre on which their names should have been retained.
Moreover, this is not a question which can
arise again as the two different cadres have been merged with retrospective
effect from 1st October, 1957. It meant that they were entitled to be
considered for the selection grade, and, if they satisfy the requirements for
selection to get the benefits of it. Consequently, we dismiss this appeal with
M.R. Appeal dismissed.