State of
Rajasthan & ANR. Vs. S.N. Tiwari & Ors. [2009] INSC 534 (16 March 2009)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL No.1609 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.1610 OF 2009 (Arising out of SLP (
C )No.7658 of 2007
B.SUDERSHAN
REDDY,J.
1.
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. 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 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 respondents 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 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 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.
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.
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 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:
Termination
of lien (a) A Government servants 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 servants 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.12. A bare reading of the
Rule makes it clear that a government servants 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 servants 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.
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.
Be it
noted that no objections were raised when the respondent employee gave his
option on 8.4.1991 duly 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.
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;
........................................J.
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