Karnataka High Court
Dr. Arundhathi S vs The State Of Karnataka on 13 October, 2020
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION No.8136/2020 (S-RES)
Between
Dr.Arundhathi S
d/o Dr.B C Shankarlingappa
Aged about 37 years
Working as Associate Professor
Department of Pathology
AIIMS Mangalagiri
Temporary Campus
Mangalagiri, Vijaywada
Andhra Pradesh - 520 008
Permanent Address at
No.61, UAS, GKVK Layout
Jakkur, Bangalore-560 064. ...Petitioner
(By Sri Sidharth Baburao, Advocate)
And
1. The State of Karnataka
Department of Health and
Family Welfare, Government of
Karnataka, M S Building
Bangalore-560 001, Represented
by its Principal Secretary.
2
2. Sanjay Gandhi Institute of
Trauma & Orthopedics
Byrasandra, Jayanagara East
Bengaluru - 560011
Represented by its Director.
3. The Board of Appointments
Sanjay Gandhi Institute of
Trauma & Orthopedics
Byrasandra, Jayanagara East
Bengaluru-560 011.
Represented by Minister for
Family and Health Department. ... Respondents
(By Sri M Vinod Kumar, AGA for R1,
Sri K Kasturi, Senior Advocate for
Sri D R P Babu, Advocate for R2 and R3)
This writ petition is filed under Article 226 of the
Constitution of India praying to quash the endorsement
dated 21.10.2019 not maintaining lien to the post of
Assistant Professor Department of Pathology at the
respondent No.2 Institution (Annexure-A) and
Endorsement dated 17.2.2020 Endorsement dated
21.10.2019 refused to accept her request for joining to
the post of Assistant Professor (Pathology) at the
respondent No.2 Institution (Annexure-B).
This writ petition having been heard and reserved
for orders on 01.10.2020, and coming on for
pronouncement this day, through video conference, the
Court made the following:
ORDER
Heard Sri Sidharth Baburao, learned counsel for the petitioner and Sri K Kasturi, learned Senior counsel 3 for Sri D R P Babu, learned counsel for respondents No.2 and 3 and Sri M Vinod Kumar, learned Additional Government Advocate for respondent No.1.
2. Petitioner was appointed as Lecturer on 1.10.2014 in the department of Pathology at respondent Nos.2 and 3 - Institution and the said post was re- designated as Assistant Professor on 19.11.2016.
3. Petitioner states that, on 15.3.2019, the AIIMS, Mangalagiri issued a notification inviting applications from eligible candidates for appointment to the post of Assistant Professor, Associate professor and Professor. Petitioner who was eligible, applied for appointment to the post of Associate Professor after obtaining No Objection Certificate respondents No.2 and
3.
4. Petitioner was issued with an appointment letter dated 09.07.2019 by the AIIMS, Mangalagiri 4 appointing her as an Associate Professor in the department of Pathology. Pursuant to the resignation letter tendered by the petitioner on 16.07.2019, she was relieved from service on 21.07.2019 by respondent- Institution.
5. Petitioner states that, on 21.9.2019, she represented with the 2nd respondent to maintain a lien on the post of Assistant Professor in the department of Pathology as per Rule 252(b) of Karnataka Civil Services Rules (for short ` KCS Rules'). However, the 2nd respondent issued an endorsement dated 21.01.2019 refusing to maintain a lien on her post on the ground that there is no provision under the C & R Rules of the Institution to maintain lien on the post of Assistant Professor. Being aggrieved, the petitioner has filed this writ petition.
6. Learned counsel for the petitioner submits that refusal to maintain a lien in the original post of 5 Assistant Professor in which she was working is contrary to Rules 19, 20 and 252(b) of KCS Rules. He further submits that, respondents No.2 and 3 - Institution has adopted KCS Rules for the termination and resignation and as such, respondents No.2 and 3 - Institution was not justified in rejecting the claim of the petitioner to maintain a lien on her post of Assistant Professor. In support of his submission, he has placed reliance on the decision of the Apex Court in the case of State of Rajasthan -vs- S N Tiwari reported in (2009) 4 SCC 700 and State of M P -vs- Sandhya Tomar reported in (2013) 11 SCC 357 and also the order passed by the Co-ordinate Bench of this Court in WP No.35054/2014.
7. Learned counsel for the petitioner further submitted that the acceptance of the resignation of the petitioner has not been approved by the Governing Council as required under Clause (ix) Rule 5(2) of the 6 Rules of respondents No.2 and 3 - Institution. Hence, he submits that there was no valid acceptance of the resignation of the petitioner.
8. Learned Senior Counsel for the respondents No.2 and 3 - Institution submits that the KCS Rules are not applicable to the employees of respondents No.2 and 3 - Institution. Hence, the petitioner cannot maintain a lien on the post held by her as provided under Rules 19, 20 and 252(b) of the KCS Rules. Alternatively, he also submits that, at the time of being relieved, the petitioner did not seek for permission to maintain a lien on the post of Assistant Professor and in the absence of such permission, she cannot claim that she had lien over the post by pressing into service Note-4 of Rule 20 of the KCS Rules. In support of his submission, he placed reliance on the decision of the Division Bench of this Court in the case of Gulbarga University rep. by its 7 Registrar -vs- Sri L R Patil reported in ILR 2010 Kar. 1780.
9. He further submitted that the resignation of the petitioner was approved by the Board of appointment and acceptance of resignation of petitioner is in accordance with the Rules. Hence, he submits that the petitioner on acceptance of her resignation ceases to have lien or any right over the original appointment .
10. I have considered the submissions made by the learned counsel for the petitioner, the learned Senior counsel for respondents No.2 and 3 - Institution and the learned Additional Government Advocate for respondent No.1 and perused the writ petition papers.
11. The submission of the learned counsel for the petitioner that there was no valid acceptance of the resignation of the petitioner, since the resignation was 8 not approved by Board of Governing Council is factually incorrect. Perusal of the original file produced by the respondent - Institution discloses that the Board of Governing Council on 19/07/2020 has approved the acceptance of resignation of the petitioner.
12. Rule 4.1 of C & R Rules of the Institution provides for adopting Rules and orders applicable to the State government employees to the employees of the Institution with regard to matters not specifically dealt with under the C & R Rules of the Institution, which reads thus:
4.1. In respect of any particular aspect of the following matters not specifically dealt with under these rules, the rules and orders applicable to the State Government employees shall apply to the employees of the institute subject to such modifications as may be made by the government council from time to time:
1. Recruitment
2. Leave Rules, Hours of duty and holidays 9
3. Pay dearness allowances CCA, HRA, washing allowances, uniform allowances, risk allowances conveyance allowances and special pay.
4. Traveling allowances, daily allowances, leave travel concession to Home town.
5. Termination of service and resignation
6. Loan and advance to employees
7. Medical attendance
8. Probation
9. Time bound advancement
10. Service in Kannada language examinations
11. Pension and extraordinary pension
12. Confidential reports
13. Appointment on Compassionate Grounds."
13. A reading of Rule 4.1 would indicate that the respondent - Institution has adopted KCS Rules in the matter of recruitment, pay & allowances, termination and resignation etc. Hence, the submission of the learned Senior counsel for the respondents - Institution that the KCS Rules are not applicable to the employees 10 of the respondents - Institution but only to a person serving in connection with the affairs of the State Government is not acceptable. The respondents - Institution has adopted the KCS Rules with regard to matters not specifically dealt with under the C & R Rules of the respondents No.2 and 3 - Institution. The right of an employee of the respondents No.2 and 3 - Institution to retain lien is not specifically dealt with the under the C & R Rules of the Institution, but the matters relating to Recruitment, Termination of service and resignation which are not specifically dealt with under the C & R Rules, the KCS Rules are adopted. The person working in a permanent post in the Institution can retain lien in terms of the KCS Rules.
14. The issue involved in this writ petition is, whether petitioner can retain lien over the original appointment after she resigns from the post and secures another appointment. Before answering this 11 issue, it is necessary to reproduce the relevant provisions of Rules 8(26), 19, 20 and 252(b) of KCS Rules.
15. Rule 8(26) of KCSR which defines "LIEN" reads as follows:
"Lien" means the title of a Government servant to hold Termination of service and resignation tentatively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively:
[Note.- Government may permit a Government servant to retain a lien on a temporary appointment in special cases, such as absence on study or training outside India. Attention is also invited to [Note 4 under clause (f) of Rule 20] and to Rule 423]."
[PART II Pay and Allowance CHAPTER II General Conditions of Service
12. xxxxxxx
13. xxxxxxx
14. xxxxxxx
15. xxxxxxx 12
16. xxxxxxx General Rules regarding lien on appointment and admissibility of allowances.
17. xxxxxxx
18. xxxxxxx
19. Unless his lien is suspended under Rule 20, 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 o which he is relieved of his duties in the old post;
(d) while on leave;
(e) while under suspension.
Rule 20 of KCS Rules reads as follows: "20.(a) Government [shall] suspend the lien of a Government servant on a permanent 13 post which he holds substantively if he is appointed in a substantive capacity- (1) to a tenure post, or [(2)] xxxxx] (3) xxxxxx
(b) xxxxxx
(c) xxxxxx
(d) xxxxxx Note.- xxxxxx
(e) xxxxxx
(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 outside the State of Karnataka or on foreign service or to hold a post referred to in clause (b) 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 outside the State of Karnataka or on foreign service or to hold a post referred to in clause (b) 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) or (3) of clause (a). 14
Note 1. - Only one provisionally substantive appointment is permissible against one post. A provisionally substantive appointment is permissible against a vacant permanent post.
Note 2. - The power to make provisionally permanent arrangements and to order suspension of lien is delegated to Heads of Department in the case of non- gazetted Government servants.
Note 3. - The lien of a Government servant cannot be suspended while he is on probation in another post. If the Government servant completes the period of probation satisfactorily, suspension of lien may be made with retrospective effect from the date on which the Government servant was transferred to other duty, provided that the conditions in clause (b) above are otherwise satisfied.
[Note 4. - When a Government servant who has secured employment in one Department of Government under the rules of recruitment, seeks employment on his own accord in another unit or Department or in another cadre or grade in the same Department, his lien on the original appointment shall be continued to be maintained provided he has already been confirmed in the post till he is permanently absorbed in the Department or cadre in which he is newly appointed and he shall be given the benefit of the past service for purposes of leave and pension. If, however, 15 he is temporary in the first appointment, he will cease, to have any connection with his old appointment but he shall be given only the benefit of the past service for leave and pension]
(g) (i) 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.
[(ii) xxxxxx]
(h) xxxxxxx xxxxxxxxxxxx Rule 252 of KCRS reads thus:
252 (a) xxxx.
[Note.- xxxx] [(b) Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service.] [xxx] [252-A. xxxx]"
16
16. 'LIEN' connotes the civil right of a Government Servant to hold the post to which he is appointed substantively . A reading of Note 4 of Rule 20 would indicate that the Government Servant shall continue to maintain his lien on the original appointment provided he has already been confirmed in the post till he is permanently absorbed in the Department or cadre in which he is newly appointed. Further, reading of Rule 20(g) of KCS Rules would indicate that government servant's lien on a post cannot be terminated even with his own consent under any circumstances. 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.
17. Rule 252(b) of KCS Rules stipulates that the resignation to an appointment is not a resignation of public officer when a government servant takes up another appointment with proper permission. 17
18. In the case on hand, admittedly, the petitioner was working in a permanent post in the respondent No.2 - Institution and his appointment was in accordance with law. After obtaining No Objection Certificate dated 16.5.2019 (Annexure-E) from the respondent No.2 - Institution, petitioner submitted an application for considering her appointment to the post of Associate Professor of Pathology at AIIMS, Mangalagiri. The application of the petitioner was considered and she was appointed as Associate Professor on 9.7.2019. Thereafter, she tendered resignation to the post of Assistant Professor on 16.7.2019 (Annexure-G) so as to enable her to report to duty as Associate Professor at AIIMS, Mangalagiri. Hence, the petitioner has taken another appointment after tendering resignation with proper permission as required under Rule 252(b) of the KCS Rules.
19. The next question for consideration is:
whether the petitioner was required to maintain lien 18 over her original appointment at the time of tendering resignation or not?
20. Learned Senior counsel for the respondents No.2 and 3- Institution has relied upon the decision of the Division Bench of this Court in the case of Gulbarga University by its Registrar (supra), wherein it was held that the writ petitioner therein having not sought for permission to retain lien over the post cannot contend that he had lien over the earlier post by pressing into service Note-4 of Rule 20 of KCS Rules. The Apex Court in the case of State of Rajasthan Supra, while interpreting Rule 18 of Rajasthan Service Rules, which is similar to Rule 20(g) of KCSR, has held that 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 and will not be terminated even with his consent under any circumstances . The decision rendered by the Division 19 Bench without reference to Rule 20(g) of KCSR is not applicable to the case on hand. Hence, it is held that the petitioner was not required to seek permission to retain lien over the post held by her in the respondents No.2 and 3 - Institution at the time of tendering her resignation .
21. A reading of Rule 252(b) of KCS Rules would indicate that the resignation tendered with proper permission to take up another appointment does not amount to resignation. The petitioner in her resignation letter sought permission to resign from her earlier post so as to enable her to report to duty at AIIMS, Managalagiri. Hence, the resignation of the petitioner to the post of Assistant Professor in the respondents No.2 and 3 - Institution is not a resignation and the petitioner continues to maintain a lien over the said post till she is permanently absorbed as Associate Professor at AIIMS, Mangalagiri. 20
22. The submission of the learned Senior counsel for respondents No.2 and 3 - Institution that Rules 19 & 20 of KCS Rules are applicable or deals with only with matters pertaining to pay and allowances and not with appointment is not acceptable. Rules 17,18, 19 & 20 of KCS Rules are also applicable to lien on appointments as clearly stated in Part II Chapter II (General Rules regarding lien on Appointments and Admissibility of Allowances) of KCSR.
For the aforesaid discussion, I am of the considered view that the Rules 18,19, 20 & Rule 252(b) of KCS Rules are applicable to the employees of respondents No.2 and 3 - Institution and refusal to maintain a lien in favour of the petitioner over the earlier post held by her is contrary to the Service Rules and Regulations of the respondents No.2 and 3 - Institution. It is further held ,that the petitioner continues to retain lien over her earlier post in the 21 respondents No.2 and 3 - Institution till she acquires lien on the permanent post at AIIMS, Mangalagiri. Accordingly, I pass the following:
ORDER
i) Writ petition is allowed.
ii) The endorsement dated 21.10.2019 vide No.Sibbandi(1)/Himbaraha1/36/2019-2020 issued by the respondent No.2 at Annexure-A is quashed;
iii) A direction is issued to the 2nd respondent to permit the petitioner to join to the post of Assistant Professor (Pathology) at the 2nd respondent - Institution and continue her in service in the post of Assistant Professor of Pathology with all the service benefits.
iv) Petitioner is granted two months time to report to duty at respondent No.2 - Institution from the date of receipt of copy of this order.
Sd/-
JUDGE Bkm