Karnataka High Court
The Housing And Urban Development ... vs S.N. Parasuramegowda on 23 July, 2021
Bench: Aravind Kumar, N.S. Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
W.P. NO.55805/2014 (S-CAT)
BETWEEN:
THE HOUSING AND URBAN
DEVELOPMENT CORPORATION LIMITED
(A GOVT OF INDIA ENTERPRISES)
HUDCO BHAVAN, INDIA HABITAT CENTRE
LODHI ROAD, NEW DELHI - 110 003
ALSO HAVING ITS BANGALORE
REGIONAL OFFICE AT:
MANIPAL CENTRE, 7TH FLOOR
UNIT NO. 703 & 704
NORTH BLOCK, NO. 47
DICKENSON ROAD
BANGALORE - 566 042.
...PETITIONER
(BY SRI. GANAPATHI HEGDE, ADVOCATE
FOR DUA ASSOCIATES)
AND:
1. S.N. PARASURAMEGOWDA
S/O NARASEGOWDA
AGED ABOUT 47 YEARS
WORKING AS GENERAL MANAGER
(SOCIAL DEVELOPMENT)
(UNDER ORDER OF RELIEF)
RAJIV GANDHI RURAL HOUSING
CORPORATION LIMITED
NO.1,2,3,4,I.T PARK
2
1ST FLOOR, 4TH MAIN ROAD
RAJAJINAGAR INDUSTRIAL AREA
RAJAJINAGAR, BANGALORE - 560 010
& RESIDING AT NO. 28, H.V. HALLI
NEAR PADMAVATHI MEENAKSHI
KALYANA MANTAP
RAJARAJRESHWARINAGAR
BANGALORE - 560 098.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL
SECRETARY TO GOVERNMENT
VIKASA SOUDHA
BANGALORE - 560 001.
2. THE RAJIV GANDHI RURAL
HOUSING CORPORATION LIMITED
NO.1,2,3,4, I T PARK, 1ST FLOOR
4TH MAIN ROAD, RAJAJINAGAR
INDUSTRIAL AREA
RAJAJINAGAR
BANGALORE - 560 010.
...RESPONDENTS
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SRI. R. BADRINATH, ADVOCATE FOR C/R-1;
SRI. N. BALAJI, A.G.A. FOR R-2;
SRI. M. SUMANA BALIGA, ADVOCATE FOR R-3 -ABSENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED ORDED DATED JULY 31, 2014
PASSED BY THE HON'BLE TRIBUNAL IN ORGINAL
APPLICATION NO.350/2014 (ANNX-A)
THIS PETITION HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY ARAVIND KUMAR J, MADE THE
FOLLOWING:
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ORDER
Order dated 31.07.2014 passed by the Central Administrative Tribunal, Bengaluru Bench (for short 'tribunal') in O.A.No.350/2014 is under challenge in this writ petition, whereunder, the application filed by respondent herein (hereinafter referred to as the 'applicant') came to be allowed in part by quashing the order dated 27.12.2013 (Annexure-A25) by directing third respondent therein i.e., writ petitioner (for short 'HUDCO") to continue the services of the applicant.
2. Short question that arises for our consideration in this writ petition is:
"Whether HUDCO is justified in refusing to accept duty joining report dated 16.12.2013 submitted by the applicant vide communication dated 27.12.2013 (Annexure-A25)?
BRIEF BACKGROUND OF THE CASE:
3. The applicant joined the services of HUDCO as Assistant Appraisal Officer in the year 2001 and was promoted as Appraisal Officer on 02.03.2008. The post 4 of Appraisal Officer was re-designated as Manager and applicant was posted to work as Manager (Projects) Goa Development Office under the Bangalore Regional Office. State of Karnataka by communication dated 20.04.2011 requested HUDCO to spare the services of applicant on deputation for suitable and equivalent post in third respondent - Rajiv Gandhi Rural Housing Corporation Limited (for short 'Rajiv Gandhi Corporation'). In response to the said communication, HUDCO by letter dated 27.06.2011 informed the State of Karnataka that services of the applicant cannot be spared on deputation basis to Rajiv Gandhi Corporation. Thereafter, State of Karnataka by communication dated 21.10.2011 informed HUDCO about the decision taken by Rajiv Gandhi Corporation to obtain services of the applicant on deputation and absorption basis in the post of General Manager (Social Development). The applicant by letter dated 01.11.2011 (Annexure-A7) gave his consent for immediate absorption in Rajiv Gandhi Corporation. Subsequently, by Inter Office Memo dated 15.11.2011 (Annexure-A-9) the applicant submitted his 5 technical resignation to the post of Manager (Projects) with effect from 15.11.2011 (AN) for being absorbed by Rajiv Gandhi Corporation. HUDCO by its Office Order No.36 dated 25.11.2011 (Annexure-A10) approved the "technical resignation" tendered by the applicant and relieved him to join the services of Rajiv Gandhi Corporation on "deputation and absorption basis".
4. Applicant having worked from 25.11.2011 to 07.12.2013 in Rajiv Gandhi Corporation was informed by the said Corporation by Office Order dated 13.12.2013 (Annexure-A24) of having relieved him with effect from 07.12.2013 from the post of General Manager (SD). Hence, applicant submitted his duty joining report on 16.12.2013 to HUDCO which was not accepted and by impugned communication dated 27.12.2013 (Annexure-A25) and applicant was informed that he had resigned from HUDCO and he had been already relieved from the services in HUDCO and as such, there was no reason for him to join for duty at HUDCO after getting relieved from Rajiv Gandhi Corporation. 6
5. Being aggrieved by the said order, applicant approached the tribunal for quashing of the order dated 13.12.2013 (Annexure-A24) whereunder he had been relieved of his duties from Rajiv Gandhi Corporation and also the communication dated 27.12.2013 (Annexure- A25) which was issued by HUDCO to the applicant refusing his request to permit him to join for duty. Insofar as first prayer namely, for quashing of the relieving order dated 13.12.2013 (Annexure-A24) issued by Rajiv Gandhi Corporation, tribunal held that said prayer was not maintainable primarily on the ground that tribunal does not have jurisdiction to adjudicate the service disputes of the employees who are on deputation and absorption to an organisation in the absence of a notification issued under Section 14(2) of the Administrative Tribunals Act, 1985 covering such organisation. In the light of direction issued by the tribunal to HUDCO to continue the services of the applicant at HUDCO by quashing the communication dated 27.12.2013 (Annexure-A25). Hence, HUDCO is before this court.
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6. We have heard the arguments of Sri Ganapathi Bhat, learned Advocate appearing for petitioner, Sri P.S.Rajgopal, learned Senior counsel appearing for first respondent, Sri N Balaji, learned Additional Government Advocate for second respondent and Smt.Sumana Baliga, learned Advocate appearing for third respondent.
7. It is the contention of Sri Ganapathi Hegde, learned Advocate appearing for petitioner that tribunal committed a serious error in arriving at a conclusion that "technical resignation" submitted by the applicant was not a resignation simplicitor. He would draw the attention of the court to the communication dated 21.10.2011 forwarded by the State Government to HUDCO whereunder they had sought for applicant being deputed to the Rajiv Gandhi Corporation for being absorbed and also the communication preceding the same. He would also draw the attention of the court to the resolution passed in the meeting of the Rajiv Gandhi Corporation held on 01.10.2011 whereunder Rajiv 8 Gandhi Corporation had resolved to obtain services of the applicant on deputation and absorption basis, as it was in the interest of said Corporation and had sought approval of the Government to depute the applicant to Rajiv Gandhi Corporation for being absorbed into its services with necessary relaxation. He would also submit that applicant who had submitted his resignation by Inter Office Memo dated 15.11.2011 (Annexure-A9) has never stated that he is submitting his technical resignation to the post of Manager (Projects) from HUDCO on absorption basis but being fully aware of the fact that he should be relieved of his services from HUDCO and for joining duty at Rajiv Gandhi Corporation, he had tendered his resignation. He would submit that applicant never intended to come back to HUDCO and he clearly meant by his resignation letter to severe all his ties with HUDCO.
7.1) He would further contend that HUDCO acting in a bonafide manner and based on the resolution of the Rajiv Gandhi Corporation dated 01.10.2011 whereunder it had been resolved to approve deputation 9 of the applicant to its Corporation to be absorbed into its services with necessary relaxation to Cadre & Recruitment Rules and also subject to approval of the Government, had relieved the applicant on 25.11.2011 and this fact was not noticed by the tribunal in proper perspective. He would further contend that applicant had given up his right to lien over the post in HUDCO pursuant to his resignation submitted on 15.11.2011 and thereafter had reported to Rajiv Gandhi Corporation. He would submit that HUDCO would not obtain resignation from its employees when they intended to go on deputation basis and on account of the applicant having submitted his resignation in HUDCO for being relieved and to be absorbed by Rajiv Gandhi Corporation, he was relieved of his duties in HUDCO and the technical resignation obtained was only for the purpose of Provident Fund contribution, gratuity, etc., and not for reporting back to duty at HUDCO. He would contend that all the dues payable to the applicant had been paid and had been relieved of his duties at HUDCO and as such, his reporting back to HUDCO did 10 not arise. Hence, he contends that tribunal committed a serious error in issuing direction to HUDCO. He would submit that when tribunal has held that first prayer was not maintainable, it ought to have dismissed the application in toto by leaving open the issue to be agitated by the applicant before appropriate forum and having held that the application insofar as first prayer was not maintainable, it ought to have dismissed the application in its entirety and alternate prayer ought not to have been granted. Hence, he prays for writ petition being allowed and O.A.No.354/2014 being dismissed.
8. Per contra, Sri P S Rajgopal, learned Senior counsel appearing for first respondent supports the order passed by the tribunal to the extent of setting aside the communication dated 27.12.2013 (Annexure- A25) and the direction issued to HUDCO to continue the services of the applicant at HUDCO and finding recorded by the tribunal that HUDCO was not justified in not accepting the duty report submitted by the applicant. However, he would hasten to add that tribunal committed a serious error in arriving at a conclusion 11 that first prayer sought for in the application was not maintainable by contending it is an erroneous finding since a Government servant or civil servant who is on deputation to a Corporation or authority and said Corporation or authority though not amenable to jurisdiction of the tribunal by virtue of employee being a civil servant, he/she would be entitled to maintain the application before tribunal and in support of his submission, he has relied upon the following judgments:
(1) ILR 1989 KAR 816 H.HOMBAIAH vs ZILLA PARISHAD (2) (1998)5 SCC 454 MAJOR M.R.PENGHAL vs UNION OF INDIA AND OTHERS 8.1) Insofar as merits of the case is concerned, by supporting the impugned order of the tribunal, he would contend that HUDCO vide paragraph 10 of its statement of objections has admitted that resignation submitted by the applicant was a technical resignation and Fundamental Rule 13 (for short 'FR' )would enable the applicant to have a lien over the post in HUDCO till his actual absorption. He would also draw the attention of 12 the court to FR 14 to contend that expression and language employed therein clearly mandates that lien cannot be given up even by consent and lien would cease to operate only on absorption and till the employee gets lien over the absorbed post, he would continue to have a lien over the post of which he was relieved. He would also submit that communication dated 18.05.2013 (Annexure-A21) whereunder the applicant had undertaken to forego past service/seniority rendered at HUDCO would be against FR 13 and FR 14.
He would also submit that technical resignation should be read with the communication dated 18.06.2013 and not in isolation. He would further submit that resignation submitted by the petitioner is not a regular resignation but a technical resignation and as such, applicant's right to have lien over the post at HUDCO would not get extinguished.
In support of his second limb of argument, he has relied upon the following judgments:
(1) (2009)4 SCC 700 STATE OF RAJASTHAN AND ANOTHER vs S.N.TIWARI AND OTHERS 13 (2) ILR 2006(1) DELHI 989 R.C.AGGARWAL vs D.T.T.D.C. LTD. AND OTHERS DISCUSSION AND FINDING ON THE POINT FORMULATED HEREINABOVE
9. Having heard the learned Advocates appearing for parties and on perusal of the records, it would clearly emerge there from that there is no dispute to the facts as narrated by the parties in their respective pleadings. However, it would suffice to recapitulate certain facts at the cost of repetition from the stage of Inter Office Memo dated 14.11.2011 (Annexure-A8) which has emanated from HRMA wing, Corporate Office, New Delhi to the Executive Director, Bangalore namely, from HUDCO, whereunder it is clearly stated that competent authority has accorded approval for "deputation and absorption" of applicant to Rajiv Gandhi Corporation and as such, said authority has been called upon by the Executive Director, Bengaluru to obtain technical resignation from the applicant. Pursuant to same, applicant by Inter Office Memo addressed to the General Manager, HRD, HUDCO, New Delhi has 14 submitted his technical resignation to the post of Manager (Projects) at HUDCO whereunder he has clearly stated that he has submitted his technical resignation. On submission of technical resignation, HUDCO, by Office Order No.36 dated 25.11.2011 (Annexure-A10) has relieved the applicant from HUDCO to enable him to join Rajiv Gandhi Corporation and in the said Office order, it is clearly stated as under:
"Accordingly, Sri S N Parasurame Gowda, Manager (Projects), Goa Development Office/Bangalore Regional Office is hereby relieved from Bangalore Regional office on 25/11/2011 (A/N) to enable him to report at M/s.Rajiv Gandhi Rural Housing Corporation Limited, Bangalore on deputation and absorption basis.
Sd/-
Executive Director"
(Emphasis supplied by us)
10. Pursuant to the aforesaid relieving order having been issued by HUDCO applicant reported to duty at Rajiv Gandhi Corporation by submitting duty joining report vide dated 28.11.2011 (Annexure-A11) whereunder he has clearly stated in an unequivocal terms to the following effect:
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"With reference to above subject, I am herewith reporting for duties on forenoon of 28.11.2011 on deputation. I may kindly be given reposting order and oblige."
(emphasis supplied by us)
11. It may also be apt and appropriate to note at this juncture itself that approval accorded by the Government of Karnataka by its communication dated 08.12.2011 (Annexure-A12) whereunder it has specifically and emphatically made clear that approval is accorded for taking services of the applicant to Rajiv Gandhi Corporation only on deputation basis and as such, it has called upon the Managing Director of Rajiv Gandhi Corporation to obtain an undertaking from the applicant. Accordingly, applicant has submitted his undertaking. In fact, the communication dated 08.12.2011 (Annexure-A14) addressed to the applicant by Rajiv Gandhi Corporation would clearly indicate that applicant was taken in to services of Rajiv Gandhi Corporation on "deputation basis" only. On account of Cadre and Recruitment Rules of Rajiv Gandhi Corporation not providing for absorption of an employee 16 on permanent basis, there were exchange of communication in this regard between Rajiv Gandhi Corporation and State of Karnataka. On account of petitioner not having been absorbed in Rajiv Gandhi Corporation and the period of deputation having been fixed as two years, applicant was relieved of his services on completion of two years period ie., on 07.12.2013 and as such, he was relieved from the post of General Manager (Social Development) with effect from 07.12.2013 vide office order dated 13.12.2013 (Annexure-A24). It is in this background, applicant submitted his duty joining report on 16.12.2013 to HUDCO for continuing his services at HUDCO. However, same was not accepted and by communication dated 27.12.2013 (Annexure-A25), applicant was informed that he has already resigned from the services of HUDCO and as such, there was no reason for him being taken to duty.
12. Being aggrieved by this action of HUDCO, applicant had initially filed writ petition challenging the order of being relieved as well as refusal of HUDCO to 17 take him to duty and said writ petition came to be withdrawn on 10.02.2014 and thereafter application in O.A.No.350/2014 was filed on 17.02.2014 before tribunal. Though issue relating to the maintainability of the application before the tribunal was seriously questioned by the petitioner and same having been partly accepted by tribunal, is now questioned by the applicant by contending that tribunal was not justified in rejecting his first prayer, answering the same would only be academic in nature for two reasons:
13. First and foremost reason being the first prayer sought before the tribunal by the applicant was for quashing of the order dated 13.12.2013 passed by second respondent - Rajiv Gandhi Corporation (Annexure-A24) relieving the applicant from the post of General Manager (Social Development) as applicant had since been absorbed by the said Corporation with effect from 31.07.2014; secondly, in view of the law laid down by Hon'ble Apex Court in the matter of MAJOR M.R.PENGHAL vs UNION OF INDIA reported in AIR 1999 SC 543, whereunder it has been held in the facts 18 obtained in the said case that appellant therein who was appointed by the Postal Department had been offered appointment to work in the Army Postal Services on the condition that he would remain a civil employee even on deputation to the Army which came to be rejected and had continued to serve in the Army as a permanent employee of postal department in which he had been appointed and in this background it came to be held that appellant therein had a lien over the post to which he has been appointed and as such, it was held that said employee had lien with the Post and Telegraphic Department though working on deputation in the Indian Army. It has been further held by Hon'ble Apex Court to the following effect:
"As stated above, although the appellant was selected by the Postal Department for appointment to the post of clerk, but he could not be given any appointment due to want of vacancy in the unit of his choice. Under such circumstances, the appellant was offered an appointment to work as a clerk in the Army Postal Service on the condition that he would remain a civilian employee on deputation in the Army. The appellant accepted the aforesaid offer and agreed to the conditions that he would revert to the civil appointment in Posts and Telegraphs Department on his release from the Indian Army Postal Service. With these 19 conditions, the appellant continued to serve in the Army as a permanent employee of the Posts and Telegraphs Department on deputation and was promoted up to the rank of a Major in the Indian Army. However, the appellant was only given a temporary commission and he worked as such till the date when his relinquishment was ordered. The aforesaid facts clearly demonstrate that the appellant has a lien with the Posts and Telegraphs Department working on deputation in the Indian Army Postal Service and at no point of time the appellant became a full-fledged army personnel. Since the appellant was not a member of the Armed Forces and continued to work as a civilian on deputation to the Army Postal Service, his case was covered under Section 14(1)(a) of the Administrative Tribunals Act. In that view of the matter, the High Court was right in rejecting the writ petition filed by the appellant, whereas the Central Administrative Tribunal erroneously accepted the claim of the appellant that he is an army personnel. We, therefore, uphold the judgment and order of the High Court dismissing the writ petition filed by the appellant. Since the appellant while holding civil post was working in the Army Postal Service on deputation, the Central Administrative Tribunal had jurisdiction to entertain and decide the original application filed by the appellant. We accordingly set aside the order dated 31-1-1997 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, and remand the case to it to decide expeditiously Original Application No. 1647 of 1996 of the appellant, on merits.
14. A Division Bench of this Court in the matter of H.HOMBAIAH vs ZILLA PARISHAD reported in ILR 20 1989 KAR 816 has held that irrespective of who passed the order, the person affected, if he is a Government servant holding a civil post under the Government, he should move the appropriate tribunal for the relief. It has been further held :
"2. We have heard Mr. H. Subramanya Jois, learned Counsel appearing for the appellant at length. It is his contention that the Chief Secretary being the Officer of the Zilla Parishad, which is a local authority, could not have suspended the petitioner pending enquiry against the alleged acts of misconduct and therefore, this Court has jurisdiction as Section 15(1) of the Act made provision for holding the actions of the State Government being questioned and not the action of other authorities answering to that description under the Constitution when there was no Notification under Sub- section (2) of Section 15 of the Act. We are not inclined to accept that argument having regard to the clear and unambiguous language employed in Section 15 read with Clause (b) of Sub-section (1). It is not the action of the Government which is liable to be questioned by the Tribunal in all cases. It is the grievance of the person who holds the post under the State, whether he is working in connection with the affairs of the State or he is on deputation to a local or other authority under the control of the State Government or of any Corporation under the control of the State Government that is to be questioned. This becomes obvious by the unambluous language as we have noticed in Clause (b), which is as follows:-21
"15(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) in relation to--
XX XX XX
b) all service matters concerning a person (not being a person referred to in Clause (c) of this sub-section or a Member, person or civilian referred to in Clause (b) of subsection (1) of Section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any Corporation."
(Underlining is by us) Therefore, irrespective of who passed the order, we are of the view that the person affected, if he is a Government servant holding a civil post under the Government, he should move the appropriate Tribunal for relief.
The view taken by the learned Single Judge is therefore correct and this Writ Appeal is dismissed.
After we have dictated this order, Sri H. Subrahmanya Jois, Advocate, moved for a Certificate of Fitness to Appeal to the Supreme Court as the ground involves a substantial question of law of general 22 importance which is required to be decided by the Supreme Court. We do not think so, for the reason we have given in the order for dismissing the appeal. Petitioner is free to move the Supreme Court under Article 136 if the petitioner is so advised."
Thus, the issue about maintainability of the application before the tribunal by an employee who is a civil servant on deputation to a Corporation or authority, which authority though would not fall within the jurisdiction of Section 15(1) of the Administrative Tribunals Act, 1985, the right of a civil servant would not extinguish such jurisdiction of the tribunal or in other words, right of such employee to knock the doors of tribunal for redressal of his grievance would not get extinguished.
15. Apart from the aforesaid conclusion arrived at by us, in the facts obtained in the instant case, we notice that subsequently, Cadre and Recruitment Rules of Rajiv Gandhi Corporation came to be amended and the applicant came to be absorbed by the Corporation with effect from 31.07.2014. Hence, the incidental question that would arise would be as to what would be the status of the applicant for the period from the date of 23 he being relieved from Rajiv Gandhi Corporation i.e., 07.12.2013 till he was absorbed into services by said Corporation i.e., till 31.07.2014?
16. In this regard, when rival contentions raised is examined, it revolves around as to whether services of the petitioner after having been relieved by HUDCO on 25.11.2011 he had lien over his post at HUDCO. In this regard, it would be necessary to note the extant Official Memorandums governing the service conditions of employees of the Government of India are concerned, as has been made applicable mutatis mutandis to the employees of HUDCO on which there is no dispute. In fact, Sri Ganapathi Hegde, learned Advocate appearing for petitioner has fairly admitted that Fundamental Rules which govern the service conditions of the Central Government employees has also been adopted by HUDCO. Under the Official Memorandum dated 26.12.2013, issue relating to lien and technical resignation has been clearly defined. The expression of 'termination of lien' has been explained in clause 9 and it reads:
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"9. 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 upon a permanent post. Unless his lien is transferred, a Government servant holding substantively a permanent post retains lien on that post."
A plain reading of the above clause would clearly indicate that a Government servant's lien on a post under no circumstances can be terminated even with his consent if the result would be leaving him without a lien upon a permanent post. To put it differently, a Government servant having a lien in a post even on being absorbed in to a permanent post, his lien over the post held by him would under no circumstances be terminated in the event of the post to which he has been absorbed does not vest him with a lien to the said post. The revised version of "Hand Book for Personnel Officers, 2013" which was governing then would indicate that issue relating to leave and technical resignation has been dealt under Chapter 37. A perusal of the same would indicate that Government employee would hold lien of a regular post, whether permanent or temporary, either immediately or on the termination of the period of 25 absence. The expression 'lien' has been explained under clause 37.1 as:
"37.1 Lien represents the right/title of a Government 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 officers who are confirmed in the post/service/cadre of entry or who have been promoted to a higher post declared as having completed the probation where it is prescribed, or those who have been promoted on regular basis to a higher post where no probation is prescribed under the rules, as the case may be. "
Clause 37.5.1 describes 'technical resignation' as under:
"37.5.1 A resignation from the service or post entails forfeiture of entire past qualifying service. The exception is technical resignation which does not result in forfeiture of past service."
Fundamental Rules 13 & 14 reads as under:
F.R. 13. A Government servant who has acquired lien on a post retains the 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;26
(c) during joining time on transfer to another post; unless he is transferred along with his title 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 earlier post; and
(d) while on leave; and
(e) while under suspension.
Provided that no lien of a Government servant shall be retained:
(i) Where a Government servant has proceeded on immediately absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption; and
(ii) On foreign service/deputation beyond the maximum limit admissible under the orders of the Government issued from time to time.] F.R. 14. [*omitted] [F.R. 14-A (a) Except as provide in Rule 13 and clause (d) of this rule, a Government servant's lien on a post may in no circumstances by terminated, if the result will be to leave him without a lien upon a regular post.
(b) [*omitted]
[c] [*omitted]
27
[d] A Government servant's lien on
a post shall stand termina-ted on his acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which he is borne.)
17. FR 13 enables the Government servant to retain his lien on the post held by him till the date of his absorption to a post or service outside his service/cadre/post in the Government. FR 14 would indicate that a lien cannot be given up even by consent.
FR 14-A(d) would clearly indicate that lien to a post would get extinguished only on absorption and till such absorption takes place, such employee would have lien over the post held by him even in case of the employee having been relieved and said lien will continue till he gets lien over another post to which he may be absorbed. In fact, clause 37.3.1 mandates retention of lien till absorption and stipulates a period of two years from the date of his appointment in the new post, such employee immediately on expiry of the period of two years either will have to resign from the service or revert back to his parent cadre. Clause 37.3.2 would indicate that where 28 the Government servant is not confirmed within a period of two years due to some reason such employee may in exceptional cases be permitted to retain the lien in the parent department/office for one more year.
18. Keeping these aspects in mind, when the facts on hand are looked into, it would clearly indicate that applicant on being relieved from HUDCO on 27.11.2011 had joined Rajiv Gandhi Corporation on deputation and absorption basis and his services was not permanently absorbed by Rajiv Gandhi Corporation within a period of two years. In fact, only on the undertaking given by the applicant on 08.12.2011 that his services would be utilized by Rajiv Gandhi Corporation on deputation basis, he was taken on board of said Corporation. The terms and conditions of deputation has been clearly explained in the communication dated 09.12.2011 (Annexure-A15) addressed to the applicant, which would indicate that period of his (applicant's) deputation would be two years. As such, on completion of period of deputation he was relieved by Rajiv Gandhi Corporation by Office order 29 No.44/2013-14 dated 13.12.2013 with effect from 07.12.2013 and as such applicant submitted his duty joining report at HUDCO on 16.12.2013 which came to be turned down by HUDCO under the impugned communication dated 27.12.2013 (Annexure-A25) on the ground that he had already been relieved and as such, he cannot be taken for duty. At this juncture, it is to be clarified that in the Inter Office Memo dated 14.11.2011 (Annexure-A8) HUDCO has resolved to obtain technical resignation of the applicant for "deputation and absorption" to Rajiv Gandhi Corporation. Even the relieving office order No.36 dated 25.11.2011 (Annexure-A10) extracted hereinabove would clearly indicate that applicant was relieved from HUDCO on 25.11.2011 and he ought to have reported at Rajiv Gandhi Corporation on deputation and not on permanent absorption basis. Even duty joining report submitted by the applicant at Rajiv Gandhi Corporation on 28.11.2011 would also clearly indicate that he had reported for duty at Rajiv Gandhi Corporation on deputation basis. Approval granted by the State 30 Government for petitioner being absorbed in Rajiv Gandhi Corporation was also on deputation basis only. In fact, petitioner has clearly admitted in its statement of objections filed before the tribunal that technical resignation dated 15.11.2011 submitted by the applicant was approved by HUDCO on 25.11.2011 to join Rajiv Gandhi Corporation on "deputation and absorption basis". As such, contention raised by HUDCO that resignation submitted by the applicant is not a technical resignation but a resignation simplicitor cannot be accepted and we are of the considered view that finding recorded by the tribunal in this regard is in consonance with extant Fundamental Rules.
19. Hon'ble Apex Court in the case of STATE OF RAJASTHAN AND ANOTHER vs S.N.TIWARI AND OTHERS reported in (2009)4 SCC 700) while examining the issue relating to interpretation of the expression 'lien' in Service Law has held, it means right of a civil servant to hold the post substantively to which he is appointed and lien of an employee is terminated from the previous post when he is appointed 31 substantively on another post and acquires lien on that post. By virtue of Fundamental Rule 13(e)(i) it cannot be gain said by HUDCO that on technical resignation tendered by applicant on 15.11.2011 he had lost his right to have lien over the post held by him at HUDCO. Hence, contention raised by learned Advocate appearing for petitioner in this regard for the reasons aforestated cannot be accepted and it stands rejected. Hence, we answer the point formulated hereinabove in the negative i.e., against petitioner-HUDCO.
Resultantly, we proceed to pass the following:
ORDER (1) Writ petition is dismissed.
(2) Order dated 31.07.2014 passed by the Central Administrative Tribunal, Bangalore Bench in O.A.No.350/2015 stands affirmed except to the extent of finding recorded by the tribunal that it has no jurisdiction to examine the legality of the order dated 13.12.2013 (Annexure-A24) in view of our 32 observation and findings recorded at paragraphs 13 and 14 hereinabove.
(3) It is made clear that consequential benefit which would flow from this order shall be extended by the petitioner to first respondent expeditiously and at any rate, within a period of two months from the date of receipt of copy of this order.
(4) No order as to costs.
SD/-
JUDGE SD/-
JUDGE *sp