Punjab-Haryana High Court
Dr. Sushil Kumar Mahi vs P.G.I.M.E.R. Chandigarh And Others on 8 February, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO. 21624 OF 2011
DATE OF DECISION: 8th February, 2013
Dr. Sushil Kumar Mahi ..Petitioner
Versus
P.G.I.M.E.R. Chandigarh and others ..Respondents.
CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE.
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN.
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Puneet Bali, Sr. Advocate with
Mr. Vibhav Jain, Advocate, for the petitioner.
Mr. Deepak Sibal, Advocate, for respondents No.1 & 2.
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A.K.SIKRI, CHIEF JUSTICE Let us recapitulate the facts and then the issue involved before dealing with the decision dated 11.08.2011 rendered by the Central Administrative Tribunal which is the subject matter of judicial review in the present writ petition filed invoking the jurisdiction of this Court under Articles 226/227 of the Constitution of India.
2. The petitioner joined respondent No.1, namely, Post Graduate Institute of Medical Education & Research, Chandigarh (PGIMER) as Senior Resident in September, 2000 on three years tenure post. Thereafter, he was appointed as Research Associate from January, 2004 to July, 2004. After serving as Medical Officer at Ambala under the Haryana Civil Medical Services (HCSM) from July, 2004 till December, Civil Writ Petition No. 21624 of 2011 2 2005, the petitioner again joined PGIMER in December, 2005 as Assistant Professor (Internal Medicine) to which post he was appointed vide appointment letter dated 21.12.2005. The service of the petitioner was to be governed by Central Civil Services (Conduct) Rules, 1964 as well as Central Civil Services (Classification, Control and Appeal) Rules, 1965. While he was working on the said post in PGIMER, he again sought to change gears in so far as his service career is concerned. This time he applied for the post of Senior Medical Officer in the State of Haryana. He requested his employer PGI to give 'No Objection Certificate' which was granted vide letter dated 27.11.2008. After undergoing the selection process, the petitioner was duly selected as Senior Medical Officer in the State of Haryana and was issued letter of appointment dated 17.02.2009. One of the stipulations in the said appointment was that the petitioner would be put on probation for a period of two years from the date of joining which could be extended upto three years. To accept the said offer of appointment as Senior Medical Officer under the State of Haryana, it became necessary for the petitioner to resign from P.G.I. He thus submitted his request letter dated 09.07.2009 seeking to resign from service. At the same time he wanted to retain his lien over the substantive position in P.G.I. The resignation letter of the petitioner was accepted by the Director, P.G.I. vide communication dated 23.09.2009. However, at the same time, his request to retain the lien was specifically rejected. Though the petitioner joined duties with the new employer after resigning from the P.G.I., he insisted that he should have been allowed to retain his lien and rejection of his request for retaining lien in this behalf was not proper. The petitioner Civil Writ Petition No. 21624 of 2011 3 wrote letters dated 15.10.2009 and 18.11.2009 in this behalf to respondent No.2 seeking personal hearing. As the request was rejected by the respondents vide letter dated 29.12.2009, the petitioner thereafter served legal notice dated 22.04.2010 calling upon the respondents to reconsider his case for retaining lien. In response to this legal notice, reply dated 14.06.2010 was sent wherein it was stated that as per Rules, the person holding substantive and regular post is allowed to retain lien for two years which can further be extended for one more year under exceptional circumstances. The request of the petitioner for resignation was accepted but his lien was not retained in the public interest as at that point of time there were four vacancies in the cadre of Assistant Professors in the Department of Internal Medicine and keeping in view the acute shortage of Faculty in the Department of Internal Medicine, it was decided that the lien of the petitioner should not be retained as in that case one vacancy will have to be kept till the expiry of lien.
3. The petitioner thereafter approached the Central Administrative Tribunal by filing Original Application (O.A.) under Section 1 of the Administrative Tribunal Act, 1985 with the prayer that he be granted substantive lien for two years or more as in similar cases and as per the service rules. However, his plea has not found favour with the Tribunal and holding it to be legally unsustainable, the O.A. filed by the petitioner is dismissed vide impugned orders dated 11.08.2011.
4. From the orders of the Tribunal, it would become clear that the challenge was grounded in the following submissions:-
a) The resignation letter tendered by him was conditional in character inasmuch as along with the resignation he had Civil Writ Petition No. 21624 of 2011 4 asked for retention of lien as well and therefore, it could not be validly accepted without the retention of lien.
b) Dubbing the orders of the respondents as arbitrary, the petitioner argued that under the same circumstances certain other Doctors in the employment of P.G.I. have been allowed to retain their lien and the petitioner could not be meted out a discriminatory treatment.
5. The Tribunal rejected both the contentions. Reading of the resignation letter submitted by the petitioner, the Tribunal held that it was not at all conditional in character. The exact language of the resignation letter is reproduced in para No. 8 and observation thereupon is contained in para No. 9 of the order. We would like to reproduce the same as this very submission is advanced before this Court as well:-
"The resignation letter of the applicant (Annexure A-4) is extracted hereunder:-
Subject: Permission to join as Senior Medical Officer in Health Department, Haryana by accepting my resignation w.e.f. 9.8.2009.
Respected Sir, With due regard I am stating that I have applied for S.M.O. post in Health Department, Haryana, through proper channel, after getting N.O.C. from Institute (copy attached) and got selected for the same. Due to my personal and family compelling reasons, I wish to join over to Health Department, Haryana and want to retain my lien at PGIMER, Chandigarh, as per Rules. So kindly relieve me from Institute and allow me to join my new assignment latest by 05 August, 2009, by retaining my lien at PGIMER, Chandigarh, and by accepting my resignation w.e.f. 9.8.2009."Civil Writ Petition No. 21624 of 2011 5
9. A perusal of the above extraction would indicate that it did not at all, purport to be conditional in character. It did, however, consist of two parts. The former part thereof announced that he wanted to resign due to 'personal and family compelling reasons'. It was in the latter part of the communication that the applicant announced that he wanted to retain his lien at PGIMER, Chandigarh.
Appropriately enough, he had added that the request made by him for retention of the lien may be allowed 'as per rules'. The competent authority has, as already indicated, accepted the resignation tendered by the applicant but negatived the request made by the applicant for retention of his lien. It was after the grant of order (Annexure A-7) that the applicant moved over to join as a member of HCMS. It is apparent from the record that he was initially posted at Panchkula. However, on his request, he was allowed to join as SMO, Hisar. If the applicant, in his discretion, considered the contents of Annexure A-4, to be a package, it was open to him to say so at the earliest. He could have, in that eventuality, declined to move over to the HCMS/Health Department in the State of Haryana and could have approached the competent authority with a plea that his package could not be accepted in part."
6. We find the dissection exercise of the said letter carried out by the Tribunal and culling out the intention behind the same is correct and valid. The petitioner, in any case, wanted to join the post of Senior Medical Officer in Health Department, State of Haryana, for which he had applied and was selected. It is for this reason he had submitted the Civil Writ Petition No. 21624 of 2011 6 resignation. He categorically stated that he was doing so because of his personal and family compelling reasons. Pertinently even in the writ petition the petitioner has averred that the reason why he opted for the post of Senior Medical Officer in the State of Haryana was because of the fact that his two years old son was suffering from multiple deformities since birth and he was staying with his mother in Hisar. For this reason, the petitioner wanted to quit the service of P.G.I. and join as Senior Medical Officer in Haryana. After his selection, he sought resignation.
7. In so far as the request for retention of his lien is concerned, he submitted that the same be allowed as per rules. Letter no where says that the resignation was subject to conditions upon retaining his lien at P.G.I. Even otherwise, the petitioner cannot by his conduct treat the said letter as resignation. When the resignation was accepted and in the same letter he was informed that he is not allowed to retain his lien, the petitioner could have responded by saying that since the resignation letter was conditional, acceptance of this nature was not acceptable to him. He did not choose to do so. Instead in so far as the resignation part is concerned, he accepted the same; got himself relieved from P.G.I.; and even joined the new place of posting. Therefore, it is not permissible for him to challenge the acceptance on the ground that it was conditional. In view of these facts emerged on record, the judgments of Hon'ble Supreme Court in case Dr. Prabha Atri Vs. State of U.P. and others 2003(1) Supreme Court Cases 701 and Union of India and others Vs. Gopal Chandra Misra and others 1978(2) Supreme Court Cases 301, are not applicable in the present case.
Civil Writ Petition No. 21624 of 2011 7
8. The only aspect in these circumstances which needs consideration is as to whether the petitioner had a right to retain his lien 'as per rules'. If the rules so provide, then it becomes the right of the petitioner to retain his lien. In reply dated 14.6.2010 to the legal notice, the respondents have admitted that as per rules a person holding a substantive and regular post is entitled to retain his lien for two years, extended by another year. However, his case is rejected purportedly in public interest. Admission in this behalf in the reply dated 14.06.2010 is as under:-
"It is to inform you that as per rules, a person holding a substantive and regular post is entitled to retaining his lien for two years which can further be extended to one more year under exceptional circumstances. The request of Dr. Sushil Kumar Mahi for resignation has been accepted, however, his lien has not been retained in the public interest.........."
9. We would like to mention that under Section 31 of the Post Graduate Institute of Medical Education and Research Chandigarh Act, 1966, power is given to Central Government to make rules. In exercise of this power, rules were framed in the year 1967 but there is no specific provision about lien. At the same time, we find that in the written statement, the P.G.I. has mentioned that there is a decision of the Central Government which is applicable in the instant case. Relevant portion of the said decision is extracted in the written statement filed before the Tribunal which is reproduced hereinbelow:-
"4) Retention of lien in parent department in the case of Central Government servants getting employed under State Governments:-Civil Writ Petition No. 21624 of 2011 8
The question as to the procedure that should be followed in respect of those Central Government employees who apply for posts under the State Governments on their own volition in response to advertisements or circulars including those by the State Public Commissions has been under consideration. It has been decided that the following procedure may be adopted in such cases by the administrative authorities:-
1) The applications may be forwarded subject to
the instructions issued by the Central
Government from time to time and within the
limits laid down for forwarding application for outside posts.
2) Temporary Central Government servants should, as a matter of rules, be asked to resign at the time of release from the parent department/office. An undertaking from them to the effect that in the event of selection for the posts applied for they will resign from their posts may be taken from them at the time of forwarding the applications.
3) In respect of the permanent and quasi
permanent employees, in the terms on which
the Central Government servant goes over to
a post under a State Government may be
settled mutually between the Central
Government and the State Government
concerned. The permanent Government
servants will be governed by the instructions contained in the Government of India, Civil Writ Petition No. 21624 of 2011 9 Ministry of Finance, Letter No. F.1 (56)-B/63, dated the 16th November, 1967 (vide Annexure below).
The permanent/quasi
permanent/Government servant should
either revert to the parent Department/office within the period of two years or resign from the parent department/office at the end of that period.
Quasi-permanent Central Government servants will be allowed to revert within two years or at the end of two years, to the posts held by them in the parent department under the Central Government, if the posts held by them continue to exist on the date of their reversion and if they are eventually confirmed in the parent department/office, the liability to pay leave salary and pension contribution for the period of service rendered by them in the State Government shall be borne either by the State Government, if the appointment is treated by that Government as on transfer or by the quasi-permanent Government servants themselves.
An undertaking to abide by these
conditions may be taken from
permanent/quasi permanent Government
servants at the time of forwarding their
applications."
Civil Writ Petition No. 21624 of 2011 10
10. However, this Rule does not give indefeasible right to an employee to leave the job and to retain his lien in the parent office in all circumstances. The position may be different in those cases where an employee goes to other department on deputation. In those cases he can retain his lien in the parent office for specified period, as a matter of right because he remained the employee in the parent department and his deputation period is temporary arrangement, except in those cases where such deputationist gets absorbed. However, in the instant case, we are dealing with a situation where the petitioner wanted to leave the respondent, for good. On his resignation, he severed the relationship with the respondent but wanted to retain his lien. We are of the opinion that in such circumstances, it would depend upon the exigencies and circumstances in the parent office. Therefore, we hold that the competent authority may refuse an employee to retain the lien if public interest so warrants.
11. The petitioner herein was specifically told that his request for lien was not accepted. The respondents had rejected the request purportedly in public interest. The respondents have specifically stated that the request of the petitioner was rejected on the ground that there was acute shortage of senior Doctors in the Department of Internal Medicine. Retention would have meant blocking a post of Assistant Professor for at least two years which the PGI did not want as it would have led to further shortage. The petitioner was specifically told about the same while accepting his resignation. As already stated above, he still chose to leave the job in PGI and decided to join as Senior Medical Officer in the State of Haryana where he wanted to join in any case Civil Writ Petition No. 21624 of 2011 11 because of his purported personal reasons. The petitioner now, therefore, cannot turn around and state that his lien should have been retained.
We thus do not find any infirmity in the order of the Tribunal. Resultantly, we dismiss the present petition.
(A.K.SIKRI) CHIEF JUSTICE (RAKESH KUMAR JAIN) JUDGE 8th February, 2013.
'ravinder'