Allahabad High Court
Dr. Radhe Shyam Prasad vs Dr. Ram Manohar Lohia National Law Univ. ... on 4 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2050
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- SERVICE SINGLE No. - 32839 of 2019 Petitioner :- Dr. Radhe Shyam Prasad Respondent :- Dr. Ram Manohar Lohia National Law Univ. Thru Registrar &Anr Counsel for Petitioner :- Prashant Kumar Srivastava Counsel for Respondent :- Vinod Kumar Yadav,Manjiv Shukla Hon'ble Abdul Moin,J.
1. Supplementary affidavit filed today is taken on record.
2. Heard learned counsel for the petitioner and Sri Manjiv Shukla, learned counsel appearing for respondent nos. 1 and 2.
3. By means of the present petition, the petitioner has prayed for the following main reliefs:-
"(i) To issue a writ, order or direction in the nature of mandamus directing the respondent no.1 and 2 to allow the petitioner to rejoin on the post of Assistant Professor in parent respondent no.1 University, immediately after giving a proper opportunity to complete the notice period under respondent no.4.
(ii) To issue a writ, order or direction in the nature of certiorari quashing the letter dated 30.03.2019 (Annexure No.11 to this writ petition) as well as Email dated 05.08.2019 (Annexure No.12 to this writ petition) through which the respondents no.1 and 2 have intentionally, malafidely and with bad intention cancelled/withdrawn the letter dated 26.04.2018 through which the two years further extension of lien was granted.
(iii) To summon the entire records (including the records of executive council) related to the cancellation/withdrawal of letter dated 26.04.2018 through which the two years further extension of lien w.e.f. 29.04.2018 till 29.04.2020 was granted."
4. The case set forth by the petitioner is that he was appointed in Dr. Ram Manohar Lohia National Law University (hereinafter referred to as the ''University') as Assistant Professor on 01.10.2013. He was confirmed in the University vide Office Memorandum dated 18.02.2015, a copy of which is Annexure-4 to the writ petition. In December/January, 2017, the University of Petroleum and Energy Studies Dehradun, Uttarakhand (hereinafter referred to as the ''Petroleum University') notified vacancies for different posts in different categories and the post of Associate Professor was one of the advertised vacancies. The petitioner finding himself to be eligible against the aforesaid vacancy of Associate Professor and wanting to apply for the same sought permission from respondent no.1 University vide his letter dated 06.02.2017, a copy of which is Annexure-5 to the writ petition. The University issued the No Objection Certificate dated 08.02.2017 permitting the petitioner to apply for the post of Associate Professor in the Petroleum University which is said to be a private University. Copy of No Objection Certificate dated 08.02.2017 has been filed as Annexure SA-3 to the supplementary affidavit. It is contended that the petitioner got selected on the post of Associate Professor in the Petroleum University vide appointment letter dated 11.05.2017 and in pursuance thereof the petitioner joined on the said post. After joining, the petitioner through his letter dated 24.03.2017 requested respondent no.1- University for grant of three years' lien w.e.f. 01.05.2017 and also requested for his relieving from respondent no.1-University so that he may join his services in the Petroleum University. Copy of the letter dated 24.03.2017 is Annexure-7 to the writ petition. In pursuance to the application of the petitioner, respondent no.1 University through its order dated 19.04.2017, a copy of which is Annexure-8 to the writ petition, granted the petitioner one year's lien w.e.f. 01.05.2017 for joining on the post of Associate Professor in the Petroleum University. Prior to expiry of his lien of one year, the petitioner through his application dated 19.03.2018, a copy of which is Annexure-10 to the writ petition, applied for extension of his lien for two years w.e.f. 01.05.2018. The respondent no.1 University through its order dated 26.04.2018, a copy of which is Annexure-11 to the writ petition, extended the lien of the petitioner for two years till 29.04.2020 in anticipation of approval from the Executive Council. It is contended that on 05.08.2019, the petitioner received an email by which respondent no.1 University informed the petitioner that through letter dated 30.03.2019, which was also attached with the email and a copy of which is Annexure-12 to the petition, the order dated 26.04.2018 extending the lien of the petitioner till 29.04.2020 has been withdrawn.
5. Learned counsel for the petitioner contends that at no stretch of time the petitioner had ever received the letter dated 30.03.2019 rather it was for the very first time through email dated 05.08.2019 that he has been informed about the letter dated 30.03.2019. It is also contended that no opportunity of hearing was given to the petitioner prior to the respondents issuing the impugned order dated 19.03.2019. Taking into consideration the aforesaid, the petitioner sent a representation dated 09.08.2019, a copy of which is Annexure-14 to the writ petition, requesting the respondents to allow him to join the services of the University but to no avail and hence the present petition with the aforesaid reliefs.
6. Learned counsel for the petitioner contends that the impugned order dated 30.03.2019 by which lien which had been granted to the petitioner through the order dated 26.04.2018 up to 29.04.2020 could not have been withdrawn without giving any opportunity of hearing to him and as such the order dated 30.03.2019 is patently vitiated on this ground. Learned counsel for the petitioner also contends that the ground which has been taken for cancellation of the lien which was up to 29.04.2020 i.e. the petitioner having been confirmed in the Petroleum University cannot be said to be a valid ground as the Fundamental Rules as issued by the State Government admittedly applicable on the University, shall not be applicable where an employee of the Government is substantively appointed or confirmed in a private University, in this case the Petroleum University. In this regard, learned counsel for the petitioner has placed reliance on an unreported judgment of the Rajasthan High Court in the case of Anil Shukla vs. National Council for Teacher decided on 31.05.2001.
7. On the other hand, Sri Manjive Shukla, learned counsel appearing for respondents no. 1 and 2, submits that the petitioner had applied through proper channel for the post of Associate Professor in the Petroleum University. Through an order dated 19.04.2017, the petitioner had been granted a lien for one year for the purpose of his joining in the Petroleum University w.e.f. 01.05.2017. Prior to the said period coming to an end the petitioner had applied through his application dated 19.03.2018 for extension of lien for a period of two years w.e.f. 01.05.2018. However, the petitioner concealed the fact that he has already been confirmed in the Petroleum University w.e.f. 11.12.2017. Without knowing this fact, through an order dated 26.04.2018, the lien of the petitioner had been extended till 29.04.2020. However, it was indicated in the said order that the extension was being granted in anticipation of approval from Executive Council. Subsequently, in the 35th meeting of the Executive Council held on 08.12.2018, a copy of which is Annexure SA-1 to the supplementary affidavit, it was resolved that with regard to certain teachers including the petitioner, consequent upon their selection in the Government/other organizations/Universities, the lien be restricted only until completion of probation period by the employees referred to in the Agenda Item No.17. Sri Manjive Shukla, learned counsel appearing for respondent nos. 1 and 2 contends that the name of the petitioner finds place in Agenda Item No.17 at serial no.1. Consequently when the fact of the petitioner having been confirmed in the Petroleum University on 11.12.2017 came to the knowledge of respondent no.1-University, the order dated 30.03.2019 was passed by which earlier order dated 26.04.2018 was withdrawn. Sri Shukla also contends that taking into consideration Fundamental Rule 14 of the Financial Handbook, the petitioner cannot be permitted to hold two liens on two posts i.e. on the post of Assistant Professor in the University of respondent no.1 and on the post of Associate Professor in the Petroleum University once he has admittedly already been confirmed on 11.12.2017 in the Petroleum University. Thus, taking into consideration the aforesaid facts, the order dated 30.03.2019 has been correctly passed and this order was in fact communicated to the petitioner by means of a registered letter sent on 02.04.2018 at the permanent address of the petitioner and subsequently this fact was also communicated to the petitioner through email dated 05.04.2019. Sri Shukla also places reliance on the judgments of Hon'ble Apex Court in the cases of State of Rajasthan and another vs. S.N. Tiwari and others - (2009) 4 SCC 700 and The Sindhu Resettlement Corporation Ltd. vs. The Industrial Tribunal of Gujarat and others - [1968] 1 SCR 515.
8. Heard learned counsel for the contesting parties and perused the records. From the arguments advanced by the learned counsel for the parties and perusal of records, it comes out that the petitioner was a confirmed Assistant Professor in the University of respondent no.1. He had applied through proper channel for selection and appointment on the post of Associate Professor in the Petroleum University in terms of the advertisement issued by respondent no.4. A ''No Objection Certificate' had been granted by the University of respondent no.1 to the petitioner for applying in pursuance to the said advertisement as would be apparent from perusal of ''No Objection Certificate' dated 08.02.2017. Once the petitioner was declared as selected on the post of Associate Professor in the Petroleum University, he applied for lien through his application dated 24.03.2017 which lien was accorded by the University of respondent no.1 for a period of one year w.e.f. 01.05.2017 vide order dated 19.04.2017. Thereafter the petitioner applied for extension of lien for two years with the University of respondent no.1 w.e.f. 01.05.2018. A copy of the application is on record having been filed as Annexure-10 to the writ petition. However, prior to the petitioner applying for extension of lien for two years, he had already been confirmed on 11.12.2017 in the Petroleum University. However, this fact has been concealed/suppressed in the application by the petitioner seeking extension of lien for two years. Be that at it may, the application for extension of lien for two years was approved by the University of respondent no.1 through its order dated 26.04.2018 and the lien of the petitioner was extended up to 29.04.2020. A perusal of the order dated 26.04.2018 would indicate that the same was being passed in anticipation of approval from the Executive Council. The Executive Council in its meeting dated 08.12.2018 vide Agenda Item No.17 took a decision that a lien would be restricted only until completion of a probation period by the employees referred to in the said Agenda. As it came to the knowledge of respondent no.1-University that the petitioner already stands confirmed w.e.f. 11.12.2017 in Petroleum University consequently the order dated 30.03.2019 was sent to the petitioner at his permanent address through registered post by which the petitioner was informed that earlier order dated 26.04.2018 has been withdrawn/cancelled taking into consideration the resolution of the Executive Council of the respondent no.1-University in its meeting dated 08.12.2018. Subsequent thereto, the petitioner has also been communicated the said order dated 30.03.2019 by means of an email dated 05.08.2019.
9. The question would be as to whether an employee can hold two liens simultaneously. The issue would be no longer res-integra taking into consideration the specific provisions of Fundamental Rule 14, which reads as under:-
14. (a) The lien of a Government servant on a permanent post which he holds substantively shall be suspended 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 this rule.
10. A perusal of the aforesaid provisions of Fundamental Rule 14 would indicate that a lien of a Government servant on a permanent post which he holds substantively shall be suspended if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. The applicablity of Fundamental Rules on respondent no.1 University is admitted by both the learned counsel for the respective parties. As such, once the petitioner was permanently appointed as Associate Professor in Petroleum University consequently it cannot be said that because the respondent no.1 University had extended the lien of the petitioner up to 29.04.2020 as such the lien of the petitioner in respondent no.1 University could not be terminated earlier more particularly when the extension order dated 26.04.2016 itself stipulated that the same was being passed in anticipation of approval from the Executive Council. The provisions of Fundamental Rules are categoric and once the petitioner admittedly was confirmed as Associate Professor in the Petroleum University on 11.12.2017 accordingly it cannot be said that there is any error in the respondent nos. 1 and 2 terminating the lien of the petitioner and withdrawing the order dated 26.04.2018 by which lien of the petitioner had been extended up to 29.04.2020 more particularly when the order dated 26.04.2018 was itself subject to approval from the Executive Council.
11. So far as the judgment of Rajasthan High Court in the case of Anil Shukla (supra) is concerned, suffice to state that the said case pertains to an employee of a private non-aided institution joining in a registered educational society under the Societies Registration Act and in such facts Rajasthan High Court held that there cannot be any question of keeping a lien. In the present case, it is admitted that the Fundamental Rules are applicable on the respondent no.1 University and thus the said judgment of Anil Shukla (supra) would not be applicable in the facts of the present case.
12. The matter pertaining to grant of lien has been considered by the Apex Court in the case of S.N. Tiwari (supra) wherein the Apex Court has held as under:-
"17. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post.
18. This Court in Ram Lal Khurana Vs. State of Punjab [ (1989) 4 SCC 99] observed that:
"8.....Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed."
13. Likewise, the Apex Court while dealing with a case of two Corporations in the case of The Sindhu Resettlement Corporation Ltd. (supra) has held as under:-
"The case put forward on behalf of the respondents before the Industrial Tribunal was that respondent No. 3 was a permanent employee of the appellant and, when he joined the service of Sindhu Hotchief in the year 1953, he only went there on deputation or transfer, so that the continued to hold a lien on his permanent post in the appellant Corporation. Two facts, no doubt, support this plea. One is that Sindhu Hotchief was only a Subsidiary Company of the appellant, and the other is that, in its order dated 24th September, 1953, the appellant merely stated that, with effect from the 18th September, 1953, the services of respondent No. 3 were placed at the disposal of Sindhu Hotchief. No specific order was passed terminating his services in the appellant Corporation. Though this circumstance would raise a presumption that respondent No. 3 did not cease to be an employee of the appellant when this order was issued on 24th September, 1953, this presumption is rebutted by two circumstances. The first is that respondent No. 3 was appointed in Sindhu Hotchief under the order dated 5th September, 1953, which laid down that in that Company he would be on a probation for a period of three months in the first instance. The probationary period may have to be further extended by any period upto three months. The confirmation of his appointment would be considered at the end of his probationary period and would depend on the efficiency and utility of his services to Company. Thereafter, respondent No. 3 continued to serve in that Company until 20th February, 1958, i.e. for a period of about 4 1/2 years. Clearly, he must have been confirmed in his appointment in that company. Once he was confirmed in Sindhu Hotchief, he could obviously not continue to be an employee of the appellant-corporation simultaneously."
14. Accordingly, when the facts of the instant case are tested at the touchstone of law laid down by the Apex Court in the case of S.N. Tiwari (supra) and The Sindhu Resettlement Corporation Ltd. (supra), what comes out is that the petitioner legally and validly could not be permitted to have two liens i.e. one lien in the respondent no.1 University and other lien in the Petroleum University and consequently there does not appear to be any error in the order passed by the respondent no.1 University withdrawing the earlier order dated 26.04.2018 and in terminating the lien of the petitioner upon his confirmation in the Petroleum University on 11.12.2017.
15. So far as the plea of natural justice is concerned, it is settled proposition of law that natural justice is not an empty formality rather the employee asserting violation of principles of natural justice would have to indicate the prejudice that has been caused to him on account of non-observance of the principles of natural justice. In this regard, suffice would be to cite the judgment in the case of Aligarh Muslim University v. Mansoor Ali Khan - AIR2000SC2783, wherein the Court after considering the judgment in the case of M.C. Mehta v. Union of India and Ors.- [1999]3SCR1173 has held that an order passed in violation of natural justice need not be set aside in exercise of the writ jurisdiction unless it is shown that non- observance has caused prejudice to the person concerned for the reason that quashing the order may revive another order which itself is illegal or unjustified. The Apex Court also considered the judgment in S.L. Kapoor v. Jagmohan - [1981]1SCR746 , wherein it has been held that in a peculiar circumstance observance of the principles of natural justice may merely be an empty formality as if no other conclusion may be possible on admitted or indisputable facts. In such a fact-situation, the order does not require to be quashed if passed in violation of natural justice. The Court came to the conclusion that a person complaining non-observance of the principles of natural justice must satisfy that some real prejudice has been caused to him for the reason that there is no such thing as a merely technical infringement of natural justice.
16. As such, once the facts are undisputed and it clearly comes out that the petitioner already stood confirmed in the Petroleum University on 11.12.2017 but concealing this fact, he had applied for extension of his lien for two years through his application dated 19.03.2018 and the application for extension of lien for two years i.e. till 29.04.2020 was allowed by respondent no.1 University through order dated 26.04.2018 but in anticipation of approval from the Executive Council which in its meeting dated 18.12.2018 had resolved that the lien would only be granted till the completion of the probation period and admittedly the petitioner has been confirmed in the Petroleum University, as such, even if the petitioner would have been accorded the opportunity of hearing by the respondent no.1 University, the same would not have made any difference. Even otherwise, this Court has already considered the issue raised by the petitioner threadbare and does not find any illegality or infirmity in the impugned order dated 19.03.2018.
17. Taking into consideration the aforesaid discussion, the writ petition is dismissed.
Order Date :- 4.12.2019 A. Katiyar