Jharkhand High Court
Bindeshwari Jha vs State Of Jharkhand & Ors. on 16 June, 2017
Equivalent citations: 2017 (3) AJR 744
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
W.P.(S) No. 6865 of 2007
In the matter of an application under Article 226 of the Constitution of
India.
Bindeshwari Jha, son of Late Aniruddh Jha, resident of Village
Buddhachak, P.O. & P.S.Buddhachak, DistrictBhagalpur (Bihar)
... ... Petitioner
Versus
1. The State of Jharkhand
2. The SecretarycumCommissioner, Human Resource
Development Department, Government of Jharkhand, Ranchi
3. The ViceChancellor, Siddhu Kanhu Murmu University, Dumka
4. The Registrar, Siddhu Kanhu Murmu University, Dumka
... ... Respondents
For the Petitioner : Mr. S.S. Choudhary, Advocate
Mr. Aman Shekhar, Advocate
For the RespondentState : Mr. Sharad Kaushal, JC to AAG
For the Resp. SKM University: Mr. Mithilesh Singh, Advocate
PRESENT
HON'BLE MR. JUSTICE RAJESH SHANKAR
By Court: Heard the learned counsel for the parties.
2. In the present writ petition, the petitioner initially prayed for payment of arrears of his retiral benefits. During the pendency of the present writ petition, all admissible retiral dues were paid to the petitioner. However, the respondent no. 4 issued a letter to the petitioner vide memo no. SKMU/Pension/546/09 dated 21.11.2009 informing inter alia that the admissible date of joining of the petitioner in service shall be counted from 05.11.1966 for the purpose of fixation of UGC payscale on the post of Professor. Aggrieved by the said letter dated 21.11.2009, the petitioner filed an Interlocutory Application being I.A. No. 1238 of 2010 and prayed for suitable amendment in the writ petition. The said Interlocutory Application was allowed vide order dated 27.03.2010 and accordingly, the amendment in the prayer of the writ petition was carried out. Thus, the only prayer which is surviving in the present writ petition is for quashing the 2 impugned letter dated 21.11.2009 issued under the signature of respondent no. 4 by reasons of which the period of service rendered by the petitioner for the purpose of pension was taken from 05.11.1966.
3. The learned counsel for the petitioner submits that the petitioner was appointed on the post of "Lecturer" of Political Science, Sahebganj College, Sahebganj on the post of one Janardan Pandey, who was on leave vacancy with effect from 09.09.1964. The petitioner continued to work on the said post on temporary basis till Janardan Pandey rejoined on 09.09.1966. Thereafter, the petitioner was appointed on the fifth sanctioned post of "Lecturer" of Political Science in the said college. Thereafter, vide letter dated 05.11.1966 issued by the University Service Commission, the concurrence for the appointment of the petitioner was given with effect from the issuance of the said date i.e., 05.11.1966. The main contention of the learned counsel for the petitioner is that since the petitioner worked on temporary basis for the period from 09.09.1964 to 08.09.1966, his initial date of joining in service should be treated as 09.09.1964 for the purpose of fixation of his pension. The learned counsel for the petitioner further submits that any person who works on a post on temporary basis without any break till he is regularly appointed, the period during which he worked temporarily should be reckoned for the purpose of fixation of pension. The respondent no. 4 while issuing the impugned letter dated 21.11.2009 has not disclosed any reason as to why the admissible date of joining of the petitioner in service has been treated as 05.11.1966 in place of 09.09.1964.
4. The learned counsel for the respondent nos. 3 and 4 submits that the petitioner was appointed for a temporary period on the post of one Janardan Pandey, Lecturer in Political Science in Sahebganj College, Sahebganj on 09.09.1964, as he had proceeded on leave. Subsequently, Janardan Pandey came back 3 from leave and joined his post on 09.09.1966 and thereafter, the petitioner was appointed by the Governing Body of the College against the fifth sanctioned post of Political Science and, therefore, the period of service rendered by the petitioner against the leave vacancy cannot be taken into consideration as initial date of joining for fixation of his pension. The learned counsel for the respondent nos. 3 and 4 further submits that even during the period of leave, Janardan Pandey was having "lien" on his post with effect from 09.09.1964. Two employees cannot have the "lien" on the same post on substantive basis and since Janardan Pandey was holding the "lien" during the said period, the petitioner cannot be given the benefit of substantive appointment on the said post for the said period. The petitioner was subsequently appointed against a vacant sanctioned post on 05.11.1966 on getting concurrence of University Service Commission and as such, his substantive date of appointment has rightly been fixed as 05.11.1966. The said fact has properly been appreciated by the respondents and the decision was communicated to the petitioner vide impugned letter dated 21.11.2009 issued under the signature of respondent no. 4.
5. Having heard the learned counsel for the parties and after going through the relevant documents placed on record, the only issue to be determined in the present writ petition as to whether the petitioner, who was initially appointed on the post of one Janardan Pandey who was on leave from 09.09.1964 to 08.09.1964, has the substantive right over the said post for the said period of leave and also as to whether for the said period, the petitioner can be given the benefit of substantive appointment.
6. For considering the aforesaid issue, it would be relevant to discuss the meaning of "lien". Clause 7 of the Statute relating to "General Condition of Service of Employees of the Patna, Bihar, Ranchi, Bhagalpur, Magadh, L.N. Mithila and K.S.D. Sanskrit Universities" reads as under:
47. (1) Unless it is otherwise provided, a University servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post.
(2) Unless his lien is suspended under sub clause (3) or transferred under subclause (5) of this Article, a University servant holding substantively a permanent post retains a lien on that post;
(a) while performing the duties of the post;
(b) while on deputation, or holding a temporary post or officiating in another post;
(c) while on leave; and (3)
7. On perusal of Clause (7)(2)(c) of the statute, it would be evident that the University servant, who has been substantively appointed on a post, retains his lien on that post even while he is on leave. It is not in dispute that Janardan Pandey was substantively holding the post of "Lecturer" at that time who proceeded on leave with effect from 09.09.1964 till 08.09.1966 and rejoined his post on 09.09.1966. During the said period, the petitioner was allowed to work on the post of Janardan Pandey on temporary basis. Thus, in view of Clause 7(2)(c) of the statute, Janardan Pandey was having lien on his post while he was on leave.
8. The Hon'ble Supreme Court in "State of Rajasthan Vs. S.N. Tiwari" reported in (2009) 4 SCC 700 while discussing the issue of lien 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 5 the new permanent post. It may not require a formal termination of lien over the previous permanent post.
18. This Court in Ramlal Khurana v. State of Punjab observed that: (SCC p. 102, para 8) "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."
19. The term "lien" comes from the Latin term "ligament" meaning "binding". The meaning of lien in service law is different from other meanings in the context of contract, common law, equity, etc. The lien of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed."
9. In "Parshotam Lal Dhingra Vs. Union of India"
reported in AIR 1958 SC 36, the Hon'ble Supreme Court has held as under:
"11. The appointment of a government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a "lien" on the post. This "lien" is defined in Fundamental Rule Section 3, Chapter II Rule 9(13) as the title of a government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so (1) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract, or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfilment of the conditions for compulsory retirement or, subject to certain safeguards, on the abolition of the post or on being found guilty, after a proper enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualification. An appointment to a permanent post in government service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for 6 one year or it may be expressed simply as "on probation" without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice. An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law..............."
10. In "State of Haryana Vs. Rajindra Sareen" reported in (1972) 1 SCC 267, the Hon'ble Supreme Court has held as under:
"73. There is no controversy that with effect from April 1, 1964, the post of Deputy Director (Publicity Material) was made permanent. It is no doubt true that the respondent had completed three years of service as Deputy Director (Press) on June 27, 1965, having appointed to that post on June 27, 1962. It is also true that he continued to hold the said post till June 14, 1966. The question is whether in view of these circumstances the respondent can claim the benefit of the Proviso to Rule 10(3) of the Gazetted Service Rules. It may also be mentioned at this stage that several payslips issued by the Accountant General have described the respondent as Officiating Deputy Director (Press). Under Rule 2.42 of the Civil Services Rules we have already pointed out that a government servant officiates in a post when he performs the duties of a post on which another person holds a lien. Therefore, considering the appointment of the respondent as Deputy Director (Press) having due regard to Rules 2.42, 3.11(c) and 3.14 prima facie, it is difficult to hold that the respondent was appointed against a permanent vacancy in the post of Deputy Director (Press). In the first place, he could not have been appointed substantively as Mr Rajindra Nath had a lien on the said post. The various payslips which are on record also lead to the conclusion that the respondent's appointment must have been on officiating basis, as 7 defined under Rule 2.42 of the Civil Services Rules."
11. So far as the present case is concerned, the petitioner admittedly worked on temporary basis from 09.09.1964 to 08.09.1966 on the post of Janardan Pandey, as he was on leave during the said period. It is clear from the aforesaid discussion that only one person can have the lien over a post. Since Janardan Pandey was substantively appointed as "Lecturer" in Political Science in the said college, despite the fact that he was on leave from 09.09.1964 to 08.09.1966, the petitioner cannot be said to have been substantively appointed on the post of "Lecturer" in the said period. Rather, the petitioner was substantively appointed on the fifth sanctioned vacant post of "Lecturer" of Political Science in the college with effect from 05.11.1966 after grant of concurrence by the University Service Commission. Thus, the contention of the learned counsel for the petitioner that initial appointment of the petitioner should be counted from 09.09.1964 for the purpose of fixation of pension has no legal substance. In my considered view, the respondents have rightly decided and fixed the date of substantive appointment of the petitioner in service with effect from 05.11.1996 and the said period has been taken into consideration for the purpose of fixation of pension of the petitioner on UGC payscale.
12. Resultantly, having found no error in the impugned letter dated 21.11.2009 issued by the respondent no. 4, there is no reason to interfere with the same.
13. The writ petition being devoid of merit is accordingly dismissed.
(Rajesh Shankar, J.) High Court of Jharkhand, Ranchi Dated: 16th June, 2017 Manish/N.A.F.R.