Rajasthan High Court - Jaipur
Lokesh Sharma vs State Of Rajasthan And Ors. on 17 August, 2001
Bench: Ar. Lakshmanan, K.S. Rathore
JUDGMENT Rathore, J.
1. Since identical facts and question of law are involved in both the above appeals, they are being disposed of by this common judgment. The facts of D.B. Special Appeal No.238/2000, Lokesh Sharma v. State of Rajasthan, are taken treating it as leading case.
(2). The petitioner-appellant was appointed as an L.D.C. under the Rajasthan Subordinate Civil Courts Ministerial Establishment Rules, 1986 thereinafter to be referred as 'the Rules of 1986') vide order dated 10.11.98 and was posted as Copiest in the office of the District Judge, Sikar on probation for a period of one year.
(3). During the Probation Period the petitioner appellant submitted an application for transfer in the name of the learned Judge, Labour Court No. 2, Jaipur through the District & Sessions Judge, Sikar on 5.1.1999. The respondent No. 3, the District & Sessions Judge, Sikar forwarded the application to the Judge, Labour Court No. 2, Jaipur. Upon considering the application, the Judge, Labour Court No. 2, Jaipur issued an order dated 7.1.1999, by which, the appellant was transferred as L.D.C. in the Court of Judge, Labour Court No. 2, Jaipur.
(4). In compliance of the order dated 7.1.99, the appellant joined on the post of L.D.C. in the office of Judge, Labour Court No. 2, Jaipur on 11.1.99.
(5). The controversy in this case arose only after the order dated 6.7.2000 was passed by the Judge, Labour Court No. 2, Jaipur, by which, the services of the petitioner appellant was repatriated to his parent Department because of the reason that employees of Subordinate Civil Courts appointed under the Rules of 1986 cannot be transferred to the offices of the State of Rajasthan. The appellant knowing this fact that he cannot continue in the office of the Judge, Labour Court, No. 2, Jaipur being an office of the State of Rajasthan, submitted an application to the District & Sessions Judge, Jaipur City, Jaipur on 6.10.99 through proper channel and the same was forwarded by the Judge, Labour Court No. 2, Jaipur to the District & Sessions Judge, Jaipur City, Jaipur vide his letter dated 7.10.99. In response to the letter dated 7.10.99 the District & Sessions Judge, Jaipur City informed the Judge, Labour Court No. 2, Jaipur vide his letter dated 19.11.99 that the application for transfer has been filed and it is not possible to take the appellant on transfer under Jaipur City Judgeship.
(6). Being aggrieved and dis-satisfied with the order dated 6.7.2000, passed by the Judge, Labour Court No. 2, Jaipur, the appellant preferred a writ petition before this Court on the grounds that the order dated 6.7.2000 is against the principles of natural justice and discriminatory leading to denial of equal treatment to the appellant and also violates the provisions of Articles 14 and 16 of the Constitution of India since no opportunity of hearing was granted to the appellant. The appellant further challenged this order that in view of Rule 7 (1) of Subordinate Offices Ministerial Staff Rules. 1957 (hereinafter to be referred as 'the Rules of 1957') the post in any cadre can be filled in by transfer of a person employed in another department on equivalent post by consent of the Head of Department. The transfer of the appellant from the post of LDC working under the District & Sessions Judge, Sikar to an equivalent post of L.D.C. under respondent No. 2 - Judge, Labour Court No. 2, Jaipur is fully in accordance with the Rules of 1957. The appellant also challenged the order dated 6.7.2000 stating that in view of the Rule 25(2) of the Rules of 1957 a person working temporarily as L.D.C. whose work is not found satisfactory shall be liable to be removed from the service; (i) by giving him one month's notice, if he has served temporarily in connection with the affairs of the State for less than three years: (2) by following the procedure as laid down In the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, if he has served for more than 3 years. As the appellant has worked as L.D.C. for about one and half years he cannot be removed from service without following the procedure laid down in the Rules of 1958.
(7). The respondents have filed their reply and they have controverted the averments made by the appellant in the writ petition.
(8). Before the learned Single Judge there were three writ petitions and since Identical question of law was involved In all these petitions, the same were disposed of by a common judgment dated 31.1.2001 which is under challenge in this appeal.
(9). The learned Single Judge after hearing the arguments of the petitioners appellants as well as the respondents, observed that in view of the aforesaid facts, it emerges clearly that the petitioner had been appointed in the District Judgeship after due selection on probation basis and had not been confirmed. Thus, he had no Hen therein. There are no Rules which permit the transfer of an unconfirmed employee from one Department to another Department, therefore, there can be no doubt that the petitioner's transfer was dehors the Rules and if it is so, he had no right to continue in service in the Labour Court, Jaipur and as he had no lien in the Sikar Judgeship, he cannot be repatriated there. The learned Single Judge further deals with the word "lien" and relying upon the judgment of the Apex Court Triveni Shanker Saxena v. State of U.P. and Ors. (1), where the Apex Court dealing with the term 'lien' elaborately has quoted its meaning from various dictionaries as under:-
"The word 'lien' originally means 'binding' from the Latin legume, its lexical meaning is 'right to retain.' The word 'lien' is now variously described and used under different context such as 'contractual lien', 'equitable lien', 'specific lien' etc. In Halsbury's Laws of England, Fourth Edition, Volume 28, at page 221, para 502, it is stated:- "In its premary or legal sense 'lien' means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims are satisfied."
(10). In Stoud's Judicial Dictionary, 5th Edition, Volume 3 at page 1465, the following passage is found:-
"lien (1) A lien - (without effecting a transference of the property in a thing), is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general. So, as regards Scotland, 'lien is defined as including 'the right of retention ... or it shall mean and include right of retention....."
(11). In Words and Phrases, Permanent Edition, Vol. 25, the definition of word 'lien' when used to explain the equitable lien is given thus:
"A 'lien' from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that there is something in existence to which it is attached.
(12). At page 393 of the same volume, it is stated:
"The word 'lien' has a well known signification. In law it signifies an obligation, tie., or laim annexed to or attaching upon any property, without satisfying upon any property, without satisfying which such property cannot be demanded by its owner....' (13). Again, at page 393 of the same Volume, it is stated:
'lien' is a term of very large and comprehensive signification, but which never imports more than security..."
(14). In black's Law Dictionary, 6th Edition, at page 922, the following passage is found:
"The word 'lien' is a generic term and, standing alone, includes liens acquired by contract or by operation".
(15). The learned Single Judge, after considering the judgment of Hon'ble the Supreme Court and looking to the meaning of the word 'lien' in the various dictionaries arrived at a conclusion that since the petitioner is not confirmed on the post of L.D.C. he has no lien in the District Judgeship Sikar and cannot be transferred thereto. It was also observed that in view of the judgment in Jagdish Bihari Goswami v. State of Rajasthan and Ors. (2), this Court, after considering the statutory provisions and various judgments, came to the conclusion that (i) the employees of the subordinate courts appointed under the Rules of 1986 cannot be transferred under Rule 7 (1) of the Rules of 1957; (ii) even in case of transfer in violation of the said Rules, the transferee does not lose the lien in the parent department if he had been confirmed therein and unless his lien has been terminated as per law, he still holds a right to be repatriated to his parent department: and (iii) Rules 15, 16, 17 and 18 of the Rajasthan Service Rules, 1951 deal with the 'lien' of an employee and according to Clause (b) of rule 18 thereof, an employee is entitled to have a lien in the parent department unless he is absorbed permanently in the department where he stood transferred.
(16). The learned Single Judge has considered the case of the petitioner in the light of the aforesaid judgment and the provisions of the relevant rules and has observed that first, his transfer was not permissible in view of the Rules of 1986 nor they could claim that he had a lien in the District Judgeship Sikar. In the Labour Court, Jaipur thee are no permanent vacancies and temporary posts have been created and the same are being extended from time to time for a maximum period of one year. Therefore, the question of their being confirmed in the Labour Court, Jaipur did not arise and they merely remained as temporary/ad hoc appointees.
(17). While disposing of the writ petitions the learned Single Judge has considered this aspect and observed that undoubtedly, if a temporary employee does not have a right to continue on the post, but as the post itself is temporary and cannot be filled up by making substantive appointment, there would be no justification of relieving these two petitioners and filling up those vacancies on ad-hoc basis.
(18). The learned Single Judge also considered the judgment of State of Haryana v. Piara Singh (3), wherein, the Apex Court held that the ad hoc appointee cannot be replaced by another ad hoc employee. Thus, the petitioners were allowed to continue till the vacancies are filled up in substantive capacity with the clarification that these petitioners shall not claim any right/privilege of being continued on this post.
(19). With these observations, the writ petitions were disposed of finally.
(20). Aggrieving and dissatisfying with the judgment dated 31.1.2001 passed by the learned Single Judge the appellants submitted the present special appeal on the ground that they were duly selected under the provisions of Rules of 1986 against the permanent post and was appointed on probation basis for a period of one year. While working as such on probation the appellant was taken by inter-departmental transfer from the office of the District and Sessions Judge Sikar/Jaisalmer to the Judge, Labour Court No. 2, Jaipur. The law is well settled that a probationer is as good as a permanent employee for all practical purposes except his continuance on completion of the probation period and since the appellants have worked for about one and half year and probation period of one year expired, thus, the appellants are deemed to be confirmed after completion of period of one year probation and, without considering this aspect of the matter, the learned Single Judge has seriously erred in not considering this argument and proposition of law and wrongly arrived at the conclusion that there are no rules which permit the transfer of an unconfirmed employee from one department to another department.
(21). The learned counsel for the appellants further contended that since the appellants joined their services on 13.11.98 and their probation of one year expired on 12.11.99. and the probation period could be extended for a maximum period of six months under proviso to rule 30(1) of the Rules of 1986, thus even the extended period of probation expired on 12.5.2000 and in view of the law laid down by the Apex Court in Dayaram Dayal v. State of Madhya Pradesh and Anr. the appellant shall be deemed to have been confirmed in his post of L.D.C. with effect from 13.5.2000.
(22). Mr. Mittal further contended that the Apex Court has elaborately laid down the law relating to legitimate expectation and held that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct, unless some over riding public interest comes in the way. The change in policy can defeat a substantive legitimate expectation if it can be justified on reasonableness. It is further contended that the respondents have not come up with a case that due to public interest they have made any change in the policy of not permitting inter-departmental transfers. The respondents have also not brought on record any document to show that the transfer of an employee appointed under the Rules of 1986 to an office under the government where employees are appointed under the Rues of 1957 is not in the public interest or against the prevalent practice.
(23). Learned counsel Mr. Mittal further contended that the learned Single Judge has gone astray in deciding the status of the appellants which was never in question in the writ petition and observed that the respondent No. 2 till vacancies are filled up in substantive capacity which is erroneous.
(24). Mr. Mittal further submits that the learned Single Judge has not considered this fact that Rules of 1957 and Rules of 1986 have been promulgated by His Excellency the Governor of Rajasthan under proviso to Article 309 of the Constitution of India. The procedure of appointment to the posts of L.D.C. in both the Rules is through a competitive examination. The only difference is that under Rules of 1957 the examination is conducted by the Rajasthan Public Service Commission, while under the Rules of 1986 the examination is conducted by the concerned District and Sessions Judge. A perusal of Rule 12 (2) of the Rules of 1957 shows that a candidate for direct recruitment to the post of L.D.C. must have passed High School or Secondary Examination and similarly Rule 10(2) of the Rules, 1986 provides that a candidate for direct recruitment to the general cadre (L.D.C.) must have passed the Secondary Examination and must in addition possess a good knowledge of Hindi Devnagri Script. The minimum qualifications under both the set of rules and procedure for recruitment are same and the work to be performed by the selected persons is also of the same nature and they are getting same pay scale. In the circumstances, there is no justification for making any discrimination between them.
(25). We have heard Mr. Mittal, learned counsel appearing on behalf of the appellants and perused the averments made in the special appeal and also the writ petition and carefully gone through the judgment passed in the writ petition dated 31.1.2001.
(26). Learned counsel for the appellants cited before us a judgment reported in Munna Lal Agarwal and Ors. v. The Rajasthan High Court and Ors. (4), wherein the learned Single Judge has held as under:-
"Constitution of India-Articles 14 and 16 & 309 - Rajasthan Subordinate Civil Courts Ministerial Establishment Rules, 1958-Rules 6, 14,19 & 21 - Rajasthan Subordinate Courts Ministerial Establishment Rules 1986 - Rule 26 - Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969-Rules 2 & 11(3), (4) & (5) - Seniority of Lower Division Clerks absorbed as surplus employees in accordance with provisions of 1969 Rules and appointed on purely temporary basis-Appointments not preceded by any selection by a competent authority nor made in accordance with provisions of any statutory Rules nor on basis of any administrative order-Order of absorption of such appointees indicating them as holding temporary or ad hoc posts at time of this being declared as surplus in the census Department-Absorption of such appointees in Judgeship of Jaipur City made on temporary basis subject to their passing a competitive examination-appointees passing Competitive Examination and confirmed in 1982-Whether such appointees can be assigned seniority on basis of their total length of service or even on basis of the date of their appointment in Judgeship of Jaipur City-No-Words and phrases-Meaning of word 'Ordinary' in Rules.
All such appointees (Respondents 3 to 5) were appointed in the Census department on purely temporary basis against ad hoc posts and therefore, the appointment cannot be treated as one made after following the procedure prescribed for making regular selection. None of them can be treated as member of service of erstwhile Census Department and their appointment continued to be purely temporary and ad hoc on their absorption in service of Judgeship of Jaipur City. Therefore, these appointees (respondents 3 to 5) cannot be assigned seniority on basis of their total length of service or even on basis of date of their joining service in the said Judgeship. The word 'ordinarily' means regular, usual; normal; common; according to established order; not characterized by peculiar or unusual circumstance. The word 'ordinarily used in Rule 21 of 1958 Rules and Rule 26 of 1986 Rules signifies that in normal circumstances, seniority shall be determined from date of order of confirmation in the grade, and the word 'ordinarily' cannot be stretched too for to confer power on the complainant authority to assign seniority to them or to others similarly situated by counting their total length of service which include service rendered on ad hoc or temporary appointments'.
(27). We have carefully gone through the Rules of 1957 and Rules of 1986 and find that the ratio decided in the judgments given in M.P. Tiwari v. Union of India (5), Triveni Shanker Saxena (supra) and Jagdish Bihari Goswami v. State of Rajasthan and Ors. (supra), and the law laid down by the aforementioned judgments fully applicable to the instant case and also squarely cover the present controversy because of the reasons that the appellants were appointed under the Rules of 1986 as LDCs in the office of the D.J. Sikar/Jaisalmer and not under the Rule of 1957. The Rules 1986 do not permit transfer of an employee to the government department and it only permits transfer from one Judgeship to another. Similarly, under the Rules of 1957 the appellants could not have been posted on inter-departmental transfer basis in the office of Labour Court No. 2, Jaipur since they were governed by the Rules of 1986 wher in such transfer/posting is not permissible. In our opinion, the transfer of the appellants in the office of Labour Court No. 2, Jaipur on inter-departmental transfer basis was against the Rules of 1986 and also Rules of 1957 and since they were not having any lien with the D.J. Sikar/Jaisalmer they cannot be repatriated to their parent department i.e. D.J. Sikar/Jaisalmer and similarly, they cannot be absorbed in the office of Labour Court No. 2, Jaipur under the Rules of 1957.
(28). Therefore, we are fully agree with the observations made by the learned Single Judge. We do not find any good reason to interfere in the judgment passed by the learned Single Judge dated 31.1.2001.
(29). Hence, the appeal deserves to be dismissed and is accordingly dismissed as being devoid of merit.