Patna High Court
Syed Mohammad Zeyaul Haque vs The State Of Bihar And Ors. on 10 October, 1991
Equivalent citations: 1992(1)BLJR197
JUDGMENT
S.N. Jha and D. Sinha, JJ.
1. The petitioner, a permanent Government servant of the Road Construction Department, who was appointed as Sub-divisional Clerk on 18th September 1960 and later promoted as Junior Accounts Clerk on 4th August 1962. By order dated 15th April, 1971 he was confirmed as senior Accounts Clerk in the Bridge Design Circle of the then Public Works Department with effect from last March, 1969. Later, when a work Circle of the State Family Welfare Bureau (hereafter referred to as 'Bureau') under the Health Department was created, the services of Accounts Clerks were needed. The petitioner opted to go on deputation vide his application dated 12th January, 1982 and pursuant to the letter of the Bureau dated 25th February 1982 the petitioner joined the Bureau on 16th March, 1982 after being relieved from the department. Thereafter, the petitioner was posted at various places under the Bureau. A letter dated 12th July, 1989 was sent to the petitioner by the Superintending Engineer, Bridge Design Circle, Road Construction Department, directing him to join the post of Senior Accounts Clerk in the said Circle by 25th July, 1989, failing which his lien on the post in the said Circle will be terminated. A perusal of the said letter, which has been marked Annexure-6 to the petition, further shows that a request was made to the Executive Engineer. Cell, State Family Welfare Bureau, Patna, to relieve the petitioner immediately after taking over the charge of cash etc. from him. The Executive Engineer of the Bureau in reply to the aforesaid letter dated 12th July 1989 requested the Superintending Engineer of the Bridge Design Circle, vide his letter dated 9th January, 1990 (Annexure-7) not to terminate the lien of the petitioner until his absorption in the Bureau is finally made and an assurance was also given in the said communication that the petitioner was likely to be absorbed in the Bureau in near future. On 25th July, 1991 the Additional Commissioner-cum Secretary of the Health Medical Education and Family Welfare Department, of which the said Bureau is a part, sent, a letter to the Superintending Engineer to the Bridge Design Circle, Patna, returning the services of the petitioner with immediate effect to his parent department, namely, Bridge Design Circle in the Road Construction Department, Patna, with a request to accept his joining. A copy of the said letter was also sent to the petitioner. This writ petition was filed on 30th July, 1991, challenging the aforesaid order dated 25th July, 1991, which has been marked Annexure-1 to the writ petition.
2. On 30th July, 1991 itself the Superintending Engineer of the said Circle informed the Additional Commissioner-cum-Secretary, in reply to his aforesaid letter dated 25th July, 1991 that the lien of the petitioner in his parent department i.e. Road Construction Department, stood terminated on 25th July, 1991 itself and, therefore, there was no question of either extending the period of lien and/or of accepting the joining of the petitioner in the Bridge Design Circle of the Department at Patna, Almost simultaneously, by letter dated 1st August, 1991 pursuant to the aforementioned order as contained in the said letter of the Additional Commissioner dated 25th July 1991 the petitioner was relieved from the post of senior Accounts Clerk in the Engineering Cell of the Bureau The petitioner, inter alia, challenged those two orders in a supplementary affidavit filed on 8th August, 1991.
3. This petition came up for preliminary hearing on 8th August 1991and an interim order of stay of the operation of the aforementioned order' dated 25th July 1991 (Annexure-1) was passed. The said order was continued on various dates to which the hearing of the case was adjourned to enable the respondents to file their counter-affidavit. Two; counter-affidavits have been filed on behalf of the Executive Engineer of the said Bureau, respondent No. 6 The pleadings made by the petitioner have not been factually controverter. The only thing that has been said is that the petitioner never requested for being relieved after the receipt of the aforementioned letters dated 12th July1989 whereby the petitioner had been, directed to join his parent department by 25th July, 1989. No counter-affidavit has been filed on behalf of The Construction Department or the Bridge Design Circle of the said Department. Daya Nand Singh, learned Standing Counsel No. 2, however on the basis of the instructions received from that department, indicated their stand which mere reiteration of what has been stated in the aforementioned letter dated 30th July, 1991 (Annexure-10) that the petitioner's lien stands terminated with effect from 25th July, l989.
4. The narration of facts thus, makes it clear that the petitioner although holder of a permanent post on substantive basis under the State Government, has been rendered without a post, chiefly on account of inaction of the officers concerned or lack of co-ordination between the two departments The provision in regard to the creation, suspension, termination etc. of lien are contained in Chapter III of the Bihar Service Code (in short 'the Code'). It is not necessary to refer the said provisions in details since the controversy in hand lies in a narrow compass. Clause (a) of Rule 71 of the Code reads as:
A Government servant's lien on a past may in no circumstances be terminated even with his consent, if the result will be to leave him without a hen or a suspended lien upon a permanent post.
Rule 68 of the Code also has a bearing on the present case and therefore the said rule may also be quoted here:
Unless in any case it be otherwise provided in these rules a Government servant on substantive appointment to any permanent post" acquires a lien on that post and ceases to hold any lien previously acquired to any other post.
We have noticed above that the petitioner has been working in the office of the State Family Welfare Bureau since 1982 and it appears that during the said period some kind of assurance had also been given to him for his permanent absorption in the Bureau. In terms of Rule 68 of the code, had this happened and the petitioner been absorbed against a permanent post, certainly it could be said that by virtue of the said Rules, his lien in the parent department had ceased. It is difficult to appreciate the stand of the Road Construction Department that mere failure on the part of the petitioner to join the office of the Bridge Design Circle at Patna by a certain date would amount to automatic termination of his lien on the post held by Mm in that Department That stand, in our opinion, is contrary to the express provisions of Rule 71 of the Code.
5. In the case of V. Sridharan N airs, State of Kerala AIR 1986 SC 2001 more or less an identical situation had arisen for consideration before the Supreme Court. In that case the person concerned had been deputed for a period of two years, which was extended by one more year. During deputation period he made a representation requesting the State Government to allow him to continue in the deputed office (Department) terminating his lien in the former Department. No order, however, was passed on the representation. His lien in the former department was terminated on the ground of absence for a period exceeding five years in terms of Rule 42 of the Kerala Service Rules, which corresponds to Rule 76 of the Bihar Service Code, after giving him an opportunity of showing cause against such termination. The Supreme Court, in view of the provisions as contained in Rule 19(a) of the Kerala Service Rules, which is almost the same as Rule 71(a) of the Bihar Service Code, struck down the order of termination. It is significant to notice here that 'this was done without there being any positive material on the record showing as to whether the person concerned was holding a permanent substantive post in the department or not. The following observations occurring in the same judgment may usefully be noticed:
The order terminating his lien is based on the specious plea that his explanation is not satisfactory. The order should have been more articulate in its contents; to sustain the order would virtually mean to deny the petitioner his service in the parent department and show him to the mercies of the Housing Board. In this case, we are concerned more with consideration of justice than with some technicalities of law.
The position in the instant case stands on a better position so far as the petitioner is concerned inasmuch as he held a permanent substantive post in this parent department and no procedure whatsoever has at all been even attempted to be followed before passing the impugned, order. We tail to appreciate the approach of the authorities of the Bridge Design Circle of the Road Construction Department in directing the petitioner to resume his duty by 25th May 1991 peremptorily, failing which his lien would stand terminated, Utile realizing that before the petitioner is able to comply with the aforesaid direction, an order formally relieving him from the post, which he was holding in the Bureau, had to be passed and he had to be relieved of his charge of office including cash etc. As a matter of fact, as we have noticed above as late as on 9th January, 1990 (Annexure-7), the petitioner was being given the hope of his being permanently absorbed in the Bureau and in such a situation, it is difficult to find fault with the petitioner.
6. For the reason dated above, we hold that the order contained in the letter No. 190(C) dated 30th July, 1991 (Annexure-10) amounts to removal of the petitioner from service, which is both illegal and unjust and, therefore, the same is quashed. We, accordingly, direct respondent No. 5, namely, Superintending Engineer, Bridge Design Circle, Road Construction Department, Patna to accept the joining report of the petitioner on a post commensurate with his status in that department forthwith. It is clarified that the petitioner will be deemed to be on duty in the said Circle/Department with effect from the date he has been relieved from the State Family Welfare Bureau, Patna, and will be entitled to all consequential benefits.
7. This writ petition, accordingly, is allowed, but without any cost.