PETITIONER:
T. R. SHARMA
Vs.
RESPONDENT:
PRITHVI SINGH & ANR. ETC.
DATE OF JUDGMENT17/11/1975
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1976 AIR 367 1976 SCR (2) 716
1976 SCC (1) 226
CITATOR INFO :
F 1976 SC1199 (8)
F 1989 SC1985 (5,6,7)
ACT:
Punjab Civil Service Rules, rr. 3, 12 and 3, 14 (a)
(2)-Scope of.
HEADNOTE:
While holding the post of Agricultural Inspector in the
Agricultural Department, the appellant was appointed against
a temporary post of Block development and Panchayat officer
in the Development Department of the State, and was
confirmed in that post with effect from April 1, 1964. As a
result of the partition of Punjab, the appellant and the
respondents (who were also Agricultural Inspectors) were
allocated to the State of Haryana. On February 26, 1969 at
the request of the appellant, the Governor of Haryana
deconfirmed the appellant from the post of Block Development
and Panchayat officer with effect from that date. On March.
20, 1969, the Governor passed an order promoting the
appellant temporarily as District Agricultural officer
describing him as "Agricultural Inspector, now working as
Block Development and Panchayat officer".
The respondents challenged the order, and the High
Court allowed their writ petition holding that the
appellant's lien on the post of Agricultural Inspector-from
which post alone he could have been promoted to the post of
District Agricultural officer-automatically stood terminated
under r. 3.12 Punjab. Civil Service Rules, on his
confirmation as Block Development officer.
Allowing the appeal to this Court,
^
HELD: Under r. 3. 12 normally, a Government 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. But, the opening words of the
rule show that it would apply unless it is otherwise
provided in the Rules. Rule 3.14 (a) (2) provides otherwise
by carving out an exception. It provides that a competent
authority shall suspend the lien of a Government servant on
a permanent post which he holds substantively, if he is
appointed in d substantive capacity to a permanent post
outside the cadre on which he is borne. When the appellant
was appointed as Block Development and Panchayat officer in
a substantive permanent capacity, his case fell squarely
within the ambit of r. `3 14(a) (2) as, the post of Block
Development and Panchayat officer was outside the cadre of
Agricultural Inspectors to which the appellant belonged. The
use of the word "shall" in cl. (a) against the use of the
word "may" in cl. (b) of the rule shows that it was
imperative for the competent authority to suspend the lien
of the appellant on the permanent post of Agricultural
Inspector which he held substantively. He should not suffer
because of the competent authority's failure to do so. [720
E, H, 721 A]
Further, under r. 3.15, in a case covered by r. 3.14
(a) (2) the suspended lien of a Government servant may not,
except on the written request of the Government servant,`be
terminated while he remains in Government service; but no
written request was made by the appellant in the presnt case
for terminating his suspended lien on the post of
Agricultural Inspector. [712-B, C]
Therefore, when the Governor deconfirmed the appellant
from the post of Block Development and Panchayat officer,
the suspended lien of the appellant on the post of
Agriculture Inspector stood revived with effect from
February 26, 1969, and his promotion in his parent
Agricultural Department from the post of Agricultural
Inspector to that of District Agricultural officer by the
impugned order, does not suffer from any legal infirmity.
[721-D-E]
717
JUDGMENT:
CIVIL. APPELLATE JURISDICTION: Civil Appeal Nos. 354
and A 355 of 1971.
From the Judgment dated 28th October 1970 of the Punjab
and Haryana High Court at Chandigarh in L.P.As. Nos. 85 and
86/70.
M. N. Phadke, P. C. Bhartari and K. K. John for the
Appellant (in both the appeals).
S. K. Mehta, K. R. Nagaraja, M. Qarnaruddin and P. N.
Puri for Respondent No. 1 (In CA 354) and Respondents Nos. 1
and 2 (in C.A. 355)
Naunit Lal and R. N. Sachthey for Respondent 2 in CA
354 and respondent 3 in CA 355.
The Judgment of the Court was delivered by
KHANNA, J.-This`judgment would dispose of two civil
appeals Nos. 354 and 355 of 1971 which have been filed on
certificate by Tuhi Ram Sharma appellant against the Full
Bench judgment of the Punjab and Haryana High Court.
The appellant joined service as Agricultural Inspector
in the Agricultural Department of Punjab Government in 1945.
Teja Singh, Bhale Ram and Prithvi Singh joined as
Agricultural Inspector in the said Agricultural Department
on different dates between 1950 and 1958. The appellant was
confirmed as Agricultural Inspector in 1959. On May 20, 1961
the appellant was appointed against a temporary post of
Block Development and Panchayat officer in the Development
Department of the State. By order dated October 28, 1966 the
appellant was made substantive permanent Block Development
and Panchayat officer with effect
from April 1, 1964. As a result of partition of Punjab the
appellant as well as Teja Singh, Bhale Ram and Prithvi Singh
were allocated to the State of Haryana. On February 26, 1969
the Governor of Haryana passed an order deconfirming the
appellant on his request from the post of Block Development
and Panchayat officer with effect from that date. On March
20, 1969 the Governor of Haryana passed the impugned order
which reads as under:
“The Governor of Haryana is pleased to promote
temporarily Shri Tuhi Ram Sharma, Agricultural
Inspector, now working as Block Development and
Panchayat officer as District Agricultural officer in
H.A.S. Class IT subject to the approval of the Haryana
Public Service Commission and to post him at Rohtak in
place of Shri Narain Singh who is transferred to
Narnaul as District Agricultural officer, Shri Prithvi
Singh who is working against the post of District
Agricultural officer, Narnaul is reverted to the post
of Agricultural Inspector being the junior-most.
718
The character roll file of Shri Tuhi Ram in two
parts is sent herewith. Its receipt may please be
acknowledged.”
Two writ petitions were filed praying the quashing of the
above order. one petition was filed by Prithvi Singh
respondent and the other was filed by Bhale Ram and Teja
Singh respondents. Learned single Judge (Tuli J.) as per
judgment dated January 30, 1970 allowed both the writ
petitions and quashed the impugned order on the following
two grounds:
“(i) the impugned promotion had been made in
violation of the mandatory requirements of
rule 7 of the Haryana Agricultural Service
Class II Rules, 1947 (hereinafter called the
1947 rules) which required appointment being
made to the service by promotion by selection
on the advice of Haryana Public Ser vice
Commission inasmuch as Sharma had been
promoted without obtaining the advice of the
Commission which head to be taken before the
selection for promotion was made, and not
after having promoted Sharma, and
(ii) in view of the binding earlier Division Bench
judgment of this Court in Labhu Ram & ors. v.
The State of Punjab and Ors. 1968 S.L.R. 319
it was held that Sharma had on his
confirmation as Block Development and
Panchayat officer on October 28, 1966 (with
effect from April 1, 1964, vide Annexure A)
in the Development Department of the Haryana
State, ceased to be a member of the Haryana
Agricultural Service from which post alone he
could have been promoted to the post in
question, and his lien on the post of
Agricultural Inspector automatically stood
terminated under Rule 3.12 of the Punjab
Civil Services Rules Volume I, Part I.”
It was also observed by learned single Judge that but for
the earlier Division Bench judgment in the case of Labhu Ram
& Ors. v. State of Punjab, he would have been inclined to
hold in favour of Sharma appellant on the second point
mentioned above. Four Letters Patent appeals were filed
against the judgment of the single Judge. Two of those
appeals were by Sharma appellant, while the other two were
filed by the State of Haryana. When the appeals came up for
hearing before the Division Bench, the learned Judges
referred the matter to the Full Bench. In the meantime, on
March 5, 1970 the Governor of Haryana in consuitation with
the Haryana Public Service Commission promoted Sharma
appellant as District Agricultural officer in Class II on
regular basis and posted him as such with effect from April
1, 1969. All the learned Judges constituting the Full Bench
held that the first ground on which the impugned order had
been quashed, namely, non-procuring of the advance advice of
the
719
Haryana Public Service Commission was not well founded. It
was also observed that the earlier case of Labhu Ram was
clearly distinguishable-and had no bearing. By a majority of
two to one the Full Bench upheld the judgment of the single
Judge on the second ground, namely, that the lien of the
appellant on the post of Agricultural Inspector had
automatically been terminated.
It is the above conclusion of the majority which has
been as- . sailed in these two appeals before us.
Mr. Phadke on behalf of the appellants has invited our
attention to the relevant rules on the subject and has
contended that the conclusion of the majority of the learned
Judges of the Full Bench that the lien of the appellant on
the post of Agricultural Inspector had stood terminated is
not well-founded. As against that, Mr. Nagaraja has
canvassed for the correctness of the above view of the
learned Judges of the High Court. After hearing the learned
counsel for the parties, we are of the opinion that there is
considerable merit in the contention of Mr. Phadke.
We may at the outset reproduce the relevant rules of
the Punjab Civil Service Rules, Volume I, Part I as
applicable to the State of Haryana:
“3.12. Unless in any case it be otherwise provided
in these Rules, a Government servant on substantive
appoint appointment to any permanent post acquires a
lien on that post and cases to hold any lien previously
acquired on any other post. E,
3.14. (a) A competent authority shall suspend the
lien of a Government servant on a permanent. post which
he holds substantively; if he is appointed in a
substantive capacity.
(1) ………… …… ……
(2) to a permanent post outside the cadre on
which he is borne, or
(3) …………. …… ……
…… …… ……
…… …… …… .
3.15. (a) Except as provided in clause (c) of this
rule and in note under rule 3.13, a Government
servant’s lien on a post may, in no circumstances, be
terminated, even with his consent, if the result will
be to leave him without a lien or a suspended lien upon
a permanent post.
(b) In a case covered by sub-clause (2) of clause
(a)
of rule 3.14 the suspended lien may not, except on the
written request of the Government servant concerned,
be
720
terminated while the Government servant remains in
Government service.
(c) Notwithstanding the provisions of rule
3.14(a), the r lien of a Government servant holding
substantively a permanent post shall be terminated
while on refused leave granted after the date of
compulsory retirement under rule 8.21; or on his
appointment substantively to the post of Chief Engineer
of the Public Works Department.
Note.-In a case covered by rule 3.14(a)(2), where
a Government servant is appointed in a substantive
capacity to a permanent post outside the cadre on which
he is borne, rule 3.15(b) precludes permanently the
termination of his suspended lien unless and until a
written request to this effect is received from him.
The result is that it is possible for such a Government
servant to stop his suspended lien being removed from
the parent cadre indefinitely and, thus cause
inconvenience to the parent office. Such a situation
may be met by appropriate executive action being taken
by the controlling officer who may re fuse his consent
to such a Government servant being can firmed or
retained in a permanent post outside his cadre unless
he agrees to his lien on a permanent post in his parent
office being terminated.”
The learned Judges constituting the majority of the
Full Bench 3: in holding that the appellant’s lien on the
post of Agricultural Inspector had stood terminated relied
upon rule 3.12. Perusal of the above rule shows that
normally a Government 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. The
opening words of the above rule, however, show that it would
apply unless it be otherwise provided in the rules. Rule
3.14(a)(2) carves out an exception to the general rule
contained in rule 3.12. According to rule 3.14(a)(2), a
competent authority shall suspend the lien of a Government
servant on a permanent post. which he holds substantively if
he is appointed in a substantive capacity to a permanent
post outside the cadre on which he is borne. When the
appellant was appointed was Block Development and Panchayat
officer in a substantive permanent capacity, his case
squarely fell within the ambit of rule 3.14(a)(2) as the
post of Block Development and Panchayat officer was outside
the cadre of Agricultural Inspectors to which the appellant
belonged: In the circumstances, it was imperative for the
competent authority to suspend the lien of the appellant on
the permanent post of Agricultural Inspector which he had
held substantively. The competent authority, however, failed
to suspend the lien of the appellant on the post of
Agricultural Inspector. The appellant plainly cannot suffer
because of such inaction or omission on the part of the
competent authority. A reading of the rule leaves no doubt
that a duty is cast upon the competent
721
authority to suspend the lien of a Government servant on a
permanent post which he holds substantively if he is
appointed in a substantive capacity to a permanent post
outside the cadre on which he is borne. The imperative
nature of the rule is also clear from the use of the word
“shall” in clause (a) as against the use of the word “may”
in clause (b) of that rule. The appellant, in our opinion,
cannot be penalised because of the omission of the competent
authority to it in accordance with the mandatory provisions
of rule 3.14 (a)(2). Clause (b) of rule 3.15 also makes it
clear that in a case covered by sub-clause (2) of clause (a)
of rule 3.14, the suspended lien of the Government servant
concerned may not, except on the written request of that
Government servant, be terminated while he remains in
Government service. The note to rule 3.15 shows a way out in
case any difficulty is experienced on account of the
operation of rule 3.14(a) (2). It is nobody’s case that any
written request was made by the appellant for terminating
his suspended lien on the post of Agricultural Inspector. As
such, we find it difficult to uphold the finding of the
majority of the learned Judges that the. lien of the
appellant on the post of Agricultural Inspector had stood
terminated. In our opinion, the third Judge who was in the
minority took a correct view of the matter when he observed
that the Government servant is not to be penalised and
cannot be deprived of the safeguards provided by rule 3.14
because of the fact that the competent authority had not
taken the necessary steps.
As the Governor has deconfirmed the appellant from the
post of Block Development and Panchayat officer, the
suspended lien of the appellant on the post of Agricultural
Inspector would stand revived with effect from February 26,
1969. The promotion of the appellant in the parent
Agricultural Department from the post of Agricultural
Inspector to that of District Agricultural officer by the
impugned order cannot in the circumstances be held to suffer
from any legal infirmity.
We accordingly accept the two appeals, set aside the
judgments of the learned single Judge and the Full Bench and
dismiss the writ petitions filed by Prithvi Singh, Bhale Ram
and Teja Singh respondents. The parties in the circumstances
shall bear their own costs throughout.
V.P.S. Appeals allowed
722