PETITIONER:
RAMLAL KHURANA (DEAD) BY LRS.
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT03/08/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
AHMADI, A.M. (J)
CITATION:
1989 AIR 1985 1989 SCR (3) 680
1989 SCC (4) 99 JT 1989 (3) 430
1989 SCALE (2)326
ACT:
Punjab Civil Service Rules: Vol.I, Part I. Rule 3.
14---Lien of government servant--Suspension of lien--When
and in what circumstances.
Words & Phrases.' "Lien "--Meaning of.
HEADNOTE:
The appellant, while working in the Police Department as
a clerk, was selected, and subsequently appointed, as Excise
Sub-Inspector. After several years, he was reverted and sent
back to his parent department. He challenged the reversion
order before the Sub-Judge, who allowed him to continue in
the Excise Department, where he was holding a substantive
post. After a decade, he was compulsorily retired by the
Excise Commissioner. The appellant moved the High Court by
way of a writ petition challenging the said order and con-
tending that the Excise Commissioner was not competent to
pass the order as the appellant belonged to the Police
Department where his lien continued. The High Court rejected
the writ petition.
This appeal by special leave is against the said deci-
sion of the High Court. It was contended that the lien
against original post in the police Department could not
vanish even though the appellant was holding a substantive
post in the Excise Department.
Dismissing the appeal,
HELD: 1. Rule 3.14 of the Punjab Service Rules provides
that a competent authority shall suspend the lien of a
Government servant when he is appointed in a substantive
capacity to a permanent post outside the cadre on which he
is borne. This rule cannot be operated to the prejudice of a
Government servant who on his own has acquired legal right
to an ex-cadre post. Indeed, the rule is for the benefit of
a Government servant who intends to return back to his
parent department. But the appellant never wanted to return
back to his parent department. He was stoutly opposing
repatriation and asserting his right to remain in the ex-
cadre post. He has thus denied himself of the benefit of
that rule. [683F-H]
681
T.C. Sharma v. Prithvi Singh & Ors., [1976] 2 SCR 7 16:
referred to.
2. 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. Generally when a person with a lien against
a post is appointed substantively to another post, he ac-
quires a lien against the latter post. Then the lien against
his previous post automatically disappears. It is a well
accepted principle of service jurisprudence that no Govern-
ment servant can have simultaneously two liens against two
posts in two different cadres. [684A-B]
3. In the instant case, the civil court has already
ruled that the appellant had a right to continue in his
substantive appointment as Excise Sub-Inspector. He secured
that declaration when the Excise Department repatriated him
to his parent department. Alter obtaining that decree from a
court of competent jurisdiction, he could not turn round and
say that he still retained lien against his post in the
parent department. The lien in his parent department must be
held to have been cancelled consequent on the decree of the
civil court. Therefore, the Excise Commissioner seems to be
the only competent authority to pass the order compulsorily
retiring him from service. [689C-D]
This Court directed the respondent to determine the
pensionary benefits of the appellant and pay the same to his
legal heirs within three months, if not already paid.]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2941 of
1982.
From the Judgment and Order dated 26.2.82 of the Punjab
Haryana High Court in L.P.A. No. 1120 of 1981.
P.A. Choudhary, Mrs. K. Sarada Devi and B. Kanta Rao for
the Appellants.
C.M. Nayyar for the Respondents.
The following Order of the Court was delivered
ORDER
This appeal by special leave is directed
against the decision of the
682
High Court of Punjab & Haryana which dismissed the writ
petition of the appellant and sustained the order of his
compulsory retirement-
In March 1949, the appellant entered into service as a
clerk in the Police Department. When he was working in the
office of Inspector General of Police, he appeared for
selection to the posts of Excise Sub-Inspector in the Excise
Department of the State. He was selected and appointed as
Excise Sub-Inspector- He continued in the post for a number
of years. In October 1963, he was repatriated to his parent
department- But it was not a simple repatriation. The post
of Excise Sub-Inspector was in the higher scale than his
original post in the Police Department- So he was reverted
and sent back to his parent department.
The appellant challenged the reversion and repatriation
in O.S. No. 126 of 1965 before the Court of Subordinate
Judge 1st Class, Patiala. He sought for a declaration that
the order of reversion was illegal and void. It was an
infringement of his legal right to continue as Sub-Inspector
in the Excise Department.’The learned Subordinate Judge
accepted his claim and decreed the suit. He made some perti-
nent observation.
“The plaintiff continued to hold the
post beyond the prescribed period of probation
and his services were not dispensed with at
the end of two years and he was not reverted.
The plaintiff, in fact, continued to hold the
post for more than 6 years, after the maximum
period of probation had expired. Consequently,
the rule laid down in and on the basis there-
of, it is held that the plaintiff must be
taken to have so continued in a substantive
capacity. On this conclusion, that the plain-
tiff was in October, 1963, holding his post
substantively, that termination of his service
necessarily amounted to punishment, and must
be deemed to be removal from service, which of
course was not permissible without a proper
enquiry. The conclusion must, therefore, be
that the termination of the plaintiff’s serv-
ices was illegal.”
It is thus clear from the above observation that the
Court expressed the view that the appellant was holding a
substantive post in the Excise Department. After completing
his probationary period, he was holding the post of Sub-
Inspector in a substantive capacity. So his reversion and
repatriation .amounted to penalty which was illegal since
made without proper enquiry.
683
Since repatriation of the appellant was set aside by the
Civil Court, the appellant was allowed to continue without
interruption in the Excise Department itself. On October 1,
1975, the Excise Commissioner made an order compulsorily
retiring him from service. The order was made under Rule
3(1)(a) and (b) of the Punjab Civil Services (Premature
Retirement) Rules, 1975. The appellant challenged the valid-
ity of that order before the High Court mainly on the ground
that the Excise Commissioner was not competent to make that
order since he belonged to Police Department. He claimed
that his lien in the Police Department was not removed and,
therefore, the Inspector General of Police was alone compe-
tent to deal with him. In support of the contention, he
placed reliance on the decision of this Court in T.C. Sharma
v. Prithvi Singh & Ors., [1976] 2 SCR 716. The High Court,
however, distinguished that decision and dismissed the writ
petition. It was held that the appellant had not gone to the
Excise Department on deputation from the Police Department,
but he held a fresh appointment as an Excise Sub-Inspector.
Counsel for the appellant placed strong reliance on rule
3.14 of the Punjab Civil Services Rules (Vol. I) Part I and
also on the decision in T.C. Sharma case. He urged that the
appellant was no doubt holding a substantive post in the
Excise Department, but he had not acquired a lien against
that post, since he was not confirmed in that post. It was
claimed that the lien in the parent department ought to have
been suspended so that it could ensure to his benefit as and
when he wanted to return back to his parent department. The
contention, in other words, proceeded on the premise that
the lien against original post in the Police Department
could not vanish even though the appellant was holding a
substantive post in the Excise Department.
We do not think that the contention urged for the appel-
lant as to Rule 3.14 could be accepted. Rule 3.14 provides
that a competent authority shall suspend the lien of a
Government servent when he is appointed in a substantive
capacity to a permanent post outside the cadre on which he
is borne. It seems to us that this rule cannot be operated
to the prejudice of a Government servant who on his own has
acquired legal right to an ex cadre post. Indeed, the rule
is for the benefit of a Government servant who intends to
return back to his parent department. That was also the view
expressed in T.C. Sharma case. But then, the appellant never
wanted to return back to his parent department. He was
stoutly opposing repatriation and asserting his right to
remain in the ex cadre post. He has thus denied himself of
the benefit or’ that rule.
684
The other contention urged for the appellant that he was
not confirmed in the Excise Department and unless confirmed,
he acquired no lien cannot also be accepted. 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.
Generally when a person with a lien against a post is ap-
pointed substantively to another post, he acquires a lien
against the latter post. Then the lien against his previous
post automatically disappears. The principle being that no
Government servant can have simultaneously two liens against
two posts in two different cadres. It is a well accepted
principle of service jurisprudence.
In the instant case, the civil court has already ruled
that the appellant had a right to continue in his substan-
tive appointment as Excise Sub-Inspector. He secured that
declaration when the Excise Department repatriated him to
his parent department. After obtaining that decree from a
court of competent jurisdiction, he could not turn round and
say that he still retained lien against his post in the
parent department. The lien in his parent department must be
held to have been cancelled consequent on the decree of the
Civil Court. Therefore, the Excise Commissioner seems to be
the only competent authority to pass the order compulsorily
retiring him from service.
The appeal, therefore, fails and is dismissed in the
circumstances of the case, we make no order as to costs.
Before parting with the case, we may however add a word
more. It was stated that in view of pendency of the proceed-
ings in this Court and in the High Court, the pension due to
the appellant has not been finalised. We, therefore, direct
the respondent to determine the pensionary benefits of the
appellant and pay the same to his legal heirs within three
months, if not already paid.
G.N. Appeal
dismissed.
685