il Appeal
No 1745 of 1968
Appeal by Special Leave from the Judgment and Order dated 13 10 1967 of the Punjab and Haryana High Court in Civil Writ No 1113 of 1966
OP Sharma for the appellants
section K Mehta KR Nagaraja and PN Puri for the Respond ents The Judgment of the Court was delivered by BEG J
The State of Punjab has come up by special leave against the judgment of a Division Bench of the High Court o Punjab  Haryana allowing the Writ petition of the respondents who it is admitted by the State are teachers of the Junior Vernacular grade working on the dates on which they filed the Writ petition as promotees in the senior vernacular grade temporarily but had not been con firmed there
It appears that the only difference between the junior vernacular cadre and the senior vernacular cadre is that those who teach lower classes were placed in the junior cadre and those who teach higher classes were in the senior vernacular cadre
But for some reason working in senior vernacular cadre was considered a promotion
After consideration of the whole position the two grades were integrated by the Government from 1st October
1957 with retrospective effect under the Punjab Educational Service 833 Provincialised Cadre Class III Service Rules 1961
This meant that the Government recognised that both the cadres should be really considered as one and that there were no acceptable grounds for a differentiation
Nevertheless it appears that the names of the petitioners were dropped from the junior vernacular cadre as they had been working for more than the probationary period in the senior vernacular cadre
It is urged that it must be deemed that they were confirmed in the senior vernacular cadre automatically
However they had to be probationers in the senior cadre for such a result to enure
We fail to see how they become probationers there
Curiously the prospects of those who were not considered promoted to the senior vernacular cadre and were junior to the petitioners respondents in that cadre improved as they were offered opportunities of being taken in a selection grade
But no such opportunities were offered to the petitioners on the ground that they had been removed from the junior vernacular cadre
The names of the petitioners respondents had been automatically dropped from the cadre in which they held their liens having been appointed there initially permanently
The High Court of Punjab  Haryana held that the peti tioners respondents are entitled to the benefit of their substantive posts which were still in the junior vernacular cadre as they were never confirmed in the senior vernacular cadre whatever may be the sentimental satisfaction of being considered as persons promoted to and working in the senior vernacular cadre
Subsequent events showed that those who are junior to the petitioners and for that reason did not get the opportunity of serving in the senior cadre had better opportunities offered to them without any reasonable ground of discrimination between the two cadres except that the petitioners were seniors and could consider themselves promoted because they had been performing the duties of teachers of the senior cadre
The petitioners after discovering that those who were junior to them and had therefore not been given the oppor tunity of serving in the senior vernacular cadre had a better opportunity of moving into the selection grade which had not been offered to them applied for this very opportunity as they still continued in their substantive posts which were in the junior vernacular cadre
They took up the correct position that they had merely been officiat ing in the senior vernacular cadre but their right places were in the junior vernacular cadre
The mere fact that they worked in the senior cadre for longer periods than proba tioners would could not give them the status of either more probationers or persons Confirmed in the senior vernacular cadre
They could not for that reason alone be deprived of the benefits of their substantive appointments in the junior vernacular cadre
Hence their Writ Petitions were allowed and they were afforded all the benefits which would have accrued to them as members of the junior vernacu lar cadre to which they did not really cease to belong
Moreover as already pointed out the Government had itself considered the position and had integrated the two cadres into one with retrospective effect from 1st October 1957
834 The position of the petitioners appears to us to be fully covered by the following rules contained in the Punjab Civil Services Rules Volume I 310
Unless in any case it be other wise distinctly provided the whole time of a Government servant is at the disposal of the Government which pays
him and he may be employed in any manner required by proper authority without claim or additional remu neration whether the services required of him are such as would ordinarily be remunerated from Union or State revenues or from the revenues of a local fund
Substantive Appointment and Lien
a Two or more Government serv ants cannot be appointed substantively to the same permanent post at the same time
b A Government servant cannot be appointed substantively except as a temporary measure to two or more permanent posts at the same time
c A Government servant cannot be appointed substantively to a post on which another Government servant holds a lien
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 on any other post
Unless his lien is suspended under rule 314 or transferred under rule 316 a Government servant holding substantively a permanent post retains a lien on that post a while performing the duties of that post b while on foreign service or holding a temporary post or officiating in another post c during joining time on transfer to another post unless he is transferred sub stantively to a post on lower _pay in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the old post d except as provided in Note below while on leave and e while under suspension
a A competent authority shall suspend the lien of a Government servant on a permanent post which he 835 holds substantively if he is appointed in a substantive capacity 1 to a tenure post or 2 to a permanent post outside the cadre on which he is borne
or 3 provisionally to a post on which another Government servant would hold a lien had his lien not been suspended under rule
b A competent authority may at its option suspend the lien of a Government servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service or in circumstances not covered by clause a of this rule is trans ferred whether in a substantive or officiat ing capacity to a post in another cadre and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years
c Notwithstanding anything contained in clause a or b of this rule a Government servant s lien on a tenure post may in no circumstances be suspended
If he is appointed substantively to another permanent post his lien on the tenure post must be terminated
d If a Government servant s lien on a post is suspended under clause a or b of this rule the post may be filled substantive ly and the Government servant appointed to hold it substantively shall acquire a lien on it Provided that the arrangements shall be reversed as soon as the suspended lien re vives
e A Government servant s lien which has been suspended under clause a of this rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in sub clause 1 2 or 3 of that clause
f A Government servant s lien which has been suspended under clause b of this rule shall revive as soon as he ceases to be on deputation out of India or on foreign service or to hold a post in another cadre Provided that a suspended lien shall not revive because the Government servant takes leave if there is reason to believe that he will on return from leave continue to be on deputation out of India or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in sub clause 1  2 or 3 of clause a
a Except as provided in clause c of this rule and in note under rule 313 a Government servant s 836 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 rule 314 the suspended lien may not except on the written request of the Government servant concerned be terminated while the Government servant remains in Government service
c Notwithstanding the provisions of rule 314a
the lien of a Government serv ant holding substantively a permanent post shah be terminated on his appointment substan tively to the post of Chief Engineer of the Public Works Department
Subject to the provisions of rule 317 a competent authority may transfer to another permanent post in the same cadre the lien of a Government servant who is not performing the duties of a post to which the lien relates even if that lien has been suspended
 According to the rules set out above the lien of the petitioners in the junior vernacu lar cadre was retained by them and it could not be suspended by the mere fact that they were performing the duties of teachers working in  the senior vernacular cadre
Nothing beyond this was disclosed by the facts of these cases
The definition of a probationer given in rule 249 is as follows 249
Probationer means a Government servant employed on probation in or against a substantive vacancy in the cadre of a depart ment
This term does not however cover a Government servant who holds substantively a permanent post in a cadre and is merely appointed on probation  to another post
Learned Counsel for the State was unable to substantiate the submission that the petitioners respondents were merely probationers the senior vernacular cadre and not really persons whose substantive posts were in the junior vernacu lar cadre appointed to perform the duties of persons put in another cadre
Their duties in the senior cadre involved teaching somewhat higher classes
This additional experience could not reasonably be looked up as a disquali fication for the selection grade
The High Court had therefore given the petitioner respondents the benefits of the cadre on which their names should have been retained
Moreover this is not a question which can arise again as the two different cadres have been merged with retrospective effect from 1st October 1957
It meant that they were enti tled to be considered for the selection grade and if they satisfy the requirements for selection to get the benefits of it
Consequently we dismiss this appeal with costs
MR Appeal dis missed


Summary:
The respondents teachers of the Junior vernacular cadre Punjab were promoted to the senior vernacular cadre temporarily
After the expiry of their probationary period they were not confirmed but continued to work in the senior cadre and their names were dropped from the junior vernacu lar cadre
Mean while other teachers junior to the re spondents in the junior cadre were offered better opportuni ties of being taken in a selection grade
The respondents filed a writ petition in the High Court contending that they were entitled to the opportunity of moving into the selection grade as they were neither probationers nor confirmed members but were only officiating in the senior cadre while retaining their substantive places and liens in the junior cadre
The High Court allowed the writ
Dismissing the appeal the Court
HELD The state was unable to substantiate the submis sion that the petitioners respondents became probationers in the senior vernacular cadre
According to the rules their lien in the junior vernacular cadre was retained by them and it could not be suspended by the mere fact that they were performing the duties of teachers working in the senior vernacular cadre
836 D E