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 LPAs
Nos 85 and 8670
M N Phadke P C Bhartari and K K John for the Appellant in both the appeals
section 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 CA 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
Thisjudgment 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 HAS 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
vs The State of Punjab and Ors
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 312 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
vs 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 312
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 314
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            315
a Except as provided in clause c of this rule and in note under rule 313 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 314 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 314a 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 821 or on his appointment substantively to the post of Chief Engineer of the Public Works Department
In a case covered by rule 314a2 where a Government servant is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne rule 315b 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 312
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 314a2 carves out an exception to the general rule contained in rule 312
According to rule 314a2 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 314a2 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 314 a2
Clause b of rule 315 also makes it clear that in a case covered by sub clause 2 of clause a of rule 314 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 315 shows a way out in case any difficulty is experienced on account of the operation of rule 314a 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 314 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


Summary:
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 312 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 314 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 14a 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 315 in a case covered by r 314 a 2 the suspended lien of a Government servant may not except on the written request of the Government servantbe 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