IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20220 of 2011 Animesh Sil, son of Ramesh Chandra Sil, resident of NC-1/25, Rau, Pusa, P.O.+P.S.- Pusa, District- Samastipur--petitioner Versus 1. The State of Bihar through Secretary HRD, Government of Bihar, Patna 2. The Vice-Chancellor, Rajendra Agriculture University, Bihar, Pusa, Samastipur 3. The Director, Administration, Rajendra Agriculture University, Bihar, Pusa, Samastipur 4. The Officer-in-charge, Recruitment/ Appointment, Rajendra Agriculture University, Bihar, Pusa, Samastipur--- ---respondents ---------------------------------- For the petitioner :Mr. Sanjay Kumar Giri, Advocate For the University :Mr.Chandra Mohan Singh & Mr.Prakash Mahto, Advocates For the State :Mr.Rakesh Kumar Tiwary, AC to SC21 ------- 4 19.12.2011 Heard learned counsel for the petitioner and learned counsels for the State and the Rajendra Agriculture University. The petitioner has approached this Court for quashing the order dated 1.10.2011 by which the respondent authorities of the University have rejected the joining of the petitioner dated 1.9.2010 to the previous post of Junior Statistical Assistant held by him and for consequential reliefs. The brief facts relevant for the decision of the case are that the petitioner pursuant to an advertisement 2 was selected on the post of Junior Statistical Assistant in the Rajendra Agriculture University and was given the letter of appointment dated 20.10.1999 for which he gave his joining on 23.10.1999. Pursuant to another advertisement No.1/2006 for the post of Assistant Professor-cum-Junior Scientist in Agriculture Statistics the petitioner applied through proper channel and was selected and appointed on the said post of Assistant Professor-cum- Junior Scientist through Notification dated 19.11.2006. By his letter dated 21.11.2006 the petitioner requested the respondent authorities to relieve him from the post of Junior Statistical Assistant as he had joined on the post of Assistant Professor-cum-Junior Scientist on 20.11.2006. The appointment of the petitioner on the said post was, however, challenged in C.W.J.C.No.709 of 2007 by another candidate and by order dated 3.8.2010 of this Court the appointment of the petitioner on the post of Junior Scientist-cum-Assistant Professor was quashed. L.P.A.No.1568 of 2010 filed by the petitioner against the said order was also dismissed by order dated 22.2.2011. The petitioner after the adverse order passed against him in the writ petition applied before the 3 respondent No.2, the Vice-Chancellor of the University to accept his joining on the post of Junior Statistical Assistant as held by him earlier by his letter dated 1.9.2010. The petitioner also filed C.W.J.C.No.8440 of 2011 with a prayer to accept his joining on the first post of Junior Statistical Assistant and by order dated 7.9.2011 of this Court the matter was remitted to the authorities of the University to pass a fresh order in accordance with law. Pursuant to the same the Vice-Chancellor by his impugned order dated 1.10.2011 has rejected the prayer of the petitioner. The reasons for rejecting the prayer of the petitioner are assigned in the last paragraphs of the impugned order which are as follows : “ Since the appointment of Sri Sil to the post of Asstt. Professor-cum-Jr.Scientist(Agril. Statistics) was made against the open advertisement through direct recruitment, it was the requirement of relieving from the previous post but ignoring the same Sri Sil joined his new assignment leaving the previous post of Junior Statistical Assistant. No any term of lien for the previous post was applied by Sri Sil and as such the retention of lien of Sri Sil to his previous post of Junior Statistical Assistant does not seems to be appropriate as per term of the provision of the lien under RAU Statutes under clause 13.14 which clearly provides the lien for a period of not exceeding three years only. Under the circumstances, on the basis of the joining of Sri Sil to the post of Assistant Professor-cum-Junior Scientist (Agril. Statistics) at TCA, Dholi without any proper relieving from 4 the previous post of Junior Statistical Assistant nor having any term of lien prayed or allowed to retention of his lien, the joining of Sri Sil to the previous post of Junior Statistical Assistant dated 01.09.2010 is not considerable and is hereby rejected.” Learned counsel for the petitioner submits that the impugned order is not sustainable as at no time the lien of the petitioner on the post of Junior Statistical Assistant had been terminated by any specific order of the University nor the petitioner had applied for his lien to be terminated or suspended. It is thus submitted by learned counsel that mere appointment of the petitioner on the post of Assistant Professor-cum-Junior Scientist (Agricultural Statistics) could not have the effect of obliterating his lien on the permanent substantive post held by him earlier in the University and in the absence of any specific order his lien could not be held to have automatically terminated. It is further submitted that the Statutes of the Rajendra Agriculture University refer to lien in paragraph 13.14 but the same is confined to such University employees to go on deputation to posts outside the University and has no application to the present case. It is urged that under paragraph 13.15 of the Statutes any matter regarding condition of service not covered by the 5 provisions of the statute have to be decided in accordance with the corresponding rules of the State Government. In the present matter, since the University Rules on lien are on other aspects of lien the provisions of Rules 68 to 71 of the Bihar Service Code would apply which clearly provide that mere appointment on another permanent post outside the cadre on which he is borne only leads to the suspension of the lien and on ceasing to hold the said post the lien would be revived. In support of the aforesaid proposition learned counsel cites a large number of decisions of the Supreme Court and also a decision of this Court. The first is the decision of the Supreme Court in the case of T.R.Sharma vs. Prithvi Singh and another :AIR 1976 SC 367. The facts of the said case were quite similar to that of the present matter and the Rules applied, namely, Punjab Civil Services Rules were also para materia to that of the Bihar Service Code. The law laid down by the Apex Court in paragraph-6 of the said decision is as under : “6. The learned Judge constituting the majority of the Full Bench 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 6 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 as 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 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 penalized because of the omission of the competent authority to act 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 7 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 penalized 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.” Learned counsel also relies upon a decision of the Apex Court in the case of State of Haryana vs. Shri Des Raj Sangar and another : (1976) 2 SCC 844, in which relying upon the T.R.Sharma‟s case (supra) it was held as follows : “9. There appears to be, however, considerable force in the second contention advanced on behalf of the respondent that on the abolition of the post of Panchayati Raj Election Officer, his services should not have been terminated. According to clause (a)(2) of Rule 3.14 of Punjab Civil Services Rules, Vol.1, Part 1 as applicable to Haryana State, 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. According to clause (e) of that rule, a government servant‟s lien which has been suspended under clause (a) of that rule 8 shall revive as soon as he ceases to hold a lien on the post of the nature specified in sub-clause (1), (2) or (3) of that clause. The above provisions were considered by us in the case of T.R.Sharma v. Prithvi Singh and it was held that in the absence of a written request by the employee concerned, the lien on the post permanently held by him cannot be terminated. It is nobody‟s case that any written request was made by the respondent for terminating his lien on the post of Head Assistant. As such, the lien of the respondent on the post of Head Assistant should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer was abolished.” To the same effect are observations of the Apex Court in the case of Ali M.K. and others vs. State of Kerala and others : AIR 2003 SC 4006. Learned counsel for the petitioner also places reliance upon a Division Bench decision of this Court in the case of Shyamta Prasad Sinha vs. The State of Bihar and others : 1992(1) PLJR 236, in paragraph-7 of which the relevant provisions have been considered. Learned counsel for the respondent University, on the other hand, submits that the reasons given in the impugned order are correct and as the petitioner has accepted the appointment on the post of Assistant Professor-cum-Junior Scientist he had lost his lien as the same cannot exceed more than three years under clause 9 13.14 of the Statutes of the University. I have considered the submissions of learned counsels for the parties. It is evident from the Statutes of the University that the only provision with regard to lien is contained in clause 13.14 of the said Statutes, which is in the following terms : “13.14 University employees permanent or quasi-permanent permitted to go on deputation to posts outside the University may be permitted to retain lien on their posts in the University services, ordinarily not exceeding three years.” From a reading of the aforesaid provision it is clear that it is confined to cases where University employees are permitted to go on deputation to posts outside the University. In such circumstances, the University may be permitted to retain lien on their posts in the University services ordinarily not exceeding three years. The said provision does not at all advert to a situation of the present nature where a University employee accepts appointment on a post within the University but in another cadre. In that situation it is evident that clause 13.15 would immediately come into play and the rules of the State Government in the matter of lien shall apply to the cases of the University employees. 10 Clause 13.15 of the Statutes is in the following terms : “13.15 Any matter regarding conditions of service not covered by the provisions of the statutes may be decided in accordance with the provision of the corresponding rules of the State Government in case, where there is no such Government rules, approval of the Syndicate should be obtained.” The aforesaid clause 13.15 leaves no room for doubt that except in a situation covered by clause 13.14 all other matters pertaining to lien of an employee of the University would be covered by the corresponding rules of the State Government, i.e., the Bihar Service Code. The provisions with regard to lien in the Bihar Service Code are to be found from Rules 68 to Rule 72 thereof. So far as the present matter is concerned, the Rules 68, 70 and 71 are relevant and they are quoted below : “68. 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. 70. (a) The lien of a Government servant on permanent post which he holds substantively shall be suspended 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 this rule. (b) The State Government may, at its option, 11 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 transferred, whether in a substantive or officiating 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 substantively, 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 revives. (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). 71. (a) A Government servant‟s lien on a post may in no circumstances be terminated even with 12 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-section (2) of clause (a) of rule 70, 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.” It is evident from a reading of the aforesaid rules that immediately upon substantive appointment on a permanent post a Government servant acquires lien on that post and ceases to hold any lien previously acquired on any other post. This general rule under Rule 68 is, however, subject to the provisions of Rule 70 which provides that where a Government servant holds a permanent post substantively his lien on that post shall be suspended if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. In such eventuality the use of mandatory „shall‟ in Rule 70 makes it clear that the lien of the Government servant on his permanent post has to be suspended. The Rules further provide that where a Government servant‟s lien has been suspended under clause (a) of Rule 70 it shall revive as soon as he ceases to hold a lien on a permanent post outside cadre on which he is borne. Rule 71(a) further clarifies that a Government servant‟s lien on a post cannot be terminated under any 13 circumstances even with his consent, if the result would be to leave him without a lien or a suspended lien upon a permanent post. Further under Rule 71(b) in a case of appointment to a permanent post outside the cadre on which he is borne, the suspended lien cannot be terminated except on the written request of the Government servant while he remains in Government service. Applying the aforesaid principles to the facts in hand it is evident that the petitioner who was holding a lien on the post of Junior Statistical Assistant, after his being appointed to the post of Assistant Professor-cum-Junior Scientist in the same University which was outside the cadre on which he was borne earlier, it was required of the University to suspend the lien of the petitioner on the earlier post of Junior Statistical Assistant held by him. It is not the case of the University that it has exercised that option and suspended the lien of the petitioner. Moreover, even if that had happened the lien could not have been terminated except upon the written request of the petitioner while he was in service in the University. In the present case no action was taken by the authorities of the University even to suspend the lien of the petitioner. Thus, 14 on the petitioner ceasing to hold the post of Assistant Professor-cum-Junior Scientist in the University by virtue of the orders of this Court for quashing his appointment on that post his lien on the post of Junior Statistical Assistant would continue to operate in his favour and the University cannot refuse to allow him to join on the said post. Even if lien on the post of Junior Statistical Assistant had been suspended under Rule 70(a) by the University, the suspended lien would have automatically revived in terms of Rule 70(e) & (f) of the Bihar Service Code. The said propositions are clearly established by the decisions cited on behalf of the petitioner both of the Apex Court and of this Court. The reliance on clause 13.14 of the Statutes in the impugned order dated 1.10.2011 as also by learned counsel for the University is without any basis as the said clause does not at all cover the case of the present nature and only relates to a situation where the employee goes on deputation to a post outside the University. In the light of the aforesaid discussions, the impugned order dated 1.10.2011 passed by the Director Administration by order of the Vice-Chancellor is quashed 15 and it is directed that the joining given by the petitioner on 1.9.2010 be accepted with effect from the said date itself. The petitioner shall be entitled to all consequential benefits on the post of Junior Statistical Assistant with effect from the said date including financial benefits, seniority and continuity of service on the post of Junior Statistical Assistant. This writ application is, accordingly, allowed. Spal/ (Ramesh Kumar Datta, J.)