IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 11053 of 2008. Reserved on: 04.08.2010. Decided on : 20.08.2010. _________________________________________________ Mahesh Kumar. …Petitioner. -Versus- The State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. G.R. Palsra, Advocate. For respondents No.1 and 2. : Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Material facts necessary for adjudication of this petition are that the petitioner joined as a Clerk in the office of Deputy Commissioner, Bilaspur and was confirmed as such vide office order dated 11.01.1983. He was subsequently transferred to the office of Divisional Commissioner, Mandi. He was promoted to the post of Senior Assistant on 07.03.1998. The services of the petitioner were placed at the disposal of respondent No. 3, i.e., erstwhile learned Himachal Pradesh Administrative Tribunal on deputation basis vide office order dated 25.08.1998 for a period of two years at first instance. He joined his duties on 26.08.1998. He has exercised his option to go to the office of Deputy Commissioner and was deployed to the office of Deputy Commissioner, Mandi vide office order dated 12.02.2001 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. (Annexure R-4). However, fact of the matter is that he did not join the office of Deputy Commissioner, Mandi. He exercised his option for absorption in the erstwhile learned Himachal Pradesh Administrative Tribunal on 14.03.2001. The no objection certificate was issued by respondent No. 2 on 25.05.2001. Petitioner was absorbed on 21.07.2001 as Senior Assistant. He made a request for repatriation to the office of Divisional Commissioner, Mandi on 30th April, 2003. However, the same was rejected and the decision was conveyed by the Assistant Commissioner to the petitioner on 8th July, 2003. Thereafter, he made a representation to the Financial Commissioner-Cum- Secretary (Revenue), Government of Himachal Pradesh on 21.08.2003. The same was also rejected by him on 14.06.2004. 2. Mr. G.R. Palsra, learned counsel for the petitioner has strenuously argued that the action of the respondents, rejecting the prayer of the petitioner for repatriation is illegal. According to him, his client has retained lien in the office of Divisional Commissioner, Mandi and he has exercised his option for repatriation within two years of his absorption in the office of erstwhile learned Himachal Pradesh Administrative Tribunal on 21.07.2001. 3. Mr. R.P. Singh, learned Assistant Advocate General has supported the issuance of Annexures A-6 and A-8, dated 08.07.2003 and 14.06.2004, respectively. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It is apparent from the facts enumerated hereinabove that the petitioner has joined the office of Himachal Pradesh Administrative Tribunal on deputation basis initially for a period of two years on 26.08.1998. He exercised his option for absorption in the Himachal Pradesh Administrative Tribunal on 14.03.2001. The N.O.C. was issued by respondent No. 2 on 25.05.2001, copy of the same is marked as Annexure R-2. The text of the letter dated 25.05.2001 reads thus: “I am directed to refer to your letter No.HPAT-B(5)- 3/98, dated 10.05.2001, on the subject cited above and to say that this office has no objection to the permanent absorption of Shri Mahesh Vaidya, Sr. Asst. of this office in your Institution. His absorption will be subject to the condition that he would be entitled to retain his lien only on the post of Clerk (i.e. entry level post) as he is not confirmed Asstt.” 6. In sequel thereto, the petitioner was appointed as Senior Assistant in the erstwhile learned Himachal Pradesh Administrative Tribunal on 21st July, 2001. It will be appropriate at this stage to quote verbatim endorsement No. 2 attached to office order dated 21st July, 2001, which reads thus: “2. The Commissioner (Rev.) to the Govt. of H.P. Shimla-1. He is further informed that Sh. Mahesh Vaidya would be retaining his lien in Commissioner (Rev)’s office as per relevant rules prevailing at the time.” 7. Petitioner has made representation for repatriation on 30th April, 2003. The same was turned down by the competent authority and the decision was conveyed to the petitioner vide Annexure A-6, dated 8th July, 2003. The only reason assigned for rejecting the case of the petitioner for repatriation to the parent department, was that the competent authority had issued No Objection Certificate for the absorption of the petitioner and he had been absorbed in the office of Himachal Pradesh Administrative Tribunal. The representation made by the petitioner was rejected by the Financial Commissioner-Cum- Secretary (Rev.) on 14.06.2004 on the ground that petitioner stood immediately absorbed as per F.R. 13 and there was no question of repatriating him to parent department. 8. It will be apt at this stage to quote F.R.-13 and 14-A of FRSR, which reads thus: “F.R.13. { A Government servant who has acquired lien on a post retains the 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 alongwith his title 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 earlier post; (d) while on leave; and (e) while under suspension. Provided that no lien of a Government servant shall be retained: (i) Where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption; and (ii) On foreign service/deputation beyond the maximum limit admissible under the orders of the Government issued from time to time.} F.R. 14-A {(a) Except as provided in Rule 13 and Clause (d) of this rule, a Government servant’s lien on a post may in no circumstances be terminated, if the result will be to leave him without a lien upon a regular post.} (b) Deleted. (c) Deleted. (d) A Government servant’s lien on a post shall stand terminated on his acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which is borne.” 9. The argument of Mr. R.P. Singh, learned Assistant Advocate General is that the petitioner stood immediately absorbed as per proviso No. (i) to F.R. 13. Mr. G.R. Palsra, learned counsel for the petitioner has argued that it was not a case of immediate absorption, as argued by Mr. R.P. Singh. There is no substance in the submission of Mr. R.P. Singh that the petitioner stood immediately absorbed in the Himachal Pradesh Administrative Tribunal. A bare perusal of Annexure R-2, dated 25th May, 2001, quoted hereinabove, makes it abundantly clear that the petitioner had retained lien on the post of Clerk (i.e. entry level post) since he was not confirmed as Assistant. It is settled law by now that the confirmation takes place only once in the entire service career of an employee. There was no occasion to re- confirm the petitioner after his promotion as Senior Assistant. There is a note appended to office order dated 21st July, 2001 which reiterates that the petitioner shall retain his lien in Commissioner (Rev.)’s office as per relevant rules prevailing at the time. Petitioner could retain his lien since he was not permanently absorbed as per instructions issued, for a period of two years. He has exercised his option within a period of two years. The representations made by the petitioner have been rejected without passing speaking orders vide Annexures A-6 and A-8, dated 08.07.2003 & 14.06.2004, respectively. The issues raised by the petitioner in his representations, seeking his repatriation to parent department, have not been taken into consideration by the competent authority. In case the arguments of Mr. R.P. Singh, learned Assistant Advocate General are accepted, the petitioner would be without lien on regular post, which is contrary to language employed in F.R. 14-A. Mr. G.R. Palsra, learned counsel for the petitioner informed the Court that earlier the office of Divisional Commissioner was abolished, which was subsequently revived in the year, 2003. 10. In view of the observations made hereinabove, the writ petition is allowed. Annexures A-6 and A-8, dated 08.07.2003 & 14.06.2004 are quashed and set aside. The respondents are directed to consider the case of the petitioner for repatriation to the office of Divisional Commissioner, Mandi, on the basis of his request made on 30.04.2003. The needful shall be done within a period of six weeks from today. No costs. (Rajiv Sharma) Judge August 20, 2010. (bhupender)