IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 8378 of 2008 alongwith CWP(T) No. 8438 of 2008. Date of Decision : December 13, 2011 1. CWP(T) No. 8378 of 2008 Smt. Prabha Kumari w/o Shri Ved Parkash Shandil, resident of village Haripur, P.O. Kunihar, Distt. Solan (HP) presently working in the office of District Election Officer (Panchayat) as Senior Assistant, Shimla. Petitioner Versus 1. State of Himachal Pradesh through the Commissioner-cum- Secretary (Rural Development) Himachal Pradesh, Shimla-2. 2. The Director, Rural Development Department, Himachal Pradesh, Shimla-9. 3. The Secretary, State Election Commission, Himachal Pradesh, Shimla-2. Respondents Application under Section 19 of the Administrative Tribunal’s Act, 1985. 2. CWP(T) No. 8438 of 2008 Smt. Prabha Kumari w/o Shri Ved Parkash Shandil, resident of village Haripur, P.O. Kunihar, Distt. Solan (HP); Presently working as Senior Assistant O/o District Election Officer (Panchayat), Shimla. Petitioner Versus 1. State of Himachal Pradesh through the Commissioner-cum- Secretary (Rural Development) to the Govt. of Himachal Pradesh, Shimla-2. 2. The Director, Rural Development Department, Himachal Pradesh, Shimla-9. 3. The Secretary, State Election Commission, Himachal Pradesh, Shimla-2. Respondents Application under Section 19 of the Administrative Tribunal’s Act, 1985. 2 Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner(s) : Ms. Ranjana Parmar, Advocate, in both the petitions. For the respondents : Mr. Ram Murti Bisht, Deputy Advocate General and Mr. Vinod Thakur, Dy. A.G. for respondents No. 1 and 2/State. Mr. Onkar Jairath, Advocate, for respondent No. 3 in both the petitions. Justice Sanjay Karol, J. (Oral) Facts are not much in dispute. Petitioner was appointed as a Clerk with the Department of Rural Development on 23.9.1980. She was confirmed as such on 21.11.1988. She was promoted as Sr. Assistant on 5.9.1985. She was sent on deputation to the State Election Commission on 10.11.1995. She continued to work there till the time she was formally absorbed on 11.5.2000. It is alleged by her that she was on probation for a period of two years with the State Election Commission. But then there is nothing on record to establish the same. 2. It appears that in the parent department, while she was on deputation, petitioner was promoted as Superintendent Grade-II in the year 1995, which promotion she did not accept. Subsequently on 22.9.2000, parent department again promoted her as Superintendent Grade-II. She wanted to join the promoted post, in Whether reports of Local Papers may be allowed to see the judgment? 3 her parent department at Narkanda but however her joining was not accepted. Subsequently vide order dated 25.4.2001 her order of promotion was cancelled. It also cannot be disputed that the State Election Commission did not relieve the petitioner, which perhaps is also one of the reasons for her non joining at Narkanda. 3. Petitioner has filed two petitions one assailing the order dated 25.4.2001 and the other assailing the order dated 23.4.2002 in terms of which her lien to the post in her parent department stands terminated. 4. It is contended by Ms. Ranjana Parmar, learned counsel for the petitioner, that till such time petitioner had completed her period on probation in the State Election Commission she could not have acquired lien on her post in the Commission. 5. In my considered view, parent department, after petitioner’s absorption in the State Election Commission, erred in issuing the order of promotion in her favour. In this regard my attention has been invited to the Fundamental Rule 13 which reads as under:- “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 along with his title to a post on lower pay, in which case his lien is transferred to the new post from the date on 4 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.” 6. No doubt there are Governmental instructions/clarifications in terms of which it stands clarified that lien of a Government servant may be retained in Government department for a period of two years but however Fundamental Rule 13, itself clarifies that no lien of a Government servant shall be retained 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. Government instructions cannot dilute/over rule unambiguously clear provisions of the Rules. Not only that, Fundamental Rule 14-A (d) clarifies that 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. Now both these provisions have to be harmoniously construed. Petitioner chose to get herself 5 absorbed in the Commission where she had been working over a considerable period of time. Thus parent department passed the order of promotion on 22.9.2000 without taking these Rules into consideration. Whether petitioner stands absorbed in the State Election Commission after absorption or not would not matter as proviso to Fundamental Rule 13 is absolutely clear. The moment petitioner stood absorbed in the State Election Commission her lien over the post in the parent department ceased. 7. As such, present petitions devoid of any merit stand dismissed. Pending application(s), if any, also stands disposed of. (Justice Sanjay Karol), Judge. December 13 , 2011 (PK)