CW 2365/95 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2365/1995 Ram Prakash Pathak Versus State & Ors. Date of Order ::: 10/09/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Ashok Gaur, for petitioner Mr. SD Khaspura, Addl.Govt. Counsel, for respondents-State Mr. Dharmendra Pareek for Mr. JM Saxena, for respondent-CT Instant petition has been filed assailing judgment dt.31/05/94 whereby Rajasthan Civil Services Appellate Tribunal, Jaipur dismissed appeal of petitioner wherein, holding that he is entitled for seniority on the post of Commercial Taxes Inspector (“CTI”) on which he was appointed after selection through Rajasthan Public Service Commission (“PSC”) vide order dt.18/01/82 (Ann.5), and not w.e.f. 01/03/1974 – date of his joining as Inspector Gr.II in Land & Building Tax Department (“LBT Inspector”). Contextual facts relevant for purposes of controversy raised herein are that petitioner joined on 20/09/73 on being appointed vide order dt.03/09/73 (Ann.1) as LBT Inspector Trainee initially on temporary basis; and thereafter as LBT Inspector Gr.II on probation against temporary post vide order dt.01/03/74 (Ann.2); and confirmed w.e.f. CW 2365/95 //2// 27/02/81 vide order dt.10/09/81 (Ann.4). While working as LBT inspector Gr.II, petitioner appeared in Rajasthan Subordinate Services Competitive Examinations and was declared successful therein and consequently was appointed as Commercial Taxes Inspector (“CTI”) on probation against temporary post vide order dt.18/01/82 (Ann.5), in pursuance whereof, upon relieving from the post of LBT Inspector vide order dt.30/01/82 (Ann.7), reported to Commissioner, Commercial Taxes, Jaipur on 01/02/82 (Ann.8) for joining as CTI. He was later on confirmed as CTI with retrospective effect form 01/02/82 (the date of his joining as CTI in Commercial Taxes Department vide order dt.16/09/87 (Ann.17). While petitioner was working as CTI in commercial taxes department, posts of Inspector in Land & Building Taxes Department were abolished vide order dt.24/04/82 and 27 LBT Inspectors who were working on substantive basis working in LBT were declared surplus vide order dt.26/04/82 (Ann.9); and were absorbed on the recommendations of absorption committee vide order dt.17/06/82 (Ann.10) passed by General Administrative Department for joining as Inspectors in Commercial Taxes CW 2365/95 //3// Department Jaipur. It is relevant to mention that as the petitioner was not working in the Department of LBT and under these circumstances he was neither declared surplus in Land & Building Taxes Department nor considered for absorption by Committee constituted under Rajasthan Civil Services (Absorption of employees) Rules, 1959. It appears from the record that before confirmation vide order dt.16/05/87 (Ann.17) w.e.f. 01/02/82, in the meantime, petitioner made certain representations on 04/01/83 (Ann.11), 02/02/83 (Ann.12) & 26/02/86 (Ann. 14A) claiming seniority from the date of his appointment as Inspector in LBT department wherein it was inter-alia averred that Devi Lal, respondent-4 herein, who was appointed as Inspector and junior to him in LBT department since he being declared surplus & absorbed as Inspector in Commercial taxes department, and assigned seniority from the date of initial appointment (01/03/74) on the post of LBT Inspector; and petitioner also had lien in LBT department; accordingly it was prayed that petitioner may also be declared surplus and seniority may also be assigned to him from his CW 2365/95 //4// parent post of LBT Inspector in the department of commercial taxes. But, as alleged, his representations remained unheeded and tentative seniority lists of CTIs in Commercial Taxes department was published on 20/01/86 (Ann.13), in which Devilal who was junior to him holding post of LBT Inspector but was absorbed as CTI in Commercial Taxes Department on being declared surplus in his parent department, was shown at S.NO.228, against which also, petitioner made representation. However, petitioner was confirmed with retrospective effect from 01/02/82 the date on which, he joined as CTI Gr.II vide order dt.16/09/87 (Ann.17) – simultaneously, final seniority list (Ann.15) of Inspectors Gr.II in Commercial Taxes Department was also published showing petitioner's name at NO.272 as against respondent NO.4 at No.231; which was challenged initially by way of CWP- 1382/1988 but it was dismissed vide order dt.07/03/90 on the premise of remedy of appeal available under Rajasthan Appellate Tribunal Act, 1976 and accordingly petitioner preferred appeal which was dismissed by the Tribunal vide judgment dt.31/05/94 (Ann.23). Hence this CW 2365/95 //5// petition. Counsel for petitioner submits that on 24/04/82 while posts of LBT Inspectors were abolished and 27 LBT Inspectors including respondent No.4 who was initially appointed alongwith petitioner vide order dt.01/03/74 (Ann.2) in LBT department, were declared surplus and absorbed as Inspector Gr.II in Commercial Taxes Department vide order dt.17/06/82 (Ann.10) on the recommendations of absorption committee; by that time, he was not confirmed and till 17/06/82 (Ann.10), no order was passed confirming him as Inspector Gr.II in Commercial Taxes Department; therefore, respondents were under obligation to maintain his lien on permanent post of Inspector in LBT department; and action of respondents in not maintaining his lien in parent department of Land & Building Taxes on the post of Inspector at the time of abolition of posts of LBT Inspectors & absorption of whom, while terminating his lien automatically despite being not permissible under law, is in violation of R.18 of Rajasthan Civil Service Rules (“RSR”). Counsel further submits that posts of LBT Inspectors and CTIs are considered to be CW 2365/95 //6// equivalent by absorption committee; therefore, there was no justification in treating the petitioner differently as regards seniority merely because he was later on appointed as CTI after his selection through PSC. Counsel submits that petitioner had also a lien in his parent department of Land & Building Taxes on the date of abolition of posts of LBT inspectors and such incumbents being declared surplus and absorbed in Commercial Taxes Department on the same post which petitioner held, in such circumstances, denial of seniority to the petitioner from the date of his appointment as Inspector in LBT Department only for the reason that he came from different mode of recruitment in Commercial Taxes Department is unreasonable and in violation of Art.14 of Constitution of India. Counsel further submits that finding recorded by learned Tribunal that other affected incumbents were necessary party to the appeal – in absence whereof, no relief can be granted to petitioner, is also not legally sustainable since petitioner has claimed seniority from the date of his initial appointment in his parent department of Land & Building Taxes on the premise of his lien CW 2365/95 //7// being in existence on the date of abolition of posts of LBT Inspectors and declaration of surplus and their absorption in commercial Taxes Department and there was no direct lis against any individual and there was grievance qua respondent-4, who came in service in the Commercial Taxes Department through absorption and was junior to him in his parent department of LBT, has been arrayed as party respondent in representative capacity. Respondents have filed their reply reiterating the averments as made in reply to the appeal before Tribunal. Counsel for respondents while supporting the findings recorded by learned Tribunal submits that the facts have been duly appreciated and petitioner has not been able to show any infirmity in the findings recorded which may call for interference in limited scope of judicial review U/Art. 226 & 227 of the Constitution. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. Facts having come on record remained uncontroverted are that petitioner at one time was confirmed as LBT Inspector vide order dt.01/09/81 CW 2365/95 //8// (Ann.4) w.e.f. 27/02/81 and thereafter upon his selection through PSC, was appointed as Inspector Gr.II in Commercial Taxes Department vide order dt.18/01/82 pursuant to which he was relieved by LBT department vide order dt. 30/01/82 (Ann.7) and consequently he joined as Inspector in Commercial Taxes Department on 01/02/82 (Ann.8). At relevant point of time, posts of LBT inspectors were abolished and incumbents were declared surplus and consequently absorbed on recommendations of absorption committee in April/June, 1982 – by which time, petitioner was not confirmed as Inspector in Commercial Taxes Department but was confirmed vide order dt.16/09/87 (Ann.17) with retrospective effect from 01/02/82, on which date, he joined as CTI. Once petitioner stood confirmed in Commercial Taxes Department may be retrospectively vide subsequent order dt.16/09/87 (Ann.17) – by legal fiction whereof, he holds lien against post of Inspector Gr.II in Commercial Taxes Department w.e.f. 01/02/82 from which date, his lien in parent department of LBT stood terminated. It is not the case of petitioner that the authority was not competent in passing order of his confirmation as Inspector Commercial CW 2365/95 //9// Taxes with retrospective effect. In the light of facts situation having come on record (supra), it has to be examined as to what will be the effect of R.18 of RSR which relates to termination of lien. R.18 reads ad infra: “18. Termination of Lien. - (a) 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) A Government servant's lien on a post stands terminated on his acquiring a lien on a permanent post (whether under the Government or Central/other State Governments) outside the cadre on which he is born.” Petitioner, after being confirmed as LBT Inspector vide order dt.01/09/81 (Ann.4) w.e.f 27/02/81, certainly acquired his lien on that post as provided U/r 15 of RSR and his lien could be terminated only upon acquiring lien on permanent post outside the cadre on which he is born. From a bare reading of R.18 it emerges that Government servant's lien cannot be terminated in whatever circumstances may be, even if on his consent unless he acquires lien CW 2365/95 //10// on permanent post with his new employer. Recently, in State of Rajasthan Vs. SN Tiwari (2009(4) SCC 700) Apex Court examined the scope of R.18 of RSR ad infra: “17.It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post.” On account of lien, under service law, Government servant acquires his right to hold permanent post, to which he has been substantively appointed and if one acquires lien on permanent post outside cadre on which he is born, lien of employee shifts to new permanent post and as observed by Apex Court it does not require formal termination of lien on previous permanent post. In instant case, indisputably, the date when post of LBT Inspectors were abolished and holders were declared surplus in April/June, 1982; no doubt as per R.15 & 18 of RSR, petitioner was holding lien against CW 2365/95 //11// permanent post of LBT Inspector in his parent department, while holding post of Inspector Gr.II in Commercial Taxes Department on substantive appointment against temporary post upon his selection through PSC and his lien on the post of LBT inspectors could not be said to be terminated automatically by commercial Taxes Department in terms of R.18 of RSR. However, this fact cannot be ruled out that vide order dt.16/09/87(Ann.17) petitioner stood confirmed on the post of Inspector Gr.II in Commercial Taxes Department with retrospective effect i.e. From 01/02/82 – the date on which he joined service in Commercial Taxes Department. As a result of latter development having taken place upon his confirmation vide order dt.16/09/87 (supra), petitioner acquires his lien on permanent post of CTI in commercial taxes department w.e.f. 01/02/82 and by legal fiction whereof, his lien from LBT Inspectors stood shifted to new permanent post of CTI on 01/02/82. While, post of LBT inspectors were abolished vide order dt.26/04/82 (Ann.9) and LBT inspectors were declared surplus and absorbed as CTI in Commercial Taxes Department on recommendations of absorption committee vide order dt.17/06/82 CW 2365/95 //12// (Ann.10). As observed (supra), for termination of lien, no formal order was required as the lien stood shifted against new permanent post automatically by legal fiction in commercial taxes department from 01/02/82. In view of what has been taken note (supra) being based on material on record, which has also been examined by learned Tribunal under judgment impugned, while recording a finding that once petitioner stood confirmed as CTI in commercial taxes department may be retrospectively w.e.f. 01/02/82 vide order dt.16/09/87 (Ann.17), certainly he was not holding lien in LBT department when posts of LBT inspectors were abolished & incumbents were declared surplus for their absorption under Rules, 1969. This fact can also not be disputed that those who were declared surplus and absorbed in commercial taxes department, their seniority was required to be determined in terms of R.15 of Absorption Rules, 1969 and since petitioner was not holding lien in LBT department and joined service in commercial taxes department after selection through PSC as Inspector Gr.II, was entitled to get his CW 2365/95 //13// seniority determined in terms of R.31 of Rajasthan Commercial Taxes Subordinate Service (General Branch) Rules, 1975 and it is not the case of the petitioner that his seniority was not determined in terms of R.31 of Rules, 1975. This Court does not find any manifest error being committed by the learned Tribunal while passing order impugned which may call for interference. Consequently, writ petition fails and is hereby dismissed. No costs. (Ajay Rastogi), J. K.Khatri/p.13/ 2365CW95AgRsrSpt10.doc