Civil Writ Petition No.2661 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2661 of 2009 Date of Decision 30.08.2010 Kirpal Singh ...... Petitioner VERSUS Union of India and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Madan Mohan, Advocate, for the petitioner. Mr.Puneet Jindal, Advocate, for respondent No.1. Mr.Nitin Kumar, Advocate, for the respondent No.2. None for respondent No.3. ***** 1. To be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest ? A.N.JINDAL, J: The petitioner has challenged the order dated 04.01.2008, passed by Central Administrative Tribunal, Chandigarh Branch, Chandigarh (for brevity 'the Tribunal') declining his request to correct his seniority in the cadre of O.S. Grade I in the scale of Rs.6500-10500 as well as the order dated 03.11.2008, declining the application for review of the earlier order dated 04.01.2008 Briefly stated, the facts are that on recruitment by Railway Recruitment Board, Jammu, Srinagar, (for short 'the Board'), the petitioner was posted as typist in the scale of Rs.950-1500 on 12.05.1987 whereupon he joined Personnel Branch, Northern Railway, Ferozepur (respondent No.2) on 14.05.1987. Thereafter, on demand being made by respondent No.1, the petitioner gave his option and joined under Rail Coach Factory, Civil Writ Petition No.2661 of 2009 2 Kapurthala (respondent No.1) as Steno-typist on 18.04.1988. He has claimed having his lien upto 31.03.1990 at Ferozepur Division of Northern Railway (respondent No.2). Ultimatley, he was absorbed by respondent No.1 when the cadre in the Rail Coach Factory, Kapurthala, was closed on 31.03.1990. However, he held his lien with respondent No.2 upto 31.03.1990. One Ashok Kumar, who was immediately junior to the petitioner in Ferozepur Division, was promoted as Senior Typist in the grade of Rs.1200-2040 w.e.f. 01.04.1989, therefore, the petitioner made a representation claiming promotion from the date i.e. 01.04.1989 his junior Ashok Kumar was promoted. As such, he was promoted as Senior Typist by respondent No.2 accordingly vide order dated 26.10.1999. Respondent No.2 came across an administrative error that minimum two years service is required for consideration for promotion to the next higher post whereas neither the petitioner nor Ashok Kumar has requisite service of two years on 01.04.1989 and, therefore, after giving show-cause-notices to both, their date of promotion was to be treated as 22.07.1989 instead of 01.04.1989. Thereafter, keeping in view the fact that as per the rules, the promotion against the existing vacancies is awarded with effect from the date of taking over and not from the date of occurrence of vacancy, the promotion of Sh.Ashok Kumar was ordered to be got effected w.e.f. 30.11.1989 and so as in the case of petitioner, resulting in lowering his seniority throughout whereas respondent No.3 was promoted as Senior Typist w.e.f. 15.11.1989 who was quite junior to the petitioner. The representation of the petitioner to review seniority and promotion was declined vide orders dated 23.02.2004 and 20.04.2004 by respondent No.1. Aggrieved against these orders as well as provisional seniority list of OS-I Civil Writ Petition No.2661 of 2009 3 dated 30.09.1999 and 02.04.2004, the petitioner preferred O.A. In the reply, filed by respondent No.2, it was admitted that the petitioner was recruited through the Board and joined on 14.05.1987 at Ferozepur Division. However, on acceptance of his option, he was transferred to Rail Coach Factory, Kapurthala where he joined on 18.04.1988 with incentive of five advance increments. The cadre in the Rail Coach Factory was closed on 31.03.1990, as such, he became the employee of respondent No.1. In the seniority list of the typists/Steno-typists, the name of the petitioner in the Ferozepur Division appeared at serial no.6 at the time of the cadre review which was to be given effect w.e.f. 01.04.1989. Since his name was left out and one Ashok Kumar, junior to him was promoted, therefore, he started claiming his lien at Ferozepur Division and requested for his promotion from the date his junior Ashok Kumar was promoted. Anyway, his request was accepted and he was promoted as Senior Typist w.e.f. 01.04.1989 vide order dated 26.10.1999 issued by respondent No.2. Subsequently, it transpired that for promotion to the senior Typist i.e. next higher post, required two years experience which neither the petitioner nor Ashok Kumar fulfilled as on 01.04.1989, therefore, the date of promotion was changed to 22.07.1989. It was further alleged that after the absorption of the petitioner in the Rail Coach Factory, Kapurthala w.e.f. 31.03.1990, further promotion is provided on the post of Head Typist, Chief Typist and Superintendent (Type), subject to availability of posts and suitability of the petitioner. Arguments heard. Record perused. Initially, the petitioner joined in the office of respondent no.2, he opted to join at Rail Coach Factory, Kapurthala and ultimately he was absorbed in Rail Coach Factory, Civil Writ Petition No.2661 of 2009 4 Kapurthala on 31.03.1990. After he was absorbed at RCF, Kapurthala, he could not have claimed his lien over the previous post. The petitioner has sought promotion by relying upon the precedent of Ashok Kumar, who being junior to him was promoted w.e.f. 30.11.1989. The promotion of Ashok Kumar has not been challenged. However, Ashok Kumar, having been promoted later than respondent no.3 Balbir Kaur, automatically becomes junior to her. The petitioner or Ashok Kumar could not be promoted to the post of Senior typist, unless they attain two years experience from the date of their joining i.e. dated 14.05.1987 and ultimately they were promoted from the date when the vacancy occurred i.e. on 30.11.1989. As such, he is not entitled to further promotion to the post of head Clerk OS II to OS-I on the basis of promotion as senior typist w.e.f. 22.07.1989. Furthermore, the claim of the petitioner was rejected by the respondent No.1 vide order dated 27.11.2001 on the ground that his request was time barred and no further amendment could be made in the promotion order. The petitioner has not challenged the orders dated 27.11.2001 before the Tribunal. Even otherwise, the petitioner was never confirmed on the post which he was holding at Ferozepur Division, therefore, he could not claim any lien on the post. Similar observations were made in case S.Narayana versus Md.Ahmedulla Khan and others AIR 2006 (Supreme Court) 2224 wherein it was observed as under:- “Falling upon the aforesaid decisions of law, learned counsel for the appellant contended that the appellant had never been confirmed in any permanent post and as such, it could not be said that he had a lien, which was capable of being terminated. He drew our attention to the order of the Collector (Panchayat Wing), Nizamabad dated 16.12.2001, by which it was declared : Civil Writ Petition No.2661 of 2009 5 “Under Rule 29 of (sic-the) Andhra Pradesh State & Subordinate Service Rules, 1962, the services of Sri S.Narayana as approved probationer in the category of Senior Assistant are confirmed and he is declared to be a Full Member of the services as Senior Assistant with effect from the said date i.e. 12.10.1970” The counsel contended that this order in no uncertain terms made it clear that the confirmation of the apellant in service came about only when the order dated 16.12.2001 was passed, albeit when it was made retrospectively from 12.10.1970. Consequently, it is urged that there could never have been an occasion for the District Collector, Medak to pass orders dated 20.12.1995 to terminate the non-existing lien of the appellant. He, therefore, submitted that the expression “Full member of a service” is defined in Rule 3(8) of the applicable Rules and there was no material before the High Court that there was any order made for confirmation of the appellant under Rule 29 at any time before 16.12.2001. For the first respondent, however, it is contended that regularisation is the same as confirmation in service, and therefore, lien would operate from the said date. We are afraid that we cannot accept this contention in the face of clear authority to the contrary, to which we have already referred. Counsel for the first respondent also contended that any relief given to the appellant should not affect any benefit of service, emoluments, allowance and pension etc. available to the first respondent. We do not see how this apprehension can arise. The order of the Tribunal does not in any way show that the first respondent's service benefits are affected. All that it ensures is that justice is rendered to the appellant. The learned counsel for the State submitted that the State would submit to any orders passed by this Court. We also notice that the State Government has not filed any counter-affidavit in position to the appeal. In the circumstances, we find merit in the contentions urged on Civil Writ Petition No.2661 of 2009 6 behalf of the appellant. We are also of the view that the High Court erred in interfering with the order of the Tribunal. In the result, we allow this appeal and set aside the impugned judgment of the High Court. The order of the Tribunal dated 24.03.2000, made in O.A. No.6692/1999 dismissing the application of the first respondent, is affirmed. No order as to costs.” In the instant case, the petitioner, having joined personnel Branch at Ferozepur Division on 14.05.1987, had no requisite experience of two years as on 01.04.1989 for seeking promotion as Senior Typist and he became eligible for promotion only w.e.f. 22.07.1989. Since no vacancy existed at that time, as such he was promoted w.e.f. 30.11.1989 when the vacancy existed. It is again reiterated that the petitioner could not claim lien of his service at Ferozepur Division of Northern Railway (respondent No.2) as he had got himself transferred to Rail Coach Factory, Kapurthala ((a distinct and independent unit with separate seniority) on 18.04.1988, on his own request and still he was not confirmed on the post of typist at Ferozepur Division, therefore, his lien over the said post would not operate from the date he joined at Ferozepur Division. Moreover, a government servant's lien on a post shall stand automatically terminated on his acquiring a lien on a permanent post outside the cadre on which he is born. So the petitioner cannot claim seniority over and above the respondent No.3. As such, while examining the case from all angles, we are unable to make any exception to the view expressed by the Tribunal. Dismissed. (M.M.KUMAR) (A.N.JINDAL) JUDGE JUDGE August 30, 2010 mamta-II