STATE OF RAJASTHAN & ORS versus DR. HAMIR SINGH CHOUHAN (DEAD) BY LRS & ORS.
[2023] 4 S.C.R. 118, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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STATE OF RAJASTHAN & ORS.
v.
DR. HAMIR SINGH CHOUHAN (DEAD) BY LRS & ORS.
(Civil Appeal No. 5392 of 2017)
APRIL 28, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Rajasthan Service Rules, 1951 – r.18 – Termination of lien –
Respondents were initially appointed in the Animal Husbandry
Department of the State of Rajasthan – Subsequently, all of them
applied for appointment in the Rajasthan State Dairy Development
Corporation Ltd. and were appointed in the respective Milk Unions
under the Dairy Federations – Lien of the respective respondents
was terminated w.e.f. the date on which they were absorbed/made
permanent in the Dairy Federations – All of them retired as employees
of the Dairy Federations – However, later, the respondents claimed
pensionary benefits from the State Government treating their lien to
be continuing with the State – Allowed by High Court – Sustainability
of – Held: Not sustainable – There cannot be two liens on two
substantive posts – Even as per r.18 of the 1951, Rules which
provides for termination of lien, a Government servant’s lien on a
post stood terminated on his acquiring a lien on a permanent post
outside the cadre on which he is borne – Thus, once the respondents
were permanently absorbed and became an employee of the Dairy
Development Corporation/Milk Federation Unions, they ceased to
have the lien with the State Government – Therefore, they shall not
be entitled to
the pensionary benefits as State Government employees
and that too after having received the retirement benefits from the
Dairy Development Corporation / Milk Federation Unions –
Judgment and order passed by the Single Judge and the Division
Bench quashed and set aside – Service Law.
State of Rajasthan and Anr. vs. S.N. Tiwari and Ors.,
(2009) 4 SCC 700 – referred to.
Case Law Reference
(2009) 4 SCC 700
referred to
Para 4.3
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5392
of 2017.
From the Judgment and Order dated 09.02.2015 of the High Court
of Rajasthan at Jodhpur in DBCSA No. 50 of 2015.
With
Civil Appeal Nos. 5393, 5391 and 5394 of 2017.
Dr. Manish Singhvi, Sr. Adv., Ms. Shubhangi Agarwal, Arpit
Parkash, Sandeep Kumar Jha, Ms. Ruchi Kohli, Advs. for the Appellants.
Uday Gupta, Ms. Shivani M. Lal, Ms. Sanam Singh, S. S. Sisodia,
M. K. Tripathi, Harish Dasan, Rajiv Ranjan, Rajeev Kumar Gupta, Hiren
Dasan, Ms. Charu Mathur, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment(s) and order(s) passed by the Division Bench of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal
(Writs) No. 50 of 2015 and other allied appeals by which the Division
Bench of the High Court has dismissed the said division appeals preferred
by the appellant herein – State of Rajasthan, which were filed against
the common judgment and order passed by the learned Single Judge
declaring the respondents herein to be entitled to receive pensionary
benefits in essence by treating their lien to be continuing with the State
Government upto the date of their permanent absorption with the
Rajasthan Co-operative Dairy Federations (hereinafter referred to as
“Dairy Federations”), the State of Rajasthan has preferred the present
appeals.
2. That the respondents herein were initially
appointed in the Animal
Husbandry Department either as Animal Husbandry Extension Officer
or Veterinary Assistant Surgeon in the year 1971. That all of them were
subsequently selected after following the due selection process between
1976 to 1978 in the Dairy Federations. That as per the relevant G.O. and
the relevant Rules, the respondents continued to have the lien with the
parent department / State Government. That the names of the
respondents appeared in the seniority list of the Dairy Federations and
all of them were promoted in the year 1983 or 1989 in the Dairy
STATE OF RAJASTHAN & ORS. v. DR. HAMIR SINGH
CHOUHAN (DEAD) BY LRS & ORS.
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Federations. All of them retired as employees of the Dairy Federations
between 1999 to 2003. All of them received the retirement benefits from
the Dairy Federations.
2.1 Thereafter, after a period of approximately six to nine years,
from the date of superannuation from the Dairy Federations and after
receiving all the retirement benefits from the Dairy Federations, the
respective respondents filed the writ petitions before the learned Single
Judge of the High Court claiming the pensionary benefits from the State
Government treating their lien to be continuing with the State. That the
learned Single Judge allowed the writ petitions.
2.2 At this stage, it is required to be noted that the lien of the
respective respondents came to be terminated subsequently in the year
1988/1993 w.e.f. the date on which they were absorbed / made permanent
in the Dairy Federations.
2.3 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge, the State preferred the present appeals
before the Division Bench. By the impugned judgment(s) and order(s),
the Division Bench of the High Court has dismissed the said appeals.
Hence the present appeals.
3. Dr. Manish Singhvi, learned senior counsel has appeared on
behalf of the State and Shri Uday Gupta, learned counsel has appeared
on behalf of the respective respondents – original writ petitioners.
4. Dr. Manish Singhvi, learned senior counsel appearing on
behalf
of the State has vehemently submitted that all the respective respondents
were selected after following the selection process between 1976 and
1978 in the Dairy Federations. It is submitted that all of them were
absorbed permanently in the Dairy Federations and they continued to
work in the Dairy Federations as employees of the Dairy Federations till
they attained the age of superannuation and retired.
4.1 It is submitted that as per G.O. dated 30.01.1976, the respective
respondents, who joined the Dairy Federations, their lien was kept for a
period of two years or their confirmation in the Corporation / Union,
whichever is earlier. It is submitted that therefore, on and after they got
confirmed in the Dairy Federations, the respective respondents were
not entitled to have any lien elsewhere. It is submitted that therefore the
lien could not have been extended beyond a period of two years.
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4.2 It is further submitted that therefore, once the respondents
became the employees of the Dairy Federations, even as per Rule
18(2) of the Rajasthan Service Rules, 1951, they ceased to have a lien
on the post on which they were earlier working with the State
Government.
4.3 It is submitted that in the case of State of Rajasthan and
Anr. Vs. S.N. Tiwari and Ors., (2009) 4 SCC 700, it has been clearly
held that when a person with a lien against the post is appointed
substantively to another post, then he acquires a lien with the later post.
A person cannot be substantively appointed on two substantive posts
simultaneously. It is submitted that this is the basis of entire service
jurisprudence. It is submitted that keeping in mind the above, Rule 18(2)
of the Rajasthan Service Rules, 1951 provides that “a Government
servant’s lien to a post stands terminated on his acquiring a lien on a
permanent post, which is outside the cadre post.”
4.4 Making above submissions, it is submitted that the respondents
shall not be entitled to any pensionary benefits as Government employees,
after they ceased to have the lien in the State Government on the post
on which they were working earlier.
5. All these appeals are vehemently opposed by Shri Uday Gupta,
learned counsel appearing on behalf of the respective respondents.
5.1 Learned counsel appearing on behalf of the respondents has
vehemently submitted that as such the respective respondents were
sent on deputation to
the Dairy Federations and, therefore, they
continued to have the lien in the Government. It is submitted that none
of the respondents had lost their lien in the Government before their
date of absorption / no absorption with the new employer, i.e., Dairy
Federations.
5.2 It is submitted that it is established from the records that in
each of the cases they were all initially appointed by the Rajasthan
Government and were confirmed as such in the Government service,
they were then relieved to join the posting at respective places in the
Dairy Federations.
5.3 It is submitted that the Government of Rajasthan has referred
to the Guidelines contained in the letter / G.O. dated 30.01.1976 issued
by the Deputy Secretary, Government of Rajasthan, Agriculture
STATE OF RAJASTHAN & ORS. v. DR. HAMIR SINGH
CHOUHAN (DEAD) BY LRS & ORS. [M. R. SHAH, J.]
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Department, Jaipur. It is submitted that the said document is a letter
containing guidelines issued by an officer of the Department and these
guidelines could not override / supersede the position of the Rules and,
therefore, no reliance can be placed upon the same.
5.4 It is submitted that so far as the position of the Rules is
concerned, the question of lien has to be decided with reference to Rules
15 and 18 of the Rajasthan Service Rules, 1951. It is submitted that the
lien acquired by a Government servant cannot be terminated even with
his consent if he is left without lien. It is submitted that in the facts of the
present case, the lien acquired by each of the respondents under the
Government could not have come to an end by their posting and
continuance in the respective Milk Unions until they were absorbed
therein. It is submitted that till the date they were absorbed they continued
to be the Government servant and, therefore, were entitled to the pension
according to the Rules. It is submitted that Rule 158 governs the cases
of pension of those who are working under the Local Bodies and paid by
the Local Funds administered by the Government of Rajasthan, but so
far as the respondents are concerned, they were continuing as confirmed
Government servants without confirmation in their respective unions and
therefore the guideline dated 30.01.1976 could not override the operation
of the Rules relating to the lien.
It is submitted that the legal position is
that the lien could not be terminated even with the consent of the
Government servant, if he is left without lien.
5.5 Making above submissions, it is prayed to dismiss the present
appeals.
6. Heard the learned counsel for the respective parties at length.
7. At the outset, it is required to be noted and it cannot be disputed
that all the respondents were initially appointed in the year 1971 on the
post of Animal Husbandry Extension Officer or Veterinary Assistant
Surgeon in the Animal Husbandry Department of the State of Rajasthan.
However, thereafter, all of them applied for appointment in the Rajasthan
State Dairy Development Corporation Ltd. by making applications and
after they were interviewed, they were appointed in the respective Milk
Unions under the Dairy Federations between 1976 to 1978. After their
applications and interviews, the respondents were informed with the
terms and conditions on which they are absorbed / appointed in the
Rajasthan State Dairy Development Corporation Ltd., which read as
under:-
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“With reference to your application and interview for the post
of Assistant Officer you are informed that before the appointment
can be made your acceptance to the following terms and conditions
is necessary.
1.
You will be appointed in the grade of 375-850 and your
way will on fined suitably protecting your existing pay.
2.
Other allowances like Dearness Allowances House Rent
allowance and Travelling Allowance etc., shall be at par
with these admissible in State Government service.
3.
Though the recruitment is being done by the Corporation
your ultimate employer may be the Union of Cooperative
Societies established at the District level.
4.
Regarding your previous service the matter will have to be
settled between you and the State Government. So far as
the Corporation is concerned this will be a fresh appointment.
If the terms are acceptable, please send the acceptance in the
acknowledgement, given below latest by 16th August 1975, failing
which it shall be assumed that you are not interested in the job.”
7.1 Thus, all of them were specifically informed that regarding
their previous service, the matter will have to be settled between them
and the State Government and so far as the Corporation is concerned,
the appointment will be a fresh appointment. That thereafter, all of them
were appointed in the concerned Dairy Federations/Unions under the
Rajasthan State Dairy Development Corporation Ltd. on the basis of
the recommendations made by the selection
committee of the Rajasthan
State Dairy Development Corporation Ltd. initially on a probation for a
period of one year. At the time when number of officers of the Rajasthan
Animal Husbandry Services came to be selected on certain posts in the
Rajasthan Dairy Development Corporation and the various Milk
Producers Cooperative Unions, some of these officers workings in the
Rajasthan Animal Husbandry services represented to the Government
that before making up their mind about accepting of their offers, they
would like to know what benefits in respect of their service in the
Government will be available to them. To that, the respective employees
were informed vide communication / G.O. dated 30.01.1976 that their
lien will be kept for a period of two years or until their confirmation,
whichever is earlier. That therefore, right from very beginning, the
STATE OF RAJASTHAN & ORS. v. DR. HAMIR SINGH
CHOUHAN (DEAD) BY LRS & ORS. [M. R. SHAH, J.]
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respective respondents were told that their lien will be kept for a period
of two years or until their confirmation in the Corporation / Union,
whichever is earlier. With an open eye, the respective respondents
accepted their appointments in the Dairy Development Corporation /
Milk Federation Unions. All of them thereafter continued to work in
their respective milk unions under the Dairy Development Corporation.
All of them got the promotions while working in different milk unions
under the Dairy Development Corporation. All of them retired as
employees of the Dairy Development Corporation / Milk Federation
Unions. All of them were paid the retirement benefits when they retired
on attaining the age of superannuation.
That thereafter after a period of six to nine years of their retirement
from the Dairy Development Corporation / Milk Federation Unions, they
filed the writ petitions before the High Court claiming pensionary benefits
from the State Government contending inter alia that their lien as a
Government servant in the Rajasthan Government service have been
continued. Once the respondents were absorbed on selection and after
selection process in the Dairy Development Corporation / Milk Federation
Unions, they worked as such and even got the promotion, thereafter, the
respective respondents ceased to have the lien in the Government service.
The letter dated 30.01.1976 is very clear. Even as per Rule 18 of the
Rajasthan Service Rules, 1951, which provides for termination of lien,
“a Government servant’s lien on a post stands terminated on his acquiring
a lien on a permanent post outside the cadre on which he is borne”.
Therefore, once the respective respondents were appointed after
selection and interview in the Rajasthan Dairy Development Corporation
/ Milk Federation Unions, they ceased to have the lien in the Government.
7.2 As rightly submitted on behalf of the State, there cannot be
two liens on two substantive posts. The submission on behalf of the
respondents that it was not a case of permanent appointment in the
Dairy Development Corporation / Milk Federation Unions, cannot be
accepted. Their appointment orders on record are very clear. They were
appointed after due selection, interview and even after following the due
selection process and even earlier when they had doubts, it was made
explicitly clear in the communication dated 30.01.1976. Therefore, once
the respondents were permanently absorbed and became an employee
of the Dairy Development Corporation / Milk Federation Unions, they
ceased to have the lien with the State Government and therefore, they
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shall not be entitled to the pensionary benefits as State Government
employees and that too after having received the retirement benefits
from the Dairy Development Corporation / Milk Federation Unions.
8. In view of the above and for the reasons stated above, the
judgment and order passed by the learned Single Judge as well as the
Division Bench are unsustainable and the same deserve to be quashed
and set aside and are accordingly quashed and set aside. It is observed
and held that the respective respondents shall not be entitled to the
pensionary benefits from the State Government as directed by the learned
Single Judge and the Division Bench.
Present appeals are accordingly allowed. No costs.
Pending application, if any, also stands disposed of.
Divya Pandey
Appeals allowed.
(Assisted by : Abhishek Agnihotri and Roopanshi Virang, LCRAs)
STATE OF RAJASTHAN & ORS. v. DR. HAMIR SINGH
CHOUHAN (DEAD) BY LRS & ORS. [M. R. SHAH, J.]