Case ID: 6126

Judgment:
ivil Appeal No. 2941 of 1982. From the Judgment and Order dated 26.2.82 of the Punjab Haryana High Court in L.P.A. No. 1120 of 1981. P.A. Choudhary	 Mrs. K. Sarada Devi and B. Kanta Rao for the Appellants. C.M. Nayyar for the Respondents. The following Order of the Court was delivered ORDER This appeal by special leave is directed against the decision of the 682 High Court of Punjab & Haryana which dismissed the writ petition of the appellant and sustained the order of his compulsory retirement In March 1949	 the appellant entered into service as a clerk in the Police Department. When he was working in the office of Inspector General of Police	 he appeared for selection to the posts of Excise Sub Inspector in the Excise Department of the State. He was selected and appointed as Excise Sub Inspector He continued in the post for a number of years. In October 1963	 he was repatriated to his parent department But it was not a simple repatriation. The post of Excise Sub Inspector was in the higher scale than his original post in the Police Department So he was reverted and sent back to his parent department. The appellant challenged the reversion and repatriation in O.S. No. 126 of 1965 before the Court of Subordinate Judge 1st Class	 Patiala. He sought for a declaration that the order of reversion was illegal and void. It was an infringement of his legal right to continue as Sub Inspector in the Excise Department. 'The learned Subordinate Judge accepted his claim and decreed the suit. He made some perti nent observation. "The plaintiff continued to hold the post beyond the prescribed period of probation and his services were not dispensed with at the end of two years and he was not reverted. The plaintiff	 in fact	 continued to hold the post for more than 6 years	 after the maximum period of probation had expired. Consequently	 the rule laid down in and on the basis there of	 it is held that the plaintiff must be taken to have so continued in a substantive capacity. On this conclusion	 that the plain tiff was in October	 1963	 holding his post substantively	 that termination of his service necessarily amounted to punishment	 and must be deemed to be removal from service	 which of course was not permissible without a proper enquiry. The conclusion must	 therefore	 be that the termination of the plaintiff 's serv ices was illegal. " It is thus clear from the above observation that the Court expressed the view that the appellant was holding a substantive post in the Excise Department. After completing his probationary period	 he was holding the post of Sub Inspector in a substantive capacity. So his reversion and repatriation .amounted to penalty which was illegal since made without proper enquiry. 683 Since repatriation of the appellant was set aside by the Civil Court	 the appellant was allowed to continue without interruption in the Excise Department itself. On October 1	 1975	 the Excise Commissioner made an order compulsorily retiring him from service. The order was made under Rule 3(1)(a) and (b) of the Punjab Civil Services (Premature Retirement) Rules	 1975. The appellant challenged the valid ity of that order before the High Court mainly on the ground that the Excise Commissioner was not competent to make that order since he belonged to Police Department. He claimed that his lien in the Police Department was not removed and	 therefore	 the Inspector General of Police was alone compe tent to deal with him. In support of the contention	 he placed reliance on the decision of this Court in T.C. Sharma vs Prithvi Singh & Ors.	 ; The High Court	 however	 distinguished that decision and dismissed the writ petition. It was held that the appellant had not gone to the Excise Department on deputation from the Police Department	 but he held a fresh appointment as an Excise Sub Inspector. Counsel for the appellant placed strong reliance on rule 3.14 of the Punjab Civil Services Rules (Vol. I) Part I and also on the decision in T.C. Sharma case. He urged that the appellant was no doubt holding a substantive post in the Excise Department	 but he had not acquired a lien against that post	 since he was not confirmed in that post. It was claimed that the lien in the parent department ought to have been suspended so that it could ensure to his benefit as and when he wanted to return back to his parent department. The contention	 in other words	 proceeded on the premise that the lien against original post in the Police Department could not vanish even though the appellant was holding a substantive post in the Excise Department. We do not think that the contention urged for the appel lant as to Rule 3.14 could be accepted. Rule 3.14 provides that a competent authority shall suspend the lien of a Government servent when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. It seems to us that this rule cannot be operated to the prejudice of a Government servant who on his own has acquired legal right to an ex cadre post. Indeed	 the rule is for the benefit of a Government servant who intends to return back to his parent department. That was also the view expressed in T.C. Sharma case. But then	 the appellant never wanted to return back to his parent department. He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post. He has thus denied himself of the benefit or ' that rule. 684 The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed	 he acquired no lien cannot also be accepted. Lien is not a word of article It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is ap pointed substantively to another post	 he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no Government servant can have simultaneously two liens against two posts in two different cadres. It is a well accepted principle of service jurisprudence. In the instant case	 the civil court has already ruled that the appellant had a right to continue in his substan tive appointment as Excise Sub Inspector. He secured that declaration when the Excise Department repatriated him to his parent department. After obtaining that decree from a court of competent jurisdiction	 he could not turn round and say that he still retained lien against his post in the parent department. The lien in his parent department must be held to have been cancelled consequent on the decree of the Civil Court. Therefore	 the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service. The appeal	 therefore	 fails and is dismissed in the circumstances of the case	 we make no order as to costs. Before parting with the case	 we may however add a word more. It was stated that in view of pendency of the proceed ings in this Court and in the High Court	 the pension due to the appellant has not been finalised. We	 therefore	 direct the respondent to determine the pensionary benefits of the appellant and pay the same to his legal heirs within three months	 if not already paid. G.N. Appeal dismissed.

Summary:
The appellant	 while working in the Police Department as a clerk	 was selected	 and subsequently appointed	 as Excise Sub Inspector. After several years	 he was reverted and sent back to his parent department. He challenged the reversion order before the Sub Judge	 who allowed him to continue in the Excise Department	 where he was holding a substantive post. After a decade	 he was compulsorily retired by the Excise Commissioner. The appellant moved the High Court by way of a writ petition challenging the said order and con tending that the Excise Commissioner was not competent to pass the order as the appellant belonged to the Police Department where his lien continued. The High Court rejected the writ petition. This appeal by special leave is against the said deci sion of the High Court. It was contended that the lien against original post in the police Department could not vanish even though the appellant was holding a substantive post in the Excise Department. Dismissing the appeal	 HELD: 1. Rule 3.14 of the Punjab Service Rules provides that a competent authority shall suspend the lien of a Government servant when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. This rule cannot be operated to the prejudice of a Government servant who on his own has acquired legal right to an ex cadre post. Indeed	 the rule is for the benefit of a Government servant who intends to return back to his parent department. But the appellant never wanted to return back to his parent department. He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post. He has thus denied himself of the benefit of that rule. [683F H] 681 T.C. Sharma vs Prithvi Singh & Ors.	 16: referred to. Lien is not a word of article It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post	 he ac quires a lien against the latter post. Then the lien against his previous post automatically disappears. It is a well accepted principle of service jurisprudence that no Govern ment servant can have simultaneously two liens against two posts in two different cadres. [684A B] 3. In the instant case	 the civil court has already ruled that the appellant had a right to continue in his substantive appointment as Excise Sub Inspector. He secured that declaration when the Excise Department repatriated him to his parent department. Alter obtaining that decree from a court of competent jurisdiction	 he could not turn round and say that he still retained lien against his post in the parent department. The lien in his parent department must be held to have been cancelled consequent on the decree of the civil court. Therefore	 the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service. [689C D] This Court directed the respondent to determine the pensionary benefits of the appellant and pay the same to his legal heirs within three months	 if not already paid.]