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PETITIONER: RAMLAL KHURANA (DEAD) BY LRS.

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT03/08/1989

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) AHMADI, A.M. (J)

CITATION:  1989 AIR 1985            1989 SCR  (3) 680  1989 SCC  (4)  99        JT 1989 (3)   430  1989 SCALE  (2)326

ACT:     Punjab  Civil  Service  Rules: Vol.I, Part  I.  Rule  3. 14---Lien  of government servant--Suspension  of  lien--When and in what circumstances. Words & Phrases.’ "Lien "--Meaning of.

HEADNOTE:     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  v. Prithvi Singh & Ors., [1976] 2  SCR  7  16:

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referred to.     2. Lien is not a word of art. 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.]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil 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

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             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 v.  Prithvi Singh & Ors., [1976] 2 SCR 716. 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

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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 art. 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. 685