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PETITIONER: T. R. SHARMA

       Vs.

RESPONDENT: PRITHVI SINGH & ANR. ETC.

DATE OF JUDGMENT17/11/1975

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ BHAGWATI, P.N. FAZALALI, SYED MURTAZA

CITATION:  1976 AIR  367            1976 SCR  (2) 716  1976 SCC  (1) 226  CITATOR INFO :  F          1976 SC1199  (8)  F          1989 SC1985  (5,6,7)

ACT:      Punjab Civil  Service Rules,  rr. 3,  12 and  3, 14 (a) (2)-Scope of.

HEADNOTE:      While holding the post of Agricultural Inspector in the Agricultural Department, the appellant was appointed against a temporary  post of Block development and Panchayat officer in  the   Development  Department  of  the  State,  and  was confirmed in  that post with effect from April 1, 1964. As a result of  the partition  of Punjab,  the appellant  and the respondents (who  were also  Agricultural  Inspectors)  were allocated to  the State  of Haryana. On February 26, 1969 at the request  of  the  appellant,  the  Governor  of  Haryana deconfirmed the appellant from the post of Block Development and Panchayat  officer with effect from that date. On March. 20,  1969,  the  Governor  passed  an  order  promoting  the appellant  temporarily   as  District  Agricultural  officer describing him  as "Agricultural  Inspector, now  working as Block Development and Panchayat officer".      The respondents  challenged the  order,  and  the  High Court  allowed   their  writ   petition  holding   that  the appellant’s lien  on the post of Agricultural Inspector-from which post  alone he could have been promoted to the post of District Agricultural officer-automatically stood terminated under  r.   3.12  Punjab.   Civil  Service   Rules,  on  his confirmation as Block Development officer.      Allowing the appeal to this Court, ^      HELD: Under r. 3. 12 normally, a Government servant, on substantive appointment  to any  permanent post,  acquires a lien on  that post  and ceases  to hold  any lien previously acquired on  any other  post. But,  the opening words of the rule show  that  it  would  apply  unless  it  is  otherwise provided in  the Rules. Rule 3.14 (a) (2) provides otherwise by carving  out an  exception. It  provides that a competent authority shall  suspend the lien of a Government servant on a permanent  post which  he holds  substantively, if  he  is

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appointed in  d substantive  capacity to  a  permanent  post outside the  cadre on  which he is borne. When the appellant was appointed  as Block Development and Panchayat officer in a substantive  permanent capacity,  his case  fell  squarely within the  ambit of  r. ‘3  14(a) (2) as, the post of Block Development and  Panchayat officer  was outside the cadre of Agricultural Inspectors to which the appellant belonged. The use of  the word  "shall" in cl. (a)  against the use of the word "may"  in cl.  (b)  of  the  rule  shows  that  it  was imperative for  the competent  authority to suspend the lien of the  appellant on  the  permanent  post  of  Agricultural Inspector which  he held substantively. He should not suffer because of  the competent authority’s failure to do so. [720 E, H, 721 A]      Further, under  r. 3.15,  in a  case covered by r. 3.14 (a) (2)  the suspended lien of a Government servant may not, except on  the written request of the Government servant,‘be terminated while  he remains  in Government  service; but no written request was made by the appellant in the presnt case for  terminating   his  suspended   lien  on   the  post  of Agricultural Inspector. [712-B, C]      Therefore, when  the Governor deconfirmed the appellant from the  post of  Block Development  and Panchayat officer, the  suspended   lien  of  the  appellant  on  the  post  of Agriculture  Inspector   stood  revived   with  effect  from February  26,   1969,  and   his  promotion  in  his  parent Agricultural  Department   from  the  post  of  Agricultural Inspector to  that of  District Agricultural  officer by the impugned order,  does not  suffer from  any legal infirmity. [721-D-E] 717

JUDGMENT:      CIVIL. APPELLATE  JURISDICTION: Civil  Appeal Nos.  354 and A 355 of 1971.      From the Judgment dated 28th October 1970 of the Punjab and Haryana  High Court at Chandigarh in L.P.As. Nos. 85 and 86/70.      M. N.  Phadke, P.  C. Bhartari  and K.  K. John for the Appellant (in both the appeals).      S. K.  Mehta, K.  R. Nagaraja, M. Qarnaruddin and P. N. Puri for Respondent No. 1 (In CA 354) and Respondents Nos. 1 and 2 (in C.A. 355)      Naunit Lal  and R.  N. Sachthey  for Respondent 2 in CA 354 and respondent 3 in CA 355.      The Judgment of the Court was delivered by      KHANNA, J.-This‘judgment  would dispose  of  two  civil appeals Nos.  354 and  355 of  1971 which have been filed on certificate by  Tuhi Ram  Sharma appellant  against the Full Bench judgment of the Punjab and Haryana High Court.      The appellant  joined service as Agricultural Inspector in the Agricultural Department of Punjab Government in 1945. Teja  Singh,   Bhale  Ram   and  Prithvi   Singh  joined  as Agricultural Inspector  in the  said Agricultural Department on different  dates between 1950 and 1958. The appellant was confirmed as Agricultural Inspector in 1959. On May 20, 1961 the appellant  was appointed  against a  temporary  post  of Block Development  and Panchayat  officer in the Development Department of the State. By order dated October 28, 1966 the appellant was  made substantive  permanent Block Development and Panchayat officer with effect from April  1, 1964.  As a result of partition of Punjab the appellant as well as Teja Singh, Bhale Ram and Prithvi Singh

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were allocated to the State of Haryana. On February 26, 1969 the Governor  of Haryana  passed an  order deconfirming  the appellant on  his request from the post of Block Development and Panchayat  officer with  effect from that date. On March 20, 1969  the Governor  of Haryana passed the impugned order which reads as under:           "The Governor  of Haryana  is pleased  to  promote      temporarily  Shri   Tuhi   Ram   Sharma,   Agricultural      Inspector,  now   working  as   Block  Development  and      Panchayat officer  as District  Agricultural officer in      H.A.S. Class  IT subject to the approval of the Haryana      Public Service  Commission and to post him at Rohtak in      place of  Shri  Narain  Singh  who  is  transferred  to      Narnaul as  District Agricultural officer, Shri Prithvi      Singh who  is working  against  the  post  of  District      Agricultural officer,  Narnaul is  reverted to the post      of Agricultural Inspector being the junior-most. 718           The character  roll file  of Shri  Tuhi Ram in two      parts is  sent herewith.  Its  receipt  may  please  be      acknowledged." Two writ  petitions were  filed praying  the quashing of the above  order.  one  petition  was  filed  by  Prithvi  Singh respondent and  the other  was filed  by Bhale  Ram and Teja Singh respondents.  Learned single  Judge (Tuli  J.) as  per judgment dated  January  30,  1970  allowed  both  the  writ petitions and  quashed the  impugned order  on the following two grounds:           "(i) the  impugned  promotion  had  been  made  in                violation of  the mandatory  requirements  of                rule 7  of the  Haryana Agricultural  Service                Class II  Rules, 1947 (hereinafter called the                1947 rules)  which required appointment being                made to the service by promotion by selection                on the  advice of  Haryana  Public  Ser  vice                Commission  inasmuch   as  Sharma   had  been                promoted without  obtaining the advice of the                Commission which  head to be taken before the                selection for  promotion was  made,  and  not                after having promoted Sharma, and           (ii) in view of the binding earlier Division Bench                judgment of this Court in Labhu Ram & ors. v.                The State  of Punjab and Ors. 1968 S.L.R. 319                it  was   held  that   Sharma  had   on   his                confirmation   as   Block   Development   and                Panchayat officer  on October  28, 1966 (with                effect from  April 1,  1964, vide Annexure A)                in the  Development Department of the Haryana                State, ceased  to be  a member of the Haryana                Agricultural Service from which post alone he                could have  been  promoted  to  the  post  in                question,  and   his  lien  on  the  post  of                Agricultural  Inspector  automatically  stood                terminated under  Rule  3.12  of  the  Punjab                Civil Services Rules Volume I, Part I." It was  also observed  by learned  single Judge that but for the earlier Division Bench judgment in the case of Labhu Ram & Ors.  v. State  of Punjab,  he would have been inclined to hold in  favour of  Sharma appellant  on  the  second  point mentioned above.  Four Letters  Patent  appeals  were  filed against the  judgment of  the single  Judge.  Two  of  those appeals were  by Sharma  appellant, while the other two were filed by  the State of Haryana. When the appeals came up for hearing  before  the  Division  Bench,  the  learned  Judges referred the  matter to  the Full Bench. In the meantime, on

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March 5,  1970 the  Governor of Haryana in consuitation with the  Haryana   Public  Service  Commission  promoted  Sharma appellant as  District Agricultural  officer in  Class II on regular basis  and posted him as such with effect from April 1, 1969.  All the learned Judges constituting the Full Bench held that  the first  ground on which the impugned order had been quashed, namely, non-procuring of the advance advice of the 719 Haryana Public  Service Commission  was not well founded. It was also  observed that  the earlier  case of  Labhu Ram was clearly distinguishable-and had no bearing. By a majority of two to  one the Full Bench upheld the judgment of the single Judge on  the second  ground, namely,  that the  lien of the appellant  on   the  post   of  Agricultural  Inspector  had automatically been terminated.      It is  the above  conclusion of  the majority which has been as- . sailed in these two appeals before us.      Mr. Phadke  on behalf of the appellants has invited our attention to  the relevant  rules on  the  subject  and  has contended that the conclusion of the majority of the learned Judges of  the Full  Bench that the lien of the appellant on the post  of Agricultural  Inspector had stood terminated is not  well-founded.   As  against   that,  Mr.  Nagaraja  has canvassed for  the correctness  of the  above  view  of  the learned Judges  of the High Court. After hearing the learned counsel for the parties, we are of the opinion that there is considerable merit in the contention of Mr. Phadke.      We may  at the  outset reproduce  the relevant rules of the  Punjab  Civil  Service  Rules,  Volume  I,  Part  I  as applicable to the State of  Haryana:           "3.12. Unless in any case it be otherwise provided      in these  Rules, a  Government servant  on  substantive      appoint appointment  to any  permanent post  acquires a      lien on that post and cases to hold any lien previously      acquired on any other post. E,           3.14. (a)  A competent authority shall suspend the      lien of a Government servant on a permanent. post which      he  holds  substantively;  if  he  is  appointed  in  a      substantive capacity.           (1)  ............ ...... ......           (2)  to a  permanent post  outside  the  cadre  on                which he is borne, or           (3)  ............. ...... ......                ...... ...... ......                ...... ...... ...... .           3.15. (a) Except as provided in clause (c) of this      rule  and   in  note  under  rule  3.13,  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) In  a case covered by sub-clause (2) of clause      (a)       of rule 3.14 the suspended lien may not, except on the       written  request of  the Government servant concerned, be 720      terminated while  the  Government  servant  remains  in      Government service.           (c)  Notwithstanding   the  provisions   of   rule      3.14(a), the  r lien  of a  Government servant  holding      substantively a  permanent  post  shall  be  terminated      while on  refused  leave  granted  after  the  date  of      compulsory  retirement  under  rule  8.21;  or  on  his

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    appointment substantively to the post of Chief Engineer      of the Public Works Department.           Note.-In a  case covered by rule 3.14(a)(2), where      a Government  servant is  appointed  in  a  substantive      capacity to a permanent post outside the cadre on which      he is   borne,  rule 3.15(b)  precludes permanently the      termination of  his suspended  lien unless  and until a      written request  to this  effect is  received from him.      The result is that it is possible for such a Government      servant to  stop his  suspended lien being removed from      the  parent   cadre  indefinitely   and,   thus   cause      inconvenience to  the parent  office. Such  a situation      may be  met by appropriate executive action being taken      by the  controlling officer who may re fuse his consent      to such  a  Government  servant  being  can  firmed  or      retained in  a permanent  post outside his cadre unless      he agrees to his lien on a permanent post in his parent      office being terminated."      The learned  Judges constituting  the majority  of  the Full Bench  3: in  holding that  the appellant’s lien on the post of  Agricultural Inspector  had stood terminated relied upon rule  3.12.  Perusal  of  the  above  rule  shows  that normally a  Government servant on substantive appointment to any permanent  post acquires  a lien on that post and ceases to hold  any lien previously acquired on any other post. The opening words of the above rule, however, show that it would apply unless  it be  otherwise provided  in the  rules. Rule 3.14(a)(2) carves  out an  exception  to  the  general  rule contained in  rule 3.12.  According to  rule  3.14(a)(2),  a competent authority  shall suspend  the lien of a Government servant on a permanent post. which he holds substantively if he is  appointed in  a substantive  capacity to  a permanent post outside  the cadre  on which  he  is  borne.  When  the appellant was  appointed was Block Development and Panchayat officer  in  a  substantive  permanent  capacity,  his  case squarely fell  within the  ambit of  rule 3.14(a)(2)  as the post of  Block Development and Panchayat officer was outside the cadre  of Agricultural Inspectors to which the appellant belonged: In  the circumstances,  it was  imperative for the competent authority  to suspend the lien of the appellant on the permanent  post of  Agricultural Inspector  which he had held substantively. The competent authority, however, failed to suspend  the  lien  of  the  appellant  on  the  post  of Agricultural Inspector.  The appellant plainly cannot suffer because of  such inaction  or omission  on the  part of  the competent authority.  A reading  of the rule leaves no doubt that a duty is cast upon the competent 721 authority to  suspend the  lien of a Government servant on a permanent  post  which  he  holds  substantively  if  he  is appointed in  a substantive  capacity to  a  permanent  post outside the  cadre on  which he  is  borne.  The  imperative nature of  the rule  is also  clear from the use of the word "shall" in  clause (a)  as against the use of the word "may" in clause  (b) of  that rule. The appellant, in our opinion, cannot be penalised because of the omission of the competent authority to  it in accordance with the mandatory provisions of rule  3.14 (a)(2).  Clause (b) of rule 3.15 also makes it clear that in a case covered by sub-clause (2) of clause (a) of rule  3.14, the  suspended lien of the Government servant concerned may  not, except  on the  written request  of that Government  servant,  be  terminated  while  he  remains  in Government service. The note to rule 3.15 shows a way out in case  any  difficulty  is  experienced  on  account  of  the operation of  rule 3.14(a) (2). It is nobody’s case that any

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written request  was made  by the  appellant for terminating his suspended lien on the post of Agricultural Inspector. As such, we  find it  difficult to  uphold the  finding of  the majority of  the  learned  Judges  that  the.  lien  of  the appellant on  the post  of Agricultural  Inspector had stood terminated. In  our opinion,  the third Judge who was in the minority took  a correct view of the matter when he observed that the  Government servant  is not  to  be  penalised  and cannot be  deprived of  the safeguards provided by rule 3.14 because of  the fact  that the  competent authority  had not taken the necessary steps.      As the  Governor has deconfirmed the appellant from the post  of   Block  Development  and  Panchayat  officer,  the suspended lien  of the appellant on the post of Agricultural Inspector would  stand revived with effect from February 26, 1969.  The   promotion  of   the  appellant  in  the  parent Agricultural  Department   from  the  post  of  Agricultural Inspector to  that of  District Agricultural  officer by the impugned order cannot in the circumstances be held to suffer from any legal infirmity.      We accordingly  accept the  two appeals,  set aside the judgments of the learned single Judge and the Full Bench and dismiss the writ petitions filed by Prithvi Singh, Bhale Ram and Teja Singh respondents. The parties in the circumstances shall bear their own costs throughout. V.P.S.                                       Appeals allowed 722