T. R. SHARMA versus PRITHVI SINGH & ANR. ETC.

T. R. SHARMA

PRITHVI SINGH & ANR. ETC. November 17, 1975

[H. R. KHANNA, P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]

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

While holding the post of Agricultural Inspector in the Agricultural Depart· ment, the appellant was ,appointed again>t temporary post o.f Block Develop-ment and Panchayat Officer in the Development Department of the State, and was confirmed in that post with effect from April 1, 1964. As result of the partition of Punjab, the appellant and the respondents (who were also Agricul-tural 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, 19'69, 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 Inspec-tor-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, Government servant, on substantive appointment to any permanent post, acquires lien on that post and ceases to hold any lien previously acquired on any other post. Bnt, 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 competent authority shall suspend the lien of Government ser-vant on permanent post which he holds substantively, if he is appointed in substantive capacity to permanent post outside the cadre on which he is borne. When the appellant was appointed as Block Development and Panchayat Officer in 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 Agricnltural Inspectors to which the appellant belonged. The ·use of the word "shall" in cl. (a) as 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 0n the permanent post of' Agricultural Inspector which be 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 case covered by r. 3.14 (a) (2) the suspended lien of 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 termi-nating 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 Agricultural Inspector stood revived with effect from February 26, 1969, and his promotion in his parent Agricultural Departm~nt 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]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 354 and 355 of 1971. '

From the Judgment dated 28th October 1970 of the Punjab and Haryaaa 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. Qamaruddin and P. N. Puri for Respondent No. 1 (In CA 354) and Respondents Nos. 1 and 2 (in C.A. 355) :J. . ~J

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 appellnnt joined service as Agricultural Inspector in the Agricultural Department of Punjab Governmc,1t in 1945. Teja Singh, Bhale Ram and Prithvi Singh joined as Agricultural faspec-tors in the said Agricultural Department on different dates between 1950 and 1958. The appellant was confirmed as Agricultural Ins-pector in 1959. On May 20, 1961 the appe!la·nt· w:.is appointed against temporary post of Block Development and Panchayat Offi-cer in the Development Department of the State. By order dated October 28, 1966 the appellant was ·made substantive permanen.t Block Development and Panchayat Officer with effect from April l, 1964. As result of partition of Punjab the appellant as well as Teja Shlgh, Bhalc Ram and Prithvi Singh were allocated to the State of Haryana. On February 26, 1969 the Governor of Haryana passed a11 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 in;Jpugned order which reads as under :

"The Governor of Haryana is pleased to promote tem-porarily- Shri Tuhi Ram Sharma, Agricultural Inspector, now working •as Block Development and Panchayat Officer as District Agricultural Officer in H.A.S. Class II 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 N arnaul 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.

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 Si•agh 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 ii\ viola-tion of the mandatory requirewents of rule 7 of the Haryana Agricultural Service Class II Rules, 1947 (hereinafter called the 194 7 rules) which required appointment being made to the service by promotion by selection on the advice of Haryana Public Ser-vice Comn;iission inasmuch· as Sharma had bee•n pro-moted without obtaining the advice of the Commis-sion which h•ad 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 judg-ment 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 confirmatio11 as Block Development and Panchayat Officer on October 28, 1966 (with effect from April 1, 1964, vide An-nexure A) in the Development Department of the Haryana State, ceased to be ·a member of the Harya•,rn Agricultural Service from which post alone he could have been promoted to the post in ques-tion, •and his lien on the post of Agricultural Ins-pector 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 Puniab, he would have been incli'aed 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 hear-ing before the Division Bench, the leamed Judge' referred the mat-ter to the Full Bench. In the meantime, on March 5, 1970 the Governor of Haryana in consultation with the Hatyana Public Ser-vice Commission promoted Sharma appellant as District Agricultural Officer in Class II on regul>ar basis and posted him as such with effect from April l , 1969. All the learned Judges co'nstituting the Full Bench held that the first ground on which the impugned order had been quashed, namely, non-procurrag of the advance advice of the

Haryana Public Service Commission was not well founded. It was also observed that the e>arlier case of Labhu Ram was clearly distinguish-able and had no bearing. By majority of two to O'ne the FulT 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 attentioll' to the relevant rules on the subject and has contended that the con-clusion of the majority of the learaed Judges of the Full Bench that the lieu 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 cco,1tention of Mr. Phadke.

We may at the outset reproduce the relevant rules of the Punjab Civil Service Rules, Volume I, Part I as appliC'able to the State of Haryana:

"3.12. Unless in any case it be otherwise provided in these Rules, Government servant on substantive appoint-ment to any permanent post acquires lien on that post a«1d ceases to hold any lien previously acquired on any other post. 3.14. (a) competent authority shall suspend the lien of Government servant on permanent post which he holds substantively; if he is appointed in substantive capacity.

(2) to permanent post outside the cadre on which he is borne, or

3.15. (a) Except as provided in clause (c) of this rule and in note under rule 3.13, Government servant's lien on post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without lien or suspended lien upon permanent post.

(b) Ill case covered by sub-clause (2) of clause (a) of rule 3.14 the suspeaded lien may not, except on the written request of the Government servant .concerned, be

terminated while the Government servant remains in Gov-ernment service.

(c) Notwithstanding the prov1s10ns of rule 3.14(a), the lien of Governmeat servant holding substantively per-manent post shall be terminated while on refused leave granted after the date of compulsory retirement under rule 8.21; or on his appointment substantively to the post of Chief Engineer of the Public Works Department. Note.-ln case covered by rule 3.14(a) (2), where Government serva'at is appointed in substantive capacity to permanent post outside the cadre on which he is borne, rule 3 .15 (b) precludes permanently the termination ·c ' of his suspended lien unless and until written request to this effect is received from him. The result is that it is possible for such Government servant to stop his sus-pended lien being removed from the parent cadre indefi-nitely and, thus cause inconvenience to the parent office. Such situation may be met by appropriate executive action being taken by the controlling officer who may re-fuse his ccmsent to such Government servant being c0'11-firmed or retained in permanent post outside his cadre unless he agrees to his lien on permanent post in his parent office being terminated."

The Jeoarned Judges constituting the maionty of the Full Bench 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 Government servant on sub-stantive appointment to any permanent post acquires lie,1 on thnt 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 excepti@ to the general rule contained in rule 3.12. According to rule 3.14(a) (2), competent autho-rity shall suspenq the lien of Government servant on permanent post which he holds substantively if he is appointed in substantive capacity to perma~1ent post outside the cadre on which he is borne. When the appellant was appointed •as Block Development and Pan-chayat Officer in substantive permanent capacity, his case squarely fell within the ambit of rule 3.14(a) (2) as the post of Block Deve-lopment and Panchayat Officer was outside the cadre of Agricultural Inspectors to which the appellant belonged. fa 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 subsmntively. The competent authority, however, failed to suspend the lien of the appellant on the post of Agricultural Ins-pector. The appellant plah1ly cannot suffer because of such inac-tion or omission on the part of the competent authority. reading of the rnle leaves no doubt that duty is cast upon the competent

authority to suspend the lien of Government servant on perma-nent post which he holds substantively if he is appointed in subs-tantive capacity to 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 pei1alised because of the omission of the competent autho-rity to act in accordance with the mandatory provisions of rule 3.14 (a) ( 2). Clause (b) of rule 3 .15 also makes it clear that in 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 Gover,1ment servant, be terminated while he remains in Government service. The note to rule 3.15 shows way out in case any difficulty is experienced on account of the ope-ration of rule 3.14(a) (2). It is nobody's case that any written re-quest was made by the appellant for terminating his suspended lien m 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 W'aS in the mino-rity took correct view of the ma,tter 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 appellm1t on the post of Agricultural Inspector would stand re-vived 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 a'ad the Full Bench and dismiss the writ petitions filed by Prithvi Singh, Bhale Ram and Tej'a Singh respon-dents. The parties in the circumstances shall bear their own costs throughout.

Appeals allowed.