Devi Singh Rajpurohit vs State of Rajasthan

Vineet Kothari, J.—The lawyers are observing strike which is contrary to various Supreme Court decision.

Dr. Devi Singh Rajpurohit, petitioner is present-in-person. On behalf of respondents, Dr. Sampat Raj, Officer-in-Charge of the case, is present. The case is listed in today''s cause list at Serial No. 84 for final disposal at admission stage category.

Both the parties are agreed that the controversy involved in the present case is squarely covered by the decision of a coordinate bench of this Court in the case of Dr. P.D. Purohit Vs. State of Rajasthan & Ors. (SBCWP No. 3767/2010, decided on 23.09.2011). The issue raised in the present writ petition is in relation to inclusion of period of service rendered by the incumbent/petitioner in the Government Department (Animal Husbandry Department) prior to his deputation and absorption in the respondent-Dairy.

The present writ petition has been filed by the petitioner in this Court on 28.02.2014 with the following prayers:-

"It is, therefore, humbly prayed that this Hon''ble Court may kindly be pleased to call the record of the case, allow the writ petition and:-

(i) by an appropriate writ, order or direction, the respondents may kindly be directed to compute the services rendered by the petitioner in the Animal Husbandry Department and since the petitioner continued to hold lien on the post of Veterinary Assistant Surgeon till his permanent absorption in the services of the respondent dairy w.e.f. 2.6.1995, petitioner should be treated in continuous service of Animal Husbandry Department from 28.6.1971 till 1.6.1995, with all consequential directions;

(ii) by an appropriate writ, order or directions, the petitioner may be declared entitled to receive all pensionary benefits from the State of Rajasthan by treating his lien on a post under the Government of Rajasthan from 28.6.1971 to 1.6.1995.

(iii) by an appropriate writ, order or direction, the respondents may be directed to grant all service benefits including pensionary benefits by treating the petitioner in the service from 28.6.1971 to 1.6.1995 and accordingly grant him his pension as done in the case of other Government employees along with interest @ 9% per annum in terms of Rule 89 of the Rajasthan Civil Services Pension Rules, 1996 with all consequential directions;

(iv) Any other appropriate order or direction, which this Hon''ble Court considers just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner.

(v) Costs of the writ petition may kindly be awarded to the petitioner."

The learned Single Judge of this Court in the case of Dr. P.D. Purohit (supra) dealing with similar controversy held as under:-

"...... 9. Therefore, when the employee was not confirmed at the new post in accordance to the rules then his lien with State Government cannot be said to have terminated. It is only when a Government employee is appointed substantively to any post then he acquires a lien on that post and ceases to hold the lien previously acquired on a post. Moreover, a lien of an employee on a post would in, no circumstances be terminated unless he acquires a lien on a permanent post with his new employer and accepts to have lien with him. It is a settled principles of law that even when rules prescribed a maximum period of probation and if there is further provision for continuation of such probation then an exception has been made that there will be no deemed confirmation in such case and the probation period will be deemed to be extended.

In other words, when Shri Madhushudan Sharma was not confirmed and made permanent on the post with Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh or Rajasthan Cooperative Dairy Federation then his lien with State Government still continued and cannot be said to be terminated at any point of time, during the tenure of his service.

In State of Rajasthan v. Madhushudan Sharma & Ors. (supra) it was held in quite unambiguous terms that the lien of an employee with the State Government cannot be said to have been terminated, if such employee is not confirmed at the new post in accordance with the Rules. In the case in hand, it is not in dispute that the petitioner was absorbed with the services of the Dairy only under an order dated 6.2.1990, as such, in view of the provisions of Rule 18 of the Rajasthan Service Rules, as interpreted by this Court in the case of Madhushudan Sharma (supra), this lien could have not been terminated under the order dated 2.7.1988 w.e.f. 1.9.1976. The petitioner as a matter of fact was entitled to retain his lien with the State Government up to 5.2.1990 as his service was absorbed with respondent Dairy on 6.2.1990. The stand of the respondents that the petitioner was selected for appointment to a permanent post with Dairy much back in the year 1976, is of no consequence as his permanent absorption with Dairy was made in the year 1990 only. The respondent State was also treating his lien with it and for that reason only seniority was assigned to him in the cadre of Veterinary Assistant Surgeon, even after the year 1976.

The submission of counsel for the respondents that as per Government of Rajasthan''s decision given under Rule 158 of the Rajasthan Services Rules, no opportunity can be given to the petitioner to opt for pension after his retirement, too is of no consequence in view of the fact that the petitioner''s lien was available with the State upto 5.2.1990 and during this period he complete the qualifying service, as such, he is entitled for regular pension and not the proportionate one.

For the reasons given above, this petition for writ deserves acceptance. Accordingly, the same is allowed. The judgment dated 10.11.2008 passed by the Rajasthan Civil Services Appellate Tribunal is quashed. The appeal preferred by the petitioner before the tribunal is allowed. The petitioner is declared entitled for receiving pensionary benefits by treating his lien available with the respondent State upto the date of his permanent absorption in Dairy service, i.e. 6.2.1990 in present case. A direction is accordingly given to the respondents to grant all pensionary benefits to the petitioner as claimed by treating his service with the State of Rajasthan from 20.12.1962 to 5.2.1990.

No order to costs.

Sd/-

(GOVIND MATHUR), J.

The said judgment of the learned Single Judge was affirmed by the Division Bench of this Court while dismissing the appeals filed by the State viz. DBSAW No. 225/2012-State of Rajasthan Vs. Dr. D.N. Vyas & Ors. and DBSAW No. 226/2012-State of Rajasthan Vs. Dr. P.D. Purohit, along-with other connected appeals, vide the judgment dated 10.09.2013. The relevant extract of the judgment dated 10.09.2013 is also quoted herein below for ready reference:-

"We have examined the pleaded facts and documents as are construed to be relevant and have analyzed the rival arguments as well. As the debate centers around the point of time when the permanent lien of the respondents stood terminated to determine their entitlements by way of pensionary benefits apt it would be to refer at this stage to Rule 15 and Rule 18 of the Rules, which are accordingly, for ready reference, extracted hereunder:-

"Rule 15. Lien: Unless in any case it be otherwise provided in these rules, 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.

Rule 18. Termination of lien: (a) 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) A Government servant''s lien on a post stands terminated on his acquiring a lien on a permanent post (whether under the Government or Central/other State Government) outside the cadre on which he is borne."

A bare perusal of Rule 15 would reveal that unless it is otherwise provided by the Rules, a Government servant only on substantive appointment to any permanent post, would acquire a lien on that post and would cease to hold any lien previously acquired on any other post. It is, thus, more than apparent that acquisition of a lien would be a consequence of substantive appointment of a Government servant to any permanent post following which the earlier lien held by him, would stand extinguished. The pre-requisite for extinction of lien in a permanent post is, thus, his substantive appointment to any other permanent post subsequent thereto.

Rule 18, which deals with the termination of lien, mandates that a Government servant''s lien on a post in no circumstances, would get terminated even with his consent, if the result would be to leave him without a lien or a suspended lien upon a permanent post. Rule 18 (b) elaborates that a Government servant''s lien on a post would stand terminated on his acquiring a lien on a permanent post under the Government of Rajasthan or Central or other State Government outside the cadre on which he is borne. The incidence of termination of a Government servant''s lien on a post follows on acquisition of his lien on a permanent post and, therefore, has to be essentially traced to the eventuality as contemplated in Rule 15 i.e. his/her substantive appointment to any permanent post and on no other contingency.

In view of the above state of law, what needs to be decided is whether by applying the legal principle culled out therefrom the lien of the respondents did get terminated vis-a-vis the respondents Dr. P.D. Purohit and Dr. D.N. Vyas on and from 1.9.1976 and 1.12.1976 and qua Dr. S.P. Mathur on and from 1.2.1981. A plain perusal of the order dated 2.7.1988 would disclose that thereby, the lien of Dr. P.D. Purohit and Dr. D.N. Vyas were sought to be terminated retrospectively on and from 1.9.1976 and 1.12.1976 solely on the ground that they had been meanwhile selected to be appointed to the service of the Dairy. The order dated 6/7.2.1990 of the Director, Administration of the Dairy, as the text thereof would demonstrate, was a follow up step of the order dated 2.7.1988. In terms thereof, in addition to terminating the lien of Dr. P.D. Purohit and Dr. D.N. Vyas with effect from 1.9.1976 and 1.12.1976, they were absorbed in the services of the Dairy with effect from those dates. Noticeably, however the records reveal that Dr. D.N. Vyas and Dr. S.P. Mathur were absorbed in the service of the Dairy with effect from 22.1.1994/24.1.1994, a date subsequent to 1.12.1976, as referred-to in the order dated 6/7.2.1990. When in the course of arguments, Mr. Punia, learned AAG, was confronted with this document, he responded by contending that the authenticity thereof could be certified only by the concerned authorities of the Dairy and that he had no material to plead further in this regard. The fact remains that there is nothing on record either to controvert the existence of this document or the veracity thereof. There is, therefore, no unimpeachable evidence to discard this document to be unreliable or unacceptable, as the case may be. In that view of the matter, vis-a-vis the respondents Dr. D.N. Vyas and Dr. S.P. Mathur, it is writ large on the face of the records that they were absorbed in the services of the Dairy on and from 22.1.1994/24.1.1994.

In the above factual premise having regard to the unassailable mandate of Rule 18 of the Rules, we are constrained to hold that the lien of the respondent Dr. P.D. Purohit cannot be said to have been terminated with effect from 1.9.1976, as admittedly on that date, he had not been substantively appointed in the services of the Dairy as contemplated in Rule 15 of the Rules so as to result in extinction of his lien with the parent department. The termination of his lien has to be with effect from 6.2.1990. By the same analogy, the date of termination of lien of other respondents viz.;

Dr. D.N. Vyas and Dr. S.P. Mathur stood terminated only on 22.1.1994/24.1.1994.

In view of the above determination, the date(s) of termination of lien of the respondents in their parent department is/are as hereunder:

The fact that the name of Dr. D.N. Vyas appears in the seniority list dated 20.5.1981, is being referred-to only by way of supplementation of the above finding, it being even otherwise demonstrative of this conclusion. The inclusion of the name of this respondent in the aforedated seniority list only affirms the proposition that for all practical purposes, till that date, he was construed to be continuing in the State service.

On an overall consideration of the above findings, we thus find no cogent and convincing reason to interfere with the impugned judgments and orders. We have traversed the same and find ourselves in respectful agreement with the reasonings recorded and conclusions arrived-at on the basis of determination made herein. The appellant-State and its functionaries would now work out the pensionary entitlements of the respondents and release the same at the earliest and in no case, later than three months from today.

Resultantly, all the appeals are dismissed. No costs.

Sd/-

(ARUN BHANSALI), J.

Sd/-

(AMITAVA ROY), CJ

The SLP filed by the State against the judgment of the Division Bench dated 10.09.2013 was also dismissed by the Hon''ble Supreme Court of the country vide order dated 07.02.2014. The copies of these judgments are placed on record as Annex. 16, 17 and 18 respectively.

The petitioner, therefore, submits that his present writ petition also deserves to be disposed of the in same terms.

The Officer-in-Charge is present in person and he is unable to dispute this position.

Upon perusal of the record and in view of aforementioned judgments cited at Bar and enclosed with the writ petition, the present writ petition deserves to be disposed of in the same terms as that of Dr. P.D. Purohit (supra).

Ordered accordingly. The writ petition is disposed of in the same terms. No costs. A copy of this order be sent to the concerned parties forthwith.