Mayurdhvajsinh Ishvarsinh Vaghela vs State of Gujarat and Another

S.R. Brahmbhatt, J.—Heard learned advocates appearing for the parties. The petitioner by way of this petition has approached this Court with following prayers;

(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting impugned order dated 27.11.2012 issued by respondent No. 1 (at Annexure-Q hereto) and further be pleased to direct respondent No. 1 to relieve the petitioner from the post of Assistant Public Prosecutor with benefit of lien over the said post for the purpose of resuming charge as Civil Judge and Judicial Magistrate, First Class and further be pleased to allow the application of the petitioner, which was made to respondent No. 1 on 21.09.2012 (at Annexure-G) hereto);

(B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay further operation, implementation and execution of the impugned order dated 27.11.2012 issued by respondent No. 1 (at Annexure-Q hereto) and further be pleased to direct respondent No. 1 to permit the petitioner to resume/take over charge as Civil Judge and Judicial Magistrate, First Class while maintaining lien of the petitioner over the post of Assistant Public Prosecutor;

Alternatively

(C) During the pendency and final disposal of the present petition, Your Lordships may be pleased to direct respondent No. 2 herein to grant extension of time to the petitioner for the purpose of joining service as Civil Judge and Judicial Magistrate, First Class till the benefit of lien over the post of Assistant Public Prosecutor is given by respondent No. 1 to the petitioner or till the present petition is finally disposed of;

(D) Pass any such other and/or further orders that may be though just and proper, in the facts and circumstances of the present case.

Thus, essentially what is under challenge is the order dated 27.11.2012, passed by respondent No. 1, whereby respondent No. 1 has declined to acknowledge petitioner''s lien over the post in question i.e. Assistant Public Prosecutor. The facts in brief leading to filing this petition, as could be culled out from the memo of petition, deserve to be set out as under.

The petitioner has been serving with respondent No. 1 as Assistant Public Prosecutor since 2009 and was appointed on long term basis in the year 2012. The said post is Class-II post. The petitioner was selected for the post of Civil Judge and was offered appointment on temporary/ad hoc basis. The order of posting was made as 8th Additional Civil Judge and Judicial Magistrate, First Class, Surendranagar. The petitioner applied for getting benefit of lien over the post of Assistant Public Prosecutor before joining the new assignment. The said application was rejected, prior thereto petitioner had sought extension of time for joining his new assignment. The petitioner claimed lien on account of provision of Rule 9(43), 20, 21, 22 and 23 of Gujarat Civil Services (General Condition) Rules, 2002, as well as the Government Resolution dated 04.05.2007 and the fact that, as per the say of the petitioner, few similarly situated candidates were also given benefit of lien on the post. The petitioner was granted extension for joining his new assignment which was getting over by 30.11.2012. The petition was moved on 29.11.2012. The Court was persuaded to grant some protection by way of ad-interim order, as the order of long term appointment was shown and the case of discrimination was attempted to be made out. The respondent No. 1 filed Civil Application being Civil Application No. 13383 of 2012, inter alia contending, that the ex parte order be vacated, as petitioner did not have any right to seek any indulgence from the Court. The post in question held by the petitioner did not entitle him for any claim of lien nor would the rules indicate that there existed any semblance of right for making such claim. The Court was prima facie convinced and therefore, immediately kept the order of interim relief in abeyance. Thereafter, time was sought and time and again the adjournment was requested which was granted. Ultimately, the matter was taken up for hearing as to admission and Civil Application for passing appropriate order.

Learned advocate for the petitioner invited this Court''s attention to the Government Resolution dated 04.05.2007 and contended that in light of the rules as well as the provision of Government Resolution, the respondents State Authorities could not have declined the prayer made for acknowledging the lien on the post. Learned advocate for the petitioner also relied upon cases of persons who were similarly situated qua the petitioner and in whose favour the lien is acknowledged. However, the facts in detail were not coming forward in any manner.

Learned advocate for respondent No. 2 relying upon the decision in case of Salimmuddin Yasinbaig Mirza MSC LLM Vs. District Magistrate and Others , submitted that there exists no right for seeking any redressal of the grievances.

The Court is of the considered view that this petition is bereft of merits and, therefore, it is required to be dismissed for following reasons namely;

(i) The entire petition is misconceived and it proceeds on the basis of as if there exist any vested right in the petitioner to seek acknowledgment of his lien which in fact is not available in any manner.

(ii) The petitioner unfortunately did not produce on record the original appointment order though it is mentioned in the memo of petition in paragraph No. 4 at page 17 that the appointment order is produced at Annexure-A. It became clear that the said order is not an appointment order it is an order of long term basis appointment, in fact, the appointment order is that of year 2009, which has not been placed on record at all. The correct facts regarding the position of vacancy of the post is culled out from the compilation in form of Civil Application and pleadings and counter pleadings thereon.

(iii) The post of Assistant Public Prosecutor, which is held by the present petitioner, is neither a substantive post nor the petitioner has been appointed substantively. There is no question of any substantive appointment as such, there exists no substantive post. The post has life only up to 28.02.2013 and that is evident from the documentary evidence in form of order, though it is sought to be canvassed on behalf of the petitioner that time and again since 2009 the life of the post is extended, but that in itself would not change the character of post being not a substantive post. Similarly the post against which the appointment was offered was also ad hoc and temporary post. Bearing these facts in mind, if one looks at the rules namely Rule 9 (43), 21, 22 and 23 of Gujarat Civil Services (General Condition) Rules, 2002 it would be amply clear that ''lien'' means the title of Government employee to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. The Rule 9 (43), 21, 22 and 23 of Gujarat Civil Services (General Condition) Rules, 2002, are set out as under;

Rule 9 (43), Lien" means the title of a Government employee to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post to which he has been appointed substantively Rule 21, Restrictions over holding of lien on posts by Government employee at same time:

(1) Two or more Government employees cannot be appointed substantively to the same permanent post at the same time.

(2) A Government employee cannot be appointed substantively to two or more separate and permanent posts at the same time.

(3) A Government employee cannot be appointed substantively to a post on which another Government employee holds a lien.

Rule 22, Retention of lien : Unless his lien is suspended under rule 23 or transferred under rule 26, a Government employee holding substantively a permanent post retains a lien on that post:--

(a) while performing the duties of that post;

(b) while on foreign service or holding a temporary post, or officiating in another post, or holding a post the pay of which is charged to works or contingencies;

(c) during joining time on transfer to another post on lower pay, in which case lien is transferred to the new post from the date on which he is relieved of his duties, in the old post;

(d) while on leave; and

(e) while under suspension.

Rule 23, Suspension of a lien : (1) A competent authority shall suspend the lien of a Government employee on a permanent post which he holds substantively if he is appointed in a substantive capacity:

(a) to a tenure post, or

(b) provisionally, to a post on which another Government employee would hold lien had his lien not been suspended under this sub-rule.

(2) A competent authority may, at its option, suspend the lien of a Government employee on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service or in circumstances not covered by sub-rule (1) of this rule is transferred in an officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.

Note: when it is known that a Government employee on transfer to a post outside his cadre is due to retire on superannuation within three years of his transfer, his lien on his cadre post cannot be suspended.

(3) Notwithstanding anything, contained in sub-rule (1) or (2) of this rule, a Government employee''s lien on a tenure post may in no circumstances be suspended. If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated.

(4) If a Government employee''s lien on the post including a post in a selection grade of a cadre is suspended under sub-rule (1) or (2) of this rule, the post may be filled substantively, and the Government employee appointed to hold it substantively shall acquire a lien on it; provided that the arrangements shall be reversed as soon as the suspended lien revives.

Note: When a post is filled substantively under this sub-rule, the appointment will be termed a provisional appointment, the Government employees appointed will hold a provisional lien on the post; and that lien will be liable to suspension under sub-rule (1) but not under sub-rule (2) of this rule.

(5) A Government employee''s lien which has been suspended under sub-rule (1) of this rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in clause (a) or (b) of sub-rule (1).

(6) A Government employee''s lien which has been suspended under sub rule (2) of this rule shall revive as soon as he ceases to be on deputation out of India or on foreign service or to hold a post in another cadre, provided that suspended lien shall not revive because the Government employee takes leave; if there is reason to believe that he will, on return from leave, continue to be on deputation out of India or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in clause (a) or (b) of sub-rule-(1).

Instruction: Under the existing provisions of this rule, it is possible for more than one person to be appointed in a provisional substantive capacity against a single post. The operation of this rule should, however, be restricted so as to permit only one provisional substantive appointment against one post. Accordingly, the lien acquired by a Government employee on his appointment in a provisionally substantive capacity under sub-rule-(4) of this rule, should not be suspended if he is deputed out of India or is transferred to a post of the nature specified in sub-rule-(2) of this rule.

The plain and simple reading thereof also would persuade this Court to hold safely that the petitioner has no right whatsoever to seek any acknowledgment of lien. Moreover it is important to note that there exists no provision which enables the government employee even holding substantive post to seek declaration or promise from the State that lien is accepted. The factum of acceptance of lien comes only when the eventuality of acknowledging lien arises namely actual relieving order or in an event of termination or ending of the new assignment. Even otherwise also this petition has now become infructuous as the extension lastly granted to the petitioner for joining the High Court has expired on 31.01.2013 and in absence of any extension the entire exercise in futility.

The petition being hopelessly meritless, deserves rejection and is accordingly rejected with cost. In view of the order passed in S.C.A. No. 16014 of 2012, no separate orders are made in the Civil Applications and they are disposed of accordingly.