LIEN IN A POST

R. Shobana vs 5 B. Subramaniam on 15 October, 2009

Dated: 15.10.2009
Coram
The Honourable Mr.Justice S.NAGAMUTHU
W.P.No.12567 of 2009
& M.P.Nos.1 to 4 of 2009
R. SHOBANA [ PETITIONER ]
Vs
1 THE STATE OF TAMILNADU
REP. BY ITS SECRETARY
BACKWARD CLASSES, MOST BCKWAD CLASSES AND
MINORITIES WELFARE (OP) DEAPRTMENT
SECRETARIAT CHENNAI -09
2 THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
REP. BY ITS REGISTRAR
NO. 212 R.K.MUTT ROAD
2ND FLOOR
MYLAPORE CHENNAI 600004
3 THE BACKWARD CLASSES COMMISSION
REP. BY MEMBER -SECRETARY
NO. 212 R.K.MUTT ROAD
FIRST FLOOR MYLAPORE
CHENNAI 600004
4 GOVERNMENT OF TAMILNADU
REP. BY THE SECRETARY
PERSONNEL & ADMINISTRATIVE
REFORMS (H) DEPARMENT
SECRETARIAT CHENNAI 600009
5 B. SUBRAMANIAM
[ RESPONDENTS ]
Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorari calling for the records relating to the office proceedings No. 150/2009 dated 14.5.2009 issued by the 1st respondent and quash the same as being illegal arbitrary and unconstitutional. For Petitioner : Mr.R.Muthukumarasamy, Sr.counsel for
Mr.M.Hidayathulla Khan
For Respondents : Mr.Kabilan, AAG for
Mr.S.Sivashanmugam, G.A.
For R1, 3 & 4.
Mr.K.Kumaran for R2
Mr.R.Suresh Kumar for R5
---
O R D E R
The petitioner was appointed as Steno-Typist Grade II through Tamil Nadu Public Service Commission and was allotted to the District Consumer Disputes Redressal Forum, Chengelpet as Grade III Stenographer. She joined service on 8.3.1995. Later on, she was promoted as Grade I Stenographer in the office of the 2nd respondent.
2. The 5th respondent was also selected through Tamil Nadu Public Service Commission as Typist in the year 1988 and was allotted to the Department of Exservicemen's Welfare and accordingly he joined the service. Thereafter, in the year 1989, he was promoted as Steno-Typist in the same Department. While he was working as Steno-Typist in the said Department, he was transferred on deputation to the Tamil Nadu Dr.M.G.R.Medical University in the year 1992 as Steno-Typist Grade III. Accordingly, he was working in Dr.M.G.R.Medical University till December 1994. By order dated 12.12.1994, the Department of Exservicemen's Welfare placed the petitioner at the disposal of the 2nd respondent, namely State Consumer Disputes Redressal Commission, as per the 2nd respondent's order dated 6.12.1994 for appointment as Steno-Typist Grade III. Accordingly, he was relieved from the Tamil Nadu Dr.M.G.R.Medical University and he joined the 2nd respondent as Steno-Typist Grade III on 16.12.1994. His service was also regularised as Steno-Typist Grade III. He was then promoted as Steno-Typist Grade I with effect from 23.3.2000.
3. Admittedly, at the office of the 2nd respondent in the post of Steno-Typist Grade I, the 5th respondent was senior to the petitioner. While so, a post of Personal Assistant (court work) was created in the office of the 2nd respondent as per G.O.Ms.No.245, CF & CP (H1) Department dated 25.10.2006. As against the said post, since the 5th respondent was senior most in the post of Steno-Typist Grade I, he was promoted as Personal Assistant (court work) as per the proceedings of the 2nd respondent dated 7.5.2007. The 5th respondent accordingly joined the post of Personal Assistant (court work) on 17.5.2007.
4. When the petitioner and the 5th respondent were so working in the office of 2nd respondent, the Department of Personnel & Administrative Reforms Department called for applications from eligible candidates, who are in various services in the State for recruitment on transfer as Personal Assistant in the Secretariat. The 5th respondent applied for the same and got selected. Therefore, as per the order issued by the Personnel & Administrative Reforms Department dated 30.6.2008, the 5th respondent was recruited on transfer with effect from 30.6.2008. He was placed at the disposal of the Backward Classes, Most Backward Classes and Minorities Welfare Department for being posted as Personal Assistant in the office of the Tamil Nadu Backward Classes Commission. Accordingly, the 5th respondent was working as Personal Assistant in the Tamil Nadu Backward Classes Commission.
5. Coming back to the case of the petitioner, after the 5th respondent was relieved from the post of Personal Assistant (court work) for being recruited on transfer in the Secretariat Service, as against the consequential vacancy caused in the post of Personal Assistant (court work) at the office of the 2nd respondent, since the petitioner was the senior most, she was promoted and duly appointed. As of now, the petitioner is working as Personal Assistant (court work) in the 2nd respondent office.
6. When things stood thus, the 5th respondent made a request to the 1st respondent on 18.3.2009 to revert him back to the 2nd respondent to the post of Personal Assistant (court work) because of his lien allegedly available for the said post. Considering the same, the Personnel & Administrative Reforms Department issued an order by office proceedings 150/2009, BC, MBD & MW (OP) Department dated 14.5.2009 by which Personnel & Administrative Reforms Department directed the 3rd respondent to revert the 5th respondent to the 2nd respondent office. Accordingly, the 3rd respondent by his proceedings in O.P.No.87/TNBCC/22009 dated 15.5.2009 relieved the 5th respondent on 15.5.2009 and directed him to report for duty at the office of the 2nd respondent. It is the contention of the 5th respondent that when he reported for joining duty at the office of the 2nd respondent, he was not permitted to join. He would further state that the 2nd respondent informed him that the petitioner had approached the court of law and therefore posting orders shall be given only later.
7. In those circumstances, the petitioner has come forward with the present Writ Petition seeking to quash the proceedings of the 1st respondent dated 14.5.2009 in his office proceedings 150/2009, BC, MBD & MW (OP) Department as illegal, arbitrary and unconstitutional.
8. It is the contention of the petitioner that all the posts at the office of the 2nd respondent are purely temporary posts and so, in the post of Personal Assistant (court work) at the office of the 2nd respondent, the 5th respondent cannot have any lien as per the Fundamental Rules and therefore his request for reverting him back to the 2nd respondent office as though there is lien available for him is not correct. Alternatively, it is also contended that even assuming that the petitioner has got lien in the post of Personal Assistant (court work) at the office of the 2nd respondent, since he was recruited on transfer in the Secretariat Service in the Backward Classes Commission, the so called lien which the petitioner was enjoying got snapped. Therefore, there is no question of existence of any lien so as to get himself reverted back to the office of the 2nd respondent to the post of Personal Assistant (court work).
9. The learned counsel appearing for the 5th respondent would contend that though the post of Personal Assistant (court work) is technically temporary, nevertheless the same has been treated only as a permanent post. Therefore, the petitioner has got a lien in the said post. The learned counsel appearing for the 5th respondent further contended that even assuming that the post of Personal Assistant (court work) at the office of the 2nd respondent is temporary, as per G.O.Ms.No.176 P&AR Department dated 5.7.1994, the 5th respondent has got a lien. The learned counsel would further submit that since the 5th respondent's service was regularised at the office of the 2nd respondent and since he has been made permanent by such regularisation, though the post is temporary, the 5th respondent has lien in the post of Personal Assistant (court work) at the office of the 2nd respondent.
10. A detailed counter has been filed by the 5th respondent adopting the above stand.
11. The 2nd respondent has filed a detailed counter, wherein in paragraph 6, it is specifically stated that all the posts sanctioned to the State Commission including the post of Personal Assistant (court work) as well as the District Fora are temporary posts, which are renewed every year by further orders from the Government. The latest such order, sanctioning further continuance of the post was issued by the Government in G.O.Ms.No.84, Cooperation, Food and Consumer Protection (H1) Department dated 24.7.2009. It is further stated in the counter affidavit sworn by the Registrar of the State Consumer Disputes Redressal Commission that since the dispute involved is a complicated one and the post of the President was vacant then, the Registrar could not take any decision.
12. The respondents 1 and 4 have filed a counter, which has been adopted by the 3rd respondent. The crux of the counter filed by the respondents 1 and 4 is that on appointment of the 5th respondent in the 2nd respondent Commission as Grade III Stenographer, his lien in the earlier post he was holding in the Department of Exservicemen's Welfare was cut off. It is further stated that the petitioner enjoyed the lien in the post of Personal Assistant (court work) in the 2nd respondent office.
13. The contention of the petitioner that lien in the post of Personal Assistant (court work) at the office of the 2nd respondent would have got snapped at the moment when the 5th respondent was recruited again in the Department of Backward Classes Commission on transfer has not been answered. The learned Government Advocate appearing for the respondents 1, 3 and 4 is not in a position to explain the stand of the Government regarding the said contention of the petitioner.
14. I have heard Mr. Mr.R.Muthukumarasamy, learned Senior counsel appearing for the petitioner, Mr.S.Sivashanmugam, learned Government Advocate appearing for the respondents 1, 3 and 4 and Mr.K.Kumaran, learned counsel appearing for the 2nd respondent and Mr.R.Suresh Kumar, learned counsel appearing for the 5th respondent.
15. Before going into the facts of this case, it is relevant to refer to the provisions contained in the Tamil Nadu Fundamental Rules in respect of lien. Fundamental Rule 9(13) defines the term "lien" as follows:
"(13) Lien means the tltle of a Government servant 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. (emphasis supplied)"
What is permanent post is defined in Fundamental Rule 9(22) as follows:
(22) Permanent post means a post carrying a definite rate of pay sanctioned without limit of time."
The term "tenure post" has been defined under Fundamental Rule 9(30-A) as follows:
"(30-A) Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period."
Fundamental Rule 12-A reads as follows:
"12-A. 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."
16. A conjoin reading of the above provisions would make it manifestly clear that a Government servant can acquire lien in a particular post, if only the said post is permanent or tenure. If it is a purely temporary post, the Government servant who is holding the said post, either on a temporary post or permanent post cannot acquire any lien in the said post.
17. The learned counsel for the 5th respondent would rely on G.O.Ms.No.176, Personnel & Administrative Reforms (Per.S) Department dated 5.7.1994, wherein the Government has directed as follows:
"The concept of lien that entitles a Government servant to hold substantively a permanent post, shall undergo a change. Lien shall now represent only the right or title of a Government servant to hold a regular post whether permanent or temporary, either immediately or on the termination of the period of absence. The benefits of having a lien in a grade shall thus be enjoyed by all officers who are confirmed in the grade of entry or who have been promoted to a higher post declared as having completed the probation where it is prescribed or those who have been promoted on regular basis to a higher post where no probation is prescribed under the Rules, as the case may be. The above right/title shall, however, be subject to the condition that the junior most person in the grade shall be liable to be reverted to the lower grade if at any time the number of persons so entitled is more than the posts available in that grade. (For example, if a person who is confirmed or whose probation in a higher post has been declared as having been completed or one who is holding a higher post for which there is no probation on a regular basis, reverts from deputation or foreign service and if there is no vacancy in that grade to accommodate him, the junior most person in the grade applicable to the post shall be reverted, if, however, this officer himself is the junior most, he shall be reverted to the next lower grade from which he was earlier promoted.).
18. Relying on the above Government Order, the learned counsel for the 5th respondent would submit that the post of Personal Assistant (court work) at the office of the 2nd respondent may be a temporary post, still, the 5th respondent has acquired lien in the said post because his services have already been regularised in the said post. The learned counsel lays emphasize on the words used in the said Government Order, "whether permanent or temporary".
19. Though the argument of the learned counsel for the 5th respondent appears to be attractive, it cannot be accepted in view of the fact that it cannot override the statutory Rules, namely the Tamil Nadu Fundamental Rules. It is well settled that executive instruction issued by the Government cannot override the statutory rule. It could be noticed from the said Government Order in paragraph 4 that the Government have directed that the Departments of Secretariat may be requested to take necessary action to amend all the relevant rules separately. Though the Government took a policy decision to create a lien for a Government servant even as against the temporary post which he has been holding, the learned senior counsel for the petitioner contended that instead of making necessary amendment to the Tamil Nadu Fundamental Rules, the Government declared a policy by issuing a Government Order. In the light of the clear terms of the Fundamental Rules, the Government Order relied on by the learned counsel for the 5th respondent cannot be applied.
20. Now coming to the facts of the case, admittedly the post of Personal Assistant (court work) at the office of the 2nd respondent is a temporary post. To that extent, the 2nd respondent State Consumer Dispute Redressal Commission has filed a counter in paragraph 6. Apart from that, the petitioner has produced a Government Order issued by the Government in G.O.Ms.No.84, Cooperation, Food and Consumer Protection (H1) Department dated 24.7.2009, wherein the Government has directed to continue 156 temporary posts, which includes the Personal Assistant to the Registrar and Personal Assistant (court work) for a further period of one year. Therefore, there can be no dispute that the post of Personal Assistant (court work) at the office of the 2nd respondent is purely temporary.
21. The learned counsel for the 5th respondent would make an attempt to say that though the post may be technically temporary, in practice the same has been treated only as a permanent post and therefore the 5th respondent has got lien over the said post.
22. In my considered opinion, there is no substance in the said argument. When the facts are so indisputable that the post has been all along only a temporary post for a period of one year and the same has been extended by the Government by issuing necessary orders, it cannot be said that the said post is permanent post so that the 5th respondent can have a lien over the said post.
23. The learned counsel for the 5th respondent has produced a Statement of Posts and Scales of pay for the year 2004-2005. Taking a view of the said Table, he would submit that as against 10,67,975 posts in the Government Departments in the State of Tamil Nadu, 4,13,807 posts are kept temporary, which means 39% of the Government servants are only temporary employees. It is the specific contention of the 5th respondent that though those posts are technically temporary, in practice they are treated only as permanent posts. I have given anxious consideration to the said contention. Though it is true that 39% of the Government servants in the State of Tamil Nadu are made as temporary employees, since it is the policy decision of the Government, this Court cannot transgress into the powers regarding policy decision of the Government to make any tangible law. It is for the Government to take appropriate policy decision in respect of the above decision. Therefore, for the simple reason that 39% of posts in the Government Departments are kept temporary, the argument of the learned counsel for the 5th respondent that these temporary posts should be treated as permanent posts for the purpose of lien cannot be accepted. So long as the fact remains that the post of Personal Assistant (court work) remains to be a temporary post, the person who is holding the said post cannot have a lien in the said post.
24. The learned counsel for the 5th respondent would further submit that the post of Personal Assistant (court work) may be a temporary post, since the 5th respondent's service was regularised as against the said post, he has got a lien as per Rule 9 of the Tamil Nadu State and Subordinate Service. In my considered opinion the said Rule also does not come to the rescue of the 5th respondent.
25. The learned senior counsel appearing for the petitioner would rely on a judgment of the Hon'ble Supreme Court in S.Narayana vs. Md. Ahmedulla Khan reported in AIR 2006 SC 2224, wherein the Hon'ble Supreme Court while dealing with the concept of lien has held as follows:
"17. The learned counsel for the appellant also urged that the High Court had misunderstood the concept of a lien on a post. He contended, and rightly in our view, that there was nothing like lien on a post, unless a person was made permanent in a post. Strong reliance was placed on the observations of this Court in Triveni Shankar Saxena vs. State of U.P. Wherein after examining the concept of lien in Government service, it was observed: "... a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier, with which view, we are in agreement.
..
19. For the first respondent, however, it is contended that regularisation i the same as confirmation in service, and therefore, lien would operate from the said date. We are afraid that we cannot accept this contention in the face of clear authority to the contrary, to which we have already referred. Counsel for the first respondent also contended that any relief given to the appellant should not affect any benefit of service, emoluments, allowance and pension etc. available to the first respondent. We do not see how this apprehension can arise. The order of the Tribunal does not in any way show that the first respondent's service benefits are affected. All that it ensures is that justice is rendered to the appellant. The learned counsel for the State submitted that the State would submit to any orders passed by this Court. We also notice that the State Government has not filed any counter affidavit in position to the appeal."
26. The principle stated by the Hon'ble Supreme court in the aforesaid decision would clearly settle the issues involved in the case at rest and it would show that though the 5th respondent was regularised in the post of Personal Assistant (court work) at the office of the 2nd respondent, such regularisation would not give any lien for him in the said post because it is not either a permanent post or a tenure post.
27. The learned senior counsel relied on two other judgments of the Hon'ble Supreme Court inG.K.DUDANI AND OTHERS vs. S.D.SHARMA AND OTHERS reported in 1986 (Supp) SCC 239 and O.P.SINGLA AND ANOTHER VS. UNION OF INDIA AND OTHERS REPORTED IN (1984) 4 SCC 450 to substantiate his contention that there may be a permanent appointment as against a temporary post. Simply because the appointment is permanent, it does not mean that the post automatically became permanent so as to create a lien for the holder of the said post.
28. A perusal of these two judgments relied on by the learned senior counsel appearing for the petitioner would make it clear that it is not always necessary that as against a temporary post, only a temporary employee can be appointed. Even a permanent employee can be appointed as against a temporary post. The resultant position would be that in the event of temporary post getting abolished, the holder of the said post, since he is a permanent employee, shall be entitled for redeployment in some other Department. Instead of that, because a person, who is holding a temporary post is a permanent employee, the post will not become automatically permanent. In the case on hand, indisputably, the post of Personal Assistant (court work) at the office of the 2nd respondent is purely temporary and it was held by the 5th respondent for some time though he is a permanent employee. Similarly, the petitioner is holding the said post though she is also a permanent employee.
29. For all the above reasons, I have no hesitation to come to the conclusion that the 5th respondent, on appointment as Steno-Typist Grade II at the office of the 2nd respondent and on promotion to the post of Steno-Typist Grade I and then to the post of Personal Assistant (court work), has not acquired any lien in any of these posts at the office of the 2nd respondent.
30. Admittedly, as per Rule 12-A of the Fundamental Rules, since the 5th respondent was initially appointed in the Department of Exservicemen's Welfare as against a permanent vacancy, he acquired lien only as against the said post and on deputation to the office of the 2nd respondent as against a temporary post, the lien which he had at the Department of Exservicemen's Welfare would not get snapped because under Rule 12-A of the Fundamental Rules, if only a person is recruited as against a permanent vacancy, the lien which he acquired in the earlier post will get snapped. Therefore, the 5th respondent was originally having a lien in the post which he was holding in the post of Department of Exservicemen's Welfare. From the subsequent events, as I have already narrated, it could be seen that the 5th respondent was again recruited on transfer in the Backward Classes Commission. Since the post against which he was so recruited in the Secretariat in the Backward Classes Commission, is a permanent post and since the petitioner was also appointed permanently, the lien which he had in the post which he was holding in the Exserviemen Department get snapped. As I have already stated, since there was no lien in the post of Personal Assistant (court work) at the office of the 2nd respondent, there is no question of claiming of lien by the 5th respondent as against the said post.
31. The present position is that the Bakcward Classes Commission has relieved him from the post with a direction to go and join the 2nd respondent. But the 5th respondent has not joined the post because the 2nd respondent has not allowed him to join. In my considered opinion, the 2nd respondent was right in declining to allow the 5th respondent to join duty. It is for the Backward Classes Department to take him forthwith and to allow him to join duty.
32. The learned counsel for the 5th respondent would finally submit that the petitioner has no locus standi to challenge because she herself does not have any lien over the post of Personal Assistant (court work) under the 2nd respondent. In my considered opinion, to acquire locus standi to question the issue involved in this Writ Petition, the petitioner need not have any lien over the post she is holding. The petitioner does not claim any lien over the post. Even according to her, she cannot acquire any lien as against the said post because the post of Personal Assistant (court work) is purely temporary. At the same time because the 5th respondent is trying to join duty as Personal Assistant (court work) at the office of the 2nd respondent, consequently the petitioner would be disturbed and she would be reverted back to the post of Steno-Typist Grade I. Because of the order passed by the Personnel & Administrative Reforms Department reverting the 5th respondent back to the 2nd respondent office, the petitioner's future is in peril. Thus, I am of the view that the petitioner has locus standi to maintain the present Writ Petition.
33. The learned senior counsel appearing for the petitioner would submit that even assuming without admitting that the 5th respondent had any lien in the post of Personal Assistant (court work) at the office of the 2nd respondent, since he was recruited on transfer in the Secretariat in the Department of Backward Classes, the so called lien also gets snapped. I am in full agreement with the said argument of the learned senior counsel. Thus, viewing from any angle, I find that the grievance of the petitioner is justifiable and so the petitioner must succeed in this Writ Petition.
34. In the result, the Writ Petition is allowed and the impugned order is set aside. The 5th respondent is at liberty to approach the Backward Classes Department and the Personnel & Administrative Reforms Department for restoring his service in the Backward Classes Department. If any such representation is given by the 5th respondent, the respondents 1, 3 and 4 are directed to consider the same without any further loss of time and to immediately issue him posting order. No costs. The connected Miscellaneous Petitions are closed.