Dr. Sumit Mehta vs Governing Body Kalindi College ...
2017 Latest Caselaw 1230 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.3821/2016
%                                                       7th March, 2017

DR. SUMIT MEHTA                                               ..... Petitioner
                          Through:      Mr. Vivek B. Saharya, Advocate.
                          versus

GOVERNING BODY KALINDI COLLEGE AND ANR.
                                                            ..... Respondents

                          Through:      Mr. R.P.Sharma and Mr. Vaibhav
                                        Mehra, Advocates for R-1.
                                        Ms. Disha Malhotra, Adv. for R-2.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? YES


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition under Article 226 of the Constitution of

India, the petitioner seeks the relief of quashing of the letter dated 18.1.2016

whereby the respondent no.1/erstwhile employer/Kalindi College informed

the petitioner that since petitioner has been absorbed on permanent basis by

the present employer being the University of Rajasthan (really it should be

Commissioner Office, Higher Education, Jaipur, Rajasthan), hence lien of

petitioner on his post as Lecturer with the respondent no.1 has ceased to

exist w.e.f. 25.11.2015 being the date of the permanent absorption of the

petitioner with the present employer. Petitioner has been since 25.11.2015

working as Lecturer, Department of History in Government College in

Jaipur, Rajasthan.

2. There is no dispute, and it is admitted before this Court by the

counsels for the parties, that the employment of the petitioner with the

respondent no.1/Kalindi College/erstwhile employer was governed by the

CCS Rules and Fundamental Rules and Supplementary Rules. Respondent

no.1 in its counter-affidavit has placed reliance upon Clause (2) of Rule 14.9

of the Leave Rules 2002 to contend that extraordinary leaves ordinarily will

not be granted for more than one year, but in no case beyond the period of

two years. Respondent no.1 in its counter-affidavit in para 13 has also

stated that petitioner has been relieved from services with the respondent

no.1 due to his absorption on permanent basis with the present employer and

hence petitioner cannot claim extension of period of lien for the third year.

3. (i) On behalf of the petitioner, reliance is placed upon certain

paras pertaining to lien in Nabhi Publication, a private publication, with

respect to Central Government employees and which paras talk of extension

of a lien period for more than two years and up to a maximum period of

three years.

(ii) Surely, courts cannot take some private commentary being the Nabhi

Publication being authoritative with respect to a particular subject, and

therefore, this Court has examined the FRSR in order to know whether lien

can be extended beyond a period of two years i.e for a period of three years

inasmuch as petitioner is claiming extension after a period of two years

which expired on 6.10.2015 and for one more year thereafter till 6.10.2016

i.e for three years.

4. The relevant FRSR is FR-13 and which reads as under:-

"F.R.13. A Government servant who has acquired lien on a post retains the 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;
       (c)    during joining time on transfer to another post, unless he is transferred

along with his title to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the earlier post;

       (d)    while on leave; and
       (e)    while under suspension.

Provided that no lien of a Government servant shall be retained:

(i) Where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption; and

(ii) On foreign service/deputation beyond the maximum limit admissible under the orders of the Government issued from time to time."

5. Though respondent is not justified in arguing that petitioner

proceeded on immediate absorption on a permanent basis to the present

employer and which is a ground under the Proviso to FR-13 not to retain

lien, and taking note of FR-13 although FR-13 is not relied upon in the

counter-affidavit, however, I find that the issue in question will have to be

decided with reference to FR-12-A, and which is not brought to the notice

of the Court by either of the parties. F.R-12-A reads as under:-

"F.R.12-A Unless in any case it is otherwise provided in these rules, Government servant on acquiring a lien on a post will cease to hold the lien previously acquired on any other post"

6. As per FR-12-A, lien of a person on a post lapses on a person

acquiring lien on another post. Lien is acquired once appointment is on

permanent basis and admittedly petitioner stands appointed on permanent

basis with the present employer in terms of the office order dated

26.11.2015 of the present employer and which reads as under:-

"Rajasthan Government Education Department Office of Principal, Sri Kalyan State Govt. College, Sikar No.F.-1( )/Faculty/SriK/2015/338, Dated 26.11.15.

OFFICE ORDER

Consequent to Dr. Sumit Mehta, Lecturer of History having been appointed in the post of Lecturer, History, on a probation of two years on fixed monthly salary of Rs.18,200/- on the recommendation of Rajasthan Public Service Commission, Ajmer, vide Order No.F.1 (46) Estt./Aakashi/2009/2587 dated 28.02.2012 of the Director, College Education, Rajasthan, Jaipur, and having been joined the duty by him on 08.10.2013, has successfully completed his two years probation period satisfactorily on 07.10.2015 and thereupon in compliance of Rule 17 of Schedule IV to the State Government Order No.F.14/1/FD/Rules 2009 dated 12.10.2009, approval is hereby granted to make payment to him from 08.10.2015 total basic salary of Rs.21600/- in the pay scale of Lecturer post as per 6th Pay Commission i.e Rs.15600-39100 Grade Pay (AGP) Rs.6000/- and allowances admissible under the rules.

Sd/-

(Dr. G.S.Kalvania) Principal Sri Kalyan College, Sikar Copy to:

1. Commissioner, College Education, Rajasthan, Jaipur.

2. Accounts Branch-with extra copy.

3. Dr. Sumit Mehta, Lecturer, History.

4. Personal File.

Sd/-

Principal Sri Kalyan College, Sikar"

7. In view of the fact that the petitioner has been permanently

employed and absorbed with the present employer in the post of Lecturer,

History pursuant to the order dated 26.11.2015 of the present employer, FR-

12-A will straight way come into play whereby petitioner no longer can

continue his lien with the respondent no.1. Putting it in other words, in view

of FR-12-A once the petitioner has got permanent absorption and

appointment with the Rajasthan Government for teaching in the State

Government College at Sikar, Rajasthan pursuant to the order dated

26.11.2015 of the Rajasthan Government reproduced above, petitioner

acquired lien on the post of Lecturer with the Rajasthan Government and

consequently, because of FR-12-A lien of the petitioner on his post of

Lecturer, History with the respondent no.1 will stand terminated.

8. Learned counsel for the petitioner vehemently argues that it is

the respondent no.1 who failed to reply to the repeated letters of the

petitioner, and it is because of this silence of the respondent no.1 that

petitioner was not able to exercise his option for continuation of lien by not

taking permanent post with the present employer, however, this argument is

misconceived inasmuch FR-12-A is very clear that once there is a

permanent absorption in another post of a particular government

department, the employee's lien on the earlier post will stand extinguished.

Therefore even if there is inaction on behalf of the respondent no.1, this

Court cannot violate the law being FR-12-A and which specifically provides

termination of a lien of an employee on his acquiring lien on another post

and which lien is acquired by the petitioner in the present case on account of

his permanent absorption as a lecturer with the Government of Rajasthan.

9. Dismissed.

MARCH 07, 2017                                    VALMIKI J. MEHTA, J
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