Himachal Pradesh High Court
Smt. Prabha Kumari vs Unknown on 17 August, 2021
Bench: Ravi Malimath, Justice, Jyotsna Rewal Dua
1
IN HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE RAVI MALIMATH,
ACTING CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
LETTERS PATENT APPEAL NO. 192 of 2012
Between :-
SMT. PRABHA KUMARI, WIFE OF
SHRI VED PRAKASH SHANDIL,
RESIDENT OF VILLAGE HARIPUR,
P.O. KUNIHAR, DISTRICT SOLAN,
H.P.
...APPELLANT
(BY MR. VIVEK SHARMA,
ADVOCATE)
AND
1. THE STATE OF HIMACHAL
PRADESH THROUGH
COMMISSIONER-CUM-SECRETARY
(RURAL DEVELOPMENT) TO THE
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-2.
2. DIRECTOR RURAL DEVELOPMENT
TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA.
3. THE SECRETARY, STATE ELECTION
COMMISSION, HIMACHAL PRADESH,
SHIMLA-2.
::: Downloaded on - 31/01/2022 22:53:48 :::CIS
2
...RESPONDENTS
(MR. ASHOK SHARMA,
ADVOCATE GENERAL, WITH
MR. RANJAN SHARMA, MR. VIKAS
.
RATHORE, MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERALS
AND MS. SEEMA SHARMA,
DEPUTY ADVOCATE GENERAL FOR
RESPONDENTS NO.1 & 2)
(MR. AJEET SINGH SAKLANI,
ADVOCATE, FOR RESPODENT
No. 3.)
____________________________________________________
This Appeal coming on for orders this day, Hon'ble
Ms. Justice Jyotsna Rewal Dua, delivered the following :
JUDGMENT
Vide a common judgment delivered on 13.12.2011,
learned Single Judge dismissed two separate, but inter-
connected writ petitions filed by the appellant. This decision has
been questioned by the appellant by way of present appeals.
2. Appellant was appointed as a Clerk in the Rural
Development Department on 23.09.1980. She was promoted as
Senior Assistant on 05.09.1985. The appellant was sent on
deputation to the State Election Commission on 10.11.1995. She
was finally absorbed there on 11.05.2000.
3. While the petitioner was on deputation in the State
Election Commission, she was promoted in her parent
department as Superintendent Grade-II in the year 1995. The
appellant did not accept this promotion. The parent department
once again promoted the appellant as Superintendent Grade-II on
.
22.09.2000. The appellant though now wanted to join her parent
department subsequent to her promotion, however, her joining
was not accepted. The parent department probably realized its
mistake that the appellant could not be promoted by them as
Superintendent Grade-II after her absorption in the State Election
Commission on 11.05.2000. The parent department, vide order
dated 25.04.2001,
r cancelled her promotion order dated
22.09.2000.
4. The appellant filed two writ petitions. In one writ
petition, she assailed the order dated 25.04.2001 passed by her
parent department cancelling her promotion to the post of
Superintendent Grade-II. In the other petition, she assailed the
order dated 23.04.2002 whereby her lien to the post in the parent
department was terminated. Learned writ Court vide judgment
dated 13.12.2011 dismissed both the writ petitions.
5. We have heard learned counsel for the parties and
gone through the case record.
5(i). Petitioner was sent on deputation to the State
Election Commission on 10.11.1995. She was absorbed there on
11.05.2000. The appellant accepted her absorption order. This
order is not under challenge. Once the petitioner had been
absorbed in the State Election Commission, there was no
question of her subsequent promotion in the parent department
.
on 22.09.2000. Her promotion order by the parent department on
22.09.2000 was erroneously issued. Therefore, no fault can be
found in the order dated 25.04.2001 passed by the parent
department cancelling her promotion order dated 22.09.2000.
5(ii) The contention of the appellant regarding retention of
her lien on the post in her parent department even after her
absorption by the borrowing department is also ill-founded.
Fundamental Rules 13 and 14-A (d) in this regard are relevant
and read 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.
14-A(d) A Government servant's lien on a post shall
stand terminated on his acquiring a lien on another post
(whether under the Central Government or State
Government) outside the cadre on which he is borne."
r to
In (2015) 3 SCC 670, Sitikanatha Mishra Vs. Union
of India and others, following observations of apex Court in
Arun Kumar Agrawal Vs. Union of India, 2014 (2) SCC 609
were cited with approval :-
"58. It is a settled proposition of law that a
deputationist would hold the lien in the parent department
till he is absorbed in any post. The position of law is quite
clearly stated by this Court in State of Rajasthan v. S.N.
Tiwari (2009) 4 SCC 700.
"18. This Court in Ramlal Khurana v. State of
Punjab (1989) 4 SCC 99 observed that:
"8. ... Lien is not a word of art. It just connotes
the right of a civil servant to hold the post
substantively to which he is appointed."
19. The term 'lien' comes from the Latin term
'ligament' meaning 'binding'. The meaning of
lien in service law is different from other
meanings in the context of contract, common
.
law, equity, etc. The lien of a government
employee in service law is the right of the
government employee to hold a permanent post
substantively to which he has been permanently
appointed."
59. Similarly, in Triveni Shankar Saxena v. State of U.P.
1992 Supp (1) SCC 524 it has been held as under:
"24. A learned Single Judge of the Allahabad
High Court in M.P. Tewari v. Union of
India 1974 All LJ 427] following the dictum laid
down in the above Paresh Chandra case
[Paresh Chandra Nandi v. North-East Frontier
Railway, (1970) 3 SCC 870] and distinguishing
the decision of this Court in Parshotam Lal
Dhingra v. Union of India AIR 1958 SC 36 has
observed that:
"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."
Once the petitioner was absorbed by the borrowing
department on 11.05.2000, then subsequently there was no
question of her retaining lien to the post in the parent department.
The judgment passed by learned Single Judge
dismissing the writ petitions filed by the appellant does not call for
any interference.
.
Consequently, there is no merit in the present appeal
which is accordingly dismissed alongwith the pending
applications, if any.
( Ravi Malimath )
Acting Chief Justice
17th August, 2021 (K) ( Jyotsna Rewal Dua )
Judge
