Jharkhand High Court
Dr. Kumari Sandhya @ Kumari ... vs State Of Jharkhand on 11 October, 2023
1 L.P.A. No.125 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 125 of 2022
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Dr. Kumari Sandhya @ Kumari Sandhya, aged about 60 years, w/o Vanshi
Dhar, r/o Ashok Nagar, C-172, P.O. Doranda, P.S. Argora, District-Ranchi,
Jharkhand 834002.
... ... Petitioner/Appellant
Versus
1. State of Jharkhand.
2. Principal Secretary, Department of Health, Medical Education and Family
Welfare, At-Project Building, P.O. & P.S. Dhurwa, Ranchi-834004,
Jharkhand.
3. Director, Rajendra Institute of Medical Sciences, Bariatu, P.O. and P.S.
Bariatu, Ranchi, Jharkhand.
4. Dr. Dharmendra Kumar, s/o Shri Dineshwar Prasad, presently working and
posted as Professor, Department of Anatomy, Rajendra Institute of Medical
Sciences, Bariatu, P.O. and P.S. Bariatu, Ranchi, Jharkhand.
.. ... Respondents/Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Appellant : Mr. Rajiv Sinha, Advocate
Ms. Shreesha Sinha, Advocate
Mr. Rohit Sinha, Advocate
For the respondent-State : Mrs. Amrita Banerjee, AC to GP-I
For the respondent-R.I.M.S. : Dr. Ashok Kumar Singh, Advocate
Mr. Shivam Singh, Advocate
Mr. Prabhat Kumar, Advocate
Mr. Nilesh Modi, Advocate
For the respondent no.4 : Mr. Ajit Kumar, Sr. Advocate
Mr. Rajeev Kumar Sinha, Advocate
Mr. Vishnu Kumar Mahto, Advocate
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C.A.V./Reserved on 11.09.2023 Pronounced on 11/10/2023
Per Sujit Narayan Prasad, J.:
1. The instant letters patent appeal under clause 10 of the Letters Patent is
directed against the order/judgment dated 18.02.2022 passed by the
learned Single Judge of this Court in W.P.(S) No. 3570 of 2015, whereby
and whereunder, the claim of the writ petitioner seeking seniority over the
respondent no.4 has been declined to be granted by dismissing the writ
petition.
2. The brief facts of the case as per the pleading made in the writ petition,
which require to be enumerated herein, read as under:
(i) The appellant/writ-petitioner was appointed as a Medical Officer on
22.09.1990 has taken charge on 01.11.1990. Subsequently, the
appellant/writ petitioner has been posted as a tutor in the department of
Anatomy, RIMS where she joined on 06.10.2005 and she has been
promoted to the post of Assistant Professor and she joined on the said post
on 31.07.2008. Thereafter, the appellant-writ petitioner has been
promoted to the post of Associate Professor where she joined on
29.10.2012.
(ii) The respondent no.4 also joined the service of State Government in
the Health Department in the year 1990 after joining of the appellant-writ
petitioner and subsequently posted in the Anatomy department of the
RIMS as tutor, where he joined on 07.10.2005. Subsequently, he was
promoted as Assistant professor on 31.07.2008 and thereafter on the post
of Associate professor on 29.10.2012.
(iii) The state of Bihar has published the seniority list vide memo no.
778 dated 17.06.2005 in which the appellant-writ petitioner has been
shown at serial no.997 having the seniority position 603 while respondent
no.4 has been shown at serial no.1126 having the seniority position 1399.
(iv) The State of Jharkhand has also published the provisional seniority
list vide letter dated 29.05.2007 wherein the appellant-writ petitioner has
been shown at serial no.829 while the respondent no.4 has been shown at
serial no.953.
(v) A committee was constituted vide memo no.2265 dated 15.04.2014
for the purpose of deciding seniority and the said committee had
submitted its recommendation on 26.05.2014 and after the decision of
above committee respondent no.3 has issued order vide memo no.5627
dated 02.07 2014 whereby as per recommendation of the committee
constituted for the purpose of deciding seniority of the appellant-writ
petitioner and respondent no 4, respondent no 4 has been declared Senior
to the appellant-writ petitioner.
(vi) The appellant-writ petitioner made representin before the
respondent no.3 vide letter dated 22.04.2015 which has been forwarded to
the respondent no.2 vide memo no.3216 dated 22.05.2015. The appellant-
writ petitioner also made represention to respondent no.2 vide letter dated
07.07.2015 for clarification of the inter-se seniority between the appellant-
writ petitioner and respondent no.4.
(vii) Being aggrieved by the action of the authorities, the appellant-writ
petitioner approached before this Court by filing writ petition being
W.P.(S) No. 3570 of 2015 but the same has been dismissed against which
the instant intra-court appeal has been preferred.
3. (i) It is evident from the factual aspect that the appellant-writ
petitioner was appointed on 22.09.1990 as medical officer under Bihar
Government and took charge on 01.11.1990. The seniority list was
published by the State of Bihar in the year 2005 before final allocation of
cadre to the employees whose services were sent to the state of Jharkhand
after bifurcation, vide memo no.778 dated 17.06.2005. As per the list, the
appellant-writ petitioner was at serial no.997 with seniority position 603
whereas the respondent no.4 is shown at serial no.1126 having at seniority
position at 1399.
(ii) After bifurcation of the State of Bihar, services of the appellant-writ
petitioner as well as respondent no.4 was allocated to the State of
Jharkhand. The State of Jharkhand, on the basis of such allocation and
based upon the requisition sent by the Director, RIMS handed over the
services of the appellant-writ petitioner as well as respondent no.4 to the
RIMS Ranchi vide notification as contained in memo no. 322(4) dated
05.10.2005.
(iii) The appellant-writ petitioner as well as the respondent no.4 was
posted as tutor in department of anatomy RIIMS holding 'lien' with the
State Government by joining the said post.
The State of Jharkhand subsequent thereto, published a provisional
seniority list wherein the appellant-writ petitioner's seniority is shown at
serial no.829 while the respondent no.4 is placed at serial no.953.
(iv) The appellant-writ petitioner was promoted to the post of Associate
Professor to which joining was given by her on 29.10.2012.
Thereafter, one objection was raised by the respondent no.4 for
considering the position in the seniority based upon the fresh recruitment
to the post of Associate Professor. The concerned authority had
constituted a committee vide memo no. 2265 dated 15.04.2014 for
deciding the seniority between petitioner and respondent no.4.
(v) The committee has recommended by granting seniority to the
respondent no.4 over the appellant-writ petitioner and accordingly,
concerned competent authority has decided that the respondent no.4 is
senior to the appellant-writ petitioner vide memo no. 5627 dated
02.07.2014.
(vi) The appellant-writ petitioner, being aggrieved with the
determination of seniority preferred a writ petition being W.P.(S) No.3570
of 2015 questioning the jurisdiction of the RIMS on the ground that the
RIMS was having no jurisdiction to decide the seniority of the appellant
and the respondent no.4. since the 'lien' of both the appellant and the
respondent no.4 lies with the State Government and hence, the State
Government is the competent authority and in that capacity, State is the
only competent authority to decide the seniority position.
(vii) The learned Single Judge after taking into consideration the rival
submissions put forth on behalf of the parties, had dismissed the writ
petition by declining to interfere with the impugned order against which
the present appeal has been preferred.
Argument on behalf of the appellant-writ petitioner:
4. (i) Mr. Rajiv Sinha, learned counsel for the appellant-writ petitioner
has submitted that the appellant was under the services of the State
Government and while working as Medical Officer was deputed as Tutor
in RIMS by keeping her 'lien' with the State Government against the post
of Medical Officer. The 'lien' had continued and by virtue of that State
Government is the competent authority.
(ii) It has been contended that the respondent no.4 has also been
appointed as Medical officer under the State Government who had also
been deputed in the Anatomy Department of the RIMS. 'lien' of the post
of Medical Officer remained with the State Government. The appellant
was senior to the respondent no.4 while working in the capacity of
Medical Officer under the State Government and since the 'lien' was there
with the post of Medical officer, hence, the position of seniority held by
the appellant and the respondent no.4 will remain in operative. The
appellant since was senior to the respondent no.4, hence, there is no
justification for the RIMS to prepare a fresh seniority list by lowering
down the position of the appellant and keep her below the respondent
no.4.
(iii) It has been contended that so long as the 'lien' is with the State
Government, RIMS has got no jurisdiction to change the position of
seniority or take any decision which will be detrimental to the interest of
the appellant. The authority of the RIMS has been questioned on that
ground.
(iv) The argument has been advanced that so long as the 'lien' is with
the State Government, the RIMS has got no power said to be any
controlling power for alteration in the position of seniority or any change
in the service condition.
(v) Learned counsel for the appellant in order to substantiate his
argument has relied upon the provision of Rule 68, 69 and 71 of the
Service Code wherein specific provision has been made for
termination/suspension of the 'lien'. But, none of the condition as
available in the aforesaid provision for the purpose of termination of the
'lien' is available herein.
Learned counsel has further argued that in pursuance of the
advertisement although the appellant has been appointed but that will be
construed to be promotion and not fresh appointment, therefore, changing
the seniority position of the appellant and keeping her below the
respondent no.4 is nothing but absolutely arbitrary exercise of power.
But, the learned Single Judge has not appreciated the aforesaid
aspect of the matter while dismissing the writ petition, therefore, the
instant appeal.
(vi) Learned counsel has relied upon the judgment of the Hon'ble Apex
Court in High Court of M.P. and Ors. vs. Satya Narayan Jhavar, (2001)
7 SCC 161; L.R. Patil vs. Gulbarga University, Gulbarga, 2023 SCC
OnLine SC 1110 and; State of Madhya Pradesh and Ors. vs. Sandhya
Tomar and Anr., (2013) 11 SCC 357.
Argument on behalf of RIMS:
5. (i) Dr. Ashok Kumar Singh, learned counsel for the RIMS has
defended the order passed by the learned Single Judge on the ground that
the contention of the appellant that they are employees of the State
Government by virtue of 'lien' which was created at the time when they
have been deputed to render services in the capacity of Tutor under RIMS
cannot be said to be available the moment the appellant has participated in
the process of selection in pursuance of a fresh advertisement and in
consequence thereof, they have been appointed as Associate Professor. '
(ii) The contention has been made that the principle of 'lien' is very
much established that a person cannot hold the 'lien' of two posts. If an
employee is holding 'lien' of a post and subsequent thereto, if such
employee is being appointed by way of fresh recruitment, then the 'lien'
of the erstwhile employer will stand terminated automatically. The same
is on the basis of the principle that a person cannot be allowed to retain
the 'lien' of two posts and by virtue of the appointment on the subsequent
post in pursuance of fresh recruitment, 'lien' will be created for fresh post
after giving joining to the said post.
(iii) It has been contended that herein that appellant although has been
appointed as Associate Professor in terms of fresh recruitment to fill the
said post through direct recruitment as also the respondent no.4.
(iv) The advertisement contains a condition to fill up several posts
under RIMS under the teaching cadre by way of direct recruitment. The
advertisement has been issued to fill up the post by way of direct
recruitment by keeping the statutory mandate as contained under Section
11 of RIMS Act, 2002 wherein it has been stipulated that although all the
teaching posts from basic cadre to the higher cadre are to filled up through
direct recruitment, meaning thereby, there is no promotional post to be
filled up by way of promotion either the post of Associate Professor or the
Professor.
(v) The RIMS has come out with the advertisement to fill up the post
of Associate Professor and Professor as would appear from the
advertisement. The appellant and the respondent n.4 both have made their
application by following the terms and conditions available in the
advertisement as also by seeking No Objection Certificate by the
erstwhile employer as required under condition no.9 of the said
advertisement.
The appellant as also the respondent no.4 had being declared to be
successful and accordingly, they have been offered with offer of
appointment and in pursuance thereof, both have joined as Associate
Professor against four notified posts under the Anatomy Department
under RIMS.
(vi) The RIMS authority thereafter has taken decision in order to fix the
seniority of the appellant and the respondent no.4 based upon their
position in the merit list. The respondent no.4 has been found to have
obtained more marks in comparison to that of the appellant and making
the merit position to be a ground for fixation of seniority, the respondent
no.4 has been held to be senior over the appellant.
(vii) Further contention has been made in reply to the argument
advanced on behalf of the appellant that the appointment so made in
pursuance of the advertisement cannot be said to be a direct recruitment,
is absolutely a misconceived argument keeping the provision of Section
11 of the RIMS Act, 2002 wherein all the posts from the Assistant
Professor up to the post of Professor including the Associate Professor are
to be filled up through direct recruitment.
Since there is no provision under the statute to fill up the post by
way of promotion, hence, it cannot be said to be correct as is being
submitted that the appointment was made either of the appellant or of the
respondent no.4 as Associate Professor by way of promotion rather it is by
way of direct recruitment as per the mandate of Section 11 of the RIMS
Act, 2002 as also advertisement was issued for the said purpose which is
only for the purpose of filling the post by way of direct recruitment.
(viii) It has been submitted that it is incorrect on behalf of the appellant
to take the ground that the 'lien' of the appellant and the respondent no.4
still subsist with the State Government rather the moment the appellant
and the respondent no.4 had joined by way of direct recruitment as
Assistant Professor, the 'lien' of the post of Medical Officer under the
State Government will stand terminated automatically on the principle
that the employee cannot be allowed to hold the 'lien' of two posts.
(ix) Learned counsel for the RIMS on the aforesaid premise has
submitted that if the learned Single Judge after taking into consideration
the aforesaid fact has passed the impugned order by declining to interfere
with the impugned order therein, it cannot be said to suffer from error.
Argument on behalf of respondent no.4:
6. (i) Mr. Ajit Kumar, learned senior counsel appearing for the
respondent no.4 has submitted in addition to what has been submitted by
learned counsel for the RIMS by referring to the advertisement wherein
the advertisement stipulates for inviting application to the post of
Assistant Professor, Associate Professor and Professor which suggest that
the said advertisement is for the purpose of filling up the post through
direct recruitment. The eligibility criteria has also been referred in the
advertisement wherein in order to hold the post of Associate Professor, 4
years tenure in the capacity of Assistant Professor is a condition
precedent.
(ii) The contention has been made that the appellant as also the
respondent no.4 were holding the post of Assistant Professor by virtue of
deputation in RIMS by the State Government as Tutor and subsequent
thereto, they have been absorbed as Assistant Professor, hence, their
candidature has been accepted and finally they have been accepted as
Associate Professor by way of direct recruitment.
(iii) Learned senior counsel, in the aforesaid premise, has submitted in
response to the submission made on behalf of the appellant that the
appellant as also the respondent no.4 are direct recruits and hence, the
'lien' has been created to hold the post of Associate Professor for both the
appellant and the respondent no.4.
(iv) It has been contended that the moment both the appellant and the
respondent no.4 had joined the post of Associate Professor under RIMS,
the 'lien' which were available attached to the post of Medical Officer
under the State Government stands automatically terminated.
(v) Learned senior counsel in order to substantiate his argument has
drawn the attention of this Court towards Rule 68 of the Jharkhand
Service Code.
7. We have heard the learned counsel for the parties, perused the documents
available on record as also the finding recorded by the learned Single
Judge in the impugned order.
8. This Court, on appreciation of the rival submissions and after going
through the documents available on record, is of the view that the
following issues are to be considered and answered.
(i) Whether the 'lien' on deputation of the appellant as Tutor in RIMS
still lies with the post of Medical Officer under the State
Government?
(ii) Whether the 'lien' will stand terminated automatically the moment
the appellant and the respondent no.4 joined the post of Associate
Professor?
(iii) Whether the appointment of the appellant and the respondent no.4
are to be considered by way of promotion or through the direct
recruitment?
9. This Court, before considering the aforesaid issues, deems it fit and proper
to refer some undisputed facts herein for proper adjudication of the lis.
(i) The appellant and the respondent no.4 both had been appointed
under the State Government as Medical Officer in the year 1990.
(ii) Seniority list was prepared for the post of medical officer wherein
the appellant has been placed at serial no.997 with seniority
position 603 and the respondent no.4 was at serial no.1126 having
seniority position at 1399.
(iii) The appellant and the respondent no.4 based upon their requisition
for deputation as Tutor under RIMS had been deputed by the order
passed by the competent authority of the State Government. The
appellant and the respondent no.4 both had joined the deputed post
of Tutor under RIMS and subsequent thereto, they have been
absorbed as Assistant Professor and started discharging their duties.
(iv) The appellant and the respondent no.4 while discharging their
duties as such, i.e., on the post of Assistant Professor, an
advertisement was published inviting applications to fill up the post
of Tutor, Senior Resident, Assistant Professor, Associate Professor
and Professor. The advertisement contains certain condition in
which one of the conditions is that the candidate who are working
in any Government or Semi-Government organization have to make
application after getting No-Objection Certificate. The
advertisement has been issued which suggest that all the post are to
be filled up through direct recruitment only.
(v) The appellant and the respondent no.4 had applied for consideration
of their candidature of the post of Associate Professor and in
pursuance of the condition stipulated in the advertisement to make
application after getting no-objection certificate, hence, impliedly it
will mean that both the appellant and the respondent no.4 had
applied their applications after getting no-objection certificate from
the State Government where the 'lien' was with the State
Government of the post of Medical Officer.
(vi) The appellant and the respondent no.4 both have been declared to
be successful.
The appellant got lesser marks in comparison to that of the
respondent no.4. The RIMS authority has fixed the seniority of the
respondent no.4 and the appellant by placing the respondent no.4
over the appellant which is based upon the marks secured in the
process of selection.
(vii) The appellant after fixation of her seniority keeping her below the
respondent had objected on the ground that she was holding the
post of medical officer and the 'lien' was with the State
Government wherein the appellant was all along senior to the
respondent no.4 then, the RIMS has got no jurisdiction to revise the
seniority.
(viii) The aforesaid grievance having not been accepted, writ petition was
filed by the appellant claiming therein seniority over the respondent
no.4 but the writ petition has been dismissed.
10. The reference of some of the statutory provision is also required to be
made herein pertaining to the constitution of RIMS and applicability of
the Rules 68, 69 and 71 of the Service Code which provides to decide the
termination/suspension of 'lien'.
11. The RIMS earlier known as Rajendra Medical College and Hospital was
under the control of the State Government but in order to give autonomy
to the said institution, the State Government has come out with enactment
notified on 20.04.2002 by virtue of Act 10 of 2002 which is known as
Rajendra Institute of Medical Sciences Act, 2002.
By virtue of the aforesaid act, the RIMS has been given an
autonomous status keeping the State not to interfere in the day-to-day
affairs save and except the evasive control as per the provision of Section
29 of the Act, 2002.
By virtue of Section 12, power has been conferred to the governing
body, whereby and whereunder, all the powers for the smooth functioning
of the RIMS has been vested upon the governing council. For ready
reference, Section 12 of the RIMS Act, 2002 is being referred as under:
"(12) शासी परिषद् की शक्तियााँ - (i) शासी परिषद् के पास संस्थान के मामल ं से संबंधित पूिी
प्रशाधनक एवं धवत्तीय शक्तियााँ तथा शक्तिय ं के उपय ग तथा संस्थान के लक्ष् ं एवं उद्दे श् ं के अनुकूल
संस्थान के सभी कायों एवं कृत् ं का संचालन का प्राधिकाि ह गा -
(ii) परिषद् क संस्थान के वाधषिक बजट क अनुम धदत किने एवं स्वीकृधत हे तु उसे िाज्य सिकाि के
पास भेजने की शक्ति ह गी । िाज्य सिकाि स्वीकृधत प्राप्त किने के उपिान्त शासी परिषद् क बजट में
शाधमल धकसी भी मद पि व्यय की मंजूिी दे ने का पूिा अधिकाि ह गा :
यधद धकसी धवत्तीय वषि के दौिान धकसी कायिक्रम क िन दे ने का प्रस्ताव ह , धजसे उस धवत्तीय वषि के
प्राक्कलन में शाधमल नही ं धकया गया ह , ऐसी क्तस्थधत में शासी परिषद् अनुपूिक बजट हे तु िाज्य सिकाि
से अनुम दन प्राप्त किे गी ।
(iii) िािा-6 में धनधदि ष्ट कायों के धनष्पादन हे तु की गयी कािि वाई में संस्थान के खचो क पूिा किने हे तु
शासी परिषद् क संस्थान की धनधि के उपय ग की धवत्तीय शक्तियााँ ह गी I
(iv) शासी परिषद् के पान संस्थान की धनधि से व्यय संबंिी वही शक्तियााँ ह ग
ं ी ज ल क धनधि से व्यय
किने के मामले में िाज्य सिकाि के पास है ।
(v) िाज्य सिकाि द्वािा धनधमित धनयम ं के अिीन िहते हुए शासी परिषद् क संस्थान में पद ं के सृजन एवं
समापन का अधिकाि ह गा ।
(vi) शासी परिषद् धकसी भी िमिदाय, न्यास धनधि, चन्दा या प्रधतदान का प्रबंिन औि प्रशासन स्वीकाि
कि सकता है , बशते इनमें ऐसे क ई उपबन्ध न ह ज संस्थान के उद्दे श् ं के प्रधतकूल औि धवि िी ह ।
(vii) शासी परिषद् क अनुषंगी सेवाऐं, जैसे कैटरिं ग, लॉन्ड्री सेवाएाँ , एम्बुलेन्स सेवाएाँ भी आवश्कता
समझे जाने पि बाह्य स्र त ं से प्राप्त कि सकती है पिन्तु शासी परिषद् बुधनयादी सेवाओं का वाह्य स्त्र त ं
से प्राप्त नही ं कि सकेगी ।
(viii) शासी परिषद् क धनयम ं तथा धवधनयम ं द्वािा धनिाि रित फीस एवं अन्य शुल् ं के आि धपत एवं
संस्थान के दे ख भाल एवं धवकास हे तु, प्राप्त िाधश के उपय ग की शक्ति ह गी ।
(ix) शासी परिषद् िाज्य सिकाि की पूवाि नुमधत से िािा-32 के प्राविानानुसाि अधिसूचना जािी कि
धवधनयम ं का धनमाि ण कि सकती है ।
(x) शासी परिषद् अपनी शक्तिय ं क संकल्प द्वािा कायिकारिणी सधमधत, अध्यक्ष उपाि संस्थान के
धनदे शक या संस्थान के अन्य पदाधिकारिय ं क , प्रत्ाय धजत कि सकता पिन्तु शासी परिषद् धनयम ं
तथा धवधनयम ं के धनमाि ण की शक्तियI, संस्थान के वाधषिक बजट स्वीकृत किने की शक्ति, संस्थान में
उपलब्ध धनधिय ं के धवशेष अनुदान या दान के माध्यम से स्वीकृधत दे ने की शक्ति तथा शैधक्षक संकाय
पद ं पि धनयुक्ति की शक्ति क प्रत्ाय धजत नही ं कि सकता ।"
Section 29 provides the provision of controlling power of the RIMS
and by virtue of the same, the State has been given power to look into that
the institution, i.e., RIMS may run on the basis of the policy decision
which is to be issued by the State time-to-time in order to achieve the
object and intent of the Act.
12. The State Government through the Health, Medical Education and Family
Welfare Department in exercise of power conferred under Section 32 of
the Act, 2002 has come out with a notification on 08.09.2014 wherein
specific provision has been made as under Regulation 11 that all the posts
under para 11 of page 6 which carries reference of the teaching posts are
to be filled up through direct recruitment and to be made on the basis of
the recommendation made by the permanent selectin committee to be
acted upon by the governing council. For ready reference, the said
regulation is being referred as under:
"11. धवधभन्न पद ं पि धनयुक्ति एवं प्र न्नधत धनयमावली
रिम्स अधिधनयम, 2002 में शैक्षधणक संवगि की धनयुक्ति एवं प्र न्नधत के संबंि में द धभन्न
बाते वधणित है -
I. िाजेन्द्र आयुधविज्ञान संस्थान धनयमावली 2002 पृष्ठ संख्या 6 की कंधिका 11 में वधणित है धक -
शैक्षधणक संवगि के सभी पद ं पि धनयुक्ति, खुले धवज्ञापन तथा शैक्षधणक संवगि के पद ं हेतु स्थायी
चयन सधमधत द्वािा की गयी अनुशंसाओं के आिाि पि शासी परिषद् द्वािा की जाएगी।
II. रिम्स अधिधनयम 2002 िािा 28 में स्पष्ट धनदे धशत है धक सभी प्रवेश, पद ं पि सभी भती एवं
प्र न्नधत के मामल ं में धवधभन्न वगों के आिक्षण के संबंि में िाज्य सिकाि के नीधत एवं धनयम लागु
हग
ं े ।"
13. The said regulation also contains a schedule being Schedule IV in which
policy to decide the seniority has been made under Schedule IV (5) as per
which the parameters have been given therein for fixation of seniority. For
ready reference, the same is being referred as under:
"5. Seniority List
As per the rules in force, there can be direct recruitment to all grades of
the faculty and selection on each occasion could be for appointment to be
made at the same time but in more than one discipline. The combined
seniority list of the Institute shall be worked out as follows:-
i. The seniority of the employees of the Institute in each category shall be
determined by the order of merit in which they were selected for
appointment to the Grade in question, those selected on an earlier occasion
being ranked senior as a block to those selected later.
ii. The preparation of seniority list of persons selected in the same selection
committee would involve the following steps:-
Step-I
Draw up list of persons on the basis of their date of joining those
joining on an earlier date being placed above those joining on a later
date.
Step -II
In the list prepared as above, those who join on the same date may be
arranged in order of age - those born earlier being placed above those
born later.
Step-III
For those joining on the same date and adjusted as in step II above
according to their age, further re-arrangement may be carried out so
that the original inter-seniority of the Institute employees in the Lower
Post/ Grade maintained. This operation may be done by pulling down
the junior in the previous combined seniority list immediately below his
senior in that list now appearing in this list even though he may be
elder in age.
Step -IV
The above list may now be further modified to carry corrections of
violation of departmental merit/seniority laid down by the selection
committee. This will be done by pulling the junior down immediately
below his senior in merit.
Note:
In cases where a junior in the combined & seniority list is being
considered for assessment, all persons senior to him/her in the seniority
list will also be considered even though the seniors do not have the
requisite years of service. The senior if found fit will be given national
promotion with effect from the date of promotion of his/her junior and
for purpose of pay etc., it would be granted to him/her with effect from
the date of actual promotion i.e. the date on which he completes 4 years
service on the grade at the RIMS, provided the following two conditions
are fulfilled:-
a. Probation should have been completed by him/her successfully.
b. The total period of extension granted to join the service should not
have exceeded 6 months."
14. The purpose of making reference of the aforesaid statutory provision is
that the RIMS is not under the control of the State Government rather
RIMS is to govern under the statutory provision as enacted by virtue of
the Act, 2002 and the Regulation, 2014.
However, the State has only been given power to the extent to see
that the RIMS is following the policy decision for the betterment of the
people at large of the State of Jharkhand as is being formulated by the
State of Jharkhand.
The State has been excluded from interfering with the day-to-day
affairs including the matters of appointments and promotions. That is the
spirit of the Act, 2002 and it is for this reason the reference of the RIMS
Act is being made herein.
15. Reference of Rules 68, 69, 70 and 71 also needs to be made herein, which
read as under:
"68. 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.
69. Unless his lien is suspended under Rule 70 or transferred under Rule
72 a Government servant 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,
(c) during joining time on transfer to another post, unless he is transferred
substantively 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
old past.
(d) while on leave, and
(e) while under suspension.
70. (a) The lien of a Government on permanent post which he holds
substantively shall be suspended if he is appointed in a substantive
capacity .--
(1) to a tenure post, or
(2) to a permanent post outside the cadre on which he is borne, or
(3) provisionally, to a post on which another Government servant
would hold a lien had his 'lien' not been suspended under this rule.
(b) The State Government may, at its opinion, suspend the lien of a
Government servant 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 Clause (a) of this rule is transferred,
whether in a substantive or 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.
(c) Notwithstanding anything contained in Clause (a) or (b) of this rule a
Government servant'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.
(d) If a Government servant's 'lien on a post is suspended under Clause
(a) or (b) of this rule, the post may be filled substantively, and the
Government servant 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.
(e) A Government servant's lien which has been suspended under Clause
(a) of this rule shall revive as soon as he ceases to hold a lien on a post of
the nature specified in sub-clauses (1), (2) or (3) of that clause.
(f) A Government servant's lien which has been suspended under Clause
(b) 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 a suspended lien shall not revive because the Government servant
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 sub-clause (1), (2) or (3) of Clause (a).
71. (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) In a case covered by sub-clause (2) of clause (a) of Rule 70, the
suspended lien may not, except on the written request of the Government
servant concerned, be terminated while the Government servant remains
in Government service."
16. It is evident from the provision of Rule 68 wherein it has been provided
that 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.
It is, thus, evident from the perusal of the provision as contained
under Rule 68 that the 'lien' will be automatically ceased the moment the
concerned government servant has been appointed on substantive post to
any permanent post.
17. Rule 69 provides that unless the 'lien' is suspended under Rule 70 or
transferred under Rule 72 a Government servant holding substantively a
permanent post retains a 'lien' on that post while performing the duties of
that post; while on foreign service, or holding a temporary post or
officiating in another post; during joining time on transfer to another post,
unless he is transferred substantively 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 old past; while on leave, and; while under
suspension.
18. Rule 70 deals with a position in which the 'lien' of a government servant
on a permanent post which he holds substantively shall be suspended if he
is appointed in a substantive capacity to a tenure post or to a permanent
post outside the cadre on which he is borne, or provisionally to a post on
which another Government servant would hold a 'lien' had his 'lien' not
been suspended under this rule.
19. It is thus evident after going through the provision of Rule 68, 69 and 70
that Rule 68 speaks about retain of the 'lien' of a post and its automatic
termination on being appointed on substantive capacity against a
permanent post. Rule 69 and 70 deals with altogether different posts.
20. The reference of judicial pronounce in this regard is also required to be
made on the issue of 'lien'.
(i) The Hon'ble Apex Court in State of Rajasthan & Anr. vs. S.N.
Tiwari & Ors, (2009) 4 SCC 700, has been pleased to hold by taking into
consideration the applicable rule under Rajasthan Service Rules as would
appear from paragraph nos. 14, 15, 17, 18, 21 and 21. For ready reference,
the said paragraphs are being referred as under:
"14. It is not the case of the State that any competent authority terminated the
lien of the respondent in the parent department. There is no material made
available by the State to show that the respondent had been confirmed in any
permanent post and that he was holding that appointment in a substantive
capacity on permanent basis. On the other hand, even while working as
homoeopathic doctor in ESI Corporation, the respondent employee obtained
directions as against the State and the Directorate of Economics and
Statistics Department to determine the yearwise vacancies and to make
promotions from the post of Statistical Inspector to Statistical Assistant in
accordance with the Rules. That order attained its finality. The same would
demonstrate that the respondent employee always had a lien in the
Department of Economics and Statistics.
15. It may be necessary to notice Rule 18 of the Rajasthan Service Rules
which is reproduced in its entirety hereunder:
"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 Governments) outside the cadre on which he is borne."
A bare reading of the Rule makes it clear that a government servant's lien on
a post cannot be terminated in any circumstances even with his consent if it
results in leaving the government servant without a lien or a suspended lien
upon a permanent post. A government servant's lien on a post stands
terminated only on his acquiring a lien on a permanent post outside the cadre
on which he is borne.
17. It is very well settled that when a person with a lien against the post is
appointed substantively to another post, only then he acquires a lien against
the latter post. Then and then alone the lien against the previous post
disappears. Lien connotes the right of a civil servant to hold the post
substantively to which he is appointed. The lien of a government employee
over the previous post ends if he is appointed to another permanent post on
permanent basis. In such a case the 'lien' of the employee shifts to the new
permanent post. It may not require a formal termination of 'lien' over the
previous permanent post.
18. This Court in Ramlal Khurana v. State of Punjab [(1989) 4 SCC 99 :
1989 SCC (L&S) 644 : (1984) 11 ATC 841] observed that: (SCC p. 102, para
8)
"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.
21. Be it noted that no objections were raised when the respondent employee
gave his option on 8-4-1991 duly informing all the concerned that his lien in
the Subordinate Statistical Service had to be maintained for the purposes of
promotions to higher posts/protection of financial interests, etc. In such view
of the matter the respondent employee always had his 'lien' in his parent
department. The State at this stage cannot be allowed to turn round and say
that the respondent employee did not retain lien against his post in the parent
department."
It is evident from paragraph 17 of the aforesaid judgment that the
Hon'ble Apex Court has been pleased to observe regarding the settled
position that when a person with a 'lien' against the post is appointed
substantively to another post, only then he acquires a 'lien' against the
latter post. Such observation has been made on the basis of the
interpretation of Rule 18(b) of the Rajasthan Service Rules.
The word ''lien'' has also been defined interpreting it under
parapgraph 19 as per which the terms ''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.
(ii) The Hon'ble Apex Court in another judgment rendered in State of
Madhya Pradesh & Ors reported in Sandhya Tomar and Anr., (2013) 11
SCC 357, in particular paragraph no. 10, has been pleased to observed
which is quoted hereunder as:
"10. "lien" connotes the civil right of a government servant to hold the
post "to which he is appointed substantively". The necessary corollary to
the aforesaid right is that such appointment must be in accordance with
law. A person can be said to have acquired lien as regards a particular
post only when his appointment has been confirmed, and when he has been
made permanent to the said post. "The word ''lien'' is a generic term and,
standing alone, it includes lien acquired by way of contract, or by
operation of law." Whether a person has lien, depends upon whether he
has been appointed in accordance with law, in substantive capacity and
whether he has been made permanent or has been confirmed to the said
post."
It is evident from the aforesaid proposition that a person can be said
to have acquired 'lien' as regards a particular post only when his
appointment has been confirmed, and when he has been made permanent
to the said post.
Whether a person has 'lien', depends upon whether he has been
appointed in accordance with law, in substantive capacity and whether he
has been made permanent or has been confirmed to the said post.
(iii) The Hon'ble Apex Court in Ramlal Khurana (Dead) by Lrs. Vs.
State of Punjab & Ors., (1989) 4 SCC 99, has been pleased to hold at
paragraphs 7, 8 and 9 which are quoted hereunder as:
"7. We do not think that the contention urged for the appellant as to Rule
3.14 could be accepted. Rule 3.14 provides that a competent authority
shall suspend the lien of a government servant when he is appointed in a
substantive capacity to a permanent post outside the cadre on which he is
borne. It seems to us that this rule cannot be operated to the prejudice of a
government servant who on his own has acquired legal right to an ex
cadre post. Indeed, the rule is for the benefit of a government servant who
intends to return back to his parent department. That was also the view
expressed in T.R. Sharma case. But then, the appellant never wanted to
return back to his parent department. He was stoutly opposing
repatriation and asserting his right to remain in the ex cadre post. He has
thus denied himself of the benefit of that rule.
8. The other contention urged for the appellant that he was not confirmed
in the Excise Department and unless confirmed, he acquired no lien
cannot also be accepted. 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. Generally when a person with a lien against a post is
appointed substantively to another post, he acquires a lien against the
latter post. Then the lien against his previous post automatically
disappears. The principle being that no government servant can have
simultaneously two liens against two posts in two different cadres. It is a
well-accepted principle of service jurisprudence.
9. In that instant case, the civil court has already ruled that the appellant
had a right to continue in his substantive appointment as Excise Sub-
Inspector. He secured that declaration when the Excise Department
repatriated him to his parent department. After obtaining that decree from
a court of competent jurisdiction, he could not turn round and say that he
still retained lien against his post in the parent department. The lien in his
parent department must be held to have been cancelled consequent on the
decree of the civil court. Therefore, the Excise Commissioner seems to be
the only competent authority to pass the order compulsorily retiring him
from service."
(iv) The Hon'ble Apex Court in L.R. Patil vs. Gulbarga University,
Gulbarga, 2023 SCC OnLine SC 1110 while dealing with the issue of
'lien' has been pleased to hold that the moment a public servant is being
appointed to a permanent post on substantive capacity, the 'lien' of the
erstwhile post will stand terminated.
However, the facts of the said case as would appear from
paragraph-4 thereof is that applications were invited by the University in
the year 1993 to fill the post by way of direct recruitment. The appellant
of the said case applied for the said post and was selected. As per the
terms of the appointment, the appellant had to serve as a probationer for a
period of two years, before he could be confirmed on the said post. On his
appointment, respondent-University vide office order dated 08.04.1993
relieved the appellant from the post of Office Superintendent w.e.f.
04.02.1993, and duly recorded that he is being relieved to accept the
another appointment as 'Assistant Registrar' in the Gulbarga University.
The order further recorded that its contents shall be noted in the service
book.
During pendency of the said writ petition, the respondent-
University vide order dated 03.02.1996, promoted 'Sri. A. Raghavendra'
and 'Sri Shankar Rao Kamble' looking to their seniority and posted them
as Assistant Registrar, Examination Branch and Assistant Registrar,
Administrative Branch respectively. But, on account of the pendency of
aforesaid writ petition, the appellant continued on probation on the post of
Assistant Registrar. The High Court had quashed the appointment of the
appellant. The same had been confirmed under the intra-court appellate
jurisdiction. The University in consequence thereof, has withdrawn the
appointment of the appellant as Assistant Registrar.
Thereafter, the appellant of the said case has gone to give joining to
the post of Office Superintendent. His joining was accepted. The appellant
had made representation for fixation of his seniority in the cadre of Office
Superintendent and further requested for promotion on the vacant post of
Assistant Registrar at par with his two juniors, namely, Sri. A.
Raghavendra and Sri. Shankar Rao Kamble who were promoted to the
post of Assistant Registrar by the respondent University.
The grievance having not been redressed, writ petition was filed
being Writ Petition No. 22838 of 2001 which was disposed of on
21.03.2005 with a direction upon the respondent concerned to take
decision. The decision was taken and the representation was rejected and,
in the meantime, the appellant superannuated on 30.06.2007 from the post
of Office Superintendent. The appellant had again filed writ petition being
Writ Petition No. 4066 of 2006 challenging the rejection order dated
08.02.2006 and prayed for restoration of his seniority. The matter finally
gone before the Hon'ble Apex Court and in the background of the
aforesaid fact, the Hon'ble Apex Court has considered while deciding the
issue, the judgment rendered by the Hon'ble Apex Court in Ramlal
Khurana (Dead) by Lrs. Vs. State of Punjab & Ors. (supra); Triveni
Shankar Saxena vs. State of U.P. and Ors., 1992 Supp (1) SCC 524
wherein the Hon'ble Apex Court 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. The Hon'ble Apex Court on
consideration of the judgment rendered by the Hon'ble Apex Court in
State of Rajasthan and Anr. Vs. S.N. Tiwari and Ors. (supra) and State
of Madhya Pradesh and Ors. vs. Sandhya Tomar and Anr., (supra) has
held as under paragraph-26 which reads as under:
"26. In view of the discussion made herein above, we answer the
questions framed above as follows -
(i) Order dated 08.04.1993 passed by respondent-University, relieving
the appellant to take up the new appointment as 'Assistant Registrar'
is not to be treated as resignation in terms of Rule 252(b) of KCS
Rules.
(ii) The appellant's lien on the original/previous post of 'Office
Superintendent' shall be maintained and deemed to be continued
from the date when he was relieved by respondent-University, i.e.,
08.04.1993.
(iii) Considering the facts and circumstances of the case and in order to
do complete justice, the appellant will be entitled to all the service
benefits including seniority, consequential promotions and
pensionary benefits at par with his juniors, though notionally, since
he superannuated on 30.06.2007 and has not worked on the
promoted post."
It is evident from the aforesaid conclusion as under paragraph-26
thereof that the appellant's 'lien' on the original/previous post of 'Office
Superintendent' shall be maintained and deemed to be continued from the
date when he was relieved based upon the fact that the appellant was not
allowed to continue in service as Assistant Registrar and appointment was
withdrawn within the probation period of two years. Hence, he was
continued on temporary basis despite the completion of two years and in
that view of the matter the 'lien' which was earlier been held by the
appellant of the said case of the post of Office Superintendent has been
directed to be remained there.
21. This Court is now proceeding to examine the factual aspect involved in
the present case.
22. Admittedly herein, the appellant and the respondent no.4 were employees
of the State Government appointed as Medical Officer. While they were
working on the said post, on requisition they have been deputed as Tutor
under RIMS. They have been allowed to continue as Tutor by keeping the
'lien' with the State Government of the post of Medical Officer.
The appellant and the respondent no.4 have been absorbed as
Assistant Professor and based upon their absorption they became eligible
to participate in the process of selection or to hold the post of Associate
Professor.
However, we need to refer herein since we have already taken note
of the Act, 2002 regarding the autonomous status of the RIMS as also the
fact that the post of Tutor is not to be held by one or the other on
permanent basis although the post of Tutor is permanent and further the
post of Tutor is not under the teaching cadre rather it is to be vacated by
one or the other so as to make space for other PG course students.
23. We have decided the said issue in another litigation being L.P.A. No. 313
of 2021 and analogous cases. The purpose of referring this judgment is
that the basis of claiming the post by way of promotion is that both the
appellant and the respondent no.4 have been absorbed as Tutor and
subsequently have been promoted to the post of Assistant Professor.
24. Question is that the post of Assistant Professor, Associate Professor
and/or Professor are to be filled up through direct recruitment then where
is the question to grant promotion to the post of Assistant Professor that
too by making absorption to the post of Tutor.
However, this is not the issue herein regarding the propriety of their
absorption to the post of Tutor or the promotion to the post of Assistant
Professor but the fact since has been agitated in course of argument so it is
our bounded duty to make reference of the fact.
The fact remains that the appellant and the respondent no.4 have
entered into the service of the Assistant Professor and remained there and
became eligible to hold the post of Associate Professor.
25. At that stage, advertisement was issued inviting applications to fill up the
post of Tutor, Assistant Professor, Associate Professor and Professor.
Several conditions were there and one of the conditions was that the
government servant will have to get no-objection certificate for
consideration of their candidature.
The appellant and the respondent no.4 had applied and have been
declared to be successful and accordingly, they have been appointed as
Associate professor. They have also joined to the said post. The
appointment letters were issued wherein a clause has been inserted that
the service will be for probation period of two years and the same will be
temporary subject to satisfactory service then their services will be
absorbed under the regular establishment.
Another condition is condition no.11 that if one or the other
successful candidate who have been declared successful and willing to
accept the offer of appointment and if working in any of the service will
have to get relieved or have to resign from the service then only the
joining in the RIMS will be accepted. For ready reference, condition no.2
and 11 are being referred as under:
"2. धनयुक्ति स्थायी पद पि धकन्तु द वषो तक प्र वेशन (Probation) काल में अस्थायी िहे गी। उि
अवधि में उनकी सेवा संत षजनक पाये जाने पि ही उन्हें धनयधमत सेवा में समाय जन धकया जा
सकेगा ।
11. पूवि से धकसी भी सेवा में कायिित धचधकत्सक ं क उनके पूवि पद से धविधमत ह ने/पदत्ाग की
स्वीकृधत ह ने पि ही इस संस्थान में य गदान की स्वीकृधत दी जा सकेगी।"
26. The appellant's main argument is the condition no.2 based upon the same
it has been argued that the appointment is on probation for two years
which will be temporary, therefore, so long as the appellant is absorbed in
the regular service, the 'lien' which was there of the post of Medical
Officer will remain there. Learned counsel in order to substantiate his
argument has relied upon the judgment rendered by the Hon'ble Apex
Court in L.R. Patil vs. Gulbarga University, Gulbarga (supra).
The Hon'ble Apex Court in the aforesaid case has been pleased to
hold that the 'lien' will be there so long as the fresh appointment is not
made to a permanent.
27. We are not in dispute regarding the said settled position but on scrutiny of
the fact of the said case, we have found that there, the appellant of the said
case was appointed for a period of two years and during the pendency of
the litigation, he was continued on temporary basis despite completion of
two years.
28. Herein, the appellant from the date of appointment, i.e., from 29.10.2012,
is regularly discharging her duties and as such, now it is not available for
the appellant to take the ground that her services will be construed to be
on probation. The question herein will be if the contention of the appellant
will be accepted of the service being construed to be temporary then
question will be that how the appellant and the respondent no.4 were
granted promotion to the post of Professor.
29. The law is well settled that the promotion to the higher post is only to be
granted to the holder of the substantive post. The granting of promotion
by the office order issued by the Rajendra Institute of Medical Sciences
coupled with the continuation of service, the admitted fact is that the
service of the appellant and the respondent no.4 will be said to be under
the regular establishment of the RIMS.
30. The issue although herein is not of either holding the post of Associate
Professor or the Professor rather the issue of seniority is the issue of the
lis.
The appellant claims her seniority to be retained by her which she
was holding by virtue of holding the post of Medical Officer where she
was declared to be senior with that of the respondent no.4.
It is the contention of the appellant that since the 'lien' lies with the
State Government on the post of Medical Officer, hence, it was not the
jurisdiction of the RIMS to change the seniority position of the appellant
by ranking her below the respondent no.4.
The seniority list although has been prepared by the RIMS the
moment the appellant and the respondent no.4 had been appointed as
Associate Professor.
The basis of preparing the seniority list is the merit position of the
appellant and the respondent no.4. The appellant admittedly has got lesser
marks in comparison to that of the respondent no.4. in the selection
process and the competent authority has taken decision to place the
respondent no.4 above than the appellant in the seniority position.
The question of keeping the 'lien' with the State Government is
being taken for the reason that the State Government is only the employer
and hence, the RIMS has exceeded its jurisdiction in preparing the list
showing the appellant below the respondent no.4.
31. But, we are not in agreement with such submission for the reason that the
moment the appellant has joined the services as Associate Professor on
substantive capacity against the permanent post and subsequent thereto,
she has been promoted to the post of Professor, the same corroborates that
the appellant has joined her services on the substantive post as Associate
Professor on permanent post. As such, the moment the appellant and the
respondent no.4 joined the post by virtue of recruitment on the basis of
recruitment process conducted in pursuance of advertisement, the 'lien'
which is being claimed to be retained by the State Government will not be
there due to the settled position of law that the moment a public servant is
being appointed on permanent capacity to another post, the 'lien' retained
in the previous post will automatically ceases to exist.
32. Exactly herein the Rule 68 of the Service Code states the same wherein it
has been provided that the 'lien' will cease to exist for the earlier post the
moment a government servant joins his service in substantive capacity on
the permanent post.
33. The only ground has been taken that the appointment of the appellant as
Associate Professor cannot be construed to be a permanent in nature based
upon the condition no.2 of the appointment letter.
But, the same cannot be accepted at least for the reason that the
appellant is still continuing and not only that she has also been promoted
to the post of Professor and unless the service of a government servant is
permanent, there cannot be any promotion to the higher post. Hence, the
fact that the service of the appellant is not permanent and the 'lien' lies
with the State Government, according to our considered view, is having
no substance.
34. Learned counsel for the appellant has tried to impress upon the Court that
the basis of seniority is the Schedule IV (5) of the Regulation, 2014 which
has come subsequent to the finalization of the seniority of the appellant
and the respondent no.4.
35. It is admitted fact that the Regulation, 2014 was notified on 08.09.2014
wherein the provision has been made for determination of seniority as has
been quoted and referred above.
It is also settled that the Act / Rule / Regulation cannot be given
retrospective effect unless stipulated in the Statute.
36. We have considered the stipulation made therein, more particularly 5(i)
wherein it has been provided, at the risk of repetition the same is being
repeated herein, that "The seniority of the employees of the Institute in
each category shall be determined by the order of merit in which they
were selected for appointment to the Grade in question, those selected on
an earlier occasion being ranked senior as a block to those selected later.;
the preparation of seniority list of persons selected in the same selection
committee would involve the steps."
37. Various steps have been given but we are concerned with the parameter
fixed for seniority which is based upon the merit position of the appellant
and the respondent no.4 and instructions as has been provided in the
regulation, the seniority is to be determined by the order of merit in which
they were selected for appointment.
38. The word 'were' is having bearing which denotes that the seniority is to
be prepared even of such appointees who have been appointed prior to
coming into effect of the Regulation, 2014.
The purpose of insertion of word 'were' is that prior to Regulation,
2014 where there was no Rule in the RIMS to decide the seniority and the
basic object of insertion of word 'were' was that all the issues regarding
seniority is to be set at rest even the seniority of the appointees made prior
to coming into effect of the Regulation, 2014.
Therefore, the contention which has been made regarding
retrospective application of the Regulation, 2014 is not available herein to
be raised.
39. This Court, after having discussed the factual aspect with the legal
position has gone across the order passed by the learned Single Judge
wherein the consideration has been given regarding the rule of seniority as
available under Regulation, 2014, i.e., Schedule IV(5) and on its
consideration, the learned Single Judge has refused to interfere with the
decision of fixation of seniority since the appellant in the process of
selection has obtained 59.74 marks while the respondent no.4 has
obtained 67.4 marks.
40. The learned Single Judge has also considered that based upon the marks
secured by both the appellant and the respondent no.4, merit list was
prepared in which the respondent no.4 was placed at serial no.1 while the
appellant/writ petitioner has been placed at serial no.2.
41. The learned Single Judge, by taking into consideration the principle for
deciding the seniority as available under Schedule IV(5) wherein the
seniority is to be decided by the order of merit position in which they
were selected for appointment, came to the conclusion that the seniority
was fixed of the appellant keeping her below the respondent no.4, the
same has not been faulted with.
42. This Court, on the basis of the discussion made hereinabove, is of the
view that while reaching to such conclusion, the learned Single Judge has
committed no error.
43. Accordingly, the instant appeal fails and stands dismissed.
44. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Navneet Kumar, J.) (Navneet Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 11/10/2023
Saurabh/-
N.A.F.R.
