The Housing And Urban Development ... vs S.N. Parasuramegowda
2021 Latest Caselaw 2968 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF JULY, 2021

                       PRESENT

       THE HON'BLE MR. JUSTICE ARAVIND KUMAR

                         AND

      THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA

              W.P. NO.55805/2014 (S-CAT)

BETWEEN:

THE HOUSING AND URBAN
DEVELOPMENT CORPORATION LIMITED
(A GOVT OF INDIA ENTERPRISES)
HUDCO BHAVAN, INDIA HABITAT CENTRE
LODHI ROAD, NEW DELHI - 110 003

ALSO HAVING ITS BANGALORE
REGIONAL OFFICE AT:
MANIPAL CENTRE, 7TH FLOOR
UNIT NO. 703 & 704
NORTH BLOCK, NO. 47
DICKENSON ROAD
BANGALORE - 566 042.

                                           ...PETITIONER
(BY SRI. GANAPATHI HEGDE, ADVOCATE
FOR DUA ASSOCIATES)

AND:

1.     S.N. PARASURAMEGOWDA
       S/O NARASEGOWDA
       AGED ABOUT 47 YEARS
       WORKING AS GENERAL MANAGER
       (SOCIAL DEVELOPMENT)
       (UNDER ORDER OF RELIEF)
       RAJIV GANDHI RURAL HOUSING
       CORPORATION LIMITED
       NO.1,2,3,4,I.T PARK
                               2



     1ST FLOOR, 4TH MAIN ROAD
     RAJAJINAGAR INDUSTRIAL AREA
     RAJAJINAGAR, BANGALORE - 560 010
     & RESIDING AT NO. 28, H.V. HALLI
     NEAR PADMAVATHI MEENAKSHI
     KALYANA MANTAP
     RAJARAJRESHWARINAGAR
     BANGALORE - 560 098.

2.   THE STATE OF KARNATAKA
     REPRESENTED BY ITS PRINCIPAL
     SECRETARY TO GOVERNMENT
     VIKASA SOUDHA
     BANGALORE - 560 001.

2.   THE RAJIV GANDHI RURAL
     HOUSING CORPORATION LIMITED
     NO.1,2,3,4, I T PARK, 1ST FLOOR
     4TH MAIN ROAD, RAJAJINAGAR
     INDUSTRIAL AREA
     RAJAJINAGAR
     BANGALORE - 560 010.
                                        ...RESPONDENTS
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SRI. R. BADRINATH, ADVOCATE FOR C/R-1;
SRI. N. BALAJI, A.G.A. FOR R-2;
SRI. M. SUMANA BALIGA, ADVOCATE FOR R-3 -ABSENT)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED ORDED DATED JULY 31, 2014
PASSED   BY    THE   HON'BLE      TRIBUNAL   IN   ORGINAL
APPLICATION NO.350/2014 (ANNX-A)


     THIS     PETITION   HAVING     BEEN     HEARD   AND
RESERVED,     COMING     ON   FOR PRONOUNCEMENT       OF
ORDERS THIS DAY ARAVIND KUMAR J, MADE THE
FOLLOWING:
                                3




                          ORDER

Order dated 31.07.2014 passed by the Central

Administrative Tribunal, Bengaluru Bench (for short

'tribunal') in O.A.No.350/2014 is under challenge in

this writ petition, whereunder, the application filed by

respondent herein (hereinafter referred to as the

'applicant') came to be allowed in part by quashing the

order dated 27.12.2013 (Annexure-A25) by directing

third respondent therein i.e., writ petitioner (for short

'HUDCO") to continue the services of the applicant.

2. Short question that arises for our

consideration in this writ petition is:

"Whether HUDCO is justified in refusing to accept duty joining report dated 16.12.2013 submitted by the applicant vide communication dated 27.12.2013 (Annexure-A25)?

BRIEF BACKGROUND OF THE CASE:

3. The applicant joined the services of HUDCO

as Assistant Appraisal Officer in the year 2001 and was

promoted as Appraisal Officer on 02.03.2008. The post

of Appraisal Officer was re-designated as Manager and

applicant was posted to work as Manager (Projects) Goa

Development Office under the Bangalore Regional Office.

State of Karnataka by communication dated 20.04.2011

requested HUDCO to spare the services of applicant on

deputation for suitable and equivalent post in third

respondent - Rajiv Gandhi Rural Housing Corporation

Limited (for short 'Rajiv Gandhi Corporation'). In

response to the said communication, HUDCO by letter

dated 27.06.2011 informed the State of Karnataka that

services of the applicant cannot be spared on deputation

basis to Rajiv Gandhi Corporation. Thereafter, State of

Karnataka by communication dated 21.10.2011

informed HUDCO about the decision taken by Rajiv

Gandhi Corporation to obtain services of the applicant

on deputation and absorption basis in the post of

General Manager (Social Development). The applicant

by letter dated 01.11.2011 (Annexure-A7) gave his

consent for immediate absorption in Rajiv Gandhi

Corporation. Subsequently, by Inter Office Memo dated

15.11.2011 (Annexure-A-9) the applicant submitted his

technical resignation to the post of Manager (Projects)

with effect from 15.11.2011 (AN) for being absorbed by

Rajiv Gandhi Corporation. HUDCO by its Office Order

No.36 dated 25.11.2011 (Annexure-A10) approved the

"technical resignation" tendered by the applicant and

relieved him to join the services of Rajiv Gandhi

Corporation on "deputation and absorption basis".

4. Applicant having worked from 25.11.2011 to

07.12.2013 in Rajiv Gandhi Corporation was informed

by the said Corporation by Office Order dated

13.12.2013 (Annexure-A24) of having relieved him with

effect from 07.12.2013 from the post of General Manager

(SD). Hence, applicant submitted his duty joining report

on 16.12.2013 to HUDCO which was not accepted and

by impugned communication dated 27.12.2013

(Annexure-A25) and applicant was informed that he had

resigned from HUDCO and he had been already relieved

from the services in HUDCO and as such, there was no

reason for him to join for duty at HUDCO after getting

relieved from Rajiv Gandhi Corporation.

5. Being aggrieved by the said order, applicant

approached the tribunal for quashing of the order dated

13.12.2013 (Annexure-A24) whereunder he had been

relieved of his duties from Rajiv Gandhi Corporation and

also the communication dated 27.12.2013 (Annexure-

A25) which was issued by HUDCO to the applicant

refusing his request to permit him to join for duty.

Insofar as first prayer namely, for quashing of the

relieving order dated 13.12.2013 (Annexure-A24) issued

by Rajiv Gandhi Corporation, tribunal held that said

prayer was not maintainable primarily on the ground

that tribunal does not have jurisdiction to adjudicate the

service disputes of the employees who are on deputation

and absorption to an organisation in the absence of a

notification issued under Section 14(2) of the

Administrative Tribunals Act, 1985 covering such

organisation. In the light of direction issued by the

tribunal to HUDCO to continue the services of the

applicant at HUDCO by quashing the communication

dated 27.12.2013 (Annexure-A25). Hence, HUDCO is

before this court.

6. We have heard the arguments of Sri

Ganapathi Bhat, learned Advocate appearing for

petitioner, Sri P.S.Rajgopal, learned Senior counsel

appearing for first respondent, Sri N Balaji, learned

Additional Government Advocate for second respondent

and Smt.Sumana Baliga, learned Advocate appearing for

third respondent.

7. It is the contention of Sri Ganapathi Hegde,

learned Advocate appearing for petitioner that tribunal

committed a serious error in arriving at a conclusion

that "technical resignation" submitted by the applicant

was not a resignation simplicitor. He would draw the

attention of the court to the communication dated

21.10.2011 forwarded by the State Government to

HUDCO whereunder they had sought for applicant being

deputed to the Rajiv Gandhi Corporation for being

absorbed and also the communication preceding the

same. He would also draw the attention of the court to

the resolution passed in the meeting of the Rajiv Gandhi

Corporation held on 01.10.2011 whereunder Rajiv

Gandhi Corporation had resolved to obtain services of

the applicant on deputation and absorption basis, as it

was in the interest of said Corporation and had sought

approval of the Government to depute the applicant to

Rajiv Gandhi Corporation for being absorbed into its

services with necessary relaxation. He would also submit

that applicant who had submitted his resignation by

Inter Office Memo dated 15.11.2011 (Annexure-A9) has

never stated that he is submitting his technical

resignation to the post of Manager (Projects) from

HUDCO on absorption basis but being fully aware of the

fact that he should be relieved of his services from

HUDCO and for joining duty at Rajiv Gandhi

Corporation, he had tendered his resignation. He would

submit that applicant never intended to come back to

HUDCO and he clearly meant by his resignation letter to

severe all his ties with HUDCO.

7.1) He would further contend that HUDCO

acting in a bonafide manner and based on the resolution

of the Rajiv Gandhi Corporation dated 01.10.2011

whereunder it had been resolved to approve deputation

of the applicant to its Corporation to be absorbed into its

services with necessary relaxation to Cadre &

Recruitment Rules and also subject to approval of the

Government, had relieved the applicant on 25.11.2011

and this fact was not noticed by the tribunal in proper

perspective. He would further contend that applicant

had given up his right to lien over the post in HUDCO

pursuant to his resignation submitted on 15.11.2011

and thereafter had reported to Rajiv Gandhi

Corporation. He would submit that HUDCO would not

obtain resignation from its employees when they

intended to go on deputation basis and on account of

the applicant having submitted his resignation in

HUDCO for being relieved and to be absorbed by Rajiv

Gandhi Corporation, he was relieved of his duties in

HUDCO and the technical resignation obtained was only

for the purpose of Provident Fund contribution, gratuity,

etc., and not for reporting back to duty at HUDCO. He

would contend that all the dues payable to the applicant

had been paid and had been relieved of his duties at

HUDCO and as such, his reporting back to HUDCO did

not arise. Hence, he contends that tribunal committed a

serious error in issuing direction to HUDCO. He would

submit that when tribunal has held that first prayer was

not maintainable, it ought to have dismissed the

application in toto by leaving open the issue to be

agitated by the applicant before appropriate forum and

having held that the application insofar as first prayer

was not maintainable, it ought to have dismissed the

application in its entirety and alternate prayer ought not

to have been granted. Hence, he prays for writ petition

being allowed and O.A.No.354/2014 being dismissed.

8. Per contra, Sri P S Rajgopal, learned Senior

counsel appearing for first respondent supports the

order passed by the tribunal to the extent of setting

aside the communication dated 27.12.2013 (Annexure-

A25) and the direction issued to HUDCO to continue the

services of the applicant at HUDCO and finding recorded

by the tribunal that HUDCO was not justified in not

accepting the duty report submitted by the applicant.

However, he would hasten to add that tribunal

committed a serious error in arriving at a conclusion

that first prayer sought for in the application was not

maintainable by contending it is an erroneous finding

since a Government servant or civil servant who is on

deputation to a Corporation or authority and said

Corporation or authority though not amenable to

jurisdiction of the tribunal by virtue of employee being a

civil servant, he/she would be entitled to maintain the

application before tribunal and in support of his

submission, he has relied upon the following judgments:

(1) ILR 1989 KAR 816 H.HOMBAIAH vs ZILLA PARISHAD

(2) (1998)5 SCC 454 MAJOR M.R.PENGHAL vs UNION OF INDIA AND OTHERS

8.1) Insofar as merits of the case is concerned, by

supporting the impugned order of the tribunal, he would

contend that HUDCO vide paragraph 10 of its statement

of objections has admitted that resignation submitted by

the applicant was a technical resignation and

Fundamental Rule 13 (for short 'FR' )would enable the

applicant to have a lien over the post in HUDCO till his

actual absorption. He would also draw the attention of

the court to FR 14 to contend that expression and

language employed therein clearly mandates that lien

cannot be given up even by consent and lien would

cease to operate only on absorption and till the employee

gets lien over the absorbed post, he would continue to

have a lien over the post of which he was relieved. He

would also submit that communication dated

18.05.2013 (Annexure-A21) whereunder the applicant

had undertaken to forego past service/seniority

rendered at HUDCO would be against FR 13 and FR 14.

He would also submit that technical resignation should

be read with the communication dated 18.06.2013 and

not in isolation. He would further submit that

resignation submitted by the petitioner is not a regular

resignation but a technical resignation and as such,

applicant's right to have lien over the post at HUDCO

would not get extinguished.

In support of his second limb of argument, he has

relied upon the following judgments:

(1) (2009)4 SCC 700 STATE OF RAJASTHAN AND ANOTHER vs S.N.TIWARI AND OTHERS

(2) ILR 2006(1) DELHI 989 R.C.AGGARWAL vs D.T.T.D.C. LTD. AND OTHERS

DISCUSSION AND FINDING ON THE POINT FORMULATED HEREINABOVE

9. Having heard the learned Advocates

appearing for parties and on perusal of the records, it

would clearly emerge there from that there is no dispute

to the facts as narrated by the parties in their respective

pleadings. However, it would suffice to recapitulate

certain facts at the cost of repetition from the stage of

Inter Office Memo dated 14.11.2011 (Annexure-A8)

which has emanated from HRMA wing, Corporate Office,

New Delhi to the Executive Director, Bangalore namely,

from HUDCO, whereunder it is clearly stated that

competent authority has accorded approval for

"deputation and absorption" of applicant to Rajiv Gandhi

Corporation and as such, said authority has been called

upon by the Executive Director, Bengaluru to obtain

technical resignation from the applicant. Pursuant to

same, applicant by Inter Office Memo addressed to the

General Manager, HRD, HUDCO, New Delhi has

submitted his technical resignation to the post of

Manager (Projects) at HUDCO whereunder he has clearly

stated that he has submitted his technical resignation.

On submission of technical resignation, HUDCO, by

Office Order No.36 dated 25.11.2011 (Annexure-A10)

has relieved the applicant from HUDCO to enable him to

join Rajiv Gandhi Corporation and in the said Office

order, it is clearly stated as under:

"Accordingly, Sri S N Parasurame Gowda, Manager (Projects), Goa Development Office/Bangalore Regional Office is hereby relieved from Bangalore Regional office on 25/11/2011 (A/N) to enable him to report at M/s.Rajiv Gandhi Rural Housing Corporation Limited, Bangalore on deputation and absorption basis.

Sd/-

Executive Director"

(Emphasis supplied by us)

10. Pursuant to the aforesaid relieving order

having been issued by HUDCO applicant reported to

duty at Rajiv Gandhi Corporation by submitting duty

joining report vide dated 28.11.2011 (Annexure-A11)

whereunder he has clearly stated in an unequivocal

terms to the following effect:

"With reference to above subject, I am herewith reporting for duties on forenoon of 28.11.2011 on deputation. I may kindly be given reposting order and oblige."

(emphasis supplied by us)

11. It may also be apt and appropriate to note at

this juncture itself that approval accorded by the

Government of Karnataka by its communication dated

08.12.2011 (Annexure-A12) whereunder it has

specifically and emphatically made clear that approval is

accorded for taking services of the applicant to Rajiv

Gandhi Corporation only on deputation basis and as

such, it has called upon the Managing Director of Rajiv

Gandhi Corporation to obtain an undertaking from the

applicant. Accordingly, applicant has submitted his

undertaking. In fact, the communication dated

08.12.2011 (Annexure-A14) addressed to the applicant

by Rajiv Gandhi Corporation would clearly indicate that

applicant was taken in to services of Rajiv Gandhi

Corporation on "deputation basis" only. On account of

Cadre and Recruitment Rules of Rajiv Gandhi

Corporation not providing for absorption of an employee

on permanent basis, there were exchange of

communication in this regard between Rajiv Gandhi

Corporation and State of Karnataka. On account of

petitioner not having been absorbed in Rajiv Gandhi

Corporation and the period of deputation having been

fixed as two years, applicant was relieved of his services

on completion of two years period ie., on 07.12.2013 and

as such, he was relieved from the post of General

Manager (Social Development) with effect from

07.12.2013 vide office order dated 13.12.2013

(Annexure-A24). It is in this background, applicant

submitted his duty joining report on 16.12.2013 to

HUDCO for continuing his services at HUDCO.

However, same was not accepted and by communication

dated 27.12.2013 (Annexure-A25), applicant was

informed that he has already resigned from the services

of HUDCO and as such, there was no reason for him

being taken to duty.

12. Being aggrieved by this action of HUDCO,

applicant had initially filed writ petition challenging the

order of being relieved as well as refusal of HUDCO to

take him to duty and said writ petition came to be

withdrawn on 10.02.2014 and thereafter application in

O.A.No.350/2014 was filed on 17.02.2014 before

tribunal. Though issue relating to the maintainability of

the application before the tribunal was seriously

questioned by the petitioner and same having been

partly accepted by tribunal, is now questioned by the

applicant by contending that tribunal was not justified

in rejecting his first prayer, answering the same would

only be academic in nature for two reasons:

13. First and foremost reason being the first

prayer sought before the tribunal by the applicant was

for quashing of the order dated 13.12.2013 passed by

second respondent - Rajiv Gandhi Corporation

(Annexure-A24) relieving the applicant from the post of

General Manager (Social Development) as applicant had

since been absorbed by the said Corporation with effect

from 31.07.2014; secondly, in view of the law laid down

by Hon'ble Apex Court in the matter of MAJOR

M.R.PENGHAL vs UNION OF INDIA reported in AIR

1999 SC 543, whereunder it has been held in the facts

obtained in the said case that appellant therein who was

appointed by the Postal Department had been offered

appointment to work in the Army Postal Services on the

condition that he would remain a civil employee even on

deputation to the Army which came to be rejected and

had continued to serve in the Army as a permanent

employee of postal department in which he had been

appointed and in this background it came to be held

that appellant therein had a lien over the post to which

he has been appointed and as such, it was held that

said employee had lien with the Post and Telegraphic

Department though working on deputation in the Indian

Army. It has been further held by Hon'ble Apex Court to

the following effect:

"As stated above, although the appellant was selected by the Postal Department for appointment to the post of clerk, but he could not be given any appointment due to want of vacancy in the unit of his choice. Under such circumstances, the appellant was offered an appointment to work as a clerk in the Army Postal Service on the condition that he would remain a civilian employee on deputation in the Army. The appellant accepted the aforesaid offer and agreed to the conditions that he would revert to the civil appointment in Posts and Telegraphs Department on his release from the Indian Army Postal Service. With these

conditions, the appellant continued to serve in the Army as a permanent employee of the Posts and Telegraphs Department on deputation and was promoted up to the rank of a Major in the Indian Army. However, the appellant was only given a temporary commission and he worked as such till the date when his relinquishment was ordered. The aforesaid facts clearly demonstrate that the appellant has a lien with the Posts and Telegraphs Department working on deputation in the Indian Army Postal Service and at no point of time the appellant became a full-fledged army personnel. Since the appellant was not a member of the Armed Forces and continued to work as a civilian on deputation to the Army Postal Service, his case was covered under Section 14(1)(a) of the Administrative Tribunals Act. In that view of the matter, the High Court was right in rejecting the writ petition filed by the appellant, whereas the Central Administrative Tribunal erroneously accepted the claim of the appellant that he is an army personnel. We, therefore, uphold the judgment and order of the High Court dismissing the writ petition filed by the appellant. Since the appellant while holding civil post was working in the Army Postal Service on deputation, the Central Administrative Tribunal had jurisdiction to entertain and decide the original application filed by the appellant. We accordingly set aside the order dated 31-1-1997 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, and remand the case to it to decide expeditiously Original Application No. 1647 of 1996 of the appellant, on merits.

14. A Division Bench of this Court in the matter

of H.HOMBAIAH vs ZILLA PARISHAD reported in ILR

1989 KAR 816 has held that irrespective of who passed

the order, the person affected, if he is a Government

servant holding a civil post under the Government, he

should move the appropriate tribunal for the relief. It

has been further held :

"2. We have heard Mr. H. Subramanya Jois, learned Counsel appearing for the appellant at length. It is his contention that the Chief Secretary being the Officer of the Zilla Parishad, which is a local authority, could not have suspended the petitioner pending enquiry against the alleged acts of misconduct and therefore, this Court has jurisdiction as Section 15(1) of the Act made provision for holding the actions of the State Government being questioned and not the action of other authorities answering to that description under the Constitution when there was no Notification under Sub- section (2) of Section 15 of the Act. We are not inclined to accept that argument having regard to the clear and unambiguous language employed in Section 15 read with Clause (b) of Sub-section (1). It is not the action of the Government which is liable to be questioned by the Tribunal in all cases. It is the grievance of the person who holds the post under the State, whether he is working in connection with the affairs of the State or he is on deputation to a local or other authority under the control of the State Government or of any Corporation under the control of the State Government that is to be questioned. This becomes obvious by the unambluous language as we have noticed in Clause (b), which is as follows:-

"15(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) in relation to--

XX XX XX

b) all service matters concerning a person (not being a person referred to in Clause (c) of this sub-section or a Member, person or civilian referred to in Clause (b) of subsection (1) of Section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any Corporation."

(Underlining is by us)

Therefore, irrespective of who passed the order, we are of the view that the person affected, if he is a Government servant holding a civil post under the Government, he should move the appropriate Tribunal for relief.

The view taken by the learned Single Judge is therefore correct and this Writ Appeal is dismissed.

After we have dictated this order, Sri H. Subrahmanya Jois, Advocate, moved for a Certificate of Fitness to Appeal to the Supreme Court as the ground involves a substantial question of law of general

importance which is required to be decided by the Supreme Court. We do not think so, for the reason we have given in the order for dismissing the appeal. Petitioner is free to move the Supreme Court under Article 136 if the petitioner is so advised."

Thus, the issue about maintainability of the application

before the tribunal by an employee who is a civil servant

on deputation to a Corporation or authority, which

authority though would not fall within the jurisdiction of

Section 15(1) of the Administrative Tribunals Act, 1985,

the right of a civil servant would not extinguish such

jurisdiction of the tribunal or in other words, right of

such employee to knock the doors of tribunal for

redressal of his grievance would not get extinguished.

15. Apart from the aforesaid conclusion arrived

at by us, in the facts obtained in the instant case, we

notice that subsequently, Cadre and Recruitment Rules

of Rajiv Gandhi Corporation came to be amended and

the applicant came to be absorbed by the Corporation

with effect from 31.07.2014. Hence, the incidental

question that would arise would be as to what would be

the status of the applicant for the period from the date of

he being relieved from Rajiv Gandhi Corporation i.e.,

07.12.2013 till he was absorbed into services by said

Corporation i.e., till 31.07.2014?

16. In this regard, when rival contentions raised

is examined, it revolves around as to whether services of

the petitioner after having been relieved by HUDCO on

25.11.2011 he had lien over his post at HUDCO. In this

regard, it would be necessary to note the extant Official

Memorandums governing the service conditions of

employees of the Government of India are concerned, as

has been made applicable mutatis mutandis to the

employees of HUDCO on which there is no dispute. In

fact, Sri Ganapathi Hegde, learned Advocate appearing

for petitioner has fairly admitted that Fundamental

Rules which govern the service conditions of the Central

Government employees has also been adopted by

HUDCO. Under the Official Memorandum dated

26.12.2013, issue relating to lien and technical

resignation has been clearly defined. The expression of

'termination of lien' has been explained in clause 9 and

it reads:

"9. 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 upon a permanent post. Unless his lien is transferred, a Government servant holding substantively a permanent post retains lien on that post."

A plain reading of the above clause would clearly

indicate that a Government servant's lien on a post

under no circumstances can be terminated even with his

consent if the result would be leaving him without a lien

upon a permanent post. To put it differently, a

Government servant having a lien in a post even on

being absorbed in to a permanent post, his lien over the

post held by him would under no circumstances be

terminated in the event of the post to which he has been

absorbed does not vest him with a lien to the said post.

The revised version of "Hand Book for Personnel Officers,

2013" which was governing then would indicate that

issue relating to leave and technical resignation has

been dealt under Chapter 37. A perusal of the same

would indicate that Government employee would hold

lien of a regular post, whether permanent or temporary,

either immediately or on the termination of the period of

absence. The expression 'lien' has been explained under

clause 37.1 as:

"37.1 Lien represents the right/title of a Government employee 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 post/service/cadre is enjoyed by all officers who are confirmed in the post/service/cadre 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. "

Clause 37.5.1 describes 'technical resignation' as

under:

"37.5.1 A resignation from the service or post entails forfeiture of entire past qualifying service. The exception is technical resignation which does not result in forfeiture of past service."

Fundamental Rules 13 & 14 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; and

(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 immediately 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.]

F.R. 14. [*omitted]

[F.R. 14-A (a) Except as provide in Rule 13 and clause (d) of this rule, a Government servant's lien on a post may in no circumstances by terminated, if the result will be to leave him without a lien upon a regular post.

(b)      [*omitted]

[c]      [*omitted]





           [d]     A Government servant's lien on

a post shall stand termina-ted on his acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which he is borne.)

17. FR 13 enables the Government servant to

retain his lien on the post held by him till the date of his

absorption to a post or service outside his

service/cadre/post in the Government. FR 14 would

indicate that a lien cannot be given up even by consent.

FR 14-A(d) would clearly indicate that lien to a post

would get extinguished only on absorption and till such

absorption takes place, such employee would have lien

over the post held by him even in case of the employee

having been relieved and said lien will continue till he

gets lien over another post to which he may be absorbed.

In fact, clause 37.3.1 mandates retention of lien till

absorption and stipulates a period of two years from the

date of his appointment in the new post, such employee

immediately on expiry of the period of two years either

will have to resign from the service or revert back to his

parent cadre. Clause 37.3.2 would indicate that where

the Government servant is not confirmed within a period

of two years due to some reason such employee may in

exceptional cases be permitted to retain the lien in the

parent department/office for one more year.

18. Keeping these aspects in mind, when the

facts on hand are looked into, it would clearly indicate

that applicant on being relieved from HUDCO on

27.11.2011 had joined Rajiv Gandhi Corporation on

deputation and absorption basis and his services was

not permanently absorbed by Rajiv Gandhi Corporation

within a period of two years. In fact, only on the

undertaking given by the applicant on 08.12.2011 that

his services would be utilized by Rajiv Gandhi

Corporation on deputation basis, he was taken on board

of said Corporation. The terms and conditions of

deputation has been clearly explained in the

communication dated 09.12.2011 (Annexure-A15)

addressed to the applicant, which would indicate that

period of his (applicant's) deputation would be two years.

As such, on completion of period of deputation he was

relieved by Rajiv Gandhi Corporation by Office order

No.44/2013-14 dated 13.12.2013 with effect from

07.12.2013 and as such applicant submitted his duty

joining report at HUDCO on 16.12.2013 which came to

be turned down by HUDCO under the impugned

communication dated 27.12.2013 (Annexure-A25) on

the ground that he had already been relieved and as

such, he cannot be taken for duty. At this juncture, it is

to be clarified that in the Inter Office Memo dated

14.11.2011 (Annexure-A8) HUDCO has resolved to

obtain technical resignation of the applicant for

"deputation and absorption" to Rajiv Gandhi

Corporation. Even the relieving office order No.36 dated

25.11.2011 (Annexure-A10) extracted hereinabove would

clearly indicate that applicant was relieved from HUDCO

on 25.11.2011 and he ought to have reported at Rajiv

Gandhi Corporation on deputation and not on

permanent absorption basis. Even duty joining report

submitted by the applicant at Rajiv Gandhi Corporation

on 28.11.2011 would also clearly indicate that he had

reported for duty at Rajiv Gandhi Corporation on

deputation basis. Approval granted by the State

Government for petitioner being absorbed in Rajiv

Gandhi Corporation was also on deputation basis only.

In fact, petitioner has clearly admitted in its statement of

objections filed before the tribunal that technical

resignation dated 15.11.2011 submitted by the

applicant was approved by HUDCO on 25.11.2011 to

join Rajiv Gandhi Corporation on "deputation and

absorption basis". As such, contention raised by

HUDCO that resignation submitted by the applicant is

not a technical resignation but a resignation simplicitor

cannot be accepted and we are of the considered view

that finding recorded by the tribunal in this regard is in

consonance with extant Fundamental Rules.

19. Hon'ble Apex Court in the case of STATE OF

RAJASTHAN AND ANOTHER vs S.N.TIWARI AND

OTHERS reported in (2009)4 SCC 700) while

examining the issue relating to interpretation of the

expression 'lien' in Service Law has held, it means right

of a civil servant to hold the post substantively to which

he is appointed and lien of an employee is terminated

from the previous post when he is appointed

substantively on another post and acquires lien on that

post. By virtue of Fundamental Rule 13(e)(i) it cannot

be gain said by HUDCO that on technical resignation

tendered by applicant on 15.11.2011 he had lost his

right to have lien over the post held by him at HUDCO.

Hence, contention raised by learned Advocate appearing

for petitioner in this regard for the reasons aforestated

cannot be accepted and it stands rejected. Hence, we

answer the point formulated hereinabove in the negative

i.e., against petitioner-HUDCO.

Resultantly, we proceed to pass the following:

ORDER

(1) Writ petition is dismissed.

(2) Order dated 31.07.2014 passed by the

Central Administrative Tribunal,

Bangalore Bench in O.A.No.350/2015

stands affirmed except to the extent of

finding recorded by the tribunal that it

has no jurisdiction to examine the

legality of the order dated 13.12.2013

(Annexure-A24) in view of our

observation and findings recorded at

paragraphs 13 and 14 hereinabove.

(3) It is made clear that consequential

benefit which would flow from this order

shall be extended by the petitioner to

first respondent expeditiously and at

any rate, within a period of two

months from the date of receipt of copy

of this order.

(4) No order as to costs.

SD/-

JUDGE

SD/-

JUDGE

*sp