Uttarakhand High Court

WPSB/115/2021 on 12 April, 2021

                                                     RESERVED JUDGMENT


       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                            AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


          WRIT PETITION (S/B) No. 115 OF 2021

                  JUDGMENT RESERVED     : 18th MARCH, 2021
                  JUDGMENT DELIVERED : 12th APRIL, 2021



 Between:

 Dr. Dharmendra Kumar Shahi.
                                                              ...Petitioner

 and


 Board of Management and another.

                                                         ...Respondents

Counsel for the petitioner. : Mr. S.S. Yadav, learned counsel.

Counsel for the respondents. : Mr. Ramji Srivastava, learned counsel for the respondents.

The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

Aggrieved by the order dated 22.02.2021

passed by the Board of Management, D.A.V. P.G. College

(respondent no. 1), the petitioner, Dr. Dharmendra

Kumar Shahi, has approached this Court.

2. Briefly stated, the facts of the case are that in

2000 the petitioner was appointed as the Associate

Professor (Geography) by the Board of Management,

D.A.V. P.G. College, the respondent no. 1. Meanwhile,

the Jawahar Lal Nehru University (for short the "JNU")

advertised a vacancy for the post of Associate Professor,

in the Centre for Russian and Central Asian Studies,

School of International Studies at the University. Since

the petitioner was eligible for the said post, he sought the

permission of respondent no. 1, and of the Principal,

D.A.V. College, the respondent no. 2. On 05.08.2019, an

NOC was issued in his favour. The petitioner went

through the selection process with the JNU. On

11.11.2020, the JNU offered him appointment to the post

of Associate Professor. The petitioner accepted the

appointment offer by his letter dated 13.11.2020. By

letter dated 16.11.2020, the Registrar (Academics), JNU

directed the petitioner to join the Centre for Russian and

Central Asian Studies, School of International Studies

within a period of four months. The petitioner was also

informed that, in case the JNU does not hear from him

about his accepting the offer of appointment, it will be

deemed that he is no longer interested.

3. The petitioner claims that while he is eager to

join the Centre for Russian and Central Asian Studies,

School of International Studies at JNU, he still wants to

retain his lien over his post as an Associate Professor with

respondent nos. 1 and 2. Therefore, on 18.11.2020, on

18.01.2021 and on 02.02.2021, he has repeatedly

represented to respondent nos. 1 and 2 that they should

permit him to take one year's leave without pay, and

permit him to join the JNU. Moreover, they should permit

him to retain his lien on the post of Associate Professor

with respondent nos. 1 and 2. By order dated

22.02.2021, the petitioner's request, for issuing of the

relieving order on the basis of the NOC issued by the

competent authority, has been declined by respondent

no. 1. The grievance of the petitioner is that, although

the respondents had granted an NOC, they are not willing

to grant leave without pay for one year to him so that he

can join the JNU. Hence, the present writ petition before

this Court.

4. Mr. S.S. Yadav, the learned counsel for the

petitioner, has raised the following contentions before this

Court :-

Firstly, that on 26.12.2013, the Ministry of

Personnel, Public Grievances and Pensions (Department

of Personnel & Training), Government of India had issued

an Office Memorandum dealing with resignation, and lien

to be retained by the government employees. Clause 1

of the said Office Memorandum defined the term "lien".

Clause 3 defined the term "lien on a post". Clause (5)

dealt with "retention of lien for appointment in another

Central Government Department / Offices / State

Government". According to the learned counsel, "if a

permanent employee is selected, on the basis of his

application, for posts in other Central Government

Department / Offices / State Government, his lien may be

retained in the parent department for a period of two

years. If the employee concerned is not permanently

absorbed within a period of two years from the date of his

appointment in the new post, he should immediately, on

expiry of the period of two years, either resign from the

service, or revert to his parent cadre. An undertaking to

abide by this condition may be taken from him at the

time of forwarding of his application to other

departments/offices. The Office Memorandum dated

26.12.2013 has been reiterated in the Office

Memorandum dated 27.08.2018 issued by the Ministry of

Personnel, Public Grievances and Pensions, (Department

of Personnel & Training), Government of India. Thus,

according to the learned counsel, since the petitioner had

applied to JNU, and since he would be on probation for a

period of two years at JNU, under Clause 5 of the said

Office Memorandum, he can retain his lien with

respondent nos. 1 and 2 for a period of two years.

Despite the fact that he has a right to continue his lien

with respondent nos. 1 and 2, the respondents have

denied him the right to retain his lien in his parent

department.

Secondly, since the respondents had issued an

NOC in favour of the petitioner, they are not justified in

refusing to relieve the petitioner from the College.

Moreover, they are unjustified in declining to permit the

petitioner to retain the lien on the post of Associate

Professor.

Thirdly, relying on the case of State of

Rajasthan and another v. S.N. Tiwari and others,

[(2009) 4 SCC 700], the learned counsel has pleaded

that the lien of an employee is terminated from previous

post when he is appointed substantively on another post,

and acquires lien on that post. Since the petitioner has

not acquired his lien on the post of Associate Professor at

the JNU, he has a right to continue to hold his lien on his

present post with the respondent nos. 1 and 2.

Therefore, the respondents are not justified in denying

the petitioner the right to retain his lien on the present

post.

Lastly, in a similar situation, which had

occurred in the Chaudhary Charan Singh University,

Meerut, where Professor Rajeev Sijaria was also

appointed by JNU, the Vice-Chancellor of the said

University had permitted Professor Rajeev Sijaria to

retain his lien for one year. Therefore, the learned

counsel submits that in order to maintain equality, the

same benefit should have been extended by the

respondents to the petitioner.

5. On the other hand, Mr. Ramji Srivastava, the

learned counsel for the respondents, has raised the

following counter-contentions before this Court :-

Firstly, the Office Memorandum dated

26.12.2013 is inapplicable to the respondents, and to the

petitioner. For, the petitioner is neither a Central

Government employee, nor a State Government

employee. In fact, the petitioner's service conditions are

governed by the First Statute of the HNB Garhwal

University, which were made under the U.P. State

Universities Act, and were made applicable to the State of

Uttarakhand. Therefore, the benefit provided to a

Government employee, Central or State, cannot be

claimed by the petitioner as of right.

Secondly, the NOC dated 05.08.2019 was

issued by the Principal of the College, respondent no. 2.

However, as the appointing authority was the

Management Committee, the Principal was not authorised

to issue such an NOC. Since an illegality has been

committed by the Principal, already departmental action

is being taken against the Principal. Moreover, the NOC

issued merely stated that "the institution/organization

has no objection to the candidature of the applicant being

considered for the post of Professor / Associate Professor

in JNU." Therefore, the NOC was limited only with regard

to the consideration of the petitioner's candidacy for the

post of Associate Professor in JNU. There was no

commitment made by respondent no. 1, the Management

Committee, that it will permit the petitioner to leave the

College, and/or permit the petitioner to retain his lien on

the post of Associate Professor in the College.

Thirdly, considering the fact that there is lack

of faculty in the College, and considering the interest of

the students, the Management had already decided that

any faculty member, who seeks an appointment on the

same post in another educational institution, would not

be granted the permission to leave the institution, or to

retain his lien with respondent nos. 1 and 2. Keeping in

mind the interest of the students, respondent no. 1 is

well justified in declining the request of the petitioner.

Fourthly, the selection of the petitioner in the

JNU is a direct recruitment for the post of Associate

Professor. Once selected, if the petitioner is desirous of

joining the JNU, he cannot claim that he has a right to

retain his lien with the College. For, the petitioner cannot

be permitted to ride on two boats simultaneously : to

retain his lien on the post of Associate Professor in the

College, and yet to join another employer, and to

discharge his duties as an Associate Professor with the

University.

Lastly, the case of S.N. Tiwari and others

(supra) is distinguishable on the factual matrix. For, the

said case dealt with deputation. Whereas, the petitioner

is not going to JNU on deputation from the College.

Hence, the petitioner's reliance on the said case-law is

highly misplaced.

6. Heard learned counsel for the parties, perused

the impugned order, and examined the record submitted

by both the parties.

7. The issue before this Court is whether the

petitioner can claim the right to retain his lien on the post

of Associate Professor in the College especially when he

has been selected by JNU, or not?

8. Lien represents the right of an 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 employees who are

confirmed in the post/service/cadre of entry, or who have

been promoted to a higher post, and have completed the

probation where it is so prescribed.

9. According to service jurisprudence, an

employee, who has acquired a lien on a post, retains a

lien on the said post : (a) while performing the duties of

the said post; (b) while on foreign service, or holding a

temporary post or officiating in another post; (c) while on

leave; (d) while under suspension. However, ordinarily a

person cannot claim the right to hold a lien under his old

employer, once he has been selected by a new employer,

unless the relevant Rules so provide. In case of fresh

selection, he must sever his employer-employee

relationship with the old employer. An employee cannot

be permitted to ride on two boats simultaneously, unless

the Rules so provide. Therefore, the petitioner is

unjustified in claiming the he either has a civil right, or a

fundamental right, to continue his lien on the post of

Associate Professor with the respondents.

10. Needless to say, the petitioner is not a

Government employee, Central or State. But is an

employee of the College run by the Management

Committee. The Management Committee is a Society.

Thus, the petitioner is an employee of the Society, and

not of the Government. Hence, both the Office

Memorandums dated 26.12.2013 and 27.08.2018 are

inapplicable to the present case. Therefore, the

petitioner's reliance on the said Office Memoranda is

highly misplaced. Thus, the petitioner does not derive

any benefit from the said Office Memoranda.

11. The petitioner's reliance on the NOC is

unsustainable. For, a bare perusal of the NOC clearly

reveals that, through the NOC, the respondents had

merely stated that they have no objection if the

candidacy of the petitioner were considered for the post

of Associate Professor in JNU. Through the said NOC,

they did not make any commitment that the petitioner

would be permitted to leave the College, or that he will

be permitted to retain his lien on the post of Associate

Professor in the College. The NOC merely permitted the

petitioner to undergo the selection process initiated by

JNU. Therefore, the grant of NOC does not act as an

estoppel against the respondents.

12. The case of S.N. Tiwari and others (supra) is

distinguishable on factual matrix itself. For, in the said

case, Mr. S.N. Tiwari, the respondent, was initially

appointed as Investigator Grade-II in the Department of

Economics and Industrial Surveys of the Government of

Rajasthan. He joined his duty on 27.04.1959. However,

subsequently the employees of the Department were

declared as surplus. They were sent to work in the

Directorate of Medical and Health Services, Jaipur. On

03.12.1980, while the respondent was working as a

Statistical Inspector under the Medical and Health

Department, he was appointed on purely urgent

temporary basis as a homeopathic doctor under the ESI

Scheme. The respondent continued with the ESI

Corporation. Vide letter dated 05.04.1991, the

Directorate of Economics and Statistics Department

addressed a letter to the Director of the ESI Corporation,

Jaipur requiring it to obtain the respondent's option as to

whether he wanted to return back to the services of the

said Department, or to be made permanent in the ESI

Corporation. The respondent exercised his option that he

wanted to continue in the Department, and wanted the

lien to be continued in the said Department. Meanwhile,

the respondent also filed two different Writ Petitions

before the Hon'ble Rajasthan High Court, namely Writ

Petition No. 4832 of 1991, wherein he prayed that the

Health Department should be directed not to send him

back to his parent department, and Writ Petition No.

1663 of 1997, wherein he prayed that the Director of the

Directorate of Economics and Statistics Department

should be directed to consider the respondent's case for

promotion against the vacancies from 1964 and onwards,

and to give him all the promotions, seniority, financial

benefits, pay-fixation, etc. from the date his juniors were

granted the said benefits. Subsequently, he did not press

the first Writ Petition, namely Writ Petition No. 4832 of

1991, but contended that, since he was temporarily

appointed as a Homeopathic Doctor in the Medical and

Health Services Department, he continued to hold his lien

with the Directorate of Economics and Statistics

Department. The Hon'ble Rajasthan High Court

concluded that the respondent continued to hold his lien

in the Directorate of Economics and Statistics Department

as he was temporarily appointed in the Medical and

Health Department. Aggrieved by the order passed by

the Rajasthan High Court, the State of Rajasthan filed a

SLP before the Hon'ble Supreme Court. The Hon'ble

Supreme Court noted the fact that there was no

controversy whatsoever that the respondent was

appointed on permanent basis in the Directorate of

Economics and Statistics Department initially, and

thereafter sent to work in the Medical and Health

Department on urgent temporary basis for a period of six

months. Thus, he was sent on deputation. Since he was

sent on deputation, he continued to retain his lien in his

parent department. It is in these circumstances that the

Hon'ble Supreme Court opined as under :-

"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."

13. However, the present case is not a case of

deputation. For, the petitioner is not being sent on

deputation from the College to JNU. In fact, it is a case

of direct recruitment of the petitioner, on the post of

Associate Professor, by JNU. Therefore, the petitioner's

reliance on the case of S.N. Tiwari and others (supra)

is highly misplaced.

14. The petitioner is equally unjustified in claiming

that, since the Chaudhary Charan Singh University,

Meerut had permitted Professor Rajeev Sijaria to retain

his lien in the post of Professor while he joined the JNU,

maintaining the equality, the same benefit should also be