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KANCHAN LAL & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Kanchan Lal & Others v. State Of U.P. & Others - WRIT - A No. 9096 of 1999 [2004] RD-AH 1068 (7 October 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved/AFR

Civil Misc. Writ Petition No. 9096 of 1999

Kanchan Lal and others..................................... Petitioners.

Versus

State of U.P. through Secretary, Rajasva

Anubhag-4, Govt. of U.P., Lucknow and others.....Respondents

Hon'ble R.B. Misra, J.

Heard Sri Ashok Khare, learned Senior Counsel assisted by learned Counsel for the petitioners, and learned Standing Counsel for the State Government.

In this petition prayer has been made to quash the order dated 23.10.1998 passed by the Commissioner, Varanasi Division, Varanasi, whereby the claim of the petitioners for adjustment on respective posts and even to the lower posts in district administration of district Varanasi on the ground of lien was rejected.

The brief facts emerging from the pleadings and records are that the petitioner no.1 was initially appointed on 17.12.1996 and was confirmed on 18.06.1985 as Naib Nazir in Tahsil Chakia of district Chandauli (erstwhile part of district Varanasi) and is drawing salary in the pay scale of Rs.1200-2040. The petitioner no.2 was initially appointed on 25.11.1983 as Sahayak Wasil Baki Navis in Tahsil chandauli of district Chandauli (erstwhile district Varanasi) and is drawing salary in the pay scale of Rs.1200-2040. The petitioner no.3 was initially appointed on 30.11.1983 as Sahayak Wasil Baki Navis in Tehsil Chandauli of district Chandauli (erstwhile district Varanasi) in the pay scale of Rs.1200-2040. The petitioner no.4 was initially appointed as Revenue Clerk on 15.02.1977 and was confirmed on 18.06.1985 and was working in tehsil Chakiya, district Chandauli (erstwhile district Varanasi) in the same pay scale. Similarly, the petitioner no.5 was appointed on 30.11.1983 and was working as Assistant Wasil Baki Navis in tehsil Chandauli of district Chandauli (erstwhile district Varanasi) and was also drawing his salary in the pay scale of Rs.1200-2040. When the petitioners were appointed in tehsil Chakiya and Chandauli, both the tehsils were in district Varanasi and both the tehsils after creation of new district by notification dated 25.05.1997 were included in district Chandauli. After creation of a new district Chandauli the Board of Revenue vide circular letter No. 1157 dated 01.07.1995 indicated for consideration of the options for adjustment presented to the relevant authorities within 90 days, in pursuance to which the petitioners had presented their options before the relevant authorities for their adjustment in district Varanasi. In view of the lien claimed under Rule 14 of Fundamental Rules of Financial Hand Book Volume II Part II to IV when no decision was taken the petitioner filed Writ Petition No. 28286 of 1998 (Kanchan Lal and others Vs. State of U.P. and others) before this Court, however, after filing of the petition, the Commissioner by its order dated 23.10.1998 decided the representation of the petitioners rejecting their claim, mainly on the following grounds:-

(I) 70% of the employees/personnel of newly created district Chandauli belongs to district Varanasi and for lack of vacancies these employees of district Chandauli could not be adjusted in district Varanasi alone.

(II) As per comments of District Magistrte, Varanasi Sri Kanchan Lal and Sri Garib Ram (petitioner nos.1and 4 respectively) were permanent, whereas, other three petitioners were temporary employee in erstwhile district Varanasi, and all the petitioners were working in the scale of Rs.1200-2040, (revised pay scale Rs.4000-6000).

(III) Mr. Kanchan Lal, a confirmed Naib Nazir (II), Sadar, Vranasi in the scale of Rs. 1200-2040 (revised scale Rs.4000-6000) was permanent and having a lien in district Varanasi, however, in his place Sri Niwas Singh is working, as such, post is not vacant.  

(IV) Sri Garib Ram was also a confirmed employee in the scale of Rs.950-1500 (revised scale Rs.3050-4590) and was maintaining a lien in district Varanasi to the post of Revenue Clerk, however, on that post Sri Ashok Kumar (a scheduled caste employee) is working, as such, no vacancy is available.

(V) Other petitioners, namely, Shiv Shanker, Om Prakash Narain and Suresh Ram were temporary in the erstwhile district Varanasi and not on the permanent posts, as such, they can not be said to have lien against any permanent post.

(VI) No vacancy to any post in the scale of Rs. 1200-2040/- (revised scale Rs.4000-6000/-) is available in district Varanasi.

(VII) Sri Kanchan Lal and Sri Garib Ram, both working presently in the scale of Rs. 1200-2040/- in district Chandauli were shown in the seniority list of clerical cadre of district Candauli and the seniority list of clerical cadre of district Varanasi has been finalized.

(VIII) The remaining petitioners being temporary employee in the scale of Rs. 1200-2040/-, who are already in the promotional scale, can not be adjusted to the post of lower scale of Rs. 950-1500/- in district Varanasi in absence of vacancy.

(IX) From very initial stage the petitioners having been appointed in tehsil Chakiya and Chandauli being part of erstwhile district Varanasi have now acquired their respective status in the newly created district Chandauli.

(X) The seniority list of clerical cadre of district Chandauli has been finalized, where all the petitioners have been shown at respective places.

In view of the averments made in para-21 of the writ petition, 5 posts in the scale of Rs.1200-2040/-, namely, post of Senior Clerk, Stenographer, Suit Clerk, Naib Nazir and Wasil Baki Navis, were created in new tesil Pindra of district Varanasi. According to the petitioner, the averments of writ petition in respect of sanction of 5 new posts in the scale of Rs. 1200-2040/- of tehsil Pindra have not been controverted in para-7 of the counter affidavit, whereas, according to para-7 of the counter affidavit, in view of the letter dated 15.10.1998 of District Magistrate, Varanasi no post is vacant in the scale of Rs.1200-2040/-.

As contended for and on behalf of the petitioners in reference to the contentions made in para-26 of the writ petition that several persons working in the pay scale of Rs. 1200-2040 in district Varanasi have retired from service causing creation of substantive vacancies in the aforesaid scale, and the averments of para-26 of the writ petition that many persons working in the pay scale of Rs. 1200-2040 have retired causing creation of substantive vacancy have not been successfully controverted by the respondents, however, the same has also been denied by the respondents in para-10 of the counter affidavit.

According to the petitioners, when vacancies are available in the scale of Rs. 1200-2040/-, the action of the respondents in not considering the adjustment of the petitioners against the newly created posts in new tehsil Pindra of district Varanasi and also on the vacancies occurred after retirement of several persons in the scale of Rs. 1200-2040 is discriminatory and in violation of Article 14 of the Constitution. According to the petitioners, the options of the petitioners have been ignored without any rhyme or reason and the provisions of Rule-14 of Fundamental Rules have been misinterpreted and publication of list in the clerical cadre are meaning less so far as it relates to rejection of claim of the petitioners.

From the pleadings of the parties, following aspects require adjudication:-

(a) What would be the effect of the status of the petitioner by virtue of their initial appointment in tehsils Chakiya and Chandauli being erstwhile part of district Varanasi and when the place and tehsil above indicate were incorporated in newly created district Chandauli?

(b) Are the petitioners entitled to claim benefit of adjustment in district Varanasi on account of alleged lien in district Varanasi?

As contended on behalf of respondents, since the petitioner nos. 1 and 4 have already become permanent on their respective posts by virtue of their deployment in tehsil Chakiya and Chandauli, which were part of original district Varanasi, and other petitioners working on temporary basis were only having temporary status, therefore, after creation of new district by virtue of incorporation of both the tehsils in new district Chandauli they can not invoke the provisions of lien and they would be treated to be originally on the same status, which they were acquiring in district Varanasi before creation of district Chandauli. According to the respondents, Kanchan Lal and Garib Ram after creation of new district Chandauli would be permanent employee of new district Chandauli and other petitioners would be of status of temporary employee of newly created district Chandauli, as if they were born in the district Chandauli and the provisions of lien provided in Fundamental Rules can not be applied for them. Second aspect is that, because the petitioners were not sent from one district to another district or from one department to another department under the State Government, therefore, the principle of lien would not be applicable for them. Third aspect of the argument advanced on behalf of respondents is that the petitioner nos. 1and 4 by virtue of being confirmed in the substantive vacancies in new district Chandauli can not enjoy simultaneously their lien in the respect posts in erstwhile district Varanasi and in respect of other petitioner in lack of posts and vacancies and by virtue of their incorporation in the seniority list of clerks, they can not claim adjustment.

In order to analyze the issue, it is relevant to mention relevant provisions Rule 9 (13), 14, 14-A and 14-B of the Uttar Pradesh Fundamental Rules, as under:-

"9(13).   Lien means the title of a government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively."

"14. (a) 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:

(1) to a tenure post, or

(2) to a permanent post outside the cadre on which he is born, 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 Government may, at their option, 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 case 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 is suspended under clause (a) or (b) of this rule, the post may be filed 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 lien on a post of the nature specified in sub-clause (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)."

"14A.(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 14, 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."

"14B.   Subject to the provisions of rule 15, the Government may transfer to another permanent post in the same cadre the lien of a government servant who is not performing the duties of the post to which the lien relates, even if that lien has been suspended."

I shall now examine what the word ''lien' means. The word ''lien' originally means "binding" from the Latin ligamen. Its lexical meaning is "right to retain". The word "lien" is now variously described and used under different context such a ''contractual lien', ''equitable lien', ''specific lien', ''general lien', ''partners lien', etc. etc. In Halsbury's Laws of England, Fourth Edition, Volume 28 at page 221, para 502 it is stated:

" In its primary or legal sense "lien" means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims are satisfied."

In Stroud's Judicial Dictionary, 5th Edition, Volume 3 at page 1465 the following passage is found:

"Lien. (1) A lien -(without effecting a transference of the property in a thing)--is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general. So, as regard Scotland, "lien" is defined as including "the right of retention" (Sale of Goods act 1893 (c.71), S.62), or it "shall mean and include right of retention" (Factors (Scotland) Act, 1890 (c.40), S.1); See hereon Great Eastern Railway v. Lords Trustees (1909) AC 109."

In Words and Phrases, Permanent Edition Vol. 25 the definition of work ''lien' when used to explain the equitable lien is given thus :

"A ''lien' from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that there is something in existence to which it attaches."

At page 393 of the same volume it is stated:

"The word ''lien' has a well known signification. In law it signifies an obligation, tie, or claim annexed to or attaching upon any property, without satisfying which such property cannot be demanded by its owner, vide Storm v. Waddell,N.Y., 2 Sandf. Ch. 494, 507, 508."

Again at page 399of the same Volume it is stated:

"Lien" is a term of very large and comprehensive signification, but which never imports more than security, vide Mobile Building and Loan Ass'n v. Robertson, 65 Ala 382, 383."

In Black's Law Dictionary, 6th Edition, at page 922 the following passage is found:

"The word ''lien' is a generic term and, standing alone, includes liens acquired by contract or by operation of law."

Shelat, J. in Paresh Chandra Vs. Controller of Stores, AIR 1971 SC 359 while interpreting clause 14 of Rule 2003 of the Railway Fundamental Rules which defines lien has observed as under:-

"Rule 2003 of the Railway Fundamental Rules defines in Cls. 3 and 14 the terms ''cadre' and ''lien'. ''Lien', as defined in Cl. 14 means the title of a railway employee to hold substantively a permanent post to which he has been permanently appointed. According to this definition, therefore, the appellant and respondents 4 to 8 were entitled to, with effect from August 15, 1947 (when all of them were made permanent), a lien on the respective posts to which, as from that day, they were confirmed and made permanent."

What is lien? Rules 9, 13 of the Fundamental Rules define the meaning of the ''Lien'. Lien means "the title of Government servant to hold substantively, either immediately or on the termination of period of absence, a permanent post, including a tenure post, to which he has been appointed substantively." Therefore if Government servant is appointed substantively to a permanent post including a tenure post, he becomes Govt. servant for the purposes of his terms in that post. Consequently he is entitled to retain the lien on that post in view of the decision of the Supreme Court in S.K. Kacker Vs. All India Institute of Medical Sciences, 1996 (10) SCC 734.

A learned Single Judge of this Court in M.P. Tewari Vs. Union of India, 1974 All LJ 427following the dictum laid down in the above Paresh Chandra's case indistinguishing the decision of the Supreme Court in P.L. Dhingra Vs. Union of India, AIR 1958 SC 36 has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view I am in agreement.

According to the respondents, a person has lien to the post and not lien to the place. A person appointed to a post on permanent basis can claim lien and a person having temporary status on adhoc basis can not have any lien to the post in view of the decision of the Supreme Court in Haribans Misra Vs. Railway Board, AIR 1989 SC 696, and also in view of the decision of the Supreme Court in Ram Lal Khurana Vs. State of Punjab and others, AIR 1989 SC 1985.

According to the respondents, the petitioners were appointed at their respective places in erstwhile district Varanasi. By virtue of such appointment they shall also be treated to have been appointed in the same capacity on their respective posts in the newly created district Chandauli and they can not claim lien to the place i.e. district Varanasi.

In Purshottam Lal Dhingra's case, AIR 1958 SC 36, the Supreme Court has defined "lien" as a title to hold a permanent post unless his lien is transferred in accordance with the rules.

A substantive appointment to a permanent post confers on the servant a lien. So, on appointment to the post he becomes entitled to hold a lien on that post. The lien has, therefore, been defined as a title of a Government servant to hold substantively a permanent post or tenure post, to which he has been appointed substantively.

Lien acquired by substantive appointment only and in view of the decisions of the Supreme Court in Prem Nath Vs. State of Rajasthan, AIR 1967 SC 1599, and State of Haryana Vs. Rajendra Sareen, AIR 1972 SC 1004, no lien is acquired by merely officiating in the post, or by appointment to a post which is not substantively vacant and somebody else is holding lien on it. The appointment in such a case shall not be substantive.

Lien is acquired only when one is confirmed and made permanent on that post and it was observed by the Supreme Court in the case of Triveni Shankar Saxena Vs. State of U.P., AIR 1992 SC 496, as under:-

"A learned single Judge of the Allahabad High Court in M.P. Tewari v. Union of India, 1974 All LJ 427 following the dictum laid down in the above Paresh Chandra Nandi Vs. Controller of Stores, N.R. Railway Pandu and others,(AIR 1971 SC 359) in distinguishing the decision of this Court in P.L. Dhingra v. Union of India, AIR 1958 SC 36 has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement." (para 21)

In view of the decision of the Supreme Court in State of Punjab Vs. Labhu Ram, (1976) 4 SCC 339: AIR 1977 SC 98, a lien can not be terminated unless confirmed in the other post, and where the lien could be terminated or suspended on substantive appointment in some other post, it was held in the above case that it could not be done on the only basis that the Government servant had worked on the other post for more than the probationary period, because he had not acquired the status of a permanent employee in that post.

However, termination of a lien is question of substance not of form. Lien gets terminated on when a person is appointed substantively to another post as observed by the Supreme Court in Ram Lal Khurana Vs. State of Punjab and others, AIR 1989 SC 1985. In Ram Lal Khurana (sura) the appellant while holding the post of a clerk in substantive capacity in the office of the Inspector General of Police, was selected and appointed to the post of Excise Sub Inspector. He continued in this post for a number of years when he was repatriated to the parent department, which resulted in loss of higher scale. He successfully challenged his repatriation. Subsequently, he was compulsorily retired by the Excise Department. He now turned round and took the plea that since he was not confirmed in the Excise Department, he still retained his lien in the Police Department who only were competent to compulsory retire him. The plea was rejected by the Supreme Court. It was held in Ram Lal Khurana (supra) as under:-

"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 was 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."  

On the analysis made above, it is apparent that if the vacancies were subsequently available in district Varanasi by virtue of creation of new tehsil and retirement of certain persons working in the substantive capacity then to manage the affairs of that district, the District Magistrate was empowered to make appointments and the petitioners could not legally claim as a matter of right of being adjusted against those posts. The stand of non-availability of posts taken by the respondents in district Varanasi on the issue of adjustment of petitioners in the respective cadre is not incorrect or is not illegal and no employee can legally claim to work in another district at a lower post. Since, the petitioners by virtue of their initial appointment in district Varanasi on their respective posts have acquired their individual respective status in district Chandauli and petitioner nos. 1 and 4 both were confirmed in district Varanasi and district Chandauli and were shown in the seniority list, as such they can not said to have maintained their lien against the substantive post simultaneously at two places. Even if no order of termination of lien was earlier passed, therefore, by the impugned order they shall have no lien to the post in district Varanasi. Since they were not transferred from one district to another, therefore, they would be treated to have been born originally in newly created district Chandauli, therefore, the benefit of protection by invoking principle of lien can not be made available to these two petitioners. Had these two petitioners been transferred from one district to another district or to a different cadre in another department then by virtue of being confirmed employee in district Varanasi they might have come forward to invoke the provisions of lien. In view of the above observations, they can not invoke the claim of lien. In respect of other petitioners, since they have already been shown in the seniority list at their respective position and they being originally deemed to have been born in the original district Chandauli can not even claim for adjustment or invoke the principle of lien as they were not even permanent.

In view of the above observations, the petitioner claim is devoid of merits, therefore, the writ petition is dismissed.

Dated:07.10.2004

SKT/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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