Supreme Court of India
STATE OF RAJASTHAN & ANR.versusS.N.TIWARI & ORS.
- Citation
- 2009 INSC 344
- Decided
- 16 March 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
A temporary or urgent appointment does not terminate a government servant's lien; the respondent's lien in his parent department continued, making him eligible for the claimed benefits.
Summary
The respondent, an Investigator Grade‑II in the Department of Economic and Statistics, Government of Rajasthan, was declared surplus and deputed to the Directorate of Medical and Health Services where, on 3 December 1980, he was appointed on an urgent temporary basis as a Homeopathic Doctor under the ESI Scheme. He continued in that post until his superannuation in 1994. In 1991 he exercised his option to have his lien retained in the Subordinate Statistical Service for promotion and financial benefits. He filed writ petitions seeking seniority, promotions and related benefits in his parent department; the High Court allowed the later petition and dismissed the earlier one. The State appealed, arguing that his lien was lost upon his appointment as Homeopathic Doctor. The Supreme Court held that a temporary or urgent appointment does not terminate a government servant's lien, which ends only when the servant is substantively appointed to another permanent post outside his cadre. Consequently, the respondent’s lien in the parent department persisted, entitling him to the claimed benefits. The appeals were dismissed.
Issues considered
- The effect of a temporary/urgent appointment on the lien of a government servant in service law.
- Whether the respondent retained his lien in the Department of Economic and Statistics after being appointed as a Homeopathic Doctor.
- Whether the respondent is entitled to promotions, seniority and financial benefits in his parent department.
Subjects
lienservice lawtemporary appointmentdeputationpromotionsenioritygovernment servantRajasthan Service Rules
Judgment
[2009] 4 S.C R 448
A STATE OF RAJASTHAN & ANR.
•
v
S.N.TIWARI & ORS.
Civil Appeal No.1609 of 2009
MARCH 16, 2009
B
( S.B. SINHA, B. SUDERSHAN REDDY AND DR.
MUKUNDAKAM SHARMA, JJ )
SERVICE LAW:
c Lien - Termination of - HELD. Lien of a government
servant over the post to which he was substantively appointed
ends if he is appointed to another substantive post on
permanent basis - Mere fact that employee continued to work
for a long period to the latter post would not result in loss of
lien in parent department - In the instant case, no objection
D
was raised when the employee gave his option duly informing
all <;oncerned that his lien in parent department was to be
maintained for the purpose of promotion to higher post!
protection of financial interests etc. - In such view of the matter,
employee concerned always had his lien in his parent
E
department.
WORDS AND PHRASES :
'Lien' - Meaning of in the context of service law -
Explained.
F
The respondent, an Investigator Grade-II in the
Department of Economic and Industrial Surveys of
Government of Rajasthan, though was declared as
surplus, but was deputed to work in the Directorate of
Medical and Health Services, and on 3.12.1980 was
G
appointed on purely temporary and urgent basis as a .
Homeopathic Doctor under ESI Scheme for a period of
six months or till the selection of a candidate by the Public
Service Commission. The respondent continued in that
H 448
STATE OF RAJASTHAN & ANR. V. 449
S.N.TIWARI & ORS.
capacity till his superannuation on 31.12.1994. Meanwhile, A
in response to a letter from the Directorate of Economic
and Statistics, the respondent by a letter dated 8.4.1991
exercised his option to have his lien continued in the
Subordinate Statistical Services for the purposes of
protection of financial interests/promotions to higher B
posts in Statistical Services. The respondent filed W.P. No.
4832/91 before he High Court seeking directions to the
Health Department not to send him back to the parent
department. Six years thereafter, he filed another writ
petition being WP 1663/97 seeking directions against c
Directorate of Economic and Statistics to recompute the
vacancies from 1964 onwards and to give him seniority,
promotions and consequential financial benefits from the
date his junior was promoted from the post of Statistical
Inspector to Deputy Director. The writ petition
0
was allowed. W.P. No. 4832/91 was dismissed as not
pressed.
In the instant appeals it was contended for the
- appellant-State Government that the respondent having
joined Medical and Health _Services Department as E
Homeopathic Doctor and superannuated as such, was
not entitled to claim promotion and other benefits in
Economic and Statistics Department after 1980.
Dismissing the appeals, the Court
F
HELD: 1.1 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 his right to hold a G
permanent post substantively to which he has been
permanently appointed. [para 14] [455-G-H; 456-A]
Triveni Shankar Saxena Vs. State of UP 1992 Supp (1)
sec 524 - relied on.
H
...
450 SUPREME COURT REPORTS [2009] 4 S.C.R.
A 1.2 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
B 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
c formal termination of lien over the previous permanent
post. [para 13) [456-E-F]
Ram Lal Khurana Vs. State of Punjab (1989) 4 SCC 99
- relied on.
1.3 The High Court upon appreciation of the material
D
available on record found that lien of the respondent
always continued in the Department of Economics and
Statistics. His urgent temporary appointment as
Homeopathic Doctor by order dated 3.12.1980 was not a
substantive appointment for any definite period. The mere
E fact that the respondent continued to work for a fong
period itself would not result in loss of lien in the parent
department of Economics and Statistics. Even after the
respondent joined as Homeopathic Doctor in ESI
Corporation in 1980 the parent department treated him
F as belonging to its own cadre. There is no infirmity in the
order passed by the High Court. [para 15) [456-8-C]
1.4 Be it noted that no objection was raised when
the respondent employee gave his option on 8.4.1991 duly
G
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
always had his lien in his parent department. The State at
this stage cannot be allowed to turn round and say that
H
I STATE OF RAJASTHAN & ANR. V. 451
S.N.TIWARI & ORS.
the respondent did not retain lien against his post in the A
parent department. [para 16] [456-E]
Case Law Reference
(1989) 4 sec 99 relied on para 13
1992 Supp (1) SCC 524 relied on para 14 B
CIVILAPPELATEJURISDICTION: CivilAppeal No.1609
of 2009
From the Judgement and Order dated 29.11.2006 of the
Hon'ble High Court of Judicature for Rajasthan, Jaipur Bench, C
Jaipur in D.B. Civil Special Appeal (Writ) No. 606 of 2001 in
S.B. Civil Writ Petition No. 1663of1997.
WITH
Civil Appeal No.1610 of 2009 D
Madhurima Tatia, Mil ind Kumar, Aruneshwar Gupta, for the
Appellants.
R. Venkataramani, Dinu Tamta, Vijay Laxmi, for the
Respondents. E
The Judgement of the Court was delivered by
t B.SUDERSHAN REDDY,J.
1. Leave granted.
F
2. These appeals are directed against the common
judgment and order of the High Court of Rajasthan, Jaipur Bench
dated 29.11.2006 in DBC Special Appeal No. 606/01 and DBC
Special Appeal No. 863/01 affirming the judgment and order of
the learned Single Judge. G
.. • • 3. The facts leading to filing of these appeals by the State
of Rajasthan required to be noticed are as under:
4. The sole respondent herein was initialy appointed as
Investigator Grade-II in the Department of Economic and H
452 SUPREME COURT REPORTS [2009] 4 S.C.R.
A Industrial Surveys of Government of Rajasthan. He joined his •
duty on 27.4.1959. The respondent along with other similarly
.situated employees were declared surplus by the Department
but al of them were sent to work in the Directorate of Medical
and Health Services, Jaipur. On 3.12.1980 while the respondent
8 was working as a Statistical Inspector under Medical and Health
Department, he was appointed on purely urgent temporary basis
as a Homeopathic Doctor under ESI Scheme for a period of 6
months or til t~e selection of a candidate by the Rajasthan Public
Service Commission whichever was earlier. He was accordingly
c relieved to join his duty as a Homeopathic Doctor w.e.f
6.12.1980. The respondent continued in that capacity til his
retirement on 31.8.1994 on attaining the age of superannuation
since no alternative arrangement was made by the State of
Rajasthan.
D 5. The Directorate of Economic and Statistics Department
vide its letter dated 5.4.1991 addressed to the Director of ESI
Corporation, Jaipur requiring it to obtain the respondents option
as to whether he wanted to return back to the services of the
said department or to be made permanent in the ESI
. E Corporation. The respondent vide letter dated 8.4.1991
addressed to the Director of Economics and Statistics exercised
his option to have lien continued in the Subordinate Statistical
Services for the purposes of protection of financial interests/
promotions to higher post in statistical services. The respondent
F also referred to and relied upon the Judgment of the Rajasthan
High Court dated 2.9.1988 whereunder the Court at the instance
of the respondent directed the parent department to determine
the year-wise vacancies and to make promotions from the post
of Statistical Inspector to Statistical Assistant in accordance with
G Rajasthan Service Rules.
6. The respondent filed the writ petition No. 4832 of 1991
. ..
with a prayer seeking directions as against the Health
Department not to send him back to the parent department and
alow him to continue to work on the same post as Homeopathic
H Doctor and fix his salary/pay in the regular pay-scale attached
STATE OF RAJASTHAN & ANR. V. 453
S.N.TIWARI & ORS. [B.SUDERSHAN REDDY, J.]
~
~
to that post. The respondent also filed writ petition No. 1663 of A
1997 after 6 years of the aforesaid writ petition in the year 1997
seeking directions as against the Director of the Directorate of
Economic and Statistics Department to consider his case and
recompute the vacancies from 1964 and onwards and to give
him al promotions, seniority, financial benefits, pay fixation etc. B
from the date, his immediate juniors have been promoted from
the post of Statistical Inspector to Deputy Director. The
respondent also claimed the pensionary benefits by duly fixing
his seniority and promotion etc.
c
7. Both the writ petitions were taken up for hearing during
which the respondent requested the High Court to dismiss the
writ petition No. 4832 of 1991 filed by him as not pressed. The
High Court after an elaborate consideration of the matter came
to the right conclusion that the respondent herein was temporarily
• D
4 appointed to work as Homeopathic Doctor in Medical and
Health Services Department and always retained his lien in the
Economic and Statistics Department and therefore entitled to
reliefs as claimed by him in writ petition No. 1663 of 1997. No
relief was granted in writ petition No. 4832 of 1991 since the
E
respondent/writ petitioner did not press for the same. H::ice
these appeals by the State of Rajasthan.
8. Smt. Madhurima Tatia, learned counsel appearing for
the State of Rajasthan inter alia submitted that the respondent
having joined the Medical and Health Services Department as F
Homeopathic Doctor continued on the same post til the date of
his retirement on attaining the age of superannuation and that
post of Homeopathic Doctor is not encadered in the Rajasthan
Subordinate Service Rules, 1971 and, therefore, he is not
entitled to claim promotion and other benefits in the Economics G
& Statistics Department after 1980.
9. The learned counsel for the respondent supported the
impugned judgment and contended that the lien of the
respondent continued to be with parent department as he was
H
454 SUPREME COURT REPORTS [2009] 4 S.C.R.
,
A never made permanent as Homeopathic Doctor in ESI ,
Corporation where he was deputed to work.
10. We have carefuly considered the submissions made
by the counsel appearing for the respective parties.
B 11. There is no controversy whatsoever that respondent
employee was appointed on permanent basis in the Directorate
of Economic and Statistics Department initialy and thereafter
sent to work in Medical & Health Department from there he was •
sent on deputation on urgent temporary basis as a Homeopathic
c Doctor under a Scheme for a period of 6 months or til the
selection of the candidate by the Rajasthan Public Service
Commission whichever was earlier. Since no selection as such
had taken place the respondent continued in the said post until
his attaining the age of superannuation i.e. 31.8.1994. It is not
the case of the State that any Competent Authority terminated
D
the nen 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 Homeopathic
E Doctor in ESI Corporation, the respondent employee obtained
directions as against the State and Directorate of Economics
& Statistics Department to determine the year-wise vacancies
and to make promotions from the post of Statistical Inspector to
Statistical Assistant in accordance with the Rules. That order
F attained its finality. The same would demonstrate that the
respondent employee always had a lien in the Department of
Economics and Statistics. It may be necessary to notice Rule
18 of Rajasthan Service Rules which is re-produced in its entirety
hereunder:
G
"18. Termination of lien (a) A Government servants lien on
a post may in no circumstances be terminated, even with
his consent if the result wil be to leave him without a lien
or a suspended lien upon a permanent post.
H (b) A Government servants lien on a post stands
STATE OF RAJASTHAN & ANR. V. 455
S.N.TIWARI & ORS. [B.SUDERSHAN REDDY, J.]
terminated on his acquiring a lien on a permanent post A
(whether under the Government or Central/other State
Governments) outside the cadre on which he is borne."
12. A bare reading of the Rule makes it clear that a
government servants lien on a post cannot be terminated in any
circumstances even with his consent if it results in leaving the B
government servant without a lien or a suspended lien upon a
;. permanent post. A government servants lien on a post stands
terminated only on his acquiring a lien on a permanent post
outside the cadre on which he is borne. It is not the case of the
State that the respondent employee was made permanent as a c
Homeopathic Doctor in ESI Corporation. The respondent
employee did not acquire any lien in the ESI Corporation. The
question of termination of lien does not arise since the
respondent employee did not acquire a lien on a permanent
post outside the cadre on which he is borne. 0
13. It is very wel 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 substa::tively E
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. F
This Court in Ram Lal Khurana Vs. State of Punjab [ (1989) 4
SCC 99] observed that 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.
~
G
" 14. 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
H
456 SUPREME COURT REPORTS [2009] 4 S.C.R
A post substantively to which he has been permanently appointed.
[See Triveni Shankar Saxena Vs. State of U.P (1992 Supp (1}
sec 524) J.
15. The High Court upon appreciation of the material
available on record found that lien of the respondent employee
8 always continued in the department of Economics & Statistics.
His urgent temporary appointment as Homeopathic Doctor vide
order dated 3.12.1980 was not a substantive appointment for
any definite period. The mere fact that the respondent employee
continued to work for a long period itself would not result in loss
C of lien in the parent department llf Economics & Statistics. That
even after the respondent employee joined as Homeopathic
Doctor in ESI Corporation in 1980 the parent department treated
the respondent employee as belonging to its own cadre. We
find no infirmity in the order passed by the High Court.
D
16. Be it noted that no objections were raised when the
respondent employee gave his option on 8.4.1991 duly
informing al 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.
E In such view of the matter the respondent employee always had
his lien in his parent department. The State at this stage cannot
be alowed to turn round and say that the respondent employee
did not retain lien against his post in the parent department.
F 17. The appeals, therefore, fail and are dismissed. In the
facts and circumstances of the case, we make no order as to
costs.
R.P. Appeal dismissed.
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