PETITIONER:
STATE OF PUNJAB & ORS.
Vs.
RESPONDENT:
LABHU RAM & ORS.
DATE OF JUDGMENT15/10/1976
BENCH:
BEG, M. HAMEEDULLAH
SHINGAL, P.N.
CITATION:
1977 AIR 98 1977 SCR (1) 832
1976 SCC (4) 339
ACT
Punjab Civil Service Rules, vol. 1, Rides 2.49 and 3.10
to 3.16,--Junior Vernacular Cadre teachers officiating in
senior vernacular cadre entitled to benefit of their sub-
stantive posts.
HEADNOTE
The respondents, teachers of the Junior vernacular
cadre, Punjab, were promoted to the senior vernacular cadre
temporarily. After the expiry of their probationary period,
they were not confirmed, but continued to work in the senior
cadre and their names were dropped from the junior vernacu-
lar cadre. Mean while, other teachers, junior to the re-
spondents in the junior cadre were offered better opportuni-
ties of being taken in a "selection grade". The respondents
filed a writ petition in the High Court contending that
they were entitled to the opportunity of moving into the
selection grade, as they were neither probationers nor
confirmed members but were only officiating in the senior
cadre while retaining their substantive places and liens in
the junior cadre. The High Court allowed the writ.
Dismissing the appeal the Court.
HELD: The state was unable to substantiate the submis-
sion that the petitioners-respondents became probationers in
the senior vernacular cadre. According to the rules, their
lien in the junior vernacular cadre was retained by them,
and, it could not be suspended by the mere fact that they
were performing the duties of teachers working in the senior
vernacular cadre. [836 D-E]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal. No. 1745 of
1968.
(Appeal by Special Leave from the Judgment and Order dated
13-10-1967 of the Punjab and Haryana High Court in
Civil Writ No. 1113 of 1966).
O.P. Sharma, for the appellants.
S. K, Mehta, K.R. Nagaraja and P.N. Puri, for the Respond-
ents,
The Judgment of the Court was delivered by
BEG, J.--The State of Punjab has come up by special
leave against the judgment of a Division Bench of the High
Court o[ Punjab & Haryana allowing the Writ petition of the
respondents who, it is admitted by the State, are teachers
of the Junior Vernacular grade working, on the dates on
which they filed the Writ petition, as "promotees" in the
senior vernacular grade temporarily but had not been con-
firmed there. It appears that the only difference between
the junior vernacular cadre and the senior vernacular cadre
is that those who teach lower classes were placed in the
"junior" cadre and those who teach higher classes were in
the "senior vernacular cadre". But, for some reason, working
in senior vernacular cadre was considered a promotion.
After consideration of the whole position, the two grades
were integrated by the Government from 1st October. 1957,
with retrospective effect, under the Punjab Educational
Service
833
(Provincialised Cadre) Class III Service Rules, 1961. This
meant that the Government recognised that both the cadres
should be really considered as one and that there were no
acceptable grounds for a differentiation. Nevertheless, it
appears that the names of the petitioners were dropped from
the junior vernacular cadre as they had been working for
more than the probationary period in the senior vernacular
cadre. It is urged that it must be deemed that they were
confirmed in the senior vernacular cadre automatically.
However, they had to be "probationers" in the senior cadre
for such a result to enure. We fail to see how they become
"probationers" there.
Curiously, the prospects of those who were not considered
"promoted" to the senior vernacular cadre and were junior to
the petitioners respondents in that cadre, improved as they
were offered opportunities of being taken in a "selection
grade". But, no such opportunities were offered to the
petitioners on the ground that they had been removed from
the junior vernacular cadre. The names of the petitioners
respondents had been automatically dropped from the cadre in
which they held their liens having been appointed there
initially permanently.
The High Court of Punjab & Haryana held that the peti-
tioners respondents are entitled to the benefit of their
substantive posts, which were still in the junior vernacular
cadre, as they were never confirmed in the senior vernacular
cadre whatever may be the sentimental satisfaction of being
considered as persons "promoted" to and working in the
"senior vernacular cadre". Subsequent events showed that
those who are junior to the petitioners, and, for that
reason, did not get the opportunity of serving in the
"senior" cadre, had better opportunities offered to them
without any reasonable ground of discrimination between the
two cadres except that the petitioners were seniors and
could consider themselves "promoted" because they had been
performing the duties of teachers of the "senior" cadre.
The petitioners, after discovering that those who were
junior to them and had, therefore, not been given the oppor-
tunity of serving in the senior vernacular cadre, had a
better opportunity of moving into the selection grade,
which had not been offered to them, applied for this very
opportunity as they still continued in their substantive
posts which were in the junior vernacular cadre. They took
up the correct position that they had merely been officiat-
ing in the senior vernacular cadre but their right places
were in the junior vernacular cadre. The mere fact that they
worked in the senior cadre for longer periods than proba-
tioners would could not give them the status of either more
probationers or persons Confirmed in the senior vernacular
cadre. They could not, for that reason alone, be deprived
of the benefits of their substantive appointments in the
junior vernacular cadre. Hence, their Writ Petitions were
allowed and they were afforded all the benefits which
would have accrued to them as members of the junior vernacu-
lar cadre to which they did not really cease to belong.
Moreover, as already pointed out, the Government had itself
considered the position and had integrated the two cadres
into one with retrospective effect from 1st October, 1957.
834
The position of the petitioners appears to us to be
fully covered by the following rules contained in the Punjab
Civil Services Rules-Volume I:
"3.10. Unless in any case it be other-
wise distinctly provided the whole time of a
Government servant is at the disposal of the
Government which pays. him and he may be
employed in any manner required by proper
authority, without claim or additional remu-
neration, whether the services required of him
are such as would ordinarily be remunerated
from Union or State revenues, or from the
revenues of a local fund.
Substantive Appointment and Lien.
3.11. (a) Two or more Government serv-
ants cannot be appointed substantively to the
same permanent post at the same time.
(b) A Government servant cannot be
appointed substantively except as a temporary
measure, to two or more permanent posts at the
same time.
(c) A Government servant cannot be
appointed substantively to a post on which
another Government servant holds a lien.
3.12. Unless in any case it be otherwise
provided in these rules, a Government servant
on substantive appointment to any permanent
post acquires a lien on that post and ceases
to hold any lien previously acquired on any
other post.
3.13. Unless his lien is suspended under
rule 3.14 or transferred under rule 3.16, a
Government servant holding substantively a
permanent post retains a lien on that post--
(a) while performing the duties of that post;
(b) while on foreign service, or holding
a temporary post, or officiating in another
post;
(c) during joining time on transfer to
another post, unless he is transferred sub-
stantively to a post on lower _pay, in which
case his lien is transferred to the new post
from the date on which he is relieved of his
duties in the old post;
(d) except as provided in Note below while on
leave;
and
(e) while under suspension.
3.14. (a) A competent authority shall
suspend the lien of a Government servant on a
permanent post which he
835
holds substantively, if he is appointed in a
substantive capacity:
(1) to a tenure post, or
(2) to a permanent post outside the cadre
on which he is borne. or
(3) provisionally, to a post on which
another Government servant would hold a lien,
had his lien not been suspended under rule.
(b) A competent authority may, at its 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 trans-
ferred, whether in a substantive or officiat-
ing capacity, to a post in another cadre, and
if in any of these cases there is reason to
believe that he will remain absent from the
post on which he holds a lien, for a period of
not less than three years.
(c) Notwithstanding anything contained in
clause (a) or (b) of this rule, a Government
servant’s lien on a tenure post may, in no
circumstances, be suspended. If he is
appointed substantively to another permanent
post, his lien on the tenure post must be
terminated.
(d) If a Government servant’s lien on a
post is suspended under clause (a) or (b) of
this rule, the post may be filled substantive-
ly, 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 re-
vives.
(e) A Government servant’s lien which has
been suspended under clause (a) of this rule
shall revive as soon as he ceases to hold a
lien on a post of the nature specified in
sub-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).
3.15. (a) Except as provided in clause
(c) of this rule and in note under rule 3.13,
a Government servant’s
836
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) rule 3.14 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.
(c) Notwithstanding the provisions of
rule 3.14(a). the lien of a Government serv-
ant holding substantively a permanent post
shah be terminated on his appointment substan-
tively to the post of Chief Engineer of the
Public Works Department.
3.16. Subject to the provisions of rule
3.17, a competent authority may transfer to
another permanent post in the same cadre the
lien of a Government servant who is not
performing the duties of a post to which the
lien relates, even if that lien has been
suspended."
According to the rules set out above, the
lien of the petitioners in the junior vernacu-
lar cadre was retained by them and it could
not be suspended by the mere fact that they
were performing the duties of teachers working
in’ the senior vernacular cadre. Nothing
beyond this was disclosed by the facts of
these cases.
The definition of a probationer, given in rule
2.49 is as follows:
"2.49. Probationer means a Government
servant employed on probation in or against a
substantive vacancy in the cadre of a depart-
ment. This term does not, however, cover a
Government servant who holds substantively a
permanent post in a cadre and is merely
appointed on probation’ to another post".
Learned Counsel for the State was unable to substantiate
the submission that the petitioners respondents were merely
probationers the senior vernacular cadre and not really
persons whose substantive posts were in the junior vernacu-
lar cadre, appointed to perform the duties of persons put in
another cadre. Their duties in the senior cadre involved
teaching somewhat higher classes. This additional
experience could not reasonably be looked up as a disquali-
fication for the selection grade. The High Court had,
therefore, given the petitioner-respondents the benefits of
the cadre on which their names should have been retained.
Moreover, this is not a question which can arise again as
the two different cadres have been merged with retrospective
effect from 1st October, 1957. It meant that they were enti-
tled to be considered for the selection grade, and, if they
satisfy the requirements for selection to get the benefits
of it. Consequently, we dismiss this appeal with costs.
M.R. Appeal dis-
missed.
837