STATE OF PUNJAB & Ors. v. LABHU RAM & Ors.

The respondents, teachers of the Junior vernacular cadre, Punjab, were pro moted to the senior vernacular cadre temporarily. After the expiry ~f their pro bationary period, they were not confirmed, but continued to work in the senior cadre, and their names were dropped from the junior vernacular cadre. Mean while, other teachers, junior to the respondents in the .iunior cadre, were offered better opportunities of being taken in a "selection grade". The respondents filed a writ petitiori in the High Court contending that they were entitled to the oppor tunity 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. D Dismissing the appeal the Court, HELD: The state was unable to substantiate the submission that the peti tioners-respondents became probationers in the senior vernacular cadre. Accord ing tQ 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-EJ CrvrL APPELLATE JURISDICTION : Civil Appeal No. 1745 of 1968. (Appeal by Special Leave from the Judgr.aent and Order dated in Civil Writ 13-10-1967 of the Punjab and Haryana High Court No. 1113 of 1966).

#0. P. Shanna, for the appellants. S. K. Mehta, K. R. Nagaraja and P. N. Puri, for the Respondents. The Jud~ent of the Court was delivered by BEG, J.-The State of Punjab has come up by special against the judgment of a Division Bench of the High Court oE 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 file<\ the Writ petition, as "promotees" in the senior vernacular grade temporarily but had not It appears that the only difference between been confirmed there. 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 con sidered 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 E F G H PUNJAB V. LABHU RAM (Beg, J,) 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 peti tioners were dropped from the junior vernacular cadre as they had been working for more than the probationary period in the senior It is urged· that it must be deemed that they were vemaclllar cadre. confirnied in the senior vernacular cadre automatically. However, they had to be "probationers" in the senior cadre for such a result to '"We fail to see how they become "probationers" there. enure. Curiously, the prospects of those who were not considered "pro moted" tOt the senior vernacular cadrei and were junior to the peti tioners 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 initially permanently. The High Court of Punjab & Haryaua held that the petitioners 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 satis faction 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 oppor tu!lities offered to them without any reasonable ground of discrimina tion between. the two cadres except that the petitioners were seniors and could consider themselv~s "promoted" because they had been performing the duties of teachers of the "senior" cadre. The peti tioners,, after discovering that those who were junior to them and had, therefore, not been given the opportunity 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 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 officiating in the senior verna cular 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 probationers would could not give them the status of either mere prot•ationers 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 mem bers of the junior vernacular 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. A B c D E F G H .. ~­ > i J .--, '. ~. 834 SUPREME COURT REPORTS [1977] l 3.C.R. ' . ' A · The position of the petitioners appears to us to be fully cmtted by the following rules contained in the Punjab Civil Services Rules-· Volume I: B c D E F G H · "3.10. Unless in any case it be otherwise 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 remuneration. whether the ser vices required of him are such as would ordinarily be" re munerated from Union or State revenues, or from revenues of a local fund. • Substantive Appointment and Lien. 3 .11. (a) Two or more Government servants cannot be appointed substantively to the same permanent post at the same time. (b) A Government servant cannot be appointed subs-· tantively except as a temporary measure, to two or more per- manent posts at the same time .. (c) A Government.servant cannot be appointed subs tantively to a post on which another G~vernment servant holds a lien. ·

3.12. Unless in any case it be otherwise provided in these rules, a Government servant on substantive appoint- ment to any permanent post acquires a lien on that post and ceases to hold any· lien previonsly 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 holdfng substantively a permanent post retains a lien on that post- (a) while perforining 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 substantively to a post on lower pay, in which case his lien is transferred to the new post from in the old the date on which he is relieved of his dnties pos!; Ii. '" (d) except as provided in Note below while on leave; - ( e) while under suspension.

3.14. (a) A competent authority shall suspend the lien· a Government servant on a permanent post which he ' • \.. ·• ~ :1 - ,, PUNJAB V. LABHU RAM (Beg, J.) 835 holds sl!bstantively, if he is appointed in a substantive capa city : ( 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 Govern ment servant would hold a lien, had his lien not been sus pell.ded 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 circumsta1ices 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 thesei cases there is reason to beliexe 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) a or (b) of this rule, a Government servant's lien on 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 pended under clause (a) or (b) of this rule, the post may be filled 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 sus pended lien revives. (e) A Government servant's lien which has been sus pended under clause (a) of this rule shall revive as soon as he ceases to hold a lien on a post of the nature speci fied in sub-clause (1), ( 2) on ( 3) of that clause. India or on (f) A Government servant's lien which has been sus pended under clause (b) of this rule shall revive as soon as he ceases to ~e on deputation out of eign service or to hold a post in another cadre : Provided that a suspended lien shall not revive because the Govern ment 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 ano ther cadre and the total period of absence on duty will not fall short of three years or that he will hold substanti vely a post of the nature specified in sub-clause ( 1), (2) or (3) of clause (a). ·

3.15. (a) Except as provided in clause rule and in note under rule 3.13, a Government servant's (c) of A B c D E F G H A B c D E F G H 836 SUPREME COURT REPORTS [1977] l S.C.R. lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him with out a lien or a suspended lien upon a permanent post. (b) In a case covered by sub-clause (2) of clause (a) of. 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 m Government service. (c) Notwithstanding the provrn1ons of rule 3.14(a), the lien of a 5}overnment servant holding substantively a permanent post shall be termina!ed on his appointment e"Ub stantively to the post of Chiefl Engineer of the Public Works Departm~nt.

3.16. Subject to the provisions of rule 3.17, a: compe tent authority may transfer to anothel' permanent post the same cadre the lien of a Government servant who is not performing the duties of a post to which the lien re lates, even if that lien has been suspended." According to the rules set out above, the lien of the petitioners in the junior vernacular cadre was retained by them. and it could not be suspended by the m.~re fact that they were performing the duties of teachers working in the senior vernacular cadre. Nothing be yond this was disclosed by the facts oli these cases. The definition of a probationer, given in; rule 2.49 is as follows "2.49. Probationer means a Government servant employ ed on probation in or against a substantive vacancy in the This term does not, however, cadre of a department. cover a Government servant who holds a is merely appointed 'on permanent post in a cadre and probation' to another post''. substantively Learned Counsel for the State was unable to substantiate the suh· mission that the petitioners respondents wero merely probationers in the senior vernacular cadre and not really persons whose substan tive posts were in the junior vernacular cadre, appointed to perfonn the duties of persons put in another cadre. This senior cadre involved teaching :additional experience could not reasonably be looked up as a dis· qualification for the selection· grade. The High Court had, there- fore,. 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 entitled 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. somewhat higher classes. Their duties in M.R. Appeal dismissed. • -- '-'- ~ { • · /-