Judgment · High Court · 2012

The petitioner, presently serving as the Vice-Chancellor of the Dibrugarh University, was initially appointed as a Reader of the Department of E ducation in the Dibrugarh University and was appointed as Registrar of the said University for the first term on 29.11.1999 and he was duly granted extraordinar y leave without pay with lien from the Department of Education for the said peri od of 5 years, the post of Registrar being a tenure post which is not disputed b y the University authorities also. While serving as Registrar of the University as stated above, th e petitioner was duly promoted to the grade of Professor in the Department of Ed ucation. On completion of the first term as Registrar of the University, the petitioner was again recommended for appointment as Registrar of the said Un iversity for the second term by the Selection Committee of the University, which was accepted by the Executive Council of the University vide their 267th Meetin g held on 23.11.2004.

The appointment of the petitioner as Registrar of the Univ ersity for the second term was to take effect from 29.11.2004. However, the Exec utive Council which held its meeting on 23.11.2004 also took a Resolution vide Resolution No.4 that no further lien from the substantive post of the petitioner shall be given if the petitioner applies for lien for joining the post of Regis trar for the second term, which Resolution has been challenged by the petitioner , as being violative of the rules holding the field in this regard. In order to substantiate the aforesaid contention of the petitio ner, the petitioner has drawn attention of this Court to Dibrugarh University Te achers’ Service Conditions Ordinance, 1974 (for short (cid:28)Ordinance of 1974 (cid:29)). Ordi nance 32 of the aforesaid Ordinance of 1974 provides as follows:- (cid:28)32. Leave, Leave-salary, Provided Fund, Gratuity, Leave Encashment, Group Insur ance, Medical Benefits, Travelling Allowance, and other cognate matters relating to a teacher shall be governed by the respective rules on these matters separat ely adopted by the Executive Council.

Except in the cases of appointment against term posts the maximum length of Extra-Ordinary Leave without pay with lien to be granted to the teachers of the university will be fixed as below: to serve any other organisations; upto a period of three years, to be gr (a) anted first for two years at a stretch and extend it by one more year if no ex igencies develop in the university. (b) to serve the university in some other capacity/post; upto a period of fo ur years. The person enjoying Extra-Ordinary Leave without pay with lien will be asked to inform the university at least before six months prior to the expir y of the period about his/her decision whether he/she would like to return to h is/her earlier post or resign from it. In the aforesaid Ordinance 32, grant of extraordinary leave or m atters relating to lien against term post has not been specifically provided. I t has been provided in the said Ordinance 32 that all matters relating to leave, Leave-salary, Provided Fund, Gratuity, Leave Encashment, Group Insurance, Medic al Benefits, Travelling Allowance, and other cognate matters relating to a teach er shall be governed by the respective rules on these matters separately adopted by the Executive Council.

In terms of the said Ordinance 32, the Executive Cou ncil vide their 73rd Meeting held on 20.7.1974 had adopted a Resolution that Uni versity would follow the State Government Rules in matters not covered by the ru les of the University. Therefore, according to the learned counsel appearing fo r the petitioner, since the matter relating to grant of extraordinary leave or m atters relating to lien in respect of term post has not been specifically mentio ned under the service rules of the University, the relevant rules as applicable to the State Government employees would be applicable to the employees of the Un iversity also. As per FR 14-A as applicable to the employees of the Government of Assam, it is provided that a Government servant’s lien on a post, in no cir cumstances 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, thereby making it expressly clear that a Government servant’s lien cannot in any circumstances be terminated which would result in without being any lien on a permanent post.

FR 14-A is quoted as below:- (cid:28)F.R.14-A (a) Government servant’s lien on a post in no circumstances b e 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) A Government servant’s lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under Central Government or State Government) outside the cadre in which he is borne. (cid:29) The petitioner is, admittedly, holding the permanent post of Pro fessor and had the petitioner not been appointed as a Registrar of the Universit y, he would have continued to remain as Professor. Therefore, according to the p etitioner, the authorities having appointed the petitioner as Registrar of the U niversity, was not entitled to deny lien to the petitioner which the petitioner would have in respect of substantive post of Professor. According to the petitio ner, if the petitioner continued as a Professor, his date of superannuation woul d be 31.12.2012 and as such, the petitioner would be entitled to retain his lien upto 31.12.2012 in terms of FR 14-A, which is applicable in the present case.

Learned counsel appearing for the respondents submits that in vi ew of the Resolution No.4 adopted by the Executive Council of the Dibrugarh Univ ersity in its 267th Meeting held on 23.11.2004, the petitioner would have no rig ht to claim lien on his substantive post of Professor. Heard the learned counsel appearing for the parties. As mentioned above, the only point to be decided is whether such a Resolution adopted by the Executive Council denying the petitioner lien on hi s substantive post of Professor can be sustained in view of the provisions of F. R. 14-A read with Ordinance 32 of the Ordinance of 1974. Ordinance 32, as mentioned above, makes it very clear that such matters which are not specifically provided under the rules of the Dibrugarh Uni versity would be dealt with as per the decision of the Executive Council. The is sues relating to extraordinary leave as well as lien have not been dealt with un der the Dibrugarh University Teachers’ Service Conditions Ordinance, 1974.

The E xecutive Council of the Dibrugarh University in its 73rd Meeting held on 20.7.19 74 had taken the decision that with regard to matters which are not mentioned in the relevant service rules, the University authorities will follow the State Go vernment service rules. The matters relating to lien has not been provided unde r the University Rules or Regulation. In view of that, provisions of F.R. 14-A o f Fundamental Rules & Supplementary Rules, which deals with lien in respect of S tate Government employees would be also applicable in the case of the employees of the University. F.R.14-A, as mentioned above, makes it clear that a Government s ervant’s lien on a post cannot be terminated even with his consent, if it wou ld result in leaving the employee without any lien or a suspended lien if he is holding the post. In the present case, the petitioner is admittedly holding the po st of Professor and accordingly, in normal circumstance, the petitioner would b e entitled to service lien upto 31.12.2012 by virtue of F.R. 14-A. Learned counsel appearing for the petitioner has drawn the atten tion of this Court to a notification issued by the Registrar of the Dibrugarh Un iversity on 19.10.2012 stating that in pursuance of Resolution No.(1) of the 31 6th (Special) Meeting of the Executive Council, D.U. held on 15.10.2012, it has been notified that as per recommendation of the Govt. of Assam vide Govt.

Order No. AHE.418/2012/5 dated 20.09.2012, the retirement age of the Professors of th e Dibrugarh University has been raised to 65 years w.e.f. 15.10.2012, i.e., the date of the 316th (Special) Meeting of the Executive Council, D.U, a copy of whi ch is kept on record and marked as (cid:28)X (cid:29). Learned counsel appearing for the resp ondents does not deny the veracity of the said document. Accordingly, in view of the aforesaid notification, the retirement age of the Professor has been raised to 65 years and as such, in normal circumstances, lien of the petitioner would be also extended till he reaches 65 years i.e. 31.12.2017. In view of the specific decision of the Executive Council in the ir 73rd Meeting held on 20.7.1974 as provided under Ordinance 32 that State gove rnment service rules will be applicable where the University rules are silent, t his Court is of the view that the aforesaid Resolution No.4 taken by the Executi ve Council in their 267th Meeting held on 23.11.2004 is not in consonance with t he rules and decision of the University, as discussed above and accordingly, the said Resolution No.4 is set aside.

The University authorities cannot deny lien to the petitioner, who holds the substantive post of Professor after the petitio ner was appointed as Registrar of the University for the second which took effec t from 29.11.2004. Accordingly, it is directed that the petitioner would be enti tled to his lien to the post of Professor upto the date of superannuation i.e. 3 1.12.2017 in view of the notification dated 19.10.2012 issued by the Registrar, Dibrugarh University. With the above observation and direction, the present writ petit