Anupam Roy vs State Of Assam And 3 Ors

Heard Mr. M.H. Laskar, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel for the Secondary Education

Department.

The petitioner was temporarily appointed as Senior Grade Hindi Teacher in the Marjatkandi Public H.S. School, Marjatkandi in the district of

Karimganj as per the order of the Director of Secondary Education, Assam for a period of three months. The said appointment was later on extended

by the Inspector of School by the order dated 19.05.1994 for another three months. Subsequently, on 04.10.1997, the service of the petitioner was

adjusted in his own grade and scale of pay in the post of Senior Grade Hindi Teacher that had fallen vacant in the non-plan scheme. On 11.07.2002,

the Inspector of School, Karimganj had issued a No Objection Certificate to the petitioner for procuring an Indian Passport/Visa to visit any foreign

country.

On 21.02.2003, the petitioner submitted an application before the Principal of the concerned Higher Secondary School requesting for grant of earn

leave for 15 days w.e.f. 03.03.2003 with station leave permission due to certain personal affairs of the petitioner. On 24.03.2003, the petitioner

submitted another application before the Principal requesting that his leave be extended for a further period of one month. Another application was

filed on 24.04.2003 requesting that the leave be extended for two months. Again on 14.06.2003, a further application was filed requesting that the

leave be extended for three months. It appears that the petitioner had from time to time went on making such applications. It is stated that the

petitioner after submitting such application had gone to London for some purpose. The petitioner prefers this writ petition claiming that he had a right

to lien over his post and therefore, he should be taken back in service after he had returned back from London.

It is noticed that the aforesaid application submitted by the petitioner from time to time contains an endorsement by the Academic In-Charge of the

concerned Higher Secondary School indicating that he had received the application. It is further noticed that the endorsement are of the day next

when the concerned application were made. It is not understood as to how the petitioner had made that application on a given day from London and

the Academic In-Charge had received the same on the very next day. Be that as it may, after returning back, the petitioner submitted an application

before the Director of Secondary Education, Assam requesting that he be allowed to rejoin his service and by the communication dated 27.05.2013,

the said application was forwarded by the Inspector to the Director of Secondary Education, Assam.

Lien is not an absolute right of an employee that whenever an application is made it is to be presumed that the lien had already been granted. Grant

of lien is a discretionary power vested in the employer who upon his own application of mind may or may not grant the lien claimed by an employer.

Also in the instant case, we do not find any application by the petitioner for grant of lien nor we find any discretion being exercised by the

respondent authorities in granting the petitioner lien as claimed for. The application for earned leave and other leave made from time to time cannot be

construed to be an application for grant of lien.

In such view of the matter, the claim of the petitioner in this petition for a direction to the respondent authorities to grant the lien for the period of

absence in service is found unacceptable.

It has also been taken note of that by his conduct the petitioner had abandoned his service without any authority of law. From the said point view

also the claim for direction to lien is found to be unacceptable. But however as lien is a matter of discretion of the employer, liberty is granted to the

petitioner to prefer any appropriate application before the Commissioner & Secretary to the Govt. of Assam in the Secondary Education Department

and in the event any such application is filed, the Commissioner shall pass a reasoned order on the same by giving his reasons thereof. Granting of

liberty shall not be construed to be a requirement to grant the lien and the Commissioner & Secretary shall pass his own reasoned order depending on

the facts and circumstance and also the entitlement of the petitioner for such lien. Writ petition is accordingly disposed of.