Dr. Ajay Kumar Rai vs The State Of Madhya Pradesh & Ors.

Petitioner has filed this writ petition under Article 226 of the Constitution of India making following prayer:-

Learned Senior Counsel appearing for the petitioner submitted that petitioner holds lien on the post in Nana Ji Deshmukh Veterinary Science University, Jabalpur therefore, he may be permitted to come back.

Learned Senior Counsel relied upon the judgment passed in case of State of Rajasthan and another Vs. S. N. Tiwari and others, (2009) 4 SCC 700. The Supreme Court held in para 17 which is reproduced as under:-

Learned senior counsel appearing for petitioner has placed reliance on judgment passed by Apex Court in case of L.R. Patil Vs. Gulbarga University, Gulbarga, 2023 LiveLaw (SC) 748. In said case appellant was appointed as Junior Assistant in Bangalore University. He was transferred to Gulbarga University on 21/07/1981 and promoted to post of Assistant Office Superintendent. Eventually, vide order dated 07/08/1987 he was promoted to the post of Office Superintendent on completion of one year probation period and was substantively appointed on post of Office Superintendent. Subsequently in 1993 University invited applications for appointment to the post of Assistant Registrar via direct recruitment. Appellant applied for said post and was selected. He had to serve for period of two years as probationer before confirmation on said post. Respondent University relieved appellant from post of Office Superintendent on 04/02/1993. Appellant joined on post of Assistant Registrar in respondent University. Appellant’s appointment was challenged by two candidates who were later promoted to the post of Assistant Registrar by University. Due to pendency of Writ Petition appellant continued on probation on the post of Assistant Registrar and was not confirmed. Writ petitions were allowed and appointment of appellant was quashed. Writ Appeals were also dismissed. Appellant filed an application to join on previous post of Office Superintendent with immediate effect. It was held that appellant L.R. Patil has not maintain lien over previous post of Office Superintendent with approval of competent authority as required under General Rules of Karnataka Civil Services. Apex Court held that lien of Government servant on previous post is protected till his or her continuation on probation period on the new post. Intention is to protect the past service of Government servant in cases where Government servant is not confirmed or absorbed substantially on the new post.

Learned senior counsel submitted that in aforesaid case petitioner has changed his employment from Bangalore University to Gulbarga University in different establishment. Lien of appellant therein was held to be maintained in Bangalore University as petitioner could not be confirmed on post of Assistant Registrar in Gulbarga University. It is submitted that in this case facts and judgment passed in case of L.R. Patil (supra) are identical and similar to that of petitioner i.e. Dr. Ajay Kumar Rai. He was appointed as Assistant Professor in Nana Ji Deshmukh Veterinary Science University, Jabalpur (for short ‘NDVSU') and has applied for post of Associate Professor in Bihar Animal Sciences University, Patna. He was appointed on probation. He was not confirmed in later post, therefore, his lien continues on post of Assistant Professor in NDVSU. Respondents are committing an error of law in not permitting petitioner to join as Assistant Professor in NDVSU if petitioner do not want to continue his service at Bihar Animal Sciences University, Patna. In view of same, petitioner is entitled for lien on the post of Assistant Professor in NDVSU.

Government Advocate appearing for State as well as for respondent Nos.2 & 3 submitted that petitioner do not hold any lien on post of Assistant Professor in NDVSU. Petitioner has tendered his resignation and had joined in another University. After resignation his services stood forfeited in NDVSU and lien does not continue. In view of same, no relief can be granted to petitioner and petition be dismissed.

Heard counsel for the parties.

Petitioner joined the post of Assistant Professor vide appointment o r d e r dated 12/02/2015 in NVDSU, Jabalpur on permanent basis. Respondent No.4 i.e. Bihar Animal Sciences University, Patna issued an advertisement for post of Associate Professor. Petitioner applied for the same. Respondent No.4 called upon petitioner to furnish NOC from existing employer (respondent No.2). NOC was granted to petitioner on 05/03/2024. Petitioner was given an offer of appointment on 16/03/2024 and there was probation for period of two years. Petitioner has to execute a bond at the time of joining to serve University for period of three years and he would be on probation for two years from date of joining. Petitioner requested respondent Nos.2 & 3 to relieve with protection of his lien on post of Assistant Professor at NDVSU. Petitioner submitted his technical resignation with lien to Registrar, NDVSU on 29/04/2024 and on 07/06/2024. Registrar accepted resignation of petitioner vide order dated 02/07/2024. Petitioner was relieved from his duties on 03/07/2024 by Dean of College of Veterinary Science and Animal Husbandry, Jabalpur.

Question before Court is whether petitioner maintained a lien on post of Assistant Professor, where he has been appointed permanently on substantiate capacity when he has been appointed as an Associate professor at Bihar Animal Sciences University, Patna. Petitioner has failed to file any circular, Rules and Regulations of the University. Learned counsel failed to point out whether NDVSU has adopted the Rules of State Government, therefore, petitioner will be governed by Rules of State Government. Learned senior counsel has pointed out Fundamental Rules, but said Rules are only applicable to all Government servants whose pay is debitable to civil estimates in India to any other class of Government servant of India to which Secretary to State in Council may by general or special order declared them to be applicable. Under what provision of law petitioner is claiming lien on the post of Assistant Professor in NDVSU has also not been pointed out by counsel.

Petitioner has failed to point out whether NDVSU is governed by laws of State Government or it is Central University or governed by University Grant Commission. Petitioner failed to brought on record statutes of University. Petitioner will hold lien over the post in NDVSU as Fundamental Rules provide for the same but petitioner has failed to point out whether said fundamental rules are applicable or not on NDVSU.

It is establish law that there is a difference in pleadings between a civil suit and a writ petition. In civil suit only facts are to be pleaded and law is not required to be pleaded. Court can always look into the law if all the facts are pleaded. However, writ petition is to be decided on basis of admissible facts between the parties and disputed questions of fact are not to be considered by Court. Further, evidence and laws are also required to be pleaded in writ petition which make pleading in writ petition and in civil suit different. Petitioner has failed to plead any law applicable in the writ petition.

Learned Senior Counsel appearing for petitioner has argued about technical resignation but under what statute of NDVSU or under what law said law is applicable in case of petitioner. Further, respondent had pleaded that resignation given by petitioner has brought an end to lien on substitutive post on NDVSU. Registrar has not clearly stated in acceptance letter of resignation that technical resignation of petitioner is accepted. On the contrary, note was made that there are dearth of Lecturers in NDVSU. In absence of clear pleading of law and it is also doubtful that petitioner's technical resignation has been accepted by Registrar as note has been affixed by him regarding dearth of Lecturers. It can not be said that technical resignation is accepted by the Registrar.

Case of L.R. Patil (supra) which is tenaciously relied upon by petitioner is not applicable in his case. In said case, petitioner therein was transferred from Bangalore University to Gulbarga University. Later on, Gulbarga University has invited forms for the post of Assistant Registrar in which he has applied. Said person was on transfer to Gulbarga University and it was not a case of submission of resignation and joining to another University or department. Law of lien will be applicable when a person is transferred from one department to another department within State Government or from State Government to Central Government where technical resignation has been accepted and he was allowed to join there holding his lien on first post substantively. In this case, petitioner has joined from NDVSU to Patna University. They are entirely two different bodies.

Fundamental Rule - 13 is quotes as under :-

Fundamental Rule 13 regarding retention of lien also does not help petitioner as lien will be applicable when a person is performing duties on that post, while on foreign service, holding a temporary post, officiating in another post, or in cases of suspension or leave. Learned Senior counsel for petitioner is not able to bring his case within four corners of Fundamental Rule 13 and in case of L. R. Patil (supra) petitioner therein was transferred from Bangalore University to Gulbarga University and later on applied for post of Registrar.

In view of aforesaid, Writ Petition filed by petitioner, is dismissed.