Hem Raj vs State of J & K

T.S. Doabia, J.—The petitioner came to be appointed as a constable. His initial appointment was in Jammu District. He is in this

establishment right from 18th December, 1971. The petitioner was transferred to Poonch District in December, 1977. The petitioner came back to

Jammu.

The petitioner submits that a Departmental Promotion Committee which was constituted for Jammu District when the petitioner was out of

Jammu. He submits that his case for placing him on list `A' was not considered. The petitioner submits that as a matter of fact he was not called for

interview. His grievance is that on account of his this initial nonconsideration, the petitioner was unable to get further promotions.

The stand taken by the respondent is that as the petitioner was transferred to Poonch District, his case could not be considered in Jammu

District when departmental promotion committee was constituted. Earlier in 1975, the petitioner was called but he did not appear in the interview.

Under these circumstances it is stated that the petitioner has no cause of action.

It is further stated that the persons who were promoted over and above the petitioner were so promoted more than seven years back. It is

accordingly stated that the petition suffers from delay and laches.

It be seen that petitioner was appointed as a Constable in the District of Jammu. No doubt, he was transferred to Poonch but there is nothing on

the record to substantiate that his lien in Jammu District came to an end. The fact that petitioner was transferred back to Jammu cannot be ignored.

His claim was rejected merely on the ground of delay. If this be the situation then there is something to be said in favour of the petitioner.

The question as to whether lien of the petitioner stood terminated in the district of Jammu on his transfer to Poonch district be examined. The

relevant rules which deal with the subject matter are contained in Civil Service Regulations. These are Rules 37A and 37B, for facility of reference

these are reproduced below:

37A. Unless in any case it be otherwise provided in these Regulations, 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. A Government servant on his substantive

appointment to a tenure post may acquire a lien thereon without ceasing his lien on any other permanent post.

37B. Unless his lien is suspended under Article 37C or transferred under Article 37H 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 substantively 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) while on leave other than refused leave under Article 166A;

e) While under suspension.

A plain reading of the aforementioned rules makes it apparent that unless and until a Government servant is confirmed against another post, his

lien in the original post remains as it is. This aspect of the matter was considered in the case reported as T.R. Sharma, Appellant v. Prithvi Singh

and another, Respondents in AIR 1976 Supreme Court 367. Punjab Civil Service Rules were under consideration in the above case. The

appellantT.R. Sharma was confirmed against another post. Later on this order was rescinded. The arguments raised by the respondent was that as

the lien of the petitioner had come to an end in the earlier department, therefore, this could not be revived. This contention was negatived and it

was held that the concerned employee would continue to have lien in the earlier department. In the present case no order has been placed on the

record which may indicate that lien of the petitioner was ever terminated by passing an express order. If this be the position then the petitioner

would be deemed to have his lien in the District Jammu and therefore, he would be entitled to all those benefits which he was entitled to in his

capacity as a employee borne on the district of Jammu.

The net result is that the petitioner would be enitled to all the benefits to which he was entitled to on account of his continued retention of lien in

the district of Jammu. This petition is accordingly allowed.

This petition which was admitted and taken up for final disposal with the consent of the parties is accordingly disposed of with the above

directions.

Petition allowed.