Krishna Shanker Sharma and Others vs State of U.P. and Others

The appellants were appointed in short-term vacancies, caused by the respondents 4 to 6''s joining other school. After having so joined, the respondents 4 to 6 re-joined the parent school on 9.3.1999. The appellants filed a petition challenging the said appointment on the ground that the respondents 4 to 6 had lost their lien on the post as they were holding the post on short-term vacancy and their (appellants) case ought to have been considered for regularisation. Learned Single Judge after considering the contentions and hearing the parties was pleased to hold that the appellants here have no prima facie case to continue as teachers since the respondents 4 to 6 have already taken charge of their duties and started teaching the classes and accordingly dismissed the petition. It is this order which is subject matter of the present appeal.

It is worthwhile to narrate few facts to understand the chronology of events, leading to the writ petition.

In September, 1982, the respondents 4 to 6 were appointed as Assistant Teacher on regular basis in the school, "Vivekanand Shiksha Niketan Inter College", which, at the relevant time, was recognised but unaided college. The appointment was approved by the Basic Shiksha Adhikari, Unnao on 8.9.1982. After thirteen years continuous service, the respondents 4 to 6 applied for grant of extraordinary leave as they were appointed as Assistant Teacher in Primary Schools on temporary basis. On 28.3.1995, the Committee of Management had granted extraordinary leave for five years subject to the condition that after expiry of leave, they have to come back to the school.

Short-term vacancies arose on account of the respondents 4 to 6 being allowed to join as Assistant Teachers in Primary Schools and the appellants were appointed in leave vacancy till the respondents 4 to 6 come back and join their duties. The District Inspector of Schools granted approval to the appointment of the appellants 1 and 2 only upto 20.5.1996 or up to joining of regularly selected candidates, i.e. the respondents 4 to 6, whichever is earlier. The school from which the respondents 4 to 6 had left and the appellants had joined, came under grant-in-aid. The appellants filed a writ petition No. 5712(S/S) of 2000 Krishna Shankar Sharma and Ors. v. State of U.P. and Ors. However, no interim order was passed. On 9.3.1999, the respondents 4 to 6 came back and submitted their joining report in the school with copy to the District Inspector of Schools. The District Inspector of Schools, on 10.3.1999, directed the Manager to permit the respondents 4 to 6 to join the school. On 11.3.1999, the Manager/Principal permitted the respondents 4 to 6 to join. Accordingly, they joined their duties in the school and started teaching. According to the learned Counsel for the appellants, after the joining of the respondents 4 to 6, an interim order was passed in the writ petition that the petitioners/appellants will be permitted to continue till regularly selected candidates join, though according to the appellants'' counsel, they (respondents 4 to 6) had already joined. There are some other proceedings too which are not much relevant to mention here. On 15.5.2000, the District Inspector of Schools forwarded the papers of answering respondents to the Joint Director for sanction of salary. Thereafter, the appellants filed a writ petition. Ultimately, on 24.8.2001, the petition was dismissed, against which, present appeal.

The short question raised on behalf of the appellants is that once the respondents 4 to 6 had joined in the school and according to the appellants, the respondents 4 to 6 were appointed on regular basis in that school, they have lost their lien on the post and consequently, the action of the respondent No. 7 in allowing the respondents 4 to 6 to joint back was without authority of law and hence, illegal. Learned Counsel for the appellants relied upon the judgment of Hon''ble Supreme Court in Ramlal Khurana (Dead) By Lrs. Vs. State of Punjab and Others, To understand the concept of lien, we would like to refer certain portion of paragraph 8 of the judgment in Ramlal Khurana''s case(supra) which is quoted as under:

...Lien is not a word of Article It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no government servant can have simultaneously two liens against two posts in two different cadres. It is a well accepted principle of service jurisprudence.

In the instant case, firstly, the respondents 4 to 6 had not joined the post in the same department. Secondly, they had taken extraordinary leave which was granted while joining the post in the second school. They were permitted to do so with the condition that they would come back after five years. The observation of Hon''ble Supreme Court in the case of Ramlal Khurana (supra), which used the expression, "generally", has to be understood in that context. In the instant case, therefore, the respondents continued to hold the lien on their post and they were allowed temporarily to continue upto five years. They came back before the period of five years. Even assuming that they were holding a post in some of the school, that merely would not result in forfeiture of their lien in the parent school. In our opinion, therefore, it cannot be said that the respondents 4 to 6 did not have lien to the post.

Considering that only point, raised, we find no merit in the appeal. It is accordingly dismissed.