Maryam Bano vs State of J & K

O.P. Sharma, J.—The petitioner was appointed Junior Assistant in the office of Advocate General in December, 1985. Later she came to

be transferred on mutual basis to Government Department (Trainings) in exchange with one Sushma Kumari by order dated 24.4.1987. By order

dated 19.4.1988 issued by the General Department she has been adjusted in the office of Directorate of Land Records and Consolidation of

Holdings, Jammu against the post of Junior Assistant held by one Satish Kumar who was transferred to Public Service Commission against an

available vacancy. However, the order of transfer dated 19.4.1988 carries a stipulation that both of them shall retain lien in their parent

department.

The grievance projected by the petitioner is that respondents 4 to 7 (hereinafter private respondents) though junior to her in service have been

promoted by respondent No. 3 without considering her for promotion to the next grade, even though her lien has not been suspended. Thus the

relief prayed by her is that promotion of private respondents be quashed with a direction that she be considered for promotion along with other

eligible persons.

In the counter filed on behalf of respondent No. 3 the claim made by the petitioner is resisted on the ground that her appointment being only for

two years, she had no lien on the post particularly when she was transferred by the General Department much before the expiry of the period of

two years. Subsequently the General Department by order dated 12.8.1987 again transferred the petitioner to the office of respondent No. 3 but

she was not allowed to join and this culminated in the issue of order dated 19.4.1988. Consequently she stands appointed by transfer and the

stipulation that she will retain her lien in the parent department is a surplusage or innocuous because in fact she had not earned the lien at all as the

life of the post against which she was appointed being only for two years, she could not have been appointed against a permanent vacancy.

Mr. Dutta appearing for the petitioner argued that as per Govt. Order dated 19.4.1988 she retains the lien in the office of Advocate General

and therefore had a right to be considered for promotion. Since she was not considered at the time of promotion of private respondents, the order

impugned is bad and as such liable to be quashed. Mr. Kapoor appearing for Advocate General however argued that the petitioner having been

appointed on a temporary post, her lien could not be retained and the stipulation contained in the order is nonest and has to be ignored.

The only question involved is whether the petitioner holds her lien in the office of respondent No. 3 and the stipulation in Govt. Order No.

612GD of 1988 dated 19.4.1988 to that extent is valid considering the nature of her appointment. According to the respondent the post on which

she was appointed being temporary, her appointment was not substantive and therefore, she had no lien on the post which is a precondition under

Article 37A of the Civil Service Regulations. Since the Govt. Order No. 838ID/Estt of 1985 dated 3.12.1985 reveals that she was appointed

Junior Assistant against the post created for a period of two years vide Govt. Order No. 73ID of 1985 dated 24.1.1985, so the life of the post

being admittedly for only two years, she could be appointed only for the said period. Obviously, therefore, it was not a substantive appointment

which is a precondition to acquire lien under Article 37A of Civil Regulations which reads :

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.

Since the post was temporary, her appointment could not be substantive and as such she did not acquire any lien on the post. The expression,

government servant holding substantively a permanent post retains a lien"", occurring in Article 37B and, ""a government servant on a permanent

post"", in Article 37C lead to the only one and the only one conclusion that lien is acquired by a government servant only on being appointed to a

permanent post. Not otherwise.

Moreover by order dated 24.4.1987 of the General Department, petitioner and one Sushma Kumari were to exchange their place of postings,

pursuant to which the petitioner joined in the General Administration Department as Junior Assistant. Subsequently by order dated 12.8.1987 the

petitioner was re transferred to her parent office, but this was objected to by the Advocate General. Consequently the order was not implemented

and a lengthy correspondence followed between the office of Advocate General and the General Administration Department as is indicated by

letter dated 25.11.1987 written by the Advocate General to the Secretary to Government, General Department, which is reproduced below :

Kindly refer your letter No. GD(Est) 24/87I dated 6.1.1988. Smt. Maryam Bano borne on the establishment of Advocate General had been

transferred to the General Department while she was attached with the Additional Advocate General, Jammu. In her place Miss Sushma Kumari

Jr. Assistant had been transferred who did not join for a long time in spite of repeated requests. Accordingly on the matter being brought to the

notice of your predecessor the post of Junior Assistant was filled up and the office of the Additional Advocate General, Jammu provided with a

substitute.

A copy of the appointment order of Smt. Maryam Bano enclosed to this letter would reveal that Smt. Maryam Bano had been appointed for a

period of two years in the office of Advocate General. Since the appointment was only time bound and not substantive Smt. Maryam Bano could

not retain any lien on the post. As per the order of appointment the same enured till 2.12.1987. As already informed by my Administrative Officer

vide letter No. AG/202 dated 25.11.1987 no post of Junior Assistant is presently available in our office against which Smt. Maryam Bano can be

adjusted.

It is thus obvious that the order dated 12.8.1987 was not implemented by the Advocate General and finally the General Administration

Department adjusted the petitioner in the office of Directorate of Land Records & Consolidation of Holdings, Jammu. Though it is an order of

transfer but against the post held by one Satish Kumar, Junior Assistant who was transferred to Public Service Commission against available

vacancy. This order reads as under :

In the interest of administration the following transfers of Junior Assistants are hereby ordered with immediate effect :

S. No. Name of Official Deptt. where posted

Smt. Mariyam Bano, Junior Assistant Additional Advocate General Office, Jammu, presently attached in the General Department Directorate of

Land Records and Consolidation of Holdings Jammu in place of Shri Satish Kumar, Junior Assistant.

Sh. Satish Kumar, Junior Assistant Directorate of Land Records and Consolidation of Holdings, Jammu, Public Service Commission against an

available vacancy of Junior Assistant.

Both the officials shall retain their lien in their parent departments/cadre.

Since the petitioner was not borne on the cadre of Advocate General as noticed above, it was wrong on the part of General Administration

Department to indicate that she has been transferred from the office of respondent No. 3 when the Advocate General had clearly stated that she

was not holding any lien. Likewise it was against the mandate of Article 37A to provide a stipulation that she will retain her lien in the office of

Advocate General. So the stipulation about the petitioner's lien is non est being contrary to Article 37A of Civil Service Regulations and the

circumstances in which she came to be adjusted in the office of Directorate of Land Records. Ordinarily she will be entitled to the seniority

assigned to Satish Kumar, who has also been adjusted in the office of Public Service Commission against available vacancy, but that is a question

which is to be resolved by the administrative department where she is working.

In view of the above, there is no merit in the petition and is dismissed accordingly.

Petition dismissed.