Judgment:
H.K. Sema, J.
1. This writ appeal is directed against the judgment and order dated 6,5.1996 passed by the learned Single Judge in Civil Rule
No. 1485/96.
2. We have heard Mr. Ranjan Gogoi, learned Sr. counsel for the appellant as well as Mr. D.P. Chaliha, learned counsel for the respondents 2 and 3.
3. Facts leading to the filing of the present appeal may be summarily recited. Appellant was initially appointed in a substantive post of Assam Judicial Service Grade-III by notification dated 2.7.1977 and he joined the post on 5.7.1977. While the appellant was working as such, the Joint Secretary to the Government of Assam Judicial Department advertised one post of Deputy Secretary in Grade-III of Assam Legal Service under Regulation 3(e) of Assam Public Service Commission (Limitation of Functions) Regulation, 1951 (hereinafter the Regulation). Appellant applied for the said post through proper channel and his application was forwarded by the respondent No.3 without any objection. He became successful and he was recruited to Grade-III of the Assam Legal Service and on being recruited to the Grade-III of the Assam Legal Service, he was released by the High Court on 29.7.1986 and he joined the post of 30.7.1986. Thereafter, by an order dated 11.9.1986 appellant was confirmed in the Grade-III of the Assam Judicial Service. On 11.9.1986 the Assam Public Service Commission advertised 3 (three) posts in Grade-III of Assam Legal Service. Appellant also applied and appeared before the Public Service Commission and he was placed at serial No. 1 of the select list published on 2.9.1987. By a notification dated 10th Sept., 1997 the appointment of the appellant as Deputy Secretary, Govt. of Assam, Legislative Department under Rule 3(1) of the Assam Public Service (ad hoc) Appointment Rules, 1986 made by notification dated 18.7.1986 was regularised. This notification has important bearing. It reads :
NOTIFICATION Dated Dispur, the 10th September, 1987.
No.LJJ.293/87/5: On the recommendation of the Assam Public Service Commission, the Governor of Assam is pleased to regularise the appointment of Shri Kuladhar Puhukan who was appointed as Deputy Secretary to the Govt. of Assam, Legislative Department under Rule 3(1) of the Assam Public Services (Ad hoc) Appointment Rules, 1986 under this Department Notification No.JDJ.290/77/272 dt. 18.7.1986.
Sd/- S.M. Deka.
Secretary to the Govt. of Assam,
Judicial Department.'
4. On the appellant's service being regularised with effect from 18.7.1986 as Deputy Secretary to the Govt. of Assam, Legislative Department by the aforesaid notification, he was further temporarily promoted to the post of Joint Legal Remembrancer and Joint Secretary to the Government of Assam (Grade-II) by notification dated 19.8.1992 and he joined the post on the same date. However, by notification dated 10th April, 1995 the service of the appellant as Joint Secretary to the Govt. of Assam was posted as Assistant District & Sessions Judge, North Lakhimpur purportedly on his service being placed at the disposal of the Gauhati High Court. At the same time, by a notification dated 20.3.1996 the Government of Assam placed the service of the appellant at the disposal of the Gauhati High Court so as to enable him to join as Assistant District & Sessions Judge, North Lakhimpur. We may mention herein that there are certain anomalies in the order dated 10.4.1995 appointing •the appellant as Assistant District & Sessions Judge, North Lakhimpur and the notification dated 20.3.1996 placing the service of the appellant at the disposal of the High Court. We say this because, if the Assam Government place the service of the appellant at the disposal of the High Court so as to enable him to Join as Assistant District & Sessions Judge, North Lakhimpur by notification dated 20.3.1996, the appellant could not have been appointed and posted as Assistant District & Sessions Judge, North Lakhimpur by the Registrar of the High Court by notification dated 10.4.1995. It was a case of putting the cart before the horse. It transpires, there appears to be some correspondences in between these two dates but nobody has come forward for clarification. Be that as it may, the order dated 10.4.1995, Annexure-9 and the order dated 20.3.1996, Annexure-11 (in Writ Petition) has been assailed by the appellant by filing Civil Rule registered as Civil Rule No. 1485/96 which was dismissed by the learned Single Judge by judgment and order dated 6.5.1996 impugned in this writ appeal.
5. Before the learned Single Judge amongst others it was contended that the appellant is holding a substantive post in the Assam Legal Service by virtue of his appointment on the recommendation of Assam Public Service Commission to a substantive post of Deputy Secretary and regularised by notification dated 10.9.1987 to that post with effect from 18.7.1986 and therefore, Annexures-9 to 11, orders dated 10.4.1995 and 20.3.1996 are void and inoperative in law. On the other hand, it was the case of the respondents that the appellant being a substantive member of the Assam Judicial Service he cannot be a substantive member of the Assam Legal Service. It was also urged before the learned Single Judge that there was no effective consultation as required by Rule 7 of the Assam Legal Service Rules, 1962, prior to the passing of the notification dated 10.9.1987.
6. The short question that arises for determination is to whether the substantive appointment of the appellant in the Assam Legal Service, his lien in the Assam Judicial Service automatically ceases by operation of law and whether the Government servant can have 2 (two) lines simultaneously against 2 (two) substantive posts in 2 (two) different cadres.
7. In the instant case, the undisputed facts are these. The petitioner/appellant was appointed in Grade-III of Assam Judicial Service by a notification dated 2nd July 1977. Thereafter, pursuant to an advertisement dated 27.2.1986, petitioner applied for the post of Deputy Secretary of Assam Legal Service and he was appointed to the post under Rule 3(1) of the Assam Public Service (Ad hoc) Appointment Rules, 1986 by a notification dated 18.7.1996. Subsequently, by an advertisement dated 11.11.1986 issued by the Assam Public Service Commission for filling up of the post on regular basis, the petitioner applied for the post and appeared before the Public service Commission and was placed at serial No.1 of the select list published on 2.9.1987 and by a notification dated 10.9.1987 the service of the petitioner appointed on ad hoc basis on 18.7.1986 was regularised. Since the service of the petitioner was regularised with effect from 18.7.1986 by a notification dated 10.9.1987 after the appellant participated in the selection process conducted by the Assam Public Service Commission, he has acquired a substantive post in the Assam Legal Service. How, where and in what manner the appellant's service was regularised in the Assam Judicial Service with effect from 18.7.1986 was not before this Court inasmuch as the sole prayer of the appellant/petitioner was that he acquired a
substantive post of the Assam Legal Service and his service could not have been placed at the disposal of the High Court by a notification dated 20.3.1996 and appointment and posting of the petitioner/appellant as Assistant District & Sessions Judge, North Lakhimpur by a notification dated 10.4.1995. We are, therefore, unequivocally of the view that the appellant has acquired a substantive post in the Assam Legal Service subsequently since from 18.7.1986 and his lien in the Judicial Service automatically stands terminated by operation of law with effect from 18.7.1986. Confronted with the legal position, Mr. D.P. Chaliha appearing for the respondents 2 and 3 in his usual fairness submits that this Court may pass an appropriate order in accordance with law. In fact, the notification dated 10.4.1995 and the notification dated 20.3.1996 assailed in the writ petition have been subsequently cancelled by notifications dated 17.9.1996 and 2.6.1998 respectively vide Annexures-1 and 2 in Misc. Case no.13/98 in Writ Appeal no. 177/96 during the pendency of his Appeal. Technically speaking therefore, there is nothing remain to be considered but because of short question of law we have heard the parties. We are clearly of the view that the Government servant cannot have simultaneously two liens against two posts in two different cadres. Judicial service under the High Court and Legal Service under the Assam Government are two different cadres. Appellant having held the post under the Assam Legal Service since from 18.7.1986 substantively, he cannot have lien against another substantive post in the Judicial Service under the High Court. This principle is based on sound public policy, because if a Government servant is allowed to hold two substantive posts simultaneously in different cadres, not only the public interest would suffer but also the chances of another Government servants who are aspiring for further promotion are stalled.
8. In this connection, reference may be made to Clause (d) of
Fundamental Rules (FR) 14-A. It reads :-
'3(d). A Government servant's lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or a State Government) outside the cadre on which he is borne.'
9. The aforesaid Rule has been interpreted by the Apex Court that an incumbent on appointment to permanent post, be it under the Central Government or the State Government, outside the cadre on which he is borne, his lien on the previous permanent post stands terminated on his acquiring a lien in a permanent post.
See Dr. S.K. Kacker, Appellant v. All India institute of Medical Sciences and others, Respondents, (1996) 10 SCC 734. There the appellant while working as Head of the Department and Professor of the ENT Department was selected by the Selection Committee for appointment as Director of the All India institute of Medical Sciences (AIIMS). The appointment of Director of AIIMS is a tenure post and for a period of 5 (five) years. On completion of the period of 5 years the incumbent wants to be reverted to his parent post. The question that arises for consideration in that case was whether on expiry of 5 years tenure as Director, he would be entitled to go back as Professor and Head of ENT Department till he attain his superannuation. Relying on the Sub-Clause (d) of FR 14-A as quoted above, the Apex Court has held that on his appointment to the permanent post as Director, he lost his lien on the post as Professor and Head of ENT Department and therefore he cannot revert to his parent post as Professor and Mead of the ENT Department.
10. The next, question whether Government servant can have simultaneously 2 liens against 2 posts in different cadres has come up for consideration before the Apex Court in Ramlal Khurana (dead) by L.Rs., Appellants v. State of Punjab and others, Respondents, AIR 1989 SC 1985. There the facts of the case were like this :- Appellant joined the service as Clerk in the Police Department. While he was working as such, he appeared for the selection to the post of Excise Sub-Inspector. He was selected and appointed and thereafter, he continued in the post. In October 1963, he was repatriated to his parent department to a lower post as the post of Excise Sub-Inspector was in the higher scale than the post of a Clerk in the Police Department. Appellant had challenged the repatriation order by filing civil suit for a declaration that the order of reversion was illegal and void and the appellant has a right to continue as Sub-Inspector in the Excise Department substantively. Learned Subordinate Judge accepted his claim and decreed the suit with observation inter alia that the plaintiff had continued to hold the post for more than 6 (six) years after the years of probation expired and further observed that the plaintiff must be taken to have so continued in a substantive capacity and that the reversion of his service necessarily amounted to punishment. Since the repatriation was set aside by the Civil Court, he was allowed to continue without interruption in the Excise Department. Thereafter, on 1st Oct.'75 the Excise Commissioner made an order compulsorily retiring him from service. The appellant challenged the validity of the order mainly on the ground that the
Excise Commissioner was not competent to order retiring him compulsorily since he belongs to Police Department as he still has a lien in the Department and therefore, the Inspector General of Police was alone competent to deal with such order. It was further contended on behalf of the appellant that since the appellant was not confirmed in the Excise Department he acquires no lien in the Department.
11. The aforesaid contentions were rejected by the Apex Court in paragraph 8 of its judgment.
'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.'
12. Following the law laid down by the aforesaid two judgments of the Apex Court, we are clearly of the view that the issues before us are no more res integra. It has been set at rest.
13. In the instant case, the appellant having acquired the post under Legal Service of Assam substantively with effect from 18.7.1986, we are clearly of the view that since the appellant cannot maintain two liens simultaneously against two posts in two different cadres, his lien to the post of Assam Judicial Services automatically stands terminated by operation of Sub-Clause (d) of FR 14-A. In such a situation, no order of absorption nor request for absorption would become necessary. It automatically terminates by operation of law. We may, however, observed that by a letter dated 9.4.1992, appellant was directed to give option as to whether he seeks to remain in the Assam Legal service or to revert back to his parent cadre of Assam Judicial Service, but he remained silent. In normal course of human nature, appellant ought to have opted to remain in Assam Legal Service to which post he has subsequently acquired substantively. But this would be no reason to reject his representation in view of legal position as discussed above. It may also relevant to be noted that during the pendency of this writ appeal the service of the appellant has further been confirmed as Joint Legal Remembrancer and Joint Secretary to the Govt. of Assam, Judicial Department in grade-II subject to the result of writ appeal by a notification dated 28th August 1998. It would also appear from the order sheet that the appellant was also allowed to file a representation before the High Court on the administrative
side by an order dated 1.4.199 and pursuant to that order the appellant has filed representation which was rejected pursuant to the Full Court Resolution and communicated to the appellant by an order dated 18.9.1999. The order dated 18.9.1999 rejecting the representation of the appellant dated 12th April 1999 is placed on record.
14. In view of the aforestated reasons, we allow the appeal. The order dated 6.5.1996 passed by the learned Single Judge in Civil Rule No. 1485/96, the impugned notification dated 10.4.1995 (Annexure-9 of the writ petition) the impugned notification dated 20.3.1996 (Annexure-11 of the writ petition) and the order dated 18.9.1999 passed by the respondent No. 3 are hereby quashed and set aside. Looking into the facts and circumstances of the case, parties arc asked to bear their own cost. The petitioner status absorbed in the Assam Legal Service.
.