Full Judgment
1. The petitioner has filed the present writ petition seeking to challenge an order passed by the second respondent Chief Engineer (General), Highways Department, Chennai, dated 28.6.2010. By the impugned order, the second respondent informed the petitioner that since the petitioner has been working as an Overseer under the Rural Development Department for more than 12 years and as per the existing rules, if a person goes from one service to an another foreign service and continues to serve for more than five years, he will lose his right to get back to his original service. Since the petitioner has been working as an Overseer, he had lost his lien over the post of the Assistant Draughtsman. Even though he had expressed his desire to revert back to his parent department, since there is no post of Overseer in the Highways Department is vacant and since he has been working in the post of Junior Draughting Officer from 2007 continuously, his seniority in the Highways Department will be reckoned only from 19.12.2007. The petitioner questioning the said order has filed the present writ petition.
2.When the matter came up on 3.9.2010, notice of motion was ordered. Subsequently, on 15.3.2011, this court had directed the respondents to keep one post of Junior Engineer vacant. The respondents were directed to file counter. Accordingly, a counter affidavit, dated 26.4.2011 has been filed by the Superintending Engineer (Highways), Madurai, the third respondent herein.
3.It is seen from the records that the petitioner was initially appointed as an Assistant Draughtsman in the Highways Department in the year 1982. Since number of engineering posts were created, including the post of Overseer, the petitioner got himself posted as an Overseer in the Rural Development Department based on an option exercised by him. He went to the Rural Development Department on 3.3.1997. When he opted for reversion to the Highways Department after two years on 31.8.1999, he was directed to be posed as an Assistant Draughtsman as no equivalent post of Overseer existed in the Highways Department. But the petitioner did not want to serve as an Assistant Draughtsman and expressed his desire to continue with the Rural Development Department. Once again, he was posted to the Rural Development Department as per the proceedings of the Director of Rural Development Department, dated 9.2.2000. Since he himself had opted to continue in the Rural Development department permanently, he was absorbed permanently in that department. It was thereafter, the petitioner sought for reversion to his parent department. As per his option, he was surrendered to the Highways Department on 9.11.2007. Thereafter, he joined in the Highways Department as a Junior Draughting Officer on 2.12.2007 and is continuing in the said post.
4.The reason for not restoring his seniority was set out in paragraphs 7 and 8 of the counter affidavit, which reads as follows:
7.The petitioner was elevated to Selection Grade in the post of Junior Draughting Officer taking into consideration his service in the post of Overseer, ie., the post with equal scale of pay.
8.As per Rule 9 of Tamilnadu State and Subordinate Service Rules, if a person belonging to one service, happens to serve in another service for more than 5 years and if he is not reverted to the former service on completion of 5 years his lien in the former service will be cut. Moreover, the service rules framed for Rural Development Department will not be applicable for Highways Department, since this department has its own separate service rules. In Highways Department there is no provision in service rules to the effect that both the posts of Overseer and Junior Draughting Officer are interchangeable. Further, prior to his post in Highways Department was permanently absorbed in Rural Development Department and duly on his option he has been reverted to parent department. Hence, his joining in Highways Department as Junior Draughting Officer on 19.12.2007 will be considered as fresh service in Highways Department and his seniority in the post of Junior Draughting Officer was fixed accordingly duly taking note of his date of joining as Junior Draughting Officer in Highways Department and the petitioner was informed accordingly by the 2nd respondent on 26.6.2010.
On the question of promotion, it was stated that if he reaches his turn in the seniority, his request for next promotional post will be considered.
5.The learned Special Government Pleader also produced a copy of the deputation made to the Rural Development Department, dated 8.1.1997. The petitioner just before the deputation to the Rural Development Department was given temporary promotion under Rule 39(a)(1) of the Tamil Nadu General and Subordinate Services Rules by promoting them from the post of Assistant Draughtsman to that of a temporary Overseer. This was for the purpose of making them to get a corresponding post in the Rural Development Department. Accordingly, immediately after the temporary promotions, those persons were deputed to various panchayat unions and they were asked to join within 10 days. Therefore, the attempt of the Highways Department is to upgrade the persons as temporary Overseers whether or not posts were available and only with a view to send them on foreign service, so that they will be holding a higher post with higher emoluments on permanent basis. Hence the petitioner had not made out any case that on his reversion, he should be given seniority on par with his colleagues. Even after coming to the Highways Department, considering his service he was given a selection grade in the post of Junior Draughting Officer with effect from 3.3.2007, i.e., 10 years from the date on which his services were regularized.
6.It is seen from the order of repatriation from the Rural Welfare Department signed by the Director of Rural Development and Panchayat, dated 09.11.2007 that it was specifically indicated that since the petitioner on his option got reverted back to the parent department, he will not be paid any travelling allowance. For his permanent absorption in the Rural Development Department earlier, orders were issued as early as 8.3.1999. Therefore, as he held a regular post in the Rural Development Department, the petitioner cannot seek to come back with seniority in the parent department.
7.In this context, it is necessary to refer to the following judgments of the Supreme Court which will have a bearing on the legal issue raised here. The Supreme Court in Ramlal Khurana v. State of Punjab reported in (1989) 4 SCC 99 in paragraph 8 had observed as follows:
8.The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed, he acquired no lien cannot also be accepted. Lien is not a word of art. 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.
8.The Supreme Court in S.K. Kacker (Dr) v. All India Institute of Medical Sciences reported in (1996) 10 SCC 734 had observed in paragraphs 9 and 10 as follows:
9.....In this behalf, clause (d) of FR 14-A is relevant; it reads as under: 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.
10.It would indicate that on appointment to a 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.
9.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently connected miscellaneous petition stands closed.