Lien Of A Government Servant Only Ceases When Appointed On Another Post Substantively Or Absorbed Permanently: Rajasthan HC

A single judge bench of the Rajasthan High Court comprising of Justice Ganesh Ram Meena while deciding a Civil Writ Petition in the case of Dr. Shiv Kumar vs State of Rajasthan & Ors. has held that lien of a government servant only ceases to exist when he/she is appointed on another post substantively or absorbed permanently.

Background Facts

Dr. Shiv Kumar (Petitioner) was appointed as a Biologist under the Medical and Health Department of Government of Rajasthan (Medical Department) in 1982. The Petitioner was later selected as Deputy Assistant Director (Entomology) with National Institute of Communicable Disease and an order for the same was passed relieving the Petitioner for joining on the aforesaid post keeping his lien with the State Government for one year. However, in 1983, a No Objection Certificate (NOC) was issued by Deputy Chief Medical and Health Officer (Malaria) to allow the Petitioner to take up a job under the Ministry of Health Kingdom of Saudi Arabia. A similar NOC was issued by the Medical Department stating that the Petitioner could join the foreign assignment and that the lien of the Petitioner will be maintained on the post with the Rajasthan Government.

The Petitioner joined the foreign assignment and remained on deputation till 2009. In 2009, the Petitioner was relieved from the foreign assignment to join back the Medical Department on the post of Biologist. However, the Petitioner was not allowed to join even after making several representations. The Petitioner superannuated in 2014. Thus, the Petitioner filed the present Civil Writ Petition for directions to be treated to be in service from 2009 to 2014 and for other consequential benefits and the salary for the aforesaid period.

It was contended by the Petitioner that he was relieved by the Government of Rajasthan to join the foreign assignment keeping the lien on the post of Biologist for no definite period. Thus, the action of the Medical Department in not allowing the Petitioner to join back and not issuing an order of his retirement on attaining the age of superannuation in 2014 is illegal and arbitrary.

On the other hand, it was contended by the Medical Department that the order relieving the Petitioner for joining the post of Deputy Assistant Director (Entomology) stated that the lien over the post was for a period of one year only. Thus, the Petitioner had no right to join back the service on the post of Biologist after such a long time.

Findings of the Court

The court observed that the NOC order of the Medical Department to relieve the Petitioner to join the foreign assignment had a specific mention that his lien will be maintained on the post with Rajasthan Government without there being any definite period. Even the Rajasthan Service Rules, 1951 do not provide for any specific period of lien.

The court further ruled that

“as per settled legal position, we observe that 'lien' of a government servant only ceases to exist when he/she is appointed on another post 'substantively'/confirmed or absorbed permanently. Otherwise, his/her lien would continue on the previous post”

The court observed that it was not contended by the Medical Department that the lien of the Petitioner was ever suspended, terminated or transferred. Furthermore, the Petitioner was not substantially absorbed on any other post. Thus, it could not be said that the lien of the Petitioner came to an end after a period of one year.

Thus, the court observed that the Petitioner was entitled to join back the duty and also to continue in service. Furthermore, the Petitioner was entitled for all service and retiral benefits as if he was allowed to join after returning from foreign assignment in 2009.

With the aforesaid observations, the Civil Writ Petition was allowed.

Case No.- Civil Writ Petition No. 5145/2022

Case Name- Dr. Shiv Kumar vs State of Rajasthan & Ors.

Counsel for the Petitioner- Mr. R.D. Meena

Counsel for the Respondent- Dr. Vivek Tyagi

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