STATE OF RAJASTHAN & ORS versus DR. HAMIR SINGH CHOUHAN (DEAD) BY LRS & ORS. on 28 April 2023

1. Feeling aggrieved and dissatisfied with the impugnedjudgment(s) and order(s) passed by the Division Bench of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal(Writs) No. 50 of 2015 and other allied appeals by which the DivisionBench of the High Court has dismissed the said division appeals preferredby the appellant herein – State of Rajasthan, which were filed againstthe common judgment and order passed by the learned Single Judgedeclaring the respondents herein to be entitled to receive pensionarybenefits in essence by treating their lien to be continuing with the StateGovernment upto the date of their permanent absorption with theRajasthan Co-operative Dairy Federations (hereinafter referred to as“Dairy Federations”), the State of Rajasthan has preferred the presentappeals.

2. That the respondents herein were initially appointed in the AnimalHusbandry Department either as Animal Husbandry Extension Officeror Veterinary Assistant Surgeon in the year 1971. That all of them weresubsequently selected after following the due selection process between1976 to 1978 in the Dairy Federations. That as per the relevant G.O. andthe relevant Rules, the respondents continued to have the lien with theparent department / State Government. That the names of therespondents appeared in the seniority list of the Dairy Federations andall of them were promoted in the year 1983 or 1989 in the Dairy A

B

C

D

E

F

GH

A

B

C

D

E

F

GH

AFederations. All of them retired as employees of the Dairy Federationsbetween 1999 to 2003. All of them received the retirement benefits fromthe Dairy Federations.

2.1 Thereafter, after a period of approximately six to nine years,from the date of superannuation from the Dairy Federations and afterBreceiving all the retirement benefits from the Dairy Federations, therespective respondents filed the writ petitions before the learned SingleJudge of the High Court claiming the pensionary benefits from the StateGovernment treating their lien to be continuing with the State. That thelearned Single Judge allowed the writ petitions.

C2.2 At this stage, it is required to be noted that the lien of therespective respondents came to be terminated subsequently in the year1988/1993 w.e.f. the date on which they were absorbed / made permanentin the Dairy Federations.

2.3 Feeling aggrieved and dissatisfied with the judgment and orderDpassed by the learned Single Judge, the State preferred the present appealsbefore the Division Bench. By the impugned judgment(s) and order(s),the Division Bench of the High Court has dismissed the said appeals.Hence the present appeals.

3. Dr. Manish Singhvi, learned senior counsel has appeared onEbehalf of the State and Shri Uday Gupta, learned counsel has appearedon behalf of the respective respondents – original writ petitioners.

4. Dr. Manish Singhvi, learned senior counsel appearing on behalfof the State has vehemently submitted that all the respective respondentswere selected after following the selection process between 1976 andF1978 in the Dairy Federations. It is submitted that all of them wereabsorbed permanently in the Dairy Federations and they continued towork in the Dairy Federations as employees of the Dairy Federations tillthey attained the age of superannuation and retired.

4.1 It is submitted that as per G.O. dated 30.01.1976, the respectiveGrespondents, who joined the Dairy Federations, their lien was kept for aperiod of two years or their confirmation in the Corporation / Union,whichever is earlier. It is submitted that therefore, on and after they gotconfirmed in the Dairy Federations, the respective respondents werenot entitled to have any lien elsewhere. It is submitted that therefore thelien could not have been extended beyond a period of two years.H

4.2 It is further submitted that therefore, once the respondentsbecame the employees of the Dairy Federations, even as per Rule18(2) of the Rajasthan Service Rules, 1951, they ceased to have a lienon the post on which they were earlier working with the StateGovernment.

4.3 It is submitted that in the case of State of Rajasthan andAnr. Vs. S.N. Tiwari and Ors., (2009) 4 SCC 700, it has been clearlyheld that when a person with a lien against the post is appointedsubstantively to another post, then he acquires a lien with the later post.A person cannot be substantively appointed on two substantive postssimultaneously. It is submitted that this is the basis of entire servicejurisprudence. It is submitted that keeping in mind the above, Rule 18(2)of the Rajasthan Service Rules, 1951 provides that “a Governmentservant’s lien to a post stands terminated on his acquiring a lien on apermanent post, which is outside the cadre post.”

4.4 Making above submissions, it is submitted that the respondentsshall not be entitled to any pensionary benefits as Government employees,after they ceased to have the lien in the State Government on the poston which they were working earlier.

5. All these appeals are vehemently opposed by Shri Uday Gupta,learned counsel appearing on behalf of the respective respondents.

5.1 Learned counsel appearing on behalf of the respondents hasvehemently submitted that as such the respective respondents weresent on deputation to the Dairy Federations and, therefore, theycontinued to have the lien in the Government. It is submitted that noneof the respondents had lost their lien in the Government before theirdate of absorption / no absorption with the new employer, i.e., DairyFederations.

5.2 It is submitted that it is established from the records that ineach of the cases they were all initially appointed by the RajasthanGovernment and were confirmed as such in the Government service,they were then relieved to join the posting at respective places in theDairy Federations.

5.3 It is submitted that the Government of Rajasthan has referredto the Guidelines contained in the letter / G.O. dated 30.01.1976 issuedby the Deputy Secretary, Government of Rajasthan, Agriculture A

B

C

D

E

F

G

H

ADepartment, Jaipur. It is submitted that the said document is a lettercontaining guidelines issued by an officer of the Department and theseguidelines could not override / supersede the position of the Rules and,therefore, no reliance can be placed upon the same.

5.4 It is submitted that so far as the position of the Rules isBconcerned, the question of lien has to be decided with reference to Rules15 and 18 of the Rajasthan Service Rules, 1951. It is submitted that thelien acquired by a Government servant cannot be terminated even withhis consent if he is left without lien. It is submitted that in the facts of thepresent case, the lien acquired by each of the respondents under theGovernment could not have come to an end by their posting andCcontinuance in the respective Milk Unions until they were absorbedtherein. It is submitted that till the date they were absorbed they continuedto be the Government servant and, therefore, were entitled to the pensionaccording to the Rules. It is submitted that Rule 158 governs the casesof pension of those who are working under the Local Bodies and paid byDthe Local Funds administered by the Government of Rajasthan, but sofar as the respondents are concerned, they were continuing as confirmedGovernment servants without confirmation in their respective unions andtherefore the guideline dated 30.01.1976 could not override the operationof the Rules relating to the lien. It is submitted that the legal position isthat the lien could not be terminated even with the consent of theEGovernment servant, if he is left without lien.5.5 Making above submissions, it is prayed to dismiss the presentappeals.

6. Heard the learned counsel for the respective parties at length.

F

7. At the outset, it is required to be noted and it cannot be disputedthat all the respondents were initially appointed in the year 1971 on thepost of Animal Husbandry Extension Officer or Veterinary AssistantSurgeon in the Animal Husbandry Department of the State of Rajasthan.However, thereafter, all of them applied for appointment in the RajasthanGState Dairy Development Corporation Ltd. by making applications andafter they were interviewed, they were appointed in the respective MilkUnions under the Dairy Federations between 1976 to 1978. After theirapplications and interviews, the respondents were informed with theterms and conditions on which they are absorbed / appointed in theRajasthan State Dairy Development Corporation Ltd., which read asHunder:- “With reference to your application and interview for the postof Assistant Officer you are informed that before the appointmentcan be made your acceptance to the following terms and conditionsis necessary.

1. You will be appointed in the grade of 375-850 and yourway will on fined suitably protecting your existing pay.

2. Other allowances like Dearness Allowances House Rentallowance and Travelling Allowance etc., shall be at parwith these admissible in State Government service.

3. Though the recruitment is being done by the Corporationyour ultimate employer may be the Union of CooperativeSocieties established at the District level.

4. Regarding your previous service the matter will have to besettled between you and the State Government. So far asthe Corporation is concerned this will be a fresh appointment.

If the terms are acceptable, please send the acceptance in theacknowledgement, given below latest by 16th August 1975, failingwhich it shall be assumed that you are not interested in the job.”

7.1 Thus, all of them were specifically informed that regardingtheir previous service, the matter will have to be settled between themand the State Government and so far as the Corporation is concerned,the appointment will be a fresh appointment. That thereafter, all of themwere appointed in the concerned Dairy Federations/Unions under theRajasthan State Dairy Development Corporation Ltd. on the basis ofthe recommendations made by the selection committee of the RajasthanState Dairy Development Corporation Ltd. initially on a probation for aperiod of one year. At the time when number of officers of the RajasthanAnimal Husbandry Services came to be selected on certain posts in theRajasthan Dairy Development Corporation and the various MilkProducers Cooperative Unions, some of these officers workings in theRajasthan Animal Husbandry services represented to the Governmentthat before making up their mind about accepting of their offers, theywould like to know what benefits in respect of their service in theGovernment will be available to them. To that, the respective employeeswere informed vide communication / G.O. dated 30.01.1976 that theirlien will be kept for a period of two years or until their confirmation,whichever is earlier. That therefore, right from very beginning, the A

B

C

D

E

F

G

H

Arespective respondents were told that their lien will be kept for a periodof two years or until their confirmation in the Corporation / Union,whichever is earlier. With an open eye, the respective respondentsaccepted their appointments in the Dairy Development Corporation /Milk Federation Unions. All of them thereafter continued to work intheir respective milk unions under the Dairy Development Corporation.BAll of them got the promotions while working in different milk unionsunder the Dairy Development Corporation. All of them retired asemployees of the Dairy Development Corporation / Milk FederationUnions. All of them were paid the retirement benefits when they retiredon attaining the age of superannuation.CThat thereafter after a period of six to nine years of their retirementfrom the Dairy Development Corporation / Milk Federation Unions, theyfiled the writ petitions before the High Court claiming pensionary benefitsfrom the State Government contending inter alia that their lien as aGovernment servant in the Rajasthan Government service have beenDcontinued. Once the respondents were absorbed on selection and afterselection process in the Dairy Development Corporation / Milk FederationUnions, they worked as such and even got the promotion, thereafter, therespective respondents ceased to have the lien in the Government service.The letter dated 30.01.1976 is very clear. Even as per Rule 18 of theRajasthan Service Rules, 1951, which provides for termination of lien,E“a Government servant’s lien on a post stands terminated on his acquiringa lien on a permanent post outside the cadre on which he is borne”.Therefore, once the respective respondents were appointed afterselection and interview in the Rajasthan Dairy Development Corporation/ Milk Federation Unions, they ceased to have the lien in the Government.F

7.2 As rightly submitted on behalf of the State, there cannot betwo liens on two substantive posts. The submission on behalf of therespondents that it was not a case of permanent appointment in theDairy Development Corporation / Milk Federation Unions, cannot beaccepted. Their appointment orders on record are very clear. They wereGappointed after due selection, interview and even after following the dueselection process and even earlier when they had doubts, it was madeexplicitly clear in the communication dated 30.01.1976. Therefore, oncethe respondents were permanently absorbed and became an employeeof the Dairy Development Corporation / Milk Federation Unions, theyceased to have the lien with the State Government and therefore, theyH

shall not be entitled to the pensionary benefits as State Governmentemployees and that too after having received the retirement benefitsfrom the Dairy Development Corporation / Milk Federation Unions.

8. In view of the above and for the reasons stated above, thejudgment and order passed by the learned Single Judge as well as theDivision Bench are unsustainable and the same deserve to be quashedand set aside and are accordingly quashed and set aside. It is observedand held that the respective respondents shall not be entitled to thepensionary benefits from the State Government as directed by the learnedSingle Judge and the Division Bench.

Present appeals are accordingly allowed. No costs.

Pending application, if any, also stands disposed of.

Divya Pandey

Appeals allowed.

(Assisted by : Abhishek Agnihotri and Roopanshi Virang, LCRAs)

A

B

C

D

E

F

G

H