In the present case, the short questions of law which fall for consideration are – REPORTABLE (i) Whether the order dated 08.04.1993 passed by the Respondent-Gulbarga University pursuant to Rule 252(b) of Karnataka Civil Service Rules (for short “KCS Rules”), ‘relieving’ the appellant to accept another appointment as ‘Assistant Registrar’ ought to be treated as an order accepting ‘resignation’, to take up the post on new assignment? The University by office order dated 10.07.1990 declared that appellant had completed his probation ‘satisfactorily’ on 08.08.1988. On his appointment, respondent-University vide office order dated 08.04.1993 relieved the appellant from the post of Office Superintendent w.e.f. to Vice- Chancellor, Gulbarga University, Gulbarga has been relieved from the duties on 4 Feb,’93 to accept another appointment as Assistant Registrar in G.U. Gulbarga Vide T.O.
Pursuant to the dismissal of the writ appeals, the respondent-University in compliance of the orders, withdrew the appointment of the appellant as Assistant Registrar vide office order dated 23.12.2000 (hereinafter referred to as “Resolution” ) and retained/placed him back in his previous post of ‘Office Superintendent’ with immediate effect. Patil praying to set aside the order dated 24.6.1998 passed in W.P. The High Court passed an Interim Order that the operation of the earlier order dated 24.6.1998 passed in W.P. Soon thereafter, on joining, the appellant submitted a representation dated 16.01.2001 to the University and sought ‘re-fixation of his seniority’ in the cadre of Office Superintendent and further requested for promotion on the vacant post of Assistant Registrar at par with his two juniors namely ‘Sri. Being aggrieved, the appellant filed Writ Petition
No 4066 of 2006 challenging the rejection order dated 08.02.2006 and prayed for restoration of his seniority in the cadre of ‘Office Superintendent’ from the date of his original appointment. The learned Single Judge vide order dated 27.08.2008 allowed the writ petition and relying on the Resolution dated 23.12.2000 observed that the services of the appellant did not get severed since he was retained to the original post and maintained the lien in terms of the Rule 20 Note-4 of KCS Rules. Learned counsel appearing for the appellant submits that in furtherance to the Office order dated 08.04.1993, the past service of the appellant was protected for pensionary and monetary benefits, retaining his lien on the previous post and noted to record the said contents in his service book in terms of the Rule 252(b) of KCS Rules and Office Memorandum dated 22.01.1972.
In support his submissions, counsel for the appellant placed reliance on the judgment dated 25.02.2021 passed by Division Bench of High Court of Karnataka at Bengaluru in Writ Appeal
No 596 of 2020 (S-RES) titled “Sanjay Gandhi Institute of Trauma & Orthopaedics Vs.
Per contra, learned counsel representing respondent-Gulbarga University has submitted that the appellant tendered his resignation from the post of Office Superintendent to join as ‘Assistant Registrar’ and in pursuance of the same, he was relieved from his duties. ” “ Office Memorandum
No FD 262 SRS 71 dated 22.1.1972
Under Rule 252(b) of KCSRs, resignation of an appointment to take up with proper permission another appointment, whether permanent or temporary service in which counts in full or part, is not resignation from public service. The matter has been considered and it has been decided that in cases of the above type the order accepting the resignation should clearly indicate that the employee is resigning to join another appointment with proper permission and that the benefits under Rule 252(b) ibid will be admissible to him. In case the employee is absorbed, he/she shall be entitled to the benefit of the past service for the purpose of leave and pension. It is also subsequently noted in the Resolution that during the pendency of appeal against the order quashing the appellant’s appointment, the Division Bench of the High Court passed an interim order and stayed the operation of the order of learned Single Judge quashing the appointment pending admission of appeal. State of Punjab & Others, (1989) 4 SCC 99”, wherein this Court observed that ‘lien’ is not a word of art and it connotes the right of a civil servant to hold the post substantively to which he is appointed, meaning thereby, the appointment of government servant on the said post must be substantive as he/she cannot hold two posts simultaneously in two different cadres and maintain lien on both of them at the same time. Sandhya Tomar and Another, (2013) 11 SCC 357”, this Court held that the lien is a civil right of a civil servant to hold the post to which he is appointed substantively.
“The word ‘lien’ is a generic term and, standing alone, it includes lien acquired by way of contract, or by operation of law.” Whether a person has lien, depends upon whether he has been appointed in accordance with law, in substantive capacity and whether he has been made permanent or has been confirmed to the said post.
We say so particularly because of the fact that the appellant was never appointed substantively on the new post of ‘Assistant Registrar’ and was continued temporarily on the said post subject to the outcome of the pending litigation challenging his appointment. As per the language of the said Rule, the lien of a government servant on the previous post stands protected till his or her continuation on probation period on the new post. In view of the discussion made herein above, we answer the questions framed above as follows – (i) Order dated 08.04.1993 passed by respondent-University, relieving the appellant to take up the new appointment as ‘Assistant Registrar’ is not to be treated as resignation in terms of Rule 252(b) of KCS Rules.
Case Title: L.R.PATIL Vs. THE GULBARGA UNIVERSITY GULBARGA
Case Number: C.A. No.-003254-003254 / 2013
