Ashok Pal Singh, J.@mdashBy means of this writ petition, the petitioner has basically challenged the validity of the order dated 26.11.1984 passed by the opposite party No. 3 (as contained in Annexure No. 9) so far as it relates to maintaining his lien on the post of the Junior Engineer (Civil) in his department for only three years, order dated 16.03.2005 also passed by the opposite party No. 3 (as contained in Annexure No. 1) by which the petitioner''s aforesaid lien has been terminated Ex-post Facto and also order dated 2.8.2010 which too has been passed by the opposite party No. 3 (as contained in Annexure No. 24) by which the petitioner has not been allowed his retiral benefits by treating him to be in service in the department of the opposite party No. 3 till the date of his superannuation. We have heard the learned Counsel for the parties and perused the record.
2. Admittedly, the petitioner was an Overseer/Junior Engineer in U.P. State Electricity Board presently succeeded by U.P. Power Corporation Limited (opposite party No. 3) which was a substantive and a permanent post on which he was confirmed on 16.03.1978. Subsequently, he was selected for the temporary post of Assistant Engineer in the department of the U.P. Harijan and Nirbal Varg Avas Nigam Limited presently known as U.P. Samaj Kalyan Nirman Nigam, Limited (opposite party No. 4). He in consequence of the impugned order dated 26.11.1984 passed by the opposite party No. 3 was relieved from the post of the Junior Engineer (Civil) on 3.12.1984 and joined on the post of the Assistant Engineer on 4.12.1984 in the aforesaid new department.
3. Submission of the learned Counsel for the petitioner is that the impugned order dated 26.11.1984 passed by the opposite party No. 3 is patently illegal as no such order for maintaining his lien on the post of the Junior Engineer (Civil) for a limited period of three years could have been passed. The said order is in contradiction to the provisions of Rule 14-A (a) of Financial Hand Book, Volume II, Part II to IV (hereinafter referred to as "F.H.B. Rules") which provides that a Government servant''s lien on a post in no circumstances can be terminated, even with his consent, if, the result will be to leave him without a lien or a suspended lien upon a permanent post. His further submission is that the petitioner has neither given his resignation from the post of the Junior Engineer (Civil) nor ever consented for termination of his lien on the said post. The post of the Junior Engineer (Civil) which he was holding in his parent department of the opposite party No. 3 was a substantive and a permanent post whereas, his subsequent posting on the post of the Assistant Engineer in the department of the opposite party No. 4 was though substantive but a temporary post on which no fresh lien was available to him. A Government servant is entitled for a lien only on a permanent post to which he has been appointed substantively. His further submission is that the resultant effect of the aforesaid order dated 26.11.1984 for maintaining his lien for a limited period of three years only and the order dated 16.03.2005 by which his permanent lien has been terminated is that he has been left without any lien or suspended lien on the post of the Junior Engineer (Civil) in his parent department. Lastly, it has been submitted by the learned Counsel for the petitioner that the petitioner before being relieved had already served on the post of the Junior Engineer (Civil) for more than 15 years and as such he is also legally entitled for grant of retiral benefits treating him to be in service on the said post in the department of opposite party No. 3 till the date of his superannuation.
4. Before examining the aforesaid submissions made by learned Counsel for the petitioner, it is considered necessary to take a glance of the impugned orders dated 26.11.1984 and 16.03.2005 passed by the opposite party No. 3.
5. The relevant portion of the order dated 26.11.1984 passed by the opposite party No. 3 is being reproduced as under:-
OFFICE OF THE CHIEF ENGINEER (HYDEL)
U.P. STATE ELECTRICITY BOARD, 4- VIKRAMADITYA MARG, LUCKNOW.
26.11.1984
No. 5110-3-II/
Subject: Relieving of Sri Ramesh Chandra Verma, Junior Engineer (Civil) for joining as Assistant Engineer in Harijan and Nirbal Varg Avas Nigam.
Addl. Chief Engineer (Civil), U.P. State Electricity Board, A- 327, Indira Nagar, Lucknow.
Kindly refer to your letter No. 7555-ACE/Civil/E-IIJE dated 16.11.1984 on the subject noted above.
In this context, I am desired to inform you that Shri R.C. Verma, Junior Engineer (Civil) may kindly be relieved under intimation to this office for joining as Assistant Engineer in Harijan & Nirbal Varg Avas Nigam, Lucknow and his permanent lien may be maintained for a period of three years as per provision laid down under R. 14(B) of F.H.B. Vol. II Part II to IV adopted by the Board vide B.O. No. 2667-E/SEB-KA-I-600/60 dated 5.11.1982.
Sd/- illegible
26.11.1984
(J.B. SAXENA)
PERSONAL ASSISTANT (I)
FOR CHIEF ENGINEER (HYDEL)
6. The relevant portion of order dated 16.03.2005 passed by the opposite party No. 3 is being reproduced as under:-
7. It is clear from the aforesaid orders dated 26.11.1984 and 16.3.2005 that they have been passed by the opposite party No. 3 in view of the option made available to him under Rule 14(b) of F.H.B. Rules, The relevant portion of which reads as under:-
14(b) The Government may, at their option, suspend the lien of the Government servant on a permanent post which he holds substantively if he......in circumstances not covered by Clause (a) of this rule, is transferred, whether in a substantive or officiating capacity to a post in another cadre and if, in any of these cases, there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.
8. It will also be relevant to take notice of the provision of Rule 14(f) of the F.H.B. Rules wherein it has been provided that a Government servant''s lien which has been suspended under Clause (b) of this Rule shall revive as soon as he ceases to hold a post in another cadre.
9. The plain reading of the order dated 26.11.1984 passed by the opposite party No. 3 makes it clear that while directing the petitioner to be relieved from the post of the Junior Engineer (Civil) a specific direction was also passed by the opposite party No. 3 for maintaining his lien for three years under Rule 14(b) of the F.H.B. Rules. In other words, the lien on the permanent post of the Junior Engineer (Civil) held by the petitioner was suspended till that limited period of three years only. Thus, no illegality or infirmity is said to have been committed in passing the said order because of it being in consonance with the provisions of Rule 14(b) of the F.H.B. Rules.
10. Admittedly, the petitioner after passing of the aforesaid order dated 26.11.1984 and having been appointed on the substantive post of the Assistant Engineer in the department of the opposite party No. 4 made no effort at all to return to his parental department to again hold the post of the Junior Engineer (Civil). It appears that the first ever representation given by him to the opposite party No. 3 for his repatriation as culled out from the record was on 10.1.2000 (Annexure No. 15) i.e. nearly after 12 years of the expiry of three years period provided to him under the order dated 26.11.1984. We find not an iota of explanation from his side as to why such a representation was not given by him within the stipulated period of three years.
11. In view of above facts and circumstances, no illegality or infirmity can also be said to have been committed by the opposite party No. 3 in passing the subsequent impugned order dated 16.3.2005 by which the petitioner''s lien on the post of the Junior Engineer (Civil) was terminated Ex-post Facto. Significantly no benefit could also be provided to the petitioner of getting his lien revived under Rule 14(f) of the Rules as it was no body''s case that he ceased to hold the post of the Assistant Engineer in the department of the opposite party No. 4.
12. As regard the contention of the learned Counsel for the petitioner that under Rule 14-A(a) of F.H.B. Rules a Government servant''s lien on a post cannot be terminated even with his consent, if the result would be to leave him without a lien or a suspended lien upon a permanent post, suffice it would be that the aforesaid rule lays down only a general principle of law regarding a Government servant''s lien on a permanent post and the very next clause (b) of the said Rule can be treated as an exception to the said general principle wherein it has been provided that in a case covered by Rule 14(a)(2), the suspended lien, except on the written request of the Government, servant concerned, can be terminated while the Government servant remains in Government service. Remarkably, this alone cannot be considered as an exhaustive example of such exception. There may be other exceptions to the aforesaid general principle. One such other example is being dealt by us hereinafter.
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14. It is dear from the facts of the present case that the petitioner never made any attempt to return to his original service within the stipulated period of three years by which time his lien was maintained and instead continued to take advantage of the post of the Assistant Engineer for nearly 12 years and that first ever attempt was made by him for his repatriation only thereafter by moving a representation to the opposite party No. 3. His case is thus, clearly covered by the ratio laid down by the Hon''ble Apex Court in the case of Dr. Anil Bajaj (supra) which in turn makes his claim for repatriation, clearly barred by the principle of estoppel. He, after the expiry of the stipulated period of three years now cannot be allowed to turn around and challenge the impugned orders.
15. Lastly, it would also be pertinent to mention that the petitioner has failed to challenge the impugned order dated 26.11.1984 which directed for maintaining his lien only for three years, within a reasonable time. He is challenging the said order by way of making an amendment in the writ petition at its fag-end i.e. nearly after 29 years of the passing of the said order. He thus, becomes not entitled for any relief on this count also as his writ petition suffers from un-explained inordinate delay and heavy laches.
16. In view of what has been discussed above, we find that there is no merit in the writ petition and it deserves to be dismissed. The writ petition is accordingly, dismissed.
