If Another Appointment Is Taken Up By Govt Servant With Proper Permission, It Can’t Be Termed As Resignation From Public Service- SC
The Supreme Court has clarified that as per Karnataka Civil Service Rules, if another appointment is taken up by a government servant with proper permission, then it cannot be termed as resignation of public service.
The Court said this in a case wherein the appellant had assailed the tenability and validity of the judgment passed by the Division Bench of the Karnataka High Court, Circuit Bench at Gulbarga whereby the order passed by the Single Judge allowing the petition holding that the appellant had lien over his previous post and directing respondent-University to pay service and pensionary benefits, was set-aside.
The two-Judge Bench of Justice J.K. Maheshwari and Justice K.V. Viswanathan held, “The intention of the said rule is clear, viz., to protect the past service of the government servant in cases where the government servant is not confirmed or absorbed substantively on the new post on account of his/her failure to satisfactorily complete the probation period or for any other reason. … So far as question of the ‘relieving order’ being treated as resignation is concerned, in terms of Rule 252(b) of KCS Rules, it cannot be treated as resignation. The said Rule makes it clear that if another appointment is taken up by a government servant with proper permission, then it cannot be termed as resignation of public service.”
The Bench, thus, noted that the finding as recorded by the Writ Appellate Court is not sustainable.
Advocate Hetu Arora Sethi appeared for the appellant while M/s. S-legal Associates appeared for the respondent.
Facts of the Case -
The appellant was appointed in 1972 as a Junior Assistant in Bangalore University and was later transferred to Gulbarga University in 1981 being promoted to the post of ‘Assistant Office Superintendent’. Eventually, he along with others, was promoted to the post of ‘Office Superintendent’ with immediate effect. In furtherance to a resolution, he was retained in the previous post of Office Superintendent and his fixation in the pay-scale was made accordingly.
Soon thereafter, the appellant submitted a representation 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. On getting no response, the appellant sent reminder letters to the respondent but no reply was given, nor any action was taken. Aggrieved by the same, the appellant filed a writ petition before the High Court which was allowed but the Division Bench set aside the order of the Single Bench. Hence, the matter was before the Apex Court.
The Supreme Court after hearing the contentions of the counsel observed, “… 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. … Further, it is not the case of the respondent-University that the appellant was permanently absorbed or confirmed on the new post. Conversely, the respondent’s case is that, in absence of any representation made by the appellant seeking continuation of his lien on the previous post, he cannot claim it subsequently on being retained after quashing of his appointment. In our view, the said stand of the University cannot be countenanced in terms of Rule 20 Note 4 of KCS Rules.”
The Court said that 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.
Accordingly, the Apex Court allowed the appeal, set aside the order of the Division Bench, and restored the order of the Single Judge.
Cause Title- L.R. Patil v. Gulbarga University, Gulbarga (Neutral Citation: 2023 INSC 796)
