STATE OF RAJASTHAN & ORSversusDR. HAMIR SINGH CHOUHAN (DEAD) BY LRS & ORS.

118                      [2023]REPORTS
               SUPREME COURT    4 S.C.R. 118              [2023] 4 S.C.R.


A                     STATE OF RAJASTHAN & ORS.
                                       v.
         DR. HAMIR SINGH CHOUHAN (DEAD) BY LRS & ORS.
                        (Civil Appeal No. 5392 of 2017)
B                               APRIL 28, 2023
               [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
            Rajasthan Service Rules, 1951 – r.18 – Termination of lien –
      Respondents were initially appointed in the Animal Husbandry
      Department of the State of Rajasthan – Subsequently, all of them
C
      applied for appointment in the Rajasthan State Dairy Development
      Corporation Ltd. and were appointed in the respective Milk Unions
      under the Dairy Federations – Lien of the respective respondents
      was terminated w.e.f. the date on which they were absorbed/made
      permanent in the Dairy Federations – All of them retired as employees
D     of the Dairy Federations – However, later, the respondents claimed
      pensionary benefits from the State Government treating their lien to
      be continuing with the State – Allowed by High Court – Sustainability
      of – Held: Not sustainable – There cannot be two liens on two
      substantive posts – Even as per r.18 of the 1951, Rules which
      provides for termination of lien, a Government servant’s lien on a
E
      post stood terminated on his acquiring a lien on a permanent post
      outside the cadre on which he is borne – Thus, once the respondents
      were permanently absorbed and became an employee of the Dairy
      Development Corporation/Milk Federation Unions, they ceased to
      have the lien with the State Government – Therefore, they shall not
F     be entitled to the pensionary benefits as State Government employees
      and that too after having received the retirement benefits from the
      Dairy Development Corporation / Milk Federation Unions –
      Judgment and order passed by the Single Judge and the Division
      Bench quashed and set aside – Service Law.
G           State of Rajasthan and Anr. vs. S.N. Tiwari and Ors.,
            (2009) 4 SCC 700 – referred to.
                             Case Law Reference
      (2009) 4 SCC 700                  referred to            Para 4.3

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                                      118
     STATE OF RAJASTHAN & ORS. v. DR. HAMIR SINGH                              119
            CHOUHAN (DEAD) BY LRS & ORS.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5392                      A
of 2017.
      From the Judgment and Order dated 09.02.2015 of the High Court
of Rajasthan at Jodhpur in DBCSA No. 50 of 2015.
      With
                                                                               B
      Civil Appeal Nos. 5393, 5391 and 5394 of 2017.
      Dr. Manish Singhvi, Sr. Adv., Ms. Shubhangi Agarwal, Arpit
Parkash, Sandeep Kumar Jha, Ms. Ruchi Kohli, Advs. for the Appellants.
      Uday Gupta, Ms. Shivani M. Lal, Ms. Sanam Singh, S. S. Sisodia,
M. K. Tripathi, Harish Dasan, Rajiv Ranjan, Rajeev Kumar Gupta, Hiren          C
Dasan, Ms. Charu Mathur, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
      1. Feeling aggrieved and dissatisfied with the impugned                  D
judgment(s) and order(s) passed by the Division Bench of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal
(Writs) No. 50 of 2015 and other allied appeals by which the Division
Bench of the High Court has dismissed the said division appeals preferred
by the appellant herein – State of Rajasthan, which were filed against
                                                                               E
the common judgment and order passed by the learned Single Judge
declaring the respondents herein to be entitled to receive pensionary
benefits in essence by treating their lien to be continuing with the State
Government upto the date of their permanent absorption with the
Rajasthan Co-operative Dairy Federations (hereinafter referred to as
“Dairy Federations”), the State of Rajasthan has preferred the present         F
appeals.
       2. That the respondents herein were initially appointed in the Animal
Husbandry Department either as Animal Husbandry Extension Officer
or Veterinary Assistant Surgeon in the year 1971. That all of them were
subsequently selected after following the due selection process between        G
1976 to 1978 in the Dairy Federations. That as per the relevant G.O. and
the relevant Rules, the respondents continued to have the lien with the
parent department / State Government. That the names of the
respondents appeared in the seniority list of the Dairy Federations and
all of them were promoted in the year 1983 or 1989 in the Dairy
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120             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


A     Federations. All of them retired as employees of the Dairy Federations
      between 1999 to 2003. All of them received the retirement benefits from
      the Dairy Federations.
            2.1 Thereafter, after a period of approximately six to nine years,
      from the date of superannuation from the Dairy Federations and after
B     receiving all the retirement benefits from the Dairy Federations, the
      respective respondents filed the writ petitions before the learned Single
      Judge of the High Court claiming the pensionary benefits from the State
      Government treating their lien to be continuing with the State. That the
      learned Single Judge allowed the writ petitions.
C            2.2 At this stage, it is required to be noted that the lien of the
      respective respondents came to be terminated subsequently in the year
      1988/1993 w.e.f. the date on which they were absorbed / made permanent
      in the Dairy Federations.
            2.3 Feeling aggrieved and dissatisfied with the judgment and order
D     passed by the learned Single Judge, the State preferred the present appeals
      before 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 on
E     behalf of the State and Shri Uday Gupta, learned counsel has appeared
      on behalf of the respective respondents – original writ petitioners.
             4. Dr. Manish Singhvi, learned senior counsel appearing on behalf
      of the State has vehemently submitted that all the respective respondents
      were selected after following the selection process between 1976 and
F     1978 in the Dairy Federations. It is submitted that all of them were
      absorbed permanently in the Dairy Federations and they continued to
      work in the Dairy Federations as employees of the Dairy Federations till
      they attained the age of superannuation and retired.
             4.1 It is submitted that as per G.O. dated 30.01.1976, the respective
G     respondents, who joined the Dairy Federations, their lien was kept for a
      period of two years or their confirmation in the Corporation / Union,
      whichever is earlier. It is submitted that therefore, on and after they got
      confirmed in the Dairy Federations, the respective respondents were
      not entitled to have any lien elsewhere. It is submitted that therefore the
      lien could not have been extended beyond a period of two years.
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     STATE OF RAJASTHAN & ORS. v. DR. HAMIR SINGH                             121
     CHOUHAN (DEAD) BY LRS & ORS. [M. R. SHAH, J.]

      4.2 It is further submitted that therefore, once the respondents        A
became the employees of the Dairy Federations, even as per Rule
18(2) of the Rajasthan Service Rules, 1951, they ceased to have a lien
on the post on which they were earlier working with the State
Government.
       4.3 It is submitted that in the case of State of Rajasthan and         B
Anr. Vs. S.N. Tiwari and Ors., (2009) 4 SCC 700, it has been clearly
held that when a person with a lien against the post is appointed
substantively to another post, then he acquires a lien with the later post.
A person cannot be substantively appointed on two substantive posts
simultaneously. It is submitted that this is the basis of entire service
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jurisprudence. It is submitted that keeping in mind the above, Rule 18(2)
of the Rajasthan Service Rules, 1951 provides that “a Government
servant’s lien to a post stands terminated on his acquiring a lien on a
permanent post, which is outside the cadre post.”
       4.4 Making above submissions, it is submitted that the respondents
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shall not be entitled to any pensionary benefits as Government employees,
after they ceased to have the lien in the State Government on the post
on 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.
                                                                              E
       5.1 Learned counsel appearing on behalf of the respondents has
vehemently submitted that as such the respective respondents were
sent on deputation to the Dairy Federations and, therefore, they
continued to have the lien in the Government. It is submitted that none
of the respondents had lost their lien in the Government before their         F
date of absorption / no absorption with the new employer, i.e., Dairy
Federations.
      5.2 It is submitted that it is established from the records that in
each of the cases they were all initially appointed by the Rajasthan
Government and were confirmed as such in the Government service,              G
they were then relieved to join the posting at respective places in the
Dairy Federations.
       5.3 It is submitted that the Government of Rajasthan has referred
to the Guidelines contained in the letter / G.O. dated 30.01.1976 issued
by the Deputy Secretary, Government of Rajasthan, Agriculture
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122             SUPREME COURT REPORTS                              [2023] 4 S.C.R.


A     Department, Jaipur. It is submitted that the said document is a letter
      containing guidelines issued by an officer of the Department and these
      guidelines 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 is
B     concerned, the question of lien has to be decided with reference to Rules
      15 and 18 of the Rajasthan Service Rules, 1951. It is submitted that the
      lien acquired by a Government servant cannot be terminated even with
      his consent if he is left without lien. It is submitted that in the facts of the
      present case, the lien acquired by each of the respondents under the
      Government could not have come to an end by their posting and
C
      continuance in the respective Milk Unions until they were absorbed
      therein. It is submitted that till the date they were absorbed they continued
      to be the Government servant and, therefore, were entitled to the pension
      according to the Rules. It is submitted that Rule 158 governs the cases
      of pension of those who are working under the Local Bodies and paid by
D     the Local Funds administered by the Government of Rajasthan, but so
      far as the respondents are concerned, they were continuing as confirmed
      Government servants without confirmation in their respective unions and
      therefore the guideline dated 30.01.1976 could not override the operation
      of the Rules relating to the lien. It is submitted that the legal position is
      that the lien could not be terminated even with the consent of the
E
      Government servant, if he is left without lien.
            5.5 Making above submissions, it is prayed to dismiss the present
      appeals.
             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 disputed
      that all the respondents were initially appointed in the year 1971 on the
      post of Animal Husbandry Extension Officer or Veterinary Assistant
      Surgeon in the Animal Husbandry Department of the State of Rajasthan.
      However, thereafter, all of them applied for appointment in the Rajasthan
G     State Dairy Development Corporation Ltd. by making applications and
      after they were interviewed, they were appointed in the respective Milk
      Unions under the Dairy Federations between 1976 to 1978. After their
      applications and interviews, the respondents were informed with the
      terms and conditions on which they are absorbed / appointed in the
      Rajasthan State Dairy Development Corporation Ltd., which read as
H     under:-
    STATE OF RAJASTHAN & ORS. v. DR. HAMIR SINGH                              123
    CHOUHAN (DEAD) BY LRS & ORS. [M. R. SHAH, J.]

         “With reference to your application and interview for the post       A
      of Assistant Officer you are informed that before the appointment
      can be made your acceptance to the following terms and conditions
      is necessary.
      1.     You will be appointed in the grade of 375-850 and your
             way will on fined suitably protecting your existing pay.         B
      2.     Other allowances like Dearness Allowances House Rent
             allowance and Travelling Allowance etc., shall be at par
             with these admissible in State Government service.
      3.     Though the recruitment is being done by the Corporation
             your ultimate employer may be the Union of Cooperative           C
             Societies established at the District level.
      4.     Regarding your previous service the matter will have to be
             settled between you and the State Government. So far as
             the Corporation is concerned this will be a fresh appointment.
                                                                              D
         If the terms are acceptable, please send the acceptance in the
      acknowledgement, given below latest by 16th August 1975, failing
      which it shall be assumed that you are not interested in the job.”
       7.1 Thus, all of them were specifically informed that regarding
their previous service, the matter will have to be settled between them
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and the State Government and so far as the Corporation is concerned,
the appointment will be a fresh appointment. That thereafter, all of them
were appointed in the concerned Dairy Federations/Unions under the
Rajasthan State Dairy Development Corporation Ltd. on the basis of
the recommendations made by the selection committee of the Rajasthan
State Dairy Development Corporation Ltd. initially on a probation for a       F
period of one year. At the time when number of officers of the Rajasthan
Animal Husbandry Services came to be selected on certain posts in the
Rajasthan Dairy Development Corporation and the various Milk
Producers Cooperative Unions, some of these officers workings in the
Rajasthan Animal Husbandry services represented to the Government
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that before making up their mind about accepting of their offers, they
would like to know what benefits in respect of their service in the
Government will be available to them. To that, the respective employees
were informed vide communication / G.O. dated 30.01.1976 that their
lien will be kept for a period of two years or until their confirmation,
whichever is earlier. That therefore, right from very beginning, the          H
124             SUPREME COURT REPORTS                             [2023] 4 S.C.R.


A     respective respondents were told that their lien will be kept for a period
      of two years or until their confirmation in the Corporation / Union,
      whichever is earlier. With an open eye, the respective respondents
      accepted their appointments in the Dairy Development Corporation /
      Milk Federation Unions. All of them thereafter continued to work in
      their respective milk unions under the Dairy Development Corporation.
B
      All of them got the promotions while working in different milk unions
      under the Dairy Development Corporation. All of them retired as
      employees of the Dairy Development Corporation / Milk Federation
      Unions. All of them were paid the retirement benefits when they retired
      on attaining the age of superannuation.
C
              That thereafter after a period of six to nine years of their retirement
      from the Dairy Development Corporation / Milk Federation Unions, they
      filed the writ petitions before the High Court claiming pensionary benefits
      from the State Government contending inter alia that their lien as a
      Government servant in the Rajasthan Government service have been
D     continued. Once the respondents were absorbed on selection and after
      selection process in the Dairy Development Corporation / Milk Federation
      Unions, they worked as such and even got the promotion, thereafter, the
      respective 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 the
      Rajasthan Service Rules, 1951, which provides for termination of lien,
E
      “a Government servant’s lien on a post stands terminated on his acquiring
      a lien on a permanent post outside the cadre on which he is borne”.
      Therefore, once the respective respondents were appointed after
      selection 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 be
      two liens on two substantive posts. The submission on behalf of the
      respondents that it was not a case of permanent appointment in the
      Dairy Development Corporation / Milk Federation Unions, cannot be
      accepted. Their appointment orders on record are very clear. They were
G     appointed after due selection, interview and even after following the due
      selection process and even earlier when they had doubts, it was made
      explicitly clear in the communication dated 30.01.1976. Therefore, once
      the respondents were permanently absorbed and became an employee
      of the Dairy Development Corporation / Milk Federation Unions, they
      ceased to have the lien with the State Government and therefore, they
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     STATE OF RAJASTHAN & ORS. v. DR. HAMIR SINGH                                   125
     CHOUHAN (DEAD) BY LRS & ORS. [M. R. SHAH, J.]

shall not be entitled to the pensionary benefits as State Government                A
employees and that too after having received the retirement benefits
from the Dairy Development Corporation / Milk Federation Unions.
      8. In view of the above and for the reasons stated above, the
judgment and order passed by the learned Single Judge as well as the
Division Bench are unsustainable and the same deserve to be quashed                 B
and set aside and are accordingly quashed and set aside. It is observed
and held that the respective respondents shall not be entitled to the
pensionary benefits from the State Government as directed by the learned
Single Judge and the Division Bench.
       Present appeals are accordingly allowed. No costs.                           C
       Pending application, if any, also stands disposed of.

Divya Pandey                                                     Appeals allowed.
(Assisted by : Abhishek Agnihotri and Roopanshi Virang, LCRAs)
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