Gauhati High Court Quashes Lien Termination | Government Servant Cannot Hold Lien On Two Posts And FR 14-A Bars Such Termination Without Legal Basis
Safiya Malik
The High Court of Gauhati Single Bench of Justice Kardak Ete held that a government servant cannot acquire and hold lien against two posts simultaneously and quashed the notification terminating the petitioner’s lien against his original post. The Court directed the concerned authorities to allow the petitioner to rejoin his post as Associate Professor (Geology) at Jorhat Engineering College. The Court further held that although the petitioner had been appointed to the post of Director, College Development Council, Gauhati University, the appointment was temporary in nature despite the post being permanent. Accordingly, the petitioner continued to hold his lien against the post of Associate Professor and the termination of such lien was impermissible under the applicable service rules. The Court declined the petitioner’s prayer for back wages but unequivocally directed that he be permitted to rejoin his original post.
The petitioner, holding a Master’s degree and Ph.D. from the Indian Institute of Technology (IIT), Roorkee, specialized in Remote Sensing and Geographical Information System (GIS). He was appointed as an Associate Professor in the Civil Engineering (Geology) Department at Jorhat Engineering College in 1992, and his services were regularized in 1995.
While serving as Associate Professor, the petitioner applied for the position of Director, College Development Council, Gauhati University, in response to Advertisement No.NTS-1/2013 issued in March 2013. Following the selection process, he was appointed to the said post vide order dated 11.06.2015 and formally joined on 27.06.2015.
Pursuant to his appointment, the Government of Assam granted him a lien for a period of one year through notification dated 25.06.2015. However, after the completion of one year, by order dated 21.04.2017, the Government of Assam terminated the lien with effect from 27.06.2016. Consequently, he was not allowed to rejoin as Associate Professor after completing more than five years in the post of Director, College Development Council.
The petitioner contended that under the Fundamental Rules (FR), particularly FR 9(13), FR 12-A, FR 14(a), and FR 14-A, the termination of his lien was impermissible. It was argued that the lien granted demonstrated the petitioner’s continued substantive title to the post of Associate Professor, which could not be terminated without compliance with the service rules.
Further, it was argued that the post of Director, though described as permanent, did not result in the petitioner acquiring a lien against it. The use of the term “initially for a period of 5 years” indicated that the appointment was temporary in nature. The petitioner continued in that post for over five years and was released after five years and eight months, reinforcing the claim that he had not acquired lien against the Director’s post.
The petitioner relied on several judgments of the Supreme Court, including The Divisional Controller, KSRTC vs. Mahadeva Shetty, (2003) 7 SCC 197; Uttaranchal Road Transport Corporation vs. Mansaram Nainwal, (2006) 6 SCC 366; Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd., (2003) 2 SCC 111; and State of Rajasthan vs. S.N. Tiwari, (2009) 4 SCC 700. These authorities were cited to substantiate the petitioner’s contention that mere continuation in a post does not result in automatic acquisition of lien.
On the contrary, the State of Assam submitted that the petitioner was granted lien only for one year, subject to the condition that he either returns to his parent department or resigns. Upon failure to do so, the lien stood terminated as per the express terms of the lien notification. The respondent relied on Ramlal Khurana vs. State of Punjab, (1989) 4 SCC 99, and Dr. S.K. Kacker vs. All India Institute of Medical Sciences, (1996) 10 SCC 734, to argue that lien against the previous post automatically ends when the employee is appointed substantively to a new post.
The petitioner refuted these contentions, asserting that his appointment to the Director’s post was temporary, and thus, the question of acquiring lien did not arise. He stated that in the absence of a probationary period and formal permanent appointment, the rules governing termination of lien did not apply.
The Court extensively analysed the relevant provisions of the Fundamental Rules and the precedents cited. It observed that "Lien means the title of a Government servant to hold substantively a permanent post including a tenure post to which he has been appointed substantively." It further recorded that under FR 12-A, a government servant acquires a lien only upon substantive appointment to a permanent post and ceases to hold lien on any previous post upon such appointment.
Justice Kardak Ete recorded that "The appointment of the petitioner as Director, College Development Council, though made against a permanent post, was temporary in nature." The Court found that the use of the word "initially" before the phrase "for a period of 5 years" clearly indicated the non-permanency of the appointment.
The Court further stated, "The petitioner cannot be said to have acquired a lien against the post of Director, College Development Council, Gauhati University, since he was allowed to continue in the post beyond the stipulated 5-year period without formal absorption or probation."
Analysing the Government’s notification granting lien, the Court noted, "The notification dated 25.06.2015 conclusively establishes that the petitioner held a lien against the post of Associate Professor (Geology) in Jorhat Engineering College." The Court also recorded, "The very fact that the lien was purportedly terminated by notification dated 21.04.2017 indicates that the authorities themselves recognized the existence of such lien prior to its termination."
Addressing the respondent’s reliance on the case of Dr. S.K. Kacker (Supra), the Court stated, "This decision is clearly distinguishable as it involved an appointment made on a regular basis with a defined probationary period, which is absent in the present case."
The Court underscored that under FR 14-A, a government servant’s lien cannot be terminated if it results in leaving him without any lien or a suspended lien on a permanent post. It further observed, "Even assuming the appointment was to a tenure post, the lien could only have been suspended under FR 14(a), and would have automatically revived upon cessation of the petitioner’s tenure as Director."
The Bench recorded that "At no stage was the petitioner absorbed in the post of Director, College Development Council, nor was any formal termination of lien on his previous post effected in accordance with the rules."
Justice Kardak Ete concluded the judgment with the following directions:
"The impugned order dated 21.04.2017, issued by the Secretary to the Government of Assam, Higher Education (Technical) Department, terminating the lien granted to the petitioner against the post of Associate Professor in Geology Department, Jorhat Engineering College, Jorhat is hereby set aside and quashed."
The Court further directed, "The respondent authorities are directed to allow the petitioner to join in the post of Associate Professor (Geology) in Jorhat Engineering College, Jorhat forthwith."
On the petitioner’s prayer for back wages, the Court categorically held, "However, prayer for payment of back wages from 25.04.2022 is declined."
The writ petitions were accordingly allowed and disposed of with no order as to costs.
Advocates Representing the Parties
For the Petitioners: Mr. I. Choudhury, Senior Advocate; Mr. T. Das, Advocate
For the Respondents: Mr. K. Gogoi, Standing Counsel for Higher Education Department; Mr. C. Baruah, Standing Counsel for the Accountant General, Assam
Case Title: Dr. Biswajit Sarma vs. The State of Assam and Others
Neutral Citation: 2025: GAU-AS:6087
Case Number: WP(C)/3864/2017
Bench: Justice Kardak Ete
[Read/Download order]
