IMPORTANT POINT
Pensionary benefits - If a government servant seeks employment in another unit or department or in another cadre or grade in same department under Rules, his/her lien on original appointment shall be continued to be maintained until absorbed in department or cadre in which he/she is newly appointed - In case employee is absorbed, he/she shall be entitled to benefit of past service for the purpose of leave and pension.

JUDGMENT :

J.K. MAHESHWARI, J.

1. The appellant assails the tenability and validity of the judgment dated 23.10.2009 of the Division Bench of the High Court of Karnataka, Circuit Bench at Gulbarga passed in W.A. No. 10003 of 2009, by which the order passed by learned Single Judge on 27.08.2008 in W.P. No. 4066 of 2006 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.

2. In the present case, the short questions of law which fall for consideration are:

(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?

(ii) Whether in the facts of the case, on joining the new post, the appellant’s lien on the original/previous post will be continued to be maintained, until he is permanently absorbed in the new department or cadre in which he is subsequently appointed?

(iii) Whether in the facts and circumstances of the case, the relief as prayed by the appellant in the writ petition to consider him for appointment on the post of Assistant Registrar in the previous/original cadre at par with his juniors and consequential benefits on retirement can be allowed? If yes, to what extent?

3. The undisputed facts are that, appellant was appointed on 10.08.1972 as Junior Assistant in Bangalore University. Later, he was transferred to Gulbarga University on 21.07.1981 and promoted to the post of ‘Assistant Office Superintendent’. Eventually, vide office order dated 07.08.1987, appellant along with one ‘Sri. A. Raghavendra’ and other serving Assistant Office Superintendents, were promoted to the post of ‘Office Superintendent’ with immediate effect subject to satisfactory completion of probation period of 1 year. The University by office order dated 10.07.1990 declared that appellant had completed his probation ‘satisfactorily’ on 08.08.1988. In terms of the said declaration, the appellant was w.e.f. 07.08.1987, substantively appointed to the post of ‘Office Superintendent’.

4. Subsequently, in 1993, the University invited applications for appointment to the post of ‘Assistant Registrar’ via direct recruitment. The appellant applied for the said post and was selected. As per the terms of the appointment, the appellant had to serve as a probationer for a period of two years, before he could be confirmed on the said post. On his appointment, respondent-University vide office order dated 08.04.1993 relieved the appellant from the post of Office Superintendent w.e.f. 04.02.1993, and duly recorded that he is being relieved to accept the another appointment as ‘Assistant Registrar’ in the Gulbarga University. The order further recorded that its contents shall be noted in the service book. The relevant extracts of the aforesaid office order dated 08.04.1993 is being reproduced for ready reference as under:

“No. GUG/ADM-1/92-93/273

Dated: 8.4.1993

ORDER

In pursuance with the Rule 252(b) of KSCR’s read with O.A. No. FD 263 SRS 71 dated 22.1.1972, Sri. L.R. Patil, Office Suptd. & P.S. to Vice-Chancellor, Gulbarga University, Gulbarga has been relieved from the duties on 4th Feb,’93 to accept another appointment as Assistant Registrar in G.U. Gulbarga Vide T.O. Notification No. referred to above (1).

Further, the contents of this order shall be noted in the Service Book concerned.

REGISTRAR

Pursuant thereto, the appellant joined on the post of Assistant Registrar in the respondent-University.”

5. Meanwhile, Mr. A. Raghavendra, filed Writ Petition No. 5364 of 1993 and challenged the appellant’s appointment on the ground of discrimination and arbitrariness. During pendency of the said writ petition, the respondent-University vide order dated 03.02.1996, promoted ‘Sri. A. Raghavend