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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Raghvendra Singh Chauhan, Alok Kumar Verma, J.
Dharmendra Kumar Shahi - Appellant
Versus
Board Of Management & Anr. - Respondent
Writ Petition (S/B) No. 115 of 2021
Decided On : 12-04-2021
Lien - Employee's Right to Retain Post - Ministry of Personnel, Public Grievances and Pensions - Office Memorandum 26.12.2013, 27.08.2018 - State of Rajasthan v. S.N. Tiwari and others (2009) 4 SCC 700 - Chaudhary Charan Singh University, Meerut - JNU - [Clause 1, 3, 5 of Office Memorandum 26.12.2013, 27.08.2018] - The petitioner, an Associate Professor at D.A.V. P.G. College, sought to retain his lien while joining JNU. The court held that the petitioner cannot claim the right to retain his lien with the College after being selected by JNU, as he cannot ride on two boats simultaneously unless the Rules so provide. The Office Memorandums are inapplicable to the petitioner's case, and the NOC issued by the College did not commit to permitting the petitioner to leave or retain his lien. The case of S.N. Tiwari and others is distinguishable as it dealt with deputation, unlike the present case of direct recruitment by JNU. The court also rejected the petitioner's claim for equality with a similar case at Chaudhary Charan Singh University, Meerut, and upheld the College's decision not to permit faculty members to leave due to a dearth of faculty.
Fact of the Case:
The petitioner, an Associate Professor at D.A.V. P.G. College, sought to retain his lien while joining JNU. The College declined his request, leading to the present writ petition.
Finding of the Court:
The court held that the petitioner cannot claim the right to retain his lien with the College after being selected by JNU, as he cannot ride on two boats simultaneously unless the Rules so provide. The Office Memorandums are inapplicable to the petitioner's case, and the NOC issued by the College did not commit to permitting the petitioner to leave or retain his lien. The case of S.N. Tiwari and others is distinguishable as it dealt with deputation, unlike the present case of direct recruitment by JNU. The court also rejected the petitioner's claim for equality with a similar case at Chaudhary Charan Singh University, Meerut, and upheld the College's decision not to permit faculty members to leave due to a dearth of faculty.
Issues: The issue before the court was whether the petitioner can claim the right to retain his lien on the post of Associate Professor in the College after being selected by JNU.
Ratio Decidendi: An employee cannot claim the right to hold a lien under his old employer once he has been selected by a new employer, unless the relevant Rules so provide. The petitioner cannot ride on two boats simultaneously unless the Rules so provide. The Office Memorandums are inapplicable to the petitioner's case, and the NOC issued by the College did not commit to permitting the petitioner to leave or retain his lien. The case of S.N. Tiwari and others is distinguishable as it dealt with deputation, unlike the present case of direct recruitment by JNU. The court also rejected the petitioner's claim for equality with a similar case at Chaudhary Charan Singh University, Meerut, and upheld the College's decision not to permit faculty members to leave due to a dearth of faculty.
Final Decision: The court dismissed the Writ Petition, finding no merit in the petitioner's claims.
JUDGMENT
Raghvendra Singh Chauhan, C.J. - Aggrieved by the order dated 22.02.2021 passed by the Board of Management, D.A.V. P.G. College (respondent no. 1), the petitioner, Dr. Dharmendra Kumar Shahi, has approached this Court.
2. Briefly stated, the facts of the case are that in 2000 the petitioner was appointed as the Associate Professor (Geography) by the Board of Management, D.A.V. P.G. College, the respondent no. 1. Meanwhile, the Jawahar Lal Nehru University (for short the "JNU") advertised a vacancy for the post of Associate Professor, in the Centre for Russian and Central Asian Studies, School of International Studies at the University. Since the petitioner was eligible for the said post, he sought the permission of respondent no. 1, and of the Principal, D.A.V. College, the respondent no. 2. On 05.08.2019, an NOC was issued in his favour. The petitioner went through the selection process with the JNU. On 11.11.2020, the JNU offered him appointment to the post of Associate Professor. The petitioner accepted the appointment offer by his letter dated 13.11.2020. By letter dated 16.11.2020, the Registrar (Academics), JNU directed the petitioner to join the Centre for Russian and Central Asian Studies, School of International Studies within a period of four months. The petitioner was also informed that, in case the JNU does not hear from him about his accepting the offer of appointment, it will be deemed that he is no longer interested.
3. The petitioner claims that while he is eager to join the Centre for Russian and Central Asian Studies, School of International Studies at JNU, he still wants to retain his lien over his post as an Associate Professor with respondent nos. 1 and 2. Therefore, on 18.11.2020, on 18.01.2021 and on 02.02.2021, he has repeatedly represented to respondent nos. 1 and 2 that they should permit him to take one year's leave without pay, and permit him to join the JNU. Moreover, they should permit him to retain his lien on the post of Associate Professor with respondent nos. 1 and 2. By order dated 22.02.2021, the petitioner's request, for issuing of the relieving order on the basis of the NOC issued by the competent authority, has been declined by respondent no. 1. The grievance of the petitioner is that, although the respondents had granted an NOC, they are not willing to grant leave without pay for one year to him so that he can join the JNU. Hence, the present writ petition before this Court.
4. Mr. S.S. Yadav, the learned counsel for the petitioner, has raised the following contentions before this Court :-
Firstly, that on 26.12.2013, the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), Government of India had issued an Office Memorandum dealing with resignation, and lien to be retained by the government employees. Clause 1 of the said Office Memorandum defined the term "lien". Clause 3 defined the term "lien on a post". Clause (5) dealt with "retention of lien for appointment in another Central Government Department / Offices / State Government". According to the learned counsel, "if a permanent employee is selected, on the basis of his application, for posts in other Central Government Department / Offices / State Government, his lien may be retained in the parent department for a period of two years. If the employee concerned is not permanently absorbed within a period of two years from the date of his appointment in the new post, he should immediately, on expiry of the period of two years, either resign from the service, or revert to his parent cadre. An undertaking to abide by this condition may be taken from him at the time of forwarding of his application to other departments/offices. The Office Memorandum dated 26.12.2013 has been reiterated in the Office Memorandum dated 27.08.2018 issued by the Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel & Training), Government of India. Thus, according to the learned counsel, s
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