Lien on prior post terminates upon deemed confirmation in new post after probation; no right to delayed repatriation beyond 3-year maximum.

ORDER (ORAL)

By Hon’ble Dr. Chhabilendra Roul, Member (A):-

The present OA has been filed by the applicant against the order No. A.12025/01/2014-CHS-III(Pt.) dated 11.02.2022 vide which the respondents have confirmed the applicant in the post of Assistant Professor (CTVS) w.e.f 02.09.2015 and order No. A.12025/01/2014-CHS-III(pt.) dated 11.02.2022 vide which the respondents have rejected representation dated 09.09.2020 of the applicant, requesting the respondents to repatriate her to her parent cadre.

2. The brief facts of the case is that the present applicant was initially joined as Medical Officer in GDMO in the sub cadre of Central Health Services on 16.11.1995. Subsequently, she was confirmed on the same post and promoted to the post of CMO, (NFSG). After being selected for the post of Assistant Professor (CTVS) in the teaching sub cadre through direct recruitment, the applicant joined as Assistant Professor (CTVS) on 02.09.2014. The respondents initiated departmental proceedings on the direction of CBI on 06.01.2015. On 09.04.2019, during the pendency of the departmental proceedings, the applicant submitted a representation seeking reversion to her earlier post of GDMO, followed by reminders on 10.10.201 and 05.11.2019. The departmental proceedings were completed and on 18.12.2019 the charges against the applicant were dropped. The respondents vide their response dated 27.05.2019, 28.10.2019 and 21.02.2020 responded to her representation stating that her lien period of 2/3 years had expired on 02.09.2016/02.09.2017, therefore, they could not revert her to the earlier post of GDMO. The respondents again, vide communication dated 30.03.2021, reiterated the position taken earlier and rejected her request to be repatriate to her previous cadre as GDMO. Being aggrieved, the applicant filed OA No. 131/2022. This Tribunal vide order dated 20.01.2022, had directed the respondents to consider the applicant’s pending reply/representation pursuant to the communication dated 03.03.2021 and to pass reasoned and speaking order thereon. Pursuant to said order dated 20.01.2022 passed by this Tribunal in aforementioned OA, the respondents have issued detailed order vide their communication dated 11.02.2022 (page 17). On the same date, they had also issued the confirmation of the applicant in the grade of Assistant Professor (CTVS) w.e.f. 02.09.2015.

Being aggrieved, the applicant has filed the present OA seeking the following reliefs:-

“(a) Call for the relevant file(s)/record(s) of the Respondents and peruse the same;

(b) Declare both the impugned Orders bearing no. 12025/1/2014-CHS-III dated 11.2.2022 with internal no. 1/3390688/2022 pages no. 163-164 and internal no. 1/3390689/2022 pages no. 165-168 as quashed and

(c) Pass an order directing the respondent no. 1 to revert/ restore the Applicant to GDMO sub-cadre (CHS) with all consequential benefits;

(d) Award cost of this application and proceedings against the Respondents and in favour of the Applicant.

(e) May also pass further order(s) as deemed just and proper to meet the ends of justice.”

3. Learned counsel for the applicant has relied upon DOPT OM dated 17.08.2016. Clause 3.4.1 of the same states as follows:-

“3.4.1 A Government servant's lien on a post may in no circumstances be terminated even with his consent if the result will be to leave him without a lien upon a permanent post. Unless his lien is transferred, a Government servant holding substantively a permanent post retains lien on that post. It will not be correct to deny a Government servant lien to a post he was holding substantively on the plea that he had not requested for retention of lien while submitting his Technical