RATHORE, J. - (1.) THIS writ petition has been filed against the order passed by Rajasthan Civil Services Appellate Tribunal on 01. 05. 2000. The Appellate Tribunal had allowed the appeal preferred by Shri Madhusudan Sharma and directed the State Government to pay retiral benefits by treating him a government servant for that purpose.
(2.) AFTER retirement, Madhusudan Sharma, deceased, had made a request to the parent department for pension and when he did not get the same, he filed a writ petition before the High Court in the year 1997. The High Court vide its order dated 06. 12. 99 passed the order for transferring the writ petition to the Civil Services Appellate Tribunal. The order passed by the High Court was "petition is also transmitted to the Tribunal for adjudication only on merits without considering the question of limitation. " AFTER the writ petition having been transferred to the Appellate Tribunal at Jaipur the same was registered as appeal no. H-523/99. Subsequently, the said appeal was transferred to the tribunal at Jaipur and the same came to be registered as no. 452/2000. The brief facts, relevant for the present controversy, are that Shri Madhusudan Sharma was initially appointed on the post of Animal Husbandry Extension Officer in Panchyat Samiti Sujangarh, vide order dated 27. 01. 1963. The said order of appointment was passed by the Director of Animal Husbandry Department, Jaipur, in exercise of the powers under Section 79 (1) read with Section 26 (2) (b) of the Rajasthan Panchyat Samities and Zila Parishad Act, 1959. Thereafter the name of Shri Madhusudan Sharma was recommended by the Rajasthan Public Service Commission for appointment on the post of Veterinary Assistant Surgeon/animal Husbandry Extension Officer, vide order dated 15. 07. 1965. Then appointment was made on probation for a period of two years, under Rajasthan Animal Husbandry Service Rules, 1954. On completion of the period of probation the employee was confirmed in service, vide order dated 08. 11. 1968 w. e. f. 01. 07. 1967. Subsequently, Shri Madhusudan Sharma was appointed in Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh Ltd. , Jodhpur on the post of Veterinary Assistant Surgeon. He was relieved by the State of Rajasthan, after the appointment on 15. 01. 1977, for joining the service in Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh. When Shri Madhusudan Sharma was working in the Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh, his services were transferred to Rajasthan Cooperative Dairy Federation. He served in the Rajasthan Cooperative Dairy Federation upto 31. 05. 1995 and then he was repatriated to his earlier employer, namely Paschimi Rajasthan Dugdh Utpadak Shakari Sangh Ltd. Shri Madhusudan Sharma then retired from service on 30. 04. 1996 after having attained the age of superannuation. Accordingly, Shri Sharma remained in the service of State Government for a period of about 13 years & 4 months and in the services of Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh for a period of about 19 years. It is to be noted that while Shri Madhusudan Sharma was working with Rajasthan Cooperative Dairy Federation, he had submitted an application on 03. 06. 1995 stating that he has not been absorbed either by the Rajasthan Cooperative Dairy Federation or by Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh and therefore he may be repatriated to the State of Rajasthan so that he may not be deprived of the retiral benefits. The learned counsel for the petitioner has submitted that as the employee, namely, Madhusudan Sharma had remained in service of Rajasthan Paschimi Dugdh Utpadak Sahakari Sangh even after the period of probation and as such he should be deemed to have been confirmed with the Sangh. Therefore his lien with the State Government stood terminated. Further, the counsel for the petitioner has submitted that a specific order was passed by the State Government on 07. 08. 1997 for terminating the lien of Shri Madhusudan Sharma w. e. f. 01. 04. 1977. Therefore, it was submitted that the lien of the employee had already been terminated from petitioner-State then they were not to give the retiral and other benefits to the employee and it is that employer with whom the employee was working at the time of his retirement, who is to give the said benefits. It is also submitted by the counsel for the petitioner that the employee Shri Madhusudan Sharma had himself submitted an application to the General Manager Rajasthan Cooperative Dairy Federation stating that he has not been absorbed and therefore he may be repatriated to the State Government so as to avail his retiral benefits.
(3.) ON the other hand, the learned counsel for the employee Madhusudan Sharma had submitted, relying upon relevant rules of the Rajasthan Service Rules, that the lien was never terminated from the State Government and it is the State Government alone from whom the employee is entitled to receive his retiral benefits. Learned counsel for the employee respondent also invited the attention of this Court to the pleadings of the petitioner and submitted that inconsistent/contradictory stands have been taken by the petitioner-government in respect of the status of employment during service and at the time of retirement. Further, the learned counsel for the employee respondent has submitted, after referring to the documents on record, that the State Government itself had been corresponding with Rajasthan Cooperative Dairy Federation for sending copies of the ACR for the purposes of promotion and also making reference that the employee has not been absorbed or confirmed by the Rajasthan Paschimi Dugdh Utpadak Sahakari Sangh or by the Rajasthan Cooperative Dairy Federation and therefore it is not possible for the State to terminate the lien of the employee. Before proceeding to consider the aforesaid submissions, it would be relevant to refer the provision of lien under the Rajasthan Service Rules, as incorporated under Rules 15, 16, 17 & 18, which reads as under:-      " 15. Lien- Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. 16. Unless his lien is suspended under Rule 17 or transferred under Rule 19 a Government servant holding substantively a permanent post retains a lien on that post- (a) while performing the duties of that post; (b) while on foreign service or holding a temporary post,or officiating in another post; (c) during joining time on transfer to another post, unless he is transferred substantively to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the old post; (d) while on leave; and (e) while under suspension. 17. Suspension of lien- (a) Government shall suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity- (i) to a tenure post; or (ii) (Omitted) (iii) provisionally to a post on which another Government would hold a lien, had his lien not been suspended under this rule. (b) Government may, at their option, suspend the lien of a Government servant on a post which he holds substantively if he is deputed out of India or transferred to foreign service, or, in circumstances not covered by:- (a) of this rule, * (is transferred in an officiating capacity), to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less three years. (c) Notwithstanding anything contained in clause (a) or (b) of this rule, a Government servant's lien on a tenure post may in no circumstances be suspended. If he is appointed substantively to another permanent post his lien on the tenure post must be terminated. (d) If a Government servant's lien on a post is suspended under clause (a) or (b) of this rule, the post may be filled substantively and the Government servant appointed to hold it substantively shall acquire a lien on it; provided that the arrangement shall be reversed as soon as the suspended lien revives. (e) Revival of Suspended lien- A Government servant's lien which has been suspended under clause (a) of this Rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in sub-clauses (i), (ii) or (iii) or that clause. (f) A Government servant's lien which has been suspended under clause (b) of this rule shall revive as soon as he ceases to be on deputation out of India or on foreign service or to hold a post in another cadre, provided that a suspended lien shall not revive because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in sub-clause (i), (ii), or (iii) of Clause (a ).      " 18. Termination of lien- (a) 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 or a suspended lien upon a permanent post. * (b) A Government servant's lien on a post stands terminated on his acquiring a lien on a permanent post (whether under the Government or Central/other State Governments) outside the cadre on which he is borne. " Therefore when the employee was not confirmed at the new post in accordance to the rules then his lien with State Government cannot be said to have terminated. It is only when a Government employee is appointed substantively to any post then he acquires a lien on that post and ceases to hold the lien previously acquired on a post. Moreover, a lien of an employee on a post would in, no circumstances be terminated unless he acquires a lien on a permanent post with his new employer and accepts to have lien with him. It is a settled principles of law that even when rules prescribed a maximum period of probation and if there is further provision for continuation of such probation then an exception has been made that there will be no deemed confirmation in such case and the probation period will be deemed to be extended. In other words when Shri Madhusudan Sharma was not confirmed and made permanent on the post with Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh or Rajasthan Cooperative Dairy Federation then his lien with State Government still continued and cannot be said to be terminated at any point of time, during the tenure of his service. ;