BIRESH CHANDRA CHAKRAVARTY Vs. STATE OF ASSAM AND OTHERS

JUDGEMENT

(1.) In this application under Art. 226 of the Constitution of India, the petitioner has challenged the order of the Assam Administrative Tribunal made on 13.2.91 in Case No. 81 (ATA) 90 refusing to grant pensionary benefit.

(2.) The facts giving rise to the present case, in brief, are as follows. The Government of Assam under its order dated 3.6.69 established an office of the Sub-Registrar at Bilasipara in Goalpara (which we shall refer to as the 'New Office'), and the salary of the registering officer appointed to be the Sub-Registrar in the New Office was not to be paid by the Government of Assam but on commission depending upon number of documents registered. The petitioner was a confirmed Lower Division Assistant in the office of the District Registrar Goalpara having a lien on his post which he was holding. After the establishment of the New Office, the petitioner was appointed as Sub-Registrar temporarily on commission basis. The District Registrar released the petitioner under his order dated 8.7.76 without disturbing the petitioners lien. While the petitioner was Sub-Registrar in the New Office the petitioner was allowed proforma promotion temporarily to the post of Upper Division Assistant by the District Registrar under his Order No. 39 dated 24.10.70. However, the District Registrar by his order dated 18.4.81, terminated the petitioner's lien without giving any reason technically. Being aggrieved by the order of the District Registrar, the petitioner approached the concerned authorities, but to no avail. Therefore, the petitioner preferred an appeal before the Assam Administrative Tribunal. The Tribunal set aside the order of termination of the petitioner's lien but it refused to give consequential reliefs of pensionary benefits for the period during which the petitioner was working as registering officer on commission basis. Hence this petition.

(3.) Under FR 12A, a Government servant on substantive appointment to a permanent post acquires a 'lien' on that post and ceases to holding any lien previously acquired on any other post. In view of FR 12A, a substantive appointment to a permanent post in public service confers the Government servant so appointed a substantive right to the post. Therefore, the service of the Government servant cannot be terminated except as provided under the conditions of service and Art. 311 of the Constitution. That being the position, although salary of the petitioner was not paid by the Government and he was a registering officer on commission in the New Office, he did not cease to be a Government servant and he would remain as an employee in the office of the District Registrar. In other words, the service rendered in the New Office by the petitioner would be deemed to have been rendered in an office of a Sub-Registrar under the control and superintendence of the District Registrar in whose district New Office was situated in view of section 68 of the Registration Act. The reason is simple. The petitioner was appointed substantively to a permanent post having lien on his permanent post. Under (sic) 14A, a Government servant's lien on a post in no circumstances be terminated even with his consent, if the result would be to leave him without a lien or suspended lien upon a permanent post. It is true that his salary was not paid by the Government, but the commission he was receiving was not from the pockets of the persons who presented documents for registration. He was drawing a percentage of the receipts, that is to say, he was paid out of the money received by the Government on registration of documents. He was discharging his official functions provided under the Registration Act as a registering officer. While he was functioning as registering officer or Sub-Registrar he was to comply with all the provisions of the Registration Act. An appeal shall lie to the Registrar from his order refusing registration as provided under section 72 of the Registration Act.