Valmiki J. Mehta JUDGMENT
Valmiki J. Mehta, J.
1. By this writ petition under Article 226 of the Constitution of India, the petitioner seeks the relief of quashing of the letter dated 18.1.2016 whereby the respondent no. 1/erstwhile employer/Kalindi College informed the petitioner that since petitioner has been absorbed on permanent basis by the present employer being the University of Rajasthan (really it should be Commissioner Office, Higher Education, Jaipur, Rajasthan) , hence lien of petitioner on his post as Lecturer with the respondent no. 1 has ceased to exist w.e.f. 25.11.2015 being the date of the permanent absorption of the petitioner with the present employer. Petitioner has been since 25.11.2015 working as Lecturer, Department of History in Government College in Jaipur, Rajasthan.
2. There is no dispute, and it is admitted before this Court by the counsels for the parties, that the employment of the petitioner with the respondent no. 1/Kalindi College/erstwhile employer was governed by the CCS Rules and Fundamental Rules and Supplementary Rules. Respondent no. 1 in its counter-affidavit has placed reliance upon Clause (2) of Rule 14.9 of the Leave Rules 2002 to contend that extraordinary leaves ordinarily will not be granted for more than one year, but in no case beyond the period of two years. Respondent no. 1 in its counter-affidavit in para 13 has also stated that petitioner has been relieved from services with the respondent no. 1 due to his absorption on permanent basis with the present employer and hence petitioner cannot claim extension of period of lien for the third year.
3. (i) On behalf of the petitioner, reliance is placed upon certain paras pertaining to lien in Nabhi Publication, a private publication, with respect to Central Government employees and which paras talk of extension of a lien period for more than two years and up to a maximum period of three years.
(ii) Surely, courts cannot take some private commentary being the Nabhi Publication being authoritative with respect to a particular subject, and therefore, this Court has examined the FRSR in order to know whether lien can be extended beyond a period of two years i.e for a period of three years inasmuch as petitioner is claiming extension after a period of two years which expired on 6.10.2015 and for one more year thereafter till 6.10.2016 i.e for three years.
4. The relevant FRSR is FR-13 and which reads as under:-
"F.R.13. A Government servant who has acquired lien on a post retains the 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 along with his title 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 earlier post;
(d) while on leave; and
(e) while under suspension.
Provided that no lien of a Government servant shall be retained:
(i) Where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption; and
(ii) On foreign service/deputation beyond the maximum limit admissible under the orders of the Government issued from time to time."
5. Though respondent is not justified in arguing that petitioner proceeded on immediate absorption on a permanent basis to the present employer and which is a ground under the Proviso to FR-13 not to retain lien, and taking note of FR-13 although FR-13 is not relied upon in the counter-affidavit, however, I find that the issue in question will have to be decided wi........