caselaws
Supreme Court of India
Sitikanatha Mishra vs Union Of India & Ors on 9 January, 2015Author: A K Goel
Bench: Anil R. Dave, Adarsh Kumar Goel, R. Banumathi
REPORTABL
E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 234-245 OF 2015
(ARISING OUT OF SLP (C) NOS.1645-1646 of 2013)
SITIKANATHA MISHRA …APPELLANT
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
JUDGMENT
ADARSH KUMAR GOEL, J.
1. Leave granted.
2. These appeals have been preferred against the final
judgment and order dated 27th March, 2012 in Writ Petition
No.2331 of 2010 and order dated 10th October, 2012 in Review
Petition No.212 of 2012 of the High Court of Orissa at Cuttack.
3. The question raised for our consideration is whether the
appointment of the appellant to the post of Professor in the
Indian Institute of Tourism and Travel Management (“IITTM”),
an autonomous body under the Ministry of Tourism,
Government of India from
27th January, 1997 could be treated to be on regular basis and
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whether his appointment to the post of Director in the same
Institute with effect from 8th June, 2006, on contractual basis,
had the effect of relinquishing his lien to the post of Professor,
in absence of his resignation and in absence of filling up of the
said post of Professor.
4. We have heard learned counsel for the parties.
5. The IITTM issued an advertisement dated 25th October,
1996 inviting applications for various posts, including the post
of Professor in Business Studies. The appellant applied and
was duly selected for the post on the basis of interview and
appointment letter dated 4th January, 1997 was issued to him.
He joined service on 27th January, 1997. According to the
appointment letter his appointment was to be on contract
initially for three years. The documents on record show that
the IITTM is a society and as per rules and regulations, the
Board of Governors (“BOG”), inter alia, comprises of Minister
of Tourism, Minister of State for Tourism, Secretary, Ministry of
Tourism, Director General (Tourism) and various other
functionaries who are mostly nominees of the Central
Government. Appointments in the IITTM were initially made
on contractual basis for the technical reason in absence of
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formal sanction of posts which issue was pending with the
Ministry. Pending such sanction, the incumbents who were
duly selected, after advertisement, selection process
continued on contractual basis at times even without formal
extension letters. In pursuance of directions of the Ministry of
Tourism, Staff Inspection Unit (“SIU”) of the Department of
Expenditure, Ministry of Finance, conducted assessment of
manpower requirement of the IITTM in the year 2001 and
submitted its report in the year 2002 recommending
regularization of 68 posts which included the post of Professor
held by the appellant. Finally, it was on 31 st October, 2006
that the Central Government took a decision to regularize the
services of the said 68 incumbents. The decision of the
Central Government was ratified by the BOG in its 31 st Meeting
held on 4th December, 2006. As already mentioned, the
recommendations of SIU were made earlier and were duly
approved by the BOG in its meeting held on 18 th September,
2002. Accordingly, a formal letter dated 15 th January, 2007
was issued to the effect that services of the appellant were
regularized in the post of Professor in IITTM with effect from
the date of initial joining that is 27 th January, 1997. In the
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meanwhile, advertisement dated 25th March, 2006 was issued
by the IITTM for recruitment to the post of Director on contract
basis for three years with possibility of extension by two years.
Persons holding posts on regular basis in prescribed pay scale
having three years of service were also eligible. The
candidates in service were to submit their applications
through their employers. Minimum 18 years of experience in
a recognized educational institution with at least three years
of administrative experience was also required. The appellant
applied to the said post and was selected and appointed vide
letter dated 8th June, 2006. On expiry of period of three years,
his appointment was further extended till he handed over the
charge on 31st December, 2009. Thereafter he claimed to
continue as Professor. However, as per decision of Ministry of
Tourism conveyed by the letter dated 28 th January, 2010, the
appellant was informed that he could not continue in any
official capacity. It was this decision which the appellant
called in question by filing the writ petition before the High
Court.
6. Contention raised on behalf of the appellant is that
though formal order of regularization was conveyed by the
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Ministry on 31st October, 2006 and the same was ratified by
the BOG on 4th December, 2006, the same was in respect of
persons already appointed after due selection and who had
already been assessed and recommended for regularization
by the SIU in the year 2002. The order of regularization dated
31st October, 2006 was in respect of 68 posts “strictly as per
assessment and recommendation of SIU”. The said
assessment and recommendation covered the appellant who
was holding the post of professor in the scale of Rs.16400-
Rs.22400. The appellant had joined the post of Director in
the Institute on 8th June, 2006 after serving the Institute as
Professor from 27th January, 1997 and he had already been
assessed and recommended for regularization. Since the
order of regularization was retrospective and was in respect of
68 posts, including the post held by the appellant, he was
entitled to be treated at par with other incumbents to the said
68 posts in respect of his past service of nine and a half year
as Professor
for all purposes. His joining another higher post in the same
Institute could not be read as excluding him from the benefit
of regular appointment merely because few months before
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issuance of formal
order, he had joined higher post. Once it is assumed that the
appellant stood regularized as Professor, as indeed is the
effect of documents referred to above w.e.f. 27th January,
1997, on the date of his appointment on 8 th June, 2006 to the
post of Director, he continued to have lien to the post of
Professor to which he was regularly appointed which did not
end on his appointment to the post of Director on contractual
basis for a limited period.
7. The stand of the appellant was contested by the IITTM
by filing a counter affidavit before the High Court. According
to IITTM, on his joining the post of Director, his appointment as
Professor came to an end as the said appointment was on
contract basis. The said appointment de-barred the appellant
from engaging in any other trade or business or employment
without permission of the competent authority. The
regularization order did not apply to the appellant who was
not an existing incumbent on 4th December, 2006 as required
in terms of letter dated 31st October, 2006 of the Government.
Letter dated 15th January, 2007 issued on that basis was by
the appellant himself as a Director which had to be ignored.
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8. We have duly considered the rival submissions.
9. As already mentioned, the question for consideration is
whether the appellant is deemed to have been regularized
from 27th January, 1997 or is deemed to be working on
contractual basis on the date of his appointment as Director
on 8th June, 2006. The stand of the IITTM is that since the
appellant was not an existing incumbent on the date of
issuance of letter dated 31st October, 2006, conveying the
sanction of posts from the date of initial appointment, the
decision of the Government to regularize the incumbents to 68
posts referred to in the recommendation of the SIU did not
cover the appellant. This plea has been accepted by the High
Court. We have considered the correctness of the said view.
10. The terms of letter dated 31st October, 2006 being
crucial, it may be appropriate to reproduce the operative part
of the same :
“Sub :- Implementation of the
recommendation of the staff
Inspection Unit, made in 2002.
Sir,
I am directed to refer to the
correspondence on the subject and to convey
the Ministry’s sanction to : regularization of 68
(sixty eight) posts strictly as per assessment
and recommendation of Staff Inspection Unit,
Department of Expenditure, Ministry of
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Finance. The IITTM will ensure that post
regularized are the ones recommended by the
SIU.
2. The IITTM is also allowed to continue,
on contractual basis, the existing incumbents
against extra posts created by the Board of
Governors. The number of such appointees
will not exceed the number of posts created
by the BOGs which was 35 (thirty five).
Further, no new contract appointment will be
made till further order.
3. It has also been decided to request the
Staff Inspection Unit to conduct another study
of the IITTM. The study will also cover the
proposed centre of the IITTM at Delhi/Noida.
4. The above is issued with the approval of
Secretary (T), Ministry of Tourism.”
11. According to learned counsel for the appellant, the
subject and para 1 of the letter clearly refer to the
recommendation made in the year 2002 by the SIU after due
assessment and the said recommendation was accepted.
Second para of the letter which used the expression “existing
incumbents”, was applicable to those appointed against
“extra posts” created by the BOG, i.e. 35 posts in addition to
68 posts which were directed to be regularized. Thus, there
was no controversy regarding regularization of 68 posts as
recommended in the year 2002 which recommendation was
approved by the Central Government and sanction was
accorded.
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12. We find merit in this submission. The appellant having
been appointed in the year 1997 after due selection and
covered by the recommendation of the SIU which
recommendation was accepted by the Government of India, a
decision to regularize incumbents of 68 posts clearly applied
to the appellant. No doubt, the appellant had taken over as
Director in the Institute but on that ground it will be unjust to
deny him the benefit of the said regularization. As already
noted, the expression “existing incumbents” was not
applicable to 68 posts.
13. In this view of the matter, the view taken by the High
Court cannot be sustained. The appellant had to be taken as
having been regularized on the post of Professor with effect
from 27th January, 1997.
14. Next question is whether the appellant was entitled to
lien and
had a right to join the post of Professor after his tenure as
Director came to an end.
15. Learned counsel for the IITTM relied upon decision of this
Court in S. Narayana vs. Mohd. Ahmedulla Khan1 to the
1 (2006) 10 SCC 84
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effect that question of lien arises only when a person is
substantively appointed to a post and duly confirmed.
Distinction was also drawn between expression “confirmed”
and expression “regularized”. It was submitted that even if
the appellant was regularized but he was not confirmed and,
therefore there could be no question of lien.
16. In response, learned counsel for the appellant pointed
out that not only the observation in the judgment relied upon
are to be read in the context of the case decided and the facts
in the said case, the matter was now governed by amended
Fundamental Rules (“FRs”). Vide notification dated 9
February, 1998, Rule 9(13) of the FRs stood amended to
substitute the expression “substantively” by “regular basis”.
The Rule prior to and subsequent to the amendment is as
follows :
PRIOR TO AMENDMENT AFTER AMENDM
“Lien means the title of a government servant to hold “Lien means th
substantively, either immediately or on the termination of a period of a Gover
or periods of absence, a permanent post, including a tenure post, to servant to ho
which he has been appointed substantively” regular basis
immediately or
termination of
or periods of ab
a post, includ
tenure post, to
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he has
appointed on r
basis and on wh
is not on probat
17. We are of the view that the judgment relied upon on
behalf of the IITTM is distinguishable. In the present case, the
expression “regularization” does not refer to any irregular
appointments which are sought to be regularized in violation
of the Rules. It was the case of regularization on account of
subsequent retrospective sanction, proposal for which was
already pending. Initial appointment was not irregular or
against Rules. The decision for sanctioning regular posts was
taken later but with retrospective effect from date of joining
and has been duly applied to the posts/incumbents in respect
of whom proposal was pending. In State of M.P. vs.
Sandhya Tomarth, this Court
observed :
“10. “Lien” connotes the civil right of a
government servant to hold the post “to which
he is appointed substantively”. The necessary
corollary to the aforesaid right is that such
appointment must be in accordance with law.
A person can be said to have acquired lien as
regards a particular post only when his
appointment has been confirmed, and when
he has been made permanent to the said
post. “The word ‘lien’ is a generic term and,
th (2013) 11 SCC 357
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standing alone, it includes lien acquired by
way of contract, or by operation of law.”
Whether a person has lien, depends upon
whether he has been appointed in accordance
with law, in substantive capacity and whether
he has been made permanent or has been
confirmed to the said post. (Vide Parshotam
Lal Dhingra v. Union of India [AIR (1958) SC
36], Pratap Singh v. State of Punjab [AIR
(1964) SC 72], T.R. Sharma v. Prithvi Singh
[(1976) 1 SCC 226], Ramlal Khurana v. State
of Punjab [ (1989) 4 SCC 99], Triveni Shankar
Saxena v. State of U.P. [(1992) Supp. (1) SCC
524], S.K. Kacker v. All India Institute of
Medical Sciences [(1996) 10 SCC 734], S.
Narayana v. Mohd. Ahmedulla Kha [(2006) 10
SCC 84] and State of Rajasthan v. S.N. Tiwari
[(2009) 4 SCC 700]”
Similarly, in State of Rajasthan vs. S.N. Tiwari2, it was
observed:
“17. It is very well settled that when a person
with a lien against the post is appointed
substantively to another post, only then he
acquires a lien against the latter post. Then
and then alone the lien against the previous
post disappears. Lien connotes the right of a
civil servant to hold the post substantively to
which he is appointed. The lien of a
government employee over the previous post
ends if he is appointed to another permanent
post
on permanent basis. In such a case the lien of
the employee shifts to the new permanent
post. It may not require a formal termination
of lien over the previous permanent post.
18. This Court in Ramlal Khurana v. State of
Punjab [(1989) 4 SCC 99] observed that: (SCC
p. 102, para 8)
2 (2009) 4 SCC 700
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“8. … Lien is not a word of art. It just
connotes the right of a civil servant
to hold the post substantively to
which he is appointed.”
18. In Arun Kumar Agrawal vs. Union of India and
others3, it was observed :
“58. It is a settled proposition of law that a
deputationist would hold the lien in the parent
department till he is absorbed in any post. The
position of law is quite clearly stated by this
Court in State of Rajasthan v. S.N. Tiwari
[(2009) 4 SCC 700 : (2009) 1 SCC (L&S) 934]
(SCC p. 704, paras 18 & 19)
“18. This Court in Ramlal Khurana v.
State of Punjab [(1989) 4 SCC 99 :
1989 SCC (L&S) 644 : (1989) 11 ATC
841] observed that: (SCC p. 102,
para 8)
‘8. … Lien is not a word of art. It just
connotes the right of a civil servant
to hold the post substantively to
which he is appointed.’
19. The term ‘lien’ comes from the Latin
term ‘ligament’ meaning ‘binding’. The
meaning of lien in service law is different
from other meanings in the context of
contract, common law, equity, etc. The
lien of a government employee in service
law is the right of the government
employee to hold a permanent post
substantively to which he has been
permanently appointed.”
59. Similarly, in Triveni Shankar Saxena v.
State of U.P. [1992 Supp (1) SCC 524 : 1992
SCC (L&S) 440 : (1992) 19 ATC 931] it has
been held as under: (SCC p. 531,
para 24)
3 (2014) 2 SCC 609
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“24. A learned Single Judge of the
Allahabad High Court in M.P. Tewari
v. Union of India [1974 All LJ 427]
following the dictum laid down in the
above Paresh Chandra case [Paresh
Chandra Nandi v. North-East Frontier
Railway, (1970) 3 SCC 870] and
distinguishing the decision of this
Court in Parshotam Lal Dhingra v.
Union of India [AIR 1958 SC 36] has
observed that: (All LJ p. 429)
‘a person can be said to acquire a
lien on a post only when he has
been confirmed and made
permanent on that post and not
earlier’
with which view we are in agreement.”
19. Learned counsel for the appellant also highlighted the
departmental notings suggesting that after the completion of
his tenure as Director, the appellant’s joining report as
Professor may be accepted as he had neither resigned nor it
was clearly mentioned that on joining as Director he will lose
lien which is normally available. The competent authority has
rejected the claim of the appellant only on the ground that he
was not having substantive appointment as Professor which,
in our view, is not correct. However, the question whether
having regard to the nature of the work to which the appellant
was appointed on contract basis, i.e., Director and the period
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Civil Appeal Nos. of 2014 @ SLP (C) Nos.1645-1646 of 2013
for which he was appointed, his claim for lien could be
accepted, will survives.
20. This question will now require fresh consideration in the
light of finding recorded above that the appellant is deemed to
have been regularized in service as Professor with effect from
27 January, 1997 and the decision of the Central Government
dated 31thst October, 2006 as ratified by the BOG was
applicable to him. We are of the view that this issue should, in
the first instance, be decided by the department in the light of
observations made above. Learned counsel for the appellant
has fairly stated that if decision is taken to accept his lien to
the post of Professor after his relinquishing the charge of the
post of Director, he
will not claim any monetary benefits for the period he did not
serve, except that the said period be treated as leave of the
kind due and his service be treated as continuous for purposes
of terminal benefits. The appellant will be at liberty to place
his view point before the competent authority forthwith.
21. Accordingly, we allow these appeals, set aside the
impugned order of the High Court and direct the competent
authority to take a fresh decision on the issue of lien within
four weeks from the date of receipt of copy of this order, in
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the light of observations made in the above order.
…………………………………J.
(ANIL R. DAVE)
………………..…………………J.
(ADARSH KUMAR GOEL)
……………………………………J.
(R. BANUMATHI)
NEW DELHI
JANUARY 9, 2015
Page 16
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