REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.9028 of 2012
(Arising out of SLP (C) No. 18983 of 2009)
State of Madhya Pradesh & Ors. … Appellants
Vs.
Ku. Sandhya Tomar & Anr. … Respondents
J U D G M E N T
Dr. B.S. Chauhan, J.
1. Leave granted.
2. This appeal has been preferred against the judgment and order
dated 5.11.2008, passed by the High Court of Madhya Pradesh (Indore
Bench) in Writ Appeal No.86 of 2007, by which it has affirmed the
judgment and order of the learned Single Judge dated 17.7.2006, passed
in Writ Petition No.1007 of 2006, by which the learned Single Judge
quashed the advertisement dated 16.5.2005, inviting the applications
for appointment on the post of Project Director.
3. Facts and circumstances giving rise to this appeal are:-
A. That the Central Government introduced a scheme for elimination
of child labour with respect to which, the Director General of
Employment and Training wrote a letter dated 15.7.1995, to the
Collector, Khargone (West Nimar) to implement the aforesaid Scheme.
In order to give effect, i.e., to implement the said Scheme, a
society, namely, the Child Labour Elimination & Rehabilitation Society
(hereinafter referred to as the, “Society”), was formed on 12.4.1996
and the Collector became the ex-officio Chairman of the said Society.
It appears that in order to appoint the Project Director, certain
names requisitioned from the Employment Exchange, were considered and
respondent no.1 was selected and appointed temporarily, vide letter
dated 8.11.1996 on a fixed salary of Rs.4,000/- per month. Salary
of respondent no.1 was increased from Rs.4,000/- to Rs.8,000/- per
month vide Order dated 16.7.1999.
B. Respondent no.1 joined a post in the Panchayat & Rural
Development Department in Zila Panchayat, Indore in pursuance of the
order dated 29.7.2003, passed by the Government of Madhya Pradesh.
Her services in the Panchayat & Rural Development Department were not
required, and she was repatriated vide order dated 29.3.2004 to her
parent department. However, respondent no.1 was not permitted to join
the Society. The post of Project Director was advertised on
16.5.2005. Thus, respondent no.1 filed a writ petition on 26.5.2005,
challenging the advertisement dated 16.5.2005, claiming her right to
join the said post.
C. The appellants contested the writ petition on various grounds,
however, the writ petition was allowed by the learned Single Judge
vide order dated 17.7.2006. Aggrieved, the appellants filed a writ
appeal, which stood dismissed vide impugned judgment and order dated
5.11.2005. Hence, this appeal.
4. Shri B.S. Banthia, learned counsel for the appellants has
submitted that the High Court committed an error in allowing the said
writ petition as respondent no.1 was merely a temporary employee, and
had joined another post under the alleged order of deputation, and had
worked there for a period of 9-10 months. She could not join as a
Project Director in the Society as she had no lien therein. She had
also left the Society without obtaining any previous sanction from the
appointing Authority, i.e., the District Collector. She had further,
voluntarily abandoned the services of the Society on 29.7.2003 and
thereafter, she filed the said writ petition on 26.5.2005, only
challenging advertisement dated 16.5.2005. Hence, even though her
services in the Panchayat & Rural Development Department were
terminated on 29.3.2004, she approached the High Court only after
lapse of a period of one year and two months. Thus, the iHHkkHigh
Court ought not to have entertained the writ petition at all. The
appeal deserves to be allowed.
5. Per contra, Shri Niraj Sharma, learned counsel appearing for
respondent no.1 has strived to defend the impugned order passed by the
High Court, contending that she had been sent on deputation by the
Government, and over this, she had no control. Therefore, she had a
right to join the said Society. Thus, the appeal is liable to be
dismissed.
6. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
7. Initial appointment of respondent no.1 was not made on the basis
of any advertisement in any newspaper whatsoever. Hence, applications
for the post were not invited. It is a settled legal proposition that
considering the candidature of persons by mere calling of names from
the Employment Exchange does not meet the requirement of Articles 14
and 16 of the Constitution of India. (Vide: Excise Superintendent
Malkapatnam, Krishna District, A.P., (1996) 6 SCC 216; Veer Kunwar
Singh University Ad Hoc Teachers Association & Ors. v. Bihar State
University (C.C.) Service Commission & Ors., (2009) 17 SCC 184; Union
of India & Ors. v. Miss. Pritilata Nanda, AIR 2010 SC 2821; and State
of Orissa & Anr. V. Mamata Mohanty, (2011) 3 SCC 436).
Thus, in view of the above, we are of the considered opinion
that respondent no.1 was not appointed following the procedure
mandatorily required by law, and that such appointment was admittedly
in violation of Articles 14 and 16 of the Constitution of India, as
several other eligible candidates have been deprived of their right to
be considered for the post.
8. There can be no dispute with respect to the settled legal
proposition that in the event that a person is not appointed on a
regular basis, and if his service is not governed by any Statutory
Rules, he shall be bound by the terms and conditions that have been
incorporated in his appointment letter. (Vide : State of Punjab &
Ors. v. Surinder Kumar & Ors., AIR 1992 SC 1593). In such an
eventuality, there can be no reason with respect to why the terms and
conditions incorporated in the appointment letter should not be
enforced against such an employee. In the instant case, respondent
no.1 was temporarily appointed in a project and thus, she had at no
point of time, been appointed on a regular basis, owing to which, she
cannot claim any lien with respect to the said post.
9. “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, 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; S.
Pratap Singh v. State of Punjab, AIR 1964 SC 72; T.R. Sharma v.
Prithvi Singh & Ors., AIR 1976 SC 367; Ramlal Khurana v. State of
Punjab & Ors., AIR 1989 SC 1985; Triveni Shankar Saxena v. State of
U.P. & Ors., AIR 1992 SC 496; Dr. S.K. Kacker v. All India Institute
of Medical Sciences & Ors., (1996) 10 SCC 734; S. Narayana Vs. Md.
Ahmedulla Khan & Ors., AIR 2006 SC 2224; and State of Rajasthan & Anr.
v. S.N. Tiwari & Ors., AIR 2009 SC 2104).
10. It is not the case of the learned counsel for respondent no.1
that she had any lien with respect to the post.
Respondent no.1 voluntarily abandoned her job in the Society and
joined another post, in another department on 29.7.2003.
Therefore,
her temporary employment in the Society came to an end automatically.
She had chosen better employment under the Government of Madhya
Pradesh, as opposed to continuing her employment in the Society on a
project. Her employment in the Government of Madhya Pradesh was
terminated after serving therein for a period of eight months, vide
order dated 29.3.2004.
In such a fact-situation, the Society was not
bound to permit respondent no.1 to join the post of Project Director.
As a consequence thereof, she has no right to challenge the
advertisement dated 16.5.2005.
At the most, if respondent no.1 was
eligible for appointment as per the said advertisement, she can apply
for fresh appointment.
In case respondent no.1 felt that she had a
right to join the services of the Government of Madhya Pradesh and
that her service from there was wrongly terminated, she could have
challenged the said order dated 29.3.2004, which has in fact, never
been challenged by her, for reasons best known to her.
11. In view of the above, the learned Single Judge, as well as the
Division Bench have misdirected themselves with respect to the actual
issues involved in the case, and have decided the case upon totally
irrelevant issues.
The appeal therefore, succeeds, and is allowed.
The judgment and order of the learned Single Judge, as well as that of
the Division Bench, are hereby set aside. No costs.
…………………………..………………………J.
(Dr. B.S. CHAUHAN)
…..…………………….….………………………J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,
December 13, 2012
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