Judgement
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
V/-
Ku. Sandhya Tomar &
Anr. ..................................Respondents
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, “Societyâ€), 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, [1957] INSC
95; AIR 1958 SC 36; S.
Pratap Singh v. State of Punjab, [1963] INSC
186; AIR 1964 SC 72; T.R. Sharma
v.
Prithvi Singh & Ors.[1975] INSC
280; , AIR 1976 SC 367; Ramlal
Khurana v. State of Punjab & Ors.[1989] INSC
224; , 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 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.
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