Tuesday, January 29, 2013

STATE OF M.P.& ORS. v. SANDHYA TOMAR & ANR. [2012] SC 795 (13 December 2012)


CIVIL APPELLATE JURISDICTION Civil Appeal No.9028 of 2012 (Arising out of SLP (C) No. 18983 of 2009) 

State of Madhya Pradesh & Ors. ............................. Appellants 
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, “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, [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.

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