Full Judgment Text
REPORTABLE
2023INSC796
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3254 OF 2013
L.R. PATIL …APPELLANT
Versus
GULBARGA UNIVERSITY, GULBARGA ...RESPONDENT
J U D G M E N T
J.K. Maheshwari, J.
1. The appellant assails the tenability and validity of the judgment dated
23.10.2009 of the Division Bench of the High Court of Karnataka, Circuit
Bench at Gulbarga passed in W.A. No. 10003 of 2009, by which the order
passed by learned Single Judge on 27.08.2008 in W.P. No. 4066 of 2006
allowing the petition holding that the appellant had lien over his previous post
and directing respondent-University to pay service and pensionary benefits, was
set-aside.
2. In the present case, the short questions of law which fall for consideration
Signature Not Verified
are –
Digitally signed by
NEETA SAPRA
Date: 2023.10.07
10:33:58 IST
Reason:
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(i) Whether the order dated 08.04.1993 passed by the
Respondent-Gulbarga University pursuant to Rule 252(b) of
Karnataka Civil Service Rules (for short “KCS Rules”),
‘relieving’ the appellant to accept another appointment as
‘Assistant Registrar’ ought to be treated as an order accepting
‘resignation’, to take up the post on new assignment?
(ii) Whether in the facts of the case, on joining the new post, the
appellant’s lien on the original/previous post will be continued
to be maintained, until he is permanently absorbed in the new
department or cadre in which he is subsequently appointed?
(iii) Whether in the facts and circumstances of the case, the relief
as prayed by the appellant in the writ petition to consider him
for appointment on the post of Assistant Registrar in the
previous/original cadre at par with his juniors and
consequential benefits on retirement can be allowed? If yes, to
what extent?
3. The undisputed facts are that, appellant was appointed on 10.08.1972 as
Junior Assistant in Bangalore University. Later, he was transferred to Gulbarga
University on 21.07.1981 and promoted to the post of ‘Assistant Office
Superintendent’. Eventually, vide office order dated 07.08.1987, appellant along
with one ‘Sri. A. Raghavendra’ and other serving Assistant Office
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Superintendents, were promoted to the post of ‘Office Superintendent’ with
immediate effect subject to satisfactory completion of probation period of 1
year. The University by office order dated 10.07.1990 declared that appellant
had completed his probation ‘satisfactorily’ on 08.08.1988. In terms of the said
declaration, the appellant was w.e.f. 07.08.1987, substantively appointed to the
post of ‘Office Superintendent’.
4. Subsequently, in 1993, the University invited applications for appointment
to the post of ‘Assistant Registrar’ via direct recruitment. The appellant applied
for the said post and was selected. As per the terms of the appointment, the
appellant had to serve as a probationer for a period of two years, before he could
be confirmed on the said post. On his appointment, respondent-University vide
office order dated 08.04.1993 relieved the appellant from the post of Office
Superintendent w.e.f. 04.02.1993, and duly recorded that he is being relieved to
accept the another appointment as ‘Assistant Registrar’ in the Gulbarga
University. The order further recorded that its contents shall be noted in the
service book. The relevant extracts of the aforesaid office order dated
08.04.1993 is being reproduced for ready reference as under –
“ No. GUG/ADM-1/92-93/273 Dated:-
8/4/1993
O R D E R
In pursuance with the Rule 252(b) of KSCR’s read with O.A. No. FD
263 SRS 71 dated 22.1.1972, Sri. L.R. Patil, Office Suptd. & P.S. to Vice-
Chancellor, Gulbarga University, Gulbarga has been relieved from the
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duties on 4 Feb,’93 to accept another appointment as Assistant Registrar
in G.U. Gulbarga Vide T.O. Notification No. referred to above (1).
Further, the contents of this order shall be noted in the Service Book
concerned.
REGISTRAR ”
Pursuant thereto, the appellant joined on the post of Assistant Registrar in the
respondent-University.
5. Meanwhile, Mr. A. Raghavendra, filed Writ Petition No. 5364 of 1993
and challenged the appellant’s appointment on the ground of discrimination and
arbitrariness. During pendency of the said writ petition, the respondent-
University vide order dated 03.02.1996, promoted ‘Sri. A. Raghavendra’ and
‘Sri Shankar Rao Kamble’ looking to their seniority and posted them as
Assistant Registrar, Examination Branch and Assistant Registrar, Administrative
Branch respectively. It is pertinent to mention here that, on account of the
pendency of aforesaid writ petition, the appellant continued on probation on the
post of Assistant Registrar. Thereafter, the High Court vide order dated
24.06.1998 allowed Writ Petition No. 5364 of 1993 and quashed the
appointment of the appellant for reasons recorded in the order. Aggrieved, the
appellant and the respondent-University filed separate Writ Appeals bearing
Nos. 3261 of 1998 and 3246 of 1998 respectively, which came to be dismissed
on 29.09.2000. However, the Division Bench pending the admission of writ
appeals, stayed the operation of the order dated 24.06.1998 passed in Writ
Petition No. 5364 of 1993.
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6. Pursuant to the dismissal of the writ appeals, the respondent-University in
compliance of the orders, withdrew the appointment of the appellant as Assistant
Registrar vide office order dated 23.12.2000 (hereinafter referred to as
“Resolution” ) and retained/placed him back in his previous post of ‘Office
Superintendent’ with immediate effect. The relevant portion of the Resolution is
reproduced as thus:
“ PREAMBLE
x x x x
The above matter was placed before the Syndicate meeting held on
14.7.1998 and it was decided to prefer W.A. before the Division Bench of the
Hon’ble High Court of Karnataka. Accordingly, the University filed W.A. No.
3246/98 in the High Court in Addition to the W.A. No. 3261/98 filed by Sri L.R.
Patil praying to set aside the order dated 24.6.1998 passed in W.P. 5364/93.
The High Court passed an Interim Order that the operation of the earlier order
dated 24.6.1998 passed in W.P. No. 5364/1993 was stayed pending admission
of W.A.
The Division Bench of the Hon’ble Court of Karnataka has held in its
th
order dated 29 Sept. 2000 in both the W.A.s that the learned Single Judge was
right in quashing the order of appointment dated 4.2.1993 in respondent (sic)
of Sri L.R. Patil as Assist. Registrar in Gulbarga University, Gulbarga. There
is neither irregularity nor illegality in the order of the learned Single Judge.
The above appeals were dismissed by the High Court.
It is observed that Sri L.R. Patil, has not maintained the lien on his
previous post, i.e., Office Superintendent with the approval of competent
authority as required under General Rules 17 of K.C.S.Rs. ”
7. In furtherance to the above said Resolution, the appellant was retained in
the previous post of Office Superintendent with immediate effect and his
fixation in the pay-scale was made accordingly. Soon thereafter, on joining, the
appellant submitted a representation dated 16.01.2001 to the University and
sought ‘re-fixation of his seniority’ in the cadre of Office Superintendent and
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further requested for promotion on the vacant post of Assistant Registrar at par
with his two juniors namely ‘Sri. A. Raghavendra’ and ‘Sri. Shankar Rao
Kamble’ who were promoted to the post of Assistant Registrar by the
respondent-University. On getting no response from respondent-University, the
appellant sent reminder letters dated 27.03.2001 and 20.04.2001, however,
neither any reply was given to appellant, nor any action was taken by
respondent-University.
8. Aggrieved by the indolence on the part of the respondent-University, the
appellant filed Writ Petition No. 22838 of 2001, which was disposed of on
21.03.2005 with a direction to the University to consider the
representations/reminders of appellant and pass appropriate orders in accordance
with law within a period of four months affording due opportunity of hearing to
the appellant and other affected employees. In compliance, respondent-
University considered the case of appellant and rejected his representation on
08.02.2006. In the meantime, the appellant superannuated on 30.06.2007 from
the post of ‘Office Superintendent’.
9. Being aggrieved, the appellant filed Writ Petition No. 4066 of 2006
challenging the rejection order dated 08.02.2006 and prayed for restoration of
his seniority in the cadre of ‘Office Superintendent’ from the date of his original
appointment. The appellant also prayed for consideration of his case for
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promotion at par with his juniors w.e.f. 03.02.1996, i.e., the date when they were
promoted to the post of Assistant Registrar.
10. The learned Single Judge vide order dated 27.08.2008 allowed the writ
petition and relying on the Resolution dated 23.12.2000 observed that the
services of the appellant did not get severed since he was retained to the original
post and maintained the lien in terms of the Rule 20 Note-4 of KCS Rules. In
other words, the learned Single Judge was of the opinion that there was
continuation of service on the previous post as per said Rule, which states that if
a government servant has secured employment in the same or other Department
and is subsequently relieved from the previous post to join the new post, his lien
on the previous/original appointment shall be continued to be maintained till he
is ‘permanently absorbed’ in the Department or cadre in which he is newly
appointed. However, regarding promotion, it was observed by the Single Bench
that since the appellant has already superannuated from service, he may not
derive the benefits of promotion at par with juniors but would be eligible for
monetary benefits including pensionary and service benefits.
11. Challenging the said order dated 27.08.2008, respondent-University filed
Writ Appeal No. 10003 of 2009 and contended that the appellant did not have a
lien over the post of Office Superintendent and ceased to have any association
on the earlier post w.e.f. 04.02.1993 except to the extent of leave and pension.
The writ appeal vide impugned order was allowed setting aside the order dated
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27.08.2008 passed by learned Single Judge dismissing the Writ Petition No.
4066 of 2006.
12. Learned counsel appearing for the appellant submits that in furtherance to
the Office order dated 08.04.1993, the past service of the appellant was
protected for pensionary and monetary benefits, retaining his lien on the
previous post and noted to record the said contents in his service book in terms
of the Rule 252(b) of KCS Rules and Office Memorandum dated 22.01.1972. It
is further contended that Rule 20 Note 4 of the KCS Rules protects the lien of
the appellant until he is permanently absorbed on the new post. On account of
pending litigation, the appellant continued to be on probation throughout and he
was never confirmed substantively on the post of Assistant Registrar. Ultimately,
his appointment was quashed by the High Court, whereafter, he was retained on
his previous post of his Office Superintendent. However, it is urged that on his
retention to the previous post, his past service cannot be washed away and his
lien cannot be negated during the vulnerable period in which he was on
probation in the new appointment. In support of the said contention, the contents
of the Resolution dated 23.12.2000 re-appointing him as Office Superintendent
was relied upon. In support his submissions, counsel for the appellant placed
reliance on the judgment dated 25.02.2021 passed by Division Bench of High
Court of Karnataka at Bengaluru in Writ Appeal No. 596 of 2020 (S-RES) titled
“Sanjay Gandhi Institute of Trauma & Orthopaedics Vs. State of Karnataka
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and Others” and “Sitikanatha Mishra Vs. Union of India and Others, (2015) 3
SCC 670” .
13. Per contra, learned counsel representing respondent-Gulbarga University
has submitted that the appellant tendered his resignation from the post of Office
Superintendent to join as ‘Assistant Registrar’ and in pursuance of the same, he
was relieved from his duties. Therefore, in terms of Rule 252(b) of KCS Rules,
it is to be treated as ‘resignation’ from previous employment. It is further
submitted that, in absence of any representation made by the appellant seeking
preservation/maintenance of his lien on the previous post during the pendency of
litigation, he lost his right of lien and claim of seniority. Therefore, rejection of
his representation by respondent-University on 08.02.2006 was in accordance
with law and has been rightly upheld by impugned judgment while setting aside
the order of the learned Single Judge.
14. Having heard learned counsel for the parties and considering the nature of
issues involved, we deem it appropriate to deal with the questions as framed
simultaneously. As the order dated 08.04.1993 relieving the appellant from the
duties of Office Superintendent was passed in pursuance to Rule 252(b) of KCS
Rules and Office Memorandum dated 22.01.1972, therefore, at the very outset, it
is necessary to refer the said Rule and Office Memorandum which are
reproduced as thus for ready reference –
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“Rule 252(b) – Registration (sic ) of an appointment to take up, with proper
permission, another appointment, whether permanent or temporary, service
in which counts in full or in part, is not a resignation of public service. ”
“ Office Memorandum No. FD 262 SRS 71 dated 22.1.1972
Under Rule 252(b) of KCSRs, resignation of an appointment to take up with
proper permission another appointment, whether permanent or temporary
service in which counts in full or part, is not resignation from public
service. A question has been raised whether in such cases a separate
sanction should be issued indicating that the resignation has been accepted
under the above provision, in order to enable the audit/Administrative
Officer to regulate the consequential benefits in the matter of pay fixation,
carry forward of leave, pension etc. The matter has been considered and it
has been decided that in cases of the above type the order accepting the
resignation should clearly indicate that the employee is resigning to join
another appointment with proper permission and that the benefits under
Rule 252(b) ibid will be admissible to him. The contents of the above order
should also be noted in the Service Book of individuals concerned under
proper attestation. The issue of any separate sanction is considered not
necessary.”
At this juncture, reference to Rule 20 Note 4 of KCS Rules is also relevant and
same is reproduced as under –
“ Rule 20 Note 4 – When a Government servant who has secured
employment in one Department of Government under the rules of
recruitment, seeks employment on his own accord in another unit or
Department or in another cadre or grade in the same Department, his lien
on the original appointment shall be continued to be maintained provided
he has already been confirmed in the post till he is permanently absorbed in
the Department or cadre in which he is newly appointed and he shall be
given the benefit of the past service for purposes of leave and pension. If,
however, he is temporary in the first appointment, he will cease to have any
connection with his old appointment but he shall be given only the benefit of
the past service for leave and pension. ”
On perusal of the aforesaid Rule, it is clear that if a government servant
seeks employment in another unit or department or in another cadre or grade in
the same department under the Rules, his/her lien on the original appointment
1 Registration
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shall be continued to be maintained until absorbed in the department or cadre in
which he/she is newly appointed. In case the employee is absorbed, he/she shall
be entitled to the benefit of the past service for the purpose of leave and pension.
15. Coming to the facts in the present case, the appellant vide order dated
08.04.1993 was appointed by the respondent-University as Assistant Registrar
and the said fact was duly noted in his service book. His appointment was
successfully challenged and resultantly it was quashed by the High Court.
Appeals against the said order were dismissed. In view of dismissal of appeals,
the respondent-University vide Resolution dated 23.12.2000 resolved to retain
the appellant back on his previous post i.e., ‘Office Superintendent’. In this
context, the ‘Preamble’ of the Resolution reveals that the appellant was relieved
to take up the new appointment on permanent post with ‘formal permission’
from the competent authority to avail the benefit of past service for the purpose
of pension and leave as contemplated under Rule 252(b) KCS Rules. It is also
subsequently noted in the Resolution that during the pendency of appeal against
the order quashing the appellant’s appointment, the Division Bench of the High
Court passed an interim order and stayed the operation of the order of learned
Single Judge quashing the appointment pending admission of appeal. In the said
perspective, it is apparent that, subject to pending litigation assailing the
appellant’s appointment as Assistant Registrar, he throughout continued to be on
the post of Assistant Registrar as probationer and was never confirmed or was
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permanently absorbed on the said post. Be that as it may, if the appellant was
never permanently absorbed or confirmed on the post of ‘Assistant Registrar’,
then as per mandate of Rule 20 Note 4 of KCS Rules, his lien shall continue on
the original post of the Office Superintendent.
16. On the said issue, the law has been well-settled by this Court in the case
of “Ramlal Khurana (dead) by Lrs. Vs. State of Punjab & Others, (1989) 4
SCC 99” , wherein this Court observed that ‘lien’ is not a word of art and it
connotes the right of a civil servant to hold the post substantively to which he is
appointed, meaning thereby, the appointment of government servant on the said
post must be substantive as he/she cannot hold two posts simultaneously in two
different cadres and maintain lien on both of them at the same time. Further, in
the case of “Triveni Shankar Saxena Vs. State of U.P. and Others, 1992 Supp
(1) SCC 524” , while primarily dealing the question of acquisition of lien, this
Court has observed that 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.
17. In a 3-Judge Bench judgment in the case of “State of Rajasthan and
Another Vs. S.N. Tiwari and Others, (2009) 4 SCC 700” , while interpreting the
word ‘lien’ against the post appointed substantively with respect to another post,
this Court held as thus:
“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
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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. ”
Similarly in the case of “State of Madhya Pradesh and Others Vs.
Sandhya Tomar and Another, (2013) 11 SCC 357” , this Court held that the lien
is a civil right of a civil servant to hold the post to which he is appointed
substantively. The relevant part of the order is reproduced below as thus –
“ 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, 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. ”
All the aforesaid judgments have been duly considered again by this
Court in another 3-Judge Bench judgment in the case of Sitikanatha Mishra
(supra) . Thus, as per settled legal position, we observe that ‘lien’ of a
government servant only ceases to exist when he/she is appointed on another
post ‘substantively’/confirmed or absorbed permanently. Otherwise, his/her lien
would continue on the previous post.
18. Reverting to the instant case, on a conjoint reading of the Rules
applicable, i.e., Rule 252(b), Rule 20 Note 4 and Office Memorandum dated
22.01.1972 in consonance with the settled law as discussed, we are of the
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considered view that the lien of the appellant on the previous post of ‘Office
Superintendent’ is squarely protected and his lien shall be continued under Rule
20 Note 4. We say so particularly because of the fact that the appellant was
never appointed substantively on the new post of ‘Assistant Registrar’ and was
continued temporarily on the said post subject to the outcome of the pending
litigation challenging his appointment. The said fact also finds support from the
Preamble of the Resolution of the University dated 23.12.2000. Further, the
appointment of appellant to the new post was subject to probation of two years
and due to pending litigation, he was continued on a temporary basis despite
completion of two years. Nothing has been brought on record by respondent-
University to negate the applicability of mandate of Rule 20 Note 4 of KCS
Rules on appellant.
19. Further, it is not the case of the respondent-University that the appellant
was permanently absorbed or confirmed on the new post. Conversely, the
respondent’s case is that, in absence of any representation made by the appellant
seeking continuation of his lien on the previous post, he cannot claim it
subsequently on being retained after quashing of his appointment. In our view,
the said stand of the University cannot be countenanced in terms of Rule 20
Note 4 of KCS Rules. As per the language of the said Rule, the lien of a
government servant on the previous post stands protected till his or her
continuation on probation period on the new post. The intention of the said rule
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is clear, viz., to protect the past service of the government servant in cases where
the government servant is not confirmed or absorbed substantively on the new
post on account of his/her failure to satisfactorily complete the probation period
or for any other reason.
20. So far as question of the ‘relieving order’ being treated as resignation is
concerned, in terms of Rule 252(b) of KCS Rules, it cannot be treated as
resignation. The said Rule makes it clear that if another appointment is taken up
by a government servant with proper permission, then it cannot be termed as
resignation of public service. Thus, the finding as recorded by the Writ Appellate
Court are not sustainable.
21. In view of the discussion made herein above, we answer the questions
framed above as follows –
(i) Order dated 08.04.1993 passed by respondent-University,
relieving the appellant to take up the new appointment as
‘Assistant Registrar’ is not to be treated as resignation in
terms of Rule 252(b) of KCS Rules.
(ii) The appellant’s lien on the original/previous post of ‘Office
Superintendent’ shall be maintained and deemed to be
continued from the date when he was relieved by respondent-
University, i.e., 08.04.1993.
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(iii) Considering the facts and circumstances of the case and in
order to do complete justice, the appellant will be entitled to
all the service benefits including seniority, consequential
promotions and pensionary benefits at par with his juniors,
though notionally, since he superannuated on 30.06.2007
and has not worked on the promoted post.
22. Accordingly, the appeal is allowed and the impugned order dated
23.10.2009 passed in Writ Appeal No. 10003 of 2009 (S-RES) is hereby set-
aside. The order dated 27.08.2008 passed by learned Single Judge in Writ
Petition No. 4066 of 2006 is restored subject to the above modifications. No
order as to costs.
……...............................J.
(J.K. MAHESHWARI)
………...........................J.
(K.V. VISWANATHAN)
NEW DELHI;
SEPTEMBER 4, 2023
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