L.R.Patil vs The Gulbarga University Gulbarga

2023INSC796 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3254 OF 2013

L.R. PATIL …APPELLANT

Versus

GULBARGA UNIVERSITY, GULBARGA ...RESPONDENT

JUDGMENT

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

are – Signature Not Verified Digitally signed by

(i) Whether the order dated 08.04.1993 passed by the Respondent- NEETA SAPRA Date: 2023.09.05 17:07:17 IST Reason:

Gulbarga University pursuant to Rule 252(b) of Karnataka

1 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

Superintendents, were promoted to the post of ‘Office Superintendent’ with

immediate effect subject to satisfactory completion of probation period of 1 year.

2 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 ORDER 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 duties on 4th 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”

3 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.

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

4 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 order dated 29th 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 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

5 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

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,

6 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

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)

7 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 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

8 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 –

“Rule 252(b) – Registration (sic1) 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

1 Registration

9 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

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

10 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

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

11 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 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 –

12 “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 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

13 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 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

14 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.

(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.

15 The order dated 27.08.2008 passed by learned Single Judge in Writ Petition No.

4066 of 2006 is restored subject with the above modifications. No order as to

costs.

……...............................J. (J.K. MAHESHWARI)

………...........................J. (K.V. VISWANATHAN)

NEW DELHI;

SEPTEMBER 4, 2023

16