Holding

Regularisation is not equivalent to confirmation; a lien on a post arises only upon confirmation, so the termination of the appellant’s lien was invalid.

Summary

S. Narayana, a senior assistant, was promoted and later appointed temporarily as an Extension Officer in the Andhra Pradesh Panchayati Raj Service. His services were regularised in the Extension Officer post, and his lien on the senior assistant post was terminated on the ground that he was not confirmed in that post. The State Government upheld the termination, arguing that regularisation does not create a lien. The appellant contended that regularisation and confirmation are distinct and that a lien can arise only upon confirmation. The Supreme Court, relying on earlier decisions, held that regularisation does not confer permanence or a lien, and therefore the termination of the appellant’s lien was invalid. The Court allowed the appeal and set aside the High Court’s judgment, affirming the Tribunal’s order.

Issues considered

Does regularisation of a service post create a lien on that post?
Can a lien exist without the employee being confirmed in a permanent post?
Is the termination of a lien valid when the employee has not been confirmed?
Whether the High Court erred in setting aside the Tribunal’s order granting notional seniority.

Legislation cited

Constitution of Indias. Article 162, s. Article 309
Fundamental Ruless. Rule 13, s. Rule 14-B

Subjects

service lawregularisationconfirmationlien on postpromotionseniorityadministrative tribunalpublic service

Judgment

-"!'a' S. NARAYANA A
v.
MD. AHMEDULLA KHAN AND ORS.

MAY 8, 2006

[B.N. SRIKRISHNA AND LOKESHWAR SINGH PANTA, JJ.] B
Service Law:

Lien on post-Existence of-Held-Unless a person is made permanent
in a post, he could not have a lien on it-Regularization is not same as
confirmation in service, and therefore, lien could not operate from that date. c
Appellant was promoted as Senior Assistant. In seniority list for
this post his name was shown at serial No. 6 and that of respondent at
serial No. 12. No objection was raised against this list. In the meanwhile,
he had been appointed on temporary basis as Extension Officer in the
Andhra Pradesh Panchayati Raj (Executive Subordinate) Service and D
his services regularized in that post. His lien on post of Senior
Assistant was terminated for having lien on post outside his cadre. But
the State Government set aside this order on the ground that as he was
not confirmed in the post of Senior Assistant, he did not have any lien
thereon and consequently, the question of termination of its did not E
arise. Subsequently, he was promoted to post of Superintendent on
temporary basis and also given notional seniority on par with one
immediate junior.

Respondent, who was also working as Superintendent, challenged
the grant of notional seniority to the appellant before the State Tribunal F
by filing an Original Application (0.A.). However, there was no challenge

,, to the seniority list wherein seniority of appellant was shown at serial No.
6 and the respondent was at serial No. 12. This O.A. was dismissed by
Tribunal. Against this, High Court allowed the challenge of respondent
on the ground that appellant was regularized and confirmed in the post
G
of Extension Officer and had lost his lien on post of Senior Assistant for
that Reason. Hence the present appeal.

Appellant contended that regularization and confirmation were
different concepts in service jurisprudence, and regularisation did not
ipso facto result in confirmation in any post. H
69
70 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Allowing the appeal, the Court

HELD: I. Regularization is not the same as confirmation in service,
and therefore lien could not operate from the said date. (78-A, BJ

Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC I, followed.
B
R.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507; State of
Mysore v. S.V. Narayanapa, (1967) I SCR 128 and R.N. Nanjundappa v.
T Thimiah, [1972) 2 SCR 799, relied on.

c There2.isHigh Court had misunderstood the concept of a lien on a post.
nothing like lien on a post, unless a person was made permanent
in a post. (77-A, B[

Triveni Shankar Saxena v. State of UP., [1992) Supp. I SCC 524,
relied on.
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 213 of 2003.

From the Judgment/Order dated 13.12.2001 of the High Court of
Andhra Pradesh at Hyderabad in W.P. No. 653112000.

E H.S. Guru Raja Rao, Narasinga Rao, Y. Ramesh and Y. Raja Gopala
Rao for the Appellant.

Dr. K.P. Kyalashnath Prasad, G. Ramakrishna.Prasad, Mohd. Wasay
Khan, Suvodhan B. Vt:nkat Subramanyam, Manoj Saxena, Rajnish Kumar
Singh and M.P. Meharia for the Respondents.
F
The Judgment of the Court was delivered by

SRIKRISHNA, J. : The appellant was initially appointed as a Lower
Division Clerk through District Selection Committee on 6. l l. l 968 in the
office of the District Panchayat. He was promoted as Upper Division Clerk
G (re-designated as St:nior Assistant) with effect from 12. l 0.1970. The services
of the appellant in the said category were regularised with effect from the
same day. By an order issued on 12.5.1986, under Rule lO(a)(i) of the State
and Subordinate Services Rules, the appellant and certain other emplo:;ees
came to be appointed as "'Exknsion Officers (Pts.)" in the Andhra Pradesh
H Panchayati Raj (Executive Subordinatt:) Service. The appellant was allotted
S. NARA YANA v. MD. AHMEDULLA KHAN [SRlKRlSHNA, J.] 71

l to Nizamabad District. The said order made it clear that the appointment was
"Purely temporary" and that it was " ... liable to be terminated at any time
A

without assigning reasons and without prior notice ... " and that such an
appointment " ... would not confer on ... (him) ... any rights of probation or
preferential claims for further appointment".

By an order dated 24.9. 1988, the services of the appellant were B
regularised in the category of Senior Assistant with effect from 12. JO. I 970.
On 12.11.1991, the appellant made a representation to the Commissioner of
Panchayati Raj and Rural Development (hereinafter "PRRD") indicating that
he was not willing to work as an Extension Officer (Pts.), that he had found
that the names of has colleagues on "other duty" had been included in the C
seniority list of Senior Assistants in the District Panchayat Office. He
requested that his name also be included in the seniority list of Senior
Assistant in the office of District Panchayat Office and Divisional Panchayat
Office. The request of the appellant was recommended by the District
Commissioner Nizamabad on 3.1.1992. On 7.4.1992 the Commissioner,
PRRD published a provisional seniority list of the Extension Officer in which D
the appellant's name was shown at Serial No. 35 and the date of the
regularisation was shown as 4.6. I 986. Some employees raised objections in
the provisional seniority list. After examining the objections, the
Commissioner, PRRD by notice dated 9.11.1992, published a revised
provisional list and sought objections from the affected employees, if any. E
In the list, the name of the appellant was shown at Serial No. 5(a) below
one R. Prakasam and above one M. Laxma Reddy at Serial No. 6. His date
of regularisation was shown as 12.10.1970. The respondent, Md. Ahmedulla
Khan was shown at Serial No. IO, below the appellant.

F

l
On 15.5.1993, the Commissioner, PRRD published a final seniority list
as no objections had been received. The confirmed seniority list of Senior
Assistants working in the Office of District Panchayat Officers of Unit 1
Zone VI as published, indicated the name of the appellant at Serial No. 6
and the date of his appointment as Senior Assistant and date of regularisation,
were shown as 12.10.1970. The name of the first respondent was shown at
Serial No. 12. The date of his appointment was shown as 15.3.1972 and the
G
date of his regulatisation was shown as 7.10.1972. On 22.8.1984, the
Commissioner, PRRD issued office circular No. 621/6/CPR directing
Collectors to terminate the lien of all individuals who have absented
themselves continuously for more than three years after serving a notice of
seven days on them for termination of the lien. Accordingly on 6.9. I 994, H
72 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A the District Collector issued a notice to the appellant for tennination of his .. _
'
lien as Senior Assistant. The appellant submitted a representation thereagainst
and also claimed that he was entitled to be promoted to the post of
Superintendent on par with his juniors. On 23.10.1994. the District Collector's
order terminating the lien of the appellant was served on the appellant. On
26.10.1994, the appellant once again made a representation for retention of
B his lien and for considering his case for promotion as Superintendent on par
with his juniors in the District Panchayat Office. By another representation
dated 7 .11.1994. the appellant pointed out that, by not acceding to his request
to take him back into his parent department, he had been subjected to
injustice. inasmuch as. several juniors to him has been promoted in the parent
C department.

The appellant filed O.A. No. 1307/1995 before the Andhra Pradesh
Tribunal (hereinafter ·'the Tribunal") seeking a direction to the State
authorities to promote him and regularise his services as Superintendent from
the date his juniors had been promoted. with all consequential benefits. This
D petition was disposed of by an order dated 24.3.1995, by which the
Commissioner, PRRD (the second respondent therein) was " ... directed to
examine and consider the claim of... (the appellant herein) for promotion to
the post of the Superintendent in the existing vacancy in the office of the
District Panchayat Officer as per the service rules along with other eligible
candidates.··
E
The appellant filed O.A. No. 2115/1995 before the Tribunal seeking
a direction to the respondent-authorities not to terminate his lien in the
category of Senior Assistant until his representations dated 12.11.1991 and
7 11.1994 were disposed of. He also sought a declaration that the attempt
F to terminate his lien from the parent department was contrary to the
Fundamental Rules and contrary to the order already passed by the Tribunal
in O.A. No. 1307/1995 dated 24.3.1995. On 9.5.1995, the Tribunal made an
interim order in this petition directing the respondent-authorities to follow
the provisions contained in Fundamental Rules 13 to 14-B. On 9.10.1995,
the Tribunal in 0.A. No. 2115/95 with M.A. No. 2045 made the interim order
G dated 9.5.1995 absolutt: and accordingly disposed of the case.

On 20.12.1995. the District Collector, Medak passed an order (Procs.
"Jo. 392/94-81 (Pts) terminating the lien of the appellant, which is as follows:

''By virtue of holding a pmnanent post on his substantive appointment
H
S. NARA YANA v. MD. AHMEDULLA KHAN [SRIKRISHNA, J.] 73

to the post of.Extension Officer (Pts) Sri S. Narayana, has acquired A
a lien in the permanent post of Extension Officer (Pts) within the
meaning of lien defined under Sub-Rule (13) of Rule (9) of F.R.
hence, the provisions of Sub-rule (d) of F.R. 14-A is attracted in
the case which reads as follows :

F.R. 14(A) Sub-rule (d) B
"A Government servants lien on a post shall stand terminated
on his aquiring a lien on a pennanent post, outside the cadre
on which he is born".

Hence, as per the provisions of Sub-rule (d) of the F.R. 14-A, the c
lien of Sri S. Narayana, Extension Officer (Pts) Banswada in his
former post of Senior Assistant in the Unit of Collector (P.W.) Shall
(stc) stands terminated with immediate effect."

On 5.1.1996, the State Government through a memorandum, directed the
D
Commissioner, PRRD to consider the request of the appellant for promotion
as Superintendent, duly following Fundamental Rule 9(13) and also keeping
in mind, the orders issued by the "Tribunal. The State Government advised
the Commissioner that (i) " ... when an employee is confirmed in any post he
is said to possess a lien in that post under FR-9( 13)" (ii) the question of
termination in any post arises only if an employee has a lien in that post. E
. As the appellant was not confirmed in the post of Senior Assistant, he could
not be said to hold any lien on the post of Senior Assistant and consequently,
the question of termination of his lien on that post did not arise.

By order made on 7.3.1996, the State Government set aside the order F
dated 20.2.1995 made by the Collector (P.W.), Nizamabad by which the lien
of the appellant was terminated in the cadre of Senior Assistant. The
Commissioner of Panchayati Raj and the Collector (P.W.) Nizamabad, were
directed to take necessary further action as per the instructions issued in the
Government Memorandum dated 5.1.1996.
G
On 16.4.1996, the Tribunal disposed of O.A. No. 524/1996 (with M.A.
769/96) taking notice of the fact that the State Government had already set
aside the orders of the Collector terminating the lien of the appellant.
Consequently, the Tribunal disposed of the application by a. direction to the
respondent-authorities to pass appropriate orders in pursuance of the H
74 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Government Memorandum dated 5.1.1996 and 7.3.1996 within-a period of
three months. On 28. I0.1996, the Commissioner, PRRD passed an order
temporarily promoting the appellant as Superintendent w.e.f. 1.11.1996 in
the appropriate scale and posted him as Superintendent in the office of
District Panchayat Officer, Nizamabad. He was also infonned in the said
order that the promotion had been ordered on a "purely temporary basis" and
B that he was liable " ... to be reverted to the substantive post (Senior Assistant)
at any time without assigning any reasons."

On 15.11.1996, the appellant submitted a representation requesting that
his seniority in the category of Superintendent be fixed on par with one
c Laxma Reddy, who had been promoted as Superintendent w.e.f. 1.7.1991
and whose name was shown at Serial No. 7 in the seniority list of the cadre
of Senior Assistants. On 9.6.1997, the State Government called for objections
from persons to the fixing of notional seniority of the appellant as claimed
for. The objections were called from 0ne P.V. Govind Swamy, one K. Gopal
Reddy and the first respondent Md. Ahmedulla Khan, who were all working
D as Superintendents. By an order dated 12.12.1998, the State Government
acceded to the representation made by the appellant. It directed that the
appellant and P.V. Govind Swamy be given notional promotions as
Superintendents w.e.f. 1.7.1991 on par with their immediate junior R. Laxma
Reddy, retired Suprintendent.
E The question of promotion of Superintendents to the post of District
Panchayat Officer was being considered in 1999 and the ACRs of the persons
in the zone of consideration, including those of the appellants were called
for. At this stage, through letter dated 22.4. I 999, written by the Commissioner,
PRRD to the Secretary, of the State Government, it was indicated that the
F name of the appellant was shown at Serial No. 1 in the category of
Superintendents.

The appellant filed O.A. No. 2181/1999 before the Administrative
Tribunal seeking a direction that he was entitled to hold the post of District
Panchayat Officer from the date of a vacancy in July 1998 and was also
G entitled to all consequential benefits. He also requested that promotions
already made be reviewed. This application was disposed of by the Tribunal
through order dated 3.5. I999, with a direction to the respondent-authorities
to examine the report of the Commissioner and take necessary action in
accordance with the rules in the existing or future vacancy without any
H further delay.
S. NARA YANA v. MD. A!JMEDULLA KHAN (SRIKRISHNA, J.] 75

On 3.11.1999, the first respondent filed an 0.A. No. 6629/1999 before A
the Tribunal challenging the grant of notional seniority to the appellant and
also sought a direction that he was senior to the appellant and was entitled
to be promoted as District Panchayat Officer. Interestingly, however, thert
was no challenge to the confirmed seniority list made, wherein the appellant
was admittedly shown as senior to the first respondent at Serial No. 6 while
the respondent was at Serial No. 12. The Tribunal made an interim order on B
16.11.1999 suspending the order of the Commissioner, Panchayati Raj,
giving notional promotion to the appellant as Superintendent. However, on
24.3.2000, the Tribunal dismissed O.A. No. 6692.1999 filed by the first
respondent.

The first respondent challenged the order of the Tribunal before the
c
High Court of Andhra Pradesh by Writ Petition 6531/2000. The Division
Bench of the High Court allowed the writ petition and set aside the order
of the Tribunal dismissing 0.A. No. 6692/1999 filed by the first respondent.
Aggrieved thereby, the appellant is before us.
D
The learned counsel for the appellant criticised the impugned judgment
of the High Court as having proceeded on a total mis-appreciation of the
facts. He pointed out that the High Court observes : (vide page I 8)

"Jn the case on hand the case is still worse to (sic) the 4th
respondent. Not only (sic ... was) the 4th respondent was (sic) E
appointed as Extension Officer, Pts, with effect from 4.6.1986, but
also subsequently his services were regularised and confirmed in
that post with effect from that date ..."

The counsel contended that the High Court seemed to have lost sight of the
fact that regularisation and confirmation were distinct and different concepts
F
in service jurisprudence and that regularisation did not ipso facto result in
confirmation in any post.

Counsel drew our attention to the judgment of this Court in B.N.
Nagarajan v. State ofKarnataka, 1 (hereinafter "Nagarajan"). This Court in G
categorical terms rejected the argument that regularisation and permanence
and confirmation meant the same thing. Reiterating the observations made
in State of Mysore v. S. V. Narayanappa, 2 and R.N. Nanjundappa v. T.

1. (19791 4 sec so1.
2. [1967) l SCR 128 at p. 132. H
76 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Thimmiah, 3 this Court in Nagarajan (supra), observed :

"Firstly, the words "regular" or "regularisation", do not connote
permanence. They are terms calculated to condone any procedural
irregularities and are meant to cure only such defects as are
attributable to the methodology followed in making the appointments.
B
They cannot be construed so as to convey an idea of the nature of
tenure of the appointments." 4

It was also observed : " ... when rules framed under Article 309 of the
Constitution of India are in force, no regularisation is permissible in exercise
c of the executive powers of the Government under Article 162 thereof in
contravention of the rules"'

Closure on this issue must surely be attained after the recent judgment
of a Constitution Bench of this Court in Secretary, State of Karnataka v.
D Umadevi (3),6 After reviewing the cases that we have already adverted to,
especially Nagarajan (supra), the Constitution Bench declared:

" ... the words"regular" or "regularisation"' do not connote permanence
and cannot be construed so as to convey an idea of the nature of
tenure of appointments. They are terms calculated to condone any
E
procedural irregularities and are meant to cure only such defects
as are attributable to methodology followed in making the

-
appointments. This court emphasised that when rules framed under
Article 309 of the Constitution oflndia are in force, no regularisation
is permissible in exercise of the executive powers of the Government
F under Article 162 of the Constitution in contravention of the rules.
These decisions and the principles recognised therein have not been
dissentd to by this Court and on principle, we see no reason not
to accept the proposition as enunciated in the above decisions. We
have, therefore, to keep this distinction in mind and proceed on the
basis that only something that is irregular for want of compliance
G
3. [1972] 2 SCR 799 at p. 810.
4. (1979) 4 sec 507 at p. 514 (paragraph 23).
'\. Ibid. at p. 514 (paragraph 25).
H 6. (2006) 4 sec 1.
S. NARA YANA v. MD. AHMEDULLA KHAN (SRIKRISHNA, J.] 77

with one of the elements in the process of selection which does not A
go to the root of the process, can be regularised and that it alone
can be regularised and granting pennanence of employment is a
totally different concept and cannot be equated with regularisation." 7

The learned counsel for the appellant also urged that the High Court
had misunderstood the concept of a lien on a post. He contended, and rightly B
in our view, that there was nothing like lien on a post, unless a person was
made pennanent in a post. Strong reliance was placed on the observations
of this Court in Triveni Shankar Saxena v. State of U.P.,' wherein after
examining the concept of lien in Government service, it was observed: " ...a
person can be said to acquire a lien on a post only when he has been C
confinned and made pennanent on that post and not earlier"', with which
view, we are in agreement.

Falling upon the aforesaid decisions of law, learned counsel for the
appellant contended that the appellant had never been confinned in any
pennanent post and as such, it could not be said that he had a lien, which D
was capable of being tenninated. He drew our attention to the order of the
Collector (Panchayat Wing), Nizamabad dated 16.12.2001, by which it was
declared :

"Under Rule 29 of (sic-the) Andhra Pradesh State & Subordinate
Service Rules, 1962, the service of Sri S. Narayana as approved probationer E
in the category of Senior Assistant are confinned and he is declared to be
a Full Member of the services as Senior Assistant with effect from the said
date i.e., 12.10.1970 " 10

The counsel contended that this order in no uncertain tenns made it clear
F
that the confirmation of the appellant in service came about only when the
order dated 16.12.2001 was passed, albeit when it was made retrospectively
from 12.10.1970. Consequently, it is urged that there could never have been
an occasion for the District Collector, Medak to pass orders dated 20.12.1995
to tenninate the non-existing lien of the appellant. He, therefore, submitted
G
7. Ibid. at pp. 24-25 (paragraph 16).

8. [1992] Supp. 1 sec 524.
9. Ibid. at p. 531 (paragraph 24), quoting from: MP. Tewari v. Union of India, 1974 All
LJ 427.
I 0. Emphasis in the original. H
78 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A that the expression '"'Full member'" of a service" is defined in Rule 3(8) of
the applicable Rules and there was no material before the High Court that
there was any order made for confirmation of the appellant under Rule 29
at any time before 16.12.200 l.

For the first respondent, however, it is contended that regularisation
B is the same as confirmation in service, and therefore, lien would operate from
the said date. We are afraid that we cannot accept this contention in the face
of clear authority to the contrary, to which we have already referred. Counsel
for the first respondent also contended that any relief given, to the appellant
should not affect any benefit of service, emoluments, allowance and pension
c etc. available to the first respondent. We do not see how this apprehension
can arise. The order of the Tribunal does not in any way show that the first
respondent's service benefits are affected. All that it ensures is that justice
is rendered to the appellant. The learned counsel for the State submitted that
the State would submit to any orders passed by this Court. We also notice
that the State Government has not filed any counter-affidavit in opposition
D to the appeal.

In the circumstances, we find merit in the contentions urged on behalf
of the appellant. We are also of the view that the High Court erred in
interfering with the order of the Tribunal. In the result, we allow this appeal
E and set aside the impugned judgment of the High Court. The order of the
Tribunal dated 24.3.2000, made in O.A. No. 6692/1999 dismissing the
application of the first respondent, is affirmed. No order as to costs.

V.S. Appeal allowed.