SITIKANATHA MISHRAversusUNION OF INDIA & ORS.

                         [2015] 1 S.C.R. 16


A                     SITIKANATHA MISHRA
                                  v.
                      UNION OF INDIA & ORS.
               (Civil Appeal Nos. 234-235 of 2015)
                         JANUARY 9, 2015
B
         [ANIL R. DAVE, ADARSH KUMAR GOEL AND
                    R. BANUMATHI, JJ.]

        Service Law: Regularization and lien - Claim for - Initial
C appointment of appellant as Professor, on contract - Later
  regularized w. e.f. the date of joining the post - Prior to
  issuance of formal order indicating regularization of the
  appellant with retrospective effect, appellant joined higher post
  (post of Director) on contract basis - After completing his
o tenure as Director, appellant applied for rejoining the post of
  Professor - Denied by the Department on the ground that he
  was not having substantive appointment as Professor - Writ
  petition challenging the denial, dismissed - On appeal, held:
  Order of regularization was applicable to the appellant and he
E would be deemed to have been regularized on the post of
  Professor from the date he joined the said post - Thus, having
  been regularized, the appellant was holding the substantive
  post as Professor, and therefore, his claim for lien over that
  post, is required to be considered by the Competent Authority.
F       Allowing the appeals, the Court

       HELD: 1.The appellant having been appointed in the
  year 1997 after due selection and covered by the
  recommendation of the Staff Inspection Unit in the year
G 2002 which recommendation was accepted by the
  Government of India, a decision to regularize incumbents
  of 68 posts clearly applied to the appellant. No doubt, the
  appellant had taken over as Director in the Institute but
  on that ground, it will be unjust to deny him the benefit
H                                 16
     SITIKANATHA MISHRA v. UNION OF INDIA               17


of the said regularization.- The appellant had to be taken    A
as having been regularized on the post of Professor with
effect from 27th January, 1997. [para 12-13] [23-B-D]

     State of M.P. 'Vs. Sandhya Tomar 2012 (11) SCR 839 =
2013 (11) SCC 357, State of Rajasthan vs. S.N. Tiwari 2009    B
(4) SCR 448 = 2009 (4) SCC 700, Arun Kumar Agrawal vs.
Union of India and others 2014 (3) SCR 861 = 2014
(2) sec 609 - relied on.

   S. Narayana vs. Mohd. Ahmedulla Khan 2006 (2) Suppl.
        =
SCR 69 2006 (10) SCC 84 - distinguished.                      C
     2. The competent authority has rejected the claim of
the appellant to join as Professor after completing his
tenure as Director, only on the ground that he was not
having substantive appointment as Professor which is          o
not correct. However, the question whether having
regard to the nature of the work to which the appellant
was appointed on contract basis, i.e., Director and the
period for which he was appointed, his claim for lien could
be accepted, survives. The appellant is deemed to have        E
been regularized in service as Professor with effect from
27th January, 1997 and the decision of the Central
Government dated 31st October, 2006 as ratified by the
Board of Governors was applicable to him. This issue
should, in the first instance, be decided by the department
                                                              F
in the light of observations made above. [para 19-20] [27-
E-F, G-H]
                 Case Law Reference :
    2006 (2) Suppl. SCR 69distinguished          Para 15
                                                              G
    2012 (11) SCR 839       relied on            para 17
    2009 (4) SCR 448        relied on            para 11
    2014 (3) SCR861         relied on            para 18
                                                              H
    18       SUPREME' COURT REPORTS              [2015) 1 S.C.R.


A       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 234-
    235 of 2015

       From the Judgment and Order dated 27.03.2012 and
  10.10.2012 of the High Court of Orissa at Cuttack in W.P. (C)
B No. 2331 of 2010 and RVWPET No. 212 of 2012 respectively.

         Kirti Renu Mishra, Apurva Upmanyu for the Appellant.

         Kamini Jaiswal, Shilpi Dey, for the Respondents.

C        The Judgment of the Court was delivered by

         ADARSH KUMAR GOEL, J. 1. Leave granted.

      2. These appeals have been preferred against the final
  judgment and order dated 27th March, 2012 in Writ Petition
D No.2331 of 2010 and order dated 10th October, 2012 in
  Review Petition No.212 of 2012 of the High Court of Orissa at
  Cuttack.

       3. The question raised for our consideration is whether the
E appointment of the appellant to the post of Professor in the
  Indian Institute of Tourism and Travel Management ("llTTM"), an
  autonomous .body under the Ministry of Tourism, Government
  of India from 27th January, 1997 could be treated to be on
  regular basis and whether his appointment to the post of
F Director in the same Institute with effect from 8th June, 2006,
  on contractual basis, had the effect of relinquishing his lien to
  the post of Professor, in absence of his resignation and in
  absence of filling up of the said post of Professor.

         4. We have heard learned counsel for the parties.
G
      5. The llTTM issued an advertisement dated 25th October,
  1996 inviting applications for various posts, including the post
  of Professor in Business Studies. The appellant applied and
  was duly selected for the post on the basis of interview and
H appointment letter dated 4th January, 1997 was issued to him.
      SITIKANATHA MISHRA v. UNION OF INDIA                      19
            [ADARSH KUMAR GOEL, J.]
He joined service on 27th January, 1997. According to the             A
appointment letter his appoirTtment was to be on contract initially
for three years. The documents on record show that the llTTM
is a society and as per rules and regulations, the Board of
Governors ("BOG"), inter alia, comprises of Minister of Tourism,
Minister of State for Tourism, Secretary, Ministry of Tourism,        B
Director General (Tourism) and various other functionaries who
are mostly nominees of the Central Government. Appointments
in the llTTM were initially made on contractual basis for the
technical reason in absence of formal sanction of posts which
issue was pending with the Ministry. Pending such sanction, the       c
incumbents who were duly selected, after advertisement,
selection process continued on contractual basis at times even
without formal extension letters. In pursuance of directions of
the Ministry of Tourism, Staff Inspection Unit ("SIU") of the
 Department of Expenditure, Ministry of Finance, conducted            D
assessment of manpower requirement of the llTTM in the year
 2001 and submitted its report in the year 2002 recommending
 regularization of 68 posts which included the post of Professor
 held by the appellant. Finally, it was on 31st October, 2006 that
 the Central Government took a decision to regularize the
 services of the said 68 incumbents. The decision of the Central      E
 Government was ratified by the BOG in its 31st Meeting held
 on 4th December, 2006. As already mentioned, the
 recommendations of SIU were made earlier and were duly
 approved by the BOG in its meeting held on 18th September,
 2002. Accordingly, a formal letter dated 15th January, 2007 was      F
 issued to the effect that services of the appellant were
 regularized in the post of Professor in llTIM with effect from the
 date of initial joining that is 27th January, 1997. In the
 meanwhile, advertisement dated 25th March, 2006 was issued
 by the llTTM for recruitment to the post of Director on contract     G
 basis for three years with possibility of extension by two years.
 Persons holding posts on regular basis in prescribed pay scale
 having three years of service were also eligible. The candidates
 in service were to submit their applications through their
 employers. Minimum 18 years of experience in a recognized            H
    20       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A educational institution with at least three years of administrative
  experience was also required. The appellant applied to the said
  post and was selected and appointed vide letter dated 8th
  June, 2006. On expiry of period of three. years, his appointment
  was further extended till he handed over the charge on 31st
B December, 2009. Thereafter he claimed to continue as
  Professor. However, as per decision of Ministry of Tourism
  conveyed by the letter dated 28th January, 2010, the appellant
  was informed that he could not continue in any official capacity.
  It was this decision which the appellant called in question by
c filing the writ petition before the High Court.
         6. Contention raised on behalf of the appellant is that
    though formal order of regularization was conveyed by the
    Ministry on 31st October, 2006 and the same was ratified by
    the BOG on 4th December, 2006, the same was in respect of
D   persons already appointed after due selection and who had
    already been assessed and recommended for regularization
    by the SIU in the year 2002. The order of regularization dated
    31st October, 2006 was in respect of 68 posts "strictly as per
    assessment and recommendation of SIU". The said
E   assessment and recommendation covered the appellant who
    was holding the post of professor in the scale of Rs.16400-
    Rs.22400. The appellant had joined the post of Director in the
    Institute on 8th June, 2006 after serving the Institute as
    Professor from 27th January, 1997 and he had already been
F   assessed and recommended for regularization. Since the order
    of regularization was retrospective and was in respect of 68
    posts, including the post held by the appellant, he was entitled
    to be treated at par with other incumbents to the said 68 posts
    in respect of his past service of nine and a half year as
G   Professor for all purposes. His joining another higher post in
    the same Institute could not be read as excluding him from the
    benefit of regular appointment merely because few months
    before issuance of formal order, he had joined higher post.
    Once it is assumed that the appellant stood regularized as
H   Professor, as indeed is the effect of documents referred to
      SITIKANATHA MISHRA v. UNION OF INDIA                    21
            [ADARSH KUMAR GOEL, J.]
above w.e.f. 27th January, 1997, on the date of his                 A
appointment on 8th June, 2006 to the post of Director, he
continued to have lien to the post of Professor to which he was
regularly appointed which did not end on his appointment to the
post of Director on contractual basis for a limited period.
                                                                    B
      7. The stand of the appellant was contested by the llTTM
by filing a counter affidavit before the High Court. According to
llTTM, on his joining the post of Director, his appointment as
Professor came to an end as the said appointment was on
contract basis. The said appointment de-barred the appellant
from engaging in any other trade or business or employment          C
without permission of the competent authority. The
regularization order did not apply to the appellant who was not
an existing incumbent on 4th December, 2006 as required in
terms of letter dated 31st October, 2006 of the Government.
Letter dated 15th January, 2007 issued on that basis was by         D
the appellant himself as a Director which had to be ignored.

    8. We have duly considered the rival submissions.

     9. As already mentioned, the question for consideration is
whether the appellant is deemed to have been regularized from
                                                                    E
27th January, 1997 or is deemed to be working on contractual
basis on the date of his appointment as Director on 8th June,
2006. The stand of the llTTM is that since the appellant was
not an existing incumbent on the date of issuance of letter dated
31st October, 2006, conveying the sanction of posts from the        F
date of initial appointment, the decision of the Government to
regularize the incumbents to 68 posts referred to in the
recommendation of the SIU did not cover the appellant. This
plea has been accepted by the High Court. We have
considered the correctness of the said view.                        G

     10. The terms of letter dated 31st October, 2006 being
crucial, it may be appropriate to reproduce the operative part
of the same:
                                                                    H
    22          SUPREME COURT REPORTS             [2015] 1 S.C.R.


A        "Sub :- Implementation of the recommendation of the
         staff Inspection Unit, made in 2002.

         Sir,

               I am directed to refer to the correspondence on the
B        subject and to convey the Ministry's sanction to :
         regularization of 68 (sixty eight) posts strictly as per
         assessment and recommendation of Staff Inspection
         Unit, Department of Expenditure, Ministry of Finance.
         The llTTM will ensure that post regularized are the ones
c        recommended by the SIU.

         2. The l/TTM is also allowed to continue, on contractual
         basis, the existing incumbents against extra posts
         created by the Board of Governors. The number of such
D        appointees will not exceed the number of posts created
         by the BOGs which was 35 (thirty five). Further, no new
         contract appointment will be made till further order.

         3. It has also been decided to request the Staff Inspection
         Unit to conduct another study of the l/TTM. The study will
E        also cover the proposed centre of the llTTM at Delhi!
         Noida.

         4. The above is issued with the approval of Secretary (T),
         Ministry of Tourism."
F
       11. According to learned counsel for the appellant, the
  subject and para 1 of the letter clearly refer to the
  recommendation made in the year 2002 by the SIU after due
  assessment and ttie said recommendation was accepted.
  Second para of the letter which used the expression "existing
G incumbents", was applicable to those appointed against "extra
  posts" created by the BOG, i.e. 35 posts in addition to 68 posts
  which were directed to be regularized. Thus, there was no
  controversy regarding regularization of 68 posts as
  recommended in the year 2002 which recommendation was
H
       SITIKANATHA MISHRA v. UNION OF INDIA                        23 .
             [ADARSH KUMAR GOEL, J.]
approved by the Central Government and sanction was                       A
accorded.

     12. We find merit in this submission. The appellant having
been appointed in the year 1997 after due selection and
covered by the recommendation of the SIU which
                                                                          B
recommendation was accepted by the Government of India, a
decision to regularize incumbents of 68 posts clearly applied
to the appellant. No doubt, the appellant had taken over as
Director in the Institute but on that ground it will be unjust to deny
him the benefit of the said regularization. As already noted, the         C
expression "existing incumbents" was not applicable to 68
posts.

     13. In this view of the matter, the view taken by the High
Court cannot be sustained. The appellant had to be taken as
having been regularized on the post of Professor with effect from         D
27th January, 1997.

      14. Next question is whether the appellant was entitled to
lien and had a right to join the post of Professor after his tenure
as Director came to an end.

     15. Learned counsel for the llTTM relied upon decision of
this Court in S. Narayana vs. Mohd. Ahmedu/la Khan 1 to the
effect that question of lien arises only when a person is
substantively appointed to a post and duly confirmed. Distinction
was also drawn between expression "confirmed" and                         F
expression "regularized". It was submitted that even if the
appellant was regularized but he was not confirmed and,
therefore there could be no question of lien.

     16. In response, learned counsel for the appellant pointed           G
out that not only the observation in the judgment relied upon are
to be read in the context of the case decided and the facts in
the said case, the matter was now governed by amended

1.   c2ooe) 10 sec 84.                                                    H
    24         SUPREME COURT REPORTS               [2015] 1 S.C.R.


A Fundamental Rules ("FRs"). Vide notification dated 9th
  February, 1998, Rule 9(13) of the FRs stood amended to
  substitute the expression "substantively" by "regular basis". The
  Rule prior to and subsequent to the amendment is as follows :

B     PRIOR TO AMENDMENT               AFTER AMENDMENT

      "Lien means the title of a      "Lien means the title of a
      government servant to           Government servant to
      hold substantive/'{, either     hold on regular basis
      immediately or on the           either immediately or on
c     termination of a period or      the termination of period or
      periods of absence, a           periods of absence, a
      permanent            post,      post, including a tenure
      including a tenure post,      . post, to which he has been
      to which he has been            appointed on regular
D     appointed substantively"        basis and on which he is
                                      not on probation."

       17. We are of the view that the judgment relied upon on
  behalf of the llTTM is distinguishable. In the present case, the
E expression "regularization" does not refer to any irregular
  appointments which are sought to be regularized in violation
  of the Rules. It was the case of regularization on account of
  subsequent retrospective sanction, proposal for which was
  already pending. Initial appointment was not irregular or against
F Rules. The decision for sanctioning regular posts was taken
  later but with retrospective effect from date of joining and has .
  been duly applied to the posts/incu'mbents in respect of whom
  proposal was pending. In State o; M.P. vs. Sandhya Tomafl,
  this Court observed :

G        "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


H 2      (2013) 11 sec 357.
       SITIKANATHA MISHRA v. UNION OF INDIA                   25
             [ADARSH KUMAR GOEL, J.]

     right is that such appointment must be in accordance with A
     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 B
     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 c
     India [AIR (1958) SC 36], Pratap Singh v. State of
     Punjab [AIR (1964) SC 72], TR. Sharma v. Prithvi Singh
     [(1976) 1 SCC 226], Ram/a/ Khurana v. State of Punjab·
     ( (1989) 4 SCC 99], Triveni Shanker Saxena v. State of
     U.P. [(1992) Supp. (1) SCC 524], S.K. Kacker v. All India D
     Institute of Medical Sciences [(1996) 10 SCC 734], S.
     Narayana v. Mohd. Ahmedulla Kha [(2006) 10 SCC 84]
     and State of Rajasthan v. S.N. Tiwari [(2009) 4 SCC
      700]"

      Similarly, in State of Rajasthan vs. S.N. Tiwan'3, it was     E
observed:
      "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. F
      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 G
      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.
3.   (2009) 4 sec 100.                                              H
    26        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A        18. This Court in Ram/al Khurana v. State of Punjab
         [(1989) 4 SCC 99] observed that: (SCC p. 102, para 8)

                "8. . .. Lien is not a word of art. It just connotes the
                right of a civil servant to hold the post
8               substantively to which he is appointed."

         18. In Arun Kumar Agrawal vs. Union of India and others4,
    it was observed :

         "58. lt is a settled proposition of law that a deputationist
c        would hold the lien in the parent department till he is
         absorbed in any post. The position of law is quite clearly
         stated by this Court in State of Rajasthan v. S.N. Tiwari
         [(2009J 4 sec 700: r2009J 1 sec (L&SJ 9341 rscc p.
         704, paras 18 & 19)
D
                "18. This Court in Ramlal Khurana v. State of Punjab
                [(1989) 4  sec   99 : 1989  sec (L&S) 644 : (1989)
                11 ATC 841] observed that: (SCC p. 102, para 8)

                '8 .... Lien is not a word of art. It just connotes the
E               right of a civil servant to hold the post substantively
                to which he is appointed.'

                19. The term 'lien' comes from the Latin term
                'ligament' meaning 'binding'. The meaning of lien
                in service law is different from other meanings in
F
                the context of contract, common law, equity, etc. The
                lien of a government employee in service law is the
                right of the government employee to hold a
                permanent post substantively to which he has been
                permanently appointed."
G
         59. Similarly, in Triveni Shankar Saxena v. State of U.P.
         £1992 Supp (1J sec 524: 1992 sec (L&SJ 440: (1992)
         19 ATC 931] it has been held as under: (SCC p. 531,
          para 24)
H 4. (2014) 2 sec 609.
     SITIKANATHA MISHRA v. UNION OF INDIA                     27
           [ADARSH KUMAR GOEL, J.]
            "24. A learned Single Judge of the Allahabad A
            High Court in M.P. Tewari v. Union of India [1974
            All LJ 427] following the dictum laid down in the
            above Paresh Chandra case {Paresh Chandra
            Nandi v. North-East Frontier Railway, (1970) 3
            SCC 870] and distinguishing the decision of this B
            Court in Parshotam Lal Dhingra v. Union of India
            {AIR 1958 SC 36] has observed that: (All LJ p.
            429)                                        .

            'a person can be said to acquire a lien on a post C
            only when he has been confirmed and made
            permanent on that post and not earlier'

            with which view we are in agreement."

     19. Learned counsel for the appellant also highlighted the     o
departmental notings suggesting that after the completion of his
tenure as Director, the appellant's joining report as Professor
may be accepted as he had neither resigned nor it was clearly
mentioned that on joining as Director he will lose lien which is
normally available. The competent authority has rejected the        E
claim of the appellant only on the ground that he was not having
substantive appointment as Professor which, in our view, is not
correct. However, the question whether having regard to the
nature of the work to which the appellant was appointed on
contract basis, i.e., Director and the period for which he was
appointed, his claim for lien could be accepted, will survives.     F

      20. This question will now require fresh consideration in
the light of finding recorded above that the appellant is deemed
to have been regularized in service as Professor with effect
from 27th January, 1997 and the decision of the Central G
Government dated 31st October, 2006 as ratified by the BOG
was applicable to him. We are of the view that this issue
should, in the first instance, be decided by the department in
the light of observations made above. Learned counsel for the
appellant has fairly stated that if decision is taken to accept his· H
    28         SUPREME COURT REPORTS                [2015] 1 S.C.R.


A   lien to the post of Professor after his relinquishing the charge
    of the post Qf Director, he will not claim any monetary benefits
    for the period he did not serve, except that the said period be
    treated as leave of the kind due and his service be treated as
    continuous for purposes of terminal benefits. The appellant will
B   be at liberty to place his view point before the competent
    authority forthwith.

        21. Accordingly, we allow these appeals, set aside the
    impugned order of the High Court and direct the competent
C   authority to take a fresh decision on the issue of lien within four
    weeks from the date of receipt of copy of this order, in the light
    of observations made in the above order.

    Kalpana K. Tripathy                                 Appeals allowed