STATE OF MADHYA PRADESH & ORS.versusKU. SANDHYA TOMAR & ANR.

                   [2012] 11 S.C.R. 839

         STATE OF MADHYA PRADESH & ORS.                         A
                             v.
              KU. SANDHYA TOMAR & ANR.
              (Civil Appeal No. 9028 of 2012)
                  DECEMBER 13, 2012
                                                                B
     [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
               IBRAHIM KALIFULLA,JJ.]

     Service Law - Appointment - Temporary appointment -
In a project - Through Employment Exchange - The                C
appointee joining another department - Later repatriated to
parent department - Not permitted to join parent department
- Subsequent advertisement for appointment to the post -
Challenged by the appointee - Advertisement quashed by
Single Judge as well as Division Bench of High Court - On       D
appeal, held: The initial appointment was in violation of
Articles 14 and 16 of the Constitution - As the appointment
was temporary, the appointee cannot claim any lien in respect
of the said post - The appointee has no right to challenge
the advertisement - Constitution of India, 1950 - Articles 14   E
and 16.

     Words and Phrases - 'Lien' - Meaning of, in the context
of service law.

    Respondent No. 1 was appointed to the post of               F
Project Director in the Child Labour Elimination and
Rehabilitation Society, throug,h the Employment
Exchange on a temporary basis. Thereafter, she joined
a post in the Department of the State Government. After
eight months, she was repatriated to her parent                 G
Department. But, she was not permitted to join the duty
in her parent Department. The post of Project Director
was thereafter advertised.

                            839                                 H
    840      SUPREME COURT REPORTS              (2012) 11 S.C.R.

A       Respondent No. 1 filed Writ Petition challenging the
    advertisemer:t. Single Judge of High Court quashed the
    advertisement. The Division Bench of High Court, in writ
    appeal affirmed the judgment of Single Judge. Hence the
    present appeal.
B
          Allowing the appeal, the Court

       HELD: 1. Initial appointment of respondent No.1 was
  not made on the basis of any advertisement in any
  newspapet whatsoever. Hence, applications for the post
C were not invited. It is a settled legal proposition that
  considering the candidature of persons by mere calling
  of names from the Employment Exchange does not meet
  the requirement of Articles 14 and 16 of the Constitution
  of India. Thus, respondent No.1 was not appointed
D following the procedure mandatorily required by law, and
  that such appointment was admittedly in violation of
  Articles 14 and 16 of the Constitution of India, as several
  other eligible candidates have been deprived of their right
  to be considered for the post. [Para 7) [845-C·D·E·FJ
E
        Excise Superintendent Malkapatnam, Krishna District,
   A.P. (1996) 6SCC 216: 1996 (5) Suppl. SCR 73; Veer
   Kunwar Singh UniversityAd Hoc Teachers Association and
   Ors. v. Bihar State University (C. C.) Service Commission and
F. Ors., (2009) 17 SCC 184: 2007 (7) SCR 396; Union of India
   and Ors. v. Miss. Pritilata Nanda AIR 201 O SC 2821: 201 O
   (8) SCR 733; State of Orissa and Anr. v. Mamata Mohanty
   (2011) 3 sec 436: 2011 (2) SCR 704 - relied on.
      2. It is a settled legal proposition that in the event that
G a person is not appointed on a regular basis, and if his
  service is not governed by any Statutory Rules, he shall
  be bound by the terms and conditions that have been
  incorporated in his appointment letter. In such an
  eventuality, there can be no reason with respect to why
H
  STATE OF MADHYA PRADESH v. KU. SANDHYA              841
                  TO MAR
the terms and conditions incorporated in the appointment     A
letter should not be enforced against such an employee.
In the instant case, respondent No.1 was temporarily
appointed in a project, and, thus she had at no point of
time been appointed on a regular basis, owing to which
she cannot claim any lien with respect to the said post.     B
[Para 8) (845-G-H; 846-A-B]

    State of Punjab and Ors. v. Surinder Kumar and or5.,
AIR 1992 SC 1593: 1991 (3) Suppl. SCR 553 - relied on.

     3. "Lien" connotes the civil right of a Government C
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 D
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 E
accordance with law, in a substantive capacity, and
whether he has been made permanent or has been
confirmed to the said post. [Para 9) [846-8-E]

    Parshotam Lal Dhingra v. Union of India AIR 1958 SC
36: 1958 SCR 828; S. Pratap Singh v. State of Punjab AIR     F
1964 SC 72: 1964 SCR 733; T.R. Sharma v. Prithvi Singh
and Ors. AIR 1976 SC 367: 1976 (2) SCR 716; Ram/al
Khurana v. State of Punjab and Ors. AIR 1989 SC 1985:
1989 (3) SCR 680; Triveni Shankar Saxena v. State of U.P.
and Ors. AIR 1992 SC 496: 1991 (3) Suppl. SCR 534; Dr.       G
S.K. Kacker v. All India Institute of Medical Sciences and
Ors.(1996) 10 sec 734: 1996 (5) Suppl. SCR 540; s.
Narayana vs. Md. Ahmedulla Khan and Ors. AIR 2006 SC
2224: 2006 (2) Suppl. SCR 69; State of Rajasthan and Anr.
                                                             H
    842      SUPREME COURT REPORTS             [2012] 11 S.C.R.


A v. S.N. Tiwari and Ors. AIR 2009 SC 2104 - relied on.

       4. Respondent No.1 voluntarily abandoned her job in
  the Society and joined another post in another
  department. Therefore, her temporary employment in the
  Society came to an end automatically. The $ociety was
8
  not bound to permit respondent No.1 to join''the post of
  Pr-0ject Director. As a consequence thereof, she has no
  right to challenge the advertisement dated 16.5.2005. At
  the most, if respondent No.1 was eligible for appointment
C as per the said advertisement, she could apply for fresh
  appointment. [Para 10] [846-H; 847-A-B-C]

                         Case Law Reference:
          1996 (5) Suppl. SCR 73     Relied on       Para 7
D         2007 (7) SCR 396           Relied on       Para 7
          2010 (8) SCR 733           Relied on       Para 7
          2011 (2) SCR 704           Relied on       Para 7
          1991 (3) Suppl. SCR 553    Relied on       Para 7
E
          1958 SCR 828               Relied on       Para 9
          1964 SCR 733               Relied on      Para 9
          1976 (2) SCR 716           Relied on      Para 9
F
          1989 (3) SCR 680           Relied on      Para 9
          1991 (3) Suppl. SCR 534    Relied on      Para 9
          1996 (5) Suppl. SCR 540    Relied on      Para 9
G         2006 (2) Suppl. SCR 69     Relied on      Para 9
          AIR 2009 SC 2104           Relied on      Para 9

       CIVIL APPELLATE JURISDICTION : Special Leave
H Petition (Civil) No. 18983 of 2009.
  STATE OF MADHYA PRADESH v. KU. SANDHYA                     843
                  TO MAR
    From the Judgment & Order dated 05.11.2008 of the High          A
Court of M.P. at Indore in W.A. No. 86 of 2007.

    B.S. Banthia for the petitioners.

    Niraj Sharma and Sumit Kumar Sharma for the
Respondents.                                                        B

    The Judgment of the Cuurt was delivered by

    DR. B.S. CHAUHAN, J. 1. Leave granted.

    2. This appeal has been preferred against the judgment          C
and order dated 5.11.2008, passed by the High Court of
Madhya Pradesh (Indore Bench) in Writ Appeal No.86 of 2007,
by which it has affirmed the judgment and order of the learned
Single Judge dated 17.7.2006, passed in Writ Petition No.1007
of 2006, by which the learned Single Judge quashed the              D
advertisement dated 16.5.2005, inviting the applications for
appointment on the post of Project Director.

    3. Facts and circumstances giving rise to this appeal are:-

     A. That the Central Government introduced a scheme for         E
elimination of child labour with respect to which, the Director
General of Employment and Training wrote a letter dated
15. 7 .1995, to the Collector, Khargone (West Nimar) to
implement the aforesaid Scheme. In order to give effect, i.e.,
to implement the said Scheme, a society, namely, the Child          F
Labour Elimination & Rehabilitation Society (hereinafter
referred to as the, "Society"), was formed on 12.4.1996 and the
Collector became the ex-officio Chairman of the said Society.
It appears that in order to appoint the Project Director, certain
names requisitioned from the Employment Exchange, were              G
considered and respondent no.1 was selected and appointed
temporarily, vide letter dated 8.11.1996 on a fixed salary of
Rs.4,000/- per month. Salary of respondent no.1 was
increased from Rs.4,000/- to Rs.8,000/- per month vide Order
dated 16.7.1999.                                                    H
    844      SUPREME COURTI REPORTS                 [2012] 11 S.C.R.


A       B. Respondent no.1 joined a post in the Panchayat & Rural
  Development Department in Zila Panchayat, Indore in
  pursuance of the order dated 29.7.2003, passed by the
  Government of Madhya Pradesh. Her services in the Panchayat
  & Rural Development Department were not required, and she
B was repatriated vide order dated 29.3.2004 to her parent
  department. However, respondent no.1 was not permitted to
  join the Society. The post of Project Director was advertised
  on 16.5.2005. Thus, respondent no.1 filed a writ petition on
  26.5.2005, challenging the advertisement dated 16.5.2005,
C claiming her ;ight to join the said post.

      C. The appellants contested the writ petition on various
  grounds, however, the writ petition was allowed by the learned
  Single Judge vide order dated 17.7.2006. Aggrieved, the
  appellants filed a writ appeal, which stood dismissed vide
D impugned judgment and order dated 5.11.2005. Hence, this
  appeal.

       4. Shri B.S. Banthia, learned counsel for the appellants
  has submitted that the High Court committed an error in allowing
E the said writ petition as respondent no.1 was merely a
  temporary employee, and had joined another post under the
  alleged order of deputation, and had worked there for a period
  of 9-10 months. She could not join as a Project Director in the
  Society as she had no lien therein. She had also left the Society
F without obtaining any previous sanction from the appointing
  Authority, i.e., the District Collector. She had further, voluntarily
  abandoned the services of the Society on 29.7.2003 and
  thereafter, she filed the said writ petition on 26.5.2005, only
  challenging advertisement dated 16.5.2005. Hence, even
  though her services in the Panchayat & Rural Development
G Department were terminated on 29.3.2004, she approached
  the High Court only after lapse of a period of one year and two
  months. Thus, the High Court ought not to have entertained the
  writ petition at all. The appeal deserves to be allowed.

H         5. Per contra, Shri Niraj Sharma, learned counsel
  STATE OF MADHYA PRADESH v. KU. SANDHYA                      845
         TOMAR [DR. B.S. CHAUHAN, J.]
appearing for respondent no.1 has strived to defend the              A
impugned order passed by the High Court, contending that she
had been sent on deputation by the Government, and over this,
she had no control. Therefore, she had a right to join the said
Society. Thus, the appeal is liable to be dismissed.
                                                                     B
     6. We have considered the rival submissions made by
learned counsel for the parties and perused the record.

     7. Initial appointment of respondent no.1 was not made on
the basis of any advertisement in any newspaper whatsoever.
Hence, applications for the post were not invited. It is a settled   C
legal proposition that considering the candidature of persons
by mere calling of names from the Employment Exchange does
not meet the requirement of Articles 14 and 16 of the
Constitution of India. (Vide: Excise Superintendent
Malkapatnam, Krishna District, A.P., (1996) 6 SCC 216; Veer          D
Kunwar Singh University Ad Hoc Teachers Association & Ors.
v. Bihar State University (C.C.) SeNice Commission & Ors.,
(2009) 17 SCC 184; Union of India & Ors. v. Miss. Pritilata
Nanda, AIR 2010 SC 2821; and State of Orissa & Anr. V.
Mamata Mohanty, (2011) 3 SCC 436).                                   E

     Thus, in view of the above, we are of the considered
opinion that respondent no.1 was not appointed following the
procedure mandatorily required by law, and that such
appointment was admittedly in violation of Articles 14 and 16
of the Constitution of India, as several other eligible candidates   F
have been deprived of their right to be considered for the post.

     8. There can be no dispute with respect to the settled legal
proposition that in the event that a person is not appointed on
a regular basis, and if his service is not governed by any           G
Statutory Rules, he shall be bound by the terms and conditions
that have been incorporated in his appointment letter. (Vide:
State of Punjab & Ors. v. Surinder Kumar & Ors., AIR 1992
SC 1593). In such an eventuality, there can be no reason with
respect to why the terms and conditions incorporated in the          H
      846      SUPREME COURT REPORTS                 [2012] 11 S.C.R.


  A appointment letter should not be enforced against such an
    employee. In the instant case, respondent no.1 was
    temporarily appointed in a project and thus, she had at no
    point of time, been appointed on a regular basis, owing to
    which, she cannot claim any lien with respect to the said post.
  B
         9. "Lien" connotes the civil right of a Government servant
    to hold the post "to which he is appointed substantively." The
    necessary corollary to the aforesaid right, is that such
    appointment must be in accordance with law. A person can be
    said to have acquired lien as regards a particular post only
  C 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
  D 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
  E confirmed to the said post. (Vide: Parshotam Lal Dhingra v.
    Union of India, AIR 1958 SC 36; S. Pratap Singh v. State of
    Punjab, AIR 1964 SC 72; T.R. Sharma v. Prithvi Singh & Ors.,
    AIR 1976 SC 367; Ram/al Khurana v. State of Punjab & Ors.,
    AIR 1989 SC 1985; Triveni Shankar Saxena v. State of U.P.
    & Ors., AIR 1992 SC 496; Dr. S.K. Kacker v. All India Institute
  F of Medical Sciences & Ors., (1996) 10 SCC 734; S.
    Narayana Vs. Md. Ahmedulla Khan & Ors., AIR 2006 SC
,   2224; and State of Rajasthan & Anr. v. S.N. Tiwari & Ors., AIR
    2009 SC 2104).
  G        10. It is not the case of the learned counsel for respondent
      no.1 that she had any lien with respect to the post.
         Respondent no.1 voluntarily abandoned her job in the
    Society and joined another post, in another department on
  H 29.7.2003. Therefore, her temporary employment in the Society
  STATE OF MADHYA PRADESH v. KU. SANDHYA                   847
         TOMAR [DR. B.S. CHAUHAN, J.]
came to an end automatically. She had chosen better                A
employment under the Government of Madhya Pradesh, as
opposed to continuing her employment in the Society on a
project. Her employment in the Government of Madhya Pradesh
was terminated after serving therein for a period of eight
months, vide order dated 29.3.2004. In such a fact-situation,      B
the Society was not bound to permit respondent no.1 to join
the post of Project Director. As a consequence thereof, she has
no right to challenge the advertisement dated 16.5.2005. At the
most, if respondent no.1 was eligible for appointment as per
the said advertisement, she can apply for fresh appointment.       C
In case respondent no.1 felt that she had a right to join the
services of the Government of Madhya Pradesh and that her
service from there was wrongly terminated, she could have
challenged the said order dated 29.3.2004, which has in fact,
never been challenged by her, for reasons best known to her.       D

     11. In view of the above, the learned Single Judge, as well
as the Division Bench have misdirected themselves with
respect to the actual issues involved in the case, and have
decided the case upon totally irrelevant issues. The appeal
therefore, succeeds, and is allowed. The judgment and order        E
of the learned Single Judge, as well as that of the Division
Bench, are hereby set aside. No costs.

K.K.T.                                        Appeal allowed.