SUPREME COURT OF INDIA
S. Narayana
Vs
Md. Ahmedulla Khan and Others
Civil Appeal No. 213 of 2003
(B. N. Srikrishna and L. S. Panta, JJ)
08.05.2006
B. N. SRIKRISHNA, J.
1. The appellant was initially appointed as a Lower Division Clerk through
District Selection Committee on 6-11-1968 in the office of the District
Panchayat. He was promoted as Upper Division Clerk (re-designated as Senior
Assistant) with effect from 12-10-1970. The services of the appellant in the
said category were regularized with effect from the same day. By an order
issued in 12-5-1986, under Rule 10(a)(i) of the State and Subordinate Services
Rules, the appellant and certain other employees came to be appointed as
"Extension Officers (Pts.)" in the Andhra Pradesh Panchayat Raj
(Executive Subordinate) Service. The appellant was allotted 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
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".
2. By an order dated 24-9-1988, the services of the appellant were regularised
in the category of Senior Assistant with effect from 12-10-1970. On 12-11-1991,
the appellant made a representation to the Commissioner of Panchayat 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 his colleagues on "other duty" had been included in the
seniority list of Senior Assistants in the District Panchayat Office. He
requested that his name also be included in the seniority list of Senior
Assistants in the office of District Panchayat Office and Divisional Panchayat
Officer. 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 Officers in which the
appellant's name was shown at Serial No. 35 and the date of his regularisation
was shown as 4-6-1986. Some employees raised objections to 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. In this 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. 10, below the
appellant.
3. 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 date of his
regularisation 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 6-9-1994, the District Collector issued a notice to the
appellant for termination 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 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 had been promoted in the parent department.
4. 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
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."
5. 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 representation dated 12-11-1991 and
7-11-1994 were disposed of. He also sought a declaration that the attempt 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
O.A.No.2115/95 with M.A.No.2045 made the interim order dated 9-5-1995 absolute
and accordingly disposed of the case.
6. On 20-12-1995, the District Collector, Medak passed an order
(Procs.No.392/94-81(Pts.)) terminating the lien of the appellant, which is as
follows:
"By virtue of holding a permanent post on his substantive appointment to
the post of Extension Officer (Pts.) Sri S. Narayana, has acquired 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 attached in the case which reads as follows:
F.R.14(A')sub-ruled')
"A Government servants lien on a post shall stand terminated on his
acquiring a lien on a permanent 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 lien of Sri
S. Narayana, Extension Officer (Pts) Banswada in his former post of Senior
Assistant in the Unit of Collector (P.W.) Shall (sic) stands terminated with
immediate effect."
On 5-1-1996, the State Government through a memorandum, directed the
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.
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.
7. By order made on 7-3-1996, the State Government set aside the order dated
20-12-1995 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.
8. 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
Government Memorandum dated 5-1-1996 and 7-3-1996 within a period of three
months. On 28-10-1996, 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 informed in the said order that the promotion
had been ordered on a "purely temporary basis" and that he was liable
"...to be reverted to the substantive post (Senior Assistant) at any time
without assigning any reasons."
9. On 15-11-1996, the appellant submitted a representation requesting that his
seniority in the category of Superintendent be fixed on par with one 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 one P.V. Govind Swamy, one K. Gopal Reddy and
the first respondent Md. Ahmedulla Khan, who were all working 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 Superintendent.
10. 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 22-4-1999, written by the Commissioner, PRRD to the
Secretary of the State Government, it was indicated that the name of the
appellant was shown at Serial No.l in the category of Superintendents.
11.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 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
3-5-1999, 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 vacancies without any further delay.
12. On 3-11-1999, the first respondent filed an O.A.No.6629/1999 before 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, there 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
16-11-1999 suspending the order of the Commissioner, Panchayat 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.
13. The first respondent challenged the order of the Tribunal before the 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 O.A.No.6692/1999 filed by the first respondent. Aggrieved thereby,
the appellant is before us.
14. The learned counsel for the appellant criticized 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 18):
"In the case on hand, the case is still worse to (sic) the 4th respondent.
Not only (sic-was) the 4lh respondent was (sic) 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 in
service jurisprudence and that regularisation did not ipso facto result in
confirmation in any post.
15. Counsel drew our attention to the judgment of this Court in B.N.Nagarajan
v. State of Karnataka 1979 (4) SCG 507 (hereinafter
"Nagarajan"). This Court in 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 at p. 132] and R.N. Nanjundappa v. T. Thimmiah at p.
810], this Court in Nagarajan, observed:
"Firstly, the words "regular" c "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. They cannot be construed
so as to convey an idea of the nature of tenure of the appointments."[
at p. 514 (paragraph 23)]
It was also observed: ".. .when rules framed under Article 309 of the
Constitution of India are in force, no regularisation is permissible in
exercise of the executive powers of the Government under Art. 162 thereof in
contravention of the rules"[ Ibid at p. 514 (paragraph 25).]. 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. Umadevi 2006 (4)
SCC 1 = . 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 an cannot be construed so as to convey an idea of the nature
of tenure of appointments. They are terms calculated to condone any 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 of India are in force,
no regularisation is permissible in exercise of the executive powers of the
Government under Article 162 of the Constitution in contravention of the rules.
These decisions and the principles organised therein have not been dissented 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 with one of the elements in the process of
selection which does not go to the root of the process, can be regularised and
that it alone can be regularised and granting permanence of employment is a
totally different concept and cannot be equated with regularisation."[
Ibid, at pp. 24-25 (paragraph 16)]
17. 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 in our
view, that there was nothing like lien on a post, unless a person was made
permanent in a post. Strong reliance was placed on the observations of this
Court of 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 confirmed and
made permanent on that post and not earlier"[ Ibid, at p. 531 (paragraph
24) quoting from: M.P. Tewariv. Union of India, 1974 AllLJ 427.], with
which view, we are in agreement.
18.Failing upon the aforesaid decisions of law, learned counsel for the
appellant contended that the appellant had never been confirmed in any
permanent post and as such, it could not be said that he had a lien, which was
capable of being terminated. 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 services of Sri S. Narayana as approved probationer in the
category of Senior Assistant are confirmed 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.''
(Emphasis in the original)
The counsel contended that this order in no uncertain terms made it clear 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
terminate the non-existing lien of the appellant. He, therefore, submitted 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 16-12-2001.
19. For the first respondent, however, it is contended that regularization 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
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 to the
appeal
20 In the circumstanceS5 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 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
J