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                   REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

    Civil Appeal No.9028 of 2012 (Arising out of SLP (C) No. 18983 of 2009)

State of Madhya Pradesh & Ors. … Appellants

Vs.

Ku. Sandhya Tomar & Anr. … Respondents

J U D G M E N T  

Dr. B.S. Chauhan, J.

1. Leave granted.

2. This appeal has been preferred against the judgment 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  advertisement  dated  16.5.2005,  

inviting  the  applications  for  appointment  on  the  post  of  Project  

Director.

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

A. That  the  Central  Government  introduced  a  scheme  for  

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  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  

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.   

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  was  repatriated  vide  order  

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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,  

claiming her right 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  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 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 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  

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challenging advertisement dated 16.5.2005.  Hence, even though her  

services  in  the  Panchayat  & Rural  Development  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.

5. Per contra,  Shri  Niraj  Sharma, learned counsel  appearing for  

respondent no.1 has strived to defend the 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.

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  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:  

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Excise  Superintendent  Malkapatnam,  Krishna  District,  A.P.,  

(1996)  6  SCC  216;   Veer  Kunwar  Singh  University  Ad  Hoc  

Teachers  Association  &  Ors.  v.  Bihar  State  University  (C.C.)  

Service 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).

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 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 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  appointment  letter  should  not  be  

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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.

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  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.  

(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; Ramlal 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  

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v. All India Institute 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).  

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  29.7.2003.  

Therefore, her temporary employment in the Society came to an end  

automatically.   She  had  chosen  better  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, 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.   In  case  

respondent no.1 felt  that she had a right to join the services of the  

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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.

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 of the learned Single Judge, as well as that of the  

Division Bench, are hereby set aside. No costs.

…………………………..………………………J.           (Dr. B.S. CHAUHAN)

…..…………………….….………………………J.        (FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,  December 13, 2012

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