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PETITIONER: DR. S.K. KACKER

       Vs.

RESPONDENT: ALL INDIA INSTITUTE OF MEDICAL SCIENCES& ORS.

DATE OF JUDGMENT:       04/09/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. FAIZAN UDDIN (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      While  mr.   S.N.  Kacker,   an  eminent  professor  in Otorphinolarynology, was  working as  professor and  Head of the   ENT    Department   in    the   respondent-AIIMS,   an advertisement had  come to  be made  on June  29,  1990  for appointment to  one post of Director of the AIIMS on regular basis. Pursuant thereto, he had applied for and was selected by the  Committee for appointment as a Professor. He came to be appointed  by the  Institute Body with the concurrence of the Government  of India.  He assured  the office on October 11, 1990 a for a period of five years; His tenure came to an end on  October 15,  1995. We  are not  concerned  with  the interlude of  his tenure  being not  extended as  an interim Director  pending   regular  selection.  The  question  that emerges for  consideration is:  whether on  expiry  of  five years’ tenure  as Director,  he would be entitled to go back as a  Professor and  Head of  the  ENT  Department  till  he attains his  superannuation on  July 31, 1998? When he filed writ petition  in the  High Court  seeking one  of the above reliefs, the  Division  Bench  of  the  High  Court  in  the impugned judgment  made on  July 19,  1996 in  Writ Petition No.3865/95  has   rejected  his   claim  holding   that   on appointment as  Director, he ceased to be a Professor and he could not revcrt to the ENT Department. Thus, this appeal by special leave.      Shri Arun Jaitley, learned senior counsel appearing for the appellant  has elaborately  argued the  case. Shri  D.D. Thakur, learned  senior counsel and Ms. Mukta Gupta, learned counsel for  the respondents  have resisted the contentions. The question  arises: whether the appellant on ceasing to be a Director  on and from October 15, 1995 could revert to and continue in the post of Professor of the ENT Department till he attains  the superannuation?  The main  emphasis laid  by Shri Jaitley is that the post of Director is not a permanent post. As  per Regulation 22 of the Regulations of the AIIMS, there are  only two  categories of  posts, namely, permanent

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post and  temporary post;  the  tenure  post  is  neither  a permanent post  nor a temporary post and that, therefore, on completion of  his tenure  as Director,  he is  entitled  to revert to the post of Professor as Head of the Department in the ENT  Department. In  his absence,  one Dr.R.  Ghosh  was appointed as  Professor and Head of the Department while the appellant retained his post as a Professor as disclosed from the Resolution  passed by the Governing Body and approved by the Institute Body. The appellant, therefore, had not ceased to be a Professor. In that behalf, he laid great emphasis on Regulation 30A of the Reculations which envisages putting an end to  the tenure  post either  by the  Institute  Body  by giving notice  of three  months or pay in lieu thereof or on the incumbent’s himself ceasing to be a Director voluntarily giving three  months’ notice.  It would, therefore, indicate that the  post of Director is not a permanent post. Thereby, the appellant  had not  lost his  lien  in  the  post  as  a professor and Head of the ENT Perartment.      Shri Thakur,  on the  other hand,  contended that  even assuming that  the appellant  was permitted to continue as a Professor and  Head of  the ENT  Department, it  is only  on account of the mutuality of the functioning of the two posts without there  being incompatibility  in  the  discharge  of duties, that  he was permitted to continue as Professor, but his primary  appointment was  to the post of Director of the Institute and  that, therefore,  he could  not  continue  as Professor after  he assumed office as Director, so as to get reverted to  the post  of Professor  and  Head  of  the  ENT Department of  the Institute on expiry of tenure in the post of  Director.   Mrs.  Gupta   further  contended   for   the respondent-AIIMS that  the Fundamental  Rules apply  to  the AIIMS; no permanent Government servant could continue on two permanent posts  simultaneously;  the  advertisement  itself indicated that  the post  of Director  is a  permanent post; though it is a tenure post on  selections he  was appointed  on  probation  for  a period of one year and thereafter, he must be deemed to have been permanently  appointed on  his appointment on permanent basis as a Director, he ceased to be a Professor and Head of the Department of the ENT Department and that, therefore, he cannot revert  to the  post of Professor and Head of the ENT Department. In  support thereof,  she places strong reliance on the  observations of  this Court  in Dr.L.P. vs. Union of India & Ors. [(1992) 3 SCC 526 para 16].      In view of the respective contentions, the question for consideration is:  whether the  view taken by the High Court is correct  in law?  It is not necessary to recapitulate the admitted facts  as  narrated  hereinbefore.  The  appellant, while working as Head of the Department and Professor of the ENT Department, was selected by the Selection Committee  for appointment as Director if the AIIMS. It is also an admitted position that  any Professor  in India  is entitled to apply for and  seek selection  to the  post of  Director. It  is a selection post  to be  filled by  competition  in  the  open market, Therefore, once a Director is selected and appointed with the  concurrence of  the Central Government, it becomes an independent  permanent appointment.  It is  seen that the advertisement itself  clearly indicated  that the  incumbent would be  on probation  for one year, It is also an admitted position that  the appointment  to the post of Director is a tenure post  for a  period of  five years.  Thus,  it  is  a permanent post.      The question,  therefore, is: whether, on completion of the period  of five years, the incumbent would revert to his parent post?  It is  seen that  the  appellant  came  to  be

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selected while  he was  working in the post of Professor and Head of  the ENT Department. Take for instance, a doctor who is selected  from outside the Institute from anywhere in the country; on  his appointment,  unless he is permitted by his appointing authority  to go  on tenure basis with a right to revert to  the parent  department, he cannot claim to retain his post  in his  original appointment: at the same time, he can  be  a  permanent  Government  servant  in  the  Central Government with the AIIMS. In this behalf, it is relevant to note few  Fundamental Rules.  Rule 9(13)  defineg ’Lien’  to mean  the   title  of   a   Government   servant   to   hold substantively, either immediately or on the termination of a period or  periods of absence, a permanent post, including a tenure post,  to which  he has been appointed substantively. Therefore,   if    a   Government   servant   is   appointed substantively to  a permanent  post or  a  tenure  post,  he becomes Government servant for the purposes of his tenure in that post.  Consequently, he  is entitled to retain the lien on that post.      Rule 9 (30A) defines ’Tenure Post’, to mean a permanent post which an individual Government servant may not hold for more than  a  limited  period.  Rule  13(2)  prescribes  the procedure of  retention of  lien in parent Department in the case  of  Government  servants  getting  employed  in  other Departments. Clause  [2] (2) thereof reads that "in the case of permanent government servants, their lien may be retained in the  parent Department/Office  for a period of two years. They should  either revert to the parent Department/Office within that  period or  resign from  the parent  Department/ Office at the end of that period. An undertaking to abide by these conditions  may be  taken from  them at  the  time  of forwarding the applications to other Departments/Offices."      Rule  14-A(a)   which  was  heavily      relied on  by Shri Jaitely reads as      under:-      "Except as  provided in clauses (c)      and (d) of this rule and Rule 97, a      Government servant’s lien on a post      may,  in   no   circumstances,   be      terminated even  with his  consent,      if the  result will be to leave him      without a  lien or a suspended lien      upon a permanent post."      The contention  of  Shri  Jaitley  is  that  since  the appointment to  the post  of Director is on temporary basis, the appellant  cannot be  allowed to  leave his  lien in the permanent post  held  as  Professor  and  Head  of  the  ENT Department. We do not find that his contention is justified. Here is  a case where, when the Government servant is either on deputation or on leave or on any other assignment, during the absence of his service on the post, he cannot be allowed to leave  without lien  upon  the  permanent  post.  On  his appointment as  Director which  is a  permanent post  and  a tenure post,  he cannot  continue to  hold his  parent post, namely, he  cannot hold  two posts, viz. of Director as well as  of   Professor  and   Head  of   the   ENT   Department, simultaneously. In this behalf, clause (d) 4 of F R. 14-A is relevant; it reads as under:      "A Government  servant’s lien  on a      post shall  stand terminated on his      acquiring a  lien on  a parent post      (whether    under    the    Central      Government or  a State  Government)      outside the  cadre on  which he  is      borne."

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    It would  indicate that  on appointment  to a permanent post, be  it under  the  Central  Government  or  the  State Government, outside the cadre on which he is borne, his lien on the  previous permanent  post stands  terminated  on  his acquiring a lien in a permanent post The post of Director is not in the same cadre as the post of Professor in the AIIMS. The post  of Director  is the  Head of  the AIIMS  and it is independent of all the Departments. The Director is enjoined to supervise  not only the administrative work of the AIIMS, but also  its management  for and on behalf of the Institute Body. Therefore, on his appointment to the permanent post as a Director,  he lost his lien on the post as a Professor and Head of  the ENT Department. Resultantly, when the tenure of the appellant  had expired  on/by efflux  of time or in case any of  the eventualities  mentioned in  Regulation 30-A had happened, he  cannot revert  to the post of Professor and of the Department.      In Dr.L.P.  Agarwal’s case (supra), it is seen from the facts that Dr.Agarwal came to be appointed as a Professor of Ophthalmology and  the Director  of the  Institute. It was a composite appointment.  Thereafter, when he was compulsorily retired as  a Professor,  the question  arose:  whether  his tenure Post as a Director had also automatically come to a terminus? In  that behalf,  this Court  had  considered  the question and  had  held  in  paragraph  16  thus:  "Even  an outsider (not an existing employee of AIIMS) can be selected and appointed  to the  post of  Director. Can such person be retired pre-maturely  curtailing his  tenure of  five years? Obviously not."  It would  thus be  clear that  an incumbent appointed to  the  post  of  Director  is  governed  by  the Fundamental Rules  and he is independent of the tenure which he holds  in any other post either on permanent or temporary basis. Accordingly, on his ceasing to be a Director, he does not have  the right to fall back upon the previous permanent post  held   by  him  as  Professor  and  Head  of  the  ENT Department.      Shri Jaitley  placed strong reliance on the resolutions passed by  the Governing Council permitting the appellant to continue  as  Professor  and  Head  of  the  Department  and approval thereof  by  the  Institute  Body.  That  was  also reflected in  the counter-affidavit  filed by  the Union  of India indicating  that his superannuation as Professor is on July 31,  1998. That  would mean  that  he  was  allowed  to continue as  a Professor and that, therefore, he is entitled to revert  as Professor  and Head  of the  Department. It is true that such resolutions came to be passed. The question, however, is:  whether such resolutions have statutory basis? They are  by their  very nature  administrative  resolutions passed by  the authorities  When, admittedly, Dr.Kacker is a permanent Government  servant governed  by  the  Fundamental Rules, he  cannot hold  two substantive  posts at  the  same time,  namely,  the  post  of  Professor  and  Head  of  the Department and  also the  post of  Director. In  view of the findings recorded  hereinbefore, the appellant lost his lien in the  post of  Professor and Head of the ENT Department on his  substantive   appointment  to  the  post  of  Director. Therefore, such  resolutions which are inconsistent with the statutory rules  have no  role to  play nor do they have any legal efficacy.  The administrative  instructions would only supplement the  yawning gaps  in  the  statutes  but  cannot supplant the  law. The  resolution is,  therefore,  a  self- serving one without legal back-up.      Thus  considered,  we  are  of  the  view,  though  for diffarent reasons,  that the High Court was right in holding that the  appellant cannot  revert as  Professor and Head of

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the ENT  Department, on  his ceasing  to be  the Director of AIIMS.      Shri  Jaitley  has  stated  that  consequent  upon  the disposal of  this case,  the appellant is required to vacate the bungalow  in his occupation which continues to be in his possession pursuant  to the interim direction granted by the High  Court.  He  states  that  the  appellant  has  already requested his  tenant  to  give  vacant  possession  of  his personal house  and the  tenant has  written that  he  would vacate by  October 31,  1996. Therefore,  he requests that a direction may  be given to AIIMS to allow him to continue to be in possession of the bungalow till October 31, 1996. Shri Thakur has, however stated that on the instructions obtained from the  Government, he  had persuaded  the  Department  to allow  the   appellant  to   continue  but  he  has  already overstayed  in  the  premises.  Since  a  new  incumbent  is appointed, he  has to  take possession  of  the  office-cum- residence for  the discharge  of  his  duties  as  Director. Therefore, it  would be  difficult to  allow him  to  retain premises in his occupation, but he would try to persuade the AIIMS to provide alternative accommodation, if available. We hope and  trust that AIIMS would consider in all earnestness the  request   of  the  appellant  to  give  him  any  other accommodation in  the premises  till October,  31,  1996  on which date he has undertaken to vacate even that alternative accommodation.      The  appeal  is  accordingly  dismissed,  but,  in  the circumstances, without costs.