DR. S.K. KACKERversusALL INDIA INSTITUTE OF MEDICAL SCIENCES AND ORS.

A                                 DR. S.K. KACKER
                                           v.
           ALL INDIA INSTITUTE OF MEDICAL SCIENCES AND ORS.

                                SEPTEMBER 4, 1996

B                 [K. RAMASWAMY AND FAIZAN UDDIN, JJ.]

            'Service Law:

         Fundamental Rules-Rules 9(13), 9(30-A), 13(2), 14-A(a}-Lielt"'-All
C India Institute of Medical-Sciences-Professor & Head of the ENT Depart-
  ment~Selected as Directo1'-0n expiry of the tenns as Director whether could
  revert back to the post of Professor & Head of the ENT Department-Held :
  No, since he is independent of the tenure which he holds in any other post
  eitherpennanent or temporary-He cannot also hold two pennanent posts
D at the same<tim~Therefore he does not have the right to fall back upon the
  previous pennanent post held by him-Resolutions pennitting him to continue
  as Professor--Such resolutions which are inconsistent with the statutory rules
  have no rule to play nor do they have any legal efficacy-Such administrative
  instructions would only supplement the yawning gaps in the statutes but
  cannot supplement the law-Administrative Law.
E
            Request for retaining the bungalow allotted to him till his own house
     becomes vacant on 31..10.96-Tumed down since the present incumbent has
     to discharge his functions from his office-cum-residence-He may approach
     A/IMS which may consider allotment of alternative accommodation if avail-
     able.
F
             Dr. L.P. Agarwal v. Union of India & Ors., (1992] 3 SCC 526, referred
     to.     '
             I
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12078 of
(j   1996.                                                  ~

          From the Judgment and Order dated 19.7.96 of the Delhi High Court
     in C.W.P. No. 3865 of 1995.

          Arun Jaitley, Ms. lndu Malhotra and Ms. Kavita Wadia for the
H    Appellant.
                                    540
                        S.K KACKER v. Al.I.M.S.                       541

      D.D. Thakur, Ms. Mukta Gupta, Mukul Gupta, Wazir Singh and T.         A
 S~idharan for the Respondents.

      The following Order of the Court was delivered : .

      Leave granted.
                                                                            B
         While Dr. S.K. Kacker, an eminent professor in Otorphinolaryngol-
  ogy, 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 the 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 Director. He came to be appointed by the Institute   c
  Body with the concurrence of the Government of India. He assumed the
  office on October 11, 1990 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 D
  expiry of five years' tenure as Director, he would be entitled to go back as
  a Prj)fessor and Head of the ENT Department till he attains his superan-
  nuation 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 revert 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 F
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 super-
annuation? The main emphasis laid by Shri Jaitley is that the post of G
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
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 entitle to revert to the post of Professor as Head of the
Department in the ENT Department. In his absence, one Dr. R. Ghosh H
     542                  SUPREME COURT REPORTS (1996) SUPP. 5 S.C.R.

 A   was appointed as Professor and Head of the Department while the appel-
     lant 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 Regulations which envisages
     putting and end to the tenure post either by the Institute Body by giving
 B   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 Department.
 c
            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
 D   duties, that he was permitted to continue as Professor, but his primary
     appomtment was to the post of Director of the Institute and that, therefore,
     he could not continue as Professor after he assumed office as Direct9r, so
     as to get reverted to the post of Professor and Head of the ENT Depart-
     ment of the Institute on expiry of tenure in the post of Director. Mrs. Gupta
     further contended for the respondent-AIIMS that the Fundamental Rules
•E   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
     selection, he was appointed on probation for a period of one year and
     thereafter, he must be deemed to have been permanently appointed; on his
 F   appomtment on permanent basis as a Director, he ceased to bera 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 Depart-
     ment. In support thereof, she places strong reliances on the observations
     of this Court in Dr. L.P. Agarwal v. Union of India & Ors., [1992) 3 SCC
     526 para 16.
 G
          · 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
 H   ENT Department, was selected by the Selection Committee for appoint-




           I I
                        S.K KACKER v. Al.I.M.S.                        543

ment as Director of the AIIMS. It is also an admitted position that any A
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 per-
manent appointment. It is seen that the advertisement itself clearly indi-
                                                                              B
cated 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 pare_nt post? It is seen that C
the appellant came to be 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 D
cannot claim to retain his post in his original appointment; at the same
time, he can be a permanent Government servant in the Central Govern-
ment with the AIIMS. In this behalf, it is rel~vant to note few Fundamental
Rules. Rule 9(13) defines 'Lien' to mean the title of the 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, E
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.
                                                                             F
     ·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, Government of India Order (2) under Rule 13 prescribes the
procedure of retention of lien in parent Department in the case of Govern-
ment servants getting employed in other Departments. Clauses (2) (2)
thereof reads that "in the case of permanent government servants, their lien G
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/Of- H
        544                     SUPREME COURT REPORTS (1996) SUPP. 5 S.C.R.
/
    A· fices."
             Rule 14-A(a) which was heavily relied on by Shri Jaitley reads as
        under:
                                                                               I   .

                   "Except as provided in clauses (c) and (d) of th!~ rule and Rule
    B              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
    C post of Director is on temporary basis, the appellant cailnot be allowed to
        leave his lien in the permanent posf held as Professor and Head of the
        ENT Department. We do not find that his contention is justified. Here is
        a case where, when fhe 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.
    D   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) of F.R. 14-A is
        relevant; it reads as under :
    E              "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 of a State Government) outside the cadre on which
                   he is borne."

    F          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
        terminating 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
    G   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 fhe Institute Body. Therefore, on his appointment to the per-
        manent post as a Director, he lost his lien on the post as a Professor and
        Head.of the ENT Department. Resultantly, when fhe tenure of the appel-
    H   larit had expired on/by efflux of time or in case any of the eventualities
                         S.K KACKER v. Al.l.M.S.                          545

mentioned in Regulation 30-A had happened, he cannot revert to the post          A
of Professor and Head 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      B
he was compulsorily retired as a Professor, the question arose : whether
his tenure post as a Director has 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     C
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          D
Head of the ENT Department.

       Shri J aitley 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        E
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       F
are by their very nature administrative resolutions passed by the authorities.
When, admittedly, Dr. Kacker is a permanent Government servant
governed by the Fundainental Rules, he cannot hold two substantive posts
at the same time, namely the post of Professor and Head of the Depart-
ment and also the post of Director. In view of the findings recorded
hereinbefore, the appellant lost his lien in the post of Professor arid Head     G
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-      H
        546                   SUPREME COURT REPORTS (1996) SUPP. 5 S.C.R.

    A   serving one without legal back-up.

              Thus considered, we are of the view, though· for different reasons,
•       that the. High Court was right in holding that the appellant cannot revert
        as Professor and Head of the ENT Department, on his ceasing to be the
        Director·of AIIMS.
    B
              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
    C   tenant to give vacWil 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
    D   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
        provided alternative accommodation, if available. We hope and trust that
    E   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 accom-
        modation.

             Tile' appeal is accordingly dismissed, but, in the circumstances,
    F   without oosts

        G.N.                                                       Appeal dismissed.