L.R. PATILversusGULBARGA UNIVERSITY, GULBARGA

                  [2023] 12 S.C.R. 104 : 2023 INSC 796



                             CASE DETAILS

                                L.R. PATIL
                                      v.
              GULBARGA UNIVERSITY, GULBARGA
                     (Civil Appeal No. 3254 of 2013)
                          SEPTEMBER 04, 2023
     [J. K. MAHESHWARI AND K. V. VISWANATHAN, JJ.]
                              HEADNOTES
      Issues for consideration: Whether the order passed by the Respondent-
University pursuant to r.252(b), Karnataka Civil Service Rules, relieving
the appellant to accept another appointment ought to be treated as an order
accepting resignation; and further on facts, whether on joining the new
post, the appellant’s lien on the previous post will be maintained until he is
permanently absorbed in the new department in which he is subsequently
appointed; and lastly is the appellant entitled to the relief prayed.
      Service Law – Karnataka Civil Service Rules – r.252(b), r.20, Note
4 – Lien of a government servant on the previous post, when ceases to
exist:
      Held: ‘Lien’ of a government servant only ceases to exist when he/
she is appointed on another post ‘substantively’/confirmed or absorbed
permanently – Otherwise, his/her lien would continue on the previous post
– In the instant case, lien of the appellant on the previous post of ‘Office
Superintendent’ is squarely protected and his lien shall be continued u/r.20,
Note 4 as he was never appointed substantively on the new post of ‘Assistant
Registrar’ and was continued temporarily on the said post subject to the
outcome of the pending litigation challenging his appointment – This fact
also finds support from the Preamble of the Resolution of the University
dated 23.12.2000 – Further, the appointment of appellant to the new post
was subject to probation of two years and due to pending litigation, he was
continued on a temporary basis despite completion of two years – Further,
in terms of r.252(b) relieving order cannot be treated as resignation – Thus,
the finding recorded by the Writ Appellate Court not sustainable – Appellant
                                     104
      L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA 105


entitled to all the service benefits including seniority, consequential
promotions and pensionary benefits at par with his juniors, though notionally,
since he superannuated on 30.06.2007 and has not worked on the promoted
post – Impugned order set aside – Order passed by Single Judge restored
subject to modifications. [Paras 17, 18, 20 and 22]
     Karnataka Civil Service Rules – r.20, Note 4 – Intention of:
      Held: As per r.20, Note 4, if a government servant seeks employment
in another unit or department or in another cadre or grade in the same
department under the Rules, his/her lien on the original appointment shall
be continued to be maintained until absorbed in the department or cadre in
which he/she is newly appointed. In case the employee is absorbed, he/she
shall be entitled to the benefit of the past service for the purpose of leave
and pension – Intention of the said rule is to protect the past service of the
government servant in cases where the government servant is not confirmed
or absorbed substantively on the new post on account of his/her failure to
satisfactorily complete the probation period or for any other reason. [Paras
14 and 19]
     Words and Phrases – ‘Lien’ – Discussed – Service Law.

       LIST OF CITATIONS AND OTHER REFERENCES

      Sitikanatha Mishra v. Union of India and Others, (2015) 3 SCC 670
: [2015] 1 SCR 16; Ramlal Khurana (Dead) by Lrs. v. State of Punjab &
Others, (1989) 4 SCC 99 : [1989] 3 SCR 680; Triveni Shankar Saxena v.
State of U.P. and Others, (1992) 1 Supp SCC 524 : [1991] 3 Suppl. SCR
534; State of Rajasthan and Another v. S.N. Tiwari and Others, (2009) 4 SCC
700 : [2009] 4 SCR 448; State of Madhya Pradesh and Others v. Sandhya
Tomar and Another, (2013) 11 SCC 357 : [2012] 11 SCR 839 – relied on.
    Sanjay Gandhi Institute of Trauma & Orthopaedics v. State of
Karnataka and Others, Writ Appeal No. 596 of 2020 (S-RES) – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3254 of 2013.
    From the Judgment and Order dated 23.10.2009 of the High Court of
Karnataka at Bangalore in WA No.10003 of 2009.
106           SUPREME COURT REPORTS                        [2023] 12 S.C.R.


      Appearances:
      Ms. Hetu Arora Sethi, Arjun Basra, Advs. for the Appellant.
     Sharanagouda Patil, Mrs. Supreeta Patil, Shubham Kunte for M/s.
S-legal Associates, Advs. for the Respondent.
        JUDGMENT / ORDER OF THE SUPREME COURT
                                JUDGMENT
      J. K. MAHESHWARI, J.
      1. The appellant assails the tenability and validity of the judgment
dated 23.10.2009 of the Division Bench of the High Court of Karnataka,
Circuit Bench at Gulbarga passed in W.A. No. 10003 of 2009, by which the
order passed by learned Single Judge on 27.08.2008 in W.P. No. 4066 of 2006
allowing the petition holding that the appellant had lien over his previous
post and directing respondent-University to pay service and pensionary
benefits, was set-aside.
     2. In the present case, the short questions of law which fall for
consideration are –
      (i)    Whether the order dated 08.04.1993 passed by the Respondent-
             Gulbarga University pursuant to Rule 252(b) of Karnataka Civil
             Service Rules (for short “KCS Rules”), ‘relieving’ the appellant
             to accept another appointment as ‘Assistant Registrar’ ought to
             be treated as an order accepting ‘resignation’, to take up the
             post on new assignment?
      (ii)   Whether in the facts of the case, on joining the new post,
             the appellant’s lien on the original/previous post will be
             continued to be maintained, until he is permanently absorbed
             in the new department or cadre in which he is subsequently
             appointed?
      (iii) Whether in the facts and circumstances of the case, the relief as
            prayed by the appellant in the writ petition to consider him for
            appointment on the post of Assistant Registrar in the previous/
            original cadre at par with his juniors and consequential benefits
            on retirement can be allowed? If yes, to what extent?
      L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA 107
                     [J. K. MAHESHWARI, J.]

      3. The undisputed facts are that, appellant was appointed on 10.08.1972
as Junior Assistant in Bangalore University. Later, he was transferred to
Gulbarga University on 21.07.1981 and promoted to the post of ‘Assistant
Office Superintendent’. Eventually, vide office order dated 07.08.1987,
appellant along with one ‘Sri. A. Raghavendra’ and other serving Assistant
Office Superintendents, were promoted to the post of ‘Office Superintendent’
with immediate effect subject to satisfactory completion of probation
period of 1 year. The University by office order dated 10.07.1990 declared
that appellant had completed his probation ‘satisfactorily’ on 08.08.1988.
In terms of the said declaration, the appellant was w.e.f. 07.08.1987,
substantively appointed to the post of ‘Office Superintendent’.
       4. Subsequently, in 1993, the University invited applications for
appointment to the post of ‘Assistant Registrar’ via direct recruitment. The
appellant applied for the said post and was selected. As per the terms of the
appointment, the appellant had to serve as a probationer for a period of two
years, before he could be confirmed on the said post. On his appointment,
respondent-University vide office order dated 08.04.1993 relieved the
appellant from the post of Office Superintendent w.e.f. 04.02.1993, and
duly recorded that he is being relieved to accept the another appointment as
‘Assistant Registrar’ in the Gulbarga University. The order further recorded
that its contents shall be noted in the service book. The relevant extracts of
the aforesaid office order dated 08.04.1993 is being reproduced for ready
reference as under –
     “No. GUG/ADM-1/92-93/273                               Dated:- 8/4/1993
                                     ORDER
     In pursuance with the Rule 252(b) of KSCR’s read with O.A. No. FD
263 SRS 71 dated 22.1.1972, Sri. L.R. Patil, Office Suptd. & P.S. to Vice-
Chancellor, Gulbarga University, Gulbarga has been relieved from the duties
on 4th Feb,’93 to accept another appointment as Assistant Registrar in G.U.
Gulbarga Vide T.O. Notification No. referred to above (1).
       Further, the contents of this order shall be noted in the Service Book
concerned.
                                                              REGISTRAR”
108          SUPREME COURT REPORTS                          [2023] 12 S.C.R.


      Pursuant thereto, the appellant joined on the post of Assistant Registrar
in the respondent-University.
      5. Meanwhile, Mr. A. Raghavendra, filed Writ Petition No. 5364
of 1993 and challenged the appellant’s appointment on the ground of
discrimination and arbitrariness. During pendency of the said writ petition,
the respondent-University vide order dated 03.02.1996, promoted ‘Sri. A.
Raghavendra’ and ‘Sri Shankar Rao Kamble’ looking to their seniority
and posted them as Assistant Registrar, Examination Branch and Assistant
Registrar, Administrative Branch respectively. It is pertinent to mention here
that, on account of the pendency of aforesaid writ petition, the appellant
continued on probation on the post of Assistant Registrar. Thereafter, the
High Court vide order dated 24.06.1998 allowed Writ Petition No. 5364 of
1993 and quashed the appointment of the appellant for reasons recorded
in the order. Aggrieved, the appellant and the respondent-University
filed separate Writ Appeals bearing Nos. 3261 of 1998 and 3246 of 1998
respectively, which came to be dismissed on 29.09.2000. However, the
Division Bench pending the admission of writ appeals, stayed the operation
of the order dated 24.06.1998 passed in Writ Petition No. 5364 of 1993.
     6. Pursuant to the dismissal of the writ appeals, the respondent-
University in compliance of the orders, withdrew the appointment of
the appellant as Assistant Registrar vide office order dated 23.12.2000
(hereinafter referred to as “Resolution”) and retained/placed him back in
his previous post of ‘Office Superintendent’ with immediate effect. The
relevant portion of the Resolution is reproduced as thus:
                                “PREAMBLE
                                    xxxx
            The above matter was placed before the Syndicate meeting held
      on 14.7.1998 and it was decided to prefer W.A. before the Division
      Bench of the Hon’ble High Court of Karnataka. Accordingly, the
      University filed W.A. No. 3246/98 in the High Court in Addition to the
      W.A. No. 3261/98 filed by Sri L.R. Patil praying to set aside the order
      dated 24.6.1998 passed in W.P. 5364/93. The High Court passed an
      Interim Order that the operation of the earlier order dated 24.6.1998
      passed in W.P. No. 5364/1993 was stayed pending admission of W.A.
      L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA 109
                     [J. K. MAHESHWARI, J.]

            The Division Bench of the Hon’ble Court of Karnataka has held
     in its order dated 29th Sept. 2000 in both the W.A.s that the learned
     Single Judge was right in quashing the order of appointment dated
     4.2.1993 in respondent (sic) of Sri L.R. Patil as Assist. Registrar in
     Gulbarga University, Gulbarga. There is neither irregularity nor
     illegality in the order of the learned Single Judge. The above appeals
     were dismissed by the High Court.
          It is observed that Sri L.R. Patil, has not maintained the lien
     on his previous post, i.e., Office Superintendent with the approval of
     competent authority as required under General Rules 17 of K.C.S.Rs.”
      7. In furtherance to the above said Resolution, the appellant was
retained in the previous post of Office Superintendent with immediate effect
and his fixation in the pay-scale was made accordingly. Soon thereafter, on
joining, the appellant submitted a representation dated 16.01.2001 to the
University and sought ‘re-fixation of his seniority’ in the cadre of Office
Superintendent and further requested for promotion on the vacant post of
Assistant Registrar at par with his two juniors namely ‘Sri. A. Raghavendra’
and ‘Sri. Shankar Rao Kamble’ who were promoted to the post of Assistant
Registrar by the respondent-University. On getting no response from
respondent-University, the appellant sent reminder letters dated 27.03.2001
and 20.04.2001, however, neither any reply was given to appellant, nor any
action was taken by respondent-University.
      8. Aggrieved by the indolence on the part of the respondent-University,
the appellant filed Writ Petition No. 22838 of 2001, which was disposed of on
21.03.2005 with a direction to the University to consider the representations/
reminders of appellant and pass appropriate orders in accordance with law
within a period of four months affording due opportunity of hearing to
the appellant and other affected employees. In compliance, respondent-
University considered the case of appellant and rejected his representation
on 08.02.2006. In the meantime, the appellant superannuated on 30.06.2007
from the post of ‘Office Superintendent’.
      9. Being aggrieved, the appellant filed Writ Petition No. 4066 of 2006
challenging the rejection order dated 08.02.2006 and prayed for restoration
of his seniority in the cadre of ‘Office Superintendent’ from the date of his
original appointment. The appellant also prayed for consideration of his
110          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


case for promotion at par with his juniors w.e.f. 03.02.1996, i.e., the date
when they were promoted to the post of Assistant Registrar.
      10. The learned Single Judge vide order dated 27.08.2008 allowed
the writ petition and relying on the Resolution dated 23.12.2000 observed
that the services of the appellant did not get severed since he was retained
to the original post and maintained the lien in terms of the Rule 20 Note-4
of KCS Rules. In other words, the learned Single Judge was of the opinion
that there was continuation of service on the previous post as per said Rule,
which states that if a government servant has secured employment in the
same or other Department and is subsequently relieved from the previous
post to join the new post, his lien on the previous/original appointment
shall be continued to be maintained till he is ‘permanently absorbed’ in the
Department or cadre in which he is newly appointed. However, regarding
promotion, it was observed by the Single Bench that since the appellant
has already superannuated from service, he may not derive the benefits of
promotion at par with juniors but would be eligible for monetary benefits
including pensionary and service benefits.
      11. Challenging the said order dated 27.08.2008, respondent-University
filed Writ Appeal No. 10003 of 2009 and contended that the appellant did
not have a lien over the post of Office Superintendent and ceased to have
any association on the earlier post w.e.f. 04.02.1993 except to the extent of
leave and pension. The writ appeal vide impugned order was allowed setting
aside the order dated 27.08.2008 passed by learned Single Judge dismissing
the Writ Petition No. 4066 of 2006.
      12. Learned counsel appearing for the appellant submits that in
furtherance to the Office order dated 08.04.1993, the past service of the
appellant was protected for pensionary and monetary benefits, retaining his
lien on the previous post and noted to record the said contents in his service
book in terms of the Rule 252(b) of KCS Rules and Office Memorandum
dated 22.01.1972. It is further contended that Rule 20 Note 4 of the KCS
Rules protects the lien of the appellant until he is permanently absorbed on
the new post. On account of pending litigation, the appellant continued to
be on probation throughout and he was never confirmed substantively on
the post of Assistant Registrar. Ultimately, his appointment was quashed
by the High Court, whereafter, he was retained on his previous post of his
      L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA                           111
                     [J. K. MAHESHWARI, J.]

Office Superintendent. However, it is urged that on his retention to the
previous post, his past service cannot be washed away and his lien cannot
be negated during the vulnerable period in which he was on probation in
the new appointment. In support of the said contention, the contents of the
Resolution dated 23.12.2000 re-appointing him as Office Superintendent
was relied upon. In support his submissions, counsel for the appellant placed
reliance on the judgment dated 25.02.2021 passed by Division Bench of
High Court of Karnataka at Bengaluru in Writ Appeal No. 596 of 2020
(S-RES) titled “Sanjay Gandhi Institute of Trauma & Orthopaedics Vs.
State of Karnataka and Others” and “Sitikanatha Mishra Vs. Union of
India and Others, (2015) 3 SCC 670”.
     13. Per contra, learned counsel representing respondent-Gulbarga
University has submitted that the appellant tendered his resignation from
the post of Office Superintendent to join as ‘Assistant Registrar’ and in
pursuance of the same, he was relieved from his duties. Therefore, in terms
of Rule 252(b) of KCS Rules, it is to be treated as ‘resignation’ from previous
employment. It is further submitted that, in absence of any representation
made by the appellant seeking preservation/maintenance of his lien on the
previous post during the pendency of litigation, he lost his right of lien and
claim of seniority. Therefore, rejection of his representation by respondent-
University on 08.02.2006 was in accordance with law and has been rightly
upheld by impugned judgment while setting aside the order of the learned
Single Judge.
     14. Having heard learned counsel for the parties and considering
the nature of issues involved, we deem it appropriate to deal with the
questions as framed simultaneously. As the order dated 08.04.1993
relieving the appellant from the duties of Office Superintendent
was passed in pursuance to Rule 252(b) of KCS Rules and Offi ce
Memorandum dated 22.01.1972, therefore, at the very outset, it is
necessary to refer the said Rule and Office Memorandum which are
reproduced as thus for ready reference –
     “Rule 252(b) – Registration (sic ) of an appointment to take up,
     with proper permission, another appointment, whether permanent or
     temporary, service in which counts in full or in part, is not a resignation
     of public service.”
112          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


      “Office Memorandum No. FD 262 SRS 71 dated 22.1.1972
      Under Rule 252(b) of KCSRs, resignation of an appointment to take
      up with proper permission another appointment, whether permanent
      or temporary service in which counts in full or part, is not resignation
      from public service. A question has been raised whether in such cases
      a separate sanction should be issued indicating that the resignation
      has been accepted under the above provision, in order to enable the
      audit/Administrative Officer to regulate the consequential benefits in
      the matter of pay fixation, carry forward of leave, pension etc. The
      matter has been considered and it has been decided that in cases of
      the above type the order accepting the resignation should clearly
      indicate that the employee is resigning to join another appointment
      with proper permission and that the benefits under Rule 252(b) ibid
      will be admissible to him. The contents of the above order should
      also be noted in the Service Book of individuals concerned under
      proper attestation. The issue of any separate sanction is considered
      not necessary.”
     At this juncture, reference to Rule 20 Note 4 of KCS Rules is also
relevant and same is reproduced as under –
      “Rule 20 Note 4 – When a Government servant who has secured
      employment in one Department of Government under the rules of
      recruitment, seeks employment on his own accord in another unit or
      Department or in another cadre or grade in the same Department,
      his lien on the original appointment shall be continued to be
      maintained provided he has already been confirmed in the post till he
      is permanently absorbed in the Department or cadre in which he is
      newly appointed and he shall be given the benefit of the past service
      for purposes of leave and pension. If, however, he is temporary in the
      first appointment, he will cease to have any connection with his old
      appointment but he shall be given only the benefit of the past service
      for leave and pension.”
      On perusal of the aforesaid Rule, it is clear that if a government
servant seeks employment in another unit or department or in another
cadre or grade in the same department under the Rules, his/her lien on the
original appointment shall be continued to be maintained until absorbed
      L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA 113
                     [J. K. MAHESHWARI, J.]

in the department or cadre in which he/she is newly appointed. In case the
employee is absorbed, he/she shall be entitled to the benefit of the past
service for the purpose of leave and pension.
      15. Coming to the facts in the present case, the appellant vide order
dated 08.04.1993 was appointed by the respondent-University as Assistant
Registrar and the said fact was duly noted in his service book. His
appointment was successfully challenged and resultantly it was quashed
by the High Court. Appeals against the said order were dismissed. In view
of dismissal of appeals, the respondent-University vide Resolution dated
23.12.2000 resolved to retain the appellant back on his previous post i.e.,
‘Office Superintendent’. In this context, the ‘Preamble’ of the Resolution
reveals that the appellant was relieved to take up the new appointment on
permanent post with ‘formal permission’ from the competent authority to
avail the benefit of past service for the purpose of pension and leave as
contemplated under Rule 252(b) KCS Rules. It is also subsequently noted in
the Resolution that during the pendency of appeal against the order quashing
the appellant’s appointment, the Division Bench of the High Court passed
an interim order and stayed the operation of the order of learned Single
Judge quashing the appointment pending admission of appeal. In the said
perspective, it is apparent that, subject to pending litigation assailing the
appellant’s appointment as Assistant Registrar, he throughout continued to be
on the post of Assistant Registrar as probationer and was never confirmed or
was permanently absorbed on the said post. Be that as it may, if the appellant
was never permanently absorbed or confirmed on the post of ‘Assistant
Registrar’, then as per mandate of Rule 20 Note 4 of KCS Rules, his lien
shall continue on the original post of the Office Superintendent.
      16. On the said issue, the law has been well-settled by this Court in
the case of “Ramlal Khurana (dead) by Lrs. Vs. State of Punjab & Others,
(1989) 4 SCC 99”, wherein this Court observed that ‘lien’ is not a word of
art and it connotes the right of a civil servant to hold the post substantively
to which he is appointed, meaning thereby, the appointment of government
servant on the said post must be substantive as he/she cannot hold two posts
simultaneously in two different cadres and maintain lien on both of them at
the same time. Further, in the case of “Triveni Shankar Saxena Vs. State
of U.P. and Others, 1992 Supp (1) SCC 524”, while primarily dealing the
114           SUPREME COURT REPORTS                           [2023] 12 S.C.R.


question of acquisition of lien, this Court has observed that 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.
      17. In a 3-Judge Bench judgment in the case of “State of Rajasthan
and Another Vs. S.N. Tiwari and Others, (2009) 4 SCC 700”, while
interpreting the word ‘lien’ against the post appointed substantively with
respect to another post, this Court held as thus:
      “17. It is very well settled that when a person with a lien against the
      post is appointed substantively to another post, only then he acquires
      a lien against the latter post. Then and then alone the lien against the
      previous post disappears. Lien connotes the right of a civil servant
      to hold the post substantively to which he is appointed. The lien of a
      government employee over the previous post ends if he is appointed
      to another permanent post on permanent basis. In such a case the lien
      of the employee shifts to the new permanent post. It may not require a
      formal termination of lien over the previous permanent post.”
       Similarly in the case of “State of Madhya Pradesh and Others Vs.
Sandhya Tomar and Another, (2013) 11 SCC 357”, this Court held that the
lien is a civil right of a civil servant to hold the post to which he is appointed
substantively. The relevant part of the order is reproduced below as thus –
      “10. “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.”
      All the aforesaid judgments have been duly considered again by
this Court in another 3-Judge Bench judgment in the case of Sitikanatha
Mishra (supra). Thus, as per settled legal position, we observe that ‘lien’
      L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA 115
                     [J. K. MAHESHWARI, J.]

of a government servant only ceases to exist when he/she is appointed on
another post ‘substantively’/confirmed or absorbed permanently. Otherwise,
his/her lien would continue on the previous post.
      18. Reverting to the instant case, on a conjoint reading of the Rules
applicable, i.e., Rule 252(b), Rule 20 Note 4 and Office Memorandum dated
22.01.1972 in consonance with the settled law as discussed, we are of the
considered view that the lien of the appellant on the previous post of ‘Office
Superintendent’ is squarely protected and his lien shall be continued under
Rule 20 Note 4. We say so particularly because of the fact that the appellant
was never appointed substantively on the new post of ‘Assistant Registrar’
and was continued temporarily on the said post subject to the outcome
of the pending litigation challenging his appointment. The said fact also
finds support from the Preamble of the Resolution of the University dated
23.12.2000. Further, the appointment of appellant to the new post was subject
to probation of two years and due to pending litigation, he was continued
on a temporary basis despite completion of two years. Nothing has been
brought on record by respondent-University to negate the applicability of
mandate of Rule 20 Note 4 of KCS Rules on appellant.
      19. Further, it is not the case of the respondent-University that
the appellant was permanently absorbed or confirmed on the new post.
Conversely, the respondent’s case is that, in absence of any representation
made by the appellant seeking continuation of his lien on the previous
post, he cannot claim it subsequently on being retained after quashing of
his appointment. In our view, the said stand of the University cannot be
countenanced in terms of Rule 20 Note 4 of KCS Rules. As per the language
of the said Rule, the lien of a government servant on the previous post stands
protected till his or her continuation on probation period on the new post.
The intention of the said rule is clear, viz., to protect the past service of the
government servant in cases where the government servant is not confirmed
or absorbed substantively on the new post on account of his/her failure to
satisfactorily complete the probation period or for any other reason.
     20. So far as question of the ‘relieving order’ being treated as
resignation is concerned, in terms of Rule 252(b) of KCS Rules, it cannot
be treated as resignation. The said Rule makes it clear that if another
appointment is taken up by a government servant with proper permission,
116            SUPREME COURT REPORTS                       [2023] 12 S.C.R.


then it cannot be termed as resignation of public service. Thus, the finding
as recorded by the Writ Appellate Court are not sustainable.
     21. In view of the discussion made herein above, we answer the
questions framed above as follows –
      (i)   Order dated 08.04.1993 passed by respondent-University,
            relieving the appellant to take up the new appointment as
            ‘Assistant Registrar’ is not to be treated as resignation in terms
            of Rule 252(b) of KCS Rules.
      (ii) The appellant’s lien on the original/previous post of ‘Office
           Superintendent’ shall be maintained and deemed to be continued
           from the date when he was relieved by respondent-University,
           i.e., 08.04.1993.
      (iii) Considering the facts and circumstances of the case and in order
            to do complete justice, the appellant will be entitled to all the
            service benefits including seniority, consequential promotions
            and pensionary benefits at par with his juniors, though notionally,
            since he superannuated on 30.06.2007 and has not worked on
            the promoted post.
      22. Accordingly, the appeal is allowed and the impugned order dated
23.10.2009 passed in Writ Appeal No. 10003 of 2009 (S-RES) is hereby
set-aside. The order dated 27.08.2008 passed by learned Single Judge in Writ
Petition No. 4066 of 2006 is restored subject to the above modifications.
No order as to costs.


Headnotes prepared by:                                          Appeal allowed.
Divya Pandey