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1993 DIGILAW 172 (SC)

Tej Narain Tiwary v. State Of Bihar

1993-02-18

G.N.RAY, P.B.SAWANT

body1993
(1) LEAVE granted. (2) THE admitted facts in the present case are that by an order dated 16/08/1969 the appellant was appointed by respondent 2 - Bihar School Examination Board (Board) as a Special Officer (Stores) for a period not exceeding six months, in the pay scale of Rs. 300-20-400-EB- 20-500 with usual allowances. His services, however, were continued till 10/03/1971, when he was intimated that the said post of Special Officer would be abolished, w.e.f. 1/04/1971 and consequently his services would stand terminated. The appellant filed a suit and obtained an injunction against the abolition of the post and the termination of his services. In the suit, a compromise was arrived at between the Board and the appellant whereby he was to be appointed as Section Officer in the general cadre and his pay as a Special Officer was to be protected. Pursuant to this compromise, the Board passed an office order on 20/03/1972 which stated as follows: "SHRI Tej Narain Tiwary, who is at present working as Special Officer (Stores) on purely temporary basis, is appointed on the vacant post of Sectional Head (Section Officer) in the initial pay of the pay scale of Rs. 230-15-350-EB-20-450 besides dearness allowance. Besides pay he is sanctioned reducible personal pay at the rate of Rs. 70.00 per month." (3) BY the same order, another Special Officer (Vigilance) was also appointed to one more vacant post of Sectional Head (Section Officer) in the same pay with an additional reducible personal pay of Rs. 20.00 per month. (4) THE order further stated as follows: "AS per the decision dated December 18, 1971 of the Board, the posts of Special Officer (Stores) and Assistant Vigilance Officer are abolished from the date of issue of this order." (5) WE are not concerned with the post of Special Officer (Vigilance). (6) WHAT is obvious from the above order is that the appellant was working as Special Officer till that time and was appointed in one of the vacant posts of Section Officers with the protection of his pay. We do not know how the amount of Rs. 70.00 per month was arrived at. Read with the note put up by the secretary of the Board, it is apparent that appellants then pay as Special Officer was to be protected entirely. We presume that it was wholly protected. We do not know how the amount of Rs. 70.00 per month was arrived at. Read with the note put up by the secretary of the Board, it is apparent that appellants then pay as Special Officer was to be protected entirely. We presume that it was wholly protected. The point to note is that his pay could be protected, whether partially or fully, only if he was transferred from one post to another whether on account of the abolition of the former post or as a matter of compulsory transfer. Read with the office order dated 20/03/1972, it appears that the Board had adopted the device of first transferring the appellant from the post of Special Officer to the post of Section Officer and then abolishing the post of the Special Officer. It is necessary to note this fact, since the Board has interpreted this device as amalgamation of the posts of Special Officer with that of the Section Officer and not as a compulsory transfer from the post of Special Officer to that of Section Officer. Further, whether it is construed as amalgamation or as compulsory transfer, the legal consequences are the same, viz., that the appellant would have to be absorbed in the post of Section Officer from the date of his appointment in the post of Special Officer. Since further the Board itself regularised the appointment from the date of appointment as Special Officer, viz., 16/08/1969, as is evident from its order of 11/11/1986, no objection can be raised in that behalf. However, respondent 5 who was promoted to one of the posts of Section Officers on 27/08/1970 has contended that the seniority given to the appellant in the post of Section Officer, w.e.f. 16/08/1969 i.e., from the day on which he was appointed as Special Officer, was illegal. We may now deal with the said contention. (7) RESPONDENT 5 was an Assistant in the Office of the Board and as stated above, was for the first time, promoted as Section Officer on 27/08/1970. It appears that for the first time in 1983, a seniority list of Section Officers was prepared but not circulated. In that list respondent 5 was shown at No. 23 whereas, the appellant was shown at No. 33. This was so because two representations made by the appellant to give him seniority from 16/08/1969 stood rejected on 20/04/1977 and 13/03/1978 respectively. In that list respondent 5 was shown at No. 23 whereas, the appellant was shown at No. 33. This was so because two representations made by the appellant to give him seniority from 16/08/1969 stood rejected on 20/04/1977 and 13/03/1978 respectively. It appears that it was for the first time that by the order dated 11/11/1986, the appellants representation was accepted and he was given seniority from 16/08/1969. Against the said order, respondent 5 filed a writ petition which was withdrawn by him on 22/12/1986 since the learned Advocate General appearing for the Board stated before the court that by the order dated 11/11/1986 the Board had merely given seniority to the appellant from 16/08/1969 and that grant of this seniority to the appellant had nothing to do with the inter se seniority in the cadre of Section Officers which would be determined later. (8) IT appears that, thereafter, a seniority list of Section Officers was prepared by the Board in which the appellant was shown above respondent 5 and was granted promotion to the post of Assistant secretary on 20/03/1982 and to that of Deputy secretary on 29/11/1989. Against the said list of seniority, respondent 5 filed the present writ petition in the High court primarily challenging the order of 11/11/1986 in terms of which the inter se seniority list was prepared. (9) THE High court held that the post of Special Officer occupied by the appellant was a temporary post and was not a cadre post; since the said post was abolished and thereafter the appellant was appointed as a Section Officer on 20/03/1972 he would have to rank below respondent 5 who was appointed as Section Officer on 27/08/1970. The High court also relied on the fact that the Boards case before it was that as a consequence of the abolition of the post, the appellant was appointed as a Section Officer. (10) WE are of the view that the approach of the High court is not correct. As stated above, the facts reveal that the appellant was appointed in a higher post with a higher salary scale. He was in fact compulsorily transferred from that post to the post of Section Officer, and after the transfer, by the same order of 20/03/1972, the post of Special Officer was abolished. As stated above, the facts reveal that the appellant was appointed in a higher post with a higher salary scale. He was in fact compulsorily transferred from that post to the post of Section Officer, and after the transfer, by the same order of 20/03/1972, the post of Special Officer was abolished. The order is also capable of being interpreted as an order of amalgamation of the ex cadre post of Special Officer with the cadre of Section Officers. As stated earlier, the consequence of both the interpretations of the said order is the same, viz., that the appellant would get seniority from the date of his appointment as the Special Officer. That it is a case of a compulsory transfer or of the amalgamation of post is evident from the fact that the appellants salary as Special Officer was protected on the said transfer. It is true that there is nothing on record except the order of 20/03/1972 to show that the temporary post of Special Officer which was created for the first time on 16/08/1969 with the appointment of the appellant to it, was ever regularised and the appellant was appointed regularly to the same. However, on this aspect, we must go by the intention revealed in the resolutions and the orders of the Board itself. It cannot be suggested that the Board could not regularise the post and the appointment retrospectively by passing resolutions which in the absence of rules and regulations are equally valid. The Boards intentions in that behalf are clear. It treated the post as regular. The appellant was appointed to it in a substantive vacancy and in accordance with the conditions governing it. There is, therefore, nothing in the decisions relied upon by the learned counsel for respondent 5, viz., Direct Recruit Class II Engineering Officers Association v. State of Maharashtra and State of Bihar v. Akhouri Sachindra Nath which militates against the seniority given to the appellant. (11) WE accordingly allow the appeal. There will be no order as to costs.