Judgment :- ASHIM KUMAR BANERJEE, J (1) THE appellant Narbu Lama joined the Darjeeling municipality as a Lower Division Clerk with effect from August 1, 1979. He was transferred as Assistant Teacher in Municipality Boys School with effect from September 7, 1987 on a leave vacancy as and by way of temporary arrangement. He was subsequently absorbed as Assistant Teacher having a particular pay scale vide order dated July 15, 1989. He was subsequently confirmed in the post with effect from April 9, 1990. As per the gradation list published by the Municipality Lama was shown to have been appointed with effect from September 7, 1987 being the date when he was transferred on temporary basis. The Municipality conducted a promotional process for the post of Assistant Headmaster. Applications were invited from the teachers of the school. Lama applied for the said post along with one Kishore Pradhan, respondent No. 1 above named. Municipality considered both of them and ultimately promoted Kishore in the post of Assistant Headmaster considering him as senior to Lama. Pertinent to note, Kishore was appointed as a teacher by the Municipality in 1982. Lama claimed that since he had joined the municipality in 1979 he was senior to Kishore. Hence, the gradation list should be modified and the promotional process should be reviewed and he should be given promotion for the post of Assistant Headmaster considering his past service in the Municipality as a Lower Division Clerk. Lama approached the learned Single Judge. Learned Single Judge upon hearing of the rival contentions held that Lama was entitled to have benefit of his past service when he worked as teacher on temporary basis as well as for the period when he was on probation. After holding as such, His Lordship observed that since the subsequent order dated July 14, 1989 absorbed him in the post of Assistant teacher, same was to be considered as a fresh appointment. His Lordship, however, did not consider the fact that Municipality itself placed him in the gradation list by showing his initial entry as on September 7, 1987 being the date when he was temporarily posted as Assistant Teacher. (2) BEING aggrieved and dissatisfied with the judgment and order of the learned Single Judge Lama preferred the instant appeal. (3) MR. His Lordship, however, did not consider the fact that Municipality itself placed him in the gradation list by showing his initial entry as on September 7, 1987 being the date when he was temporarily posted as Assistant Teacher. (2) BEING aggrieved and dissatisfied with the judgment and order of the learned Single Judge Lama preferred the instant appeal. (3) MR. Sougata Bhattacharyya, learned Counsel appearing for the appellant contended that he was transferred from the post of Lower Division clerk to the post of Assistant Teacher in the interest of the administration as clearly stipulated in the order of transfer appearing at page 32 of the Paper book. Since it was not a transfer on request he must get the benefit of his past service and the gradation list should have been modified accordingly. As soon as gradation list is modified he would be entitled to claim seniority over Kishore. He was thus entitled to be appointed as assistant Headmaster after becoming successful in the promotional process. In support of his contention Mr. Bhattacharyya relied on the three Apex Court decisions which are as follows :- (i) 1970, Service Law Reporter, Page 425 (Abdul Khair v. Honble Chief justice, Allahabad High Court and Ors.) (ii) (1989)4 Service Law Reporter, 692 (Lee/a Chopra and Anr. v. Surinder pal Singh and Ors.) (iii) (1998)3 SCC 218 (K. Anjaiah and Ors. v. K. Chandraiah and Ors.) (4) OPPOSING the appeal on behalf of Kishore Mr. Arabinda Chatterjee, learned Counsel on the other hand contended that Lama did not make any contemporaneous protest when he was transferred as Assistant Teacher. He also did not make any contemporaneous protest when he was absorbed in the said post on permanent basis. Hence his belated claim for reckoning his past service was rightly not taken into account by His Lordship. Mr. Chatterjee further contended that although it was termed as "transfer" by the original order dated September 4, 1987 by which Lama was temporarily posted as Assistant teacher he must have got the benefit of the better pay scale in the post of assistant Teacher. Once he accepted such transfer and achieved benefit out of it he was not entitled to benefit of his past service as a Lower Division Clerk. Mr. Chatterjee contended that post of Assistant Teacher was not a promotional post from the feeder post of Lower Division Clerk. Once he accepted such transfer and achieved benefit out of it he was not entitled to benefit of his past service as a Lower Division Clerk. Mr. Chatterjee contended that post of Assistant Teacher was not a promotional post from the feeder post of Lower Division Clerk. It was a change of cadre having a complete different channel of promotion. Once he came in a different cadre his initial entry in such cadre should be considered for the purpose of placing him appropriately in the gradation list. (5) IN support of his contention Mr. Chatterjee relied on the following decisions (i) (1973)3 SCC 862 (Lalit Mohan Deb and Ors. v. Union of India and Ors.) (ii) 1991, Supplementary I, Supreme Court Cases, Page 334 (State of bihar and Ors. v. Akhouri Sachindra Nath and Ors.) (iii) AIR 1993 SC 267 (M. B. Joshi and Ors. v. Satisli Kumar Pandey and Ors.) (iv) (1998)4 SCC 134 (S. K. Mathur and Ors. v. Union of India and Ors.) (v) (1999)8 SCC 99 (Nagpur Improvement Trust v. Yadaorao Jagannath kumbhare and Ors.) (vi) (1999)8 SCC 592 (M. Ramachandran v. Govind Ballabh and Ors.) (vii) (2001)5 SCC 564 (Niranjan Prasad Sinha and Anr. v. Union of India and Ors.) (viii) (2002)9 SCC 634 (Kaushal Kishore Singh v. Dy. Director of education and Ors.) (ix) (2005)10 SCC 670 (Kulwant Kr. Sood v. State of H. P. and Anr.) (x) (2005) 11 SCC 488 (Om Prakash Shrivastava v. State of M. P. and Anr.) (xi) (2006)8 SCC 129 (Indu Shekliar Singh and Ors. v. State of U. P. and Ors.) (xii) (2007)1 SCC 683 (State of Uttaranchal and Anr. v. Dinesh Kumar Sharma) (6) THE Apex Court decisions cited by Mr. Chatterjee consistently held that if there is a change of cadre and if someone accepts such transfer without any protest his past service cannot be reckoned and his initial entry in the new cadre would be considered for the purpose of placing him appropriately in the gradation list. However, on a close reading of the aforesaid decisions it appears to us that in most of the cases opportunity was given to the employees to exercise their option. Hence, those transfers were considered to be a transfer on request. However, on a close reading of the aforesaid decisions it appears to us that in most of the cases opportunity was given to the employees to exercise their option. Hence, those transfers were considered to be a transfer on request. In case of a dispute between direct recruits and promotees the direct recruits must be placed in the gradation list considering their initial entry in the said post. Similarly, the promotees after getting promotion enters the promotional post and the date of their joining in the promotional post can only be considered for placing them appropriately in the gradation list prepared for the post where they are promoted. (7) PER se, nobody can dispute the above well settled principle of law. On the other hand back drop of the cases cited by Mr. Bhattacharyya are based on involuntary transfer without any benefit attached. (8) ON perusal of the order of transfer appearing at page 32 of the paper Book we do not find any benefit so achieved by Lama by virtue of such transfer. It was in the interest of Municipal service as stated in the said order. His subsequent absorption on permanent basis in the said post was not considered by the Municipality as relevant factor as they placed Lama in the gradation list considering his initial entry as teacher being the date when he was transferred. (9) IT is unfortunate that the Municipality did not follow any service rule. We are told that there was no service rule at all guiding the conditions of the employees of the Municipality including the Teachers of the Municipal school at the relevant time. (10) WE also notice a peculiar fact which we could not overlook. By an office order dated November 2,1987 appearing at page 75 of the Paper Book one Nirmal Chandra Pradhan was asked to work as Assistant Teacher temporarily in place of Vim Bahadur. By the said order Lama was again transferred back to the General Department to work as Typist. We are told that the said order was not given effect to. Mr. Bhattacharyya appearing for lama contended that the said order of repatriation was conditional upon joining of Nirmal. Since Nirmal did not join to work as Assistant Teacher on temporary basis, such order could not be given effect to. We are told that the said order was not given effect to. Mr. Bhattacharyya appearing for lama contended that the said order of repatriation was conditional upon joining of Nirmal. Since Nirmal did not join to work as Assistant Teacher on temporary basis, such order could not be given effect to. The Municipality ultimately placed lama in the gradation list showing him as Assistant Teacher with effect from september 4,1987. How he could then be re-transferred to General Department if placement of Lama as Assistant Teacher was a fresh appointment, is not clear to us. (11) TO resolve the controversy we wish to put the problem to undergo a test to find out whether the original transfer involved any financial and/or other service benefit that Lama might have achieved. Learned Single Judge asked the Municipality to produce records. Municipality could not. Mr. Subba on behalf of the Municipality also expressed his inability to produce records before us and virtually left the issue for our reconsideration. The learned advocate for the State also could not enlighten us on that score. Mr. Chatterjee in his usual fairness in course of his submission categorically stated that in case it was found that Lama did not achieve any financial benefit having a better pay scale on transfer he should be given benefit of his past service. We appreciate Mr. Chatterjees fairness. (12) WE, thus feel that the appropriate authority should examine the issue on the basis of the available evidence and if it is found that Lama did not get any benefit out of such transfer his prayer must be allowed and in that event Kishore must step down to accommodate Lama in the post of Assistant headmaster. (13) THE Director, Local Bodies is thus directed to given personal hearing to Lama, Kishore as well as authorised representative of the Municipality to find out as to whether Lama got any consequential financial or other benefit on being transferred to the post of Assistant Teacher with effect from September 4, 1987. If the result is positive the Municipality shall recall the order of promotion given in favour of Kishore and place Lama in the promotional post with retrospective notional benefit from the day when Kishore was promoted in the post of Assistant Headmaster. If the result is positive the Municipality shall recall the order of promotion given in favour of Kishore and place Lama in the promotional post with retrospective notional benefit from the day when Kishore was promoted in the post of Assistant Headmaster. We, however, make it clear that in case Kishore is compelled to step down the Municipality must not insist upon refund of the additional pay which Kishore got after being promoted in the post of Assistant headmaster. The Director, Local Bodies would pass a reasoned order and communicate the same to all concerned. The entire process must be completed within a period of eight weeks from the date of communication of the said order. The parties would be at liberty to disclose documents in support of their rival contentions before the Director. However, such disclosure must be made before the passing of the reasoned order. (14) THE order of the learned Single Judge is modified accordingly. The appeal is disposed of without any order as to costs.