KAMESHWAR PRASADversusSTATE OF BIHAR AND ORS.

                       KAMESHWAR PRASAD                                       A
                                v.
                     STATE OF BIHAR AND ORS.

                         SEPTEMBER 11, 1995

           [K. RAMASWAMY AND B.L. HANSARIA, JJ.)                              B

     Se1Vice Law :

      Small Pox Eradication Scheme-Appointment of Vaccinator-Dis-
banding of Scheme-Resolution to absorb swp/us employees-lmplementa-           C
tion of-Directions-Issued.

      The appellant was appointed as a Vaccinator in Small Pox Eradica-
tion Scheme which was disbanded subsequently. Awaiting absorption on
equivalent post in terms of Resolution No. 2215 dated February 11, 1985
he obtained an order from the High Court directing the Medical Officer D
to consider his case, further on a representation made by him, the District
Medical Officer promoted him as Clerk subject to confirmation by the
Director-in- Chief. However, the Director-in-Chief cancelled appellant's
appointment on the ground that he was not properly appointed as Clerk
in pursuance of the Resolution. The said order was unsuccessfully chal- E
lenged before the High Court. Hence this appeal.

     Allowing the appeal, this Court

       HELD : Appellant was really required to be absorbed in an
equivalent post because he was found to be a surplus Vaccinator. However,     F
the principles laid down in Resolution were not followed. Therefore, on the
b.asis of his order in the merit of surplus employees, he is required to be
absorbed as soon as his turn comes. On his absorption according to the
resolution and the entitlement on par with other candidates, his case is to
be considered for promotion as Clerk. [522-H, 523-A]                          G

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8385-86
of 1995.

     From the Judgment and Order dated 2.2.93 & 4.1.94 of the Patna
High Court in C.W.J.C. No. 13022/92 and M.C.R. No. 42 of 1993.                H
                                 521
    522                  SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A         Ejaz Maqbool for the Appellant

          B.B. Singh for the Respondents.

          The following Order of the Court was delivered :

B         Delay condoned.

          Leave granted. We have heard learned counsel on both sides.

          Admittedly, the appellant was appointed as Vaccinator in a Small
    Pox Eradication Programme on May 6, 1975. The scheme was disbanded
C   in 1985. Thereafter, a decision was taken on November 14, 1986 to retain
    25 per cent of senior officers and to absorb the remaining 75 per cent in
    equivalent posts in regular cadres. In consequence, while awaiting his
    absorption, the appellant filed CWJC No. 2412/90 for a direction to con-
    sider his case. Accordingly, the High Court by order dated January 22, 1991
    directed the Medical Officer to consider his case. A representation was
D   made by the appellant to consider him for promotion as a clerk. Conse-
    quently, the District Medical Officer promoted him on May 7, 1991 as a
    clerk and he joined as such on May 9, 1991. The District Medical Officer
    had stated in the letter of appointment that his promotion would be
    subject to the confirmation by the Director-in-Chief.
E         The Director-in-Chief in his proceedings dated December 10, 1992
    cancelled the appointment following the Resolution No. 2215 dated
    February 11, 1985. It was stated there that any promotion made would be
    subject to the policy of confirmation according to the rules on the basis of
    seniority-cum-fitness and also observing rule of reservation. Since the
F   appointment of the appellant was not made in pursuance of the resolution,
    it was observed that the appellant was not properly appointed as clerk.
    When he filed the CWJC No. 13022/92, by its order dated February 2, 1993 .
    the High Court dismissed the same and a review petition filed subsequently
    was also dismissed on January 4, 1994. Thus this appeal by special leave.
G         Though the learned counsel for the appellant contended that the
    District Medical Officer is the competent authority to appoint a clerk, he
    is required to follow the principles laid down in Resolution No. 2215 dated
    February 11, 1985, even if he be the appointing authority. Indisputably, he
    did not follow the procedure. The appellant was really required to be
H   absorbed in an equivalent post because he was found to be a surplus
                          K. PRASAD v. STATE                           523

Vaccinator. The equivalent post is that of Vaccinator in other departments.   A
Therefore, on the basis of his order in the merit of surplus employees, he
is required to be absorbed. As soon as his turn comes, the competent
authority is directed to absorb him. On his absorption, according to the
said resolution and the entitlement on par with other candidates, his case
would be considered for promotion as clerk. Since the appellant has
already worked from May 8, 1991 till December 10, 1992 as clerk, he is
                                                                              B
entitled to salary attached to the post of clerk for the said period.

      The appeal is accordingly allowed to the above extent but, in the
circumstances, without costs.

T.N.A.                                                    Appeal allowed.     c