Supreme Court of India
TEJ NARAIN TIW ARYversusSTATE OF BIHAR AND ORS.
- Citation
- 1993 INSC 59
- Decided
- 18 February 1993
- Disposal
- Appeal(s) allowed
- Bench
- P B SAWANTG N RAY
Holding
The appellant is deemed to have been transferred/amalgamated into the Section Officer cadre and is entitled to seniority from his original appointment date of 16 August 1969.
Summary
The appellant, Tej Narain Tiwary, was appointed as a Special Officer (Stores) on 16 August 1969, a temporary post that was later abolished. After obtaining an injunction against the abolition, a compromise led to his appointment as a Section Officer on 20 March 1972, with his pay protected, and the Board later regularised his service from the original appointment date. Respondent‑5, who became a Section Officer on 27 August 1970, challenged the appellant’s seniority being back‑dated to 16 August 1969. The High Court held the Special Officer post was temporary and the appellant should rank below respondent‑5. The Supreme Court reversed this, holding that the appellant was compulsorily transferred or amalgamated into the Section Officer cadre, and therefore his seniority rightly dates from his original appointment. Consequently, the appeal was allowed, confirming the appellant’s seniority from 16 August 1969.
Issues considered
- Whether the appellant’s seniority as Section Officer should be counted from his appointment as Special Officer despite the latter being a temporary post.
- Whether the Board’s order effecting a compulsory transfer or amalgamation of the Special Officer post confers seniority from the original appointment date.
- Whether the Board’s later regularisation of the appellant’s appointment is valid and impacts inter‑se seniority.
Subjects
senioritycompulsory transferamalgamation of postsregularisationtemporary postservice lawpromotionboard orders
Judgment
TEJ NARAIN TIWARY
v.
- A
STATE OF BIHAR AND ORS.
FEBRUARY 18, 1993
[P.B. SAWANT AND G.N. RAY, JJ.] B
Regularisation-Date of-Appellant appointed as Special Officer by
Bihar School Education Board on 6.B.69--Post abolished in April 1971-Suit
filed by Appellant-In pursuance of compromise between the parties, Board
appointed Appellant to regular post of Section Officer and regularised the
appointment w.e.f. 6.8.69.
c
Held, there was compulsory transfer from one post to the other, or
alternatively, amalgamation of the two posts--Regularisation w.e.f. 6.8.69
justified.
D
By an order dated 16th August 1969, the appellant was appointed by
respondent 2 • the Ribar School Examination 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. The services were, however,
continued till 10th March, 1971, when it was intimated that the said post
of Special Officer would be abolished with effect from Isl April 1971, and E
- consequently bis services were terminated. The appellant filed a suit and
obtained an injunction against the abolition of the post and the termina·
lion of bis services. In the suit, a compromise was arrived at between the
- Board and the appellant, whereby be was appointed as Section Officer in
the General Cadre and bis pay as Special Officer was to be protected. F
Pursuant to this compromise, the Board by order dated 20th March, 1972
appointed him on the vacant post of Section Officer, with a personal pay
of Rs. 70 per month. Later, by an order dated 11.11.86, respondent No. 2
regularised the appointment from the date of his appointment as Special
Officer viz. 16.8.69. However, respondent No. 5 promoted to one of the
posts of Section officers on 27-8-70, contended that the seniority given to G
the appellant in the post of Section Officer w.e.f. 16·8-69, i.e. from the date
of his 1ppointment as Special Officer was illegal. In the Seniority list of
-1.. Section Officers prepared by respondent No, 2, the appellant was shown
above respondent no. 5 and he was granted promotion to the post of Asstt.
Secretary on 20th March, 1982, and to that of Deputy Secretary on 29.11.87. H
11
12 SUPREME COURT REPORTS [1993] 2 S.C.R.
\.~...... -
A Against the said list or seniority, respondent No. 5 tiled a writ petition in
the High Court, formally challenging the order of dt. 11th Nov., 1986 in
terms of which the inter se seniority list was prepared. The High Court held
that the post of Special Officer occupied by the appellant was a temporary
post, which was abolished, and therefore, he would have to rank below
respondent No. 5. The appellant came to this Court.
B
Allowing the Appeal,
HELD: The approach of the High Court was not correct. The appel-
!ant was appointed lo a higher post with a higher salary scale. He was in
fact compulsorily transferred from that post to the post of Section Officer
c and after that transfer by the same order of 20th March, 1972, the post of
Special Officer was abolished. The order is also capable of being inter-
preted as an order or amalgamation of the ex-cadre post or a Special
Officer with the cadre post of Section Officer. [15•'-G]
""'·
D The consequence of both the interpretations of the said order is the
same, viz. that the appellant would get seniority from the date or his
appointment as Special Officer. [lSG]
I
,
It is true that there is nothing on record except the order or 20th
March, 1972, to show that lo the temporary post or Special Officer which
E was created for the first time on 16th August, 1969, that the appointment
of appellant was ever regularised and the appellant was appointed regular-
ly to the same. However, on this aspect, we must go by the intention
revealed in the resolutions and orders of the Board itself. The Board's
intention is clear. It treated the post as regular. The appellant was ap·
pointed to it in a substantive vacancy and in accordance with the condition
F
governing it. There is accordingly nothing, which militates against the
seniority given to the appellant. [16A-Dl
-.
The Direct Recruit Class II Engineering Officers' Association and Ors.
v. State of Maharashtra & Ors., AIR 1990 SC 1607 and State of Bihar & Ors.
G etc. v. Akhouri
'
Sachindra Nath & Ors., [1991) Suppl. 1 SCC 334, referred
.
to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 690 of
>--
1993.
H From the Judgment and Order dated 21.5.1992 of the Patna High
'
TEJ NARAIN v. STATE OF BIHAR 13
Court in Civil Writ Jurisdiction Case No. 1317 of 1990. A
A.K. Sen and M.P. Jha for the Appellant.
U day Singh, A.K. Sinha and A. Sharan for the Respondents.
The following Order of the Court was delivered: B
Leave granted.
--- The admitted facts in the present case are that by an order dated 16th
August, 1%9 the appellant was appointed by the respondent 2. Bihar School
Examination Board ('Board') as a Special Officer (Stores) for a period not c
exceeding six months, in the pay scale of Rs. 300-20-400-EB-20-500 with usual
allowances. His services, however, were continued till 10th March, 1971, when
he was intimated that the said post of Special Officer would be abolished w.e.f.
!st April, 1971 and consequently his services would stand terminated. The
appellant filed a suit and obtained an injunction against the abolition of the
D
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
20th March, 1972 which stated as follows:
E
"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. F
70 per month".
By the same order, another Special Officer (Vigilance) was also ap-
pointed to one more vacant post of Sectional Head (Section Officer) in the
same pay With an additional reducible personal pay of Rs. 20 per month. G
__ ...J, The order further stated as follows:
"As per the decision dated 18.12.1971 of the Board, the
posts of Special Officer (Stores) and Assistant Vigilance
Officer are abolished from the date of issue of this order: H
14 SUPREME COURT REPORTS (1993) 2 S.C.R.
A 'We are not concerned with the post of Special Officer (Vigilance).
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 per month was arrived at. Read with the
B
note put up by the Secretary of the Board, it is apparent that appellant's
then pay as Special Officer was to be protected entirely. We presume that
c
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 20th
-
March, 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
D 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
E the Board .itself regularised the appointment from the date of appointment
as Special Officer, viz., 16th August, 1969, as is evident from its Order of
11th November, 1986, no objection can be raised in that behalf. However,
respondent-5 who was promoted to one of the posts of Section Officers on
27th August, 1970 has contended that the seniority given to the appellant
F in the post of Section Officer w.e.f. 16th August, 1969 i.e., from the day on
which he was appointed as Special Officer, was illegal. We may now deal
with the said contention.
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 27th
G August, 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 showo at No. 23 whereas, the appellant was showo at No. 33. This was >---
so because two representations made by the appellant to give him seniority
from 16th August, 1969 stood rejected on 20th April, 1977 and 13th March,
H 1978 respectively. It appears that it was for the first time that by the order
•'
-.
1EJ NARAIN v. STATE OF BIHAR 15
dated 11th November, 1986, the appellant's representation was accepted A
. -...,'
· and he was given seniority from 16th August, 1969. Against the said order,
respondent-5 filed a writ petition which was withdrawn by him on 22nd
December, 1986 since the learned Advocate General appearing for the
Board stated before the Court that by the order dated 11th November, 1986
the Board had merely given seniority to the appellant from 16th August,
1969 and that grant of this seniority to the appellant had nothing to do with
B
.).,_
the inter se seniority in the cadr; of Section Officers which would be -
determined later.
-- It appears that, thereafter, a seniority list of Section Officers was
prepared by the Board in which the appellant was shown above respon-
dent-5 and was granted promotion to the post of Assistant Secretary on
c
20th March, 1982 and to that of Deputy Secretary on 29th November, 1989.
>-- Against the said list of seniority, the respondent-5 filed the present writ
petition in the High Court primarily challenging the order of 11th Novem-
ber, 1986 in terms of which the inter se seniority list was prepared.
D
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 20th March, 1972 he would have to rank below respondent-5
who was appointed as Section Officer on 27th August, 1970. The High E
-.,"
Court also relied on the fact that the Board's case before it was that as a
consequence of the abolition of the post, the appellant was appointed as a
...... Section Officer .
~
We are of the view that the approach of the High Court is not F
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 the 20th March, 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 G
cadre posts 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 appellant's salary as Special Officer was H
~
,-
16 SUPREME COURT REPORTS [1993] 2 S.C.R.
A protected on the said transfer. It is true that there is nothing on record
except the order of 20th March, 1972 to show that the temporary post of
Special Officer which was created for the first time on 16th August, 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,
B 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 rd'olutions which
in the absence of. rules and .regulations are equally valid. The Board's
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
C with the conditions governing it. There is, therefore, nothing in the
-
decisions relied upon by the learned Counsel for respondent-5, viz., The
Direct Recrnit Class-II Engineering Officers' Association and Ors. v. State of
Maharashtra and Ors., AIR 1990 SC 1607 and State of Bihar & Ors. etc. v.
Akhouri Sachindra Nath & Ors., [1991] Suppl. 1 SCC 334 which militates
D against the seniority given to the appellant.
We accordingly allow the appeal. There will be no order as to costs.
S.L.S. Appeal allowed.
.. ,
--
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