Patna High Court
Ram Swaroop Singh vs State Of Bihar And Ors. on 21 May, 1992
Equivalent citations: 1993(1)BLJR228
Author: Bisheshwar Prasad Singh
Bench: Bisheshwar Prasad Singh
JUDGMENT Bisheshwar Prasad Singh, J.
1. The petitioner herein has prayed for quashing the office order dated 11-11-1986 (Annexure-1) issued by the Bihar School Examination Board (respondent No. 2 herein) where by respondent No. 5, Tej Narain Tiwari, has been absorbed in the cadre of Section Officer after treating his service to be continuous with effect ? from 16th August, 1969, his date of first appointment. The petitioner has challenged the above order on the ground that by giving benefit of continous service with effect from 16th August, 1969, even though respondent No. 5 was actually appointed by direct recruitment on 20th March, 1972, the Board has sought to affect the seniority of the petitioner and others, who were promoted as Section Officers earlier than the appointment of respondent No. 5 as Section Officer by directed recruitment. The instant writ petition has been filed because despite the earlier order of this Court holding that Annexure-1 did not confer seniority on respondent No. 5, the respondent Board has been treating respondent No. 5 as senior to the petitioner by permitting him to officiate against a higher post from time to time and lastly by order dated 29th November, 1989 (Annexure-13) respondent No. 5 has been allowed to officiate against the post of Joint Secretary in the Board, obviously treating him as senior. Such officiating appointment entitles respondent No. 5 to special allowance.
2. The case of the petitioner is that he was appointed and joined the Board as Senior Assistant, Grade II on 15-9-1960. In due course he was promoted to the post of Senior Assistant, Grade I, in April 1965. Thereafter, the petitioner was promoted as a Section Officer on 27-8-1970 vide Annexure-2. The respondent-Board created an ex-cadre post of Special Officer (Bhandar) in the year 1969 to look after the elementary and higher secondary examinations. Respondent No. 5 was appointed as a Special Officer by order dated 16-8-1969. The letter of appointment of respondent No. 5 has been annexed as Annexure-A to the counter-affidavit, from which it appears that respondent No. 5 was initially appointed temporarily for a period not exceeding six months in the scale of Rs. 30 )-2Q-400-EB-20-500. It is not in dispute that the term of respondent No. 5 was extended from time to time. According to the petitioner, since the elementary and higher secondary examination were abolished in the year 1971, the Board had no need for Special Officer (Bhandar) to look after such examinations and it decided to abolish the said post with effect from 1st April, 1971. Accordingly, a letter dated 10th March, 1971 (Annex-ure-3) was issued, whereby respondent No. 5 was informed that his services were terminated with effect from 1st April, 1971. Respondent No. 5 was aggrieved by the order terminating his service and he, therefore, filed a civil suit in which an interin order was made on 29th March, 1971, restraining the respondent-Board from implementing the order dated 10th March, 1971. According to the petitioner, it was on account of this order of the Court that Board decided to extend the services of resdondent No. 5 by order dated 5th April, 1971.
Since a dispute was pending before the civil court in which an order of injunction had been passed, the Boasd considered the matter and as will appear from Annexure-C filed by the respondents, the Board took the following decisions :
(1) The post of Special Officer (Bhandar) shall be abolished.
(2) Respondent No. 5 shall be appointed as a Section Officer with starting salary of the scale and he shall be paid by way of reducible personal pay the difference in the salary of Special Officer and that of Section Officer. Such an offer was to be made to respondent No. 5 if he agreed to withdraw the suit pending in the Court.
In view of this decision, respondent No, 5 withdrew the suit and was appointed by direct recruitment in the scale of Rs. 230-450. He was givan the initial starting salary of Rs. 280 and Rs. 70 by way of reducible personal pay. The letter of appointment of respondent No. 5 is Annexure-4 to the writ application and is dated 20th March, 1972. This lerter of appointment clearly mentions the fact that respondent No. 5, who was working as a Special Officer (Bhandar) in purely temporary capacity, was being appointed as a Section Officer and he would be entitled to the starting salary of the scale together with Rs. 70 by way of reducible personal pay. The appointment was purely temporary and the appointment could be terminated without disclosing any reasons after giving one month's notice. In accordance with the decision of the Committee dated 18-12-1971 the post of Special Officer (Bhandar) was abolished. The letter of appointment, therefore, is quite explicit that the post held by respondent No. 5 was abolished and he was appointed as a Section Officer.
3. In 1977 respondent No. 5 made a representation claiming that his seniority should be reckoned by reference to his initial date of appointment as a Special Officer and that his pay should be fixed accordingly. That representation was rejected by the Board by memo dated 20th April, 1977 (Annex ure-5). Thereafter, a Sub-Committee was constituted on 21-3-1978 to go into the question of inter se seniority of the employees of the Board. Representations were invited by the Committee and respondent No. 5 again made a representation, which was rejected by a resolution (Annexure-7).
4. The case of the petitioner is that in the year 1982 a seniority list was prepared by the Board, though the same was not circulated. In that list the petitioner's name appeared at serial No. 23, while the name of respondent No. 5 appeared at serial No. 33.
5. It appears that the Government of Bihar by its resolution dated 30th December, 1981 (Annexure-9) while accepting the recommendations of the Fourth Pay Revision Committee provided for grant of time-bound promotion to its employees. It was not disputed before us that this was adopted by the respondent-Board. The scheme of time-bound promotion as envisaged by the said resolution was that every employee in Government service should get at least two promotions-the first by the end of 10 years of service and the second by the end of 25 years of service. Such promotions were to be granted to employees who had not been able to get a single promotion in the first 10 years of service and the second promotion by the end 25 years of service despite the fact that they were otherwise fit for such promotion. The policy envisaged that there should be junior selection grade and senior selection grade and the first time-bound promotion should be to the junior selection grade and the second time-bound promotion to the senior selection grade. The benefit of time-bound promotion was also extended to employees who did not belong to any formally constituted service or cadre including the employees holding isolated posts. In their cases the pay-scale immediately higher than the pay-scale prescribed for the basic post was to be considered as the pay-scale of the junior selection grade and the pay-scale immediately higher to that of the aforesaid junior selection grade was to be deemed to be the pay-scale of senior selection grade. |The resolution clarified that the scheme was meant as an anti-stagnation measure and, therefore, should be applicable only in case of such employees who had not been able to get first or second promotion, as the case may be. In other words, the benefit of time-bound syetem should be extended to those who were stagnating in the same scale to which they were appointed or its corresponding revised pay-scale. Paragraph No. 11 (vii) of the resolution further provided that the benefit should not be made applicable to such employees who, after once joining Government service have, for any reason, been elevated to a higher pay-scale, by promotion, merger or even upgradation. This should require issue of specific orders in case of every employee which should obviously be done only after a careful examination of his record. This provision in sub-paragraph (vii) of Paragraph No. 11 was relaxed by resolution dated 15th July, 1985 (Annexure-10) whereby the limitation not to grant time-bound promotion to persons who had been elevated to higher pay-scale by merger or upgradation was removed, but on the condition that all other persons senior to the employee sought to be given promotion had already been granted promotion.
6. It is not in dispute that by order dated 18-7-1986 (Annexure-11) respondent No. 5 was granted time-bound promotion with effect from 20th March, 1982 having completed ten years of service. Obviously, the grant of time-bound promotion the date of appointment of respondent No. 5 was taken to be 20th March, 1972, on which date he was appointed as Special Officer. The case of the petitioner is that he and others, who were senior to respondent No. 5, were also entitled to be given a higher scale, if respondent No. 5 was given time bound promotion, since he was junior to them as Section Officer Faced with this situation, the Board by issuing the impugned order (Annexure 1) on 11-11-1986 treated the respondent No. 5's service as continuous from 16-8-1969, so that he could be treated as senior to the petitioner and others. This led the petitioner to file a writ petition before this Court, which was registered as C.W.J.C. No. 5466 of 1986 and was disposed of by order dated 22-12-1986. In that writ petition the petitioner contended that he having been promoted as Section Officer on 27th August, 1970, was senior to respondent No. 5, who was appointed in the year 1972. The learned Advocate-General appearing on behalf of the Board in that writ petition stated that Annexure-1 did not decide the inter se seniority of Section Officers of the Board. Respondent No. 5 was stated to be in service from 16th August, 1969, only with a view to give him relief in terms of the recommendations of the Fourth Pay Revision Committee, In view of the statement made by the Advocate-
General, the Court disposed of the writ petition with an observation that the petitioner could have no genuine grievance since Annexure-1 did not determine the seniority of Section Officers.
7. Petitioner has made a grievance that even after the disposal of the writ petition, respondent No. 5 was permitted to officiate against senior posts whenever vacancies arose, obviously, treating him as senior. Lastly, by Annexure-13 the petitioner was permitted to officiate as Joint Secretary with his original pay-scale through with special allowance. His grievance is that despite the order of this Court and the statement mat e by the Advocate-General, on the basis of Annexure-1, the respondent Board is treating respondent No. 5 as senior to the petitioner.
8. A counter-affidavit has been filed on behalf of respondent No. 2, 3 and 4 in which it is stated that respondent No. 5 was temporarily appointed agaist the post of Special Officer which was not an ex-cadre post. The post of Special Officer carried a higher pay scale of Rs. 300-500, while the pay-scale of Section Officer at that time was Rs. 230-450. Though respondent No. 5 was appointed for a period of six months only, it was extended from time to time. Reference is then made to the suit filed by respondent No. 5 and offer made by the Board for his appointment as Section Officer after protecting his pay by grant of personal pay. The case of respondent-Board is that since respondent No. 5 worked continuously without any break in service, on his representation the matter was considered by the Board and accepted by it. The Board has contended that the service of respondent No. 5 as Special Officer has been rightly counted towards his seniority for the purpose of grant of time-bound promotion and other benefits. It is further stated in paragraph No, 8 of the counter-affidavit that this was a case of amalgamation of two cadres, namely, the cadre of Special Officer by lowering it down to the cadre of Section Officer. These two cadres having been amalgamated into one, the Board was perfectly justified in reckoning seniority of employees in the amalgamated cadre by reference to their dates of initial appointment in any of the two cadres, which were amalgamated. It is then contended that since the petitioner has also been granted promotion to the cadre of Assistant Secretary, the dispute was merely academic.
9. In view of the stand taken by the respondent-Board it becomes necessary for me to go into the question of inter se seniority of the petitioner and respondent No. 5. As already observed, when the petitioner had filed a writ petition earlier challenging the order (Annexure-1), the stand taken by the Board was that Annexure-1 did not determine the seniority of the petitioner and that the benefit had been extended to respondent No. 5 only to give respondent No. 5 certain benefits which accrued to him pursuant to the report of the Fourth Pay Revision Committee. In the instant writ petition, however, there is a complete volte face and the stand now taken by the Board is that respondent No. 5 is senior to the petitioner. This is sought to be supported on the basis that the appointment of respondent No. 5 as Section Officer was by amalgamation of the cadre of Special Officer with the cadre of Section Officers and, therefore, the date of first appointment of respondent No. 5 in the original cadre of Special Officer could be taken into account for reckoning his seniority. On the other hand, the petitioner contends that respondent No. 5 was appointed as Section Officer by direct recruitment in the year 1972 and, was, therefore, junior to the petitioner, who was appointed by promotion as Section Officer in August 1970. The crux of the matter, therefore, is whether respondent No. 5 was appointed as Section Officer by direct recruitment or whether he came to the cadre of Section Officers by amalgamation of his cadre of Special Officer with the cadre of Section Officers.
10. It is well-settled that creation of a cadre, or its abolition or its amalgamation with any other cadre is a formal matter and must be done formally. So far as the instant case is concerned, there is no order, circular or resolution to the effect that a single post cadre of Special Officer was at any time created by the Board. On the other hand, there are factors which indicate to the contrary. The fact is that the petitioner had been appointed only for a term of six months initially, though that term was extended from time to time. Thereafter, the Board proposed to abolish the post. This clearly indicates that no cadres of Special Officer (Bhandar), as it is understood in service law, had ever come into existence. At best it can be said that a single isolated post of Special Officer had been created by the Board. The fact that respondent No. 5 was appointed on a purely temporary basis for a period not exceeding six months as Special Officer supports the contention that no formal cadre of Special Officer was ever created by the Board.
11. I will, however, assume in favour of respondent No. 5 that a formal cadre was created and he was the sole appointee against the sole post in that cadre. The question then arises whether that cadre of Special Officer was amalgamated or merged with the cadre of Section Officer again, I am faced with the same difficulty, there being no formal order of merger or amalgamation of the two cadres. On the contrary, it appears that the appointment of respondent No. 5 was terminated and aggrieved by that order respondent No. 5 filed a civil suit. Obviously, there was no question of merger or amalgamation at that stage. The suit was ultimately withdrawn, but it appears that this was done pursuant to an assurance given to respondent No. 5 to appoint him as Section Officer. There was, therefore, no adjudication of the dispute as to whether the post of Special Officer was legally terminated. There was at best a compromise between respondent No. 5 and the Board, whereby the respondent No. 5 was offered an appointment. The theory of merger is for the first time being raised by the Board in the instant writ petition and this plea was not raised in the earlier writ petition. It also appears from the note prepared by the Secretary for the Committee, which has been filed by the respondents as Annexure-C, that the Committee of the Board had taken a decision on 18-12-1971 to abolish the post of Special Officer (Bhandar) and to appoint respondent No. 5 as Section Officer with starting salary of the scale, but with a reducible personal pay, so that he did not suffer any monetary loss by being appointed as Section Officer. The note itself says that in view of this decision, respondent No. 5 was appointed as Section Officer by direct recruitment. I have referred to Annexure-C, because there is no formal order regarding amalgamation of the cadres. There is also nothing in the letter of appointment of respondent No. 5 to indicate that he was appointed a Section Officer pursuant to amalgamation of two cadres. The notice of the Secretary states that respondent No. 5 was appointed by direct recruitment and the letter of appointment also leads to the same conclusion. The letter of appointment mentions about the appointment of respondent No. 5 as Section Officer with reducible personal pay. The letter of appointment also mentions that the post of Special Officer stood abolished. It is difficult to accept the contention of the respondent-Board that respondent No. 5 was appointed as Section Officer on account of merger of the two cadres. If that were so, there would have been some document to evidence the merger of the two cadres. In any event, the letter of appointment would have said so. The clinching fact, however, is that the letter of appointment itself says that the post of Special Officer is abolished. This is wholly inconsistent with the plea of merger of two cadres, because in that event there was no question of abolition of the post of Special Officer. A merger postulates the amalgamation of two cadres, so that the posts earlier borne on more than one cadre are thereafter borne on a single cadre. If the only single post in the cadre of Special Officer was abolished, there was nothing to be merged with the cadre of Section Officers. I have, therefore, no doubt that respondent No. 5 was appointed as a Section Officer by direct recruitment and not by merger of two cadres. His seniority can, therefore, be reckoned by reference to his initial date of appointment in the cadre of Section Officers. Though having regard to the past services rendered by him on another post, on re-employment the Board could have given him certain monetary benefits, it could not defeat the vested rights of persons already in the cadre, such as their right to seniority. It also appears to me that the Board itself had earlier proceeded on the basis that respondent No. 5 had been appointed as Section Officer by direct recruitment in the year 1972. That is why his earlier representations were rejected and the time-bound promotion was granted with effect from 20th March, 1982, that being the date on which he completed 10 years of service as Section Officer. I, therefore, hold that the petitioner is senior to respondent No. 5 as Section Officer and, therefore, their seniority inter se must be determined in that basis notwithstanding Annexure-1.
12. It was then submitted by counsel for the respondents that in view of the time-bound promotion granted to respondent No. 5, the question of their inter se seniority becomes academic, because in view of the earlier promotion granted to respondent No. 5 to the next higher post, he must be considered to be senior to the petitioner. No such plea has been taken in the counter-affidavit and all that has been said is that since the petitioner as well as respondent No. 5 have been promoted to the post of Assistant Sectretary, the question of inter se seniority becomes academic. It is not possible to accept this contention, because the question of their inter se seniority will arise for future promotions as well. Moreover, the scheme for time-bound promotion gives to a person the benefit of the first promotion at the end of 10 years and the second promotion at the end of 25 years of service to the higher scale of pay. Where the scale of pay includes a junior selection grade and a senior selection grade, the promotion is to be given to such junior selection grade at the time of first time bound promotion and to the senior selection grade when second time bound promotion is granted. In the case of isolated posts or service or cadre not formally constituted, the promotion is to be given to the next higher scale than the pay-scale prescribed for the basic post and that is considered to be equivalent to the junior selection grade. As emphasised in the resolution (Annexure-9) the time bound promotion scheme is an anti-stagnation measure and has to be extended to those who are stagnating in the same scale to which they were appointed or its corresponding revised pay-scale. The benefit of time-bound promotion only entitles the employee concerned to a higher pay-scale, but does not make him senior to those who are otherwise senior to him in the cadre. This is my view, primn facie, on the basis of the submissions advanced at the bar and from the cryptic materials placed before the Court. Obviously such matters must be regulated by the rules or executive orders that may have been issued from time to time. I would, therefore, not venture to investigate this question in the absence of such materials being placed before us. We do not know the date with effect from which the petitioner was granted time bound promotion, if at all. There is a general statement in the counter-affidavit that the petitioner has also got the scale of pay of Assistant Secretary on the basis of time bound promotion. In my view, the averments in paragraph Nos. 9 and 10 of the counter-affidavit are wholly inadequate for adjudication of this question and, therefore, I leave this question open to be decided in case such a dispute arises in future.
13. In the result, I hold that respondent No. 5 was appointed as Section Officer by direct recruitment by order dated 20th March, 1972 (Annexure-4). Though it was open to the Board to give him monetary benefits having regard to the past services rendered by him and for that purpose to treat him as continuously officiating since 16-8-1969, that by itself cannot have the effect of adversely affecting the seniority of the petitioner and Ors. like him, who were promoted as Section Officers prior to 20th March, 1972. The respondent Board, therefore, cannot act on the basis of Annexure-1 and treat respondent No. 5 as senior to the petitioner in the cadre of Section Officers. I also reject .the plea of the respondent-Board that the two cadres of Special Officer and the Section Officers were merged at any time. I have no hesitation in holding that since the post of Special Officer was abolished, having regard to the fact that respondent No. 5 had worked against that post, on compassionate ground he was appointed by direct recruitment as Section Officer.
14. This writ petition is, accordingly, allowed to the extent indicated above.
15. I agree.