Prasad Vs. State of Bihar & Ors  INSC 480 (11 September 1995)
K. Ramaswamy, K. Hansaria B.L. (J)
1995 SCC (6) 44 JT 1995 (9) 612 1995 SCALE (5)466
O R D
heard learned counsel on both sides.
the appellant was appointed as Vaccinator in a Small Pox Eradication Programme
on May 6, 1975. The scheme was disbanded 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 consider his case. Accordingly, the High Court by
order dated January 22,
1991 directed the
Medical Officer to consider his case. A representation was made by the
appellant to consider him for promotion as a clerk.
the District Medical Officer promoted him on May 7, 1991 as a clerk and he joined as such on May 9, 1991.
District Medical Officer had stated in the letter of appointment that his
promotion would be subject to the confirmation by the Director-in-Chief.
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 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.
this appeal by special leave.
the learned councel 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 absorbed in an equivalent post because he was found to be
a surplus Vaccinator. The equivalent post is that of Vaccinator in other
departments. 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 per 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 entitled to salary attached to the post of
clerk for the said period.
appeal is accordingly allowed to the above extent but, in the circumstances,