Full Judgment Text
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PETITIONER:
KAMESHWAR PRASAD
Vs.
RESPONDENT:
STATE OF BIHAR & ORS.
DATE OF JUDGMENT11/09/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1995 SCC (6) 44 JT 1995 (9) 612
1995 SCALE (5)466
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Delay condoned.
Leave granted. He 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 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.
Consequently, 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.
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 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.
Though the learned councel for the appellant contended
that the District Medical Officer is the competent authority
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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.
The appeal is accordingly allowed to the above extent
but, in the circumstances, without costs.