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Tej Narain Tiwary v. State Of Bihar And Others
Factual and Procedural Background
The appellant, Shri Tej Narain Tiwary, was appointed as Special Officer (Stores) in the Bihar School Examination Board on 16 August 1969 for a period “not exceeding six months.” Although the post was temporary, his services continued until 10 March 1971, when he was informed that the post would be abolished with effect from 1 April 1971 and that his services would therefore stand terminated.
Tiwary instituted a civil suit and secured an injunction against both the abolition of the post and termination of his services. The suit culminated in a compromise: the Board agreed to appoint him to the regular cadre post of Section Officer while protecting the pay he had drawn as Special Officer. In implementation, an office order dated 20 March 1972 transferred him to a vacant Section Officer post in the scale of Rs 230-15-350-EB-20-450 and granted him a personal pay of Rs 70 per month to protect his earlier emoluments. The same order simultaneously abolished the post of Special Officer (Stores).
Another employee—respondent 5—had been promoted to Section Officer on 27 August 1970. Disputes later arose over inter se seniority. Two initial representations by the appellant (in 1977 and 1978) seeking seniority from 16 August 1969 were rejected. However, on 11 November 1986 the Board reversed course, gave Tiwary seniority from 16 August 1969, and thereafter placed him above respondent 5 in the seniority list. He was promoted to Assistant Secretary on 20 March 1982 and Deputy Secretary on 29 November 1989.
Respondent 5 challenged the Board’s order before the Patna High Court, contending that seniority should run only from 20 March 1972, the date Tiwary became a Section Officer. The High Court accepted this contention, holding that the Special Officer post was temporary and ex-cadre, so the appellant must rank below respondent 5. The present appeal to the Supreme Court followed.
Legal Issues Presented
- Whether the appellant’s seniority in the cadre of Section Officers should date back to his initial appointment as Special Officer on 16 August 1969 or only to his transfer/appointment as Section Officer on 20 March 1972.
- Whether the abolition of the Special Officer post and simultaneous transfer amounted to a compulsory transfer or an amalgamation of posts, and the legal consequences thereof for seniority.
Arguments of the Parties
Appellant’s Arguments
- The transfer from Special Officer to Section Officer was compulsory; therefore, under accepted service law principles, his seniority must be counted from the date of his original appointment (16 August 1969).
- The Board itself treated the Special Officer post as regular and protected his pay, indicating an intention to consider the service continuous.
- Precedents cited by respondent 5 are inapplicable to the facts of the present case.
Respondent 5’s Arguments
- The Special Officer post was purely temporary and outside the regular cadre; once abolished, any subsequent appointment should confer seniority only from 20 March 1972.
- The High Court correctly held that counting seniority from 1969 would prejudice employees already promoted within the cadre, including respondent 5.
- Reliance was placed on Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra and State of Bihar v. Akhouri Sachindra Nath to assert that service in a temporary ex-cadre post cannot confer seniority in the cadre.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra (1990) 2 SCC 715 | Respondent 5 relied on this decision to argue that service in a temporary or ex-cadre post does not count for seniority in the cadre. | The Supreme Court found that nothing in this judgment “militates against” granting seniority to the appellant; therefore, it did not bar recognition of continuous service from 1969. |
| State of Bihar v. Akhouri Sachindra Nath 1991 Supp (1) SCC 334 | Cited for a similar proposition regarding seniority and temporary appointments. | The Court held the precedent inapplicable, observing that the Board had retrospectively regularised both the post and the appellant’s appointment, distinguishing the facts from those in the cited case. |
Court's Reasoning and Analysis
The Supreme Court rejected the High Court’s approach, emphasising that:
- The appellant had been appointed to a higher, better-paid post (Special Officer) and was then compulsorily transferred—or, in substance, the post was amalgamated into the Section Officer cadre—with complete pay protection. Either construction yields the same legal consequence: continuity of service from 16 August 1969.
- The Board’s own resolutions and subsequent order of 11 November 1986 make clear its intention to treat the Special Officer post as regular and to regularise the appellant’s appointment retrospectively. In the absence of statutory rules to the contrary, such Board resolutions are valid and binding.
- Because the transfer was compulsory and effected to abolish or amalgamate the earlier post, principles of service jurisprudence require that the employee’s seniority be reckoned from the date of original appointment to the abolished post.
- Precedents cited by respondent 5 were distinguishable; they did not preclude the Board’s decision to grant seniority, and nothing in those rulings conflicted with the appellant’s claim.
Holding and Implications
APPEAL ALLOWED.
The Supreme Court set aside the High Court’s judgment, thereby restoring the Board’s decision to accord the appellant seniority from 16 August 1969. No order as to costs was made. The ruling secures the appellant’s higher seniority and the promotions already granted to him; the judgment is fact-specific and does not establish a new, broad precedent beyond affirming established principles on compulsory transfer and pay-protected amalgamation of posts.
Order
1. Leave granted.
2. The admitted facts in the present case are that by an order dated August 16, 1969 the appellant was appointed by respondent 2 — Bihar School Examination Board (‘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. His services, however, were continued till March 10, 1971, when he was intimated that the said post of Special Officer would be abolished, w.e.f April 1, 1971 and consequently his services would stand terminated. The appellant filed a suit and obtained an injunction against the abolition of the 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 March 20, 1972 which stated as follows:
“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 70 per month.”
3. By the same order, another Special Officer (Vigilance) was also appointed 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.
4. The order further stated as follows:
“As per the decision dated December 18, 1971 of the Board, the posts of Special Officer (Stores) and Assistant Vigilance Officer are abolished from the date of issue of this order.”
5. We are not concerned with the post of Special Officer (Vigilance).
6. 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 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 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 March 20, 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 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 the Board itself regularised the appointment from the date of appointment as Special Officer, viz., August 16, 1969, as is evident from its order of November 11, 1986, no objection can be raised in that behalf. However, respondent 5 who was promoted to one of the posts of Section Officers on August 27, 1970 has contended that the seniority given to the appellant in the post of Section Officer, w.e.f August 16, 1969 i.e, from the day on which he was appointed as Special Officer, was illegal. We may now deal with the said contention.
7. 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 August 27, 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 shown at No. 23 whereas, the appellant was shown at No. 33. This was so because two representations made by the appellant to give him seniority from August 16, 1969 stood rejected on April 20, 1977 and March 13, 1978 respectively. It appears that it was for the first time that by the order dated November 11, 1986, the appellant's representation was accepted and he was given seniority from August 16, 1969. Against the said order, respondent 5 filed a writ petition which was withdrawn by him on December 22, 1986 since the learned Advocate General appearing for the Board stated before the Court that by the order dated November 11, 1986 the Board had merely given seniority to the appellant from August 16, 1969 and that grant of this seniority to the appellant had nothing to do with the inter se seniority in the cadre of Section Officers which would be determined later.
8. It appears that, thereafter, a seniority list of Section Officers was prepared by the Board in which the appellant was shown above respondent 5 and was granted promotion to the post of Assistant Secretary on March 20, 1982 and to that of Deputy Secretary on November 29, 1989. Against the said list of seniority, respondent 5 filed the present writ petition in the High Court primarily challenging the order of November 11, 1986 in terms of which the inter se seniority list was prepared.
9. 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 March 20, 1972 he would have to rank below respondent 5 who was appointed as Section Officer on August 27, 1970. The High 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.
10. We are of the view that the approach of the High Court is not 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 March 20, 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 cadre 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 protected on the said transfer. It is true that there is nothing on record except the order of March 20, 1972 to show that the temporary post of Special Officer which was created for the first time on August 16, 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, 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 resolutions 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 with the conditions governing it. There is, therefore, nothing in the decisions relied upon by the learned counsel for respondent 5, viz., Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra (1990) 2 SCC 715, AIR 1990 SC 1607, (1990) 13 ATC 348 and State of Bihar v. Akhouri Sachindra Nath 1991 Supp (1) SCC 334, (1991) 16 ATC 936 which militates against the seniority given to the appellant.
11. We accordingly allow the appeal. There will be no order as to costs.
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