Kameshwar Prasad Vs. State of Bihar and ors. - Court Judgment

Excerpt:
service - absorption - appellant was appointed as vaccinator in smallpox eradication programme - subsequently said scheme disbanded - decision taken to retain 25% of senior officers and to absorb remaining 75% in equivalent posts in regular cadres - appellant was promoted as clerk subject to confirmation - appointment of appellant as clerk cancelled by higher authorities - appellant required to be absorbed in equivalent post - competent authority directed to absorb appellant as per his turn - appeal allowed. - labour & services retirement benefits: [tarun chatterjee & h.l. dattu, jj] belated claim termination of services solely on ground of conviction in criminal case - conviction set aside in appeal denial of retiral benefit by employer dismissal of writ petition mainly on ground of belated challenge to termination order after acquittal in appeal held, where there is inordinate and unexplained delay and third party rights are created in the intervening period, the high court would decline to interfere. however, if the delay is properly explained, and if the third party rights is not going to be affected, the high court may entertain the petition and consider the case of the aggrieved person on merits. where the services of the appellants deceased husband were terminated only on the ground, that he was convicted by a judicial magistrate for certain offences under the provisions of penal code, till that order is set aside by a superior forum, the appellants husband or the appellant could not have questioned the same till he was acquitted by the sessions court. in view of these peculiar circumstances the high court was not justified in rejecting the prayer of the appellant for grant of retrial benefits primarily on the ground of delay and laches on the part of the appellant in questioning the order of termination passed on 4.8.1992 in a petition filed in the year 2005, after acquittal by sessions court in appeal. there is no such negligence or laches or acquiescence on the part of the appellant as may disentitle her for grant of a writ. it is not a case where the delinquent employee was dismissed from service on the ground that he was charge-sheeted by the police for certain offences under i.p.c. after holding a departmental enquiry. in such a case, the delinquent employee could not have been heard to say that he did not question the order within a reasonable time, since the order of conviction passed by the judicial magistrate has nothing to do with the order passed by disciplinary authority. since, the punishment imposed was based on an order of conviction and since the same is set aside by an order passed by a superior forum and that order having become final for various reasons, including the death of the appellants husband, as natural corollary, the request of the appellant requires to be redressed by the employer and since that was not done, a writ court ought to have come exercised its extraordinary jurisdiction by commanding the employer to redress the grievance of the appellant without resorting to a hyper technical approach. in view of the above, the order passed by the employer terminating the services of the appellant was liable to be set aside. in such circumstances although the appellant is not entitled to back wages, she would be entitled to pension only. order1. delay condoned.2. leave granted. we have heard learned counsel on both sides.3. 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.4. 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.5. though the learned counsel 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 par 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.6. the appeal is accordingly allowed to the above extent but, in the circumstances, without costs.

Judgment:
ORDER

1. Delay condoned.

2. Leave granted. We have heard learned Counsel on both sides.

3. 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.

4. 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.

5. Though the learned Counsel 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 par 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.

6. The appeal is accordingly allowed to the above extent but, in the circumstances, without costs.