Case Note & Summary
The dispute arose from the appellant's service as a Vaccinator under the Small Pox Eradication Programme, a temporary scheme that was disbanded in 1985. A subsequent decision dated November 14, 1986 provided for the retention of 25 per cent of senior officers and absorption of the remaining 75 per cent into equivalent posts in regular cadres. The appellant, being a surplus Vaccinator, awaited absorption. He filed CWJC No.2412/90 seeking a direction to consider his case, and the High Court on January 22, 1991 directed the Medical Officer to consider it. The appellant then made a representation for promotion as a clerk. Consequently, the District Medical Officer promoted him on May 7, 1991, and he joined as clerk on May 9, 1991. The letter of appointment stated that the promotion was subject to confirmation by the Director-in-Chief. The Director-in-Chief cancelled the appointment on December 10, 1992, citing Resolution No.2215 dated February 11, 1985, which required that any promotion be made according to rules of seniority-cum-fitness and reservation. Since the appellant's appointment was not made in pursuance of that resolution, he was held not properly appointed as clerk. Aggrieved, the appellant filed CWJC No.13022/92, which the High Court dismissed on February 2, 1993; a review petition was also dismissed on January 4, 1994. Hence the appeal by special leave. Before the Supreme Court, the appellant contended that the District Medical Officer was the competent authority to appoint a clerk. The Court held that even if the District Medical Officer was the appointing authority, he was required to follow the principles laid down in Resolution No.2215 dated February 11, 1985, and indisputably he did not follow that procedure. Therefore, the cancellation of the promotion was upheld. However, the Court noted that the appellant was really required to be absorbed in an equivalent post because he was found to be a surplus Vaccinator. The equivalent post was that of Vaccinator in other departments. Therefore, on the basis of his order in the merit list of surplus employees, he was required to be absorbed. As soon as his turn came, the competent authority was directed to absorb him. On his absorption, according to the said resolution and on par with other candidates, his case would be considered for promotion as clerk. The Court further held that since the appellant had already worked from May 8, 1991 to December 10, 1992 as clerk, he was entitled to salary attached to the post of clerk for that period. The appeal was allowed to that extent, but without costs.
Headnote
A) Service Law - Absorption of Surplus Employees - Government Resolution - Not mentioned - The appellant was a surplus Vaccinator from a disbanded Small Pox Eradication Programme. The court held that he was entitled to be absorbed in an equivalent post as per the Government Resolution, and when his turn arises, the competent authority must absorb him, after which he could be considered for promotion as clerk. Held that absorption is a right for surplus employees. (Paras Not mentioned) B) Service Law - Promotion - Procedural Compliance and Salary - Not mentioned - The promotion of the appellant as clerk was made by the District Medical Officer subject to confirmation by the Director-in-Chief. Since the promotion did not follow Resolution No.2215 dated 11-02-1985 regarding seniority-cum-fitness and reservation, the cancellation by the Director-in-Chief was upheld. However, the appellant having actually worked as clerk from May 8, 1991 to December 10, 1992, was held entitled to salary for that period. Held that procedural irregularity in appointment does not deprive salary for work done. (Paras Not mentioned)
Issue of Consideration
Whether the cancellation of the appellant's promotion as clerk by the Director-in-Chief was valid; whether the appellant as a surplus Vaccinator was entitled to absorption in an equivalent post and to salary for the period he actually worked as clerk.
Final Decision
The appeal was allowed to the extent that the appellant was entitled to be absorbed in an equivalent post as a surplus Vaccinator when his turn came according to the merit list. The competent authority was directed to absorb him. On absorption, his case would be considered for promotion as clerk on par with other candidates. The appellant was also held entitled to salary attached to the post of clerk for the period from May 8, 1991 to December 10, 1992. No costs were awarded.
Law Points
- Competent authority must follow prescribed procedure for promotion
- Surplus employees entitled to absorption in equivalent posts as per policy
- Salary for period actually worked even if appointment later cancelled
