ORDER
R.K. Batta, J.
1. The petitioner was working as Head Clerk in the Anjumen Himayatul Islam High School at Baina and by order dated 4th July, 1994, he was reverted from the said post of Head Clerk and appointed as U. D. C. on the ground that the post of Head Clerk had become surplus due to the fall in the strength of students in the said school. By another Order dated 26th August, 1993, punishment of withholding of increment was imposed on the petitioner. Both these Orders have been challenged by the petitioner in this petition. Insofar as challenge relating to withholding of increment is concerned, it has been submitted by learned advocate Shri Sonak, that the Managing Committee has now initiated disciplinary proceedings for break of one day in connection with the imposition of punishment. The said imposition was challenged on various grounds including that
the punishment could not be imposed by the Head Master of the School. However, in view of the fresh proceedings initiated by the Managing Committee in respect of the said matter, learned advocate for the petitioner has stated that he does not press the challenge against the order dated 26th August, 1993 and that he would approach the appropriate authority in case it is necessary, after the conclusion of the said proceedings. Thus, the challenge in this petition is now limited only in relation to deployment reversion of the petitioner on account of his being declared surplus against the post of Head Clerk.
2. The petitioner’s case is that though he has been absorbed in the same School, i.e. Anjumen Himayatul Islam High School, against the post of U. D.C., yet the scale of pay which he had in the post of Head Clerk has not been given to him and the said pay scale has not been protected while reverting him to the post of U. D. C. By interim Order dated 13th February, 1995, which was confirmed on 17th April, 1995, the petitioner has been continued in the pay scale of the post of Head Clerk, though he is working as U. D. C. in the same school.
3. Learned advocate Shri Sonak, appearing on behalf of the petitioner, has submitted before us that the pay scale of the petitioner which he was having in the post of Head Clerk is required to be protected irrespective of whether the petitioner is re-deployed in some other school, or is absorbed in a lower post in the same school. In support of his submission reliance has been placed on Rule 34(3) of the Goa, Daman and Diu School Education Rules, 1986 (hereinafter called “the said Rules”). On the question of pay protection, he has also placed reliance on a Division Bench judgment of this Court in Shri V.J. Rodrigues & others v. State of Goa & others, Writ Petition No. 231/88 decided on 25th July, 1995.
4. On the other hand, learned Government Advocate, Shri Bharne, has urged before us that in case of an employee being declared surplus, proviso to Rule 34(1) of the said Rules, speaks of absorption subject to availability of a vacancy and that while redeploying a surplus employee, the said employee can be appointed against any available vacancy and in that process if no vacancy of Head Clerk or U.D.C. is available in any other school, the petitioner can be deputed against the post of L.D.C., though he would continue to enjoy the pay scale of Head Clerk against the said post of L.D.C. However, he further states that in case the surplus employee wishes to be absorbed in the same School against a lower post he cannot be given protection of the pay scale of the Head Clerk. Not only this, learned Government Advocate further submitted before us that in the eventuality of the employee being redeployed to another school in a lower post of U.D.C. or L.D.C., the seniority of such employee vis-a-vis the employees in the cadre of U.D.C. / L.D.C. shall have to be fixed as junior most employee in the cadre of U.D.C./L.D.C. In support of his submission learned Government Advocate has placed reliance on Rule 80(7) of the said Rules which deals with entitlement of posts in school depending upon the strength; section 87, which deals with seniority and Rule 34(1) second proviso of the said Rules.
5. In order to appreciate the controversy, it is necessary to refer to the relevant provisions of Rule 34 of the said Rules. The relevant portion of the said Rule reads thus:-
“Section 34. Absorption of surplus employees, etc.—(1) Where as a result of–
(a) the closure of an aided school of any class/classes or divisions or discontinuance of any subject in any aided school;
(b) withdrawal of aid from an aided school;
(c) withdrawal of recognition from an aided school; any student or employee becomes surplus, such student or employee, as the case may be , shall be absorbed, in such aided schools, as the Director of Education may specify:
Provided that the absorption in the aided schools of any employee who has become surplus shall be subject to availability of a vacancy and shall be subject further to the condition that the concerned employee possesses the requisite qualification for the post:
Provided further that where any such surplus employee is absorbed in an aided school; he shall be treated as junior to all the persons of the same category, employed in the aided school on the day immediately preceding date on which he is so absorbed.
(2) …………………………………………………………..
(3) Where any surplus employee is absorbed under sub-rule (1)-
(a) the salary and other allowances last drawn by him at the school from which he is become surplus shall be protected.”
6. There is no dispute that the petitioner has become surplus and is entitled to be absorbed as surplus employee under “the Rules. Rule 34(1) provides that the surplus employee shall be absorbed in such aided schools as the Director may specify and such absorption shall be subject to availability of a vacancy and further condition that the concerned employee possess the requisite qualification for the post. The second proviso of Rule 34(1) lays down that where any surplus employee is absorbed in an aided school, he shall be treated as junior to all persons of the same category employed in the aided school on the day immediately preceding the date on which he is so absorbed. Rule 34(3) provides that where any surplus employee is absorbed under sub-rule (1) the salary and other allowances last drawn by him at the school from which he has became surplus shall be protected. Rule 87, to which our attention was drawn by the learned Government Advocate, deals with seniority of employees in each category and the same shall be determined by the order of merit in which they were selected for appointment to the concerned post and those selected on an earlier occasion being ranked senior to those selected later. It also provides for inter-se seniority between direct recruits and promotees. In fact, Rule 87(1) would not, in any manner, lend support to the contention of learned Government Advocate to the effect that when an employee declared surplus, namely Head Clerk in the petition under consideration, is absorbed against lower post, be it a U.D.C. or L.D.C., the surplus employee shall be junior most in the category in which he is so absorbed. This contention will directly militate against Rule 87(1) which provides that those selected on an earlier occasion would rank senior to those selected later.
7. There is no dispute that the concerned authority can absorb a surplus employee against available vacancy, but we cannot accept the contention of learned Government Advocate that the absorbed employee would go down in the seniority list and would be junior most in the category in which he is absorbed, be it U.D.C. or L.D.C. Insofar as the absorption of a surplus employee who is Head Clerk, against another vacancy of Head Clerk in another School is concerned, in view of the second proviso to Rule 34 (1) of the said Rules, the absorbed employee shall have to be treated as juniormost person in the said category of Head Clerk. However, the same Rule cannot be applied
if a surplus Head Clerk is appointed to the post of U.D.C. or, for that matter, against the post of L.D.C. in case no vacancy of U.D.C. is available in any School. On re-deployment against the said post of U.D.C. and L.D.C., which are admittedly lower posts than the post held by the petitioner, his seniority against the said absorbed post cannot be brought down as lowest in the category of U.D.C. or L.D.C. Even in case of reversion of an employee from higher post to lower post, after reversion the employee would rank as seniormost in the category where he is reverted. Accordingly, after reversion of the petitioner to the post of U.D.C. in the same school, he would be on the top of the seniority list of U.D.Cs. There is no reason as to why this principle should not be followed in case of absorption of an employee to a post lower than the one which he was holding. Of course, if the surplus employee who was working as Head Clerk is to be absorbed in any other School in the category of Head Clerk, such Head Clerk shall have to rank as juniormost in the said category of Head Clerks in the other School in the absence of any challenge to the second proviso to Rule 34(1) of the said Rules. The petitioner who was holding the post of Head Clerk would rank as seniormost if absorbed against the post of U.D.C. irrespective of whether he is absorbed in the same School or other school, and will have to be placed on top of the seniority list because otherwise it will result in grave injustice to the petitioner. The proviso to Rule 34(1) of the said Rules shall, therefore, have to be read in the context and the observations made above.
8. The Director of Education in letter dated 13th January, 1999, which has been placed before us has stated:
“The petitioner being surplus he will be accommodated in other School against the available post where his pay and scale attached to the post of Head Clerk will be protected as per the rules. If however the petitioner wants to continue in the same School on lower post, i.e. his original post of U.D.C. in that case only his pay in the lower scale in the post of U.D.C. will be protected. It is further informed that if the petitioner gives his willingness to get absorbed in any other school he should give his option to the Management and in that event till he is absorbed his pay and scale of pay would be protected.”
9. There is no dispute on behalf of the respondents that in case the petitioner is absorbed against any available post in any other School, his pay scale of Head Clerk shall be protected as well as the salary and other allowances last drawn by him. However, it is disputed that in case the petitioner is absorbed in the same School as U.D.C., his pay scale of Head Clerk shall not be protected, but his salary and allowances which he had last drawn in the scale of Head Clerk will be protected and he shall be given pay scale of U.D.C. We do not see any rationale or justification behind this submission put forward before us. It is stated by learned Government Advocate that if an employee who has become surplus is absorbed in another school, not only his pay scale of Head Clerk would be protected, but also his pay and allowances last drawn by him, which means that a surplus employee who was Head Clerk and is absorbed as U.D.C. in another School, will be given the pay scale of Head Clerk. How this pay scale could be denied if the petitioner is absorbed in the same School against the post of U.D.C. is not quite understandable.
10. Learned Advocate Shri Sonak has placed reliance on a judgment of the Division Bench in Shri V.J. Rodrigues & others. v. State of Goa & others
(supra) which strictly speaking may not apply, but the principles laid down therein would certainly be attracted to the controversy in question. In that case, on being declared surplus some Field Surveyors were deputed to other departments and their pay scales were protected, whereas those Field Surveyors who were absorbed against the lower posts in the same department their pay scales were protected. The Division Bench of this Court noted that the differentiation made between the two classes of employees, that is to say, those who were absorbed in other departments and those who were absorbed in the same department, for the purposes of pay scale did not have any rational relation with the differentiation made and it was clear case of discrimination. Accordingly, it was held therein that even those employees who were absorbed in the lower post in the same department would be entitled to pay protection as well as pay scales which they were enjoying prior to their absorption.
11. The learned Advocate for the petitioner has, in fact, stated that the petitioner may be redeployed in any other School in case the respondents so desire, but in case he is absorbed in the same school, the pay scale as well as the pay and allowances which the petitioner was drawing as Head Clerk, should be protected. We find considerable merit in the submission of learned Advocate for the petitioner. We may, therefore, at this stage, point out that in case no post of U.D.C. is available in any other School, the petitioner would be entitled to be absorbed as U.D.C. in the same School and his pay scale of Head Clerk shall be protected.
12. For the aforesaid reasons, we hold that the petitioner shall be entitled to pay scale and pay protection of the post of Head Clerk to whichever post he is absorbed, subject to availability of vacancies in the other School, or in the same School and in case the petitioner is absorbed in a lower post in the same School or another School, he shall rank senior most in the said lower post. However, if he is absorbed as Head Clerk he shall rank as junior most in the said category of Head Clerk in terms of the second proviso to Rule 34(1) of the said Rules. In case no post of U.D.C. is available in any other School, the petitioner will be entitled to be absorbed in the School in which he is working and in such eventuality also pay scale of Head Clerk and pay and allowances last drawn by him in the said scale shall be protected.
13. The petition is allowed in the aforesaid terms. Rule is made absolute in the aforesaid terms with no order as to costs. Liberty is granted to the petitioner to approach the authorities after the final order is passed in the proceedings initiated due to absence of the petitioner on 15th August, 1993.
14. Petition allowed.