(1) LEAVE granted.

(2) THE admitted facts in the present case are that by an order dated 16/08/1969 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 10/03/1971, when he was intimated that the said post of Special Officer would be abolished, w.e.f. 1/04/1971 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 20/03/1972 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. 70.00 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. 20.00 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. 70.00 per month was arrived at. Read with the note put up by the secretary of the Board, it is apparent that appellants 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 20/03/1972, 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., 16/08/1969, as is evident from its order of 11/11/1986, no objection can be raised in that behalf. However, respondent 5 who was promoted to one of the posts of Section Officers on 27/08/1970 has contended that the seniority given to the appellant in the post of Section Officer, w.e.f. 16/08/1969 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