IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SIXTEENTH DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.8531 of 1999 Between: G. Gangadas Phulchand … Petitioner AND The Zonal Manager, Food Corporation of India, Zonal Office, Chennai & another. … Respondents Counsel for the petitioner : Sri V. Vishwanatham Counsel for the respondents: Sri Meherchand Noori This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.8531 of 1999 ORDER:- This writ petition is filed for a Writ of Mandamus to set aside memo dated 16.09.1998, whereby the petitioner’s request for re-fixation of his seniority in Technical Assistant Grade-I has been rejected. The facts in brief are stated hereunder: The petitioner was initially appointed as Assistant Grade-III (Technical) on daily wage basis with effect from 11.12.1975. He was later on disengaged on 17.01.1976 and after a short break, he was reengaged with effect from 21.01.1976. The petitioner’s services were regularized by order dated 21.05.1976 as Assistant Grade-III (Technical). The petitioner was promoted as Assistant Grade-II (Technical) with effect from 20.01.1982 and as Assistant Grade-I (Technical) with effect from 13.12.1987. As the petitioner’s past service, up to the date of his regularization, was not taken into consideration while preparing seniority list of Assistant Grade-III, he filed WP.No.15795 of 1989. This Court disposed of the said writ petition by order dated 18.01.1997, wherein it was held that there was no reason for denying the petitioner the benefit of past service till his services were regularized. Accordingly, this Court directed respondent No.1 to consider the case of the petitioner for reckoning his seniority from the date of initial engagement in the cadre of Assistant Grade-III (Technical) and take an appropriate decision. This Court also further directed that the petitioner shall be given all consequential benefits treating him as in regular service with effect from the date of his initial engagement. Purporting to follow the said order, respondent No.1 issued office order dated 16.09.1997, wherein the petitioner’s seniority was revised and he was placed at Sl.No.106(a) above Y.J. Rama Rao apart from revising the date of regularization of his service as 08.01.1976 instead of 26.05.1976. As the petitioner’s seniority in Technical Assistant Grade-I and Grade-II was not revised, he made a representation, which was replied to by the impugned memo, wherein his request was rejected on the ground that the petitioner was undergoing penalty during the period from 25.06.1979 to 24.06.1982 and therefore not eligible for promotion as Technical Assistant Grade-II during the said penalty period. At the hearing, Sri V. Vishwanatham, learned counsel for the petitioner assailed the reasoning contained in the impugned memo by stating that the penalty imposed on the petitioner did not have the effect of denying promotion to him. He placed reliance on regulation 54 (v) of the Food Corporation of India (Staff) Regulations, 1971 (for short, ‘the Regulations’). Sri Meherchand Noori, learned Standing counsel for the Food Corporation of India sought to justify the stand of the Corporation by contending that as the petitioner was undergoing penalty of reduction to a lower stage in the time scale of pay from 25.06.1979 to 24.06.1982, he was not eligible for promotion during that period and that as several of his juniors were promoted during the said period, the petitioner had to content himself with the seniority as was prepared by the department according to which he figured at Sl.No.438 in Technical Assistant Grade-I category. I have carefully considered the respective submissions of the learned counsel for the parties. Regulation 54, to the extent it is relevant, reads as under: “54. Penalties:- Notwithstanding anything contained in any other regulation, and without prejudice to such action to which an employee may become liable under any other regulation or law for the time being in force, the following penalties may (for good and sufficient reasons and as hereinafter provided) be imposed on any employee of the Corporation. 54(v) reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the employee of the Corporation will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay. 54(vi) reduction to a lower time-scale of pay or post which shall ordinarily be a bar to the promotion of the employee to the time-scale of pay or post from which he was reduced, with or without further directions regarding conditions of restoration to the post from which the employee of the Corporation was reduced and his seniority and pay on such restoration to that post.” A perusal of the above reproduced regulation makes it evident that in case of penalty imposed under clause (v), the employee will not incur the disqualification for promotion during the period of his undergoing the penalty, while under sub-clause (vi), the penalty imposed shall ordinarily be a bar to the promotion of the employee. Admittedly the penalty imposed on the petitioner was under sub-clause (v) and not under sub-clause (vi). Therefore, there was no bar on the petitioner being promoted, if his turn has matured during the period between 25.06.1979 and 24.06.1982. In my considered view, the reason assigned in the impugned memo cannot be sustained. If the petitioner’s promotion was withheld during the period between 25.06.1979 and 24.06.1982, such an action is plainly contrary to the respondent Corporation’s regulation as reproduced above. From the discussion undertaken above, the inevitable conclusion that would emerge is that the petitioner is entitled for maintenance of the same seniority, which was revised vide proceedings dated 16.09.1997 for Grade-III, even in respect of Grades I and II also. If the petitioner was denied promotion during the period when he suffered the penalty, such denial is contrary to the regulations. Respondent No.1 shall reconsider the representation of the petitioner in the light of the findings contained in this order and pass an appropriate order for revising his seniority in Technical Assistant Grade-I in the same way as was done in respect of Technical Assistant Grade-III, within a period of three months. In view of the above observations, the writ petition is allowed. As a sequel to disposal of the writ petition in the manner indicated above, WPMP.No.10550 of 1999 filed by the petitioner for interim relief is disposed of as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 16.12.2008 ES