MD. HABIBUL HAQUE

\".

UNION OF INDIA AND ORS.

AUGUST 17, 199~

(K. RAMASWAMY AND S.C. AGRAWAL, JJ.]

Sen"ice Law-Employer-1'1111ishment of reduction of pay scale for one year with cum11latfre effect-Promotion to higher grade subsequelll to imposi

tion of p1111ishment-Effect 011 senioril)-Employee's claim for seniority from tire date his junior was giren fitment in higher grade held justified.

The appellant was working as Preventive Officer Grade-II. By an order dated August 9, 1973, a penalty of reduction of pay scale for one year with cumulative effect was imposed on him. Subsequently, he was promoted as Preventive Officer Grade-I with effect from August 9, 1974. D His claim for seniority from the date he was eligible for fitment in Grade-I was allowed by a single judge or the High Court. However, no appeal, the Division Bench held that in view or the punishment imposed the appellant was not entitled to count his seniority from the date on which his juniors were promoted.

E In appeal to this Court, it was contended on behalf or the appellant that vide proceedings or the Department in No. F. No. 2/18/68-Ad.IV(iv) dated June 6, 1968 the cadre or Preventive Inspectors was re-organised and directions were given to fit grade-II Officers in a phased manner as and when vacancies arise in Grade-I, the immediate junior or the appellnt was p promoted with effect from February 29, 1968 and therefore, the appellant was entitled to the fitment or his seniority from that date.

Allowing the appeal and setting aside the order of the Division Bench, the Court

HELD : The High Court erred in considering that there was a punishment imposed upon the appellant. The punishment imposed, reduction or scale or pay for one year with cumulative effect, does not have the effect of reducing his seniority . Nor was it a punishment of reduction of seniority or any placement which the appellant was entitled to hold lo the H 717

A order of seniorit)·. Therefore. the appellant is entitled to be adjusted in the cadre of Preventive Officer Grade-I from the date on which his immediate

junior "'as considered and \\'as given fitment in Grade I.

[]719-GH, 720-A]

CIVIL APPELLATE JURISDICTION: Ci, il Appeal No. 3997 of B 1983.

From the Judgment and Order dated 23.12.82 of the Calcutta High Court in F.M.T. No. 3515 of 1980.

AD. Sikri for the Appellant.

C.V. Subba Rao for the Respondent.

The following Order of the Court was delivered :

" This appeal by special leave arise from the Judgment of the Dhision D Bench of the High Court of Calcutta, dated December 23, 1982 in F.M.A.T.

No. 3515/80. The appellant, while working as a Preventive Officer, Grade II, was dismissed from service by way of disciplinary measure. But, one appeal the Division Bench of the High Court set aside the order of dismissal and remitted the matter to the disciplinary authority to consider E the case on all aspects and pass appropriate order. Thereafter, the discipli nary authority by Order dated August 9, 1973 considered the matter and imposed the penalty of reducing the scale of pay for one year with cumulative effect. Thereafter, the appellant was promoted as Preventive Officer, Grade-I by proceedings dated August 9, 1974. Thereafter, he approached the High Court claiming seniority from the date to which he is eligible for F fitment as Preventive Officer, Grade I. The Learned Single Judge issued the writ and directed the authorities to grant him seniority according to the relevant rules. On appeal, the Division Bench, relying upon the procedure prescribed in the Circular F. No. 3/5/69-Ad.III-A, dated April 25, 1972 and placing reliance on paragraph 7, held that since the appellant was imposed G punishment of withholding scale of pay for one year, he was not eligible to count the seniority from the date on which his junior was promoted and that therefore, the fixation of seniority with effect from August 9, 1974 was in order. Thus, this appeal by special leave.

Ii is contended by Shri Ganguli, learned senior counsel for the H appellant that in the proceedings of the Department in F. No. 2/18/68-

I \

HABIBUL HAQUE v. U.0.l. 719

Ad.JV(i), dated June 6, 1968 pursuant to the recommendations made by A the Customs Study Team, the posts of Preventive Inspectors were abolished and equal number of posts, namely, 245 permanent and 15 temporary posts were created and directions were given to fit grade-II officers in a phased manner as and when vaancies arise in Grade I, and that on their O\VTI showing of the respondents that one Mr. Sarup Kumar Ghosh, who was B immediate junior below the appellant was promoted w.e.f. February 29,

1968. The appellant is entitled to the fitment of his seniority as on February 29, 1968. We find force in the contention.

Though the learned counsel for the State seeks to rely on the above instructions prescribing the procedure that unless the DPC considers and C promotes the appellant to the post of Preventive Officer-Grade I, he is not eligible to be considered and that therefore, the procedure adopted by the Department to give him Seniority w.e.f. August 9, 1974 is perfectly in accordance with the instructions referred to hereinbefore, we find no substance in the contention.

It is seen that in the decision taken by the Department on June 6,. 1968 reorganising the preventive officers cadre -and sanction of posts, it was specifically stated that the creation of the usuai scale of pay of the allowances of 245 earmarked posts of Preventive Officers-Grade I and consequent E abolition of 245 posts of Preventive Officers-Grade II would indicate that the officers holding the posts of Preventive Officer Grade-II as on that date

are entitled to be considered for fitment as and when the vacancies would arise. But for the removal of the appellant from service, he would have been entitled to be considered for fitment in the grade of Preventive Officers, Grade I when his junior mo't officer, namely, Sarup Kumar Ghosh was considered and promoted w.e.f. February 29, 1968. The High Court fell in error in considering that there was a punishment imposed upon the appellant in the order dated August 9, 1973. It is seen that the punishment imposed was only reduction of scale of pay for one year with cumulative effect. That does not have the effect of reducing his seniority G nor would it be a punishment of reduction of seniority of any placement which the appellant would be entitled to hold in the order of seniority.

Under those circumstances, we are of the view that the appellant is entitled to be adjusted in the cadre of Preventive Officers, Grade I w.e.f. February 29, 1968, the date on which his immediate junior was considered and was H

A given fitment as Preventive Officer, Grade-I.

The appeal is accordingly allowed. The order of the Division Bench is set aside and that of the Single Judge is confirmed. The appellant is entitled to all the consequential benefits. But in the circumstances, there will be no order so to costs.

T.N.A.

Appeal allowed. ·