MD. HABIBUL HAQUEversusUNION OF INDIA AND ORS.

                        MD. HABIBUL HAQUE                                       A
                                     \".

                     UNION OF INDIA AND ORS.

                            AUGUST 17, 199~

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

       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.          c
      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 appell~nt 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
                                                                                G
       HELD : The High Court erred in considering that there was a
punishment imposed upon the appellant. The punishment imposed, reduc-
tion 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
    718                   SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

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-G·H, 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
          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 cumula-
    tive effect. Thereafter, the appellant was promoted as Preventive Officer,      I
    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-
                        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 va~ancies 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.                                                     D

       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 allowan-
ces 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
                                                                                F
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
    720                  SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

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. ·