Case Note & Summary
The matter arose from a service dispute in the Customs Department concerning the seniority of a Preventive Officer Grade II. The appellant, M.D. Habibul Haque, was dismissed from service as a disciplinary measure while serving as Preventive Officer Grade II. On appeal, the Division Bench of the Calcutta High Court set aside the dismissal and remitted the matter to the disciplinary authority. The disciplinary authority, by order dated August 9, 1973, imposed a penalty of reduction of scale of pay for one year with cumulative effect. Subsequently, the appellant was promoted as Preventive Officer Grade I by proceedings dated August 9, 1974. He approached the High Court claiming seniority from the date he became eligible for fitment as Preventive Officer Grade I, contending that his immediate junior, Sarup Kumar Ghosh, had been promoted with effect from February 29, 1968. The learned Single Judge allowed the writ petition and directed the authorities to grant seniority according to the relevant rules. However, the Division Bench reversed this decision, relying on the procedure prescribed in Circular F. No. 3/5/69-Ad.III-A dated April 25, 1972, and held that because the appellant had been imposed the punishment of withholding scale of pay for one year, he was not eligible to count seniority from the date on which his junior was promoted, and that fixation of seniority from August 9, 1974 was in order. Against this judgment the appellant preferred a special leave appeal to the Supreme Court. The core legal issue before the Supreme Court was whether the penalty of reduction of pay for one year with cumulative effect had the effect of reducing the appellant's seniority or disentitling him to seniority from the date his immediate junior was promoted. The appellant argued that pursuant to Departmental proceedings F. No. 2/18/68-Ad.IV(i) dated June 6, 1968, the posts of Preventive Inspectors were abolished and 245 permanent and 15 temporary posts of Preventive Officer Grade I were created, and Grade II officers were to be fitted in a phased manner as vacancies arose. Since his immediate junior was promoted on February 29, 1968, the appellant claimed he was entitled to fitment of seniority from that date. The State contended that unless the Departmental Promotion Committee considered and promoted the appellant, he was not eligible, and that fixing seniority from August 9, 1974 was in accordance with instructions. The Supreme Court found substance in the appellant's contention and no substance in the State's argument. The Court noted that the departmental decision of June 6, 1968 specifically indicated that officers holding Grade II posts as on that date were entitled to be considered for fitment as and when vacancies arose. But for the appellant's removal from service, he would have been entitled to be considered for fitment in Grade I when his junior was considered and promoted on February 29, 1968. The Court held that the punishment imposed on August 9, 1973 was only reduction of scale of pay for one year with cumulative effect, which did not have the effect of reducing seniority nor would it be a punishment of reduction of seniority or placement. Therefore, the High Court fell in error. The Supreme Court allowed the appeal, set aside the Division Bench order, and confirmed the Single Judge's order. The appellant was held entitled to be adjusted in the cadre of Preventive Officers Grade I with effect from February 29, 1968, with all consequential benefits, but no order as to costs.
Headnote
A) Service Law - Seniority - Reduction of Pay Does Not Affect Seniority - Not mentioned - The disciplinary authority imposed a penalty of reduction of pay for one year with cumulative effect. The Division Bench High Court treated this as disqualifying the appellant from seniority from the date of junior's promotion. The Supreme Court held that such penalty operates only on pay and does not amount to reduction of seniority or placement, thus not disentitling the employee. Held that the High Court erred in treating the penalty as affecting seniority. (Paras 1-2) B) Service Law - Seniority - Fitment Date Determined by Junior's Promotion - Not mentioned - Departmental reorganization created Grade I posts and entitled Grade II officers to fitment as vacancies arose; appellant's immediate junior was promoted on 29.02.1968. But for the appellant's earlier removal, he would have been considered on that date. The Supreme Court directed that appellant be adjusted in Grade I w.e.f 29.02.1968 with consequential benefits, setting aside the Division Bench and confirming the Single Judge. (Paras 1-2)
Issue of Consideration
Whether the penalty of reduction of scale of pay for one year with cumulative effect disentitled the appellant from counting seniority from the date his immediate junior was promoted to Preventive Officer Grade-I, and whether seniority should be fixed from 29.02.1968 instead of 09.08.1974.
Final Decision
Appeal allowed; Division Bench order set aside; Single Judge order confirmed; appellant entitled to be adjusted in cadre of Preventive Officers Grade I w.e.f 29-02-1968 with all consequential benefits; no costs.
Law Points
- Reduction of pay with cumulative effect is not a punishment that affects seniority
- employees are entitled to seniority from date of junior's promotion if not for removal
- departmental circular requiring DPC consideration cannot override entitlement when employee would have been considered but for removal
