- (1.) Leave granted.
(2.) The appellant was appointed as a Junior Assistant in the Registration and Stamps Department in the Warangal District of A.P. in 1978. Respondent Nos. 4 and 5 were juniors to him as Junior Assistants. The appellant was promoted temporarily as Senior Assistant on October 23, 1989. But when his seniors were reverted, he had given place to them. In G.O.M.S. No. 378 on March 30, 1991 two posts of Senior Assistant were created and respondents Nos. 4 and 5 were appointed to those posts but the appellant was not considered and was thus denied the appointment. Consequently, he filed an application in the Tribunal. The Tribunal in the impugned order dated August 5, 1994 made in O.A. No. 7580/92 while holding that the appellate was not entitled to the promotion from the date on which his immediate juniors were promoted, directed the respondents to consider his case for promotion to the post of Senior Assistant as per the rules and eligibility. Calling in question the said orders this appeal by special leave has been filed.
(3.) Shri A.D.N. Rao, the learned counsel for the appellant, contended that stoppage of increment is not a penalty for promotion. Under Rule 34 (b) (ii) of the A.P. State and Subordinate Service Rules, if promotion is withheld as a penalty, the appellant became ineligible only for promotion. Stoppage of increment is not a penalty by way of promotion. Under A.P. Classification, Control and Appeal Rules, various types of penalties have been prescribed. Penalty by way of promotion is one of the punishment imposed. Therefore, the respondents cannot deny the promotion to the appellant. Though prima facie, the argument is plausible, it is difficult to accept the same. Rule 34(b)(ii) itself clearly indicates that promotion would be made on the basis of seniority-cum-fitness. The Rule reads as under:- "Promotion to non-selection category or grade notwithstanding anything contained in Special Ad hoc Rules and promotions to Non-section category or grade shall subject to the provisions of Rule 16, be made in accordance with the seniority-cum-fitness unless promotion of a member has been withheld as a penalty". ;