MOHAMMAD HABIBUL HAQUB Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal by special leave arises from the Judgment of the Division 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, on appeal the Division Bench of the High Court set aside the order of dismissal and remitted the matter to the disciplinary authority to consider the case on all aspects and pass appropriate order. Thereafter, the disciplinary authority by order dated August 9, 1973 considered the matter and imposed the penalty of reducing the 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 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 punishment of with holding 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.

(2.) It is contended by Shri Ganguli, learned senior counsel for the appellant that in the proceedings of the Department in F. No. 2/18/68-Ad. IV (i), dated June 6, 1968 pursuant to the recommendations made by 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 vacancies arise in Grade I, and that on their own showing of the respondents that one Mr. Sarup Kumar Ghosh, who was 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.

(3.) Though the learned counsel for the State seeks to rely on the above instructions prescribing the procedure that unless the DPC considers and 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.