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TMI Blog1988 (8) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... against the orders dated 8/9-4-1986 of the Central Administrative Tribunal, Delhi, and the order dated 29.10.1986 of the Central Administrative Tribunal, Gujarat, respectively, affirming the orders of the Disciplinary Authorities imposing on the petitioner and the appellant the penalty of reduction in rank to post lower than the one to which both of them were initially recruited. There is a divergence of judicial opinion amongst the High Courts on the point: The Division Benches of the Orissa and Karnataka High Courts have held that such a reduction in rank is not possible at all. [See: Babaji Charan Rout v. State of Orissa and Ors., [1982] 1 SLJ 496; Shivalingaswamy v. State of Karnataka, [1985] ILR Kar. 1453]. However, the Madras, Andhra Pradesh and Allahabad High Courts have held that there is no limitation on the power to impose such a penalty. [See: Gopal Rao v. C.l.T., [1976] 2 MLJ 508; Mahendra Kumar v. Union of India, [1984] 1 All India Ser. Law Jour. 34; S.N. Dey v. Union of India Ors., [1983] 2 SLJ All. 114]. The Central Administrative Tribunal, Madras, in C.S. Balakumar v. The lnspecting Asstt. Commissioner of Income Tax, [1987] 1 All India SLJ 18 has also subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dabad, preferred against the order No. OA 103 of 1986 dated 29.10.1986 of the Central Administrative Tribunal, Ahmedabad, rejecting appellant s challenge to the legality and correctness of the order dated 15.5.1988 of the Post Master General who in modification of the earlier orders imposing a penalty of compulsory retirement on him, substituted in its place the order imposing the penalty of reduction in rank to the post of Lower Division Clerk pursuant to the findings recorded against the appellant on the charge of accepting illegal gratification. Appellant had been directly recruited as an Upper Division Clerk in the Office of the Post Master General, Gujarat Circle, Ahmedabad. He was reduced to the lower post of Lower Division Clerk until he was found fit after a period of five years from 15.5.1986. However, the appellant s seniority on re-promotion was directed to be fixed at what it would have been, without the reduction. 4. We have heard Shri J.S. Bali, learned counse] for the appellant-Nyadar Singh and Shri K.M.K. Nair, learned counsel for the appellant-Ninama; and Shri Kuldip Singh, learned Additional Solicitor General for the respondents in both the appeals. 5. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missal and removal for the reason that the penalty of reduction in rank has the effect of removing a Government servant from a class or grade or category of post to a lessor class or grade or category. Though the Government servant is retained in service, however, as a result of the penalty he is removed from the post held by him either temporarily or permanently and retained in service in a lesser post. The expression rank , in reduction in rank has, for purposes of Article 311(2), an obvious reference to the stratification of the posts or grades or categories in the official hierarchy. It does not refer to the mere seniority of the Government servant in the same class or grade or category. Though reduction in rank, in one sense, might connote the idea of reversion from a higher post to a lower post, all reversions from a higher post are not necessarily reductions in rank. A person working in a higher post, not substantively, but purely on an officiating basis may, for valid reasons, be reverted to his substantive post. That would not, by itself, be reduction in rank unless circumstances of the reversion disclose a punitiveelement. The submission of the learned Additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . . . . , and I see m, reason why this penalty cannot be imposed upon a person who, on the date of imposition of penalty, is continuing in the same post to which he was appointed by direct recruitment. This is not a case of reversion of a Government servant to his substantive post for want of vacancy or otherwise, but this is a case of reduction by way of punishment. I am unable to read any limitation upon the power of the disciplinary authority to impose this punishment on the petitioner, as suggested. No decision has also been brought to my notice supporting this contention It must, however, be observed that in the above case the High Court upheld the challenge of the appellant that there was no misconduct at all. The other observations as to the scope of the Rude were, therefore, unnecessary for the decision of the case. 7. The opposite view is taken by the Orissa High Court in Babaji Charan Rout v. State of Orissa and Ors., [1982] 1 All India SLJ 496 and by a Division Bench of the Karnataka High Court in Shivalingaswamy v: State ot Karnataka, [l985] ILR Kar. 1453. In the first case, there is no discussion of the matter as the Division Bench merely followed an earlier unr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, Control and Appeal) Rules, 1965, on its true construction permits reduction in rank in the case of a direct recruit if the post to which he is reduced is in the line of promotion i.e. is a feeder service . . . . . But as against this judicial-opinion in Srinivasa Sastry s case, the learned Judge, as auther, [See Services under the State : Indian Law Institute, page 220] expressed the view: Therefore, it is reasonable to take the view that a civil servant earns promotion by exhibiting his merit and ability and suffers reduction in rank instead of removal or dismissal for misconduct or inefficiency during his service in the higher post unless he is unworthy of being retained in the service and that the word reduction in rank is used in Article 311 in this sense. It appears that the punishment by way of reduction in rank can be inflicted only against a civil servant who held a lower post and who has been promoted to the higher post; ..... 9. The contention of the learned Additional Solicitor General that when a legislative-authority uses the expression reduction in rank without imposing any limitations there is no justification to fetter or otherwise limit the pleni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded statute would have yielded results more consonant with fairness and reasonableness. Consequences do not alter the statutory Ianguage, but may only help to fix its meaning. 10. As to whether a person initially recruited to a higher time-scale, grade or service or post can be reduced by way of punishment, to a post in a lower time-scale, grade, service or post which he never held before, the statutory-language authorises the imposition of penalty does not, it is true, by itself impose any limitations. The question is whether the interpretative-factors, relevant to the provision, impart aNy such limitation. On a consideration of the relevant factors to which we will presently refer we must hold that they do. Though the idea of reduction may not be fully equivalent with reversion , there are certain assumptions basic to service law which bring in the limitations of the latter on the former. The penalty of reduction in rank of a Government servant initially recruited to a higher time-scale, grade, service or post to a lower time-scale, grade, service or post virtually amounts to his removal from the higher post and the substitution of his recruitment to lower post, affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promotion from the latter category to the former category? It appears to me that on a fair and proper construction of rule II (vi) of the Rules, the condition precedent for the exercise of power under that rule by way of imposing penalty of reduction in rank to a lower post is, that the higher post from which the concerned civil servant is sought to be reduced must be a promotional post in relation to the lower post to which he is sought to be reduced . . . . . [See 1979 3 SLR 509 at 516]. The argument that the rule enables a reduction in rank to a post lower than the one to which the civil servant was initially recruited for a specified-period and also enables restoration of the Government servant to the original post, with the restoration of seniority as well, and that, therefore, there is nothing anomalous about the matter, does not, in our opinion, wholly answer the problem. It is at best one of the criteria supporting a plausible view of the matter. The rule also enables an order without the stipulation of such restoration. The other implications of the effect of the reduction as a fresh induction into a lower grade, service or post not at any time earlier held by the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, we are of the opinion that it would be somewhat unfair that at this distance of time the matters are re-opened. We think, having regard to all the circumstances of the cases the orders that commend themselves appropriate in the two cases are in terms following: (i) In the first of the appeals, appellant-Nyadar Singh, has, after the period of the reduction in rank has spent itself out, been restored to the original position. It would, therefore, be sufficient to set aside the penalty imposed on him and direct that the period of service in the reduced post be treated as service in the post held by him prior to imposition of the penalty, subject to the condition, however, that the appellant shall not be entitled to any difference of salary for and during the period of reduction. In view of this, we think that the proceedings taken against him should come to an end and there is no need to remit the matter to the Disciplinary-Authority for selection and imposition of a fresh penalty. (ii) In the case of M.J. Ninama the penalty of reduction in rank is set aside and he shall be restored to the post which he held before the imposition of the penalty. However, for the period, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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