COLLECTOR OF CUSTOMS Vs. MD HABIBUL HAQUE

JUDGEMENT

(1.) IN this appeal, the appellants who are the Customs Authorities have challenged the propriety of the decision of a learned Judge of this Court dated November 21, 1980 whereby the learned Judge made absolute the Rule Nisi that was issued on the application of the respondent, md. Habibul Haque, under Article 226 of the Constitution of India. The principal question that is involved in this appeal relates to the seniority of the respondent in the post of Preventive Officer, Grade I.

(2.) ON October 1, 1964, the respondent md. Habibul Haque was appointed a Preventive Officer, Grade II. A disciplinary proceeding was started against the respondent by the service of a charge-sheet on him. In the said disciplinary proceeding, he was dismissed from service by the order of the Assistant Collector of Customs dated september 12, 1969. The respondent moved against the order of dismissal by filing a writ petition in this Court, the order of dismissal was set aside. Thereafter, a fresh charge-sheet was served on him and another disciplinary proceeding was started against him. In that proceeding, the respondent was held guilty of the charges levelled against him and by an order of the Collector of Customs dated august 9, 1973 a major penalty was imposed, upon the respondent by reducing him (to a lower stage in the scale of pay of Rs. '150-300/- for a period of one year without cumulative effect. It was directed in the said order that the period of reduction in (payment would hot operate to postpone his further increment for the above period. All attempts of the respondent to get the said order of punishment set aside failed. It may be stated here that since June 29, 1968, when the disciplinary proceeding was first started against the respondent, till August 8, 1973, the respondent was, under suspension. On August 8, 1974 the respondent was however, promoted to the post of Preventive officer, Grade I. After the respondent was promoted, he claimed that his seniority in Grade I should be fixed with effect from the date of his appointment to Grade II, ' that is, October 1, 1964 or at 'east from june 12, 1966, on which date he was placed under suspension. It was alleged by the respondent that during the period the disciplinary proceeding was continuing or he was under suspension, the Customs authorities did not consider his case for promotion to Grade I.

(3.) AT the hearing of the Rule Nisi, the respondent placed reliance on a Circular dated April 25, 1972 issued by the Central board of Excise and Customs. The respondent also placed reliance on an administrative instruction on Rule 29 (2) of the Fundamental Rules which provides as follows :