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PETITIONER: L. RAJAIAH

       Vs.

RESPONDENT: INSPECTOR GENERAL OF REGISTRATION &STAMPS, HYDERABAD & ORS.

DATE OF JUDGMENT:       05/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (3)   604        1996 SCALE  (3)134

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      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  No.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  appellant  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.      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  & 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 punishments imposed. Therefore, the respondents cannot  clearly 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

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    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, may  be made in accordance with      the  seniority-cum-fitness   unless      Promotion  of  a  member  has  been      withheld as a penalty."      A    reading    clearly    clearly    indicates    that notwithstanding anything  contained in special ad hoc rules, all promotions  to non-selection  category or  grade  shall, subject to  the provisions  of  Rule  16,  may  be  made  in accordance with  seniority-cum-fitness unless promotion of a Member has  been  withheld  as  a  penalty.  Though  due  to stoppage  of   increment,   he   is   not   ineligible   for consideration for  promotion, he is otherwise entitled to be considered in  accordance with  the Rules, namely, seniority cum-fitness.  However,  when  seniority-cum-fitness  is  the criteria, the  imposition of  the penalties  for one year on 1.3.1988 and  in another  enquiry, stoppage of increment for five years  from 1.3.1988  i.e., till 28.2.1994, disentitled him to  be considered;  so he  did not  regain  fitness  for consideration for  promotion  as  he  was  under  disability undergoing punishment.  Consequently, when  the promotion to the post  of Senior  Assistant is  on the basis of merit and ability  under   special  rules,   fitness  is  one  of  the considerations for  the purpose.  Since  he  was  undergoing punishment during  the relevant  period, he  is not eligible for consideration for promotion. Therefore, his juniors have stolen march  over the  appellant as  Senior Assistants,  He cannot thereby have any grievance. However he is entitled to be considered  for promotion  according to rules after March 1,1994.      The appeal is accordingly disposed of. No costs.