Hon'ble Bachchoo Lal,J.
1. Heard Sri Neeraj Kumar Srivastava, learned counsel for the petitioner, Sri G.D. Mishra, learned counsel for respondents no. 2 and 3, learned Standing Counsel for the State and perused the record.
2. This writ petition has been filed challenging order dated 10.11.2014 (Annexure-19 to the writ petition) passed by Chairman, Administrative Committee State Cooperative Dairy Federation, Lucknow-respondent no. 2 whereby punishment of reversion in the pay scale of petitioner has been awarded and he has been reverted from the pay scale of Rs. 10,000 - Rs. 15,200 to the pay scale of Rs. 8,000 - Rs. 13,500 at lowest level i.e. Rs. 8,000/-.
3. The facts in brief giving rise to this writ petition are that petitioner was directly appointed as Dy. Manager (Animal Husbandry) and he joined duty in the department on 20.1.1984. A charge-sheet was issued to petitioner on 24.8.2009 with the allegation that the petitioner was responsible for less production of milk during various periods and he has committed carelessness and failed to discharge his duty and responsibility on account of which Federation suffered heavy financial loss and act of the petitioner is a serious misconduct. Prior to that on 14.7.2009 petitioner was suspended. Copy of the charge-sheet has been annexed as Annexure-10 to the writ petition+. Petitioner replied to the charge-sheet on 14.10.2009.
4. Since petitioner was not being paid subsistence allowance, he filed a Writ Petition No. 68008 of 2009 in this Court for quashing suspension order and payment of subsistence allowance. Writ petition was disposed of vide order dated 15.12.2009 with a direction that enquiry be completed within a period of 3 months and in case enquiry is not completed, respondents shall consider revocation of suspension order. In compliance of the aforesaid order of this Court, respondents revoked suspension order and paid subsistence allowance to petitioner. However, enquiry could not be completed within 3 months.
5. In the meantime, a supplementary charge-sheet dated 8.2.2010 was also served upon petitioner wherein it was alleged that Rehabilitation Grant and District Plan Money was not used according to the plan. The petitioner replied said charge-sheet vide reply dated 31.8.2010. Inquiry Officer, thereafter, submitted inquiry report (Annexure-16 to the writ petition) holding petitioner guilty of the charges of misconduct levelled against him. The disciplinary authority thereafter, issued a show cause notice dated 25.9.2010 which was replied by petitioner on 16.4.2012 denying allegations made in the show cause notice. Thereafter, impugned order of punishment dated 10.11.2014 reverting petitioner to the lowest pay of Rs. 8,000/- in the pay scale of Rs. 8,000 - Rs. 13,500 has been passed. It is this order which is under challenge in this writ petition.
6. It is contended by learned counsel for petitioner that petitioner having been directly appointed on the post of Dy. Manager (Animal Husbandry), could not be reverted by placing him in a lower grade. Further it is contended that the inquiry officer had no authority to issue additional charge-sheet dated 8.2.2010 and opportunity of hearing was denied to him by inquiry officer in respect of the said additional charge.
7. Admittedly, petitioner was appointed as Dy. Manager (Animal Husbandry) in November, 1983. By Notification dated 29.8.1984 Centralized Service Rules known as U.P. Cooperative Dairy Federation and Milk Unions Centralized Service Rules, 1984 (hereinafter referred to as Rules, 1984) were notified and enforced, where under petitioner was absorbed and appointed as Manager Grade-III (Animal Husbandry) which was equivalent to the post of Dy. Manager (Animal Husbandry). By means of impugned punishment petitioner has been reverted from the post of Manager Grade-III (Pay scale Rs. 10,000 - Rs. 15,200) to the pay scale Rs. 8,000 - Rs. 13,500 which admittedly is the pay scale of Manager Grade-IV, a rank below Manager Grade-III.
8. When questioned whether petitioner was ever appointed or placed on the post of Manager Grade-III, counsel for respondents could give no reply. On the contrary, from record we find that petitioner was never posted or placed as Manager Grade-III.
9. It has been held repeatedly that a person can not be reverted to the post of lower status on which he was never appointed. In other words, if a person is appointed directly on a higher post he can never be reverted or posted to a post of lower status and this is against the very concept of service jurisprudence. This issue was considered in Nyadar Singh and another Vs. Union of India and others 1988 SCC (4) 170 = AIR 1988 SC 1979 and Court held that if a person is directly appointed on a particular post he can not be awarded a punishment of reduction in rank by appointing him on a lower post as it affects the very policy of recruitment. An example was given that a person appointed as Medical Officer can not be reverted as a Compounder or Ward Boy.
10. Following the aforesaid authority, in P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others (1993) 1 SCC 419, Court has held that a person directly appointed as Upper Division Clerk can not be revered as Lower Division Clerk. It held in para 8 of the judgement as under:
"8. The expression "reduction in rank" in Article 311(2) has an obvious reference to different grades in service. Whenever there is a reduction in rank it implies reversion from a higher post to a lower post. Reversion from a higher post to a lower post may be under exigencies of situation or by way of punishment. The expression "reduction in rank" occurring in Article 311(2) covers only such reversions which are by way of punishment. The expression "reduction in rank", within the meaning of Article 311(2) as the expression itself suggests, means reduction from a higher to a lower rank or post. But whether in this process an officer can be reduced from a higher rank or a post to a rank to which he never belonged and to a post which he never held? It the power to reduce an officer by way of punishment to a rank which was never held by such officer is conceded, then a person directly appointed as Upper Division Clerk cannot only be reverted to the post of Lower Division Clerk, but even to the post of a Peon; an Engineer to the post of a Fitter, a Head-Master of a School to the post of an Accountant or Clerk in the said School. As such even while imposing the punishment of reduction in rank, the order must have nexus with the post held by the delinquent officer concerned, from which he had been promoted to the post from which he is being reverted. It such an officer had not held that post or was not member of that cadre then he cannot be reverted to a lower cadre to which he did not belong or to a lower rank which he did not hold at any stage."
(emphasis added)
11. These authorities have been followed in South Bengal State Transport Corporation Vs. Ashok Kumar Ghosh and others (2010) 11 SCC 71 wherein referring to judgment in Nyadar Singh (Supra), Court has said as under:
"20. We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (See: Nyadar Singh vs. Union of India - AIR 1988 SC 1979). Further it is also well settled that reversion to a lower post or service does not permit reversion to a post outside the cadre that is from regular post to a daily wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law."
(emphasis added)
12. A Division Bench of this Court has also followed the law laid down in Nyadar Singh (Supra) in Union Of India Through the Secretary, Ministry of Water Resources and others Vs. Central Administrative Tribunal, Lucknow and 4 others, (Service Bench No. 1596 of 2002), decided on 13.2.2017, wherein the court has held as under:
"8. In Nyadar Singh v. Union of India, AIR 1988 SC 1979, Court has said that penalty of reduction in rank to a Government servant initially recruited to a higher time-scale, grade, service or post to a lower time-scale, grade, service or post virtually would amount to his removal from the higher post and substitution of his recruitment to lower post, affecting policy of recruitment itself, which is impermissible."
13. In view of the law laid-down in the aforesaid case, the impugned order can not be sustained.
14. In the result, writ petition succeeds and is allowed. The impugned order of punishment dated 10.11.2014 (Annexure-19 to the writ petition) is hereby quashed. Petitioner shall be entitled to all the consequential benefits. However, this order shall not restrain respondents from passing an appropriate order in accordance with law.
Order Date :- 27.4.2018 Masarrat