Full Judgment Text
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PETITIONER:
FOOD CORPORATION OF INDIA AND ORS.
Vs.
RESPONDENT:
H.N. BHARTI AND ORS.
DATE OF JUDGMENT25/03/1992
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1994 AIR 605 1992 SCR (2) 328
1992 SCC Supl. (2) 149 JT 1992 (2) 445
1992 SCALE (1)756
ACT:
Civil Services :
Food Corporation Act, 1964 :
Section 45-Regulations framed under the Act-Regulations
7, 10 and 15-Circular issued on 15.5.75-Inter-se seniority-
Direct recruits and transferees-Fixation of-Directions
issued.
HEADNOTE:
On the abolition of the Food Department under the
Central Government, the employees therein were transferred
to the Food Corporation of India (FCI). In exercise of its
power conferred by Section 45 of the food Corporation Act,
1964, FCI framed Regulations in regard to appointments and
promotions. Later, pursuant to Regulation 10, FCI issued a
Circular on 15.5.75 to the effect that both the employees
transferred from the erstwhile Food Department (Food
Transferees) and the direct recruits will be promoted on ad-
hoc basis. It also stated that with the final transfer of
Food Transferees to FCI with effect from 1.3.69, their
promotions had to be regularised. It also provided that the
transferees as well as direct recruits would be deemed to
have completed the period of probation satisfactorily if
they have completed one year of service in that grade. This
was in accordance with Regulations 7 and 15 which stipulated
a period of one year probation for the regular appointees in
FCI-both transferees and direct recruits.
One of the Respondents who was given ad-hoc promotion
as Assistant Manager was reverted on the ground that he was
not approved for regular promotion. Being aggrieved by the
reversion order, he approached the High Court by way of a
Writ Petition. The High Court directed the FCI to consider
his case in the light of the circular dated 15.5.1975.
Some other Writ Petition were also filed before the
High Court by the employees challenging the seniority list,
and the High Court quashed
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the seniority list and directed the FCI to consider the
claims of the Writ Petitioners in the light of the circular
dated 15.5.1975.
The union of India preferred appeals, against the
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orders of the High Court. A Writ Petition has been filed
directly before this Court in regard to fixation of
seniority.
On behalf of FCI, it was contended that there was no
need to quash the entire seniority list, as has been done by
the High Court in the subsequent cases.
Disposing of the matters, this Court,
HELD : 1. It will be seen from the circular dated
15.5.75 that the procedure for regularisation of ’food
transferees’ on their absorption in the FCI was laid down
and it was provided that the transferees as well as direct
recruits described as ’ad-hoc promotees’ may be deemed to
have completed the probationary period satisfactorily if
they have completed one year of service in that grade after
following the procedure laid down in Regulation 15 and
allied orders. [333C,D]
2. Paragraph 3 of the circular envisages passing of
formal order of regular appointments (as required by
Regulation 7) after following the procedure laid down in the
circular. These orders of regular appointment will be on
the post held by the ’food transferees’ on the date of
absorption and if one has since been promoted, This in
brief is the import of the circular read in the light of
Regulations 7, 10 and 15. The circular has taken care of
both the categories, namely, direct recruits as well as
’food transferees’. It is, therefore, essential that the
question of seniority of both the cadres be determined on
the basis of the principles laid down in the said circular.
There was no need to strike down the entire seniority list
but it would suffice if the FCI is directed to review and
determine the seniority of the ’food transferees’, as well
as direct recruits who were granted ad-hoc promotions.
[336D-F]
3. Food Corporation of India is directed to have the
inter se seniority of the direct recruits/food transferees
determined in the light of the circular and grant
appropriate placements to the incumbents on the basis of the
seniority so determined in the existing seniority list.
Such placements
330
may require a reshuffle of the seniority list which the FCI
would be free to do. Having regard to passage of time it is
directed that this may be done within a period of six
months. [336G,H;337A,B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 338 of
1987.
From the Judgment and Order dated 5.3.1986 of the
Punjab and Haryana High Court in L.P.A. No. 791 of 1983.
WITH
Civil Appeal Nos. 530-531 of 1987 with Writ Petition
No. 1218/1989.
K.G. Bhagat, Y. Prabhakar Rao and Ms. Madhu
Moolchandani for the Appellants.
A.B. Rohtagi, S.K. Dhingra, K.B. Rohtagi, R.
Karanjawala, Ms.M. Karanjawala and K. Swami for the
Respondents.
Sajai Singh and Ms. Smitha Singh for the Intervenors.
The judgment of the Court was delivered by
AHMADI, J. The facts giving rise to these appeals
shortly are as under :
The respondent, H.N. Bharti, was working in the Food
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Department of the Central Government when it came to be
abolished w.e.f. 1st January, 1966. On its abolition
employees of the Food Department were provisionally
transferred to the Food Corporation of India (F.C.I.) with
effect from the same date. H.N. Bharti was also transferred
and was posted as Technical Assistant, Grade I, in the
F.C.I. Later w.e.f. 19th April, 1972 he was promoted on an
ad hoc basis as Assistant Manager (Technical). Sometime in
September, 1979 the Government of India took a decision that
those provisionally transferred should stand permanently
transferred to the F.C.I. w.e.f. 1st March, 1969. In this
manner, employees of the erstwhile Food Department came to
be absorbed as employees of F.C.I. It appears that on 15th
May, 1975 a circular was issued by the F.C.I. in regard to
promotion of the transferred employees and others to higher
posts on regular basis. Before we deal with this circular,
it would be advantageous to refer
331
to the relevant regulations framed by the F.C.I. in exercise
of powers conferred by Section 4 of the Food Corporations
Act, 1964 (Act 37 of 1964). These regulations were framed
with the previous sanction of the Central Government. Our
attention was invited to Regulations 7, 10 and 15 thereof.
Regulation 7 deals with the mode of appointment. It
provides that regular appointments in the service of the FCI
can only be to the posts a period of not less than one year
and shall be made :
(a) in accordance with any of the modes specified
against each in column (4) thereof; or
(b) by transfer from the corresponding categories
in column (9) of the said Table of employees of the
Central Government in the Directorate General of
Food/Pay & Accounts Offices; or
(c) by permanent absorption of deputationists in the
service of the Corporations.
If we turn to Appendix 1 we find that the post of
Assistant-Grade I belongs to category III and is a non-
selection post which can be filled hundred per cent by
promotion; failing that by direct recruitment. So far as
post of Assistant Manager is concerned, it belongs to
category II and is a selection post, which can be filled in
the ration of 25:75 by direct recruits/promotees.
Regulation 10 lays down the procedure for promotion and
provides that the promotion shall be made on the basis of
seniority subject to fitness in respect of non-selection
posts and on the basis of merit, seniority being considered
only when the merit of the contending candidates is
approximately the same, in the case of selection posts. It
further provides that all promotions shall be considered by
a Promotion Board constituted for that purpose. There is a
note appended to this rule which may be reproduced :
"Note : purely as an interim measure, pending their
permanent absorption in the service of the
Corporation, the employees of the Central
Government in the Directorate General of Food
posted to work under the administrative control of
the Food Corporation of India may be given ad hoc
promotions, in accordance with the principles
mutually agreed
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upon between the corporation and the Central
Government."
It is, therefore, clear from this note appended to
Regulation 10 that pending absorption in the service of the
FCI the employees of the Directorate General of Food posted
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to work under the administrative control of the F.C.I. were
to be given ’ad-hoc’ promotions in accordance with the
principles determined by the Corporation and the Central
Government. These principles are enumerated in the circular
referred to earlier. That brings us to Regulation 15, which
inter alia, provides that every person regularly appointed
to any post in Corporation under sub-clause (a) of clause
(1) of Regulation 7 shall be required to be on probation for
a period of one year from the date of appointment. The
appointing authority may in its discretion extend the period
of probation by a further period not exceeding one year. In
other words, the maximum period of probation can be two
years.
The FCI issued a circular on 15th May, 1975 pursuant to
the note below Regulation 10 extracted earlier. Taking note
of the fact that under the said note the employees
transferred from the Directorate General of Food, described
as ’Food transferees’ could be promoted to higher posts in
the Corporation on an ad hoc basis pending their permanent
absorption in the service of the F.C.I., it stated that all
promotions to the various grades of the FCI, irrespective of
whether one was a ’food transferee’ or a direct recruit,
need regularisation. It appears from the circular that both
’food transferees’ and direct recruits were being termed as
’ad hoc’ when promoted to the next higher post. With the
final transfer of the ’food transferees’ to the FCI w.e.f.
1.3.69 promotions made on ad hoc basis pursuant to the note
appended to Regulation 10 had to be regularised. The
circular, therefore, states that regularisation shall be on
the basis of the principle enumerated therein. It was
decided keeping in view Regulation 7 and Regulation 15 that
regular appointees in the service of the FCI whether direct
recruits or promotees shall be placed on probation for a
period of one year from the date of their
appointment/promotion. It was, therefore, posited that all
promotions whether by direct recruitment or promotion will
henceforth be subject to provision of Regulation 15, that is
to say, every such person shall be placed on probation as
provided by that Regulation and the instructions issued
thereunder. In regard to ’food transferees’ and direct
recruits promoted to higher grades on ad hoc basis
333
it was decided that they may be deemed to have completed the
probationary period satisfactorily, if they completed one
year of service in the grade after following the procedure
laid down in Regulation 15 and suitable orders issued in
that behalf so that if a person has completed one year of
service in the promoted grade his case was required to be
reviewed with a view to determining whether or not he has
satisfactorily completed the probationary period of one
year. In regard to future promotions it was decided that
regular procedure as laid down by the Regulations should be
followed. Paragraph 3 of the circular directed the
concerned authorities to issue suitable orders for the
absorption of ’food transferees’ into the FCI w.e.f. 1st
March, 1969. It will be seen from this circular that the
procedure for regularisation of ’food transferees’ on their
absorption in the FCI was laid down and it was provided that
the transferees as well as direct recruits described as ’ad
hoc promotees’ may be deemed to have completed the
probationary period satisfactorily if they have completed
one year of service in that grade after following the
procedure laid down in Regulation 15 and allied orders. It
appears that the respondent, H.N. Bharti, who had been
granted ad hoc promotion to the post of assistant Manager
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was reverted by an order passed by the Deputy Manager
(Administration) on the ground that he was not approved for
regular promotion. He challenged his reversion order by
filing a Writ Petition No. 3624/76 in the High Court of
Punjab & Haryana. That writ petition came to be allowed by
quashing the order of reversion and the High Court directed
the FCI to consider his case in the light of the circular
dated 15th May, 1975. It is against this judgment of the
High Court that Civil Appeal No. 338/87 has been preferred.
One P.N. Verma filed a Writ Petition No. 3580/77 in the
High Court for quashing the seniority list and for a
declaration that the promotion of respondents Nos. 4 to 41
to the post of Assistant Manager was null and void. That
writ petition came to be disposed of on 14th October, 1983.
Without going into the merits of the case, the learned
Single Judge in the High Court disposed of the matter on the
basis of the decision in H.N. Bharti’s case as it was
contended before him that the case was squarely covered by
the ratio of that decision since the claim for fixation of
seniority has to be decided in the light of the policy
decision in Annexure P-3 i.e., the circular dated 15th May,
1975. In view of that concession, the seniority list was
set aside with a direction similar to the one granted in
H.N. Bharti’s
334
case. This decision has given rise to C.A. No.531/87. Soon
thereafter, Dharam Singh and M.L. Batra filed the Civil Writ
Petition No. 4482/78 for finalisation of the seniority list
and incidental reliefs. This writ petition was disposed of
by an order dated 24th October, 1983 relying on the decision
in P.N. Verma’s case. The seniority list was quashed and it
was directed that the claim of the incumbents be considered
in the light of the circular of 15th May, 1975. This was
once again on concession by counsel. That has given rise to
C.A. No. 530/87.
One Upendra Kumar has filed a writ petition (C) No.
1218/89 for fixation of his seniority and for incidental
reliefs. That arose because by a letter dated 27th October,
1989, the Deputy Manager, informed him that his
representation was examined and it was decided that as the
matter was subjudice in this Court it was not possible to
accede to his request regarding fixation of seniority till
the matter was finally disposed of by this Court. He was
informed that he was at liberty to approach to this Court
for any remedy he may deem fit. It was on account of this
letter that he filed this petition under Article 32 of the
Constitution.
We may clarify that H.N. Bharti and P.N. Verma were
transferred employees from the Directorate General of Food
whereas the other employees concerned in this batch of cases
were direct recruits in the cadre of Technical Assistant-
Grade I. The intervenors may belong to either category.
Mr. Bhagat, the learned counsel for the FCI, contended that
what the High Court had determined in case of H.N. bharti
was that the FCI considered his case in the light of the
circular dated 15th May, 1975. He submitted that the FCI
would have no objection to acquiescence in that decision,
had it not been interpreted to mean or convey that the
entire seniorty list prepared by the FCI was liable to be
quashed, as has been done by the High Court in the
subsequent decisions in the case of P.N. Verma and Dharam
Singh and M.L. Batra. He submitted that there was no need
to quash the entire seniority list because all that the High
Court had directed in H.N. Bharti’s case was to reconsider
the question in the light of the circular of 15th May, 1975.
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He submitted that he would have no objection to following
the same course of action in the action in the case of other
employees also, whether transferees or direct recruits,
since the question of regularisation had to be determined in
the light of the principles and guidelines laid down in the
circular of 15th May, 1975. Mr. Robtagi, the
335
learned counsel for the direct recruits submitted that their
seniority had to be determined on the basis of Regulation 15
since they had satisfactorily completed the period of
probation prescribed thereunder. He submitted that since
their seniority had not been determined on the basis of that
Regulation and the seniority list had been prepared without
determining their seniority and placement in the seniority
list on that premise the entire seniority list was liable to
be quashed.
We have carefully considered the rival contentions and
we are of the opinion that the decision taken by the High
Court in H.N. Bharti’s case does not call for intervention.
Even on the submission of Mr. Bhagat, the learned counsel
for the FCI, the view taken by the High Court in H.N.
Bharti’s case does not require any intervention if it is
understood to leave the matter of fixation of seniority to
the FCI on the basis of the principles or guidelines laid
down by the circular of 15th May, 1975 which in turn refers
to Regulations 7, 10 & 15. Civil Appeal No. 338 of 1987
must, therefore, stand dismissed with no order as to costs.
The circular refers to the note below Regulation 10
which permitted ad hoc promotions to be given to the
erstwhile employees of the Directorate General of Food as a
purely interim arrangement pending their permanent
absorption in the FCI. Consequently promotions granted to
‘food transferees’ as well as direct recruits were being
termed ‘ad hoc’ pending the finalisation of question of
absorption of the former in the FCI. The promotion to
direct recruits were also termed ‘ad hoc’ presumably to
avoid complications in the matter of fixation of inter se
seniority between ‘food transferees’ and direct recruits.
Regulation 10(i) and (ii) set out the criteria for promotion
to non-selection and selection posts. The note at the foot
of the regulation was clearly an interim measure pending
final absorption of ‘food transferees’ in the FCI. But,
since even direct recruits were given ad hoc promotions
pending the absorption of ‘food transferees’, the circular
had to provide for the regularisation of both. It was,
therefore, decided that ‘food transferees’ and direct
recruits promoted to higher grades on ‘ad hoc’ basis may be
taken to have completed the probationary period
satisfactorily if they have completed one year of service in
that grade after following the procedure outlined in
Regulation 15 and suitable orders, if any. Regulation 15
has two aspects viz., (i) lays down the period of probation
and (ii) how the period spent on temporary service or
deputation
336
service shall be dealt with in counting the period of
probation for confirmation. Once the date of completion of
probation period is determined and confirmation made, the
relative seniority between direct recruits and ‘food
transferees’ has to be settled as laid down by Regulation
16. The illustration given in the circular clarifies how
the question of termination of probation has to be
determined. If an incumbent has completed service of one
year in the promoted grade, his case would have to be
reviewed to determine if he had satisfactorily completed the
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probationary period or would it have become necessary to
extend the probationary period by another year as provided
by Regulation 15(2). If the concerned authority finds his
service to be satisfactory within the first year of his
probation period it may confirm him but otherwise decide if
he would have been confirmed on completion of the extended
period. The decision taken in this behalf would regulate
the seniority between ‘food transferees’ and direct
recruits. Paragraph 3 of the circular envisages passing of
formal orders of regular appointments in the FCI (as
required by Regulation 7) after following the procedure laid
down in the preceding paragraph of the circular, wherever
applicable. These orders of regular appointment will be on
the post held by the ‘food transferees’ on the date of
absorption and if one has since been promoted a separate
order in respect of the promotion post would also be passed.
This in brief is the import of the circular read in the
light of Regulations 7, 10 and 15 referred to earlier. The
circular has, therefore, taken care of both the categories,
namely, direct recruits as well as ‘food transferees’. It
is, therefore, essential that the question of seniority of
both the cadres be determined on the basis of the principles
laid down in the said circular as explained hereinabove.
There was no need to strike down the entire seniority list
but it would suffice if the FCI is directed to review and
determine the seniority of the ‘food transferees’ as well as
direct recruits who were granted ad hoc promotions, in the
light of the said circular as explained by us. We,
therefore, allow the Appeal Nos. 530 and 531 of 1987 to this
limited extent only, that is to say, instead of quashing of
entire seniority list the FCI is directed to have the inter
se seniority of the direct recruits/food transferees be
determined in the light of the circular and grant
appropriate placements to the incumbents on the basis of the
seniority so determined in the existing seniority list.
Such placements may require a reshuffle of the seniority
list which the FCI would be free to do. Except for this
modification, we do not see any reason
337
to interfere with the order passed by the High Court which
is the subject matter of Civil Appeal Nos. 530-531 of 1987.
The case of the writ petitioner, Upendra Kumar, will also be
determined in the light of this judgment along with those of
the respondents in the appeals. The case of the intervenors
as well as Narinder Gangwar may also be similarly
determined. Having regard to passage of time we direct that
this may be done within six months from today. There will
be no order as to costs.
G.N. Matters disposed of.
338