Madan Lal Gupta vs Food Corporation of India and Others

K.D. Shahi, J.—By this petition under Article 226 of the Constitution of India, Petitioner Madan Lal Gupta has challenged order dated 8.11.1979 purported to have been passed by the Zonal Manager (N) of the Food Corporation of India, New Delhi whereby the Petitioner was reverted to his parent post of Assistant Grade I with immediate effect and has prayed for issue of a writ in the nature of certiorari quashing the impugned order dated 8.11.1979, a copy whereof is Annexure-2 to the writ petition. It was further prayed that the Respondents be commanded to treat the Petitioner in continuous service and to accord him all benefits and privileges of continuous service.

Briefly stated, the facts are that the Petitioner was appointed as Assistant Grade III (Ministerial) on 29th December, 1967 in Food Corporation of India and was posted at the office of the District Manager, Amritsar (Punjab). Thereafter, he was transferred to various places and was promoted as Assistant Grade I (Ministerial) and was posted at Kanpur. He was again promoted as Assistant Manager (General) by order dated 26th October, 1977, a copy whereof is Annexure-1 to the writ petition. The order of promotion shows that the Petitioner was to complete one year probation from the date of Joining and on completion of the probationary period of one year, he was to be deemed to be confirmed on the post of Assistant Manager (General). The Petitioner Joined as Assistant Manager (General) on 9.11.1977 at Oral (Jhansi). It Is also apparent that the period of probation was extended for one year.

By a telex message bearing the date 8th November, 1979 and time 11.44 a.m., the Petitioner was informed that he stood reverted to his parent post of Assistant Grade I with immediate effect. He was further informed that formal order would follow. The telex message is reproduced in Annexure-2 to the writ petition. It is alleged in the Petitioner that no order reverting the Petitioner from the post of Assistant Manager (General) to the Post of Assistant Grade I was served upon the Petitioner till the date he filed the petition, i.e., 21.11.1979. The Petitioner, inter alia, alleged that no order of reversion was passed by the competent authority. He had not been served with any such order and he would be deemed to have been confirmed on the post of Assistant Manager (General).

Shri A. C. Gupta, Deputy Manager (Personnel) in the Food Corporation of India filed a counter-affidavit on behalf of the Respondents. It was alleged by the Respondents that every person regularly appointed to any post shall be required to be on probation for a period of one year from the date of appointment. The appointing authority may in his discretion extend the period of probation by a further period not exceeding one year. It was further alleged that since the Petitioner failed to complete the period of probation satisfactorily, he was reverted from the post of Assistant Manager (General) during the period of probation. The reversion order is within the framework of the Food Corporation of India (Staff) Regulation, 1971.

Heard Shri Anjani Kumar, learned Counsel for the Petitioner and Shri N. P. Singh, learned Counsel for the Respondents at length and in detail on various dates. On 4.2.1997 when the arguments were heard, the Court was confronted with the question whether there is any order of reversion of the Petitioner by the competent authority which Shri Anjani Kumar and Sri N. P. Singh both admitted Is the Zonal Manager of the Food Corporation of India. By a separate order, learned Counsel for the Respondents was granted three weeks'' time for producing the relevant record containing the order dated 8.11.1979 before the Court for its perusal. In pursuance of this order, Shri N. P. Singh, learned Counsel for the Respondents produced the record.

Shri Anjani Kumar, learned Counsel for the Petitioner and Shri N. P. Singh, learned Counsel representing the Respondents have thoroughly and minutely scanned and scrutinised the record produced in Court with no avail. The Court also did not find any order passed by the Zonal Manager reverting the Petitioner.

On page 105 of the record produced before the Court, there is an office order dated 14.11.1979 signed by Shri R. S. Chauhan, Assistant Manager (P) for Senior Regional Manager. In this office order there is a mention of another office order dated 8.11.1979 of the Zonal Manager (N) F.C.I.. New Delhi, whereby the Petitioner was purported to have been reverted. But, on the record there is no order dated 8.11.1979 passed by the Zonal Manager of the Food Corporation of India. The proceedings relating to the reversion of the Petitioner are contained in Notings Nos. 62, 63, 64, 65, 66, 67, 68 and 69. Nowhere any specific order of the Zonal Manager dated 8.11.1979 or any other order of that date reverting the Petitioner is to be found.

On 4.2.1997, confronted with the above situation, learned Counsel for the Respondents submitted that the alleged order of the Zonal Manager dated 8.11.1979 may be found in some other record of the Corporation. Therefore, three weeks'' time was granted for producing the order of the Zonal Manager of the Food Corporation of India dated 8.11.1979.

On 17.3.1997 the case again came up for hearing No other record or paper could be produced by Shri N. P. Singh, learned Counsel for the Respondents rather he insisted and again read the telex message. A bare reading of the telex message merely shows that it is an Information to the Petitioner that he stood reverted as Assistant Grade I (Ministerial) with immediate effect. It further shows that formal order was to follow. It is explicit that this telex message was not the formal order and some other formal order was to follow. No other formal order, which was to follow, has been shown or produced before the Court. Again, our attention was drawn to the said notings which have been adverted to in the order dated 4.2.1997 and in the earlier part of this judgment. Under note No. 62, there was a noting that Shri M. L. Gupta will complete his permissible period of probation on 8.11.1979. His probation period was extended for one year merely on the ground that he was involved in vigilance case. Therefore, he may be reverted. This noting does not appear to have been signed by the Zonal Manager. Then there are instructions of the Headquarters contained note 63 that M. K. Gupta may be reverted as A.G.I. (M), as proposed, under none portion 62. It was further noted that this was in accordance with the instructions of the headquarters. There is no noting that it was in accordance with the instructions of the Zonal Manager, who was the appointing and reverting authority. Under note 68, it is said that the Zonal Manager had directed that headquarters instructions may be followed and action as proposed on pre page may be taken. This is all. The Zonal Manager did himself pass no order. Tills noting can at the most be taken to be a direction to the office to take action. This cannot be read as an order of reversion. No other order has been passed. There is nothing on the record to show that the Zonal Manager applied his mind or that he took any decision that the Petitioner was to be reverted and as such he passed any order of reversion.

As a result of what has been said above, it comes out that the Zonal Manager alone was the appointing or reverting authority of the Petitioner. He did not pass any order within two years reverting the Petitioner. The probation period of the Petitioner was extended by one year and after the expiry of the extended period, the Petitioner was to be deemed to have been confirmed on the post of Assistant Manager (General).

It was argued by the learned Counsel for the Respondents that specific order of confirmation is necessary, out the own instructions of the Food Corporation of India filed as Annexure- 1A to the writ petition which relate to confirmation of probationers in the service of the Corporation are also binding on the parties to the petition. Certain disputes have arisen regarding issuance of specific order of confirmation. The Food Corporation of India has issued clarification and has specifically directed as under:

Under Regulation 15(1) every person regularly appointed to any post in the Corporation is required to be on probation for a period of one year from the date of appointment. This period can at the discretion of the appointing authority be extended for a further period of not exceeding one year under Regulation 15 (2). Doubts have been expressed whether persons who are appointed on probation, automatically be deemed to have been confirmed in the service of the Corporation after the expiry of the prescribed probationary period. The position in this regard is that the person concerned cannot automatically be deemed to have completed the probationary period successfully after putting the one year unless and until order to this effect be issued by the competent authority. In case wherever, the probationary period is extended which can be for further period not exceeding one year, the person concerned would be deemed to have been confirmed after two years if orders to the contrary are not issued in time.

The words ''not exceeding one year'' are very meaningful. It specifically says that the period of probation cannot be extended beyond one more year in any case and if it cannot be extended beyond one more year in any case, the person concerned shall be deemed to have been confirmed and this is what the Corporation clarified that the person concerned would be deemed to have been confirmed after two years if the orders to the contrary were not issued in time. The orders are to be issued before the last date of the expiry of two years. In this particular case, the last date expired on 9.11.1979 and the alleged office order dated 14.11.1979 signed by Shri R. S. Chauhan, Assistant Manager (P) is of no value. No order has been issued by the Zonal Manager before the expiry of two years.

In view of what has been said above, the Petitioner stood confirmed on the post of Assistant Manager (General). The telex message is no order in the eyes of law. Consequently, the petition must succeed.

The petition succeeds and is allowed. The impugned order dated 8.11.1979 contained in telex message (Annexure-2 to the writ petition) is hereby quashed. The Respondents are directed to treat the Petitioner in continuous service of the Food Corporation of India and to accord him all benefits and privileges of continuous service. There will be no order as to costs.