Manohar Prasad and Others vs The Food Corporation of India and Others

Hari Lal Agrawal, J.—The eleven petitioners have filed this writ application for determination of their seniority. They claim seniority over respondent Nos. 4 to 42 and 64. The petitioners were appointed as Assistants Grade III in the office of the Food Corporation of India at different places under the Bihar Zone. Undisputedly the appointment of the petitioners was made, by the orders dated 30th April and 14th May, 1973, passed by the Regional Manager of Bihar Region, respondent No. 3, on purely temporary and ad hoc basis for a period of three months only for the purpose of Rabi procurement work. The petitioners, however, were allowed to continue even after the expiry of the period of three months and later on were interviewed for absorption in the regular cadre on the 14th and 16th of February, 1974. On the recommendation of the Selection Board their services were regularised and they were designated as Assistant Grade III in the ministerial cadre which included Typists also. Subsequently by office orders dated 2.12.1974 (Annexures ''6'' series) the petitioners, having completed one year''s satisfactory service, were confirmed. These orders also specified the respective dates of confirmation of the petitioners but did not take into account the dates of their initial appointments on ad hoc basis. However, later on, in the provisional gradation list issued on 17.10.75 (Annexure ''8'') the petitioners were shown as seniors to respondents 4 to 8.

It appears that there was some objection on this account and a directive was issued by respondent No. 2, the Zonal Manager, for correcting the said list reckoning the petitioners'' position on the basis of the date on which the Selection Board had regularized their services. The petitioners represented claiming their seniority over the respondents on the basis of their initial appointment but they did not succeed. A long correspondence took place between the respondents 2 and 3 and although respondent No. 3 always supported his earlier order giving the benefit of the period of the service rendered by the petitioners before their substantive appointments, the higher authorities did not accept his arguments and the representation of the petitioners was also rejected vide Annexure 2. The petitioners have founded their claim of seniority over the respondents concerned on the basis of the provisions contained in Staff Regulations, 1971. The learned counsel for the petitioners also, on the first round of his arguments, had pressed into service the Regulations. I would refer to the relevant provisions of the Regulations later on.

With respect to the statements made in paragraph 4 of the writ application claiming the benefit of the service rendered prior to the date of the petitioners'' regular appointments, it was emphasised by the learned counsel for the respondents in challenge of the petitioners'' claim, was that the initial appointments of the petitioners were made against ''unspecified cadre of Assistant grade III''.

In the counter-affidavit filed on behalf of respondent Nos. 1 to 3 the stand taken by them is that the criterion for fixing the seniority of the petitioners was the date of their regular selection, and their services on a purely temporary and ad hoc basis were not relevant. According to their further case, the claim of the petitioners that their previous services would be deemed to be on probation under regulation 15(1) was unfounded, as that provision would apply only to those persons who were appointed on regular basis and the provisional gradation list prepared by the Zonal office was not final and was rightly turned down by respondent No. 1, the final and a superior authority of the Corporation, being in accordance with regulation 16(1) of the Staff Regulations. The claim of the petitioners to be governed by the Staff Regulations is refuted in the counter-affidavit on the ground that since the very appointment of the petitioners was not done in accordance with Regulation No. 9, the appointment being purely temporary and ad hoc, without observing the formalities of selection and the services liable for termination at any time.

On the above pleadings and arguments it has to be seen as to whether the petitioners can rely upon any of the provisions of the Staff Regulations. The relevant regulations are Nos. 6, 7, 9, 15 and 16. Regulation No. 6 prescribes the appointing authority competent to make appointments to the type of posts indicated in column 2 of the table set out in Appendix III. Regulation No. 7 deals with various modes of appointment. It also contemplates appointment on ad hoc basis. Regulation 9 deals with procedure for direct recruitment. Regulation No. 15 which is the most important regulation reads as follows:

Probation:

(1) Every person regularly appointed to any post in the 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.

(2) The appointing authority may in his discretion extend the period of probation by a further period not exceeding one year.

(3) During the period of probation an employee directly recruited shall be liable to be discharged from service without assigning any reason by giving him a notice of.

(a) 30 days or pay in lieu thereof in the case of an employee belonging to Category-I or Category-II;

(b) 7 days or pay in lieu thereof in the case of an employee belonging to Category-III and Category-IV

An employee promoted from a lower post to a higher post shall be liable to be reverted to the lower post without notice and without assigning any reason.

(4) An employee who has satisfactorily completed his probation in any post shall thereupon be confirmed as soon thereafter as possible.

(5) Where an employee has rendered continuous temporary service or continuous service on deputation in any post immediately preceding his regular appointment to such post, the period of service so rendered temporarily or on deputation may be counted against the period of probation if the appointing authority so directs.

Although on the first day of the argument Mr. Mukherji had placed implicit reliance upon this regulation and had claimed that the case of the petitioners was governed by this regulation inasmuch as they having rendered continuous service for a period of one year, respondent No. 3 was entitled under clause (5) of this regulation to give the benefit of the period of probation also to the petitioners. On the next day of the argument when the provisions were closely scrutinised, Mr. Mukherji had to fairly concede that the ''period of probation'' mentioned in clause (5) of regulation 15 was referable only to a parson regularly appointed under clause (1) of regulation 7 referred to earlier. In other words, it is manifest on examination of the provisions of regulation Nos. 7 and 15 that a regular appointee has to remain on probation for a period of one year from the date of the appointment which may be further extended as mentioned in clause (2) of regulation 15.

The other leg of the argument of Mr. Mukherji was that respondent No. 3, being the appointing authority under regulation 6, was the sale authority to exercise his discretion under clause (5) of regulation 15 and, therefore, once he had exercised the discretion in favour of the petitioners, as already referred to earlier (vide Annexure 7), the respondent No 1 could not intervene in the matter and sit over the decision of respondent No. 3.

Mr. Mukharji also placed reliance on an unreported decision of this Court in Mahesh Jha v. The State of Bihar & Ors] 1984 PLJR 34 (C.W.J.C. No. 710 of 1981; disposed of on 6.4.1983) wherein it was observed;

though the delegator, on general principle, can resume his power but once the delegator validly delegates his power to the delegatee and the delegatee exercises that power, the power exercised by the delegatee is that of the delegator himself and hence the delegator has no power thereafter to revoke the order passed by the delegatee.

He also referred to the case of V.T. Khanzode and Others Vs. Reserve Bank of India and Another, where a question from Halsbury''s Laws of England, 4th Edn., paragraph 1333, was referred to with approval to the effect that the "powers of corporation created by statute are limited and circumscribed by the statutes which regulates it, and extend no further than is expressly stated therein, or is necessary and properly required for carrying into effect the purposes of its incorporation...what the statute does not expressly or impliedly authorise is to be taken to be prohibited."

Mr. Mukherji also attempted to take support from the case of The Purtabpore Co., Ltd. Vs. Cane Commissioner of Bihar and Others, where an observation was made that the policy of a Minister of the Government as a whole, when it is a relevant factor in weighing the policy, will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.

These principles as such might have their own weight and bearing, but the very foundation of Mr. Mukherji''s argument vanishes when the power to exercise discretion of the appointing authority mentioned in regulation 15, on the face of it has no application, because Mr. Mukharji had to concede that the appointment of the petitioners was not covered under regulation 7. Regulation 15 which prescribes the mode of reckoring seniority in the case of direct recruits also lays down that relative seniority of all direct recruits will be determined by the order of merit in which they are selected for such appointment by the selecting authority. The appointment envisaged, therefore, is by a selective authority, as in this case by a Selection Board.

The Supreme Court in the case of Baleshwar Dass and Others Vs. State of Uttar Pradesh and Others, while discussing the various rules for determining seniority has taken into account that even the service rendered on a temporary basis can be taken into account, but that post must be a cadre post; in other words, the incumbent must because a member of the service. It is difficult to hold that on the basis of their appointment vide Annexure 4, the petitioners had become members of the service of the Corporation. The petitioners on the date of their initial appointment were not subjected to any test and were just taken in for a very limited purpose. Their appointment was purely precarious and not against any cadre post. On that account it does not appear reasonable that they should be given benefit of that period of their employment over the respondents who were directly appointed by the Selection Board. The application, therefore, has got no merit and must fail. I would accordingly dismiss the same, but since the petitioners are employees I shall absolve them from the liability of costs.