Midul Saikia vs Food Corporation of India

A.H. Saikia, J.—Heard Mr. B.P. Kataki, learned Sr. counsel assisted by Mr. T.J. Mahanta, learned counsel appearing on behalf of the petitioner and also heard Mrs. A. Hazarika, learned counsel appearing on behalf of the F.C.I.

The only grievance of the petitioner in this writ petition is that though admittedly the petitioner belongs to Scheduled Tribes (Plains) community, he has not been promoted when his juniors i.e. respondents 5 and 6 have been promoted vide office order dated 31.3.1989 (Annexure-2 to the writ petition).

Mr. Kataki, learned Sr. Counsel appearing on behalf of the petitioner contends that when the petitoner was appointed as Watchman/Messenger vide appointment letter dated 27.5.78 (Annexure to the writ petition), the said appointment letter itself clearly showed the petitioner as Scheduled Tribes. As per Clause 3 of the said appointment letter, the petitioner, at the time of his Joining, did not require to furnish any Caste Certificate to prove that he belonged to Scheduled Tribes (Plains) community. It is submitted that since the provisional Zonal Integrated Seniority List of Matriculate or Equivalent Class IV employee as on 31.3.1989 did not show the name of the petitioner at Sl.No. 1061 as Scheduled Tribes (Plains), the case of the petitioner had not been considered when promotion from Grade IV to Grade III was made vide order dated 31.3.1989 by which the respondents 5 and 6 were also promoted.

Referring to affidavit-in-opposition filed on behalf of the F.C.I., the learned Sr. counsel has drawn attention of this Court to the averments made in the return particularly in paragraphs 5 and 13 wherein it is averred that since the petitioner failed to submit the certificate in support of his Caste status, his name was not included as Scheduled Tribes in the Regional Seniority list on the basis of which the Zonal seniority list was prepared. In paragraph 13 it clearly indicates that though in the appointment letter the petitioner was shown as Scheduled Tribes candidate, the petitioner did not submit Caste Certificate in support of his claim in the time of joining in the F.C.I.

Mrs. Hazarika, learned counsel appearing on behalf of the F.C.I., supporting the action of non-promotion of the petitioner, vehemently argues that since the petitioner failed to produce/submit the caste certificate as required, showing his Scheduled Tribes status, the Regional Office could not include the seniority list showing him as Scheduled Tribes relying on which the Zonal Seniority list was prepared on 31.3.1989. Juniors to the petitioner, i.e., respondents 5 and 6 were promoted due to the fact that their names had already been appeared in the said seniority list showing them as Scheduled Tribes.

I have perused the materials available on record including the pleadings of the parties. From the perusal of the record. It clearly indicates that the petitioner is having Scheduled Tribes status and his case was not considered for promotion only on the plea that he has not produced the caste certificate for which his name was not included in the Zonal seniority list prepared on 31.3.1989. But the Regional seniority list annexed as Annexure-A to the affidavit-in-opposition filed on behalf of the F.C.I. itself shows that the petitioner has produced certificate as mentioned in Column 8 against the petitioner Sl.No.396. More importantly form Clause (3) of the appointment letter dated 27.5.1998 it appears that the petitioner is not required to submit any caste certificate showing his caste status as claimed now by the F.C.I. in the said appointment letter, as mentioned earlier, the petitioner has been shown as Scheduled Tribes community. That being the position, I have no hesitation to accept the submissions made on behalf of the petitioner and accordingly, I am of the considered view that the petitioner is entitled to consideration for his promotion from Grade IV to Grade III from the date of promotion from his juniors i.e. respondent 5 and 6.

At this stage Mr. Kataki, learned Sr. counsel has taken me through two rulings of the Apex Court reported in R.K. Sethi and another Vs. Oil and Natural Gas Commission and others, and Life Insurance Corporation of India and Others Vs. Jagmohan Sharma and Others, and has submitted that the principle laid down in those cases has a direct applicability in the present case. The principle laid down in those decisions is that the "next below rule" in service jurisprudence seeks to ensure that if a junior employee is given promotion without considering his senior then the senior employee can claim the right to be considered for such promotion with effect from the date on which the junior was promoted and the consideration for such promotion with effect from the date on which promotion his juniors shall include granting all consequential benefits.

Having regard to the principle laid down in the aforesaid two cases and upon hearing the learned counsel for the parties, it is directed that the case of the petitioner be considered for promotion with effect from the date of the promotion of the respondents 5 and 6 and if the petitioner is found fit for promotion he be given such promotion from such date with all consequential benefits.

Needful consideration of the case of the petitioner shall be done within a period of six months from the date of receipt of the order. In the result for the foregoing reasons, observations and discussion made above, this writ petition is allowed.