R.N. Tewari vs Food Corpn. of India and Others

Palok Basu and M.C. Agarwal, JJ.—R.N. Tiwari, the Petitioner, has filed this writ petition with the following prayers:

(i) issue a writ, order or direction in the nature of certiorari quashing the seniority list dated 5.3.1993 (Annexure 13) to the extent the name of the Petitioner is incorrectly shown at Serial No. 137.

(ii) issue a writ, order or direction in the nature of mandamus commanding the Respondents to determine the Petitioner''s seniority in the cadre of Senior Godown Keeper/Quality Inspector Grade I/Technical Assistant Grade-I and place him at Serial No. 40 after reckoning 6 years service rendered by him in the Food Department, Government of India.

(iii) issue a writ, order or direction in the nature of mandamus commanding the Respondents to determine the seniority of the Petitioner in the cadre of Assistant Manager (Technical) ignoring the reversion period, i.e., 30.10.1973 to 18.3.1976.

When the writ petition was filed on 4.1.1994, a counter-affidavit was called. It has been filed to which a rejoinder-affidavit has also been filed. During the pendency of the writ petition, an amendment application has also been moved to which the judgment will advert a little later.

Sri K. N. Tripathi, Senior Advocate, assisted by Sri H. P. Dubey has been heard at substantial length on behalf of the Petitioner. Sri S. N. Srivastava, learned standing counsel for the Food Corporation of India, has also been heard at length in reply. As prayed, the writ petition is being finally disposed of at the admission stage after hearing the learned counsel for the parties and examining the relevant records.

Before referring to the controversial questions raised, it may be mentioned that in the decision of the Hon''ble Supreme Court in Food Corporation of India and another Vs. H.N. Bharti and another, connected with several other writ petitions, it has been held by the Apex Court that "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 hereinabove. There was no need to strike down the entire seniority list but it would suffice if the F.C.I. 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...."

It may be mentioned here that the aforesaid judgment came to be passed by the Apex Court on several Petitioners challenging the seniority list which was in vogue till the year 1977 and with the aforesaid directions, those lists were dealt with.

It may be mentioned again that, as noted in the prayer, the Petitioner challenged the final seniority list which has been published only in the year 1973. It may be mentioned that while the Petitioner''s counsel said that even this so-called final list is tentative, Sri S. N. Srivastava said that for all practical purposes, this list is adhered to as final list.

The only question for determination is whether the Petitioner''s employment in the Government of India (Food Department) shall have to be added to the total number of years for the purposes of determination of seniority in accordance with the regulations framed by the Food Corporation of India. In this connection, it is important to record that the regulations have been in vogue only since the year 1971 (30.4.1971) and, admittedly, the Petitioner and several like the Petitioner were transferred to the Food Corporation of India from the department concerned of the Government of India. Options were called as a result of which the Petitioner chose to be in the Corporation (Food Corporation of India).

The Petitioner''s claim lies on the fact that since he was the seniormost godown keeper in the Directorate General of Food in the Government of India, he should be equated with the post of Quality Inspectors in the Food Corporation of India. If this argument is accepted , it goes without saying that the Petitioner''s claim for adding the number of years put in the service in the Government of India shall have to be added.

In this connection, reliance was placed on the Appendix which is appended to the Regulations. The Appendix reads as under:

---------------------------------------------------------------------------------------------------------- Sl. No. Description Scale of pay Mode of Promotion /Selection/ of post recruitment Non-Selection ---------------------------------------------------------------------------------------------------------- (1) (2) (3) (4) (5) ---------------------------------------------------------------------------------------------------------- 4. Assistant 225-10-235- Promotion Non-selection Gr.I (Depot) 15-430-20- 100% 550

Assistant 225-10-235 Promotion Non-selection Gr.I. 15-430-20- 100% (Technical) 550.

Assistant 150-10-300 Promotion Non-selection Gr.II (Tech.) 100% failing which direct recruitment.

Assistant 120-10-240 Direct Gr. III (Tech.) 100% ---------------------------------------------------------------------------------------------------------- Exper- Qualifications Age limit Corresponding categories Remarks ience and experience of posts in the Directorate if any General of Food ---------------------------------------------------------------------------------------------------------- (6) (7) (8) (9) (10) ---------------------------------------------------------------------------------------------------------- 3 years as ... ... Sr. Godown Keeper/ AG-II Inspector (FPS)/ (Depot) Dock Inspector/ Vert. Insp./Watch and Ward Sub-Inspector/ Inspector (Food).

3 years ... ... Tech. Assistants/ as Asstt. Analysers/ Gr.II Quality Inspectors. (Tech.)

3 years Degree in *25 Assistant Analysers/ ... as Asstt. Science years Fumigation Assistants. Grade III preferable/ (Tech.) in Agriculture with 3 years'' experience in the field. Degree in -do- Laboratory Science Assistants. preferably in Agriculture. ----------------------------------------------------------------------------------------------------------

* Relaxable in the case of employees of the Corporation.

The argument proceeds that in practice, there is no distinction in the discharge of duties or functioning of Assistant Grade I (Depot) or Assistant Grade I (Technical), as are noted in the item Nos. 4 and 5 of Category III posts, delienated above. Therefore, it is said that since the Petitioner was Senior Godown Keeper equivalent to the Assistant Grade I post (Depot post), therefore, by the same analogy, Assistant Grade I (Technical) posts qualify the Petitioner to term as Quality Inspector.

Having seen the argument of the Petitioner, it may be stated that the stand of the Respondents is that the Petitioner was not having the post of Quality Inspector in the Government of India and, therefore, he cannot claim the post of Quality Inspector in continuity in the Corporation. Sri Srivastava argued that the grade of the Petitioner in the Government of India was lower than the grade of the Quality Inspector and, therefore, the relief should not be granted to the Petitioner. This argument, however, completely ignores the classification of the posts of Assistant Grade I vis-avis. Assistant Grade I (Technical), as stated above. Regulations have been equating the Senior Godown Keeper with the post of Assistant Grade I (Depot). There cannot be any logic in saying that the Assistant Grade I (Technical) will not be having the qualification to be treated as Quality Inspector with the Government of India. Therefore, the argument of Sri Srivastava is rejected.

It was stated, relying upon Annexure ''4'' to the writ petition, that by the order of the Food Corporation of India dated 3rd May, 1968, the Petitioner was transferred to the Food Corporation of India as Quality Inspector, Grade I. To be more specific, the exact language, as is found in the said notification of the Government of India dated 3rd May, 1968, is quoted below:

The following officials who have opted to go on deputation to Food Corporation of India, Punjab/Haryana as Quality Inspector Grade I are transferred to Food Corporation of India, Punjab with immediate effect.

---------------------------------------------------------------------------------------------------------- Sl. No. Name and Designation Present place of duty ---------------------------------------------------------------------------------------------------------- - - -

4 Sri R.N. Tiwari S.G.K Ahmedabad

- - -

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It is obvious that the Petitioner, therefore, became Quality Inspector, Grade I, not because of promotion, but as a case of transfer only. The order does not say that the Petitioner was promoted to any higher seat from where he was actually working. This mention is necessary because of the argument of Sri Srivastava on behalf of the Food Corporation of India that the Petitioner was promoted to the post of Quality Inspector from the post of Senior Godown Keeper in the Government of India''s department. There is absolute ignorance on the part of the Respondents when the counter-affidavit swears as if the Petitioner was promoted as the Quality Inspector, such an averment is not borne out from the materials on the record and, therefore, it has to be held as a fact that the Petitioner was working as Senior Godown Keeper and was transferred as Quality Inspector in the Food Corporation of India.

At this very stage, it may be mentioned that in the Regulations, seniority fixation has already been dealt with in detail even with regard to the persons who have come to the Food Corporation of India from the Government of India. The relevant Sub-rule (5), for ready reference, is quoted below:

(5) Relative seniority of Food Department transferees and direct recruits of the Corporation:

The seniority of employees transferred to the Corporation from the Food Department vis-a-vis the seniority of direct recruits employed by the Corporation will be determined with reference to the length of continuous service in the grade concerned in the Corporation including the service in an appropriate/equated grade(s) in the Department. Such fixation of seniority will, however, be without prejudice to the inter se seniority of the Food Department transferees to the Corporation in accordance with item (4) above and the inter se seniority of other persons employed by the Corporation in accordance with items (1) to (3) above.

It may be mentioned that the aforesaid Sub-rule (5) talks of appropriate/equated grade in the department, that is, the government department, as being the basis from which the relevant post in the Food Corporation of India has to be taken note of for the purposes of seniority. Consequently, on a combined reading of the two quotations above, that is, Regulation 16(5) and the Appendix, the conclusion is inescapable that the Petitioner was holding a post of Quality Inspector, Grade I, which is equivalent to the post of Senior Godown Keeper which the Petitioner was holding in the Government of India.

Coming to the amendment application, it is apparent that the Petitioner had served a notice on the Food Corporation of India after the judgment of the Supreme Court, noted above. It may further be mentioned here that it is not disputed that the Petitioner had been made a party to the litigation which went up to the Supreme Court. Consequently, there was no option for the Petitioner, but to await the judgment of the Supreme Court and then only take future course of action, as he was advised. Consequently, the notice served was appropriate, as the Petitioner wanted to seek the remedy after the judgment of the Supreme Court came to his notice. The aforesaid notice of the Petitioner was replied to by the Food Corporation of India on 13/20th December, 1993, a copy of which has been filed along with the amendment application. Some reasons have been set out in the said reply which purport to reject the claim of the Petitioner that his service years as Senior Godown Keeper in the Government of India be added to his service in the Food Corporation of India as Quality Inspector, Grade I.

After hearing the learned counsel for the parties, the amendment application is allowed and the following prayer is permitted to be added in the writ petition:

Issue a writ, order or direction in the nature of certiorari quashing the order dated 13/20.12.1993 (Annexure "1" to the Supplementary Affidavit.

In view of the aforesaid discussion, the claim of the Petitioner is sustained in so far as it relates to the addition of the years he had worked as Senior Godown Keeper to the number of years with the years, the Petitioner has worked as Quality Inspector, Grade I, in the Food Corporation of India.

Before parting, it may be mentioned that Sri S. N. Srivastava has raised an objection that those persons who may be feeling affected by this order, as their seniority in the integrated list may be affected have not been impleaded as parties and, therefore, the writ petition should be dismissed.

The aforesaid preliminary objection is without any force for the reason that in the instant case, the Petitioner has taken the action only in pursuance of the Supreme Court judgment and after serving a due notice on the Food Corporation of India. A legitimate right of the Petitioner can and should not be thwarted on artificial technical objections.

In view of the aforesaid discussion, that writ petition succeeds and is allowed. The order dated 13/20.12.1993 is quashed. The seniority list in so far as it relates to the Petitioner is also quashed and the Petitioner shall be placed at the relevant place after adding the number of years he has worked as Senior Godown Keeper in the Government of India to the service which the Petitioner has put in with the Food Corporation of India as Quality Inspector, Grade I, The parties will bear their own costs.