Kerala High Court
A.V.Sajeev vs The Food Corporation Of India on 11 September, 1995
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939
WP(C).No. 8124 of 2016 (M)
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PETITIONER(S):
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A.V.SAJEEV,
MANAGER (DEPOT),
FOOD CORPORATION OF INDIA,
MULAGUNNATHUKAVU, TRICHUR DISTRICT-680581.
BY ADVS.SRI.B.UNNIKRISHNA KAIMAL
SRI.V.MADHUSUDHANAN
SRI.T.ISSAC
RESPONDENT(S):
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1. THE FOOD CORPORATION OF INDIA,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
FOOD CORPORATION OF INDIA, HEADQUARTERS,
NEW DELHI-110001.
2. THE EXECUTIVE DIRECTOR (SOUTH),
FOOD CORPORATION OF INDIA, ZONAL OFFICE,
CHENNAI-6.
3. THE GENERAL MANAGER,
FOOD CORPORATION OF INDIA, REGIONAL OFFICE,
THIRUVANANTHAPURAM-695001.
4. UNION OF INDIA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF PERSONAL, PUBLIC GRIEVANCE & PENSION,
DEPARTMENT OF PERSONAL AND TRAINING,
NEW BLOCK, NEW DELHI-110001.
R1-R3 BY ADV. SRI.RENI ANTO KANDAMKULATHY
R4 BY ADVS.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SRI.M.A.VINOD, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22-05-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SKG
WP(C).No. 8124 of 2016 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT-P1: TRUE COPY OF THE RELEVANT PAGES OF FCI STAFF
REGULATION 1971 AS AMENDED UP TO 30.09.2012.
EXHIBIT-P2: TRUE COPY OF THE NOTIFICATION INVITING
APPLICATION FOR FILLING UP BACKLOG SC, ST AND
OBC VACANCIES ISSUED BY THE 2ND RESPONDENT DATED
11.09.1995.
EXHIBIT-P3: TRUE COPY OF THE APPLICATION SUBMITTED BY THE
PETITIONER DATED 02.02.1995.
EXHIBIT-P4: TRUE COPY OF THE COMMUNICATION SENT BY THE 2ND
RESPONDENT TO THE ASST.GENERAL MANAGER (ZE) NEW
DELHI DATED 27.04.2010.
EXHIBIT-P5: A TRUE COPY OF THE COMMUNICATION DATED
04.02.2010 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT-P6: A TRUE COPY OF THE COMMUNICATION DATED
13.04.2012 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT-P7: A TRUE COPY OF THE COMMUNICATION DATED
11.07.2012 ISSUED BY THE INFORMATION OFFICER.
EXHIBIT-P8: A TRUE COPY OF THE COMMUNICATION DAED 31.07.1995
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT-P9: A TRUE COPY OF THE ORDER DATED 13.08.2012 ISSUED
BY THE 3RD RESPONDENT.
EXHIBIT-P10: A TRUE COPY OF THE OFFICE MEMORANDUM DATED
26.07.2011 ISSUED BY THE UNDER SECRETARY OF
GOVERNMENT OF INDIA.
EXHIBIT-P11: TRUE COPY OF THE OFFICE MEMORANDUM DATED
30.12.2010 ISSUED BY THE GOVERNMENT OF INDIA.
EXHIBIT-P12: TRUE COPY OF THE LETTER DATED 05.06.2013 ISSUED
BY THE F.C.I.
EXHIBIT-P13: TRUE COPY OF THE JUDGMENT DATED 09.02.2015 IN
W.P.(C) NO.18787/2013.
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WP(C).No. 8124 of 2016 (M)
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EXHIBIT-P14: TRUE COPY OF THE REPRESENTATION DATED 30.03.2015
SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
EXHIBIT-P15: TRUE COPY OF THE INTERIM ORDER DATED 12.06.2015
IN I.A.NO.7983/2015 IN W.P.(C) 18787/13.
EXHIBIT-P16: TRUE COPY OF THE OFFICE ORDER DATED 31.03.2015
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT-P17: TRUE COPY OF THE REPRESENTATION DATED 26.06.2015
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
EXHIBIT-P18: TRUE COPY OF THE ORDER DATED 05.08.2015 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT-P19: TRUE COPY OF THE RELEVANT PAGES OF THE SENIORITY
LIST PUBLISHED ALONG WITH PROCEEDINGS DATED
27.10.2011.
EXHIBIT P20: TRUE COPY OF THE LETTER BEARING NO.15-56(1)92-
LC/333 DATED 26.08.1994 ISSUED BY THE FCI
[EXT.R2(A)]
EXHIBIT P21 TRUE COPY OF THE LETTER DATED 31.7.1995 BY FCI
[EXT.R2(B)]
RESPONDENT(S)' EXHIBITS
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R1(a) COPY OF MINISTRY INSTRUCTIONS DATED 21/8/95
R1(b) COPY OF HEAD QUARTERS INSTRUCTIONS DATED 12/10/95
R1(c) COPY OF RELEVANT PAGE OF STAFF REGULATION
R1(d) COPY OF COMMUNICATION DATED 15/7/96 FROM THE MINISTRY
R1(e) COPY OF HQ COMMUNICATION DATED 7/8/96
R1(f) COPY OF ORDER DATED 5/8/2015 ISSUED TO THE PETITIONERS
/TRUE COPY/
P.S. TO JUDGE
SKG
P.V.ASHA, J.
W.P.(C) No.8124 of 2016
Dated this the 22nd day of May, 2017
JUDGMENT
Ext.P18 order of the respondents rejecting the request of the petitioner for appointment as Manager (Depot) is under challenge in this writ petition, which according to the petitioner is contrary to the directions contained in Ext.P13 judgment.
2. Petitioner who is at present working as Manager (Depot) in the Food Corporation of India ('FCI' for short) joined the FCI on 9.5.1983 as Assistant Grade III. He got promotion as Assistant Grade II (Depot) with effect from 18.9.2000 and thereafter as Assistant Grade I (Depot) on 30.7.2011. Thereafter he was promoted as Manager (Depot) on additional charge as per order dated 2.2.2013.
3. The FCI had issued Ext.P2 notification dated 11.1.1995, while the petitioner was working as Assistant Grade III, inviting applications for filling up backlog vacancies of OBC/SC/ST for various posts including that of Assistant Managers. The officials in FCI having the prescribed qualifications were directed to submit their applications in the prescribed form. The qualification for the post of Assistant Manager (Depot) was 2nd class Degree in Arts/Science/Commerce or Agriculture with three years experience in General Administration of food and W.P.(C) No.8124/2016 :2: allied fields. While 11 vacancies were notified for OBC, the number of vacancies notified for SC and ST were 2 and 13 respectively. Petitioner who was a Post Graduate in Sociology with Post Graduate Diploma in Business Administration, and fully qualified, submitted Ext.P3 application pursuant to Ext.P2 notification.
4. The petitioner's case is that the FCI filled up all the backlog vacancies of SC/ST community pursuant to Ext.P2 notification. At the same time no action was taken for filling up the backlog vacancies of OBCs. On enquiry being made with the respondents, petitioner and others were given to understand that approval was not received from the Headquarters of FCI to fill up the backlog vacancies of OBC. At the same time the appointments on the basis of Ext.P2 notification against backlog vacancies of SC/ST were completed immediately after the notification. The stand of the respondents was that approval was not granted for filling up the vacancies of OBCs. At the same time the appointment of SC/ST candidates was continued on the basis of Ext.P2 notification. A special recruitment drive was conducted in 2008-09 to fill up the vacancies of SC/ST which existed as on 1.11.2008. Petitioner relied on Ext.P10 office memorandum dated 26.11.2011 of the 1st respondent- Government of India by which Government had directed all the offices to ensure that all the backlog reserved W.P.(C) No.8124/2016 :3: vacancies including that of OBC in various Ministries/Departments shall be filled by 30.6.2011. As respondent did not take any positive action on his repeated representations, petitioner approached this court by filing WP(C) No.18787 of 2013 praying for appropriate directions seeking appointment on the basis of Ext.P2 notification.
5. Respondents filed a counter affidavit therein stating that recruitment of OBC candidates could not be proceeded with for want of approval whereas there was no impediment in pursuing the process of appointment of SC/ST candidates. This court after considering the contentions on either side, disposed of the writ petition as per Ext.P13 judgment dated 9.2.2015. This court found that there was no basis for the inaction on the part of the respondents in filling up the backlog vacancies of OBC while they proceeded with filling up of vacancies of SC and ST on the basis of the very same notification. This court held in paragraphs 13, 14 and 15 as follows:
13. By Ext.R2(A), the respondent corporation had instructed all zonal officers to fill up all direct recruitment vacant quota posts in respect of Category-II upto 31.12.1994 reserved for SC/ST, which was issued in relaxation to the ban of fresh recruitment, approved by the board of directors of the respondent corporation. Later, though Ext.R2(B) was issued, it did not mention that only the vacancies of SC/ST to be filled up. In Ext.R2(B) it is stated that with respect to the recruitment of OBC quota the board had already relaxed the ban. So, there was no ban in recruitment of OBC quota at that time. Now, the respondents have deliberately took Ext.R2 (C) as a shield to protect their misdeed.
14. Had there been a restriction to fill up the vacancies by fresh recruitment, the respondents could not have filled up the vacancies for SC/ST quota. As a single notification was issued for filling up of SC/ST quota and the OBC quota, they ought not have segregated the SC/ST W.P.(C) No.8124/2016 :4: quota and OBC quota. Since the respondent corporation has filled up the SC/ST quota based on Ext.P1 notification, they ought to have made appointments for OBC quota also. It is relevant to note that Ext.R2(C) does not impose restrictions to fill up OBC quota. It was a special drive which the respondents were least interested to implement the same.
The net result was that the opportunity of the petitioner and other similarly situated persons were denied.
15. There was failure on the part of the respondent corporation to fill up the backlog vacancies of CBC. Since vacancies were vacant, the respondents deployed persons like the petitioner having longer service and experience. Lack of regular managers occurred due to lack of promotion and appointment in due course. The learned senior counsel for the petitioner would point out that the person now deployed were having 30 to 35 years' service and whenever promotion takes place they would be the eligible candidates to occupy those posts.. There cannot be any hesitation to hold that Ext.P1 notification was intended to maintain the cadre strength of employees belonging to the marginal section. Had Ext.P1 notification was implemented in letter and spirit, the petitioner could have been selected and he would have been got appointment because he was qualified and eligible. Therefore, the respondents are bound to make good the loss sustained by the petitioner.
6. Seeing that the petitioner was eligible to be compensated for the loss sustained by him by not conducting the selection pursuant to Ext.P2, this court directed the respondents to consider his claim in the light of the observations in that judgment. Thereafter the respondents issued Ext.P18 order, rejecting the representation of petitioner, adopting the very same stand taken before this court, as reflected in Ext.P13 judgment. This court had already found that the denial of the appointment/refusal to proceed with Ext.P2 notification and to make appointment against backlog vacancies of OBC was unsustainable. This court also held that petitioner was entitled to be compensated for not completing the process of selection based on Ext.P2. However in W.P.(C) No.8124/2016 :5: Ext.P18 letter the respondents stated that they could not proceed with the direct recruitment pursuant to Ext.P2 notification because of the instructions given by Government of India/FCI Headquarters; the contention which this court had already repelled. According to them they proceeded with appointments only against the carry forward vacancies of SC/ST and there was no approval for filling up of OBC candidates. They stated that the reservation for OBC is applicable only for direct recruitment and not for promotion, without even taking into account the purpose of Ext.P2 notification, which was for direct recruitment. The request of the petitioner for notional appointment and seniority from 1995 was accordingly rejected. The petitioner has filed this writ petition challenging Ext.P18 order.
7. It is the case of the petitioner that the respondents have considered his representation contrary to the findings rendered in Ext.P13 judgment and the directions issued by this court. When this court directed to have a re-look at the case of the petitioner, after it had found that the plea raised by the respondents that there was no approval for proceeding with the filling up of backlog vacancies of OBC was unsustainable and the inaction was unreasonable, the respondents ought to have considered the said representation in the correct perspective.
W.P.(C) No.8124/2016 :6:
8. The respondents have filed a counter affidavit reiterating their stand in the previous counter affidavit. According to the respondents even though notification was issued for special recruitment for filling up the backlog vacancies of OBC/SC/ST, the backlog vacancies of OBCs could not be filled up in view of the instructions received from the Headquarters which permitted only the filling up of backlog vacancies of SC/ST. They have further stated that petitioner could have applied for direct recruitment, in case he was eligible. It is their further case that there is no reservation for promotion.
9. The respondents do not have any case that there was no backlog vacancies of OBCs. Nor do they state any reason why approval was not granted by the FCI, which was also a party to Ext.P13 judgment. They do not even consider the fact that the notification Ext.P2 was for direct recruitment and petitioner had applied for the same, based on that notification.
10. Ext.P1 regulations would show that reservation is admissible to OBCs for appointment to various posts in the FCI in accordance with the Government of India instructions. The grievance of the petitioner was already considered by this court when it rendered Ext.P13 judgment where this court has repelled the stand of the respondents. It was specifically held that petitioner is entitled to be compensated on W.P.(C) No.8124/2016 :7: account of the inaction of the respondents and that petitioner would have got appointment based on Ext.P2 notification, immediately after the notification. In view of the above circumstances the order Ext.P18 can only be seen as one issued in gross disobedience and disregard of the findings of this court which in effect amounts to contempt of court.
11. The counter affidavit does not and cannot furnish any fresh reasons than what was stated in the counter affidavit filed in the first case which was already considered in Ext.P13 judgment. In the above circumstances Ext.P18 is quashed. As the petitioner was fully qualified and applications were called for in Ext.P2 from among the qualified hands in the FCI, the respondents have to compensate the petitioner, for denial of appointment as Manager (Depot), as held by this court in Ext.P13 judgment. This court found that in case the proceedings to fill up the backlog vacancies were made as in the case of the backlog vacancies of SC/ST covered by the very same notification-Ext.P2, petitioner would have got appointment as Manager (Depot) in 1995 itself.
In the above circumstance, in order to compensate the petitioner, the respondents are directed to grant all benefits due to the petitioner as if he was appointed along with those SC/ST candidates appointed pursuant to Ext.P2 notification, in the year 1995. As the W.P.(C) No.8124/2016 :8: petitioner has not actually worked, it would be sufficient to fix his pay on the basis of such appointment and to grant him the consequential benefits which shall reflect in his pensionary benefits also. The writ petition is allowed to the above extent. The benefits shall be granted to petitioner within a period of three months from the date of receipt of a copy of the judgment.
Sd/-
P.V.ASHA JUDGE rkc