Andhra HC (Pre-Telangana)
Mohd. Anwar Ali vs A.P. Co-Operative Oil Seeds Growers ... on 26 September, 2003
Equivalent citations: 2003(6)ALD400
ORDER V. Eswaraiah, J.
1. All these writ petitions are filed to issue a writ of mandamus to declare the action of the respondents in introducing the Voluntary Retirement Scheme in A.P.Co-operative Oil Seeds Growers Federation Limited (for short 'APOILFED') as illegal, arbitrary, unconstitutional and without jurisdiction and to set aside the notification No. APOILFED: MD:P&A: VRS: 2003 dated 7-5-2003 and also declare the final common seniority list of the employees of APOILFED along with the surplus, and non-surplus list which is approved for the VRS-2003 vide notification APOILFED : MD: P&A: VRS: 2003 dated 7-5-2003 as illegal, arbitrary and against the principles of natural justice and set aside the same.
2. Several contentions have been raised by the learned Counsels Sri J.V. Suryanarayana, Sri Nooty Ram Mohan Rao, Dr. K. Lakshmi Narasimha, Dr. P.B. Vijay Kumar, Sri P. Girikrishna, Sri T. Sudhakar Reddy, Sri N. Sridhar Reddy etc., appearing for the writ petitioners contending that APOILFED was formed and registered under the A.P. Co-operative Societies Act in 1983. After 10 years i.e., during 1992-93, the Federation has adopted three tier structure viz., Federation and 2 Regional Unions at Gadwal and Piler and Primary Co-operative Societies. Introduction of the Voluntary Retirement Scheme as well as identification of the various employees of the 1st respondent - APOILFED for the purpose of that Scheme is illegal, arbitrary, irrational and unreasonable. It is stated that the Federation has not prepared the final seniority list of various cadres and the same has not been communicated. Regional Union-1 is formed and named as Sri Vijayavardhani Co-operative Oil Seeds Growers Union Limited with its headquarters at Gadwal comprising of Central Processing Unit, Beechpally for Mahabubnagar, Kurnool, Khammam, Nalgonda, Krishna and Guntur Districts. Regional Union-2 is formed and named as Sri Krishnadevaraya Co-operative Oil Seeds Growers Union Limited with its headquarters at Piler comprising of Vegetable Oil Seeds Complex, Anantapur, Central Processing Unit at Piler for the districts of Cuddupah, Chittoor, Anantapur, Nellore and Prakasam. These two Regional Unions are formed and registered under the A.P. Co-operative Societies Act in 1992. Services of certain employees who were initially appointed by the APOILFED and serving with the said two Unions were transferred to the respective Unions.
3. Questioning the said action, 21 employees namely M. Tirupathi Reddy and others have filed W.P. No. 24907/1996 contending that they are the employees of the Federation but not the Unions which were subsequently formed 10 years later and registered separately under A.P.Co-operative Societies Act and, therefore, they shall be treated as employees of the APOILFED. It was their contention that they were appointed by the APOILFED and Unions did not issue any office orders appointing them as their employees in the respective cadres and the APOILFED transferred their services against their wish and without obtaining any consent. A learned Single Judge of this Court considered the said question as to whether they were the employees of the APOILFED or they ceased to be the employees of the APOILFED and whether they have become the employees of the two Unions. The learned Single Judge allowed the said writ petition on 6-6-2000 () holding that the relationship of employment established between them and the Management of APOILFED during the years of 1983-84 and 1985 is not yet severed or determined by any mode known to law. Similarly, there is no contract of employment between them and the Management of Unions. Transfer/allotment of those employees to the Union are against their wishes and at no point of time they have given their consent to severe the relationship of the employment with the APOILFED to become the employees of the Union. The resultant position in law is that they continue to be the employees of the APOILFED and there is no relationship of employer and employee between them and the aforesaid two Unions. Accordingly, the writ petition filed by them was allowed declaring that they are the employees of the APOILFED and the APOILFED was directed to treat them as employees of the 1st respondent alone and extend all service benefits, pecuniary or otherwise on par with its other employees. If they were denied any service benefit or benefits on the ground that they were not employees of the APOILFED after they are transferred to the Unions in the year 1993, a direction was given to APOILFED to undo such injustice done to them and extend all permissible service benefits including the seniority and promotion, pay scale and allowances etc. Aggrieved by the said judgment, the APOILFED filed W.A. No. 798/2000. While admitting the writ appeal on 26-7-2000, interim orders were passed in W.A.M.P.No. 1547/2000, directing that the status quo shall be maintained with regard to the promotions made already. Promotions, if any, to be made in future shall be subject to the result of the writ appeal. It was made clear that the judgment of the learned Single Judge is not stayed for future promotions. The said order was modified by order dated 26-7-2000 at the instance of certain employees in W.A.M.P. No. 1814/2000 stating that the said interim order shall not come in the way of the APOILFED in giving promotions to the employees and also for giving monetary benefits to them and it shall not come in the way of contesting respondents (employees) in making demand for promotion and for other monetary benefits and that if such demand is made, the APOILFED shall consider the same. Thus, the earlier order dated 26-7-2000 is modified. The effect of the modification order is the order of the learned Single Judge is not stayed in any manner.
4. It is also relevant to refer about W.P. No. 19250/1993 filed by 63 temporary employees to regularize their services in the APOILFED as well as in other two Unions. W.P.No. 19550/93 filed by the A.P. Oil Seeds Growers Employees Union and also W.P. No. 15753/1994 filed by 4 temporary employees for a similar relief to regularize their services. Those two writ petitions were dismissed by a learned Single Judge on 14-8-1995 holding that they have no right to be treated as Federation employees and they are not entitled to the service condition to which the Federation employees are entitled. They are not entitled for any relief and accordingly dismissed the writ petitions. Aggrieved by the same, they have filed W.A. Nos. 1279, 1283 and 1285 of 1995 and a Division Bench of this Court disposed of the same by judgment dated 6-5-1996 with certain directions directing the respondents to constitute a committee to go into the service conditions and determine the payment with regard to their pay scale, regularization etc. Aggrieved by the said judgment in the writ appeals, APOILFED and two Unions filed Civil Appeal Nos. 16889-16871/1996 before the Hon'ble Supreme Court of India. The Apex Court while disposing by order dated 28-4-1998 superceded the directions issued by a Division Bench of this Court and accepted the suggestions of the APOILFED and the Unions that subject to the approval of the staffing pattern/cadre strength by the Registrar of Co-operative Societies, availability of the vacancies to be filled and subject to fulfilment of the qualifications by the consolidated employees prescribed for the post will be considered.
5. As long as the judgment in the case of M. Tirupathi Reddy v. A.P. Co-operative Oil Growers' Federation Ltd, 2003 (3) ALT 460, is not modified or set aside, in the writ appeal, pending on the file of this Court, there cannot be any legal dispute that all the employees appointed by the Federation whose services have been transferred to the aforesaid two Unions are continued to be the employees of the Federation only.
6. Sri Vilas Afzulpurkar, learned Counsel appearing for the APOILFED contended that the two Unions are the part of the Federation and the employees working in the Unions are also the employees of the Federation and their services in the Unions cannot be considered as on deputation. It is further stated that there is no deputation order and no deputation allowance is being paid to them and the promotions given to 19 persons by the Union between 1994 and 1999 have not been questioned by any of their seniors in the Federation and they are discharging their duties in the promotional post to knowledge of one and all for all these years and, therefore, the promotions given to them cannot be ignored or set aside as sought by the petitioners without making any of them as parties to the writ petition. The promotions given by the Union by conducting D.P.C. and by a regular selection after following due procedure and, therefore, the promotions given to the transferred employees in the Union cannot be allowed to be questioned at the instance of the petitioners at this belated stage. In view of the aforesaid judgment in the case of M. Tirupathi Reddy (supra), the learned Counsel for the respondents submitted that they are not the deputationists and the Unions are part and parcel of the Federation alone and their promotions made by the Unions have to be considered in the promoted post alone ignoring the cases of their seniors working in the Federation, This contention cannot be accepted for the following reasons. Firstly, for the reasons as decided in the case of M. Triupathi Ready (supra). Secondly, the Federation is established and registered under the A.P. Co-operative Societies Act in 1983 and similarly two Unions were formed independently and registered under the A.P.Co-operative Societies Act in 1993 and all these three Societies are independent and separate bodies incorporated. The ownership of the respective societies vests with the members constituting Co-operative Society. They have separate Regulations, Bye-laws and separate governing body. Therefore, it is incorrect to state that the Unions are the part and parcel of the Federation. It is equally incorrect to state that the services of the Federation employees working in the Unions cannot be treated as deputationists. As per the aforesaid judgment, the Federation employees working in the Union are the employees of the Federation and their services in the Union must be treated as deputationists only. They continue their lien in the Federation and their service conditions, seniority, pay scale etc., shall be protected on par with the Federation employees. However, I will deal with the effect of 19 promotions made by the Unions at a later stage.
7. Dr. K. Lakshmi Narasimha, learned Counsel appearing for some of the petitioners submits that the Federation was trifurcated into three viz., Federation and two Unions and thereafter, the Registrar of Co-operative Society by his proceedings dated 21-8-1998 in Rc.No. 10477/1997-Mkt sanctioned the staffing pattern and pay scales under Section 116-C of the A.P. Co-operative Societies Act for the APOILFED. As per the said order, the Registrar approved staffing pattern and the cadre strength of the Federation not exceeding 140 employees. Similarly, by order dated 21-7-1999 in Rc.No. 6050/99-Ml, the Registrar of Cooperative Societies Act approved staffing pattern and cadre strength of Sri Krishnadevaraya Co-operative Oil Seeds Growers Union Limited, Beechpally was fixed not exceeding 142. A separate seniority list of the Federation and two different Unions was also published and, therefore, common seniority list showing the employees of the Union by the Federation vide its Circular dated 12-12-2002 is illegal and unsustainable. The said contention of the learned Counsel for the petitioners cannot be accepted for the reason that the said separate approval of the cadre strength of the Federation and two Unions by the Registrar of the Co-operative Society was never acted upon and it has no force of law in view of the judgment of this Court in M. Tirupathi Reddy (supra). The aforesaid three orders of the Registrar fixing the staffing pattern and cadre strength has been reverted back prior to the date of the transfer of the services of the Federation employees to the Union. Therefore, the Federation rightly consolidated and issued a common seniority list of the Federation employees consisting of three lists who are of the employees of the Federation calling for the objections from the employees who are aggrieved by any discrepancy relating to the seniority or with regard to any error in the date of birth or date of joining mentioned in the common seniority list for the purpose of introducing Voluntary Retirement Scheme to all the eligible employees of the APOILFED. After considering the objections filed by the employees, the objections were rejected and issued a circular and notification dated 7-5-2003 showing the list of the non-surplus and surplus as per the approved cadre strength and as per the final common seniority list. Questioning the said circular and notification dated 7-5-2003, all these writ petitions are filed.
8. The APOILFED was registered with an object to bring about the increase in production in oil seeds so as to lessen the gap between the demand and supply of edible oils. For implementation of Vegetable Oil Project by the National Dairy Development Board (NDDB), and Federation is adopted 3 tier structure at the directions of the NDDB and accordingly two Regional Unions were formed during the year 1992-93 as stated supra. The entire project has been funded by the NDDB for promoting the Primary Agricultural Societies and establishment of the Processing Units. The share capital of the NDDB in those two Unions at Gadwal and Piler is 5,00,00,000/-in each Society. The share capital of the Oil Seeds Growers Co-operative Societies in Gadwal Union is Rs. 12,95,000/- and in Piler Union is Rs. 7,42,000/-. The Unions suffered huge financial loss as on 31-3-2002. The total outstanding including the principal and the interest of Piler Union was Rs. 3, 884.87 lakhs and Rs. 2631-53 lakhs of Gadwal Union. The total outstanding by the said two Unions to the NDDB as on 31-3-2002 was Rs. 6516.40 lakhs. In addition to the said huge outstanding, the Unions were also suffered from huge accumulated losses of Rs. 1591-75 lakhs by Piler Union and Rs. 1972.15 lakhs by Gadwal Union. In view of the above situation, a Joint Committee meeting of the APOILFED and two Unions was held on 13-4-2001 on restructuring of APOILFED and the said two Union's in which a decision was taken to close down both the Unions and to take necessary steps for closure of the two Unions. It was further felt that any delay in deciding on the future of the two Unions would only deteriorate their financial conditions and increase the liabilities and, therefore, it was concluded that the two Unions are facing acute financial crises and are even finding it difficult to pay the salaries to their employees. A time bound programme for closing down the Unions was chalked out and the revised staffing structure of the Federation based on a broad Five Year Business Plan was decided to be finalized. The following plan of action was agreed upon to be initiated by the Managing Director of APOILFED.
1. Identify and appoint Consultant by 20-4-2001 to recommend for disposal of Assets and settlement of Liabilities of the two Regional Unions.
2. Identify and appoint an agency for the valuation of the assets of the two Regional Unions by 30-4-2001.
3. Work out a broad Five Year Business Plan for the Federation by 30-4-2001.
4. Assessment of manpower requirement in the APOILFED based on the requirement plan by 30-4-2001.
5. Convence Board and Annual General Body Meeting of the Unions for authorizing the APOILFED to take steps for the disposal of assets, settlement of liabilities and closure of two Regional Unions by 10-5-2001.
6. Convene a Federation's Board Meeting for taking approval on the proposal by mid May, 2001.
7. Forward the proposal of NDDB for its in-principle-clearance by the end of May, 2001.
8. Submit the proposal to the State Government thereafter approval on:
(i) The closure of the Regional Unions.
(ii) The disposal of Unions' assets along with land.
(iii) The settlement of liabilities including that of the employees.
9. Pursuant to the above decision, the Federation appointed consultant for the purpose of valuation of the assets of the two Unions and for preparation of guidelines for closure of and disposal of the assets etc., of the two Unions. The APOILFED Board in its 74th Board of Directors Meeting held on 13-5-2002 approved the decision taken by the Joint Committee for the closure of the two Unions and the manpower of 161 employees required for the restructured Federation was worked out based on the Five Year Business Plan. The Federation addressed a letter dated 1-6-2002 to NDDB for the in-principle clearance of the proposal for closure of the two Unions. The NDDB vide its letter dated 2-7-2002 informed the Federation that they agree in principle for the closure of two Unions without prejudice to their invoking the Government guarantees for recovery of their outstanding loans.
10. The Board in its 74th meeting held on 13-5-2002 at Item No. 12 with regard to the subject of closure of two Unions of Gadwal and Piler, it was resolved to offer Voluntary Retirement Scheme for the surplus manpower of the Federation and the Unions as per the approved pattern. It was also resolved to refer the matter to the Government for providing financial assistance to implement the same. The Board agreed for the closure of the two Unions and accordingly for liquidation of the two Unions, a decision has been taken to send a proposal to the Government in consultation with the NDDB. Consequent to the proposal of the restructure of APOILFED, 174 employees out of 335 employees (both in the Federation and Unions) would be surplus. In order to offer Voluntary Retirement Scheme for the surplus manpower, a proposal was worked out by the APOILFED represented by its Managing Director in letter dated 15-5-2002 and the same was submitted to the Government for financial assistance for implementation of the Scheme.
11. The Government vide G.O. Ms. No. 331 (Agriculture and Co-operation) Department dated 23-7-2002 notified that in exercise of powers conferred by Section 3 of the A.P. Co-operative Societies Act, the Governor of Andhra Pradesh appointed the Principal Secretary, Public Enterprises Department and conferred on him, in respect of the Co-operative Societies mentioned in the annexure thereto, which were identified for privatization/restructuring/winding up under Public Enterprises Reforms Programme undertaken by the Government, the powers of the Registrar under the A.P. Co-operative Societies Act and the Rules made thereunder. Three Co-operative Societies namely, APOILFED and two Unions are shown at Sl.Nos. 3, 4 and 5 of the annexure to G.O. Ms. No. 331 dated 23-7-2002. The Government of Andhra Pradesh had also appointed Liquidators for the aforesaid two Regional Unions vide letter dated 25-9-2002. For the restructuring of the Federation, the Voluntary Retirement Scheme is introduced. For the revival of the Federation while taking into consideration of the staffing pattern as Unions are being liquidated and the plants are closed and there being no future proposal of establishing plants, in the process of divestments/restructuring, certain posts are found surplus and accordingly, cadre strength of 159 employees and the Five Year Business Plan was proposed. Therefore, in many of the categories, the employees were shown as surplus. The Board of Directors of the Federation in their 75th Meeting have resolved to revise the final cadre strength of 159 and approved norms to be adopted for preparing the final common seniority list of all the employees accepting the norms that in cases of promotions, when the date of joining is the same, the seniority of the employees as per the feeder channel has to be protected rather than fixing the seniority on the date of birth. Wherever the date of joining is different on the promotion, the seniority has to be fixed depending on the date of joining in the promoted cadre. The Board resolved not to allow the employees to opt for reversion in the lower post. Whoever is the junior most based on their seniority in a particular cadre and has rendered service as per the cadre strength of the Federation will be given the option for the Voluntary Retirement Scheme.
12. The total staffing pattern fixed by the Federation for approval in the new cadre strength is 159 employees under Section 116-C of the A.P. Co-operative Societies Act. As per the Five Year Business Plan the number of personnel required were identified by the respective departments. Accordingly, a letter dated 5-5-2003 was addressed by the Managing Director of APOILFED to the Principal Secretary to the Government, Public Enterprises Department and the Registrar of the Co-operative Societies requesting him to approve new cadre strength of the Federation as 159 employees under Section 116-C of the APCS Act, 1964 urgently. The Registrar of Co-operative Societies by his order dated 19-5-2003, pursuant to the resolution of the Board of Directors of the Federation in its meeting held on 31-1-2003 approving the revised final cadre strength of the Federation as mentioned in the Federation's letter dated 5-5-2003 approved the proposals of the Federation under Section 116-C of the APCS Act for the staffing pattern, strength of the employees in each cadre and pay scales for the employees of the Federation as shown in the annexure of the said letter with effect from 5-5-2003 subject to certain conditions namely, Federation shall be responsible to pay the salaries and the Federation shall review at the end of each year business turnover and shall not increase the cadre strength of 159 employees etc.
13. During the course of the hearing W.P.M.P. No. 20380/2003 in W.P.No. 9633/2003 was filed questioning the proceedings of the Registrar, Cooperative Societies dated 19-5-2003 on the ground that the approval of the Registrar under Section 116-C of the APCS Act cannot be given retrospective effect. It is also argued that the appointment of the Principal Secretary to Public Enterprises Department, cannot act as superior to the Commissioner and the Registrar of the Co-operative Societies and every Registrar appointed under Sub-section (1) shall exercise under the general superintendence of the Registrar, such powers of the Registrar under the Act as the Government from time to time conferred on him. Under Section 3(1), the Government can appoint any number of persons as Registrar for the purpose of the Act, In the instant case, the Governor appointed the Principal Secretary to the Public Enterprises Department, as the Registrar under Section 3 of APCS Act. In addition to the said Principal Secretary to the Public Enterprises Department, certain other persons also can be appointed and the other persons who are lower to the rank of the Principal Secretary shall function subject to the general superintendence of the Registrar in the superior capacity. The Government is empowered to appoint the Principal Secretary as Registrar under Section 3 of APCS Act and, therefore, there is no illegality or impropriety in appointing the Principal Secretary as Registrar.
14. With regard to the contention of the learned Counsel appearing for the petitioners that the approval of the proceedings of the Registrar dated 19-5-2003 approving the cadre strength with effect from 5-5-2003 i.e., from the date of the letter of the Managing Director of the APOILFED amounts to giving retrospective effectivity and the Registrar is not empowered to approve the cadre strength with retrospective effectivity. It is to be stated that under Section 116-C of the APCS Act, the Society shall have the power to fix the staffing pattern, qualifications, pay scales and other allowances for its employees with the prior approval of the Registrar of APCS Act subject to the condition that the expenditure towards pay and allowances of the employees shall not exceed 2% of the working capital or 30% of the gross profit in terms of the actuals in a year whichever is less. The Registrar approved the proposal with effect from 5-5-2003 and, therefore, it will have to come into force with effect from 5-5-2003. If no date of retrospective effect is mentioned in the approval order, then it must be construed that the approval will come into force from the date when it is passed. It is one of the recognized rules of interpretation that in the absence of express words or appropriate language from which retrospective effectivity may be inferred, a notification takes effect from the date of its issue and not from any prior date. But in the instant case, the Registrar with express words approved the staffing pattern with effect from 5-5-2003 and the approval of the said Registrar is not unauthorized under Section 116-C of the APCS Act.
15. Now I will deal with the various contentions of the learned Counsel appearing for the petitioners.
16. Petitioners contended that the approval of the Registrar of the Co-operative Societies by his order dated 19-5-2003 approving the staffing pattern with effect from 5-5-2003 is invalid.
17. The Federation has registered bye-laws amended from time to time and approved by the Registrar of the Co-operative Society. As per Bye-law Nos. 23 and 23.8, the Board is empowered to take policy decision, make all arrangements and do such acts and things for the proper management of the Federation and for carrying out the objections for which the Federation is established and for furthering its interest subject to the provisions of the Act, Rules and Bye-laws and also approved staffing requirement, qualifications, experience, job requirement, pay scales, promotion policy, service regulations etc. Service Regulations should necessarily be approved by the Registrar under Section 116-C of the APCS Act. The Federation has also Service Regulations approved by the Registrar of the Co-operative Societies. It is stated by the learned Counsel for the respondents that in view of the approved Service Regulations by the Registrar and the Bye-laws, there cannot be any requirement again to get the approval of the staffing pattern while reducing the staff in conformity with Section 116-C of the APCS Act and the Rules made thereunder. However, the revised staffing pattern to make the Federation viable was also got approved by the Registrar, there is no delay in getting the approval and the Commissioner approved the staffing pattern from the date of the letter of the APOILFED and, therefore, the order of the Commissioner dated 19-5-2003 approving the cadre strength from 5-5-2003 cannot be said contrary to Section 116-C of the APCS Act. The Board is duly empowered to take a decision including the staffing pattern, recruitment, qualification, experience, job requirement, pay scale, promotion policy, service regulations etc. In pursuance of the Board's decision, in its 74th and 75th Meetings held on 13-5-2002 and 31-1-2003 and the Federation vide its letter dated 5-5-2003 approached the Registrar for approval of the revised cadre strength and in fact the letters were received by the Registrar on 5-5-2003 itself and passed the orders on 19-5-2003 according approval in the light of the Board's resolution and the letter of the Federation dated 5-5-2003 with effect from 5-5-2003 itself. The finalization of the seniority list as well as the surplus and non-surplus list have been made on 7-5-2003. The contention of the petitioners that under Section 116-C of the A.P. Co-operative Societies Act, the Society is not empowered to fix the staffing pattern without prior approval of the Registrar, is untenable as the Society has the power to fix the staffing pattern and the staffing pattern was fixed and requested to approve with effect from 5-5-2003 and accordingly the Registrar had approved the same vide his proceedings dated 19-5-2003. Even otherwise, the Federation's cadre strength was already approved and the present proposal was only for its reduction in view of the Five Year Business Plan now proposed under the restructuring programme. This Court in the case of A. Ranga Reddy v. Co-operative Electric Supply Society, Karimnagar, 1997 (2) ALD 582, while considering the language of the 'prior approval' in Section 116-C of the Act held that the staffing pattern, qualifications, pay scales etc., of the employees of the Society must receive prior approval of the Registrar before they become effective. Once the service regulations, bye-laws and the initial staffing pattern were approved, the Board is empowered to act as per its Bye-laws and service regulations. When the Board has power to create and sanction new posts in pursuance of the powers vested in it by the Bye-law, every time it is not necessary to seek approval of the Registrar under Section 116-C of APCS Act when initial cadre strength is created and approved by the Registrar. Further, the Supreme Court of India in Life Insruance Corporation of India v. Escorts Limited, , considered the similar contention with regard to the prior permission and interpreted that the word 'previous permission' has to be interpreted in the light of the objections of the provisions and in that view of the matter the Apex Court quoted the following decision reported in AIR 1935 All 567:
"Ordinarily, the difference between the 'approval' and 'permission' is that in the first the act holds good until disapproved while in the other case, it does not become effective until permission is obtained. But permission subsequently obtained may all the same validate the previous act."
18. Therefore, the approval accorded by the Commissioner with regard to the staffing pattern is legal and valid. The Supreme Court also held in the said case that ex-post facto sanction is also good enough to validate the act. In view of the aforesaid legal position, approval accorded by the Registrar to the cadre strength with effect from 5-5-2003 is valid and the action of the Registrar or the Federation cannot be invalidated on the contention of the learned Counsel for the petitioners.
19. It has been contended by the various Counsel that the principles applied by the Federation for determination of the seniority is arbitrary. The service regulations and the bye-laws of the Federation do not prescribe any Rules as to how the seniority has to be fixed among various employees. Therefore, the Board in its 74th and 75th Meeting approved a uniform procedure regarding the determination of the seniority, which were reflected in the tentative seniority list as well as the final list. The power of the Board in prescribing such Rules for determination of the seniority is not questioned in any of the cases. Rules framed in the said meetings have only been questioned as being discriminatory, discretionary, unjust, not equitable or uniform. The criterion adopted by the Board is uniformly applied for fixing the seniority to all the cases. I have considered the Rules framed by the Board in the said meetings and the application of the same is made applicable justly and uniformly. In the absence of any service regulations and bye-laws, the Board is empowered to fix or adopt uniform criteria and the said decisions taken by the Board cannot be said to be discriminatory, arbitrary or contrary to any statutory Rules. If any Rule or administrative instruction mandates drawing up of seniority list or determination of interse seniority within any specified period, then the same must be adhered to unless any valid reason is indicated for non-compliance with the same. In the instant case, the Board has laid down a specific procedure to be adopted for fixing the seniority and accordingly acted as per the uniform equitable procedure decided in the said meetings. Therefore, the principles applied by the Federation for determination of the seniority cannot be said as arbitrary.
20. The contentions raised by the petitioners with regard to the claiming lower post than the present promotional post in which they are working on the ground that their probation in the promotional post was not declared. The petitioners in W.P. Nos. 9674, 9633, 10031, 9670, 9677, 10285 and 11553 of 2003 contended that they were promoted with effect from 21-7-1999 and their probation was not declared after their promotion and, therefore, they continue their lien in the feeder cadre and they are entitled to be reverted as their promotion has not been confirmed. The learned Counsel appearing for the petitioners in all these writ petitions contended that the petitioners are entitled for stepping down from the promoted post so as to enable them to continue in the service instead of treating them as junior most in the promoted post. If their service in the lower post is taken into account in which post their lien is continued, they will be the senior most employees and, therefore, they cannot be treated as surplus employees. It is further argued that the petitioners in W.P. Nos. 9670 and 9677 of 2003 are promoted by the Union and the Union promotions cannot be taken into account and they are entitled to be treated on par with the Federation employees and, therefore, they are entitled to seek reversion on par with the Federation employees. All these petitioners have been promoted with effect form 21-7-1999 except the petitioner in W.P. No. 9670/2003 with effect from 1-4-1994 and the petitioner in W.P. No. 9677/2003 with effect from 1-10-1997. All of them have received promotional benefits such as; seniority and monetary benefits etc. No one has questioned the promotions given to the petitioners but the promotees themselves are questioning their promotions having enjoyed the promotional post for several years and having enjoyed the benefits arising out of such promotional posts. The promotees-petitioners are now claiming that notwithstanding their promotions, the promotional benefits seek to disown the promotion and want to claim that they be shown in the lower post for the purpose of seniority.
21. Under Regulation 19 of the Service Regulations, an employee, who is appointed to a higher post, will be on probation for a period of one year. One year period may be dispensed with or reduced or extended by a further period not exceeding one year by the Management in its discretion. The Managing Director may, in his discretion, declare the probation of an employee either during or at the end of the probation period. Where the probation is consequent on the appointment of an employee of the Federation to the higher post, the employee shall, during the period of such probation in the Federation's service shall be liable to be discharged by the appointing authority without any notice and without assigning any reason whatsoever. The expression 'probation' has been defined in Regulation 3.14. 'Probation' means a person who is either employed in the Federation for the first time or an employee who has been appointed to the new post in other case who has to complete the prescribed period of probation before he/she is confirmed in writing in Federation's service for the new post, as the case may be. The learned Counsel for the petitioners submits that as long as the probation is not declared/confirmed in writing he/she shall continue lien in the lower post.
22. There are two types of probations. First one is in the case of fresh entrants and the other one is in the case of the promotees. Insofar as fresh entrants are concerned, unless their probation is declared or confirmed, the question of retaining their lien or claiming any right to continue does not arise. Insofar as the promotees are concerned, the maximum period to declare the probation is two years, initial period of one year and maximum period that cannot be exceeded one more year. Therefore, if the probation is not declared or confirmed within a period of two years, the probation is to be treated as confirmed or declared. If no further qualifications are required to be acquired and if there are no disqualifications for confirmation or declaration of the probation, the maximum period that can be taken by the Managing Director, is only two years and the Managing Director cannot refuse to declare or confirm the probation after two years. Therefore, the confirmation or the probation is relatable to the case of the new entrants and declaration of the probation is relatable to the case of the promotees. In that context, Regulation 3.14 has been defined that unless the probation is confirmed in writing, the services of the fresh appointees in the Federation are temporary. The Managing Director in the proceedings dated 21-7-1999 while promoting them stated that they would be on probation for a period of one year from the date of joining the new post. Immediately after completion of one year, orders have also been issued stating that their promotion will be subject to the sanctioned cadre strength and without prejudice to the claim of the Federation pending final orders in W.A. No. 798/2000. A perusal of the orders passed in the year 2001 itself with regard to the declaration of the probation in the promoted post, it was only observed that their promotion would be without prejudice to the claim of the Federation pending final orders in the writ appeal. Merely because it is not stated in the said order that the probation is confirmed, it docs not mean that the probation is not declared. Even if any probation is declared/confirmed in writing, it will always be subject to the result of the orders in the writ appeal. However, the writ appeal was filed by the Federation only. Therefore, the learned Counsel appearing for the Federation submits that the pendency of the writ appeal is of no consequence for implementation of the Voluntary Retirement Scheme and by the implementation of the Voluntary Retirement Scheme in the Federation, the writ appeal has become infructuous. The contention of the petitioners that the declaration of the probation is a mandatory is incorrect. There is no regulation, which stipulates that the promotee cannot enjoy the promotional post in the absence of declaration/confirmation. Reliance placed on Regulation 3.4, which deals with the probation in respect of the persons who employed for the first time in the Federation and, therefore, the confirmation in writing is mandatory in case of persons employed in the Federation for the first time that was born on the Federation service. The said definition cannot be applied uniformly to the case of the promotees. The promotees are dealt with under Regulation 19, which deals with the probation but not the probationer. The maximum period one can be placed under probation is only two years. There is no regulation extending the probation beyond two years. When a probationer is officiating in any permanent post and allowed to continue beyond the period of probation, even in the absence of any express order of confirmation, he must be deemed to have been confirmed in the post. In the case of Omprakash Manya v. U.P. Co-operative Sugar Factory Co-operation Federation, Lucknow, 1986 (2) LLJ 45, the Apex Court held that when the maximum period of probation has expired and the employee is allowed to be continued in the promoted post, the employee should be confirmed in the said post and the authorities cannot revert to the lower post. In the said case also period of probation was fixed for one year and the authority extended the same for a period of one more year. During the period of probation, the services were neither terminated nor were reverted to his substantive post instead he was continued in his promoted post on the expiry of maximum probation period of two years. It was held that the employee could not be continued on probation, instead he stood confirmed in the promoted post by implication. The employee acquired status of confirmed employee in the promoted post and the appointing authority could not legally revert him to the substantitive post (lower post). Similar view has been taken by the Apex Court in the case of Dayaram Dayal v. State of Madhya Pradesh, 1998 (1) LLJ 336, where also maximum period of probation has expired and the person appointed continued to hold the promotional post, he should be deemed to have been confirmed. In view of the aforesaid judgments of the Apex Court, there is no substance in the contentions of the petitioners that since their probation was not declared, their probation is liable to be ignored. Their claim for the lower post is untenable and all the promotees are deemed to have been confirmed in the promotional post from the date on which they joined in the respective post, seniority is admittedly drawn up by following the above principle and as such needs no alteration. The probation is only to give the employer an opportunity to assess the promotee in the promotional post. The probation will not be confirmed or declared if the performance of the promotee is not satisfactory. In cases where the performance of an employee promoted is not satisfactory, the probation would not be declared and the employee would be reverted to the lower post. In all these cases, no employee has been reverted to the lower post. In fact, they have been allowed to work in the promotional post even beyond the maximum period of probation and promotional post and as such it cannot be said that the employer could revert any of the probationers merely on account of non-passing of an order of confirmation of probation. The work of all the promotees not being found unsatisfactory, no employee has right to seek reversion to the lower post having accepted the promotion and having worked in the promotional post and having drawn all the benefits of the promotional posts for several years. Therefore, the request of the petitioners for stepping down from the promoted post cannot be permitted and their probation deemed to have been confirmed even without any specific confirmation orders.
23. Md. Anwar Ali filed W.P. No. 9669/2003 claiming seniority over respondent Nos. 2 and 3 therein. He has also filed W.P. No. 13941/2003 questioning the final seniority list. Mohd. Anwar Ali has joined as Field Officer on 11-7-1983. Respondents 2 and 3 joined as Field Officers on-11-7-1983 and 13-7-1983. All of them are promoted as Executives (Mkt) on 15-7-1989 from the date of joining. The petitioner joined on 4-8-1989 and respondents 2 and 3 joined on 17-7-1989 i.e., prior to the petitioner. The petitioners and the respondents became Deputy Managers on 21-7-1999. The petitioner seeks to be treated senior to respondents 2 and 3 in the category of Executive. The promotion of Executive was earned by the petitioner on 15-7-1989 and his probation was declared on 26-11-1990. On the basis of that promotion, he earned further promotion as Deputy Manager on 21-7-1999. But Respondents 2 and 3 were shown as seniors as they joined in the promoted post earlier to the petitioner and their probation was declared earlier to the petitioner i.e., in the year 1989. The petitioner questions the action of the APOILFED after 14 years seeking seniority in the post of the Executive from the date anterior to the actual date of questioned the date of his promotion as Executive with effect from 4-8-1989 and, therefore, he cannot be allowed to question after a lapse of 14 years. The Board in its 75th Meeting held on 31-1-2003 while confirming its earlier minutes of 74th Meeting held on 13-5-2002 discussed the modalities of fixing the seniority and approved the norms for preparing the final common seniority list based on the date of joining in the promotional post. Wherever the date of joining is different on the promotion, seniority list be fixed depending upon the date of joining in the promoted cadre. The Board also further considered the request of the APOILFED Employees Association to allow the employees to opt for reversion to the lower post and discussed the same and the Board resolved not to allow the employees to opt for reversion. Service Regulations 14.1 and 15.1 also stated that every employee either on joining a post to which is appointed in the Federation or on return from leave, shall furnish joining report and under the Regulations the service of an employee shall be deemed to commence from the first working day on which an employee reports for the duty for appointment at the place and time intimated provided that where he reports afternoon, the service shall commence from the next following day. The employee can also join duty on holiday. The petitioner has admittedly gave his joining report on 4-8-1989 and he cannot seek anterior date for the purpose of commencement of his service in the promotional post. All promotional benefits for the promotional post are drawn by him from 4-8-1989 and he was further promoted based on his promoted post in the promotional post and, therefore, he cannot be allowed to question to alter his seniority after a lapse of 14 years. The consequential W.P.No. 13941/2003 filed by him questioning the seniority list and W.P. Nos. 13985, 13164, 13162, 14203, 13163, 13201 and 13193 of 2003 questioning the final seniority list with the selfsame ground which they have raised in the earlier respective writ petitions. It is to be noticed that the common seniority list was furnished calling for the objections. No doubt, the final common seniority list was not communicated. But admittedly, common seniority list was furnished to all the employees in December, 2002 calling for the objections, if any. Only after considering their objections, the list of the surplus and non-surplus employees is made available. It is stated that out of 162 service employees, 82 employees had applied for the Voluntary Retirement Scheme and already relieved on 30-6-2003. Out of 322 employees, except about 80 employees, all others have accepted the common seniority list and the surplus and non-surplus and none of them have any grievance and non-communication of the common seniority list has not caused any prejudice to any of the petitioners and all of them was communicated surplus/non-surplus list by which they are well aware of their placement in the seniority list. The surplus list is nothing but the junior employees in the particular category and the non-surplus list are the senior persons and if both the lists are put together, it is nothing but a common final seniority list. The Apex Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, , while considering the applicability of the principles of natural justice with regard to the non-furnishing of the enquiry report before passing the order of punishment, it was answered that when the employee is dismissed/removed from the service, the enquiry is set aside because a report is not furnished to him and in some cases non-furnishing of the report might have prejudiced him while in other cases it might have made no difference to the ultimate punishment awarded to him. Hence, the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They arc not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of the each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice. In the instant case, availability of surplus and non-surplus list reflects the common final seniority list, which was also communicated later on, and, therefore, the writ petitions filed on the self-same ground questioning the final seniority list. On the self-same grounds, they have filed a subsequent writ petition questioning the final seniority list, By non-communication of the final common seniority list no prejudice has been caused to any of the petitioners, as there is no change in the tentative seniority list and common seniority list. A common seniority list even if not communicated, not fatal when no prejudice is caused to the petitioners by the said non-communication and even after communication, no fresh grounds could be made out while questioning the said final common seniority list.
24. While fixing the revised cadre strength for implementation of the Voluntary Retirement Scheme, certain posts have been abolished and questioning the same, some of the writ petitions are filed. The post of the Electrician, Assistant Operator, Fitter-II, Technical Assistant-I, Technical Helpers, Gardener, Lab Boy, Lab Woman, Foreman, Shift Officer, Civil Engineering posts -Executive (Technical), Electrical Instrument, Technicians etc. have been abolished. Questioning the said revised cadre strength in abolishing the said posts, W.P. Nos. 9633, 10278, 10040, 9671, 10238, 10187, 10214, 12667 of 2003 have been filed. The revised cadre strength is fixed based on the detailed exercise by the Expert Committee identifying the personnel required as per the Five Year Business Plan, since the Unions are closed, Oil Plants are being sold, the number of persons employed in the Plants cannot be continued. Therefore, the said posts which are not required have been abolished based on the objective policy decision. In the case of State of Punjab and Ors. v. Gursharan Singh and Ors., , the Apex Court reiterated that it is well settled law that a Government servant on abolition of the post is required to be either dismissed from service due to nonavailability of post or may be dealt with according to the policy. In the instant case, on a detailed study by the expert committee, it was determined that certain posts are not required and, therefore, the said posts are abolished pursuant to the policy decision to implement the Voluntary Retirement Scheme for making the business of APOILFED viable as per the Five Year Business Plan as discussed in the Board's meetings of the Federation. Therefore, it cannot be said that the policy decision is illegal or unsustainable.
25. A contention was advanced regarding the operators being classified into two different categories as Operators and Effluent Treatment Plant (ETP Operators). Total number of Operators are 15. Among them 9 are directly regarded as Operators and 6 are promoted as Operators from the post of Assistant Operator cadre. It is contended by the learned Counsel for the petitioners that in 1991, 10 posts of the Operators (Oil Mill/Seed House) Effluent Treatment Plant were advertised and there is no justification in appointing some of them as Assistant Operators and some of them as Operators. If the petitioners were appointed as Assistant Operators in 1991 and subsequently they are promoted as Operators from the post of the Assistant Operators cadre, it is not open for them to question after a lapse of 12 years. ETP Operators are different from the category of Operators, Two members have directly recruited with the specific educational qualifications of Diploma in Engineering along with Postgraduate Diploma in Environmental Engineering unlike others. The draft cadre strength of Operators is 8 in number. ETP Operator is one. The Operators have been directly recruited and absorbed from the Markfed are in the pay scale of Rs. 1100-40-1500-50-2050 at the time of appointment. The Assistant Operators who have been directly recruited are in the pay scale of Rs. 740-15-950-20-1150 at the time of the appointment. The ETP Operators who have directly recruited are in the pay scale of Rs. 910-30-1250-35-1625 at the time of the appointment. The ETP Operators cannot be compared their functions with the other Operators' functions as they are different with each other. Apart from that, their educational qualifications are different from other Operators as ETP Operators were appointed in a lower pay scale than that of the Operators. In 1991 recruitment was made for various Operators in Oil Mills, Seed House and Effluent Treatment Plant.
26. The petitioner in W.P. No. 9635/2003 namely, Chella Srinivas was admittedly appointed by the ETP Operator on 29-7-1991 in the pay scale of Rs. 910-1625. The scale was revised for 2 ETP Operators existing in the Federation from the date of joining and the monetary benefits was effected from 28-1-1998. The ETP Operators cannot equate themselves with other Operators merely because their pay scale is equated subsequently. The petitioner in WP No. 9635/2003 has not impleaded his senior S. Srinivas in the category of ETP Operator. In the restructured cadre strength there is only one post of ETP Operator, which is occupied by S. Srinivas who is senior to the petitioner. Therefore, no relief can be granted to the petitioner seeking seniority over S. Srinivas.
27. K. Ranga Rao, Chemist and two others namely; P. Satyanarayana, Operator and Y. Ranga Charyulu, Field Officer (Agriculture) filed W.P. No. 9634/2003 contending that all categories of Operators appointed for different sections are of common operator cadre, singling out ETP Operator is contrary to Regulation and bad in law. Even ETP Operators come under common Operator cadre. It is further contended that the Operators with different scales clubbed under one category of Operator due to which the petitioner is shown as junior. It is also stated that prior approval of the Registrar of Co-operative Society is not obtained before declaring the surplus posts. It is further contended that the Union employees should not have been clubbed with the Federation employees. As already held supra, all the petitioners are the employees of the Federation only and none of them is the employee of the Unions. With regard to the promotions given by the Unions shall be ignored and they shall be treated on par with the Federation employees only. The 1st petitioner is a Chemist and the 2nd respondent is the Operator, Vegetable Oil Complex and the 3rd respondent is the Field Officer. Clubbing these petitioners who are having different posts, is misconceived as much as all the three posts held by the petitioners are different. So far as the 1st petitioner is concerned, as per the draft cadre strength there are 6 posts of the Chemists and as per the seniority among the Chemists, 6th person in the non-surplus category is working in the said post having been appointed with effect from 25-4-1991 whereas the 1st petitioner is working as Chemist from 6-1-1997. The 1st petitioner having appointed almost six years after the last person in the non-surplus list of Chemist cannot claim any preferential treatment. Further, the 1st petitioner has not submitted any objection to the tentative seniority list and he is raising the grounds for the first time in the writ petition, which cannot be permitted. Insofar as the 2nd petitioner is concerned, he joined in the Federation as Assistant Operator on 20-8-1991 and promoted in the post of Operator with effect from 21-7-1999. Since there are 8 Operators, petitioner No. 2 herein is standing at Sl.No. 14, he cannot be retained in the light of the seniors above him. So far as the 3rd petitioner is concerned, he joined as Field Officer, there are seniors to him. D. Srinivasa Rao and K. Hymavathi who are working as Field Officers who are demoted as Field Officers, which is lower category due to disciplinary grounds and have been working as such with effect from 18-3-1998 and 7-3-2003 respectively. Since disciplinary cases are pending against them, the petitioners cannot claim seniority over and above the said two persons. The contention of the petitioners that on demotion of the said officers, they should be placed below all the persons working in the lower category is untenable and incorrect. The petitioners have been rightly found juniors to the existing Field Officers and based upon the cadre strength fixed and they have been rightly shown in the surplus list.
28. The contention of the petitioner in W.P. No. 9696/2003 is that he was joined as Field Officer on 29-7-1990 and as Area Officer on 21-7-1999 and the 3rd respondent is junior to him in the category of Field Officer but promoted to the Area Officer along with the petitioner on 21-7-1999 and, therefore, the 3rd respondent though junior to him he was retained as Computer Programmer. The 3rd respondent alone possessed Postgraduate qualification in Computer and as per the revised cadre strength, the post of Executive (Computers) is approved by the Board and the 3rd respondent alone possessing qualifications of M.Sc Ag) PGDCA, PGDSM and MBA. The petitioner cannot be compared with the 3rd respondent who does not possess the Post Graduate Diploma in Computer. In the approved cadre strength, one post of Executive (Computers) is recognized and the 3rd respondent alone is found suitable to the said post. Therefore, the contention of the petitioner that the post of the Computers was never notified and that the post of the Executive (Computers) is not one of the posts of the cadre strength approved by the functional Registrar of the Society is untenable. Though merely because the petitioner is immediate senior to the 3rd respondent, he is not entitled to hold the post of the Executive (Computers).
29. With regard to the contentions of the other petitioners to protect their seniority in the feeder post ignoring the date of joining in the promoted post, it is to be stated that the seniority in a particular grade has to be determined on the basis of the relevant Rules and the Board in its meeting decided to fix the seniority taking into consideration the date of joining in the promoted post and as per the pay scales etc. The action of the respondents has not been challenged as ultra virus of the Rules and, therefore, the Rules laid down by the Board of Directors of APOILFED for determining the seniority cannot be held as illegal, irrational or arbitrary as they have adopted uniform procedure. The petitioners cannot be permitted to question the action of the respondents in not protecting their seniority in the feeder post after a lapse of 14 years. The petitioners are making an attempt to re-fix the seniority after a lapse of 14 years, which cannot be allowed at this length of time.
30. Insofar as the case of the petitioner - K. Sudhakar Reddy in W.P. No. 9626/2003 is concerned, it is stated that the petitioner is one of the regularized NMRs appointed as Assistant on 6-10-1999 and the 2nd respondent was regularized on 16-8-1999 and the petitioner claims seniority over the 2nd respondent on the ground that the petitioner is a graduate and the 2nd respondent is senior to the petitioner and the 2nd respondent is not a graduate by the time of the regularization. At the time of the regularization, a condition was imposed on him to acquire minimum qualification of degree within two years. The 2nd respondent in his letter dated 10-12-2002 requested for the extension of time on the ground that he has already appeared for M.A. (Public Administration) from Madurai Kamaraj University and put of 8 subjects he has passed 6 subjects. The Board in its 75th Meeting held on 31-1-2003 under Item 13 of agenda considered the said request of the 2nd respondent and granted him a final chance of extension of one year upto 31-1-2004 keeping in view the long service rendered by the employee. In fact, results of the two subjects were awaited. The Board being competent to relax the qualifications, the 2nd respondent is shown as senior in view of the earlier relaxation.
31. It is the contention of the petitioner in W.P. No. 10441/2003 that he was recruited as Quality Control Officer directly with effect from 25-2-1991 and the 3rd respondent joined as Chemist on 12-3-1984 and promoted as Quality Control Officer directly with effect from 15-3-1990 and he claims seniority and preference over the 3rd respondent on the ground that the petitioner is directly recruited. Admittedly, the 3rd respondent was appointed as Quality Control Officer prior to the petitioner and the 3rd respondent is senior to the petitioner in the post of the Quality Control Officer. Based on the direct recruitment, no preferential treatment is permissible. The petitioner is a junior to the 3rd respondent in the category of the Quality Control Officer. Therefore, the 3rd respondent cannot be reverted to accommodate the petitioner. When both are in the same category, source of recruitment is immaterial.
32. The petitioner in W.P. No. 10581/2003 was appointed as Fireman on 16-1-1990. He claims seniority over the 3rd respondent who joined as Coalman on the same date. The petitioner and the 3rd respondent are promoted as Boiler Attenders on 1-11-1996. The petitioner claims seniority over the 3rd respondent on the ground of higher scale of pay. Both of them joined on the same day and both of them were drawing the same scale of pay in the initial post as well as in the promotional post. Since the date of joining and the pay scale of both of them are the same and the date of birth determines the seniority and the 3rd respondent being the elder to the petitioner, he ranks senior to the petitioner as Operators in the final seniority list. A mistake has been crept in by including the name of V. Nageswar Rao as Boiler Attender in the common seniority list wrongly in the Operators' list and it was corrected in the revised final seniority list dated 13-5-2003. Therefore, the petitioner is declared as surplus.
33. The petitioner in W.P. No. 10214/2003 was appointed as a Helper. The post of the Helper is totally abolished as per the revised cadre strength. All 8 Helpers-Technical except the petitioner have accepted the Voluntary Retirement Scheme and they have been relieved. As there is no post of Helper, the petitioner cannot be declared as non-surplus.
34. Insofar as the contentions of the petitioners in W.P. Nos. 10339, 10334, 10342, 10320, 10340, 10238, 10153, 10187 and 10668 of 2003 are concerned, to count their earlier seniority as NMRs and casual which was not counted and admittedly their seniority has been taken into account from the date of regularization of their services. They have been regularized into their services in 1999, and their seniority has been rightly reckoned taking into account the date of regularization of their services. The Apex Court in the case of Chief Naval Staff and Anr. v. G. Gopala Krishna Pillai, , held that ad hoc appointment without selection by a regularly constituted selection body and even though the said ad hoc appointment was followed by regularization in the same post, the seniority has to be counted from the date of regularization alone. The same principle was also followed in the case of M.K. Shanmugam and Anr. v. Union of India, .
35. It is contended in W.P. No. 10237/2003 that he is senior in the feeder post but his junior selected for promotion earlier to him and he was later promoted and, therefore, his seniority has to be protected in the feeder post cannot be accepted as per the Rules framed by the Board with regard to the fixation of the seniority as the seniority has to be fixed from the date of joining in the promoted post. The Apex Court in the case of State of U.P. v. Onkarnath, 1993 Supp (3) SCC 202, held that senior who is promoted subsequent to the junior is not entitled to claim seniority on the basis of his subsequent promotion on the ground that he was senior in the feeder post.
36. A contention was also advanced that the employees are entitled to claim seniority from the date of the temporary appointment. Seniority cannot be claimed from the date of temporary appointment as held by a Division Bench of this Court in the case of K.L.N.S. Murthy v. Government of A.P., (DB).
37. The petitioners in W.P. Nos. 11553, 11555, 11852, 11858 and 11196 of 2003 are concerned, they are working on deputation in different organizations. All of them are the employees of Federation only. After determination of the seniority on par with the other employees, the surplus and non-surplus list was prepared and the Federation informed the respective organizations and sought repatriation of the petitioners to the parent department i.e., Federation. All these writ petitions are liable to be dismissed as the contentions of these writ petitions are squarely covered by a judgment of the Apex Court in State of Punjab and Ors. v. Indersingh, . Following earlier judgments of the Supreme Court, the Supreme Court held in the said case that the deputationists could be reverted to their parent cadre at any time and they would not get any right to be absorbed on the deputation basis. The concept of deputation is well understood in the service law and has a recognized meaning. "Deputation" has a different connotation in service law and dictionary meaning of the word "deputation" is of no help. In simple words, deputation is a service outside the cadre or outside the parent department Deputation is deputing or transferring the employee to a post outside his cadre and that is to say to another department on temporary basis. After expiry of period of deputation, the employee has to come back to his parent department to occupy the same position unless meanwhile he has earned promotion in his parent department as per the recruitment rules. Whether transfer is outside the normal field of the department or not is to be decided by the authorities who have control over the service or post from which the employee is transferred. Therefore, all these writ petitions are liable to be dismissed.
38. The contention of the learned Counsel for the Federation that the promotions given by the Unions cannot be disturbed and they cannot be treated on par with the Federation employees while finalizing the common seniority list has already been considered and is to be rejected. The contention of the petitioners is that 19 promotions were given by the Unions from 1994 to 1999 are liable to be ignored and all of them have to be treated on par with the Federation employees. There is force in the said contention of the learned Counsel for the Federation in view of the judgment of this Court in M. Thirupathi Reddy v. A.P. Co-operative Oil Growers Federation Limited (supra) and the deputationists are always to be treated the employees of the parent department alone. Therefore, it should be considered that what should be the effect if all 19 promotions given by the Unions are ignored and their seniority is determined on par with the other employees of their parent department-Federation. The status of 19 employees promoted by the regional Unions of Gadwal and Piler without ignoring their promotions is as follows:
Promotions Given by the Regional Unions Gadwal and Filer S. No. Name of the employee Union Present Stage Designation Date of promotion Promoted post
1.
K.V. Ranga Reddy Piler Non-surplus Area Officer 15.2.1996 Dy.Mrg (Ag)
2. M. Gourinath Reddy Gadwal VRS taken Asst. Operator 1-1-1999 Tech.
Asst.-ll
3. M. Venkataiah Gadwal VRS taken Asst. Operator 1-1-1999 Fitter-ll
4. B. Satya Sai Baba Piler Petitioner Asst. Operator 1-1-1999 Electrician
5. M. Seshagiri Rao Piler Petitioner Chemist 1-10-1997 Executive (QC)
6. K.V. Nageshwar Rao Gadwal Petitioner Chemist 1-2-1994 Shift Officer
7. S.K. Rabbani Gadwal Non-surplus MIS Assistant 1-1-1999 Field Officer (Gen)
8. D. Prasad Gadwal Non-surplus MIS Assistant 1-1-1999 Field Officer (Gen)
9. D. Anki Reddy Piler Non-surplus Field Officer (Ag) 1-10-1997 Area Officer (Ag)
10. N. Pratap Kumar Reddy Piler Non-surplus Field Officer (A g) 1-10-1997 Area Officer (Ag)
11. Y. Mohan Reddy Piler Non-surplus Field Officer (Ag) 1-1-1998 Area Officer {Ag)
12. E.V. Ramana Piler Non-surplus & resigned Field Oflicer {Ag) 1-1-1998 Area Officer (Ag)
13. G. Dhananjay Reddy Piler Non-surplus & resigned Field Officer (Ag) 1-1-1998 Area of Officer (Ag)
14. A. Sambasiva Reddy Piler Non-surplus Field Officer (Ag) 1-1-1998 Area Officer (Ag)
15. A. Manikyala Rao Piler VRS taken Analytical Asst 1-1-1998 Executive (Mktg)
16. A. Tirumaleswar Reddy Gadwal Non-surplus Stores Asst 1-1-1997 Stores Supervisor
17. S. Sekhar Goud Gadwal Petitioner Stores Asst 1-1-1997 Stores Supervisor
18. L. Venkateswara Rao Piler Petitioner Fireman 1-11-1996 Boiler Attendant
19. N. Gopala Krishnaiah Piler Non-surplus Fireman 1-11-1996 Boiler Attendant
39. If the promotions are ignored and their seniority fixed on par with the Federation employees, the learned Counsel appearing for the Federation submitted that the details of the changes taken place if their promotions are considered along with other similarly situated persons in the Federation as on 21-7-1999 while considering the rule of reservation is as follows:
Details of changes taken place due to the above reasons i.e., Treating Union Promotions as on 21-7-1999 on par with Federation Employees and Reservations S. No. Name Designation Previous Seniority Number Changed Seniority Number Remarks
1.
K.V. Ranga Reddy Dy.
Mgr (Agl 1 2 Remains Non-surplus
2. M. Gourinath Reddy Tech. Asst. II 5 5 Remains surplus
3. M. Venkataiah Fitter 1 1
-do-
4. M. Satya Sai Baba Electrician 2 2
-do-
5. M. Seshagiri Rao Executive-QC 1 1
-do-
6. K.V. Nageswara Rao Shift Officer 4 4
-do-
7. SK.
Rabbani Field Officer (Gen) 1 1 Remains Non-surplus
8. D. Prasad do-
2 2-do-
9. D. Anki Reddy Executive AO (Ag) 2 8
-do-
10. N. Prabhakar Reddy do-
3 13-do-
11. Y. Mohan Reddy
-do-
4 16-do-
12. E.V. Ramana Executive AO (Ag) resigned 5 20 Resigned
13. G. Dhananjaya Reddy do-
6 21-do-
14. A. Sambasiva Reddy .Executive AO (Ag) (now he becomes surplus from non-surplus) 7 22 Now becomes surplus
15. A. Manikyal Rao Executive (Gen) resigned 29 29 Resigned
16. T. Tirumaleswar Reddy Stores Supervisor 1 1 Remains Non-surplus
17. S. Sekhar Guild do-
2 2Remains surplus
18. L Venkateswar Reddy Boiler Attender 5 6
-do-
19. N. Gopala Krishnaiah do-
4 5Remains non-surplus
40. Though the interse seniority of the aforesaid employees at Sl.Nos. 1, 9 to 13 have changed, they remained non-surplus only. However, the employees at Sl.Nos. 12, 13 and 15 have resigned from their post. Insofar as the employees at Sl.Nos. 2 to 8 and 15 to 19 are concerned, there is no change in their interse seniority. Employees at Sl.Nos. 2 to 6, 17 and 18 remained as surplus. Employees at Sl.Nos. 7, 8, 16 and 19 remained as non-surplus. Sl.No. 14 alone now becomes surplus. Petitioner in WP No. 9634/03 namely, K. Ranga Rao, Chemist was recruited in Scheduled Caste reservation backlog vacancy and he was declared as surplus ignoring the rule of reservation with regard to the backlog vacancy and instead of he being declared as non-surplus, one O. V. Shashidhar, Chemist declared as non-surplus. If the petitioner - K. Ranga Rao is declared as non-surplus the said O.V. Shashidhar, Chemist will now become surplus.
41. Even if the promotions given by the Unions are ignored and the cases of the employees working in the Unions are treated on par with the Federation employees taking into account that they were also promoted on par with the Federation employees with effect from 21-7-1999 there is no chain reaction or any change for upsetting the entire exercise made by the Federation.
42. For the foregoing reasons, all the writ petitions are dismissed except WP No. 9634/2003 filed by the K. Ranga Rao who is working as a Chemist. WP No. 9634/2003 is accordingly allowed. On retaining K. Ranga Rao as Chemist, one O. V. Shashidhar, Chemist may have to be declared as surplus. But O.V. Shashidhar is not made a party and he is not before this Court and without hearing him he cannot be declared as surplus but however it is open for the Federation to take appropriate action in view of the retention of K.Ranga Rao, Chemist, as a non-surplus employee. There shall be no order as to costs.