Andhra HC (Pre-Telangana)
K. Eswara Dutt vs Chairman, Food Corporation Of India, ... on 16 April, 1998
Equivalent citations: 1998(3)ALD767, 1998(4)ALT373
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. Heard.
2. This writ petition is filed for a appropriate writ or direction directing the Respondents 1 to 3 to fix the petitioner's seniority against 50% quota meant for direct recruits in the post of Assistant Manager (technical) as per the Food Corporation of India (staff) Regulations 1971, in view of the fact that the petitioner was appointed as per the advertisement dated 28-9-1996, on which date the regulations 1971 held the field.
3. The learned Counsel appearing for the petitioner contended that the action of the respondents 1 to 3 in fixing the seniority of the petitioner as against 25% quota meant for the direct recruits as per the amended regulations of the year 1978 is illegal and without jurisdiction. She further submitted that there should a consequential direction to refix the seniority of the petitioner in terms of 1971 regulations without applying the amended regulation dated 7-11-1978 which was given retrospective effect with effect from 18-1-1971. On the other hand, the learned Counsel for the respondents contended that even though the petitioner was recruited as per the advertisement notification dated 28-9-1996, but his actual appointment order was issued after 1978 amendment came into effect and as such his seniority was rightly fixed by the Respondents 1 to 3 under the regulations as amended in the year 1978, therefore.
Respondents 1 to 3 have not committed any illegality. Both the Counsel also supplemented their stand with the help of number of judgments which I will be considering shortly.
4. In order to appreciate the rival contentions. I have to know the facts of the case in brief. In the year 1976, the Food Corporation of India (hereinafter referred to as the Corporation) advertised, on 28-9-1976, for recruitment to the post of Assistant Engineer (Technical calling for the applications from the eligible candidates and the petitioner was one of the applicants. The petitioner appeared for the written test and interview and ultimately an appointment order was given to him and accordingly he joined the service as Assistant engineer (Technical) on 19-9-1977. It is to be noted at this stage itself that the Food Corporation of India by exercising its power under Section 45 of the Food Corporation Act. 1964 amended the Food Corporation of India (Staff) Regulations of 1971 (hereinafter referred to as '71 regulations). The amended regulations were called Food Corporation of India Staff (56th Amendment) Regulations, 1978 (hereinafter referred to as '1978 Regulations1) The said amendment was effected vide notification dated 7-11-1978. The amended regulations stated that "they shall be deemed to have come into force on 18-1-1977". By this amendment appendix-1 of the Food Corporation of India (Staff) Regulations. 1971 was amended regarding the number of posts under the Corporation. The said Appendix-1 indicated the quota between the promotes and direct recruitees. Serial No.4 of the appendix-1 in the amended regulations states that "Part-IV-Technical Cadre 25% by direct recruitment and 75% by promotion". It is stated on both sides that prior to 1978 amended regulation, the ratio between direct recruitment and promotion was 50:50. From the 1978 regulations it is clear that the ratio of 50:50 between the direct recruitees and the promotees was modified into 75% for promotees and 25% for direct recruitees. It is on the basis of this 1978 regulations, the learned Counsel for the respondents submits that, as on the date of appointment of the petitioner, as on 19-9-1997. 1978 regulations have already come into effect with effect from 18-1-1977. Therefore, his appointment is under 25% quota meant for the direct recruitment. Whereas the learned Counsel appearing for the petitioner contended that the petitioner was recruited as per the advertisement issued by the Corporation dated 28-9-1976 even though the petitioner's appointment is later as on 19-9-1977, by that time it came into force, but his recruitment is as per the 1971 regulations, since the 17 posts were advertised on 28-9-1976 as per the 1977 regulations. As per 1971 regulations, the ratio between the direct recruitees and promotees is 50:50. The petitioner was appointed as per the quota meant for the direct recruitees in 1971 Regulations, therefore, the entire approach of the respondents 1 to 3 in fixing his seniority under 1978 regulations is illegal and arbitrary.
5. It is further stated by the learned Counsel for the petitioner that the action of the Respondents 1 to 3 in fixing the seniority of the petitioner as per 1978 regulations was not made known to the petitioner until a seniority list dated 20-8-1988 was circulated by the Zonal Manager (North). New Delhi, immediately, he approached the Zonal Manager (North) by way of representation dated 26-9-1992, but the petitioner was informed vide memo dated 19-7-1993 that as per the headquarters instructions 50% posts for direct recruitees prior to 1976 were filled up by promotion under 1978 Regulations and as such petitioner's seniority was fixed under 25% quota meant for direct recruitees as per 1978 regulations. The petitioner also stated in the affidavit filed in support of the writ petition that the petitioner and some other persons had made representations. But they were given memo dated 19-7-1993 by turning down their request. The petitioner and others approached the Hon'ble Supreme Court. The petitioner filed W.P. No.87 of 1993 which was dismissed by the Supreme Court vide order dated 26-6-1993, at the admission stage, directing the petitioner and few others that they could approach the appropriate High Court. It is in these circumstances, he has filed this writ petition before this Court.
6. In the counter in paragraph No. 7, the respondents have stated that one of the direct recruitee was appointed along with the petitioner during the year 1977 by name Sri Azad Singh has filed an application before the Hon'ble Supreme Court and the same is pending. Even though, it is not stated in the counter that the writ petition is not maintainable only because the other persons effected arc not made parties, the learned Counsel for the respondents contended that the writ petition is liable to be dismissed on this count alone.
7. Having regard to the pleadings on both sides and also the arguments of the respective Counsel, two points arise for my consideration. 1) whether the petitioner is governed by the 1978 regulations, only because his actual appointment order was given on 19-9-1977 after the 1978 regulations had come into force with effect from 18-1-1077 or whether he is governed by 1971 regulations, because his appointment was as against the posts which existed as on the date of the advertisement notification dated issued on 28-9-1976 on which date 1978 regulations had not come into force. 2) whether the writ petition is liable to be dismissed on the ground that the petitioner has not made the affected parties as respondents to the writ petition.
8. I first take up point No.1 for my consideration, ft is not disputed before me that under 1971 regulations the ratio between the direct recruitees and the promotees was 50:50. In other words, 50% was for the promotees and 50% for the direct recruitees. It is also not in dispute that the amended 1978 regulations, though published on 7-11-1978, but were given retrospective operation with effect from 18-1-1977. It is also not disputed that the petitioner was appointed and he joined the service as Assistant Engineer (Technical) on 19-9-1977 as per the advertisement notification dated28-9-1976. From these facts if follows that the actual appointment of the petitioner on 19-9-1977 was on the basis of the advertisement notification dated 28-9-1976.
As on the date of the advertisement notification dated 28-9-1976, the old 1971 regulations hold the field under which the 50% quota was for direct recruitment. But, as on the date when the petitioner was actually joined his duties on 19-9-1977, 1978 regulations had come into force and according to the 1978 regulations only 25% was made available for the direct recruitment. Therefore, the controversy arose between the parties as to which regulations applied to the petitioner.
9. The learned Counsel for the petitioner contended that the selection as on the date of advertisement should necessarily be applied to the petitioner and as on the date of the advertisement notification dated 28-9-1976 according to 1971 regulations 50% quota was meant for the direct recruitments. Therefore, the petitioner was appointed in pursuance to the said notification, as against 50% quota, meant for direct recruitees. In support of her contention, the learned Counsel for the petitioner relied upon the judgments of the Hon'ble Supreme Court in P. Ganeshwar Rao vs. State of Andhra Pradesh, 1998 (4) S.L.R. 548, N.T. Devin Katti v. Kar. Public Service Commission. 1992 (2) S.L.R. 378 and Andhra Pradesh Public Service Commission vs. B. Sarat Chandra, 1990 (4) S.L.R. 235.
10. In the case of P. Gnaneshwar Rao (supra), the Hon'ble Supreme Court was considering Andhra Pradesh Panchayat Raj Engineering Service (sub) Rules, 1962. These rules were amended on 28-4-1980 and after amendment only 8 vacancies could be filled up by direct recruitment. But, prior to amendment 51 vacancies were advertised by the Public Service Commission. The application was filed before the administrative tribunal contending that under the said sub-rules, as amended on 28-4-1980 provided for the recruitment of only 8 vacancies. Therefore, there should be direct recruitment only regarding 8 vacancies as per the sub-rules, as amended on 28-4-1980, and not as per the rules which were in force when the vacancies in question arose. Tribunal had accepted the contention of the applicants. But the Hon'ble Supreme Court reversed the judgment by holding that the amendment made on 28-4-1980 do not apply to the vacancies which had arisen prior to the amendment. The Hon'ble Supreme Court extracted the law laid down in its earlier judgment in Y.V. Rangaiah and Others Etc v. J. Srinivasa Rao and Others, 1983 (3) SCC 264 in which a similar contention was considered by the Supreme Court by laying down the law as follows:--
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by Counsel for both the parties that henceforth promotion to the post, of Sub-Registrar Grade-II will be according to the new rules on the zonal basis and not on the state-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules".
11. From this law declared by the Hon'ble Supreme Court. It is clear that the vacancies which occurred prior to the amended rules were governed by the rules that existed as on the date vacancies arose and not by the amended rules which came into force later. Similar is the situation in this case. The post was advertised on 28-9-1976 and as on that date 1971 regulations were in force and according to which 50% of the posts were meant for the direct recruitees. Even though, the formal order was given later, but in view of the law declared by the Supreme Court, above it is only 1971 regulations that apply to the case of the petitioner. At the cost of the repetition. I may note here that the 1978 amendment regulation was notified on 7-11-1978 giving its retrospective operation with effect from 18-1 -1977, but as on the date of advertisement (28-9-1976) this rule could not operate even retrospectively backwards even beyond 18-1-1977. In these circumstances. I find that the above judgment squarely applies to the facts of this case. The learned Counsel for the petitioner also relied upon the judgment of the Supreme Court in the case of N.T. Devin Katti (supra). In this judgment also the Hon'ble Supreme Court ruled that if during process of selection rules are amended retrospectively such selection must be held to be in accordance with the amended rules and if the amended rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force as on the date of advertisement. In the instant case, even the retrospective date as on 18-1-1977 was subsequent to the date of advertisement as on 28-9-1976, and as on that date 28-9-1976, 78 regulations were not in force since the 78 regulations were given retrospective effect only with effect from 18-1-1977. The advertisement for the post, on the basis of which the petitioner was appointed was even prior to that date as on 18-1-1977. Hence as per the law declared by the Hon'ble Supreme Court in the later case also, it is clear that, as on 28-9-1976 on which date the advertisement notification was issued, only 1971 regulations were in operation, according to which 50% was meant for direct recruitment. If that is so, the petitioner is entitled to be considered within 50% quota meant for direct recruitees and not within 25% quota meant for direct recruitees under 78 regulations. In other words, 78 regulations do not apply to the case of the petitioner. Similar also is the law declared by the Supreme Court in Andhra Pradesh Public Service Commission's case (supra) in which the age as on the date of the advertisement was taken into account, but not the age as on the date when the selection of the candidates was made. The Hon'ble Supreme Court held that the rule as to the age as on the date of the advertisement, calling for the application, shall apply. This judgment also supports the petitioner's contention that it is only 1971 regulations, which were in force as on the date of advertisement, would apply to the facts of the case.
12. On the other hand, the Counsel appearing for the respondents relied upon -the judgment of the Hon'ble Supreme Court in S.D.K Puri v. R.S. Bhatia and Another, , Devendra Prasad Sharma v. State of Mizoram and Others, . In the case of S.D.K. Puri (supra) the Hon'ble Supreme Court was considering as to the method of determining inter se seniority of the appellants and respondents therein. The Hon'ble Supreme Court held that inter se seniority between them shall be determined on the basis of the date of joining the posts, and further held that the persons who joined as Assistant Engineer earlier than the other party, rank senior to the other. Similar also is the principal laid down by the Supreme Court in Devendra Prasad Sharma's case (supra). In this case, the Hon'ble Supreme Court held that the inter se seniority of the direct recruitees and promotees has to be taken in accordance with the rota and quota, and it shall be determined as per the respective dates of appointment, in accordance with the vacancies under the rules. Not following this method would disturb the rota and quota rule. But the law laid down in these two judgments, relied upon by the learned Counsel for the respondents would apply to a situation where inter se seniority has got to be determined between the persons as per the common recruitment rules applicable to them. These two case do not apply to the facts of this case, because the situation we are confronted with in this case is as, to which rule would apply " whether the rule as on the date of the advertisement applies or, the rule as on the date actual appointment order was given, would apply". This kind of situation, as I have already stated above is squarely covered by the law declared by the Hon'ble Supreme Court in P. Ganeshwar Rao's case (supra), N.T. Devin Katti 's case (supra) and Andhra Pradesh Public Service Commission's case (supra). In this view of the matter, I have not been persuaded to accept the contention of the learned Counsel for the respondents that the rule and law as on the date of actual appointment should apply, as against the law which was in force as on the date of advertisement. As per the law declared by the Supreme Court the determining date for application of any rule or regulation is the date on which the post was advertised and in that view of the matter, I have to hold, in this case that, the petitioner as a direct recruittee is entitled to be considered as against 50% quota meant for direct recruitment under 1971 regulations since the said regulations was in force as on the date of advertisement on 28-9-1976.
13. The learned Counsel for the respondents secondly contended that all the persons affected are not made parties to the writ petition. Therefore, the writ petition rails on this count alone. But, the learned Counsel for the petitioner contended that the petitioner in the instant case, has filed this writ petition, questioning the action of the respondents in applying 1978 regulations as against 1971 regulations which would be applicable to the petitioner. In these circumstances, the Apex Court has ruled, in the case of V.P. Shrivastava v. State of M.P., 1996 (1) SLR 819 that, whenever a principle is challenged, though the affected parties may be proper parties, but they would not be the necessary parties and as such the writ petition would not rail on that count alone. From the reading of the said judgment. I find that the administrative tribunal, in that case, dismissed the application, on the ground that even though some of the affected parties were made parties to the application, but other parties were not made parties. The Hon'ble Supreme Court found fault with the approach of the tribunal and held as under:-
"The conclusion of the Tribunal that non-inclusion of the affected parties is fatal to the appellants case is also unsustainable in law. It is to be stated that the appellants do not challenge the so-called ad-hoc appointments of the promotee respondents but they do challenge the position of the said ad-hoc promotee respondents over the appellants in the seniority list. In other words the very principle of determination of seniority' made by the State Government is under challenge and for such a case State is the necessary party who has been impleaded.
It has been held by this Court in the case of General Manager, South Central Railway Secunderabad and Anr etc. v. A.V.R Sidhanti and Ors. etc., :
"As regards the second objection, it is to be noted that the decision of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain Shop Departments. The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representatives. No list or order fixing seniority of the petitioners vis-a-vis particular individuals pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the readjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952 were, at the most, proper parties and not necessary parties, and their nonjoinder could not be fatal to the writ petition''.
14. "In the case of A. Janardhana v. Union of India and others, , a similar contention was also repelled by this Court in the following words:-
"In this case, appellant does not claim seniority over particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing-up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents'.
15. From the above judgment it is clear that whenever a criteria adopted by the authorities is challenged without claiming any relief against any person or persons, such other persons who would be affected, would be proper parties, but they would not necessary parties, and for not making such persons as a parties to the writ petition the same cannot be dismissed as not maintainable. In the instant case, the Official respondents are made parties to the writ petition, those Official Respondents filed a counter contending that the determination of the seniority of the persons, under 1978 regulations was in accordance with the law and whatever action they have taken under 1978 regulations in respect of the petitioner and others was in accordance with law. In other words, the official respondents in substance are supporting the criteria they adopted and as such they are protecting the interest of the other respondents who would be otherwise affected in view of the principal of law to be laid down, regarding the criteria so adopted for determining the seniority of the persons.
16. However, the learned Counsel for the respondents relied upon the other judgment of the Supreme Court in Arun Tiwari v. Zilla Mansavi Shikshak Sangh, AIR 1998 SC 331. In this case the administrative tribunal passed an order impugned without making the selected/ appointed candidates as parties. The applicant therein was a person who was not selected. The learned Counsel for the petitioner contended mat, this judgment does not apply to the facts of this case, in view of the fact that in the later case the selection of candidates was in issue. Whereas, in the instant case the legality of the criteria on the basis of which the seniority of the petitioner and other similarly situated persons was determined requires to be considered and therefore, that case is distinguishable. From the reading of the judgment in Arun Tiwari's case (supra). I find that the judgment relied upon by the learned Counsel for the petitioner in V.P. Shrivastav's case (supra) was not referred. The Hon'ble Supreme Court, in Arun Tiwari's case, following the other judgment held that the entire exercise was distorted because of this omission. The Hon'ble Supreme Court also found fault with the judgment of the tribunal even on merits of the case.
17. Read both the judgments carefully. As I have noted above, the Hon'ble Supreme Court in V.P, Shrivastav's case (supra) laid down two rules i,e., (1). Whenever a list, fixing the seniority of the petitioner vis-a-vis particular individual's is challenged, then such affected parties should be made parties to the writ petition and 2). where the petitioner challenged the principle adopted by the authorities, for determining the seniority, it would be enough, if such authority is made a party to the writ petition. Though the persons affected would be proper parties, but they would not be necessary parties for non-impleading such parties, the writ petition cannot fail. In Arun Tiwari's case (supra), the Hon'ble Supreme Court was dealing with a case where selection of the candidates was being challenged by a unsuccessful candidate. In such circumstances, the Hon'ble Supreme Court ruled that selected persons would be necessary parties to the writ petition. From this it follows that Amn Tiwari's case is one iii which a person sought his selection vis-avis particular individuals who are selected. Thus the Arun Tiwari's case (Supra) is one falling within the rule No. 1 enunciated in V.P. Shrivastava's case (supra). But the instant case is one, which falls within the rule No.2 enunciated by V.P. Shrivastav's case (supra). Li the instant case, the entire approach of the Respondents No. 1 and 2 in considering the case of the petitioners under the amended Riles of 1978, is one without jurisdiction and without any authority of law, since the petitioner was recruited as per 1971 regulations, and his case ought to have been considered only under 1971 regulations, but not under 1978 regulations. Hence, the issue goes to the root of the matter and what the petitioner is challenging in this case is only the criteria basis adopted for not considering the case of the petitioner and other persons similarly situated under 1971 regulations. Having regard to the issue involved in this case, in my humble opinion. I feel that the judgment of the Supreme Court in V.P. Sharivastav 's case (supra) applies to the facts of this case, as I have already stated above, since in the instant case also what is challenged is the criteria adopted by the Respondents 1 to 3 in considering the case of the petitioner and other persons similarly situated. It is brought to my notice that already one writ petition is pending before the Hon'ble Supreme Court on the same issue, and the Supreme Court as already admitted it, and the same is pending. As I have already stated above, the official respondents arc effectively protecting the interest of the persons \\ho would be affected by the ultimate order to be passed, as to the criteria adopted in the case. In this view of the matter, I am of the opinion that the present writ petition, is not of the type, which requires to be dismissed in limini, only because other persons who would be affected are not made parties to the writ petition in view of the law declared by the Supreme Court in V.P. Shrivastav's case (supra) that such persons would be only proper parties and not making such persons as parties would not be a fatal to the writ petition.
18. Lastly, the learned Counsel for the respondents contended that, the vacancies on which the petitioner was recruited arise after April, 1976, therefore, it is 1978 regulations that would apply. In the counter in paragraph No.3 it is stated as under: -
"In reply to para-2 of the affidavit I respectfully submit that 17 vacancies were not accumulated during the years 1972 to 1976. In fact, 34 vacancies had come after April, 1976. Out of these 34 vacancies. 17 vacancies against direct recruitment quota being 50% were advertised during September, 1976.
19. From the above counter it is clear that advertisement dated 28-9-1976 was issued as against 17 vacancies which arose in the year 1976 as against 50% quota. This fact itself, reinforces the contention of the petitioner that. It is only 1971 regulations that would apply. At any rate, the advertisement was given regarding all the posts which arose prior to 1978 regulations, and it is not the case of the respondent that the recruitment was made regarding the post which arose after 1978 regulations. In this view of the matter, the only irresistible conclusion would be that, the appointment of the petitioner was, as against 50% quota under 1971 regulations, being the posts which arose in the year 1976, and as such 1978 regulations, which came into force with effect from 18-1-1977, do not apply to the posts advertised on 28-9-1976.
20. For the above reasons, I allow the writ petition and direct the respondents 1 to 3 to determine the seniority of the petitioner, as a direct recruitee, in terms of 1971 regulations as against 50% quota meant for the direct recruits and accordingly determine his seniority in the department. No costs.