Kulbhushan Sobti & Ors. vs Food Corporation Of India & Anr.
1998 Latest Caselaw 329 Del

JUDGMENT

Y.K. Sabharwal, J.

1. Aggrieved by the impugned order dated 19th February, 1998, passed by a learned Single Judge on application of writ petitioners seeking interim directions, pending the decision of their writ petition, (CW.2047/97) the writ petitioners are in appeal before us.

2. The appellants are employees of Respondent No.1 - Food Corporation of India (FCI). The Writ Petition No. 2047/1997 was filed by them in May, 1997 seeking quashing of Zonal Seniority List dated 14th May, 1996 for the post of Assistant Manager (General) (for short AM(G)) and also praying that the Zonal Seniority List dated 12th March, 1993 shall be continued and future promotions for the post of Deputy Manager (General) made on the basis of Seniority List dated 12th March, 1993. The main grievance, as set out in the writ petition, is that the FCI has by-passed given a go-by to the service rules and regulations governing the service conditions of the Assistant Managers as also to the judgment dated 18th March, 1983 passed by this Court in CWP. No. 1080/78, Deep Chand Gupta, & Others Vs. FCI & Others. The impugned seniority list is claimed to have the effect of nullifying the decision of this Court in Deep Chand's case. The appellants claimed to have joined FCI as Steno Grade-II/AG-II by direct recruitment in the year 1969-70. They say that 37 persons who had joined as AG-III/Typist in 1967/68 in a grade lower than that of the petitioner were promoted as AG-II M in 1969/70 on ad hoc basis without following the basic criteria for promotion i.e. three years service in Grade-III and they were further promoted to next higher post of AG-I in 1971-72 again without following the basic eligibility of three years service in Grade-II and thus they not only became equal to the petitioners but also got one further promotion in 1971-72. It is claimed that the said 37 persons were again promoted as AM(G) in 1976-77 i.e. one grade higher than that of petitioners. These promotions led to persons similarly situated as the writ petitioners filing in this Court Writ Petition No.1080/78 with the grievance that the persons juniors to the said writ petitioners became seniors and promoted as AM(G) in the year 1976-77, while the remained in the post one grade lower i.e. AG(I). The said writ petition was decided by this Court on 18th March, 1983. According to the petitioners the decision restored to them their inter to seniority and the said petitioners were granted promotions as Assistant Manager (G) from 1976-77 because their juniors i.e. said 37 persons had been so promoted earlier by applying next below rule. It is claimed that under these circumstances from 1976-77 the writ petitioners in CWP.No. 1080/78 and the present petitioners become senior to the said 37 persons. According to the appellants the impugned seniority list again makes their juniors, senior to them by violating the mandate of the decision of Deep Chand's case and deprives them seniority and service of about 12 years as AM(G). These in brief are the circumstances under which the appellants have sought quashing of the impugned seniority list dated 14th May, 1996 and continuation of the seniority list dated 12th March, 1993 for the post of A.M.(G).

3. By an ex-parte order dated 30th May, 1997, a learned single Judge issued Rule in the writ petition and on application (CM.489/97) seeking interim protection, it was directed that the seniority list shall not be finalised without the leave of the court. This application has now been disposed of by the impugned order dated 19th February, 1998 and the exparte order dated 30th May, 1997 has been modified and the FCI has been granted liberty to make appointment and promotion on the basis of the impugned seniority list. The impugned order also records the statement of learned counsel for the FCI that without prejudice to the rights and contentions of the parties, the FCI was willing to keep three posts, in the cadre of Deputy Manager, in reserve and in the event of petitioners succeeding they would be appointed on those posts and the promotions made by FCI on the basis of the impugned seniority list would be subject to the writ petition. The impugned order also notices that the claim of the writ petitioners for the posts even higher than that of Deputy Managers shall be considered at the time of decision of the writ petition and appropriate directions issued to FCI to fit the petitioners in the proper posts. The writ petition was ordered to be posted for 17th August, 1998.

4. In support of the contention that the impugned seniority list has the effect of depriving the appellants 12 years service and seniority as AM(G), learned counsel for the appellants has taken us through various documents and seniority lists prepared by FCI from time to time. It has been vehemently urged that in the impugned seniority list, the appellants have been shown as AM(G) as panelist of 1988 whereas they are AM(G) from 1976 and thus its effect is loss of 12 years seniority to the appellants. The appellants submits that on the basis of impugned seniority list their juniors would be promoted to higher posts and the appellants would stagnate as AM(G). It is not in dispute that in the impugned seniority list of AM(G) the appellants have been shown as panelist of 1988.

5. Reliance has been placed by the appellants on the order dated 12th May, 1995 issued by FCI, which inter alia, states that in pursuance of judgment dated 12th February, 1991 delivered in CM.2050/87 filed by Mr. K.S. Sobti (one of the appellants) and also in view of Civil Contempt Petition No. 325/94, it has been decided in consultation with Zonal Manager (North) to pay arrears to appellants 1 and 2 beside another from the date of their empanelment as AM(G). The date of empanelment of these appellants as AM(G) in this office order is 27th October, 1996. The order dated 12th February, 1991 was passed by this Court since it was pleaded by the appellants that their case was similar to those who had been granted relief on account of Deep Chand's decision in respect whereof contempt petition has also been filed. The order dated 12th February, 1991 direct that if it is found by FCI that the case of the appellants is similar to the case of the petitioners in Deep Chand's case, the same benefit shall be granted to them as well as ordered in the contempt petition. Reliance has also been placed by the appellants to the counter-affidavit filed on behalf of FCI by Mr. P. Ram Zonal Manager (North). In this affidavit it has been, inter alia, stated that the order dated 12th February, 1991 has been implemented by FCI both in letter and spirit and arrears of pay and allowance etc. of the petitioners, from the date of their empanelment for promotion to the posts of Assistant Manager have been released and their acknowledgment in token of having received the same obtained. Learned counsel for the appellants have vehemently contended that thus the appellants having been granted every relief as AM(G) with effect from 1976 cannot now be denied and deprived 12 years seniority by down grading them in the seniority list treating them as AM(G) panelists of the year 1988. CCP.325/94 was disposed of on 10th January, 1996. In the said order FCI was, however, told that orders of this Court ought to have been complied with expeditiously and in future they shall keep it in their mind. Admittedly, the appellants have also been shown as seniors in the seniority list of AG-II dated 28th March, 1984 and in the zonal seniority list of AM(G) dated 12th March, 1993 and All India integrated seniority list dated 21st August, 1995 of the post of AM(G).

6. The claim of the appellants has been seniority refuted by FCI as also by the affected employees. Dr. Singhvi appearing for FCI submits that the seniority lists dated 28th March, 1984, 12th March, 1993 and 21st August, 1995 were provisional. The seniority list dated 28th March, 1984 does not appear to be provisional. A perusal of this list prima facie shows that it was prepared in compliance with the decision of Deep Chand's case. Dr. Singhvi has placed reliance on provisional seniority list of AG-II dated 20th/23rd March, 1989, final seniority list of the said posts dated 10th October, 1990 and final seniority list of AG-I dated 30th April, 1998 wherein the appellant have been shown as junior. In reply to the seniority lists on which Dr. Singhvi has relied, the appellant have relied upon the three seniority lists referred to above as also to the office order dated 12th May, 1995 and the stand taken in the affidavit of Mr. P. Ram dated 1st September, 1995 and the order dated 10th January, 1996 disposing of the CCP. According to all these documents the appellants are senior. The appellants have also placed reliance on the order dated 23rd September, 1997 passed in the writ petition which records submission of Dr. Singhvi that FCI will prepare this seniority list as per the judgment of this Court in the case of Deep Chand Gupta. It was contended for the appellants that what was done after this order was only to add further names including that of the appellants to the impugned seniority list dated 14th May, 1996. The seniority list dated 24th October, 1997 prepared after giving statement recorded in the order dated 23rd September, 1997, it is not in dispute, proceeds on the same basis as the seniority list dated 14th May, 1996. Thus insofar as the position of the appellants in his seniority list is concerned on principle, there is no difference between the two lists dated 14th May, 1996 & 24th October, 1997. Admittedly, in these lists the appellants have been shown as AM(G) as panelists of 1988. It can thus be seen that the FCI relies strongly on certain lists in which the appellants have been shown as juniors, and the appellants on the other hand rely upon certain other lists wherein they have been shown as seniors besides placing reliance on Deep Chand decisions and other orders passed on applications and documents and affidavits of FCI referred hereinabove. Prima facie, reliance by FCI on the order dated 22nd November, 1996 passed by a learned Single Judge of Punjab & Haryana High Court is of no avail since the said order did not decide any conflicting claim and further against that order LPA is also pending in Punjab & Haryana High Court.

7. Having noticed the respective claims as aforesaid, we refrain from expressing any opinion lest it may prejudice the rights of the parties since admittedly these aspects are likely to come up for consideration in the writ petition. However, having regard to the nature of controversy, long standing disputes between the two factions of FCI, conflicting seniority lists and other factors noticed above, including decision in the case of Deep Chand's case, we feel that the modification of the order dated 30th May, 1997 and permitting FCI as interim measure to make appointments on the basis of impugned seniority list to the cadre of the Deputy Manager and further higher posts, is likely to create more complications and problems rather than to solve them. On the peculiar facts of this case reserving three posts in the cadre of Deputy Managers also note the contention urged for the appellants that reserving three posts of the cadre of Deputy Managers is otherwise meaningless because in any case at any given point of time many posts of Deputy Manager remain vacant. We may noticed that one of the main contention of the appellants in that the result of loss of 12 years seniority is that those who are their juniors by many steps would be writing their annual confidential reports in case promotions are made on the basis of the impugned seniority list.

8. Counsel for the FCI, also submitted that after the impugned order of learned Single Judge certain promotions on the basis of impugned seniority list have already been made. On the other hand it was contended by counsel for the appellants that FCI should not be allowed to take advantage of making promotions on the basis of impugned seniority list since FCI knew that the present appeal was pending.

9. Having regard to the facts and circumstances noticed above, we do not think it expedient at this stage to disturb the promotions that have already been made, which, of course would be subject to result of the decision in the writ petition as also so stated in the impugned order. At the same time, we are of the considered opinion that it is a fit case where FCI shall be restrained from making any further promotion/appointments on the basis of the impugned seniority list dated 14th May, 1996 and 24th October, 1997. We order accordingly.

10. Learned counsel for the appellants while submitting that impugned order be set-aside & learned counsel for FCI while supporting the impugned order had both suggested that the writ petition may be directed to be disposed of at an early date, which has been directed to be posted for hearing for 17th August, 1998. We do not know the position of the Board of Learned Single Judge and, therefore, do not think it appropriate to issue any directions for hearing and disposal of the writ petition on a earlier particular date. Considering the impact on large number of employees of FCI which may result in heart burning between two factions of employees and may also result in the working of the Corporation, we have no doubt that in case an application is made by counsel for the parties for expeditious disposal of the writ petition, learned Single Judge would consider it on its own merits.

11. Consequently the order of learned Single Judge dated 19th February, 1988 is modified to the extent indicated above and appeal disposal of accordingly leaving the parties to bear their own costs.