Mr.J.K.Bhatnagar vs Food Corporation Of India
2011 Latest Caselaw 629 Del

R-161 & R-163
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Judgment: 03.02.2011


+            RSA No.107/2004 & CM No.5790/2004



MR.J.K.BHATNAGAR                              ...........Appellant
                              Through:   Mr.Bahar-U-Barqi, Advocate.

                    Versus

FOOD CORPORATION OF INDIA                     ..........Respondent
                 Through:                Mr.Deepak Dewan, Advocate.



             RSA No.110/2004 & CM No.5847/2004



MR.J.K.BHATNAGAR                              ...........Appellant
                              Through:   Mr.Bahar-U-Barqi, Advocate.

                    Versus

FOOD CORPORATION OF INDIA                     ..........Respondent
                 Through:                Mr.Deepak Dewan, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J. (Oral)

1. Two suits had been filed by the plaintiff J.K.Bhatnagar.

Defendants were the Food Corporation of India (hereinafter

referred to as 'the FCI'). Plaintiff was appointed as a Weightment

Clerk in the Department of Food, Ministry of Food and Agriculture

on 22.6.1959. In 1966 the plaintiff was promoted as Quality

Inspector; this post was designated as Assistant Grade-1(D).

Plaintiff was entitled to promotion for post of Assistant Manager

(D) in the year 1972 but employees junior to him were promoted to

the said post. Plaintiff was not considered for malafide reasons.

Representations were disregarded. On 25.8.1980 plaintiff was

promoted to the post of Assistant Manager (D); he was put on

probation for a period of one year w.e.f 18.9.1980. This was in

terms of Regulation 15 of the Food Corporation of India Act (Staff)

Regulations 1971 (hereinafter referred to as 'the Regulations');

nothing adverse was communicated to the plaintiff in this

probation period. Plaintiff was entitled to be confirmed to the post

of Assistant Manager (D) w.e.f. 17.9.1980; he was, however, not

promoted. On 08.12.1981 the period of probation of the plaintiff

was extended for another six month that is up to 17.3.1982 which

was again extended up to 17.9.1982. The extension twice of the

probation period of the plaintiff was violative of Circular No.3-6/73-

EP dated 31.8.1973. On 26.5.1982 plaintiff was reverted back form

the post of Assistant Manager (D) to Assistant Grade-1(D). On

12.02.1985 plaintiff was informed that his promotion had been

withheld to the post of Assistant Manager (D) till further orders

due to his involvement in vigilance cases. These were the

averments in the first suit.

2. In the second suit it had been pleaded that vide order dated

15.12.1984 reduction of the rank of the plaintiff had been

withdrawn and the previous order vide which he had been

promoted to the post of Assistant Manager(D) had been

revalidated. Plaintiff had joined in compliance of the said order;

thus the plaintiff had became permanent Assistant Manager(D)

w.e.f. 15.12.1989; on 16.6.1987 period of probation of the plaintiff

to the post of Assistant Manager (D) was extended for one year

w.e.f.04.12.1986. In this second suit, the plaintiff has challenged

the order dated 16.6.1987 extending this period of probation and

consequential reliefs have also been prayed for.

3. Defendants had contested the suit. It was stated that the

plaintiff had rightly been reverted back; he was involved in

vigilance cases during the period of probation. This was the

primary contention of the defendants. Right to promotion was not

automatic.

4. On the pleadings of the parties, in the first suit, the following

issues were framed:

1. Whether the plaintiff, is entitled to the decree of declaration along with consequential relief as prayed for, with cost? OPP

2. Whether the suit of the plaintiff, is not maintainable as per the pre.Objections taken in W.S. at serial No.1 to 11? OPP

3. Relief.

The following issues were framed in the second suit:

1. Whether the plaintiff is entitled to the decree of declaration along with consequential reliefs, as prayed for? OPP

2. Whether the suit of the plaintiff is not maintainable in view of the preliminary objections? OPD

3. Relief.

5. Both the suits of the plaintiff on the basis of oral and

documentary evidence led by the parties had been decreed. The

court was of the view that the plaintiff was entitled to the relief

claimed by him. Court was also of the view that the probation

could have been extended only in terms of the guidelines; the

guidelines laid down in the Circular Ex.PW-1/X and Ex.PW-1/Y had

been violated ; the lapses on the part of the plaintiff could not be

proved.

6. In appeal, the judgment of the Trial Court was set aside.

Suits of the plaintiff stood dismissed. The Circulars of the

department were examined; the court was of the view that since

the plaintiff was admittedly on probation during the period when

he was not confirmed, he was not as a matter of right entitled to

confirmation and the fact that his conduct has been found unfit, the

department had rightly reverted him.

7. This is a second appeal. It had been admitted on 5.5.2010.

The following substantial question of law was formulated:

"Whether respondent has the power to extend the period of probation

retrospectively under the Staff Regulations 1971?

Additional substantial question of law formulated reads as

follows:

"Whether the findings in the impugned judgment dated 21.8.2003 are perverse, if so its effect?"

8. This Court is sitting in second appeal and can interfere with

findings of fact only if the same are perverse. What is perversity

has also been defined by various Courts. To amount to a perversity

such a finding must be based on no evidence or consideration of

evidence which did not exist or amount to a patent or a prima facie

illegality. The Staff Regulations of 1971 which were admittedly the

Rules governing the plaintiff during his period of probation have

been examined by the two fact finding Courts below. The first fact

finding Court had held that there has been a gross violation of the

said regulations; the period of probation of the plaintiff could not

have been extended time and again; these guidelines having been

violated plaintiff was rightfully entitled to decree as prayed for by

him. The second fact finding Court had, however, taken a different

view; it had re-examined the guidelines and drawn a conclusion

that the Staff Regulation 1971 had not been violated.

9. Before dealing with this contention it would be relevant to

state that during the course of arguments learned counsel for the

appellant has vehemently urged that the plaintiff has been

discriminated qua other similarly placed persons namely one

Sadhu Singh and C.B. Bhatnagar and both Sadhu Singh and C.B.

Bhatnagar were also involved in vigilance cases during their

probation period, yet they have been granted relief and both Sadhu

Singh and C.B. Bhatnagar had been held eligible for promotion to

the post of Manager (D). On this submission which has been raised

by the learned counsel for the appellant on 11.1.2011 the learned

counsel for the respondent had been directed to take instructions

qua this discriminatory attitude of the respondent department.

The department has reverted back and placed on record a status

report dated 28.1.2011. The facts as emerged are that Sadhu

Singh and C. B. Bhatnagar were also identically placed along with

J.K.Bhatnagar. The only variation as pointed out by the

department is that Sadhu Singh and C.B. Bhatnagar although

involved in vigilance enquiries yet this was after the completion of

one year probation period. In the case of appellant J.K.Bhatnagar,

he was involved in a vigilance enquiry during his first year of the

probation period; this is the only difference pointed out in the case

of Sadhu Singh and C.B.Bhatnagar and the present appellant.

Admittedly both Sadhu Singh and C.B.Bhatnagar have since been

promoted to the post of Manager (D) w.e.f. 19.8.1980 and were

granted all consequential benefits. It is pointed out by learned

counsel for the respondent that these benefits had in fact been

granted to Sadhu Singh and C.B.Bhatnagar under the orders of the

High Court of Punjab and Haryana.

10. Perusal of the record shows that on all other counts the cases

of the three persons i.e. Sadhu Singh, C.B.Bhatnagar and the

present appellant are identical. All three had become eligible for

promotion to the post of Manager(D). On 8.12.1981, the probation

period of all three was extended and lastly up to 17.9.1982.

Thereafter reversion took place from the post of Assistant Manager

(D) to Assistant Grade-1(D); reason was involvement in vigilance

cases. As per the respondent Department in the case of Sadhu

Singh and C.B.Bhatngar, their involvement in the vigilance cases

was after the first year of probation. In the case of J.K.Bhatnagar

his involvement was in the first year of probation. This was the

only difference pointed out in the case of these three persons and

being the reason for discrimination qua the appellant. In the

written statement, it has been stated that a vigilance enquiry had

been initiated against the appellant which had been intimated to

him on 22.9.1981 which date is after first year of probation which

had stood expired on 17.9.1981. Thus this contention of the

learned counsel for the respondent that the case of the appellant is

distinct from the case of C.B.Bhatnagar and Sadhu Singh

completely falls flat. It holds no water. In view of this factual

scenario and as is evident from the status report dated 28.1.2001

placed on the record of this Court it is clear that the department is

still nursing a bias against the appellant. This is a glaring example

of a travesty of justice and has hit the Court in the eye. The

department had chosen to exonerate Sadhu Singh and

C.B.Bhatnagar giving them all consequential benefits after

promotion whereas J.K Bhatnagar has been singled out for no

reason whatsoever. The reason of the department that he was

involved in vigilance enquiry in the first year of his probation is

even otherwise of no relevance keeping in view the admitted

position that the probation of all persons was extended after the

first year and thereafter against up to 7.9.1982.Thus when all the

three aspirants were on probation, whether the vigilance enquiry

was initiated in the first year or in the later part of the year is of no

relevance. This was no reason whatsoever to discriminate against

the present appellant. The bias and prejudice of the department

(which had been pleaded in the plaint) against the appellant is writ

large. This amounts to a perversity and interference is called for

on this ground alone.

11. In (2009) 10 SCC 206 Aruvelu & Anr. Vs. State while

detailing the definition of 'perverse' the Supreme Court had held

that perverse is that was is not right, it has turned the wrong way;

it had distorted from right; deviating from what is right, proper and

correct etc; all that would amount to a perversity.

12. In (2002) 9 SCC 455 Surya Kant Kadam Vs. State of

Karnataka where the appellant had made out a case for

consideration being the discriminatory treatment meted out to him,

the relief sought by the appellant had been granted in his favour.

In that case the date on which the appellant had been given

compassionate appointment he had the necessary qualification for

being appointed as a Sub Inspector of Excise; respondent no.3 to 4

were appointed to the post of Sub Inspector Excise whereas the

case of the appellant remained unconsidered; Apex Court had held

that such a hostile discrimination clearly calls for an interference.

13. The next question which arises is about the status of the

employee and this shall also be adverted to. Whether or not the

appellant was a probationer on the date of his termination within

the meaning of Regulation 15 of the Staff Regulations 1971? If he

was a probationer and his services were terminated on the ground

of non-suitability, a 30 day notice period or paying salary in lieu

thereof would suffice. On the other hand, if the petitioner was a

regular employee, he could not be removed except for a cause

established in accordance with the procedure.

14. Regulation 15 requires that every person appointed to any

post in the FCI has to undergo a period of one year probation from

the date of his appointment. Under Regulation 15(2) the appointing

authority may in its discretion extend that period of probation by a

further period. The Circulars dated 31.8.1973 (Ex.PW-1/W) and

16.6.1977 (Ex.PW-1/X) are also relevant. Under Ex.PW-1/W the

probation of an employee may be extended and would be

confirmed after completion of a maximum period of two years. In

terms of Ex.PW-1/X if no formal order has been passed either

confirming or extending the probation after it has been extended

the person concerned would be deemed to be automatically

confirmed after a maximum period of two years.

15. In this case, the petitioner had been appointed as an

Assistant Manager (D) on probation for a period of one year w.e.f.

18.9.1980. First year of his probation period ended on 17.9.1981.

Nothing adverse was communicated to him in this period. Adverse

report i.e. initiation of a vigilance enquiry against the petitioner

was (as per the written statement) communicated to him only on

22.9.1981 which was after the first year of probation. Admittedly

in the first year of probation nothing adverse was informed to the

petitioner. There being no formal extension of probation in the

first year; in terms of Regulation 15(2), probation of the petitioner

stood satisfactorily completed. His probation for the second time

was extended on 8.12.1981. This was admittedly after the

petitioner has successfully completed his first year period of

probation. His second extension on 8.12.1981 was thus against

the Regulations. On this count also the petitioner is liable to

succeed.

16. The Staff Regulations 1971 had been considered by the

Punjab and Haryana High court in 1984 3 SLR 813 Praveen

Chander Vs. FCI; it was held that they have a binding force. In

(1982) III LLJ 58 AP Bulusu Sree Ramamurthy Vs. FCI Regulation

15 of the said Regulations were under scrutiny. In this case where

the petitioner's statutory period of probation of one year had been

completed, it was held that there being no order formally

extending his probation, it could not be said that the petitioner

continued to be on probation; it was held that in the absence of

any extension of the petitioner's probation period beyond one year;

the probation having been completed satisfactorily; such an

appointee having been terminated was against the Regulations and

the procedures of the FCI.

17. Justice demands that the plaintiff should be considered

confirmed to the post of Assistant Manager (D) at the end of his

first year period of probation w.e.f. on 17.9.1980. The order dated

26.5.1982 reducing rank of the plaintiff from Assistant Manager

(D) to Assistant Grade-1(D) as a necessary corollary is thus illegal

and set aside. Plaintiff will be deemed to be working in the post of

Assistant Manager (D) w.e.f. 18.9.1980 as a probationer and is

confirmed to this post w.e.f. 17.9.1981. The order dated 16.6.1987

whereby the probation of the plaintiff to the post of Assistant

Manager(D) had been extended for a period of one year w.e.f.

04.12.1986 is also declared null and void. He be treated as

permanent employee to the post of Assistant Manager (D) w.e.f.

17.9.1980. All consequential reliefs flowing thereto are also

granted to the appellant.

18. Substantial question of law are answered accordingly. Both

the appeals are allowed; pending applications are disposed of.

INDERMEET KAUR, J.

FEBRAURY 03, 2011 nandan