Rajeev Kumar Mishra vs Food Corporation Of India & Ors.
2011 Latest Caselaw 1441 Del

*           HIGH COURT OF DELHI : NEW DELHI

+                       W.P.(C) No.9681/2009

%                                  Judgment decided on: 11.03.2011

RAJEEV KUMAR MISHRA                         ......Petitioner
               Through: Mr Rakesh Kumar Khanna, Sr. Adv.
                        with Mr Piyush Sharma, Ms Seema
                        Rao and Ms Neha Garg, Advocates.


                        Versus


FOOD CORPORATION OF INDIA & ORS             .....Respondents
              Through: Mr Kamal Sawhney and
                       Mr Satyakam, Advocates

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

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

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

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

MANMOHAN SINGH, J.

1. The petitioner has filed the present writ petition under Article

226 of the Constitution of India thereby praying for the following reliefs:

"a) Issue a writ or direction thereby quashing the integrated seniority list dated 29.01.2008 of Assistant Manager (General) and Assistant Manager (Depot).

b) Issue an appropriate writ or direction thereby directing the respondents 1 & 2 to redraft the integrated seniority list showing the petitioner at Sl. No.219 in accordance with the Regulation 16(1) and 16(8).

c) Issue an appropriate writ or direction thereby

quashing the panel of promotion as drawn on in the DPC dated 09.06.2009 of respondent No.3 to 11 as Assistant General Manager (General) as they have been considered wrongly for the said post.

d) Issue an appropriate writ or direction thereby directing the repsondent No.1 & 2 to consider the petitioner for the post of Assistant General Manager (General) and appoint him, if found suitable, from 09.06.09 with all consequential benefits.

e) Award the cost of the petition to the petitioner.

f) And/or pass any other further order/orders which are required in the facts and circumstances of the case."

2. In December 1998, respondent No.1 issued an advertisement

about the requirement of 100 Management Trainees required for different

cadres. The petitioner applied for the post of Assistant Manager

(General), written examination was held in February, 1999 and group

discussion and interview was held in July/August 2000. He qualified the

written exam, group discussion and interview. The petitioner secured 6th

Rank in the General Cadre. After completing the required training

successfully and pursuant to the call letter issued to him, he joined as an

Assistant Manager (Genl).

3. The recruitment/selection of petitioner along with respondents

3 to 11 for the post of Manager (General) was made on All India basis

against All India vacancies through same process. In the order of merit,

the petitioner was senior to respondents 3 to 11.

4. The panel of Management Trainees selected through the said

selection process was finalised on 13.09.2000 by the Selection

Committee of respondent corporation on All India basis (Recruitment

Unit Category I) and not zone wise. The recruitment unit for Category II

posts is Zone wise as per the Regulation 4 of FCI (Staff) Regulation.

The following are the relevant terms and conditions mentioned in the

advertisment as published in the Employment News dated 05.12.1998 to

11.12.1998:-

"14. On qualifying the written test, group discussion and an interview, eligible candidates will be appointed as Management Trainees based on the merit obtained by them.

19. After completion of training, all appointee shall be subject to Rules and Regulations of the FCI and also governed by the Administrative instructions issued from time to time.

23. The candidates may opt for any one of the five zones as indicated in the application format for their absorption after completition of their training.

25. On completion of training, the trainees will be allotted to different zones as per their option subject to availability of vacancy. Such absorbed trainees will maintain their seniority in the respective zones in the cadre in which they opt."

5. As per one of terms of Clause 23 of the advertisement, the

petitioner opted for East Zone, however, the petitioner was allotted

North-East Zone by the respondent management. Another grievance of

the petitioner was that the request made by Sh. Yoginder Singh and Anuj

Tyagi in the year 2002 for change of their zone were considered and their

Zones were changed from West to North and North East to West

respectively. Their seniority was considered for the year of 2000 and

they were placed above the petitioner and the promotees.

6. The petitioner states that the post of Assistant Manager was

re-designated as Manager and the next promotional post from the post of

Manager (General) is the post of Assistant General Manager (General).

On 29.01.2008, the respondents 1 & 2 issued an integrated seniority list

of Manager (General) and Manager (Depot) to fill up the post of AGM

(Genl) through promotion and in the said list they had shown respondent

Nos. 3 to 11 much senior to the petitioner. The said list was provided by

the respondents.

After the list was issued, the petitioner and the similarly

situated persons filed objections to the said seniority list. In his

representation, the petitioner pointed out that in the case of direct recruit,

Regulation 16 (1) and Regulation 16 (8) (i) of Food Corporation of India

(staff) Regulations 1971 are applicable, but the same was rejected by the

respondents by their letter dated 03.12.2008.

7. The petitioner again made various detailed representations to

the respondents but the respondents held the Departmental Promotional

Committee and approved the names of 63 persons upto Serial No. 306

of integrated seniority list including the names of respondent Nos. 3

to 11.

8. The contention of the petitioner is that as the batch of year

2000 was recruited on All India basis, the inter-se seniority of all Direct

Recruited Managers (Genl) based on ranking order on All India basis

must be maintained in terms of Regulation 16(8)(i) of FCI (Staff)

Regulations, 1971. This ranking order would be valid for all promotions

related to the batch of 2000 which may take place during entire service

period of direct recruits.

9. The petitioner says that the attitude of respondents 1 & 2 was

discriminative towards the officers, as in the advertisement issued by the

respondents, it was mentioned that the selection was to be done on All

India level but then they bifurcated the direct recruits on the post of

Assistant Managers on the basis of Zonal Headquarters and granted

seniority also on the basis of Zones.

The claim of the petitioner is that the respondents should

revise the integrated seniority list and consider his name for the post of

AGM (Genl).

10. It is argued by the petitioner that while preparing All India

Integrated Seniority List, only seniority of promotees based on their date

of joining was taken into account and ranking order of Direct Recruits

was ignored which is against the law. The petitioner's promotion was

tagged with promotees of North East Zone who joined late in their

promoted capacity. It is also submitted that the mode of appointment/

selection of promotees and direct recruits is distinct and different. In the

year 2000, five panels of promotees were prepared by resepctive ZPC

(Zonal Promotion Committee) of each Zone while panel of direct recruits

was prepared on All India basis at Headquarters level based on the

ranking order.

Thus, All India seniority list prepared by the respondents was

in violation of Regulation 16(8)(i). Therefore, the said list needs to be

quashed and further the respondents 3 to 11, who secured less marks

in the merit list than the petitioner, cannot be made senior to the

petitioner.

11. The respondents 1 & 2, in their counter affidavit, submitted

that integration of Managers was done at the Headquarter level after

obtaining the seniority list from respective zones as the same is

maintained zone wise and in the FCI, concerned ED (zones) are the

appointing authority of Managers therefore all the service particulars

including seniority, transfer and posting of managers are confined within

the zone.

12. As per the respondents, for the purpose of drawing a

promotion panel from the grade of Manager to AGM, all the seniority

lists of Manager (General) and Manager (Depot) are integrated at the

Headquarter level and a single All India Integrated Seniority is prepared

which consists of all the Managers whether directly recruited or promoted

from the lower post.

13. The respondents have submitted that after the completion of

recruitment process management trainees are assigned and appointed as

managers in different zones and their seniority is fixed at zonal level on

their joining the post. Their seniority within the zone is strictly fixed on

the basis of merit, in accordance with Regulation 16(1) of FCI (Staff)

Regulations, 1971. There are five zones in total, and the seniority list of

all the five zones is integrated at Headquarter level for the preparation of

All India integrated seniority list and this is done on the basis of their date

of joining the post, without changing the inter-se seniority of individual

cadre.

14. It is also submitted by the respondents that the zones have

been alloted at the stage of selection as management traninees through the

offer of appointment for the post of management trainees to the selected

candidates with the request to send their letter of acceptance. On

acceptance of such offers, which clearly indicated the assigned zone, they

joined as management trainees. Further, as per Clause 23 of the

advertisement dated 05-11 December, 1998, the candidates had to take an

option for allotment to any of the five zones. This itself implied that the

posts of management trainees were to be filled zone wise and not on All

India basis. It is the prerogative of the respondent corporation to decide

the allotment of number of posts for each zone, as deemed appropriate as

per operational necessities.

15. The respondents have pointed out that the petitioner was

recruited under the regulation which is regulated by the powers of the FCI

(Staff) Regulations, 1971 and as per section 4 of the said regulation, zone

is the recruitment unit for category-II officers and not category-I and since

the petitioner was recruited and appointed in the North East zone, his

seniority will be maintained in the North East zone.

16. In reply to the submission of the respondents, it is contended

by the petitioner that there is no Regulation in FCI (Staff) Regulations,

1971 governing method of Integration and the above-mentioned method is

without mandate of any Regulations of FCI (Staff), i.e., nowhere in the

FCI (Staff) Reguations, the above mentioned principle has been

mentioned.

17. The petitioner submits that the method of preparation of All

India Integrated Seniority list by the respondents is contrary to law and

against the decisions of the Supreme Court. It is stated that Sh. Yogender

Singh (Genl.) and Sh. Anuj Tyagi (Depot), who were ranked lower in the

merit list, became senior to the petitioner after change of Zone in the year

2002. Similarly, Sh. Kaushik Nayak, who topped the list of Manager

(Depot), opted East Zone and got it, whereas Sh. Falguni Bangerjee who

got 11th rank could not get the opted East Zone, as it was exhausted. Sh.

Banerjee, however, was allocated North Zone by chance or otherwise and

is placed at Sl. No.382 in the Integrated Seniority list whereas Sh. Nayak

is placed at Sl. No.790. Sh. Banerjee, even after getting lower rank,

became senior to the topper of the batch.

18. As far as the post of manager in Category II is concerned, it is

not in dispute between the parties, that their seniority is maintained at the

zonal level. Now, it is to be considered as to whether preparation of the

list of seniority in the year 2008 of Direct Recruits of 2000 batch by the

respondents, when Integrated Seniority List of Manager (Genl. And

Depot) is prepared after 8 years on Zonal basis and not on All India basis,

is arbitrary and with malafide intention on the part of the respondents, and

is the demur of promotion to the petitioner in violation of Articles 14 and

16 of the Constitution.

19. Here, it is necessary to refer the relevant rules of Regulation

16 of the Regulations governing the inter se seniority among the direct

recruits and seniority among direct recruit and promotees. The relevant

portion of Regulation 16 is as under:

"16. Seniority:

(1) Direct recruits:

The relative seniority of all direct recruits will be determined by the order of merit in which they are selected for such appointment by the selecting authority; persons appointed as a result of an earlier selection being senior to those appointed as a result of subsequent selection.

             (3)      Relative seniority of direct recruits and
             promotes:

             (i)      The relative seniority of direct recruits and

promotes will be determined according to the rotation of the vacancies as between direct recruits and promotes as based on the quotas reserved for direct recruitment and promotion respectively.

*Amended vide notification No.13-5/84-BC dated 23.11.1984 (90th Amendment). Effective from 3.9.1984 (4-2/77-EP)

**Substituted vide notification No.7-1/74-EP dated 11.12.1975. Effective from 1.5.1974. (27th Amendment).

(ii) (a) Vacancies arising in a calendar year shall be filled up during the same calendar year, as far as possible.

(b) Notwithstanding anything stated above, if for any reasons whatsoever, any vacancy or vacancies arising during a calendar year reserved for promotion or direct recruitment, as the case may be, remain unfilled by the prescribed mode such vacancy or vacancies shall be carried over to the subsequent calendar year. The inter se seniority of such persons as are promoted or recruited against such vacancy or vacancies shall be fixed as if such earlier year's vacancies for promotion or direct recruitment, as the case may be, had arisen during such subsequent calendar year and the persons selected against the additional vacancies shall be placed en-block below the last promote or the direct recruit, as the case

may be, in the seniority list based on the rotation of vacancies for that year.

(7) Relative seniority of an employee transferred from one Unit to another:

An employee transferred from one unit of seniority to another will be ranked as the junior most in the particular category on the date he joins the new Unit. If, however, such transfer is in the opinion of the competent authority in the interest of the Corporation, seniority of the transferee will be fixed in the new Unit after giving full weightage to the service counting for seniority in the particular category in the old Unit.

(8) Relative Seniority of Management Trainees and Promotees.

(i) The seniority of Management Trainees absorbed as Asstt. Manager in the services of FCI will be determined by the order of merit in which they are finally selected for absorption after successful completion of their training period.

20. It is not denied by the respondents that in the present case the

selection process was not on All India basis and the zone wise vacancy

was advertised in the newspaper before commencement of selection

processs.

21. In case of transfer of an employee from one unit of seniority to

another, Regulation 16(7) of FCI (Staff) Regulations, 1971 stipulates that

"if, however, such transfer is in the opinion of the competent authority in

the interest of the corporation, seniority of the transferee will be fixed in

the new unit after giving full weightage to the service counting for

seniority in the particular category in the old unit".

22. It is settled law that the merit list must be sacrosant for the

purpose of seniority of Direct Recruits. This position has already been

upheld in Jatinder Kumar vs. State of Punjab; AIR 1984 SC 1850 and

Prem Prakash vs. UOI; Air 1984 SC 1831 wherein it has been held that

when appointment is made from a panel, panel seniority shall not be

disturbed. Further in Appeal (Civil) No.4760/2006; Suresh Chandra

Jha vs. State of Bihar & Ors; (2006) (17) SCALE 578, the Supreme

Court has reiterated its opinion as held in Chairmain, Puri Gramya

Bank and Anr vs. Ananda Chandra Das & Ors; 1994 (6) SCC 301.

23. The petitioner was undisputedly selected under Direct

Recruits batch so as respondents 3 to 11 on All India basis. The

processes of selection of promotees and Direct Recruits are separate and

distinct. Admittedly, after selection of the batch of 2000, zones were

subsequently allotted to them, but still the merit list was prepared on

zonal basis even though selection was not zone specific and the

advertisement was isued at All India basis without any mentioning of

zone wise vacancy, therefore, the option given by the candidates at the

time of his application had no binding effect on the respondents.

24. The petitioner was alloted North East Zone by the

management and Zonal Promotion Committee of North East Zone

conducted promotion from Cat. III to Cat. II in the last and his seniority

with promotees, who were selected/appointed on zonal basis of North

East Zone, being linked with the seniority of Direct Recruits, is not as per

regulation.

25. As per regualtion 16(8)(i), the inter-se seniority of direct

recruits would have to be as per order of merit. There is no dispute that

the respondents 3 to 11 secured less marks and were ranked lower in the

merit list than the petitioner. Since the selection process in the present

case was held on All india basis against All India vacancies, the merit list

prepared on zonal basis would have no consequence and this court is of

the considered opinion that it is necessary that the ranking given in the list

of candidates selected in the order of merit by the selection board cannot

be overlooked and respondents 3 to 11 who secured less marks cannot be

given seniority over the petitioner, otherwise, the purpose of the seniority

list on merit from All India Selection process, being origial ranking,

would be defeated. The petitioner admittedly was shown senior to

respondents 3 to 11 during the entire process but he was made junior to

the respondents 3 to 11 as per Integrated Seniority List. It affected his

service condition and promotion and denial of promotion in this fashion is

in violation of Articles 14 and 16 of the Constitution.

26. It is pertinent to mention here that the management trainees

were recruited on All India basis only with regard to the batch of the

petitioner of 2000. It appears from the record that all subsequent

advertisements for recruitment of management trainees (manager) were

published by the respondents on zonal basis wherein zone-wise break up

of posts was mentioned and the application was also sought by the

respondents for a particular zone only. Copies of some of the

advertisements issued by the respondents in August, 2003 have already

been placed on record by the petitioner. After perusal of the aforesaid

advertisements, it is clear that the recruitment is always made for

Category II and Category III at zonal level in terms of Regulation 4 of

FCI (Staff) Regulations, 1971 but as far as the selection of management

trainees of batch of petitioner of 2000 is concerned, who were recruited

on All India basis, was the exception made by the respondents.

27. The petitioner has also relied upon the judgment of the Single

Judge of Andhra Pradesh High Court in Writ Petition No.29130/1997,

titled as M. Venkenta Narayan and Others vs. Zonal Manager (Sough),

FCI. In the said judgment, it was held that Regulation 16(1) requires

the seniority of direct recruit to be determined by the order of merit

in which the candidates are selected for appointment by selection

authority.

28. Under these circumstances, the directions are issued in the

present writ petition to the respondents 1 and 2 to consider the case of the

petitioner for the post of Asstt. General Manager and appoint him, if

found suitable, under the compliance of Regulation 16(1) and 16(8)(i)

discussed above. The petitioner is permitted to submit a detailed

representation to the respondent No.1 within the period of four weeks

from today and the representation shall be disposed of by the respondents

1 and 2 within four weeks thereafter and re-draft the Integrated Seniority

list accordingly.

29. The writ-petition is accordingly disposed of with costs.

MANMOHAN SINGH, J.

March 11, 2011 jk/dp