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PETITIONER: FOOD CORPORATION OF INDIA AND ORS.

       Vs.

RESPONDENT: H.N. BHARTI AND ORS.

DATE OF JUDGMENT25/03/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1994 AIR  605            1992 SCR  (2) 328  1992 SCC  Supl.  (2) 149 JT 1992 (2)   445  1992 SCALE  (1)756

ACT:      Civil Services :      Food Corporation Act, 1964 :      Section 45-Regulations framed under the Act-Regulations 7, 10 and 15-Circular issued on 15.5.75-Inter-se  seniority- Direct   recruits  and  transferees-Fixation   of-Directions issued.

HEADNOTE:      On  the  abolition  of the Food  Department  under  the Central  Government, the employees therein were  transferred to the Food Corporation of India (FCI).  In exercise of  its power  conferred by Section 45 of the food Corporation  Act, 1964,  FCI framed Regulations in regard to appointments  and promotions.  Later, pursuant to Regulation 10, FCI issued  a Circular  on 15.5.75 to the effect that both  the  employees transferred   from  the  erstwhile  Food  Department   (Food Transferees) and the direct recruits will be promoted on ad- hoc  basis.  It also stated that with the final transfer  of Food  Transferees  to  FCI with effect  from  1.3.69,  their promotions had to be regularised.  It also provided that the transferees  as well as direct recruits would be  deemed  to have  completed  the period of probation  satisfactorily  if they have completed one year of service in that grade.  This was in accordance with Regulations 7 and 15 which stipulated a period of one year probation for the regular appointees in FCI-both transferees and direct recruits.      One  of the Respondents who was given ad-hoc  promotion as Assistant Manager was reverted on the ground that he  was not approved for regular promotion.  Being aggrieved by  the reversion  order, he approached the High Court by way  of  a Writ Petition.  The High Court directed the FCI to  consider his case in the light of the circular dated 15.5.1975.      Some  other  Writ Petition were also filed  before  the High Court by the employees challenging the seniority  list, and the High Court quashed                                                        329 the  seniority  list and directed the FCI  to  consider  the claims of the Writ Petitioners in the light of the  circular dated 15.5.1975.      The  union  of  India preferred  appeals,  against  the

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orders  of the High Court.  A Writ Petition has  been  filed directly  before  this  Court  in  regard  to  fixation   of seniority.      On  behalf of FCI, it was contended that there  was  no need to quash the entire seniority list, as has been done by the High Court in the subsequent cases.      Disposing of the matters, this Court,      HELD  :  1.  It will be seen from  the  circular  dated 15.5.75  that  the  procedure for  regularisation  of  ’food transferees’  on their absorption in the FCI was  laid  down and  it was provided that the transferees as well as  direct recruits  described as ’ad-hoc promotees’ may be  deemed  to have  completed  the probationary period  satisfactorily  if they have completed one year of service in that grade  after following  the  procedure  laid down in  Regulation  15  and allied orders. [333C,D]      2.  Paragraph  3 of the circular envisages  passing  of formal  order  of  regular  appointments  (as  required   by Regulation 7) after following the procedure laid down in the circular.   These orders of regular appointment will  be  on the  post  held  by the ’food transferees’ on  the  date  of absorption  and  if one has since been  promoted,   This  in brief  is  the import of the circular read in the  light  of Regulations  7, 10 and 15.  The circular has taken  care  of both  the  categories, namely, direct recruits  as  well  as ’food  transferees’.  It is, therefore, essential  that  the question  of seniority of both the cadres be  determined  on the basis of the principles laid down in the said  circular. There  was no need to strike down the entire seniority  list but  it would suffice if the FCI is directed to  review  and determine  the seniority of the ’food transferees’, as  well as  direct  recruits  who were  granted  ad-hoc  promotions. [336D-F]      3.  Food Corporation of India is directed to  have  the inter  se seniority of the direct recruits/food  transferees determined   in  the  light  of  the  circular   and   grant appropriate placements to the incumbents on the basis of the seniority  so  determined in the  existing  seniority  list. Such placements                                                        330 may require a reshuffle of the seniority list which the  FCI would be free to do.  Having regard to passage of time it is directed  that  this  may be done within  a  period  of  six months. [336G,H;337A,B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 338  of 1987.      From  the  Judgment  and Order dated  5.3.1986  of  the Punjab and Haryana High Court in L.P.A. No. 791 of 1983.                               WITH      Civil  Appeal Nos. 530-531 of 1987 with  Writ  Petition No. 1218/1989.      K.G.   Bhagat,   Y.  Prabhakar  Rao   and   Ms.   Madhu Moolchandani for the Appellants.      A.B.   Rohtagi,   S.K.  Dhingra,   K.B.   Rohtagi,   R. Karanjawala,   Ms.M.  Karanjawala  and  K.  Swami  for   the Respondents.      Sajai Singh and Ms. Smitha Singh for the Intervenors.      The judgment of the Court was delivered by      AHMADI,  J.  The  facts giving rise  to  these  appeals shortly are as under :      The  respondent, H.N. Bharti, was working in  the  Food

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Department  of  the Central Government when it  came  to  be abolished  w.e.f.  1st  January,  1966.   On  its  abolition employees   of  the  Food  Department   were   provisionally transferred  to the Food Corporation of India (F.C.I.)  with effect from the same date.  H.N. Bharti was also transferred and  was  posted  as Technical Assistant, Grade  I,  in  the F.C.I.  Later w.e.f. 19th April, 1972 he was promoted on  an ad hoc basis as Assistant Manager (Technical).  Sometime  in September, 1979 the Government of India took a decision that those  provisionally  transferred should  stand  permanently transferred  to the F.C.I. w.e.f. 1st March, 1969.  In  this manner,  employees of the erstwhile Food Department came  to be absorbed as employees of F.C.I.  It appears that on  15th May,  1975 a circular was issued by the F.C.I. in regard  to promotion of the transferred employees and others to  higher posts on regular basis.  Before we deal with this  circular, it would be advantageous to refer                                                        331 to the relevant regulations framed by the F.C.I. in exercise of  powers conferred by Section 4 of the  Food  Corporations Act,  1964 (Act 37 of 1964).  These regulations were  framed with  the previous sanction of the Central Government.   Our attention  was invited to Regulations 7, 10 and 15  thereof. Regulation  7  deals  with  the  mode  of  appointment.   It provides that regular appointments in the service of the FCI can only be to the posts a period of not less than one  year and shall be made :           (a) in accordance with any of the modes  specified               against each in column (4) thereof; or           (b) by transfer from the corresponding  categories          in column (9) of the said Table of employees of the          Central  Government in the Directorate  General  of          Food/Pay & Accounts Offices; or  (c)  by  permanent  absorption  of  deputationists  in  the service of the Corporations.      If  we  turn  to Appendix 1 we find that  the  post  of Assistant-Grade  I  belongs to category III and  is  a  non- selection  post  which  can be filled hundred  per  cent  by promotion;  failing that by direct recruitment.  So  far  as post  of  Assistant  Manager is  concerned,  it  belongs  to category II and is a selection post, which can be filled  in the   ration   of  25:75   by   direct   recruits/promotees. Regulation  10  lays down the procedure  for  promotion  and provides  that the promotion shall be made on the  basis  of seniority  subject  to fitness in respect  of  non-selection posts and on the basis of merit, seniority being  considered only  when  the  merit  of  the  contending  candidates   is approximately the same, in the case of selection posts.   It further provides that all promotions shall be considered  by a Promotion Board constituted for that purpose.  There is  a note appended to this rule which may be reproduced :          "Note : purely as an interim measure, pending their          permanent   absorption  in  the  service   of   the          Corporation,   the   employees   of   the   Central          Government  in  the  Directorate  General  of  Food          posted to work under the administrative control  of          the  Food Corporation of India may be given ad  hoc          promotions,  in  accordance  with  the   principles          mutually agreed                                                        332          upon  between  the  corporation  and  the   Central          Government."      It  is,  therefore, clear from this  note  appended  to Regulation 10 that pending absorption in the service of  the FCI the employees of the Directorate General of Food  posted

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to work under the administrative control of the F.C.I.  were to  be  given  ’ad-hoc’ promotions in  accordance  with  the principles  determined  by the Corporation and  the  Central Government.  These principles are enumerated in the circular referred to earlier.  That brings us to Regulation 15, which inter  alia, provides that every person regularly  appointed to  any post in Corporation under sub-clause (a)  of  clause (1) of Regulation 7 shall be required to be on probation for a  period  of one year from the date  of  appointment.   The appointing authority may in its discretion extend the period of probation by a further period not exceeding one year.  In other  words,  the maximum period of probation  can  be  two years.      The FCI issued a circular on 15th May, 1975 pursuant to the note below Regulation 10 extracted earlier.  Taking note of  the  fact  that  under  the  said  note  the   employees transferred from the Directorate General of Food,  described as  ’Food transferees’ could be promoted to higher posts  in the  Corporation on an ad hoc basis pending their  permanent absorption in the service of the F.C.I., it stated that  all promotions to the various grades of the FCI, irrespective of whether  one  was a ’food transferee’ or a  direct  recruit, need regularisation.  It appears from the circular that both ’food transferees’ and direct recruits were being termed  as ’ad  hoc’ when promoted to the next higher post.   With  the final  transfer of the ’food transferees’ to the FCI  w.e.f. 1.3.69 promotions made on ad hoc basis pursuant to the  note appended  to  Regulation  10 had  to  be  regularised.   The circular, therefore, states that regularisation shall be  on the  basis  of  the principle enumerated  therein.   It  was decided keeping in view Regulation 7 and Regulation 15  that regular appointees in the service of the FCI whether  direct recruits  or  promotees shall be placed on probation  for  a period    of   one   year   from   the   date    of    their appointment/promotion.  It was, therefore, posited that  all promotions  whether by direct recruitment or promotion  will henceforth be subject to provision of Regulation 15, that is to  say, every such person shall be placed on  probation  as provided  by  that Regulation and  the  instructions  issued thereunder.   In  regard to ’food  transferees’  and  direct recruits promoted to higher grades on ad hoc basis                                                        333 it was decided that they may be deemed to have completed the probationary   period satisfactorily, if they completed  one year  of service in the grade after following the  procedure laid  down  in Regulation 15 and suitable orders  issued  in that  behalf so that if a person has completed one  year  of service  in the promoted grade his case was required  to  be reviewed  with a view to determining whether or not  he  has satisfactorily  completed  the probationary  period  of  one year.  In  regard to future promotions it was  decided  that regular procedure as laid down by the Regulations should  be followed.    Paragraph  3  of  the  circular  directed   the concerned  authorities  to  issue suitable  orders  for  the absorption  of  ’food transferees’ into the FCI  w.e.f.  1st March,  1969.  It will be seen from this circular  that  the procedure for regularisation of ’food transferees’ on  their absorption in the FCI was laid down and it was provided that the transferees as well as direct recruits described as  ’ad hoc  promotees’   may  be  deemed  to  have  completed   the probationary  period satisfactorily if they  have  completed one  year  of  service in that  grade  after  following  the procedure laid down in Regulation 15 and allied orders.   It appears  that  the  respondent, H.N. Bharti,  who  had  been granted  ad hoc promotion to the post of  assistant  Manager

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was  reverted  by  an order passed  by  the  Deputy  Manager (Administration) on the ground that he was not approved  for regular  promotion.   He challenged his reversion  order  by filing  a  Writ Petition No. 3624/76 in the  High  Court  of Punjab & Haryana.  That writ petition came to be allowed  by quashing the order of reversion and the High Court  directed the  FCI to consider his case in the light of  the  circular dated  15th May, 1975.  It is against this judgment  of  the High Court that Civil Appeal No. 338/87 has been preferred.      One P.N. Verma filed a Writ Petition No. 3580/77 in the High  Court  for  quashing  the seniority  list  and  for  a declaration  that the promotion of respondents Nos. 4 to  41 to  the post of Assistant Manager was null and  void.   That writ petition came to be disposed of on 14th October,  1983. Without  going  into  the merits of the  case,  the  learned Single Judge in the High Court disposed of the matter on the basis  of  the  decision in H.N. Bharti’s  case  as  it  was contended  before him that the case was squarely covered  by the  ratio of that decision since the claim for fixation  of seniority  has  to  be decided in the light  of  the  policy decision in Annexure P-3 i.e., the circular dated 15th  May, 1975.   In view of that concession, the seniority  list  was set  aside  with a direction similar to the one  granted  in H.N. Bharti’s                                                        334 case. This decision has given rise to C.A. No.531/87.   Soon thereafter, Dharam Singh and M.L. Batra filed the Civil Writ Petition No. 4482/78 for finalisation of the seniority  list and incidental reliefs.  This writ petition was disposed  of by an order dated 24th October, 1983 relying on the decision in P.N. Verma’s case.  The seniority list was quashed and it was directed that the claim of the incumbents be  considered in  the light of the circular of 15th May, 1975.   This  was once again on concession by counsel.  That has given rise to C.A. No. 530/87.      One  Upendra  Kumar has filed a writ petition  (C)  No. 1218/89  for  fixation of his seniority and  for  incidental reliefs.  That arose because by a letter dated 27th October, 1989,   the   Deputy   Manager,  informed   him   that   his representation  was examined and it was decided that as  the matter  was subjudice in this Court it was not  possible  to accede  to his request regarding fixation of seniority  till the  matter was finally disposed of by this Court.   He  was informed  that he was at liberty to approach to  this  Court for  any remedy he may deem fit.  It was on account of  this letter  that he filed this petition under Article 32 of  the Constitution.      We  may  clarify that H.N. Bharti and P.N.  Verma  were transferred  employees from the Directorate General of  Food whereas the other employees concerned in this batch of cases were  direct recruits in the cadre of  Technical  Assistant- Grade  I.   The intervenors may belong to  either  category. Mr. Bhagat, the learned counsel for the FCI, contended  that what  the High Court had determined in case of  H.N.  bharti was  that  the FCI considered his case in the light  of  the circular  dated 15th May, 1975.  He submitted that  the  FCI would  have no objection to acquiescence in  that  decision, had  it  not  been interpreted to mean or  convey  that  the entire  seniorty list prepared by the FCI was liable  to  be quashed,  as  has  been  done  by  the  High  Court  in  the subsequent  decisions in the case of P.N. Verma  and  Dharam Singh  and M.L. Batra.  He submitted that there was no  need to quash the entire seniority list because all that the High Court  had directed in H.N. Bharti’s case was to  reconsider the question in the light of the circular of 15th May, 1975.

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He  submitted that he would have no objection  to  following the same course of action in the action in the case of other employees  also,  whether transferees  or  direct  recruits, since the question of regularisation had to be determined in the light of the principles and guidelines laid down in  the circular   of   15th   May,   1975.    Mr.   Robtagi,    the                                                         335 learned counsel for the direct recruits submitted that their seniority had to be determined on the basis of Regulation 15 since  they  had  satisfactorily  completed  the  period  of probation  prescribed thereunder.  He submitted  that  since their seniority had not been determined on the basis of that Regulation and the seniority list had been prepared  without determining  their seniority and placement in the  seniority list on that premise the entire seniority list was liable to be quashed.      We have carefully considered the rival contentions  and we  are of the opinion that the decision taken by  the  High Court in H.N. Bharti’s case does not call for  intervention. Even  on the submission of Mr. Bhagat, the  learned  counsel for  the  FCI,  the view taken by the  High  Court  in  H.N. Bharti’s  case  does not require any intervention if  it  is understood  to leave the matter of fixation of seniority  to the  FCI on the basis of the principles or  guidelines  laid down by the circular of 15th May, 1975 which in turn  refers to  Regulations  7, 10 & 15.  Civil Appeal No. 338  of  1987 must, therefore, stand dismissed with no order as to costs.      The  circular  refers to the note below  Regulation  10 which  permitted  ad  hoc  promotions to  be  given  to  the erstwhile employees of the Directorate General of Food as  a purely   interim   arrangement   pending   their   permanent absorption  in the FCI.  Consequently promotions granted  to ‘food  transferees’  as well as direct recruits  were  being termed  ‘ad  hoc’ pending the finalisation  of  question  of absorption  of  the  former in the FCI.   The  promotion  to direct  recruits  were also termed ‘ad hoc’  presumably   to avoid  complications in the matter of fixation of  inter  se seniority  between ‘food transferees’ and  direct  recruits. Regulation 10(i) and (ii) set out the criteria for promotion to non-selection and selection posts.  The note at the  foot of  the  regulation was clearly an interim  measure  pending final  absorption  of ‘food transferees’ in the  FCI.   But, since  even  direct recruits were given  ad  hoc  promotions pending  the absorption of ‘food transferees’, the  circular had  to  provide for the regularisation of  both.   It  was, therefore,  decided  that  ‘food  transferees’  and   direct recruits promoted to higher grades on ‘ad hoc’ basis may  be taken   to   have   completed   the   probationary    period satisfactorily if they have completed one year of service in that  grade  after  following  the  procedure  outlined   in Regulation  15 and suitable orders, if any.   Regulation  15 has two aspects viz., (i) lays down the period of  probation and  (ii)  how  the period spent  on  temporary  service  or deputation                                                        336 service  shall  be  dealt with in  counting  the  period  of probation for confirmation.  Once the date of completion  of probation  period is determined and confirmation  made,  the relative   seniority  between  direct  recruits  and   ‘food transferees’  has to be settled as laid down  by  Regulation 16.   The illustration given in the circular  clarifies  how the   question  of  termination  of  probation  has  to   be determined.   If an incumbent has completed service  of  one year  in  the  promoted grade, his case  would  have  to  be reviewed to determine if he had satisfactorily completed the

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probationary  period  or would it have become  necessary  to extend  the probationary period by another year as  provided by Regulation 15(2).  If the concerned  authority finds  his service  to  be satisfactory within the first  year  of  his probation period it may confirm him but otherwise decide  if he  would have been confirmed on completion of the  extended period.   The decision taken in this behalf  would  regulate the   seniority  between  ‘food  transferees’   and   direct recruits.  Paragraph 3 of the circular envisages passing  of formal  orders  of  regular  appointments  in  the  FCI  (as required by Regulation 7) after following the procedure laid down  in the preceding paragraph of the  circular,  wherever applicable.   These orders of regular appointment will be on the  post  held  by the ‘food transferees’ on  the  date  of absorption  and if one has since been promoted  a   separate order in respect of the promotion post would also be passed. This  in  brief is the import of the circular  read  in  the light of Regulations 7, 10 and 15 referred to earlier.   The circular has, therefore, taken care of both the  categories, namely,  direct recruits as well as ‘food  transferees’.  It is,  therefore, essential that the question of seniority  of both the cadres be determined on the basis of the principles laid  down  in the said circular as  explained  hereinabove. There  was no need to strike down the entire seniority  list but  it would suffice if the FCI is directed to  review  and determine the seniority of the ‘food transferees’ as well as direct  recruits who were granted ad hoc promotions, in  the light  of  the  said  circular  as  explained  by  us.   We, therefore, allow the Appeal Nos. 530 and 531 of 1987 to this limited extent only, that is to say, instead of quashing  of entire seniority list the FCI is directed to have the  inter se  seniority  of the direct  recruits/food  transferees  be determined   in  the  light  of  the  circular   and   grant appropriate placements to the incumbents on the basis of the seniority  so  determined in the  existing  seniority  list. Such  placements  may require a reshuffle of  the  seniority list  which  the FCI would be free to do.  Except  for  this modification, we do not see any reason                                                   337 to  interfere with the order passed by the High Court  which is the subject matter of Civil Appeal Nos. 530-531 of  1987. The case of the writ petitioner, Upendra Kumar, will also be determined in the light of this judgment along with those of the respondents in the appeals.  The case of the intervenors as   well  as  Narinder  Gangwar  may  also   be   similarly determined.  Having regard to passage of time we direct that this  may be done within six months from today.  There  will be no order as to costs. G.N.                                     Matters disposed of.                                                    338