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Upender Kumar Vs. Food Corporation of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 628 of 1979
Judge
Reported inILR1982Delhi611
ActsFood Corporation of India (Staff) Regulation - 1971
AppellantUpender Kumar
RespondentFood Corporation of India and ors.
Advocates: B. Dutt and; S.K. Puri, Advs
Excerpt:
.....reached an on 12-10-1972, the corporation invited options from the employees working in all the 4 zones as technical assistants grade i/analysers/quality inspectors grade i, etc. for choosing a zone to give effects to the scheme of zonalisation. options were exercised and a large number with longer periods of service joined the north zone. thereforee, on 30-10-1973, an order was issued by which 95 ad-hoc asstt. managers, including the petitioner, were reverted in the north zone.; earlier, on 19-4-1972, the petitioner was promoted to officiate as asstt. manager (technical). the appointment order made it clear that the promotion was purely on ad-hoc basis and the promotee was liable to be reverted without any notice and that it will give him no right either in regard to seniority in..........a south indian and he wanted to extend benefit to the people of south zone because in the north zone promotions were made ad hoc while in the south zone promotions were made permanent is without any merit. the options were given to those in grade i (category iii) and not to assistant managers. he was not ad hoc in grade i and, thereforee, could not have suffered any loss of seniority on that ground. this challenge is. thereforee, repulsed. (8) the next contention is that the selection made in 1976 were based upon an illegal seniority list drawn on 21-12-1975. in that list, the seniority of the petitioner was shown down below at sr. no. 232. it was so because the persons who belonged to the south and west zones were included in the seniority of north zone on the basis of option which.....
Judgment:

M.L. Jain, J.

(1) The Food Corporation of India was set upon 1-1-1965. Its activities were divided into zones and regions. The petitioner was appointed by the Corporation as Technical Assistant Grade Iii on 28-8-1966 in the North Zone District Office, Delhi. He was promoted to Grade Ii on 19-3-1968 and to Grade I on 7-5-1969. The Corporation by its circular of 7-8-1969 directed that the seniority of the employees of the Corporation shall be fixed according to length of service. Later on, the Food Corporation of India (Staff) Regulation - 1971 (Regulations herein) were made with effect from 8-5-1971 Regulation 4 provided that each zone shall be on separate unit for purposes of appointment, seniority, promotion, reversion and retrenchment of the category Iii and category Ii posts. On 19-4-1972 the petitioner was promoted to officiate as Assistant Manager (Technical). The appointment order made it clear that he was being appointed on sheer ad hoc basis and he was liable to be reverted without any notice and that it will give him no right either in regard to seniority in the present grade or future promotions on regular basis. This order was also not to prejudice the claim of other officers in the grade of Technical Assistant, Grade I or Quality Inspector Grade I, who may be senior to the petitioner. He wag reverted on 30-10-1973. After six years, the petitioner has thrown a challenge to his reversion by this petition filed on 27-3-1979.

(2) No counter affidavits have been filed. But it was urged on behalf of the Corporation that the seniority in the cadre of Technical Assistant Grade I was hitherto maintained on all India level. But as required by the Regulations, it had to be kept zone-wise. It resulted in considerable resentment among the Assistants, Technical Grade I of the different zones. An agreement was then reached between the Corporation and the Staff Union in pursuance of which the Corooration invited options on 12-10-1972 from the employees working in all the four zones as Technical Assistants Grade Analysers Quality Inspectors Grade I, for choosing a zone in order to give effect to the scheme of zonalisation.' Options were exercised and it seems a large number with longer periods of service joined the North zone. As a result, the said order of 30-10-1973 was issued by which 95 ad hoc Assistant Managers (T) in the North zone had to be reverted though the Corporations stated that these reversions took place on account of abolition of posts, vide their letter of 3-11-1973 to the Ministry of Labour. Axe also fell on the petitioner. However, on 6-8-1976 out of the Technical Assistants Grade I of the North Zone, 32 including the petitioner were promoted as Assistant Managers (T) on probation of one year but that too without prejudice to the claims of other officers who may be senior to them. This was done, it seems to me, because until then no final zonal seniority list was prepared. Even a tentative zonal seniority list was circulated as late as 8-3-1978.

(3) The petition was filed perhaps with the idea that if the reversions are set aside, the petitioner will regain Iris seniority. He has also raised a few more contentions in respect of seniority. His contentions are :

(1)The options allowed in 1976 were allowed mala fide because it benefited the South zone officers mostly and the West zone officers partly. These resulted in discrimination because the appointments in the zones other than the North were made not on ad hoc but regular basis. So the optees became senior to persons like the petitioner who were appointed Assistant Managers on ad hoc basis. The options and promotions based on such options were illegal.

(2)The promotion of the petitioner should be deemed to be regular because under the Regulations ad hoc appointments continued for a period exceeding one year do automatically become regular.

(3)The seniority list of 8-2-1978 is perverse, mala fide and against the provisions of the Regulations.

(4)The Corporation failed to prepare year-wise panel and four years vacancies were claimed in 1976 so as to widen the Zone of eligibility. If year-wise panels were prepared, the petitioner would have been selected against the earliest panel and gained in seniority. The petitioner was further prejudiced because officers who had their own channel of promotion were also clubbed with the technical staff.

(5)His CRs for 1973, 1974 and 1975 were devalued by the Zonal Promotion Committee because of his trade union activities contrary to 24-6-1974 circular. Further, instead of considering his performance as Assistant Manager for 1973, the Lpc considered his CRs as Technical Assistant Grade 1. If this were not done he would have been placed much higher in seniority.

(6)The petitioner was entitled to but was not allowed one increment due to him. The petitioner served for 10 months in 1973 and again completed two more months after promotion again on 6-8-1976. According to Head Office instructions he was entitled to one increment for a completed year of ad hoc service.

(4) The petitioner prays that the said options and inclusion of the Godown Cadre staff and the tentative seniority list and promotions based on it be quashed. He further prayed for directions to the respondents to prepare proper seniority list and proper promotion panel and to grant him one increment in pay due to him.

(5) As far as the seniority list of 1978 is concerned, it is only a tentative seniority of Technical Assistant Grade I and it is too early to say anything about it. The petitioner may seek appropriate remedy when the final seniority list is published and he is illegally and adversely affected by it.

(6) The promotion given to the petitioner on 19-4-1972 was undoubtedly an ad hoc one. It clearly purports to say that the order was subject to regular promotions and to the claims of other senior officers, that he was liable to be reverted without notice and that it did not confer any right in regard to seniority for future promotion on regular basis. No order could be more specific. It clearly indicates that the petitioner was not promoted on the basis of regular selection nor was he appointed on probation and, thereforee, there is no question of automatic confirmation. An ad hoc appointment cannot convert into a regular appointment simply because the period for which an ad hoc appointment is permissible has conceded. I, thereforee, reject the contention that the petitioner should be deemed to have been regularly selected and automatically confirmed.

(7) The challenge to the options given in virtue of circular letter of 12-10-1972, cannot succeed because they are being challenged by him after six years and secondly, if the cadre of Technical Assistants Grade I had to cease to be on all-India basis, then it was only reasonable and fair that options were given so the employees to choose their zone and this was done after agreement between the management and the staff. It was bound to upset the placements in all the zones more in some less in others. The grievance of the petitioner that zonal options was given because the Managing Director was a South Indian and he wanted to extend benefit to the people of South Zone because in the North zone promotions were made ad hoc while in the South Zone promotions were made permanent is without any merit. The options were given to those in Grade I (Category III) and not to Assistant Managers. He was not ad hoc in Grade I and, thereforee, could not have suffered any loss of seniority on that ground. This challenge is. thereforee, repulsed.

(8) The next contention is that the selection made in 1976 were based upon an illegal seniority list drawn on 21-12-1975. In that list, the seniority of the petitioner was shown down below at Sr. No. 232. It was so because the persons who belonged to the South and West Zones were included in the seniority of North zone on the basis of option which was not permissible by the Regulations. A further infirmity in the said list is alleged that names of certain officers who did not belong to the Cadre of Technical Assistant/Quality Control Cadre, but actually belonged to Godown Cadre were also included in it, while according to Appendix I of the Regulations, there is a separate cadre for officials working in Godown Cadre. Their channel of promotion is separate from that of Technical Cadre. In the Godown cadre, the post of Assistant Manager is filled cent per cent by promotion from Assistant Grade I (Depot). The post of Assistant Manager (Technical) is a selection post to be filled 50 per cent by direct recruitment and 50 per cent by promotion. The third weakness in the seniority list was that no distinction was made between the qualified and unqualified fumigation Assistants of Food Department and both were included in the said list. The seniority of Technical Assistant Grade I recruited or promoted before 8-5-1971 was not fixed as per Food Department Recruitment Rules which provide rotation of seniority on 50 : 50 basis. The said seniority list was no doubt withdrawn with effect from 16-1-1976 but by then damage has already been done to the petitioner. The tentative seniority list published in 1978 has not removed his objection.

(9) As regards the options, I have already rejected the contention of the petitioner. With regard to other matters, the Corporation has yet to finalise the seniority and if the mistakes pointed out by the petitioner are allowed to conti- nue without any justification, the time is yet to come when it should be get rectified by the court. It is the case of. the Corporation that the Godown Cadre officers have been for years working on the Technical Cadre and have been taken in that Cadre. They also maintain that fumigations Assistants have been included according to the Government instructions of 1969. I, thereforee, reject the contention of the petitioner on this score.

(10) A further allegation of the petitioner is that the Corporation formed Zonal Promotion Committee in 1976, considered the name of the petitioner, but undervalued his confidential reports for the years 1973, 1974 and 1975 on the verbal instructions of Mr. R. N. Chopra, Chairman of the Corporation. Taking advantage of the emergency they even got him arrested under the Dir and transferred him on 29-7-1975 to Orissa. The petitioner protested against this action and he was released from jail on bail. His outstanding and very good reports were devalued, though the Corporation had issued a circular that no cognisance is to be taken of the Union activities at the time of consideration for promotion, yet despite the circular the trade Union activities of the petitioner were taken into consideration. The petitioner performed higher responsibilities of an Assistant Manager and this act was completely ignored. For the first time the Zonal Promotion Committee adopted a criterion while considering the confidential reports, 5 marks for 'outstanding', 4 marks for 'very good' and 3 marks for 'good'. This was done to harm the petitioner. The tale told by the petitioner seems sorrowful but. there is no basis for these allegations. This court is also not able to substitute its valuation of the ACRs. The Dpc in order to be fair- is empowered to evolve some criteria and make its own valuations. It appears to me a mere suspicion that his ACRs were devalued by any oblique motive.

(11) The last of the contentions with regard to grant of one grade increment cannot succeed. The petitioner has not filed a copy of the Head Office instructions on which he bases his claim. On his own showing he had not completed one full year of service in order to earn the increment. The period of promotion in 1976 cannot be tagged with the period of duty in the year 1973 in the time scale.

(12) I, thereforee, find no force in this writ petition. There is no ground for quashing the impugned order of reversion. The petition is hereby dismissed. No costs.


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