JUDGMENT
A.K. Sikri, J.
1. The petitioner is working with respondent-Food Corporation of India. At the time when he filed this writ petition in the year 1988, he was in the cadre of AG-III (Ministerial) which was given to him in the year 1973. He claims that he was entitled to be inducted in the Movement Cadre since the date of his promotion as Assistant Grade-I as Juniors were inducted and on that basis he be given consequential reliefs. He further prays that illegal induction of respondents 3 to 9 be set-aside. He has made respondents 3 to 9 as parties claiming that respondents 3 to 9 are his juniors who were inducted in the Movement Cadre before him which resulted in discrimination qua the petitioner.
2. To appreciate the controversy, ritual of stating the facts in brief may be performed first:
Petitioner claims that he joined Northern Railway as Office Clerk on 27.7.1964. In 1968 M/s. R.P. Singh, J.C. Wason, R.K. Chadha and K.K. Sharma, Clerks in Northern Railway joined Food Corporation of India (FCI) as Assistant Grade-II (AG-II) on deputation from Northern Railway. On 12.5.69 on Kulwant Singh joined FCI as a direct recruit Assistant Grade-III (AG-III) in Depot Cadre. On 2.6.69 Respondent No. 7 joined FCI as a direct recruit Assistant Grade-III (Ministerial). On 10.7.69. M/s R.P. Singh, J.C. Wason, R.K. Chadha and K.K. Sharma were promoted as AG-I in FCI. Petitioner till this date was working in Northern Railway. However, on 25.7.69 he joined FCI as AG-III on deputation from Northern Railway. Thereafter, respondents 5 and 6 also joined FCI as AG-
III on deputation from Northern Railway w.e.f. 25.7.69 (AN) and 30.8.69 respectively. Respondents 4 and 3 were appointed as Steno Gr. II in FCI on 12.3.70 and 10.3.71 respectively.
In 1971 FCI framed its Regulations called FCI Staff Regulations, 1971 (hereinafter called as “Staff Regulations”) and as per these Staff Regulations, Movement Cadre came into existence for the first time in FCI at the level of AG-I and above. These Recruitment Regulations provided for entry into this cadre by way of promotion to the extent of 50% and 50% by transfer on deputation from Railways.
3. Petitioner submits that he should have been inducted to this Movement Cadre on 27.10.71 or in any case w.e.f. 3.6.72 or soon thereafter or in the alternative w.e.f. 7.4.76 or 17.1.77/25.2.77. He says that he was not inducted into this cadre although eligible on the aforesaid dates and was denied the same even in 1978 and again in 1979, 1980 and 1982 or thereafter he makes his claim on the following basis :
1. 27.10.1971, or in any case with effect from 3.6.1972, or soon thereafter–in view of the relaxation of provisions of rules for induction to Movement Cadre, which permitted for transfer from AG-II (Ministerial) also.
He submits that Kulwant Singh was wrongly promoted as AG-II (Ministerial) on 2.8.71 and he should have been promoted as AG-II Depot since on his own request he got transferred in Ministerial Cadre in 1973 only and, therefore, his induction in the Ministerial Cadre w.e.f. 2.8.71 was wrong. In any case according to petitioner, the respondents issued Circular No. 15-8/71-EP dated 4.10.71 whereby the rules as a temporary measure were relaxed and transfer was allowed in equivalent grades of AG-I from Godown Cadre to Movement Cadre. He further submits that on 1.11.71 Respondent No. 7 was promoted as AG-II (Ministerial) and he being junior to the petitioner, petitioner should have been promoted instead. In December, 1971 M/s R.P. Singh, J.C. Wason, R.K. Chadha and K.K. Sharma were even absorbed in FCI as AG-I (Ministerial). They had come on deputation from Northern Railways as AG-II and when they could be absorbed as AG-I, petitioner also becomes entitled to be absorbed as AG-I. It was the further submission of the petitioner on 14.2.72 that FCI issued Circular No. 3/7/72-EP as per which every 8th vacancy of AG-I (Ministerial) was marked for promotion from Steno Gr. II and this is clearly invalid as no amendment was made in Staff Regulations and, therefore, respondents 3 and 4 promoted from Steno Grade in the Movement Cadre was wrong and Respondent No. 4 was promoted as AG-I (Ministerial) on 25.5.72. Even respondent No. 3 thereafter was promoted as AG-I (Ministerial) in 18.2.75 and this prevented the induction of the petitioner into the Movement Cadre. Not only this in 1973 M/s R.P. Singh, J.C. Wason, R.K. Chadha and K.K. Sharma who were absorbed as AG-I (Ministerial) were transferred to AG-I Movement without calling or obtaining any option from them.
In the meantime, on 4.1.73 petitioner, Respondent No. 5 and Respondent No. 6 were absorbed in FCI as AG-III (Ministerial) and they were promoted and all these three persons were promoted as AG-II (Ministerial) on 10.12.73, although petitioner should have been promoted w.e.f 27.10.71. Petitioner, respondent No. 5 to respondent No. 7 were again promoted as AG-I (Ministerial) w.e.f 7.4.76. Respondents 8 and 9 were promoted as AG-I (Ministerial) on 22.9.76 and petitioner submits that their promotion was in violation of Staff Regulations as they had joined FCI on 29.4.72 as AG-III (Ministerial) on deputation from Northern Railway and not as AG-II (Ministerial).
2. 7.4.1976–when the petitioner was promoted as AG-I (Ministerial), without insisting for any formal option, as had already been done in 1973 in the cases of S/Shri M/s. R.P. Singh, J.C. Wason, R.K. Chadha and K.K. Sharma.
3. 17.1.1977/25.2.1977–when the petitioner specifically represented for Movement Cadre after the 41st Amendment in the rules of recruitment in Movement Cadre. However, the representation dated 25.2.77 of the petitioner was wrongly rejected by Memo dated 18.3.77 on the ground that no such instructions received from Head Office. He submits that it was clearly mala fide and wrong as his representation was not even sent to the Personnel or Zonal Manager who were competent to deal with. Thus according to him at this representation being sent, proper instructions would have been received for his induction and the petitioner cannot be penalised for no fault of his.
4. 1978 and again in 1979, 1980 and 1982–when FCI called for options, by treating the petitioner’s representation dated 25.2.1977 as the petitioner’s option. There is no requirement in the Recruitment Rules/Staff Regulations of FCI, of calling for formal options for transfer to Movement Cadre, and the option can be implied. The petitioner’s representation dated 25.2.1977 for Movement Cadre was already there and should have been taken as formal option in response to the various FCI Circulars every year.
Petitioner submits that in 1980 FCI had specifically called for options for transfer to Movement Cadre. However, the Circular received from Head Office was not circulated and maneuvered. With the result that petitioner did not come to know of such circular and did not give his option and only Respondent No. 3 submitted his option in the entire FCI which shows that the circular was not made known to the employees and to favour respondent No. 3 only his option was taken. The result of which was that the respondent No. 3 was wrongly inducted in Movement Cadre w.e.f. 14.5.81 on the basis of his option given against Circular of 1980. Thereafter respondent No. 3 was promoted as Assistant Manager (Movement) on 10.9.1981.
5. 25.7.7979–when the petitioner’s representation for Movement Cadre was favourably recommended by Manager Legal. The petitioner was actually inducted to Movement Cadre with effect from 1979 but the same was later on withdrawn by letter dated 30.12.1987 without any reason under the illegal pressure of Union.
6. 1981–even if formal option of the petitioner for induction to Movement Cadre is considered necessary, when the petitioner formally opted. Induction of Kulwant Singh in 1981 in preference to the petitioner is wrong. Kulwant Singh was junior to the petitioner as Kulwant Singh had joined FCI as a direct recruit AG-III in Depot Cadre on 12.5.1969, and thereafter it was at his own request that he was transferred to the Ministerial Cadre in 1973. As per Staff Regulations, 1971 he was to be treated as junior most in the Ministerial Cadre to the Staff including the petitioner, already working in Ministerial Cadre as AG-II prior to Kulwant Singh’s said transfer to the Ministerial Cadre in 1973.
7. 1983–again when the petitioner had formally opted for Movement Cadre in response to the options called for. Petitioner was senior to Respondent No. 5 and Respondent No. 6, and should have been inducted to Movement Cadre on seniority basis as per Staff Regulations which clearly provide for seniority subject to the rejection of unfit, it being Non-Selection post. As long as the petitioner was “Good” and not unfit, he could not be superseded by his juniors even if they were “Very Good”.
4. Some of the events which took place around this time may be stated :
21.09.81 FCI called for options for transfer to Movement Cadre.
23.09.81 Respondent No. 8 promoted as Assistant Manager (Movement). 12.10.81 Respondent No. 9 promoted as Assistant Manager (Movement) 25.10.81 Petitioner opted for Movement Cadre. However, Kulwant Singh was inducted. 16.09.82 FCI called for options for transfer to Movement Cadre. P.N. Baxi was inducted. 12.12.83 FCI called for options for transfer to Movement Cadre. 23.12.83 Petitioner opted for Movement Cadre. Respondents 5 to 7 were inducted. 1984 Respondent No. 4, Steno and a Union Leader, inducted to Movement Cadre w.e.f. 1980. 24.05.84 Memo-Charge sheet issued to the petitioner relating to 1975 work. 21.06.84 Reply/Representation of the petitioner refuting charges. 07.08.84 Order of penalty of Censure awarded to the petitioner. 06.09.84 Respondent No. 4 promoted as Assistant Manager (Movement). 17.09.84 Appeal made by petitioner against the said penalty. 21.11.84 Petitioner's reminder of the said appeal. 22.12.84 Petitioner's representation for Movement Cadre. 24.05.85 Petitioner's representation for Movement Cadre. 26/29.08.85 Petitioner's case reconsidered by Screening Committee to set the matter right. 23.06.86 Petitioner's representation for Movement Cadre, 03.08.86 Petitioner's representation for Movement Cadre. 11.12.86 Two special increments w.e.f 1.4.84 granted to petitioner for acquiring higher qualification of LL.B. 01.01.87 Petitioner's representation for Movement Cadre. 10.2.87/25.2.87 FCI's Office Note favourably recommending petitioner's case. 17.03.87 Petitioner inducted in Movement Cadre w.e.f. 1979 vide FCI's Notification No. 53/87. 02.12.87 Petitioner's representation for Movement Cadre. 30.12.87 FCI's Office Order withdrawing earlier Office Order dated 17.3.1987".
5. On the basis of aforesaid facts and the submissions, petitioner submits that grave injustice has been caused to the petitioner by not inducting him in the Movement Cadre in spite of his various requests which were either not considered or turned down on frivolous grounds. On the other hand the persons who were juniors to him were inducted in the Movement Cadre. The effect of the induction of his juniors to the Movement Cadre denying the same to the petitioner is that petitioner has not got any promotion since 1976 when he was promoted as AG-I (Ministerial) whereas his juniors who got induction into the Movement Cadre have got various promotions and they are working as Deputy Manager or Joint Manager in the Movement Cadre. Petitioner has also relied upon judgment of Punjab & Haryana High Court dated 10.5.85 in CWP No. 8417/76 entitled V. K. Dewan and Anr. v. FCI and Ors. as well as judgment of Supreme Court in the case of FCI v. FCI Deputationist Association and Ors., .
6. Refuting the claim of the petitioner, it is the case of the respondents that there was no automatic absorption with the creation of Movement Cadre and the employees were asked to give their options for the same. Even after the option is given, it was subject to selection by the respondents and only the person found suitable for induction, after his selection could be inducted. It was submitted that as far as Kulwant Singh is concerned, he was promoted as AG-II in 1971 whereas petitioner joined as AG-II in 1974. Likewise, Kulwant Singh was promoted as AG-I on 19.11.75 whereas petitioner was promoted as AG-I in April, 1976 and, therefore, he was senior to the petitioner. It was also submitted that S/S. R.P. Singh, J.C. Wason, R.K. Chadha and K.K. Sharma, were admittedly senior to the petitioner. They too joined FCI on deputation as AG-II in the year 1968 much prior to the petitioner who joined FCI on 25.7.69 and that too as AG-III. It was further submitted that respondents 3 and 4 were AG-I in 1975 whereas petitioner became AG-I only in 1976 and therefore, as AG-I respondents 3 and 4 were senior to the petitioner. The respondents further explained that for induction options were called. Although petitioner represented on 25.2.77 but no options were called for at that time and no body was considered and, therefore, question of consideration of the petitioner pursuant to his representation dated 25.2.77 did not arise. Mr. Sukumar Pattjoshi, learned counsel for respondent No. 1 further submits that options were called for the first time on 15.5.78. However, as petitioner did not opt, he could not be considered and respondents 8 and 9 were inducted who had adopted for induction into Movement Cadre. Options were again called for on 7.4.79 and the last date was 25.4.79. However, petitioner did not exercise his option in time and his option received was much later. In fact no body was inducted pursuant to this Circular dated 7.4.79. Next options for the year 1980 were invited by Circular dated 30.1.80. Petitioner again failed to exercise his option. Respondent No. 3 exercised his option and was inducted on 14.5.81. it is not only Respondent No. 3 but options were submitted by 5 persons against the said circular and, therefore, petitioner is wrong in saying that this circular was not brought to the notice of employees. In any case, according to respondents, respondent No. 3 was senior to the petitioner as AG-I. Against the options called for in the year 1981, 25 applications were received from Ministerial Cadre and after the selection K.K. Sharma was inducted. Petitioner could not be selected at that lime. In 1982 petitioner did not opt. In 1983 petitioner opted and was considered but his rating was only “Good” and the other applicants who were having “Very Good” rating only were inducted. Respondents 4, 5 and 7 who were inducted were in any case senior to the petitioner as well. It was further submitted that thereafter the options were called in the year 1985. However, petitioner did not apply. In
1987 although the petitioner was inducted but it was found that the induction was wrong and, therefore, the said induction was withdrawn. Reliance is also placed on the judgment dated 18.03.83 of this Court in CWP No. 1080/78=1983(2) SLJ 462 (Delhi), entitled Deep Chand Gupta and Ors. v. FCI and Ors.
7. I have considered the respective submissions of both the parties. I may say at the outset that petitioner has raised various issues regarding the joining of some of the respondents in FCI on deputation or their absorption against the rules. I need not go into all these contentions as deputation or absorption etc. of these persons took place long ago and it is not open to challenge by the petitioner when he filed the petitioner in the year 1988 against his non-induction. For same reason the petitioner cannot at this distance of time challenge the promotion of respondent No. 3 from Non-Grade-II to AG (Ministerial) which was in the year 1975. Likewise the non-induction of the petitioner w.e.f. 27.10.71 or thereafter from time to time as claimed by the petitioner can also not be gone into as petitioner never challenged such non-induction at that time. In fact it may be noticed that what promoted the petitioner to file the present petition was that although the petitioner was inducted in Movement Cadre by order dated 17.3.87 w.e.f 1979 but this order was withdrawn by the office order dated 30.12.87. Aggrieved by this action the petitioner filed the present writ petition and raised all these issues which had settled long ago. Therefore, I am confining the consideration of the case to the point as to whether the petitioner was entitled to be inducted in the Movement Cadre w.e.f. 1979 or onward and whether the impugned order dated 30.12.87 withdrawing induction of the petitioner is valid or not.
8. It is a matter of record that petitioner has been making representations against his non-induction into the Movement Cadre and one such representation is dated 25.7.79. This was referred to the Legal Department and the Legal Department on the said representation had observed that petitioner has a good case which requires serious consideration. However, petitioner was not inducted into the Movement Cadre even thereafter and he made representations dated 3.8.86 and 1.1.87, among others, stating the entire facts and circumstances and the alleged injustice done to him. His representation was considered. Petitioner has annexed the Office Note dated. 10.02.87 as Annexure P-8 to his writ petition. A perusal thereof shows that after discussing the entire case of the petitioner, it was recommended for favourable decision. Relevant portion of the Office Note dated 10.2.87 reads as under:
2. “I have gone through the record of various proceedings and my observations are as under:
For absorption in Movt. Cadre following percentage of posts are allotted to various posts:
50% from depot cadre.
35% from Railways.
15% from General Administration.
As regards, the quota against the Railways absorption this issue will be discussed subsequently.
3. 1981
In this year there were 3 vacancies, were allotted to Depot cadre and one was allotted to Genl. Cadre. Against these 3 vacancies 2 persons from depot cadre and one official Shri Kulwant Singh from Genl. cadre who was senior to Sh.
Chariya with Very Good categorisation was inducted and no person junior to Sh. Chariya was inducted in the year 1981.
7952
For this year also the options were called for but from the records available it appears, Sh. Chariya did not apply for the Movt. Cadre since his name was not forwarded by H. Qrs. where he was working and Sh. Chariya has also not claimed for induction into this cadre in this year.
1983
Shri Chariya had applied for induction into Movt. Cadre during this year. There were 39 posts out of which 24 were filled from depot cadre and 8 filled from Genl. Admn. Cadre. From the record it appears that the screening committee which examined the option forms did not examine the case of Shri Chariya which was not put up to before the screening committee due to oversight and typographical omission. Shri Chariya made a representation against this omission and the case was again examined by the screening committee on 26.3.85 who categorised him good whereas the persons who were already inducted all carried out VG categorisation and therefore Sh. Chariya could not find his place for induction in Movt. Cadre during this year also.
4. As regards merit regarding induction of Sh. Chariya in the Movt. Cadre from the date of formation of Movt. Cadre on the grounds that he came to FCI from the Railways and had sufficient background of railway working and therefore no option was called for in respect of such absorbed deputationists there appears to be some merit in this argument because 35% quota was reserved for induction in Movt. Cadre in respect of officials who were transferred from Railways and were subsequently absorbed in FCI or they were taken on deputation”.
9. On the basis of aforesaid position, it was recommended that petitioner be inducted into Movement Cadre w.e.f. 1979.
10. This was considered by the competent authority and on 25.02.87 order was passed by the competent authority that petitioner may be allotted the Movement Cadre as proposed. After this the order dated 17.03.87 was passed inducting the petitioner into the Movement Cadre w.e.f. 1979. This order dated 17.03.87 reads as under :
“Subject:–Formation of Movement Cadre–Transfer to Movement Cadre.
Shri Mangal Sen Charya, Asstt. Gr. I (Min.) (D.O.B. 3.3.44), Zonal Seniority No. 346 is transferred to Movement Cadre permanently against tbe year 1979.
The official stands re-designated as Asstt. Gr.I (Movt.) and his seniority will be fixed as Asstt. Gr. I (Movt.) along with other Asstt. Gr.I (Movt.).
This notification is subject to vigilance clearance since 1979. If the official is found either involved in vigilance or under going penalty since 1979, the notification will stand cancelled”.
11. However, this order was not served upon the petitioner and in these circumstances petitioner made representation dated 2.12.87 when he came to know that such an order has been passed giving him the benefit. Instead of acceding to his request, respondents by
impugned order dated 30.12.87 withdrew Office Order dated 17.3.87. Order dated 30.12.87 is in the following words :
“Subject : Formation of Movement Cadre–Transfer to Movement Cadre.
This office order No. 53/1987 dated 17.3.87 inducting Shri Mangal Sain Charya, Asstt. Gr. I (Min) (D.O.B. 3.3.44) Zonal Seniority No. 346 to the Movement Cadre is hereby withdrawn with immediate effect.
This issues with the approval of the Competent Authority”.
12. In the counter-affidavit filed by the respondents, no satisfactory explanation is given as to why order was withdrawn. What is stated is that before order dated 17.3.87 could be implemented, some staff bodies had represented and the matter was re-examined and it was found that order dated 17.3.87 which was not served upon the petitioner was erroneously issued and, therefore, withdrawn. No reasons are given as to how this order issued was erroneous. Even during the arguments no convincing reasons were given by the respondents. It is a matter of record that petitioner has been representing since 1977 demanding his induction into the Movement Cadre. Non-consideration of his case in 1979 on the ground that pursuant to circular dated 7.4.79 petitioner did not exercise his option is, therefore, not proper. Likewise not considering the case of the petitioner in the year 1980 on the ground that he did not exercise his option is again improper. Moreover as per para-4 of the Office Note dated 25.2.87 the Office finds merit in the contention of the petitioner that he should have been inducted in the Movement Cadre from the date of formation of Cadre on the ground that he came to FCI from Railways and had sufficient background of Railway working and, therefore, no options were called for in respect of such absorbed deputationists and when 35% quota was reserved for induction in Movement Cadre in respect of officials who were transferred from Railways and subsequently absorbed in FCI. Judgment of the Supreme Court in the case of FCI v. FCI Deputationist Association and Ors. (supra) comes handy for the petitioner. In this case the Supreme Court observed that Sub-Inspector of Food Department of the Government of West Bengal on deputation with FCI discharging the duties of post of Assistant Grade-II for long period of 18 years satisfactorily and subsequently absorbed should have been given pay scale of Assistant Grade-II in stead of Assistant Grade-III. Petitioner although discharging the duties in the Movement Cadre for a long period was not formerly inducted into the Cadre whereas other persons similarly situated or who were juniors to him at one point of time after induction into Movement Cadre have made subsequent carry progressions and are holding much higher positions than that of the petitioner and petitioner has not earned any promotion for last 24 years i.e. since 1976. Therefore, even inequity petitioner is entitled to relief which cannot be denied on hyper-technical grounds and the excuses taken by the respondents by alleging that the petitioner did not exercise his option in particular years i.e. 1979, 1980 and 1982 etc. I also find some merit in the contention of the petitioner that although office order dated 17.3.87 was rightly issued inducting him w.e.f. 1979 into the Movement Cadre but because of the pressure of the Union the same was withdrawn.
13. Accordingly, this writ petition is partly allowed. Respondents are directed to induct the petitioner into the Movement Cadre as per orders dated 17.3.87 by which he was inducted into the Movement Cadre w.e.f 1979 treating him as having inducted into the Movement Cadre in the year 1979. He should be redesignated as Assistant Grade-I (Movement) and his seniority fixed appropriately as Assistant Grade-I (Movement) and on that basis consequential benefits of consideration of further promotion etc. be given to him. He should be considered for further promotion from the date his juniors were considered for promotion after re-fixing his seniority in AG-I (Movement) and if he is found fit he
should be promoted to the next higher post (s) from the date his juniors were promoted. His
pay may also be fixed notionally on the higher post but he will not be entitled any arrears
of pay. This process be completed by the respondents within a period of four months from
today
Writ petition stands disposed of.
No order as to costs.