T. Vaiphei, J.
1. The common question of law involved in these two writ petitions is whether the selection of the petitioners for appointment to the posts of Assistant Grade-Ill under the Food Corporation of India, Regional Office, NEF Region, was by way of promotion or direct recruitment.
2. I have heard Mr. S. Lodh, the learned Counsel for the petitioners. I have also heard Mr. P. Chakraborty, the learned Counsel for the respondents.
3. To simplify the controversy involved in the writ petitions, suffice it to refer briefly to the facts of the case as pleaded in W.P. (C) No. 187 of 2003. The relevant facts of the case are that the petitioners No. 1 to 7,10,11,13 and 14 are presently holding the substantive posts of Assistant Grade-I(D) (AG-I for short) under the Food Corporation of India, NEF Region while the petitioners No. 8, 9 and 12 are still holding the substantive post of Assistant Grade-II (AG-II) for short) therein. It would appear that all the petitioners joined the service of the Food Corporation of India on various dates in 1976. At this stage, it may be noted that the petitioner No. 3 died during the pendency of this writ petition, and has been substituted by his legal heirs as the petitioners No. 3(a) to 3(d) vide the order dated 16.08.2005 passed by this Court in CM. Appl. No. 284 of 2005 and that the petitioner No. 14 was subsequently impleaded in terms of the order dated 11.11.2005 of this Court in C.M. Appl. No. 445 of 2005.
3.1. It appears that under the scheme of the Food Corporation of India, on completion of continuous service of 8 years without promotion, an employee is entitled to an additional increment of pay. The benefit of this scheme was extended to those employees who got stagnated in one post. It further appears that the pay scales of these employees were revised w.e.f. 01.08.1987 and that the pay scales of these employees were fixed in terms of the revised scales. This resulted in some anomalies in the pay of the employees of different grades. With a view to rationalizing the pay structures, a policy decision was taken by the Food Corporation of India for stepping up of pay in appropriate cases. This policy came to be implemented in the Circular No. 5/93 dated 18.02.1993, which is reproduced below in extenso:
FOOD CORPORATION OF INDIA 16-20, BARAKHAMBA LANE HORS : N. DELHI No. WRC/32/22/92 Dated 18.02.1993 CIRCULAR NO. 5 OF 1993 Subject: Stepping up of the pay of senior category-III & IV employees equal to their junior employees on IDA Pattern-guidelines/instructions-regarding. Ref : Hqrs. Circular No, 20 of 1992 dated 09.11.1992 (WRC/1/5/91/Vol. III)
Consequent upon implementation of revised pay scales on IDA Pattern w.e.f. 1.8.87 vide Hqrs. Circular No. 20 of 1992 (WRC/1/5/1991/ Vol. III) dated 9.11.92 many representations are being received from the individuals staff bodies and field offices pointing out the anomalies as under:
(i) In some cases the pay of a senior employees prompted to a higher post before 1.8.87 is less in the revised scale than their junior promoted to the higher post on or after 1.8.87.
(ii) Similarly, the pay of the senior employee in the revised scales has been fixed than his junior after 1.8.87 due to the fact that senior got additional increment on completion of eight years service in a grade prior to completition of eight years service in a grade prior to 1.8.87 and Junior got this benefit on or after 1.8.87.
The above points of anomalies have been examined and in order to remove the anomalies it has been decided that in cases where a senior employee promoted to a higher post/ granted additional increment after completion of eight years service in a grade before 1.8.87 draws less pay in the revised scale than his junior who is prompted to the higher post/granted additional increment after completion of eight years service in a grade on or after 1.8.87, the pay of the senior employee should be stepped up to an amount equal to the pay as fixed for his junior in that higher post. The stepping should be done with effect from the date of promotion of the junior employee/grant of additional increment to the junior employee subject to fulfilment of the following conditions:
(i) Both the junior and senior employees should belong to the same cadre in the lower as well as higher posts.
(ii) Both the junior and senior were/are in the same pre-revised and revised scales of pay in the lower and higher posts.
(iii) Senior was drawing more or equal pay in the lower post as on 01.08.87 in the pre-revised scale in comparison to his junior.
(iv) That the anomaly should be directly as a result of the application of the provisions of Regulation 82 of FCI (Staff) Regulations, 1971 and/or grant of additional increment on completion of 8 years service before 1.8.87 in case of senior and after 1.8.87 in case of junior, or any other rule or order regulating pay fixation in the revised scale. If even in the lower post, the junior employee was drawing more pay in the pre-revised scale that the senior by virtue of any advance increments granted to him, provisions of this circular need not be invoked to step up the pay of the senior.
Every case should be examined/decided with the approval of Manager/Dy. Zonal Manager/Sr. Regional Manager after obtaining the concurrence of Jt. Manager (Fin.) of the respective office. In case Jt. Manager (Fin.) is not in position, the concurrence of Dy. Manager (Fin./A/cs) may be obtained as the case may be.
Cases of the seniors drawing less pay than their immediate Juniors because of the reasons other than specified above and also because of any penally imposed shall not come within the purview of the circular.
The cases where any specific clarification is required by Zonal offices may be referred to Headquarters.
(Mrs. Harminder Kaur)
Dy. Manager (WRC)
For Manager Pers. Petitioner & IR)
4. It would appear that the Food Corporation of India initially found the petitioners to have fulfilled the criteria laid down therein for stepping up of their pay and accordingly extended such benefits to them in the year 1993. This was apparently done with reference to one Gurupada Roy, who was junior to the petitioners and was a similarly situated employee all through in the two grades viz. AG-III and AG-II. Consequently, the petitioners had hitherto been drawing their monthly salaries at the enhanced rate. However, the respondent No. 2 by the letter dated 23.09.2002 (Annexure-2) forwarded to the respondent No. 3 the letter dated 09.09.2002 of the Zonal Manager, NE, Guwahati the special audit report on stepping up of pay and allowances of Cat. III and IV staff of NEF Region conducted by the Assistant Manager (IA) for the period from October, 1993 to January, 2000 and directed the latter to act in accordance with the findings of the Audit. The letter was followed by the letter dated 03.01.2003 (Annexure-3) of the Regional Manager, FCI, NEF Region addressed to the respondent No. 4 directing the letter to reflex the pay of the petitioners by withdrawing the step up benefits and take actions accordingly. The net effect of these letters in simple terms is that the petitioner were never entitled to the benefit of step up pay which are liable to be withdrawn forthwith and that whatever has been paid to them be refunded by them or be deducted from their salaries and allowances. According to the respondents, the case of the petitioners cannot be compared with that of the said Gurupada Roy, who was a promotee in the post of AG-III whereas the petitioners were direct recruits when they were appointed to the posts of AG-III. In other words, the stand taken by the respondents in withdrawing the benefit of step up pay to the petitioners appears to be that in order to avail of the stepping up of pay, the petitioners should be promotees like the said Gurupada Roy and not direct recruits when they were inducted to the posts of AG-III, as evident from paragraph 7 of their counter-affidavit, which are reproduced thus:
7. With reference to the statements made in paragraph-7 of the writ petition it is submitted that the audit rightly found that the step up benefit given to the petitioners with reference to Gurupada Roy to be impermissible on the ground of incompitability, he being a promotee to the AG-III grade cannot be compared with the petitioners who were direct recruit to AG-III grade. The allegation made in the said paragraph-7 there is no cogent reason as to why the benefit of the stepping up circular should be denied to the petitioners or to be withdrawn after the benefits were accorded is not correct and as such denied.
5. It is contended by Mr. S. Lodh, the learned Counsel for the petitioners that the said Gurupada Roy, with reference to whom, the benefit of step up pay was extended to the petitioners, was a direct recruit and not a promotee, a fact which can easily be verified if the respondents are directed to produce the appointment order appointing him to the post of AG-III. At the time of hearing, Mr. P. Chakraborty, the learned Counsel for the respondents was from time to time asked to produce the said appointment order as well as the recruitment rules for the post in question and also any contemporaneous documents in the custody of the respondents. This has become necessary in view of the fact that apart from the omnibus statement made by the respondents that the said Gurupada Roy was a promotee, there is absolutely no materials to throw light on this crucial point. I have carefully perused the recruitment rules and the appointment order of the said Gurupada Roy, which are now placed before me by the learned Counsel for the respondents. Unfortunately, the recruitment rules do not indicate in clear terms as to how the post of AG-III is to be filled up. However, a copy of the Office Order dated 01.09.1976 shows that the said Gurupada Roy (whose name appeared in SI. No. 3) was selected for appointment as Assistant Grade-III(D) purely on ad hoc basis. In the same breath, however, the word “promotion” was also used therein. From this, it becomes clear that the respondents are liberally and indiscriminately employing the words “appointment” and “promotion” as if there words are interchangeable. No wonder, both the rival parties are compelled to indulge in the exercise of semantic. Surely, the respondents must have in their custody some documents, contemporaneous or otherwise, which could give a clue to the exact nature of the induction of the said Gurupada Roy to AG-III. It is the duty of the respondents to assist this Court by producing necessary materials under their custody. By the order dated 22.03.2006, the respondents were called upon to produce the relevant files before this Court. Though the relevant files are not made available to the Court, a copy of the office orders dated 02.12.1977 was placed before me by the learned Counsel for the respondents on 15.05.2006. A perusal of the order indicates in no uncertain terms that Gurupada Roy was promoted to the post of AG-III(D) and is not a direct recruit as claimed by the petitioners.
6. Once it is held that the said Gurupada Roy was promoted to the post of AG-III in 1976, the determination of the respondents that the petitioners are not entitled to the step up pay since they are direct recruits does not suffer from any infirmity.
7. The result of the aforesaid discussion is that this writ petition has no merit and is hereby dismissed. However, on the facts and circumstances of the case, the parties are directed to bear their own costs. The interim order dated 01.09.2003 stands vacated.
W.P. (C) No. 186 of 2003
8. In this case, the appointment order of the petitioner was issued on the following terms:
THE FOOD CORPORATION OF INDIA REGIONAL OFFICE : N.E.F. REGION SHILLONG-3 No. a. 49750/75 June 2, 1976 OFFICE ORDER
The following class IV staff presently working as AG. III on deployment have been selected for appointment in the post of AG.III(M)/type with effect from 01.06.1976 on temporary/adhoc basis as shown against each in the scale of Rs. 290-10-380-12-440-15-485 per month on the pay of Rs. 290/- per month plus other allowances as admissible under food corporation of India rules purely provisionally and without prejudice to the claims of the persons senior to them in the grade.
They are posted to the stations as shown against each.
SI. Name and Present PlacePosted
No. Designation ofposting to
1. Smti Ibemal Debi Imphal Imphal (against Ministerial)
2. Sri P.C. Rudrapal Agartala Agartala (Typist)
The benefit of step up pay extended to the petitioner was withdrawn by the respondents on the ground that he was a promotee in the post of AG-III whereas Smti. S.K. Choudhury, with reference to whom such benefit was extended, was a direct recruit for the post of AG-III. In my opinion, nowhere in the appointment of the petitioner was mentioned that he was promoted to the post of AG-III. On the contrary, the appointment order clearly states that he was, among others, selected for appointment in the post of AG-III(M). In the absence of any materials produced by the respondents to show to the contrary, I hold that the petitioner was appointed and not promoted, to the post of AG-III on 02.06.1976. Consequently, the respondents are not justified, and have thereby committed illegality, in holding that the petitioner is not entitled to the benefit of step up pay in terms of the Circular No. 5/93 dated 18.02.1993.
9. Resultantly, this writ petition is allowed. The impugned circular including the letters dated 03.01.2003, 23.09.2002 and 09.09.2002 deducting the salary of the petitioner as indicated therein is hereby quashed No order as to costs.