Posted On by &filed under Delhi High Court, High Court.


Delhi High Court
S. Rama Rao vs The M.D., Food Corporation Of … on 6 September, 2000
Author: N Nandi
Bench: N Nandi


ORDER

N.G. NANDI, J.

1. In this writ petition under Article 226 of the Constitution of India, the petitioner has been praying for writ of mandamus or order or direction to the respondents that the circular No. 41/97 dated 17.11.1997 should be made effective from the date 10.2.1995, as laid down by the Supreme Court in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others, and not from 30.1.1997 and also for direction to the respondents to assign the seniority of the petitioner just above Sh. P.K. Chandrasaccharin/appropriate place in the seniority list of Asstt. Manager (General) of South Zone and in the All India Provisional Integrated Senior- ity List of Asstt. Manager (General/Depot) from the date of petitioner’s promotion to the said category i.e. 7.6.1996 with all consequential bene- fits.

2. The say of the petitioner is that the petitioner was first appointed as Godown Clerk/Asstt.Grade-III (D) on 26.6.1967 and Sh. P.K. Chandrasekha- ran was appointed to the same category of post on 16.10.1967; that the petitioner was assigned the seniority at No. 852 whereas Sh. P.K. Chandra- sekharan at serial No. 995 as on 15.11.1968 in the seniority list of AG- III(D); that the petitioner and the said Sh. Chandrasekharan were promoted to the next higher grade Asstt.Grade-II (D) in December 1972 in the said grade and the petitioner was placed at seniority No.755 and Sh. Chandrasek- haran was placed at seniority No.795 as on 31.12.1975; that said Sh. Chan- drasekharan was promoted to the next higher grade AG-I (D) on 21.12.1973 being a scheduled tribe candidate and he was placed at serial no. 303 in the seniority list of that category while the petitioner being a general candidate, he was promoted to the said higher grade on 6.5.1976 and he was assigned the seniority list at serial No. 537 as on 31.12.1985; that said Sh.Chandrasekharan was again promoted to the post of Asstt.Manager (D) on 21.10.1988 on the ground of his accelerated/defector seniority as scheduled tribe candidate and he was assigned the seniority at serial No.21 as on 31.12.1995 in the said category in the seniority list of South Zone and at No.805 in the All India Provisional Integrated Seniority List of Asstt.Manager (General/Depot) as on 1.8.1995; that the petitioner being a general candidate was promoted to the said post/Asstt.Manager (D) category in 1996; that the petitioner, on 11.3.1996, sent a representation to the respondents claiming his seniority retrospectively based on the principle/judgment of Supreme Court in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) just above Sh.Chandrasekharan in the seniority list of Asstt.Manager (D) Grade and in All India Provisional Integrated Seniority List of Asstt.Manager (General/Depot) which was to be released; that respondent No. 2, ignoring the representation of the peti- tioner, released the provisional seniority list dated 11.11.1997 of Asstt.Manager (D) of South Zone as on 31.12.1996 which was served on the petitioner on 7.3.1998 assigning the seniority of the petitioner at No.169 and the seniority list of said Sh.Chandrasekharan at serial No. 7; that aggrieved with the provisional seniority list, the petitioner again sent his representation dated 3.2.1998 and 1.4.1998 to the respondents claiming seniority just above Sh.Chandrasekharan as per he judgment of the Supreme Court but of no consequence; that the respondents issued circular No.41/97 dated 17.11.1997 extracting the ratio of the judgment in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) for information and compliance by the concerned officers and in the said circular, respond- ent No.1 gave direction to implement the said circular from 30.1.1997 despite the fact that the judgment in the said case was pronounced on 10.10.1995 and the petitioner’s promotion is fully covered by the said judgment of the Supreme Court.

3. The respondents, vide counter affidavit, disputed the claim of the petitioner and contended that the judgment in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) does not specify the date from which the directions contained therein becomes operative; that the said date from which the aforesaid circular has been made effective by the respondents is in pursuance of the Office Memorandum passed by Government of India, Ministry of Industry, Department of Public Enterprises bearing No.6/13/96-DPE(SC/ST Cell) dated 17.3.1997. The said Memorandum of the Government of India clearly stipulates that the instructions in regard to the seniority of SC/ST Officers promoted earlier Visa-visa–visa
General/OBC Officers promoted later shall be made effective from 30.1.1997; that this cut-off date by Ministry of Industry, Department of Public Enter- prises has been taken from the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training vide Memorandum No.20011/1/96-Estt (D) dated 30.1.1997 wherein the Department of Personnel has specifically stated that the order shall be effective from the date of the issuance of the Memoran- dum dated 30.1.1997; that in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra), the Supreme Court followed the principle laid down by the Constitutional Bench enunciated in the case of R.K.Sabhar- wal & Others Vs. State of Punjab & Others, and directed the railway authorities to follow Rule (i), (ii) & (iii) formulated by them with effect from the date of judgment in the case of R.K. Sabharwal & Others Vs. State of Punjab & Others (supra) i.e. 10.2.1995; that in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra), to follow the principle laid down in the case of R.K.Sabharwal & Others Vs. State of Punjab & Others (supra) should also follow the rules formulated with effect from 10.2.1995 was to the railway authorities only; that the correct reading of the said judgment clearly stipulates that the general principle laid down in the matter of R.K. Sabharwal & Others Vs. State of Punjab & Others (supra) and in the matter of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) is to be followed prospectively and the Minister of Personnel, Public Grievances & Pensions, Department of Personnel & Training issued the Memorandum No.20011/1/ 96-Estt (D) dated 30.1.1997 in view of the judgment and orders passed in the matter of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra).

4. Mr. K. Vidyasagar, learned counsel for the petitioner, over and above the oral submissions, also filed written arguments and stated that the impugned circular No.41/97 dated 17.11.1997 should be implemented from 10.2.1995 in view of the direction in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra); that the said cut-off date 30.1.1997 is not based on any legitimate rationale; that it is artificial and arbitrary and there is no nexus to the object sought to be achieved; that the policy of fixing seniority (as per regulation 11 of the FCI (Staff) Regulations 1971) was wrongly interpreted and followed by the respondents from 1971 when the correct interpretation of the same was laid down by the Supreme Court on 10.2.1995 in the case of R.K.Sabharwal & Others Vs. State of Punjab & Others (supra) and also in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) whereby the Supreme Court directed the Union of India to implement the principles laid down in the case of R.K. Sabharwal & Others Vs. State of Punjab & Others (supra) from 10.2.1995 i.e. from the date of judgment in the said case; that the respondents should have implemented the impugned circular from 10.2.1995 instead of 30.1.1997, an artificial date which was picked up by the respondents; that the impugned cut-off date has no relevance at all with the object that has to be achieved i.e. correct policy of fixing seniority at an earliest; that the judgment in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) is a judgment in rem and not in persona.

The petitioner also filed additional written submissions and contended that the impugned circular Annexure P-5 dated 17.11.1997 may be simply quashed on the ground of arbitrary cut-off date and the petitioner may be given consequential relief, as sought for in view of the judgment in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) which is a prospective ruling. In the alternative, it is submitted that any reasonable date nearby to the date of judgment in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) i.e. 10.10.1995 may be fixed as cut-off date.

5. Ms. Narinder P.K. Singh, learned counsel for the respondents, submit- ted that the instructions to implement circular No. 41/97 dated 17.11.1997 has been pursuant to the principle laid down in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) and that the cut-off date for the implementation of the same has been fixed pursuant to the communication as regards the fixation of seniority of Scheduled Caste/Scheduled Tribe officers promoted earlier vis-a-vis. general candi- dates promoted later.

6. In the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra), while dealing with the case of the railway employees of category of guards in the railway service viz. Grade-C, Grade-B, Grade-A and Grade-A Special and considering the rules of reservation in railway services in the category of railway guards and the circulars/instructions, it has been held that the roster would only ensure the prescribed percent- age of reservation but would not effect seniority while the reserved candi- dates entitled to accelerated promotions would not be entitled to conse- quential seniority. That the seniority between general and reserved candi- dates in promoted category would continue to be the same as was at the time of initial appointment (Grade-C) provided both belong to the same grade (and not where the reserved candidate reached the next higher grade by virtue of the accelerated promotion). Once total number of reserved posts in a cadre are filled up, the roster would become inoperative. The percent- age of reservation would be worked out in relation to the number of posts which form the cadre strength and not in relation to number of vacancies. These principles would be operative from the date of judgment in the case of R.K. Sabharwal & Others Vs. State of Punjab & Others (supra) i.e. 10.2.1995.

7. In the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra), in paragraph 29, it has been observed that “The Constitu- tion Bench has, however, made it clear that the rule enunciated by them shall operate only prospectively (vide Para 11)……….Be that as it may, as a result of the decision in R.K. Sabharwal and the views/finding record- ed by us herein above, the following position emerges:

   (i) Once the number of posts reserved for being filled by re-   served category candidates in a cadre, category or grade (unit    for application of rule of reservation) are filled by the opera-   tion of roster, the object of rule of reservation should be    deemed to have been achieved and thereafter the roster cannot be    followed except to the extent indicated in para 5 of R.K. Sabhar-   wal. While determining the said number, the candidates belonging    to the reserved category but selected/promoted on their own merit    (and not by virtue fo rule of reservation) shall not be counted    as reserved category candiates. 
 

   (ii) The percentage of reservation has to be worked out in rela-   tion to number of posts in a particular cadre, class, category or    grade (unit for the purpose of applying the rule of reservation)    and not with respect to vacancies. 
 

   (iii) So far as Railway Guards in Railway service are concerned -    that is the only category we are concerned herewith - the senior-   ity position in the promoted category as between reserved candi-   dates and general candidates shall be the same as their inter se    seniority position in Grade 'C' at any given point of time pro-   vided that at that given point of time, both the general candi-   dates and the reserved category candidates are in the same grade.    This rule operates whether the general candidate is included in    the same batch of promotees or in a subsequent batch. (This is    for the reason that the circulars/letters aforesaid do not make    or recognise any such distinction.) In other words, even if a    Scheduled Caste/Scheduled Tribe candidate is promoted earlier by    virtue of rule of reservation/roster than his senior general    candidate and the senior general candidate is promoted later to    the said higher grade, the general candidate regains his seniori-   ty over such earlier promoted Scheduled Caste/Scheduled Tribe    candidate. The earlier promotion of the Scheduled Caste/Scheduled    Tribe candidate in such a situation does not confer upon him    seniority over the general candidate even though the general    candidate is promoted later to that category." 
 

   In paragraph 30, it is observed that "if the above three rules    are observed and followed, there may not remain much room for    grievance on the part of the general candidates. While in the    very scheme of things, it is not possible to give retrospective    effect to these rules - a fact recognised in R.K. Sabharwal - the    above rules, operated conjointly, should go a long way in main-   taining a balance between the demands of merit and social jus-   tice. 
 

   In paragraph 33, it is observed ".........that the fact remains    that the situation - assuming that it is what is described by the    general candidates - cannot be rectified with retrospective    effect now. The Constitution Bench in R.K.Sabharwal too has    directed that the rule enunciated therein shall have only pro-   spective operation. So far as the present appeals are concerned,    it is sufficient to direct that the railway authorities shall    hereinafter follow rules (i), (ii) and (iii) (stated in para    No.29) with effect from the date of judgment in R.K.Sabharwal's    i.e. 10.2.1995."   
 

8. As far as the implementation of the impugned circular No.41/97 dated 17.11.1997 whereby the cut-off date is fixed as 30.1.1997 is concerned, the same is against the principle and spirit of the judgments in the case of R.K. Sabharwal and Union of India & Others Vs. Virpal Singh Chauhan & Others (supra) since both the judgment aim at correcting the error/mistake in fixing the correct seniority of General Category employee as well as Reserved Category, OBC in light of the rules, principles stated therein, reproduced above. There does not seem any logic/rational in fixing 30.1.1997 as the cut off date for implementing the circular No. 41/97 dated 17.11.1997. Now, when the seniority is required to be refixed in light of the principle in the case of Union of India & Others Vs. Virpal Singh Chauhan & Others (supra), then in that case the effective date of circular No. 41/97 should be at least within reasonable time of the date of judgment in Virpal Singh Chauhan’s case i.e. 10.10.1995. It is irrelevant that in Virpal Singh Chauhan’s case the Supreme Court gave directions only to Indian Railway. What is to be seen is what is the principle laid down by the Supreme Court in the matter of fixation of seniority in the cases like the present one. The present case is fully covered by the principle laid down in the case of Virpal Singh Chauhan. And again the respondent did modify the policy of fixing seniority on promotion (page 3 of Annexure P-5) but gave effect to the same from 30.1.1997 vide circular No.41/97 dated 17.11.1997. The object of circular No. 41/97 is obviously to correctly fix the seniority on promotion in light of the principle and spirit of the judgment in Virpal Singh Chauhan’s case. Now fixing 30.1.1997 as the effec- tive date of circular No. 41/97 would be nothing but arbitrary and having no nexus between the object and spirit of circular No. 41/97 and it’s effective date namely 30.1.1997.

9. The above discussion would reveal that the effective/cut-off date 30.1.1997 as regards circular No.41/97 needs to be quashed. The circular No. 41/97 dated 17.11.1997 is required to be made effective within reasona- ble time of the judgment in the case of Virpal Singh Chauhan. In my view, keeping the reasonable margin of time, the effective date of the circular No.41/97 dated 17.11.1997 should be around three months after the date of judgment in the case of Virpal Singh Chauhan and that is with effect from 31.1.1996. Having regard to the facts, as above, the petitioner would be entitled to the cost in the petition.

Ordered accordingly. Petitioner’s cost is quantified at Rs. 5,000/-.

10. Petition disposed of.


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