IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1987 of 2007()
1. THE FOOD CORPORATION OF INDIA,
... Petitioner
2. THE ZONAL MANAGER,
3. THE SENIOR REGIONAL MANAGER,
Vs
1. M.K. BHASKARAN,
... Respondent
For Petitioner :SRI.O.V.RADHAKRISHNAN (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :17/07/2009
O R D E R
K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.
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W.A.Nos. 1987 & 1983 OF 2007
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Dated, this the 17th day of July, 2009
J U D G M E N T
~~~~~~~~~~~~
Balakrishnan Nair,J.
W.A.No. 1987 OF 2007:
The respondents 1 to 3 in the Original Petition are the
appellants. The respondent herein was the writ petitioner.
2. The brief facts of the case are the following:
The respondent/writ petitioner was a Class IV employee
under the 1st appellant, Food Corporation of India. Next
promotion post of Class IV employees is Assistant Grade-III.
There is a quota of 1:4 between promotion and direct
recruitment for filling up the vacancies arising in the cadre of
Assistant Grade-III. Between 1978 and 1986, there was a ban
against direct recruitment. But, a few persons were appointed
under the dying-in-harness scheme and sports quota in those
years. The respondent/writ petitioner was appointed as
Assistant Grade-III on 26.6.1978. It is common ground that he
was so appointed regularly in the quota available for regular
promotees. Between 1978 and 1986, 32 persons were
appointed on compassionate ground and in sports quota. One
W.A.No.1987 & 1983/2007 2
Mr.Ramakrishna T.S. was appointed on 7.12.1978 and the
next appointee, Smt. Maruthi.K., was appointed on 22.8.1980.
Others were appointed on various dates between 1981 and
1986. When a provisional seniority list of Assistant Grade-III
was published by the appellants, those direct recruits between
1978 and 1986 were placed above the respondent/writ
petitioner. Feeling aggrieved by his position in the seniority
list, he filed Ext.P4 representation and thereafter, the Writ
Petition was filed seeking appropriate reliefs.
3. The official respondents, who are appellants herein,
resisted the reliefs sought contending that seniority of direct
recruits and promotees will have to be determined according
to the rotation of vacancies as between them based on the
respective quota. The relevant rule relied on by them was
Regulation 16(3) of Staff Regulations, 1971 of the Food
Corporation of India. The relevant portion of Regulation 16(3)
reads as follows:
“(3) Relative seniority of direct recruits and
promotees:
(i) The relative seniority of direct
recruits and promotees will be determined
according to the rotation of the vacancies asW.A.No.1987 & 1983/2007 3
between direct recruits and promotees as
based on the quotas reserved for direct
recruitment and promotion respectively.”
4. But the learned Single Judge, after hearing both
sides, allowed the Writ Petition, mainly, placing reliance on
the decisions of the Apex Court in Direct Recruit Class II
Engg.Officers’ Association v. State of Maharashtra
[AIR 1990 (SC) 1607], N.K.Chauhan v. State of Gujarat
[AIR 1977 (SC) 251] and Suraj Parkash Gupta v. State of
Jammu & Kashmir [AIR 2000 (SC) 2386]. Feeling aggrieved
by the judgment, the Food Corporation of India has filed this
appeal. The judgment of the learned Single Judge was a
common judgment disposing of a connected writ petition filed
by another promotee on identical ground. Against the
judgment in O.P.No.1031/2000, the Corporation has preferred
Writ Appeal No.1983/2007. There was representative
impleadment of affected parties in the Original Petition.
Notice to all were taken out by paper publication.
Notwithstanding that, none of the affected parties have come
forward to challenge the judgment of the learned Single
Judge. Only the official respondents have chosen to file the
appeals.
W.A.No.1987 & 1983/2007 4
5. The learned senior counsel, Sri. O.V.Radhakrishnan,
who appeared for the appellants, submitted that the
interpretation given by the learned Single Judge to the
operation of the Quota and Rota rule will have far reaching
repercussions, as far as the Corporation is concerned. Several
other seniority lists will have to be disturbed and therefore,
even in the absence of any challenge by the party
respondents, the official respondents have chosen to file this
Writ Appeal. The learned senior counsel mainly canvassed
before us the point that there was no breaking down of quota
rule in this case and therefore, the direct recruits appointed
between 1978 and 1986 are entitled to get placement above
the respondents/writ petitioners, as there was vacancies
available in the direct recruitment quota to accommodate
them. In support of this submission, the learned counsel relied
on the decisions of the Apex Court in Union of India v.
S.D.Gupta [1996(8) SCC 14], M.Subba Reddy v. A.P.SRTC
[2004(6) SCC 729] and Aravinder Singh Bains v. State of
Punjab [2006(6) SCC 673]. The special reference was made
to the observation of the majority in M.Subba Reddy v.
A.P.SRTC (supra) at paragraph 9 of the judgment, wherein it
was observed as follows:
W.A.No.1987 & 1983/2007 5
“Where there is inaction on the part of the
Government or employer or imposed ban on
direct recruitment in filing up the posts
meant for direct recruits, it cannot be held
that the quota has broken down.”
6. The learned counsel for the respondent/writ
petitioner, on the other hand, took us through three decisions
relied on by the learned Single Judge. Special reference was
made to the Constitution Bench decision in Direct Recruit
Class II Engg.Officers’ Association v. State of
Maharashtra (supra). The learned counsel made special
mention of points E & F at paragraph 44 of the said decision.
The relevant portion reads as follows:
“(E) Where the quota rule has broken down
and the appointments are made from one
source in excess of the quota, but are made
after following the procedure prescribed by
the rules for appointment, the appointees
should not be pushed down below the
appointees from the other source inducted in
the service at a later date.
(F) Where the rules permit the authorities
to relax the provisions relating to the quota,
ordinarily a presumption should be raised that
there was such relaxation when there is a
deviation from the quota rule.”
W.A.No.1987 & 1983/2007 6
The learned counsel submitted that the above decision of the
Constitution Bench cannot be diluted by the observation in
M.Subba Reddy v. A.P.SRTC (supra). The learned counsel
also brought to our notice a recent decision of the Apex Court
in B.S.Mathoor v. Union of India [AIR 2009(SC) 137]. In
that case, it was observed that if there is delay in making
direct recruitment, the same would show that quota rule has
broken down. Special reference was made to paragraph 24,
wherein it was held as follows:
“24. A perusal of seniority list which is based
on the principle of Rota Quota would show
that the Rota Quota remains broken down
even today. It may be pertinent to mention
here that steps for appointment of direct
recruits were actually taken by the High
Court many years before their appointment
actually took place but the appointments came
in place only after considerable delay. Though
as per law the direct recruits cannot be
faulted with for the delay caused in their
appointments, the fact remains that delay in
appointments should not cause any
disadvantage to the incumbents appointed in
the service. We need not go into all these
aspects because the fact that has emerged is
that the appointment of direct recruits and
promotee officers in the service have not
taken place simultaneously. This only shows
that Rota Quota has remained broken down
right from the inception of service till now.
W.A.No.1987 & 1983/2007 7
There is absolutely no change in the factual
position relating to breakdown of Rota Quota
even after the decision of this Court in O.P.
Singla and Rudra Kumar Sain’s cases. There is
no reason to depart from the said principle
and take a shelter under the O.M. of DOPT
dated 3.7.1986 for determining the inter se
seniority of the officer of DHJS.”
Therefore, the learned counsel prayed for dismissing the
appeal.
7. In this case, it is the admitted position that direct
recruitment did not take place between 1978 and 1986.
Direct recruitment can be done away that only by invoking the
power of the competent authority to relax the rules. So, in
this case, since for eight years there was no direct
recruitment, it was safely concluded that the quota has broken
down and therefore, the learned Single Judge rightly granted
relief to the respondent/writ petitioner. The observations in
M.Subba Reddy v. A.P.SRTC (supra) cannot dilute the
declaration made by the Constitution Bench in Direct
Recruit Class II Engg.Officers’ Association’s case (supra).
Further, we notice that the promotions in M. Subba Reddy’s
case (supra) were granted on temporary basis in excess of the
quota. In this case, it is common ground, as noticed earlier,
W.A.No.1987 & 1983/2007 8
that the respondent/writ petitioner was appointed regularly in
the quota available for promotees. So, the observations in
M.Subba Reddy v. A.P.SRTC (supra) can not be applied
mechanically. But, we clarify that if anybody was directly
recruited in the year of promotion of the respondent that
direct recruit will be entitled to get seniority over him. In this
case, from the materials on record, we notice that only one
person was directly appointed in 1978 and the next
appointment was two years thereafter in 1980 only. The
apprehension of the appellants, that this decision of the
learned Single Judge will effect other seniority lists is
unfounded. In this case, there is a clear case of quota
breaking down, as a result of ban of direct recruitment for
eight years. So, this decision is rendered on the special facts
of this case.
In the result, subject to the above clarification, this Writ
Appeal is dismissed.
W.A.No. 1983 OF 2007
The facts of this case are identical to the facts of
W.A.No.1987/2007. In this case, the 1st respondent was
W.A.No.1987 & 1983/2007 9
promoted on 8.6.1979. If anybody was directly recruited in
that year, that direct recruitee will get seniority over the 1st
respondent/writ petitioner. Subject to that clarification, this
Writ Appeal is also dismissed.
(K.BALAKRISHNAN NAIR, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
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