Prateek Kumar Singh and Ors. v. Food Corporation of India and Anr.

15. Insofar as advertisement dated February 27, 2021 is concerned, Mr. Pudussery justified the advertisement as the amendment to the Regulations came into force only on June 17, 2021 during the recruitment process. It is a settled law that recruitment has to be done in accordance with the un-amended Regulations. Thus, the recruitment has to be done in accordance with the quota rule as provided in the un-amended Staff Regulations, which is 66%, i.e., 2 /3 promotions and 33%, i.e., 1 /3 direct recruitment. He relied upon the judgments in the cases reported as N. T. Devin Katti and Ors. v. Karnataka Public Service Commission and Ors., (1990) 3 SCC 157; Dr. P.N. Dubey and Ors. v. State of MP, (1997) 3 SCC 497 and Assam Public Service Commission and Ors. v. Pranjal Kumar Sarma and Ors., 2019 SCC Online SC 1526.

16. He justified the direct recruitment at the level of AGM to bring in fresh and more qualified talent as the basic qualification for direct recruitment as AGM is a post graduate degree. Also, the policy is designed to encourage the existing staff to better their qualifications and be eligible for direct recruitment as AGMs. For this reason, age relaxation of upto 50 years has been prescribed in the advertisement for direct recruitment for inhouse candidates while the prescribed age limit is between 28 to 39 years except for Legal and Medical Officers where the prescribed upper age limit is 33 years and 35 years respectively. He highlighted the cadre strength of Managers, AGMs, DGMs and GMs as under:- Managers: 6206 Asst. General Managers: 770 Deputy General Managers: 202 General Managers: 98

17. Thus, this pyramidal structure reduces the chances of promotion at all the levels. This structure cannot be changed due to the nature of work in the Corporation. According to Mr. Pudussery, against the advertisement dated February 27, 2021, 1,38,549 applications have been received. The written examinations are over and the candidates who have been shortlisted, have been called for interview / physical verification between August 16, 2021 and September 01, 2021.

18. The stand of the petitioners that they are not getting any benefit on account of upgradation of scales is not factually correct because their original scale was Rs.40000-140000 and the upgrades scale is Rs.50000-160000. This is being granted to all the Managers on completion of five years on the post of Manager. Thus, they are being given the scales originally drawn by AGMs which is Rs.50000-160000. On account of this, all the other posts above them have to be also upgraded to maintain parity.

19. The grievance of the petitioners that there are lack of chances of promotion on account of lack of vacancies is concerned, he stated that the chances of promotion are not a condition of service and confer no right on an employee and the law is well settled in a number of judgments including the judgment reported as Paluru Ramkrishnaiah and Ors. v. Union of India and Anr., (1989) 2 SCC 541 and connected writ petitions.

20. On the plea of Mr. Venkataramani that Assured Career Progression Scheme needs to be granted to the petitioners, Mr. Pudussery stated that the said Scheme is applicable only to the Central Government / State Government employees and has not been introduced in FCI either for the medical or the engineering cadres. Some modified schemes of upgradation either by introducing new scales for granting time bound promotion or by granting two increment has been introduced in the FCI both for the unionized category and as per Circular dated February 27,

2021. Similar benefits have been extended to the Managers, a reference of which has already been made above.

21. On the plea of Mr. Venkataramani that the vacancies need to be reviewed and the said vacancies need to be filled up under the promotion quota, Mr. Pudussery has relied upon the judgment in the cases of Dr. P.N. Dubey (supra) and Assam Public Service Commission (supra) to state that such a submission need to be rejected. Mr. Pudussery seeks the dismissal of the writ petition.

22. Having heard the learned counsel for the parties and perused the record and the written submissions filed by the counsels, at the outset, I may state that the prayers at (a) & (b) of the prayer clause, in view of the notification dated June 17, 2021, does not survive for consideration as the direct recruitment quota from Manager to AGM has been decreased from 331 /3% to 25%. Resultantly, the promotion quota through selection and accelerated promotion has been fixed at 75% (65%+10%). If the plea of the petitioners is that the complete quota of direct recruitment of 25% needs to be merged with promotion quota then such a prayer cannot be granted for the following reasons:

(i) It is the case of the respondent FCI that direct recruitment quota at the level of AGM is to bring fresh and more qualified talent for which they want to retain direct recruitment quota.

(ii) No Mandamus can be issued to the respondent FCI to frame regulations in a particular manner as it is for the employer to decide manner of recruitment to be made in an organisation.

(iii) The Managers having the requisite qualifications, with age relaxation up to 50 years can also apply for appointment under the direct recruitment quota.

(iv) There is a provision for accelerated promotion to the extent of 10%.

(v) In effect, a Manager, apart from having his own channel of promotion, based on selection can also seek appointment as AGM through direct recruitment (below 50 years) / accelerated promotion which in fact means, that he can seek appointment to the post of AGM under all three categories / quota / channel.

23. Coming to the submission of Mr. Venkataramani that the advertisement dated February 27, 2021 need to be reviewed / amended / modified / recalled completely in view of the notification dated June 17, 2021 decreasing the quota of direct recruitment from 331 /3 % to 25%, is concerned, the same is unmerited, for the reason, that the advertisement was issued much before the regulations were amended in June, 2021 when the direct recruitment quota was 331 /3%. The respondent FCI is within its right to notify the vacancies in terms of the quota which existed then. I may refer to the judgment of the Supreme Court in the case of Dr. P.N. Dubey & Ors. (supra) on which reliance has been placed by Mr. Pudussery, wherein the Supreme Court has held as under: “This appeal by special leave arises from the judgment of the Madhya Pradesh High Court, Jabalpur Bench, made on 10-2-1981 in Miscellaneous Petition No. 812 of 1980. The appellants were working as Veterinary Assistant Surgeons in the Madhya Pradesh Veterinary Services Gazetted. The Madhya Pradesh Veterinary Services is governed by the rules called Madhya Pradesh Services (Gazetted) Recruitment Rules, 1966. The channel of recruitment to the post of Assistant Director Veterinary Service was from two sources, namely, direct recruitment and promotion in the proportion of one is to one. An advertisement came to be made by the Madhya Pradesh Public Service Commission of 28 posts of Assistant Directors. The appellants had challenged the validity of the notification and selection on the ground that the Government had, by then decided, to provide recruitment to the post of Assistant Directors by promotion with 100% from the feeder cadre, namely, Veterinary Assistant Surgeon. It is found, as a fact, by the High Court that as on the date of the notification, the Rules were not amended. Unamended rules provide that the recruitment was to be made from two sources, namely, direct recruitment and by promotion in the ratio of one is to one. Consequently, the advertisement for recruitment of Assistant Directors by the Public Service Commission and selection and appointment of the candidates were valid in law. The same came to be challenged in this appeal. It is seen that undoubtedly though decision was taken by the Government, the Rules have not been amended. Therefore, the advertisement made for recruitment to fill up the posts of Assistant Directors, by direct recruitment and consequential selection as per the unamended rules for the 50% of the vacancies earmarked for direct recruitment was in accordance with the aforesaid Rules. As a consequence, the view taken by the High Court is consistent with the Rules. We do not find any illegality warranting interference.” (Emphasis supplied)

24. Further in the absence of any restraint order by this Court, the advertisement has been issued, around 1,38,549 applications have been received; written examination has been conducted and candidates who have been shortlisted have been called for interview / physical verification between August 16, 2021 and September 1, 2021. The process having been initiated with the issuance of advertisement and selection being in progress, it is too late in the day to interdict the same. The plea of Mr. Venkataramani that no candidate applying for selection as a direct recruit has any vested right though sounds appealing but, in the facts, the plea need to be rejected.

25. Insofar as the judgments relied upon by Mr.Venkataramani in support of this submission (i) that vacancies even if exist, are not required to be filled; (ii) the vacancies can be reduced or recalculated during the selection process (iii) the seniority can be redetermine during the selection process, are concerned, in the case of Shankarsan Das (Supra), the Supreme Court was concerned with the facts, wherein the appellant was selected in Combined Civil Services Examination held by the UPSC for appointment to Civil Services including IPS and Police Service, Group B.

26. The examination was held in October, 1977 and the result was announced in May, 1978. A combined merit-list for the IPS and the Police Services (Group B) was announced, which included the name of the appellant therein. Out of the total 70 vacancies in the IPS, 54 were of general category and remaining 16 reserved for scheduled castes / scheduled tribes. The position of the appellant in the merit-list was not high enough to be included in the IPS and he was offered appointment to Delhi Andaman and Nicobar Police Service (‘DANIP’ for short) (in Police Service Group-B), which he accepted. In June, 1979, 14 vacancies arose in the IPS due to the selected candidates not joining the service. Out of the 14, 11 were in general category and 3 in reserved category. The 3 vacancies in reserved category were filled up by the candidates who were appointed in DANIP service, but no appointments were made to the general category vacancies. The appellant made a representation praying that the vacancies in the general category should also be filled up through the candidates appointed in the DANIP services. The petition of the petitioner before this Court was dismissed.

27. The case of the appellant therein before the Supreme Court was that since several vacancies in the general category of the IPS remained unfilled, he was entitled to be appointed in one of them and the authorities were not right in rejecting his representation. The Supreme Court held, even if number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily, the notification merely amounts to an invitation to the qualified candidates for application to recruitment and on their selection, they do not acquire any right to the posts. Unless the relevant recruitment rules indicate so, the State is under no obligation to fill up all or any of the vacancies. Further the Supreme Court held that it does not mean that the State has a licence to act in an arbitrary manner. The decision not to fill up the vacancies has to be taken in a bonafide for appropriate reasons. The Supreme Court held, in these facts, there is no arbitrariness and justified the filling up of the reserved vacancies on account of special circumstances only. This judgment has no applicability to the case in hand, more specifically when the facts are not common. In the case relied upon, the selection has taken place and it is after selection, the vacancies have not been filled up for good valid reasons, but in the case at hand, the advertisement has been issued to fill up vacancies before the amendment of the regulations and selection process undertaken and is at the final stage.

28. In Anupal Singh (supra), the Supreme Court was concerned with the facts where the Uttar Pradesh Public Services Commission issued an advertisement on October 22, 2013 inviting applications for 6628 vacancies in the Subordinate Agricultural Services. The appellant as well as many private respondents applied for and appeared for the written examination held on March 30, 2014. As per the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, specified percentage of vacancies have been reserved for different categories, viz., SC- 21%, ST-2% and OBC-27%. It was brought to the notice of the State Government that there was a wrongful calculation of category-wise vacancies in the earlier requisition and therefore the earlier requisition was required to be revised in order to fulfil the requirement of Constitution and statutory mandate of reservation. The State of UP after taking opinion, approved the revised vacancies for different categories and accordingly sent the revised requisition to the Uttar Pradesh Public Service Commission. The issue which arose for consideration was, whether the revised requisition could have been sent, thereby decreasing the number of vacancies to be filled. The Supreme Court justified the decision, holding that the same was only to rectify the wrongful calculation of the number of vacancies in different categories and to comply with the requisite percentage of quota of reservation in different categories. This judgment relied upon by Mr. Venkataramani in support of his submission that the vacancies can be revised would not be applicable in the facts of this case and also in view of my conclusion above, inasmuch as when the vacancies were advertised, the process had already been initiated on the basis of the position which existed under the regulations then and the same is at the final stage.

29. In so far as the judgment in the case of the A.K. Mahajan (supra) is concerned, the Supreme Court was concerned with the facts where respondents working as Private Secretaries in this Court were aggrieved by the notification dated August 7, 1995 through which Recruitment Rules were amended retrospectively from July 1, 1993 providing that there would be separate seniority list for Private Secretaries, Court Masters and Superintendents and further promotion as Assistant Registrar would be considered by representation of vacancies amongst these feeder cadres namely Private Secretaries, Court Masters and Superintendents. The amendment was made to correct the imbalance in the previous system where there was combined seniority list of Private Secretaries, Court Masters and Superintendents and most of the posts of Assistant Registrars went to the share of Private Secretaries. In the said case, though prior to the amendment, interview on the basis of combined seniority list had already been held, results had been declared, the respondents did not challenge the trifurcation of the combined seniority list into separate seniority list of Private Secretaries, Court Masters and Superintendents, but confined their challenge to retrospectivity of the amendment. Their contention was that their right to be considered for promotion has already been crystalized which were sought to be taken away by retrospective operation of the notification dated August 7, 1995. Reliance in that regard was placed on the judgment of the Supreme Court in the case of Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors., (1997) 6 SCC 623. The Supreme Court held that the amendment having retrospective operation and the date fixed for giving effect to said amendment is relevant as it was immediately after the last promotion was effected, there is no absolute, accrued or vested right of consideration which could not be effected by retrospective amendment. The only condition is that such retrospective amendments should be constitutionally valid.

30. In the case at hand, there is no retrospective amendment of the regulations, rather the Notification dated June 17, 2021, states, amendment is from the date of Notification. Concedingly, the Notification is not under challenge. The Notification has a prospective effect and shall not have a bearing / nor shall have any effect on the advertisement already issued, under the old regulations. Hence the judgment has no applicability to the case in hand.

31. During the course of his submissions, Mr. Venkataramani has also referred to judgments in the cases of H.S. Grewal (supra); Deepak Agarwal (supra); Nikhil Ranjan Chakraborty (supra); Krishna Kumar (supra); Rajasthan State Sports Council (supra) and K.K. Roy (supra). The Supreme Court in these cases has held that there is no universal rule or absolute obligation that the vacancies are to be filled invariably according to the law as existing on the date when the vacancies have arisen. I am afraid this proposition of law has no applicability to the facts of this case. Reliance on the judgments overlooks the fact that in the case in hand the vacancies have arisen before amendment of regulations and the advertisement for filling up the said vacancies has also been issued much prior to the amendments. The plea of Mr. Venkataramani that sufficient indication has been given in the advertisement that the selection / appointment will be subject to the vacancies in terms of clause 20 and 26, hence, the vacancies cannot be filled by direct recruitment is unmerited for the reason that after the issuance of the advertisement, the notification issued on June 17, 2021, amending the regulations specify the amendments to be effective from the same date, i.e., prospective, which means the amendment has no bearing on the vacancies under direct recruitment quota which existed before that date. It follows, the advertisement shall govern the recruitment to the post of AGM under direct recruitment quota as per the vacancies available.

32. In so far as the submission of Mr. Venkataramani that the petitioners need to be given the benefit of Assured Career Progression Scheme, which benefit was given to the unionised employees (Group C) and Medical Officers, I agree with the plea of Mr. Pudussery that the said Scheme is applicable only to the Central Government and State Government employees. It is his submission that the scheme has not been introduced in the respondent FCI for medical or engineering cadres. Nothing has been placed before this Court to show that the Assured Career Progression Scheme has been introduced in the medical and engineering cadres. In any case, petitioners having promotional avenues to AGM like promotion based on selection, accelerated promotion Scheme and direct recruitment wherein the upper age is relaxed till the age of 50 years for Manager and coupled with the fact that an upgraded pay-scale of Rs. 50,000 – Rs.1,60,000/is available for the Managers after completion of five years, surely the demand for Assured Career Progression Scheme is not justified.

33. The plea of Mr. Venkataramani that the Manager should also be given the upgraded scale like the one given to AGM / DGM is concerned, the same is not appealing as granting of similar benefit as that of AGM / DGM shall have repercussion on the pay-scales as being given to the higher posts in the hierarchy; and in any case, it is not for this Court to direct the grant of further upgraded scale to the petitioners. It is for the respondents to provide appropriate recruitment process to higher posts / grade, and the Court cannot issue Mandamus in that regard. This is so held by the Supreme Court in the case of State of Himachal Pradesh & Ors. v. Satpal Saini, (2017) 11 SCC 42, wherein the Supreme Court has held as under: “8. In State of H.P. v. Parent of a Student of Medical College [State of H.P. v. Parent of a Student of Medical College, (1985) 3 SCC 169] this Court deprecated the practice of issuing directions to the legislature to enact a law:

The same principle was followed in Asif Hameed v. State of J&K [Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364] where this Court observed that:

In Union of India v. Assn. for Democratic Reforms [Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294] this Court observed that:

9. Similarly, in Supreme Court Employees' Welfare Assn. v. Union of India [Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187], this Court held that a court cannot direct the legislature to enact a particular law. This is because under the constitutional scheme, Parliament exercises a sovereign power to enact law and no other authority can issue directions to frame a particular piece of legislation. This principle was reiterated in State of J&K v. A.R. Zakki [State of J&K v. A.R. Zakki, 1992 Supp (1) SCC 548], where this Court observed that:

In V.K. Naswa v. Union of India [V.K. Naswa v. Union of India, (2012) 2 SCC 542], this Court referred to a large number of decisions and held that:

10. A discordant note had been struck by a Bench of two Judges in Gainda Ram v. MCD [Gainda Ram v. MCD, (2010) 10 SCC 715]. A direction was issued to the legislature to amend legislation before a particular date. The Constitution Bench in Manoj Narula v. Union of India [Manoj Narula v. Union of India, (2014) 9 SCC 1] held that this direction by a Bench of two Judges was contrary to the law laid down earlier by three Judges. In that context, the Constitution Bench has conclusively enunciated the legal position thus:

11. Having regard to the settled position, the impugned directions are unsustainable.”

34. Mr. Venkataramani has relied upon the judgments of the Supreme Court in the cases of Triloki Nath Khosa (supra); Council of Scientific and Industrial Research (supra); O.Z. Hussain (supra) and Parashotam Das Bansal (supra) in support of his submission for grant Assured Career Progression Scheme / Promotion Channels to remove stagnation. I am afraid that all the four judgments have no applicability in the facts of this case. In those cases, the Supreme Court has given direction to the respondents for framing of promotion rules where none existed. It is not such a case here, as is clear from the above, the promotion regulations exist in the organization and the petitioners who are working as Managers can apply for all channels of recruitment like selection / accelerated promotion / direct recruitment (below 50 years). I note the Supreme Court in paragraph 13 in the judgment of Parashotam Das Bansal (supra) has held that it is only if there is no channel of promotion in respect of a particular group of officers, a Court can issue direction for framing of a Scheme, but shall not interfere with the operation of existing channel of promotion. The Supreme Court has held thus: “If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country.” (Emphasis supplied)

35. From the above, it is clear, this Court cannot interfere with the operation of the existing channel (s) of recruitment to the post of AGM. In view of my discussion above, I do not see any reason to grant the reliefs in the petition. The petition is dismissed. No costs. CM Nos. 8916/2021 & 20072/2021 In view of my conclusion in the writ petition, the applications are dismissed as infructuous.

V. KAMESWAR RAO, J