Full Text
Date of Decision: 26th July,2016
RAM KISHORE VASHISHT & ANR ..... Petitioners
Through: Mr. Vir Bahadur, petitioner No.2.
Through: Mr. Ajit Pudussery and Ms. Shruti Sarma Hazarika, Advs.
JUDGMENT
1. This petition has been filed by two persons namely Ram Kishore Vashisht and Vir Bahadur. In the order dated December 4, 2014, it is noted by this Court that the relief in the present petition is confined to petitioner No.2 alone. That apart, in the order dated February 11, 2014, the only petitioner namely Vir Bahadur has confined the writ petition to prayer, made in clause (iii) coupled with consequential prayers, which are set out in clauses (vi) and (vii). I reproduce the said prayers as under:- “(iii) issue a writ, order or direction in the nature of Mandamus or any other appropriate writs, orders or directions, directing the respondents to appoint the petitioners in the Grade of Asstt. Grade I in the movement cadre in the Panel of 1993;
(vi) pass/issue any other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case; 2016:DHC:5231
(vii) award the costs of the present petition in favour of the petitioners.”
2. The case of the petitioner No.2 is that he was appointed in the respondent No.1 organisation in the year 1973 as Assistant Grade-III. He was promoted in the year 1982 as AG-II and in 1991 as AG-I. On June 19, 1995, the FCI (Staff) Regulations, 1971 with regard to the movement cadre were amended on the following terms:- CATEGORY-III POSTS (i) 50% by lateral deployment ASSISTANT GRADE-I (Movt.) from the godown cadre, & (ii) 50% by lateral deployment from General Administration Cadre.
3. The case of the petitioner No.2 is that in terms of the Regulations, he was required to be appointed/inducted/transferred (in short ‘appointed’) laterally as Assistant Grade-I (in the movement cadre). It is his case, one Mrs. Vijay Laxmi Lalla, a junior to him was appointed in movement cadre, though her appointment in the movement cadre was subsequently cancelled. According to him, the vacancy, which accrued because of the cancellation of the appointment of Mrs. Vijay Laxmi Lalla in the movement cadre, the same need to be filled by him.
4. The case of the respondents in the counter affidavit is, the petitioner No.2 Vir Bahadur, though had applied for appointment, he was at serial No.17 in the panel and therefore, his name was not included. That apart, it is stated that since the movement cadre starts from Assistant Grade-I and the petitioner No.2 was holding the lower rank of AG-III, the same could not have been counted as experience in the movement cadre, particularly since the work performed is diary despatch work. According to the respondents, the only experience relevant is, at the level of AG-I.
5. Mr. Ajit Pudussery has drawn my attention to the minutes of the proceedings held on September 28, 1995 (page 268 of the paper-book) to contend that the selection for appointment to movement cadre was made on the basis of seniority-cum-fitness. He would also state that the Committee has evolved the following criteria for induction:-
(i) On having very good CR with experience has been selected with due consideration of seniority (none amongst the optees was found to be with outstanding CR).
(ii) Anyone having involved in vigilance case has not been considered for induction into movement cadre.
(iii) If sufficient number of experienced optees are not available to fill up the complete vacancies, the non-experienced optees having very good record (CR) have also been considered for induction into movement cadre with due consideration of seniority.
6. According to him, there were total 16 vacancies for the year 1993. 52 options were received from depot cadre and 18 options were received from General Administration Cadre, out of which following persons from the General Administration Cadre, who were senior to the petitioner No.2 were appointed.
(i) Avinash Chander Sehgal.
(ii) P.P. Balakrishnan.
(iii) Mrs. Neelam Chhabra.
(iv) Nanak Chand Vanjani.
(v) Ashok Kumar.
(vi) Anwar Khan.
(vii) Vijay Kumar Kaushal.
(viii) Mrs. Vijay Laxmi Lalla.
7. He states, even though Mrs. Vijay Laxmi Lalla was appointed but later her induction was cancelled. He concede to the fact that Mrs. Lalla was junior to the petitioner No.2. Since there were only eight (8) vacancies at AG-I movement cadre and only eight (8) officers could have been appointed from the General Administration Cadre, the preference to be given to the optees, only when the experienced optees in the movement cadre were not available then only non experienced optees having good record were to be considered and the petitioner did not have the experience in the movement cadre and eight vacancies having been filled, the name of the petitioner No.2 was not considered. He states, when the appointment of Mrs. Vijay Laxmi Lalla was cancelled, the vacancy, which has arisen, could not have been filled by the petitioner No.2 inasmuch as the persons senior to the petitioner No.2 namely Jitendra Mohan Bhardwaj, Gyaneshwar Rai Deepak, Bala Sahai Meena, as can be seen from page 282 of the paper-book would have a prior right for appointment in the movement cadre.
8. During the course of the submissions, the petitioner No.2 would contest the stand of the respondents that he did not have the experience in the movement cadre. He would refer to his application made for induction at AG-I in the movement cadre (page 78) wherein, he has stated that he was working in Claim Cell, which, according to him is part of the movement cadre and working in the Claim Cell, being the relevant experience, his name should have been considered along with the other optees before Mrs. Vijay Laxmi Lalla. This infirmity need to be rectified and he should be given the benefit of appointment in Assistant Grade-I and the consequential benefits, which would arise thereof.
9. The short issue, need to be decided in this matter, is whether the working of the petitioner in the Claim Cell is the relevant experience in the movement cadre, which should have been considered by the respondents for appointing the petitioner No.2 in the said cadre. It is noted, in para 5 of the writ petition, the petitioner has stated as under:- “5. That in pursuance to the requirement of the Movement Cadre of the Respondent-Corporation the petitioner No.2, opted to work in the said cadre and was accordingly deployed in the Claim Cell of the said Cadre from the year 16.4.1974 to 16.2.1977. The said petitioner worked in FSD, Shakti Nagar (Claim Cell), Delhi, w.e.f. 16.4.1974 to 16.2.1977 as Asstt. Grade III and thereafter worked in RO (Claim Cell) Delhi as Ag-III w.e.f 23.2.1981 till 19.5.1982 when the petitioner No.2 was relieved to Headquarters on he being promoted as AG (II) (M). That during the said period of four years the said petitioner has developed expertise in the movement cadre vis-a-vis handling of claim cases and intricacies relating to the movement of food grains, carried out for and on behalf of the Respondent0-Corporation. The various office orders showing the placement of the said petitioner in the claim cell of the said cadre are collectively enclosed herewith and marked as Annexure-A.”
10. The respondents in their counter-affidavit, have in para 5 and 6 stated as under:- “5. The averments made in the corresponding para of the petition are denied. It is submitted that since the Movement Cadre starts from Asstt. Grade-I, the alleged work of the petitioner NO.2 who was holding a much lower rank of AG-III cannot be counted as experience in the movement cadre particularly since the work performed is diary despatch work. In fact it will be pointed out at the time of hearing from the Circulars issued by the Corporation that only experience relevant is at the level of AG-I. It is submitted that posting in claims cell is not a criteria for lateral deployment in the Movement Cadre. The work done by AG-III in Claims Cell is entirely different from the duties performed in the Movement Cadre. In fact during this period the petitioner NO.2 had never opted for the Movement Cadre particularly since he was not eligible to do so. It is submitted that posting to the Movement Cadre at present is through screening by an expert Committee which takes into account the needs of the Corporation’s work, the seniority of the employee concerned and his fitness for the induction as a part of which some consideration is also given to experience.
6. The averments made in the corresponding para of the petition are denied as false and misleading. The petitioner No.1 has not worked in the Movement Cadre as AG-I as falsely claimed by him. It is submitted that merely because he has worked in the Claims Cell he cannot have any claim over induction to the Movement Cadre. Posting is given to employees in various divisions on the basis of exigencies of service and the employees cannot claim any posting as of right. Such posting is done due to administrative exigencies and if such claims are to be satisfied the administration cannot be run. It will also amount to unjust denial of other employees posted in other divisions due to administrative exigencies. Experience at lower levels has never been the criteria for induction into the Movement Cadre. In fact since the induction does not involve any change in status or in pay scale or perks enjoyed but is in the same grade of AG-I, and is only a transfer from one Cadre to the other on submitting option by the employee no employee has a right to claim induction.” Whereas in rejoinder to para 5, the petitioner No.2 has stated as under:- “5. The contents of paragraph under reference are wrong and denied. The contents of corresponding para under reference being true and correct, the same are reiterated. It is, relevant to mention that both the petitioners have expertise in the movement cadre in view of their lateral deployment off and on in the said cadre from their parent cadre. The petitioner No.1 has worked in the movement cadre in the rank of AG-II for six years and in the grade of AG-I for a period of four years during the period since 1993. The petitioner No.1 having gained expertise should have been laterally deployed and furthermore, the said petitioner was also senior to many of the employees so deployed. The petitioner NO.2 has been working in the claim cell of the movement cadre for several years though holding the post of AG-III in the parental department carried out the activities of AG-I while on lateral deployment to the movement cadre. In this regard, the respondent be directed to furnish the record during the period when the petitioner No.2 was working in the movement cadre. The said record would show that the petitioner No.2 was required to lodge the demurrage claim with the Railways. He was also required to handle food grains movement through Subzi Mandi to Shakti Nagar Depot, R.P. Bagh Depot, Sahdara Godown and CTO Depot during the period 16.4.1974 to 16.2.1977. The petitioner No.2 was also required to take ground nut oil tankers booked from Ujjain to Delhi Kishenganj and to release oil tankers to Ganesh Vanaspati Mills, Subzi Mandi, Ghanta Ghar, Delhi for the period 4/74 -2/77. The petitioner also supervised the weighing of the oil tankers at the mil premises and thereafter delivered the goods to the mill upon taking proper receipt. Therefore, it does not behold on the part of the respondent corporation to state that the petitioner was carrying out the duty of diary and despatch only but in fact was carrying out duties of that of AG-I. To further fortify the stand of the petitioner No.2, the office copy of the claim preferred by the said petitioner lying in th district office at Shakti Nagar for the period 16.2.1974 to 16.2.1977 would be called for verification. It would depict the duties carried out by the petitioner NO.2 during his deployment in the said cadre. The officers who countersigned and verified the assignment conducted by the petitioner No.2 during his deployment in the said cadre. The officers who countersigned and verified the assignment conducted by the petitioner No.2 can also be detailed for necessary verification. Some of them include Shri S.D. Sharma the then AM(RH), (2) Bhushan Lal, then Mess now working as AG- III, (3) Gopichand, the then AG-I (RH_, now DM(G), (4) H.R. Bansal, then AG-II (D), now Asstt. Manager. The question of the petitioner No.2 seeking earlier absorption in the movement cadre did not arise since the movement cadre starts from AG-I. It would be relevant in the present context that the record lying at the aforesaid district offices, be called for in order to ascertain the correctness.”
11. From the pleadings of the parties, it is noted that the petitioner did work in the Claim Cell. The application submitted by the petitioner No.2, the contents of which have been certified to be correct by the Branch Officer would reveal petitioner No.2 had worked in movement section at Shakti Nagar for two years and ten months and at RO for one year and three months. The said period was while he was AG-III and AG-II in the years 1974-77 and 1981-82. The petitioner may be right in saying that he worked in the movement cadre but whether the experience at AG-III and AG-II level, is the relevant experience for induction in the movement cadre. In the counter-affidavit, it is averred that (i) movement cadre starts from Assistant Grade-I; (ii) the alleged work of the petitioner No.2, who was holding a much lower rank of AG-III cannot be counted as experience in the movement cadre; (iii) only experience relevant, is at the level of AG-I; (iv) he has not worked in the movement cadre in AG-I.
12. Although, the respondents have stated that the working in the Claim Cell is not relevant experience in the movement cadre, noting the certificate issued by the Branch Officer that the petitioner No.2 had worked in movement section, the experience gained by the petitioner must be construed as an experience in movement cadre. But the same is not at AG-I level, which would be relevant for appointment in the movement cadre, as the movement cadre starts from AG-I level. The plea of the petitioner No.2, in his rejoinder that he has worked in the movement cadre at the level of AG-I for a period of four years during the period since 1993 is not reflected from the application form submitted by him (at page 78). It is not his case that persons appointed in the movement cadre, did not have the relevant experience at AG-I level, before appointment in the movement cadre. In the absence of relevant experience at AG-I level, the case of the petitioner could not have been considered for appointment in movement cadre, that too, by overlooking the prior right of the officers, who were senior to him, like Jitendra Mohan Bhardwaj, Gyaneshwar Rai Deepak, Bala Sahai Meena. I have been informed that petitioner No.2 retired in the month of February,
2010.
13. In view of the discussion above, the petitioner No.2 has not made out a case for grant of reliefs as noted above. The present petition is dismissed. No costs. JULY 26, 2016 V. KAMESWAR RAO, J ak