IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 15935 of 2009(J) -------------------------- PETITIONER(S): ------------------ K.RAJAN, WORK ASSISTANT, FOOD CORPORATION OF INDIA, REGIONAL OFFICE, KESAVADASAPURAM, TRIVANDRUM-4. BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENT(S): -------------------- 1. THE FOOD CORPORATION OF INDIA, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, NEW DELHI-110 001. 2. THE EXECUTIVE DIRECTOR (SOUTH), FOOD CORPORATION OF INDIA, NO.2 HADDOWS ROAD, ZONAL OFFICE, SOUTH CHENNAI-2. 3. THE GENERAL MANAGER (KERALA), FOOD CORPORATION OF INDIA, REGIONAL OFFICE, TRIVANDRUM-33. ADV. SMT.S.KARTHIKA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15935/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE EXTRACT IN SENIORITY LIST. EXT.P1(a): TRUE COPY OF THE APPOINTMENT ORDER NO.E1/2 (15)/87- ENGG. DT.28.7.1988. EXT.P2: TRUE COPY OF THE EXTRACT IN SENIORITY LIST OF WORK ASSISTANT ON 31.5.2005. EXT.P3: TRUE COPY OF THE LETTER NO.FCIESU/G.S/C.C.2006 DT.31.7.06. EXT.P4: TRUE COPY OF THE LETTER NO.BKNKS/NC/2006 DT.11.12.2006. EXT.P5: TRUE COPY OF THE LETTER DATED 21.3.2005. EXT.P6: TRUE COPY OF THE LETTER NO.C/ENGG/32/ESTT/2005-06 DT.1.12.2005. EXT.P7: TRUE COPY OF THE LETTER NO.C/ENGG/32/ESTT/2005 DT.4.10.05. EXT.P8: TRUE COPY OF THE LETTER DT 18.7.2005. EXT.P8(a): TRUE COPY OF THE LETTER NO.ESSTT/2/(12)/2004 DT.26.7.05. EXT.P9: TRUE COPY OF THE JUDGMENT IN WPC NO.3307/2008(R) EXT.P10: TRUE COPY OF THE ORDER NO.E.1/30(1)/2008 DT 9.4.08 OF THE EXECUTIVE DIRECTOR SOUTH FOOD CORPORATION OF INDIA. EXT.P11: TRUE COPY OF THE CIRCULAR NO.A1(6)/77 DT.21.6.78 OF THE REGIONAL OFFICE BANGALORE, FOOD CORPORATION OF INDIA. EXT.P11(a): TRUE COPY OF THE LETTER NO.A1(12) 78-79 DT 6.6.79. EXT.P11(b): TRUE COPY OF THE LETTER NO.A1(12)77-78 VO.IV DT 21.1.81. EXT.P12: TRUE COPY OF THELETTER NO.ESTT.30(18) 2008 DT 13.3.2008. EXT.P12(a): TRUE COPY OF THE JUDGMENT IN WPC NO.17261/08(E) DT 4/12/2008. EXT.P13: TRUE COPY OF THE PROCEEDINGS NO.30(4)/ 2008/SZ/ZE.1/259 DT.29.4.09/5.5.09. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 15935 OF 2009 (J) ===================== Dated this the 10th day of November, 2009 J U D G M E N T This is the third writ petition filed by the petitioner, to pursue his claim for appointment under the 1st respondent as Junior Engineer (Civil), which has since been re designated as Assistant Engineer (Civil). 2. On 6/8/1988, petitioner joined as Work Assistant. He is a Diploma holder in Civil Engineering. As per the Food Corporation of India (Staff Regulations) 1971, the post of Junior Engineer has to be filled up by direct recruitment, and the qualification prescribed are Degree in Civil Engineering or Diploma in Civil Engineering with one year experience. 3. According to the petitioner, inspite of the fact that the posts are to be filled up by direct recruitment, there has been a practice of internal recruitment as well, by allowing candidates satisfying the qualifications prescribed in the Staff Regulations to compete for the post, and if selected, to appoint them. Petitioner refers to Exts.P11, P11(a) and P11(b) internal circulars issued by the FCI inviting applications from qualified internal candidates. WPC 15935/09 :2 : According to the petitioner, on the basis of the above and similar such circulars, several Work Assistants were appointed as Junior Engineers. He being a Diploma holder satisfying the qualifications prescribed in the Staff Regulations, therefore represented for similar treatment. It is stated that his case was also recommended by the Zonal and Regional Heads. Petitioner is relying on Exts.P5 to P7 and P12 in support of this statement. His claim was not considered and therefore he filed WP(C) No.3307/08. That writ petition was disposed of by Ext.P9 judgment dated 29/1/2008, where the learned Judge held as follows: Apparently, earlier there was a system in vogue to recruit qualified Work Assistants to the post of Junior Engineer (Civil) as a departmental candidate. Petitioner submits that the same practice could be followed even now. But this requires consideration at the higher level. Therefore, Ext.P8 has been submitted before the Corporation. The request of the petitioner has been recommended as evidenced by Exts.P5 to P7. In such circumstances, after hearing the learned counsel for the petitioner and the learned standing counsel for the Food Corporation of India, the writ petition is disposed of directing the 1st respondent to consider Ext.P8 and take a decision thereon within a period of two months from the date of receipt of a copy of this judgment, keeping in mind Exts.P5 to P7 as well. However, as against the direction requiring the Managing Director WPC 15935/09 :3 : to consider his claim, his claim was considered and was rejected by the Executive Director (South) by Ext.P10 order. Ext.P10 order was again challenged before this Court in WP(C) No.17261/08. That writ petition was disposed of by Ext.P12(a) judgment dated 4th December, 2008 quashing Ext.P10 on the ground that the said order was passed by an incompetent authority. Accordingly, the Managing Director was directed to consider the representation (Ext.P8 mentioned in the judgment) made by the petitioner, bearing in mind the views expressed by the Apex Court in the decision in Civil Appeal No.991/08, to which the Corporation is also a party. Accordingly, the Managing Director considered the claim of the petitioner and Ext.P13 order dated 5/5/2009 has been issued rejecting the representation. 4. A reading of Ext.P13 show that the Managing Director has appreciated the claim made by the petitioner for appointment as one made for promotion to the post of Junior Engineer (Civil). Appreciating the claim as above, he has concluded that as per the Staff Regulations, 100% of the posts are to be filled up by direct recruitment, and therefore, promotion from internal candidates is impermissible. It is on that basis his claim has been turned down. WPC 15935/09 :4 : 5. Counsel for the petitioner contends that the manner in which his claim has been appreciated is erroneous and the Managing Director has misdirected himself in appreciating the contentions. Although the standing counsel for the respondents sought to justify Ext.P13 order referred to above, having regard to the facts of this case and the manner in which Ext.P13 order has been passed, I am inclined to agree with the counsel for the petitioner that there has not been a proper appreciation of facts. 6. Petitioner does not have a case that as per the Staff Regulations, the post is to be filled up otherwise than by direct recruitment. However, his case is that although the Staff Regulations were framed way back in 1971, periodically circulars were issued, similar to Ext.P11 series and internal qualified candidates were permitted to participate in the selection process and were appointed as Junior Engineer, which post has now been re designated as Assistant Engineer. It was taking note of this contention that in Ext.P9 judgment, this Court also held that apparently there was a system in vogue to recruit qualified Work Assistants to the post of Junior Engineer (Civil) as departmental candidates. Exts.P5 to P7 and P12 recommendations relied on by WPC 15935/09 :5 : the petitioner also contains recommendation for internal recruitment. It is the benefit of Ext.P11 series and Ext.P12 recommendation, which was claimed by the petitioner. Therefore, it is obvious that what the petitioner was claiming was not promotion, but appointment by internal recruitment. It was therefore that this Court also held in Ext.P9 judgment that the matter needs to be considered at the higher level. Therefore, the claim of the petitioner has not been dealt with in the proper perspective, and for that reason, I am inclined to set aside Ext.P13. 7. Ext.P13 will therefore stand set aside and the 1st respondent is directed to reconsider the claim of the petitioner, in the light of the above and as expeditiously as possible, at any rate within 8 weeks of receipt of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp