*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition No.9318 of 2007 % 09-09-2011 # M. Ramesh ..petitioner And $ The A.P. Coop. Oil Seeds Growers Federation Limited, Hyderabad & others ..Respondents !Counsel for the petitioner: Sri T. Sudhakar Reddy ^Counsel for respondents . : Sri M. Papa Reddy, SC for R-1 Sri Mohan Vinod, for R-27 < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.9318 of 2007 ORDER: The petitioner joined the service of the 1st respondent, a Company incorporated and managed by the Government of Andhra Pradesh, as Field Officer, in the year 1983. Six years thereafter, he was promoted as Executive, through order dated 17-07-1989. The 1st respondent further promoted the petitioner as Deputy Manager (General), on 23-07-2001, but with effect from 21-07-1999. At one point of time, the services of the petitioner were placed at the disposal of Vijayavardhini Co-operative Oil Seeds Growers Union Limited, Gadwal, which was affiliated to the 1st respondent. It is not necessary to refer in detail, the litigation, that ensued in relation thereto. The 1st respondent introduced certain austerity measures in the year 2003, to overcome the financial difficulties. The Voluntary Retirement Scheme (VRS) was introduced with an intention to reduce the size of the establishment. The scheme was framed with an intention that the strength of every cadre was reduced, and those, who were rendered surplus in the respective cadres were required to opt for VRS. On account of downsizing the cadre of the Deputy Manager (General), a necessity has arisen to require one of the incumbents to take VRS. It is in this context, that the dispute arose, between the petitioner, on the one hand, and another by name, Anwar Ali, on the other hand, who too was holding the same post. Ultimately, the controversy stood finally resolved, with the judgment of the Supreme Court, dated 15-03-2007, in Civil Appeal Nos.1391 of 2007 and batch. The petitioner was declared as junior to Anwar Ali, and thereby, he became surplus. In the light of these developments, the 1st respondent issued proceedings dated 21-04-2007, relieving the petitioner from service. The said proceedings are challenged in this writ petition. The petitioner contends that, even if he has become surplus in the category of Deputy Manager (General), at the most he is liable to be reverted to the post of Executive, and that there is no justification for the 1st respondent in relieving him. He submits that he did not opt for VRS, and the only way that his services can be brought to an end is, either by initiating disciplinary proceedings, or by retrenching him. He further submits that there is no justification for the 1st respondent in relieving him, even while continuing the respondents 2 to 27, who were juniors to him, as Executives. The 1st respondent filed a counter-affidavit, narrating the circumstances under which, the impugned order came to be issued. It is stated that in W.P.Nos.9669 of 2003 and batch, a learned single Judge of this Court held that the junior-most in every cadre must take VRS, and they cannot be permitted to remain in the inferior post. On the same lines, counter-affidavit is filed by certain other respondents. Heard Sri T. Sudhakar Reddy, learned counsel for the petitioner, Sri M. Papa Reddy, learned Standing Counsel for the 1st respondent, and Sri Mohan Vinod, learned counsel for the respondent No.27. The 1st respondent wanted to downsize its establishment, to overcome the financial constrains. The VRS Scheme was introduced, through a notification dated 07-05-2003. Benefits of various categories, such as ex-gratia, additional ex-gratia were provided. By its very nature, the scheme for voluntary retirement would only enable an employee of an organization to retire him from service by opting for it, in case, he has fulfilled the conditions stipulated therefor. Hardly there exists any element of compulsion in it. In the scheme framed by the 1st respondent also, this aspect is made very clear. Clause (9) thereof stipulates, thus: “All eligible employees who intend to avail the above scheme shall submit the applications to the Managing Director APOILFED/Chairperson, Regional Unions through the proper channel, on or before 5-00 P.M. on 31st May 2003”. Further, the scheme was made applicable, only to such of the employees, who are rendered surplus. The 1st respondent retained with it, the right to accept or reject the request for VRS. The scheme is silent, as to what should happen, in case an employee, who is declared as surplus in a cadre; does not choose to take VRS. Naturally the general principles of law have to be applied. It is no doubt true that in a judgment rendered in a batch of writ petitions, pertaining to the implementation of VRS scheme in the 1st respondent, it is observed that an employee, who is rendered surplus in a particular cadre, cannot be permitted to remain in service in a lower cadre. In the Writ Appeals preferred against the said judgment, a Division Bench of this Court made an observation to the effect that the principle of first come last go, must be observed. Before the Hon’ble Supreme Court, this issue does not appear to have been raised, pointedly. Assuming that the petitioner has been rendered surplus, in the cadre of Deputy Manager (General), the 1st respondent could not have relieved him, when the petitioner has not chosen to opt for VRS. Steps ought to have been taken, independent of the scheme, in case, the 1st respondent wanted to get rid of the petitioner. Admittedly, no disciplinary proceedings were initiated. A surplus employee can, at the most be retrenched. That, however, would be possible, only when the retrenchment is from the post to which, he was initially appointed. Totally different picture emerges, when an employee becomes surplus in a post, which he occupies by virtue of promotion. If an employee is promoted to a superior post, and if for any reason he is rendered surplus there, his services cannot be terminated, much less, retrenched. At the most, he can be denied the benefit of promotion, and he must be reverted to the post, from which he was promoted. Terminating the services of an employee on the ground that he has become surplus, in a superior post, would lead to a serious anomaly and gross injustice. Several persons, who were juniors to such employee in the lower category, would remain in service, while he would be terminated from service from a superior post for no fault of him. The benefit of promotion availed by him would turn out to be suicidal. Here itself, it becomes necessary to take note of the fact that, even where an employee is eligible and entitled to be promoted, he can refuse to accept the same, in case he feels that the conditions of service, on promotion, are not going to be advantageous to him. In this scenario, if the petitioner does not opt for VRS, at the most he must be reverted to the immediately inferior post and the junior-most in that cadre, in turn, must be reverted further down. The cascading effect would be that, the latest direct-recruit employee in the lowest feeder category would face retrenchment, in accordance with law. In such a course of action, no serious prejudice can be said to have been caused to anyone. On the other hand, a systematic, fair and legal exercise would emerge. The retrenched employee would have a right to be re-inducted, if the necessity to employee arises in the organization. Even the slight possibility of cascading effect on account of the retrenchment of the petitioner is obviated in the light of some recent developments. It is stated that the 1st respondent has earned substantial profits, and with a view to expand its activity, it approached the Government for according sanction to create quite large number of additional posts. The Government, in turn, accorded permission through G.O.Ms.No.216, dated 29-08-2011, for creation of posts in almost every category. A direction, however, was issued to the effect that the posts shall be filled through outsourcing. In view of this development, if the 1st respondent so chooses, it can retain the petitioner in the cadre of Deputy Manger (General), against one of the newly created posts, and on that account, it does not have to incur any expenditure. If, on the other hand, it feels that the petitioner cannot be continued as Deputy Manger (General), it has to permit him to remain in service, as Executive. Since additional posts in that category are also sanctioned, the necessity to revert anyone may not arise. The petitioner, however, shall not be entitled to claim wages from the period during which, he was not in service, but shall be entitled to count that period towards his service, for the purpose of leave, increments, and retirement benefits. For the foregoing reasons, a) the writ petition is allowed, and the impugned order is set aside; b) the 1st respondent shall take the petitioner into service, either as Deputy Manger (General), or Executive, within a period of four weeks from today; c) the petitioner shall not be entitled to be paid any wages from the period during which, he was out of service, but he shall be entitled to count that period for the purpose of leave, increments and retirement benefits; and d) it shall not be necessary for the 1st respondent to revert or retrench anyone, on account of retention of the petitioner in service. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.09-09-2011. Note: L.R copy to be marked. (B/O) KO