IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WA.No. 1987 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.31671/1999 Dated 02/03/2007 .................... APPELLANTS: (RESPONDENTS 1 TO 3 IN THE ORIGINAL PETITION): ------------------------------------------------------------ 1. THE FOOD CORPORATION OF INDIA, 16-20, BARAKHAMBA LANE, HEADQUARTERS, NEW DELHI, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE ZONAL MANAGER, FOOD CORPORATION OF INDIA, ZONAL OFFICE 2, HADDOWS ROAD, CHENNAI-600 006. 3. THE SENIOR REGIONAL MANAGER, FOOD CORPORATION OF INDIA, REGIONAL OFFICE, KESAVADASAPURAM, THIRUVANANTHAPURAM-694 004. BY ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SRI.T.P.M.IBRAHIM KHAN, SC, FCI RESPONDENT/PETITIONER IN THE ORIGIINAL PETITION: -------------------- M.K. BHASKARAN, ASSISTANT GRADE-III (DEPOT), FOOD CORPORATION OF INDIA, MULAMKUNNATHUKAVU, THRISSUR DISTRICT. SRI.P.M.MOHAMMED SHIRAZ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, ALONG WITH W.A.No.1983/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. -------------------------------- W.A.Nos. 1987 & 1983 OF 2007 --------------------------------- 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 as W.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) ps