Kedar Das vs Food Corporation of India and others

S.B. Sinha, J.—This writ application is directed against an order dated the 27th October, 1986, passed by the Regional Manager, Food Corporation of India (respondent no. 2), whereby and whereunder respondent no. 3 was promoted to the post of Mandal from the post of Shramik. The facts of the case lie in a very narrow compass. The petitioner, at the material time, had been working as Shramik in H/L Gang No. l, F.S.D. Mokameh of the Food Corporation of India. According to the petitioner, he is the seniormost in the cadre. The petitioner has contended that, in terms of the promotion policy of the respondent no. 1 the seniormost Shramik in a particular gang is entitled to be promoted to the next higher post, i.e., the post of Mandal. In this connection, the petitioner has annexed a letter date the 6th August, 1986, issued be the Deputy Manager Food Corporation of India, Mokameh, and addressed to the District Manager, Food Corporation of India, which is contained in Annexure-6 to the writ application, wherein it has been mentioned that the petitioner is the senior most workman in Gang No. 1. The petitioner has also annexed a copy of the letter dated the 11th August, 1986, issued by the Chief Labour Inspector to the Depot Incharge of the Food Corporation of India, Mokameh as contained in Annexure-5 to the writ application from a perusal whereof, it appears that the Chief Labour Inspector also found the petitioner to be the seniormost in the said cadre. The petitioner has further annexed a copy of the letter dated the 12th September, 1986, issued by the Chief Labour Inspector and addressed to the Regional Manager, Food Corporation of India Patna (Annexure-7 to the writ application), wherein it was stated as follows : --

Shri Ganga Sagar Mahto H/L Gang No. 1 stood in Sl. no. 14 (i.e. 14th position in the Sl. of the Gang). Considering into seniority he is the junior most among the gang as such he is not entitled for promotion as per standing rules.

The case of Sri Kedar Das can only be considered for promotion to the post of Mandal as he is the seniormost H/L of the gang and he fulfils all the criteria as laid down under Z.O. Circular and his case was already referred to R.O. vide this office letter of even no. dated 13.8.86.

According to the petitioner, the respondent no. 1 had issued a circular dated the 14th August, 1985, which is contained in Annexure-2 to the writ application, on the basis whereof it has been contended that a person who is senior in a particular gang is entitled to consideration of depot wise seniority. The relevant paragraphs incorporated in the said letter are in the following terms : --

The departmentalized depot workers would be allowed promotion to next higher post on the basis of gang-wise seniority and also in consideration of other attributes like physical fitness and suitability etc.

Seniority amongst workmen of a gang would be fixed on following basis : -

(i) The workman who is senior in service to the post i.e., the workman who joined first to the post will be the seniormost workman,

(ii) The length of service vis-a-vis the date of joining to the post where will be same the seniority will be decided according to the placement of the workmen in the gang i.e., the order in which the names of the workmen are being maintained in the gang since departmentalisation such as A, B, C, D, etc. or like 1, 2, 3, 4, 5 etc.

(iii) The workmen who joined or may join in the gang afterwards will get seniority in the gang from the dale of then-joining in the gang.

If no suitable candidate is available within the gang for promotion to the next higher post promotion will be consideration depotwise seniority. Such depot wise seniority will be fixed on the basis of length of service of the workmen to the post. Where the date of joining will be same the workman senior in age will be the senior most workman.

It has further been contended by the petitioner that even if it be assumed that the petitioner and respondent no 3 were appointed on the same date, in terms of the seniority rules as embodied in the aforementioned circular dated the 14th August, 1985 (Annexure-2), a person who is older in age will be considered as senior to the other. In this connection, the petitioner has annexed a copy of the certificate issued by the Depot Officer of the respondent no. 1 where-from it appears that whereas the age of the petitioner was 23, the age of the respondent no. 3 was 22 at the time of joining.

The case of the respondents, on the other hand, is that prior to 1971, the depot used to be managed by employing contract labour.

With effect from the 1st July, 1971, depots were departmentalised by abolishing the system of employment of contract labour. Thereafter, a settlement was entered into by and between the employer and the workmen purported to be in terms of section 18(1) of the Industrial Disputes Act, 1947, and rule 58 of the Industrial Disputes (Central) Rules. The said memo of settlement is contained in Annexure- D/R-3 to the reply filed on behalf of the respondent no. 3 to the supplementary affidavit filed on behalf of the petitioner.

According to the respondents, in terms of the aforementioned memo of settlement in the matter of promotion, the local depot council concerned will be consulted, relevant portion whereof reads as follows : --

Seniority for the purpose of promotion. -- The gangwise seniority will be considered along with other attributes like physical fitness and suitability for the job etc. of the departmental labour for the purpose of promotion to next higher rank. If, however, the LRE Sardars and Mondals are in existence in the depot, they will be given first preference in taking the place regular vacancies of Sardars and Mondals whenever occuring and the promotees Sardars or Mondals from the gang will take the place of LRP Sardar or Mondal. In case, however, a suitable candidate is not available within the gang, depotwise seniority will be criteria for promotion. The Local depot council concerned will be consulted.

It is further the case of the respondents that the aforementioned memo of settlement as quoted hereinbefore was also circulated by the office of the respondent no. 1. The said circular it contained in Annexure- A/R-3. The respondents, therefore, contended that, in terms of the aforementioned memo of settlement coupled with the said circular dated the 11th July, 1986, the respondent no. 1 had issued the impugned order dated the 27th October, 1986, as contained in Annexure-1 to the writ application, whereby and whereunder the respondent no. 3 was promoted. It has further been contended in the counter-affidavit filed by the respondents that the petitioner does not know the technicalities of job which are absolutely necessary for the purpose of performing the job of Mandal in terms of the job description of Mandal as contained in Annexure-C/R-3 to the counter-affidavit.

In the counter-affidavit filed on behalf of the respondent no. 2 it has also been contended that, in terms of the rules prevailing in the Corporation, merit and suitability have to be taken into account for grant of promotion to a candidate first and seniority counts later on. However, in the said counter-affidavit, it has been accepted that the petitioner''s appeal is pending consideration before the appellate authority.

Mr. I.K. Saran, learned counsel for the petitioner, submitted that, in the instant case, there has been a clear violation of the policy decision of the respondent no 1 itself insofar as it did not follow the rule of seniority. According to him, the petitioner fulfils all the criteria for performing the job of Mandal and in view of the recommendations of the higher officers wherein it was stated that the petitioner was the seniormost in the gang, there was absolutely no reason as to why the petitioner was not promoted. The learned counsel further submitted that, even assuming that the aforementioned recommendations, as contained in Annexures-5, 6 and 7 to the writ application are not considered but despite the same even if the contentions reised on behalf of the respondents in their respective counter-affidavit are accepted to the effect that the petitioner and the respondent no. 3 were appointed on the same date but in view of the certificate with regard to the age of the petitioner vis-a-vis the respondent no. 3 and as contained in Annexure-10 to [he supplementary affidavit, it is clear that the petitioner will rank senior to that of respondent no. 3. The learned counsel in this connection has placed strong reliance upon the case of Sudama Singh v. Nath Saran Singh and others (1988 LIC 391). The learned counsel further contended that the Regional Manager of the respondent no. 1 ought to have sworn affidavit in this case justifying the rationale in granting promotion to the respondent no. 3 superseding the claim of the petitioner.

In this connection, the learned counsel has referred to Bharat Singh and Others Vs. State of Haryana and Others, and contended that when the point which is ostensibly a point of law is required to be substantiated by the facts, the party raising the same, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is respondent, from the counter-affidavit. According to the learned counsel, in view of the fact that the circular applies to the present case, it was obligatory on the part of the respondents to show as to how and why the petitioner was superseded.

The learned counsel appearing on behalf of the respondents, on the other hand, submitted that the respondent no. 3 was promoted in view of the necessity of consultation effected by reason of the settlement as contained in Annexure D/R-3. The respondents contention in this connection is that, as the local Depot Council recommended the name of the respondent no. 3, the respondent no. 1 had not committed any illegality in granting promotion to the respondent no. 3.

The learned counsel appearing on behalf of respondent no. 1 has further drawn my attention to the statements made in para 8 of the counter affidavit filed on behalf of the respondent no. 2 which is in the following terms : --

That so far as the matter relating to inter se seniority in between the petitioner and the respondent no. 3 is concerned, it is submitted that prior to the departmentalisation, the petitioner as well as respondent no. 3 were working as contract labourers and service of both of them including several other labourers was departmentalised on the same day. Therefore, in the absence of any comparative seniority list, the claim of the petitioner that he is the seniormost person is not justified. In such a situation, while making amendment in circular as contained in Annexure 2 to the writ petition, it has been incorporated in item no. 3 that "the local depot council concerned will also be consulted". As per the instruction issued by the Zonal Office, in case no depot council is in existence, the view of the local Food Corporation of India Workers'' Union''s representative shall be obtained. In the present case, the view of the Workers Union representatives was obtained and its General Secretary through his letter dated 10th September, 1986, stated that Sri Ganga Sharan Mahto (Respondent no. 3) is the seniormost handling labour in the gang.

In view of the rival contentions, as noticed hereinbefore, the following questions arise for consideration in this case: --

(a) Whether a memorandum of settlement shall supersede the policy decision of the respondent no. 1 relating to grant of promotion to its employees ? and

(b) Whether, in any event, the respondent no. 2 was bound to promote only such person who has been recommended by the local Depot Council in terms of the aforementioned settlement ?

It has not been contended before me by the learned counsel for the respondents that the respondent no. 1 is not a State within the meaning of Article 12 of the Constitution. If the respondent no. 1 is a ''State'' within the meaning of Article 12 on the Constitution, its action in all matters most be fair and reasonable so that its action may be judged on the touchstone of Articles 14 and 16 of the Constitution.

True it is that a settlement which fulfils the requirement of section 18(1) of the Industrial Disputes Act, 1947, and rule 58 of the Industrial Disputes (Central) Rules binds the management and the workmen alike. Such a settlement binds all the workmen. However, from a perusal of the said settlement, itself, it would appear that the respondent no. 1 and/or its competent officers are bound to consult the local depot council in the matter of promotion. But, in my considered opinion, such consultation does not mean that a person who is recommended by the local depot council will have to be promoted to the next higher post irrespective of the policy decision of the respondent no. 1 but the action on the part of the respondent no. 1 must also pass the test of reasonableness as contemplated in Articles 14 and 16 of the Constitution.

In the instant case, both the patties have placed strong reliance upon the circular dated the 14th August, 1985, as contained in Annexure-2 to the writ application. From the said circular itself, it is evident that, if more than one person is appointed on the same day, the person who is older in age will rank senior to the person who is younger to him. From Annexure 2 itself, it is clear that the petitioner is older than the respondent no. 3.

However, even the circular of the Food Corporation of India dated the 11th July, 1986, as contained in Annexure A/-3, does not go against the contention of the petitioner. Therein, in no uncertain terms, it has been contended that promotion will be considered on depotwise seniority if no suitable candidate is available within the gang for promotion to the next higher post. It has further been stated therein that depotwise seniority will be fixed on the length of service of the workmen to the post. Clearly enough, under the circular of the respondent no. 1 as contained in Annexure-2 to the writ application as also under the general law, a person who is older in age shall rank senior to another.

In Sudama Singh''s case, (supra) the Supreme Court has cleary held that a person who is older in age would be senior to the person who is younger to him.

From the phraseology used in the circular of the Respondent no. 1 filed on behalf of the respondent no. 3 as also the memorandum of the settlement as contained in Annexure D/R-3, it is evident that consultation with the local depot council is not mandatory in nature. The words "local depot council concerned will also be consulted," in my opinion, in not uncertain terms postulate that the matter of consultation is not mandatory and is merely a directory one. In any event, the said requirement of consultation cannot prevail over the other contents whereof, as a result whereof the person is entitled to be promoted on the basis of seniority if no suitable candidate is available.

Further, as noticed hereinbefore, the respondent no. 1 being the ''State'' within the meaning of Article 12 of the Constitution, its action must be judged on the touchstone of Articles 14 and 16 of the Constitution. A ''State'' within the meaning of Article 12 of the Constitution cannot make a violent departure from its policy decision. Such a violent departure from its policy decision attracts Articles 14 and 16 of the Constitution. Further, the respondent no. 2 was bound to apply his own mind relating to inter se seniority of the petitioner vis-a-vis the respondent no. 3. In the instant case, he appears to have abdicated his functions in favour of the Union which is per se illegal.

In this view of the matter, there cannot be any doubt that the respondent no. 2 could not have promoted the respondent no. 3 on the basis of the recommendation of the union alone. As noticed hereinbefore, the only consideration which weighed with the respondent no. 2 is the recommendation of the Union. Evidently, in doing so, the respondent no. 2 has failed to consider the effect of the circular issued by the respondent no. 1 as contained in Annexure-2 to the writ application as also the views of its officers as contained in Annexures-5, 6 and 7 to the writ application. The purported recommendation of the Union in favour of the respondent no. 3 to the effect that he is the seniormost handling labour in the gang must be held to be based on wrong premises in view of the certificate of age granted by the officer of the respondent no. 1 and as contained in Annexure-IQ to the writ application. Thus, there is absolutely no doubt that the petitioner''s case did not receive an honest and bona fide consideration at the hands of the respondent no. 2.

In Harendra Pratap Singh n. State of Bihar (1989 BLJ 89 : 1989 PLJR 967) it has held as follows : --

There is no dispute with regard to the proposition of law that a person dots not have any legal right of promotion unless the order of promotion is to be passed automatically dependent upon the seniority of the person concerned. There is also no dispute that the post of Engineer-in Chief being an ex-cadre post and also being a selection post no body can claim a right in himself to be promoted to that post.

However, it is well known that an employee has a legal right to be considered for promotion.

As an employee has a legal right to be considered for promotion to the higher post, it is evident that such consideration must be based on relevant facts. While purporting to consider the case of an employee the State cannot also rely upon an irrelevant matter nor can it base its decision on irrelevant or on extraneous considerations. The considerations at the hands of the employer must be fair and reasonable.

In the instant case, the petitioner''s case stands on a better footing. From the recommendations of the officers of the respondent no. 1 as contained in Annexures-5 to 7 to the writ application, it appears that no suitable candidate was available for promotion. Thus, the petitioner was bound to be promoted on the basis of seniority alone subject of course to the other criteria as mentioned in the circular and settlement.

In the State Bank of India and others Vs. Mohd. Mynuddin, , it was held that a direction for promotion cannot be given by a court unless the promotion is to be granted on the basis of seniority alone.

Judging this case, in my opinion, it must be held that the respondent no. 2 in passing the impugned order as contained in Annexure-1 to the writ application misdirected himself in law insofar as he did not take into consideration the relevant facts and proceeded to pass the order on irrelevant matters.

In this view of the matter, this writ application must be allowed and the order as contained in Annexure-1 must be quashed. In the result, this application is allowed and the order as contained in Annexure-1 is quashed and the respondent no. 2 is hereby directed to consider the cases of the petitioner and the respondent no. 3 afresh keeping in view the policy decision of the respondent no. 1 and in accordance with law. However, in the circumstances of this case, there shall be no order as to costs.