M. Sambandam vs The Food Corporation of India

GokulaKrishnan, J.—The Petitioner in Writ Petition No. 2592 of 1976 is the Appellant. He filed the writ petition for the Issue of a writ in

the nature of mandamus or other appropriate writ, directions or order for bearing the Respondent he Food Corporation of India represented by its

Zonal Manager Madras, from any way giving effect to the new list, drawn up by the promotion committee on 25th June, 1976 in respect of

Assistant Manager in the employment of the Food Corporation of India.

The allegations made by the Petitioner in his affidavit filed in support of the writ petition are as follows:

He was working as Assistant Grade I in the Zonal office of Food Corporation of India in Madras as and from 24th February, 1971 as per the

notification, dated 24th September, 1973 issued by the Department of Food, his services were finally transferred to the Food Corporation of India

with effect from 1st May, 1969. He was confirmed as a regular employee of the Corporation with effect from 1st May, 1969. The post of

Assistant Grade I held by him is a category in post in the Corporation''s Staff Regulations. The next higher category of service is Category II

designated as Assistant Manager. The mode of recruitment to a post in Category II is by promotion and such promotion is by way of selection.

Under Regulation 10 of the Staff Regulations, 1971, promotion to a selection post is made on the basis of merit, seniority being considered only

when the merit of contending candidates is approximately the same. Such promotion shall be considered by a promotion Board duly constituted for

the purpose by the Board of Directors of the Corporation. To be eligible to be considered for promotion from Category III to Category II, the

candidate should have an experience of three years as Assistant Grade I. The period of three years is reckoned as three completed years as on the

last date of the year previous to the year of drawing of the panel. In other words, if the Promotion Board considers a candidate for promotion, say

in March 1976, that candidate should have experience of full three years as Assistant Grade I on 31st December, 1975.

In the year 1976 March, a duly constituted promotion Board considered the cases of about 120 Assistant Grade I for promotion and selected

about 35 to 40 of them for the post of Assistant Manager. Later on, in May 1976, the Promotion Board again met and considered 120 individuals

and selected about 40 candidates for the post of Assistant Manager. The Petitioner was one of those selected for the post of Assistant Manager

by the Promotion Boar in May 1976. In fact, by order dated 3rd June.1976 he was promoted to the post of Assistant Manager, which order was

received by him oh 4th June, 1976 and accordingly he was posted for Karnataka Region. As and from 14th June, 1976, he was working as

Assistant Manager in the Karnataka Region of the Food Corporation of India.

While things stood thus, the Promotion Board met on 25th June, 1976 and drew up a new list giving up the earlier valid and legal list drawn by it

in May 1976. According to the Appellant, this new list is entirely without jurisdiction and contrary to the Staff Regulations which are statutory in

character and cannot be by-passed or overlooked.

The Appellant would further allege that the entire yearly confidential records pertaining to a specific grade have not been taken into

consideration in preparing the fresh list on 25th June, 1976. As per the existing instructions the three year period has to be reckoned as ending with

the 31st of December of the year previous to the year of the selection. Thus, the conditions of promotion have been relaxed by the promotion

Board for which there is absolutely no statutory sanction.

The Appellant would further allege that the Promotion Board met in May 1976 and considered about 120 candidates, and in the later selection

the Promotion Board brought in 24 more candidates and all of them were not qualified and eligible for promotion at that stage as per the staff

Regulations of the Corporation. The Promotion Board has no authority or powers to revise the list legally drawn and to make a fresh list. The list

prepared on 25th June, 1976 is prejudicial to the Appellant and it is opposed to the Corporation''s Staff Regulations and the instructions issued by

the Board of Directors.

With the above allegations, the writ Petitioner prayed for a writ of mandamus or other appropriate writ for bearing the Respondent from in any

way giving effect to the new list drawn up by the Promotion Board on 25th June, 1976 for the posts of Assistant Managers in the Food

Corporation.

The Respondent filed a counter-affidavit contending as follows- The post of Assistant Manager is in Category II and according to Regulation 10

of the Staff Regulations, 1971 read with Appendix I Part II thereof, it is a selection post. In accordance with standing instructions, the selection of

the panel is to be by the Zonal Promotion Committee. In accordance with the directions issued by the Head Office, only those who have

completed a three year period as on 31st December of the year previous to the year of selection would alone be eligible for promotion and the

Zonal Promotion committee is expected to bear in mind this aspect also in drawing up the list. The Zonal Promotion Committee selected forty

candidates to be included in the panel for promotion in its sitting in May 1976, and the writ Petitioner was one of those in the panel. Subsequently

the Head office pointed out that the Zonal Promotion Committee did not comply with the instructions relating to the field of choice for the number

of vacancies to be considered with reference to the vacancy position as in May 1976. This has resulted in omitting to consider the claims of certain

scheduled castes and scheduled tribes candidates. The Zonal Promotion Committee therefore met again in June 1976 to review its earlier decision

and after taking into consideration the instructions of the Head Office, prepared a fresh list of candidates. The writ Petitioner, by virtue of his lower

merit rating, as compared to the others who were empanelled, did not find a place in the revised list.

The Respondent would contend that the procedure adopted was in accordance with the instructions received from the Head Office and is not in

violation of any rules or practice. The Zonal Promotion Committee has absolute right to consider the claims of all eligible candidates including the

Petitioner and revise its own decision when found necessary. The drawing of the fresh-list is in accordance with the instructions issued by the Head

Office and also in accordance with Regulation 10 of the Staff Regulations 1971. The promotion lists and the postings are purely on a temporary

and provisional basis and do not confer any right or give any claim to the candidates. Inclusion or non-inclusion of a particular person in the panel

or giving of a lower rank in a new panel are not maintainable. The proceedings of the Zonal Promotion Committee are purely administrative in

character and the Court cannot interfere by way of writ in such administrative matters. There are specific instructions for enlarging the field of

choice relatable to the number of candidates to be selected. In as much as the May 1976 selection did not conform to this norm, the list was

rescinded and the June 1975 selection was held taking in consideration 144 candidates including the Appellant. With the above contentions, the

Respondent resisted the writ petition and prayed for a dismissal thereof.

The Respondent also filed a supplementary counter-affidavit contending that the reconvening of the Zonal Promotion Committee was neither

contrary to the Staff Regulations nor to any other rule or law, and it was the only course available to rectify the procedural defect in the May 1976

selection. A statement was also appended to the supplementary counter-affidavit showing the field of choice in regard to selections of particular

number of candidates. According to the Respondent, there was no violation of Article 16 of the Constitution or any other law in the drawing of the

revised list.

In the reply affidavit, the Appellant has inter alia, stated that the Personal Manager of the Head Office knew all the instructions regarding the

procedure to be followed by the Zonal Promotion Committee and he being one of the members of the Zonal Promotion Committee it is expected

of him to bring into the notice of the Zonal Promo ion Committee and therefore the rescinding of the May 1976 list and preparing of the June 1976

list are against the instructions given by the Board of Directors. It was further submitted that the method followed by the Zonal Promotion

Committee is violative of Article 16 of the Constitution and the Zonal Promotion committee has no power to revise or review or give instructions to

revise or review the panel. The Appellant further submitted that the statement in paragraph 10 of the counter-affidavit that notional seniority was

given to some of the candidates who did not complete three years is unsustainable in law and it cannot also be supported on facts. By notional

seniority the Zonal Promotion Committee has not only considered large numbers of ineligible candidates but also selected 20 to 26 ineligible

candidates and included their names in the new list which caused prejudices to the Appellant.

Mohan, J., who heard and disposed of the writ petition held that the three years period of service in the post of Assistant Grade I prescribed

as qualification for selection for promotion has to be reopened as ending on the date of selection and that if there is any instructions for reckoning

the three years periods as ending with 31st December 1975 it will be contrary to the statutory requirement. The learned Judge after observing that

the May 1976 selection did not take into consideration the required number of candidates for promotion, that the schedule caste/scheduled tribe

candidates were not considered and that large number of candidates who had three years, experience as on the date of selection were not

considered, held that the new list drawn in June 1976 selection is valid. On these findings, the learned Judge dismissed that writ petition. It is

against this order of dismissal the present writ appeal has been filed by the writ Petitioner.

Mr. A. Shanmugam, learned Counsel appearing for the Appellant drew our attention to the instructions issued by the Board of Directors of the

Food Corporation of India New Delhi, and submitted that they are in accordance with the staff Regulations framed for their staff by the Food

Corporation of India and that the list drawn up in June 1976 is violative of the instructions issued by the Board of Directors. According to the

learned Counsel, the three years qualifications as ending with 31st December 1975 alone should be taken into consideration and not the service of

three years ending as on the date of selection.

Mr. D. Raju, learned Counsel appearing for the Food Corporation of India on the other hand, contended that the instructions given by the

Board of Directors of the Food Corporation of India have no statutory force, that the selection is only an administrative matter which cannot be

made the subject matter of a writ petition in a Court of law, that the instructions given by the Board of Directors reached the Zonal Promotion

Committee after the June 1976 list was prepared and that the list prepared is valid and binding.

We have been taken through the relevant provisions of the Food Corporation of India, Act, (XXVII of 1964) and also the Staff Regulations

framed by virtue of the powers conferred by Section 45 of the Act. We have also looked into the relevant instructions issued by the Head Officer.

The admitted fact are: There was a selection by the Zonal Promotion Committee in May 1976 for selection of candidates for promotion to the

post of Assistant Manager in the Food Corporation of India and a list was drawn up. This list was rescinded and a fresh list was drawn up in the

sitting in June 1976, in which the Appellant''s name is deleted. As per the instructions of the Board of Directors formulated in their meeting held on

5th April 1976, the crucial date for determining the eligibility on the basis of years of service should be 31st December of the year for the purpose

of drawing panels for subsequent year previous to the year of selection by the departmental promotion in all categories. The list drawn up in June

1976 proceeded on the basis that the three years qualification should be there on the date of selection. The Zonal Promotion Committee did not

follow the instructions formulated by the Board of Directors at their meeting held on 5th April 1976.

Regulation 10 of the Staff Regulations 1971, deals with procedures for promotion. Clause (iii) of Regulation 10 states:

All promotions shall be considered by a promotion Board duly constituted for this purpose and shall be regulated by the general instructions to be

issued by the Corporation from time to time in regard to the field of choice of candidates, the size of the panel and the validity of the panel.

IN Appendix I Part II, dealing with General Administration Cadre, item 5 is the post of Assistant Manger is Category II. This post is filed up

by promotion made by selection. To qualify for this post, the candidate should have put in three years experience as Assistant.

A feeble suggestion was made that the instructions to the effect that the crucial date for determining the eligibility on the basis of years of

service should be 31st December of the year previous to the year of selection for the purpose of drawing panels for the departmental promotion in

all categories, is outside the scope of Regulation 10(iii). But, under Regulation 10(iii) as we have seen already, the corporation can issue general

instructions from time to time in regard to the field of choice of candidates. This power will definitely include prescribing the crucial date for

determining the eligibility. In Appendix I, Part II, it has been simply stated that the qualifying period of experience three years as Assistant for the

post of Assistant Manager. This has been clarified by suitable instructions made by the Food Corporation of India, which we have referred to

above.

Regulation 91 of the Staff Regulations, 1971 States.

If any doubt or difficulty arises in these Regulations or in giving effect to them, or if any lacuna, inconsistency or anomaly is discovered in their

applications, it shall be open to the Board to issue general instructions not inconsistent with the Act, and the rules and regulations made thereunder

for the purpose of removing such doubt, difficulty, lacuna inconsistency or anomaly.

If Regulation 10(iii) is read along with Regulation 91 it is evident that any instruction, if not inconsistent with the Act Rules and Regulations, will

be binding, and it is incumbent on the Zonal Promotion Committee to follows such instructions. The crucial date for determining the eligibility on the

basis of year of service, decided by the Board of Directorate on 5th April, 1976 in our opinion, is not inconsistent with the Act, the Rules and the

Regulations made thereunder. On the other hand as rightly put forth by Mr. A. Shanmugam, to prepare the penal it is necessary to take into

consideration the confidential report of a particular candidate for the whole year prior to the year of selection. That is why it is submitted by the

learned Counsel Mr. A. Shanmugam that the crucial period is fixed as ending with the 31st of December of the year preceding the selection year.

Mr. D. Raju, learned Counsel appearing for the Respondent, submitted that the instructions of the Board of Directors regarding the crucial

date for determining the eligibility, though passed by way of resolution on 5th April, 1976 at the meeting, were actually brought to the notice of the

Zonal Promotion Committee only subsequent to 30th June, 1976. As such, according to the learned Counsel, the said instructions cannot bind the

selection already made in June 1976 by the Zonal Promotion Committee. The learned Counsel further submitted that instructions have been issued

to the Zonal Promotion Committee of the various Zones to follow the instructions given by the Board of Directors in the meeting held on 5th April,

1976 for future empanelling of candidates for promotion. Therefore, the short question that we have to decide is whether the experience of three

years has to be reckoned as on the date of selection or as on the 3lst of December of the year preceding the year of selection.

The Board of Directors of the Food Corporation of India in their 97th meeting held on 5th April, 1976 decided that where a particular period

of experience for becoming eligible for promotion to the next higher grade is prescribed in the recruitment rules, the crucial date for determining the

eligibility on the basis of years of service should be 31st December of the year by the departmental promotion in all categories. We have held that

by virtue of Regulation 10(iii) and Regulation 91, such instructions are binding upon the Zonal Promotion Committee. These instructions have been

validly given in accordance with the staff Regulations. These instructions are communicated to all the Zonal offices with a covering fatter, dated

30th June, 1976. That covering letter stated that the instructions may kindly be brought to the notice of all promotion committees while drawing the

panels in future. If really such, instructions were known to the Promotion Committees only subsequent to 30th, June 1976, any selection made

prior to the knowledge of such instructions cannot be hit by such instructions. Once the Zonal Promotion Committee are aware of such

instructions, they cannot take shelter oh the ground that instructions were not communicated, to them.

Further, as rightly pointed out by Mr. A. Shanmugam, learned Counsel for the Appellant, the counter-affidavit filed by the Respondent does

not state that the Zonal Promotion Committee was not aware of such instructions issued by the Food Corporation of India prior to the June 1976

selection. On the other hand in paragraph-5 of the counter affidavit, the Respondent has stated as follows:

The post of Assistant Manager is in Category II and according to Clause 10 of the Staff Regulations read with Appendix part II is a selection post.

In accordance with standing instructions, the selection of the panel is to be by the Zonal Promotion Committee. I submit that in accordance with the

instructions issued by the Head Office, only those who have completed a three years period eligibility as on 31st December of the year previous to

the selection would alone be eligible for promotion and the Zonal Promotion Committee is expected to bear in mind this aspect also in drawing up

the list for promotion.

The main contention taken up by the Respondent is that the proceedings of the Zonal Promotion Committee are purely administrative in character,

that the committee is competent to prepare a revised list if the earlier list is found to be not in accordance with the instructions of the Head Office

or for similar reason and that the extraordinary jurisdiction of the High Court under Article 226 of the Constitution could not be invoked. Thus, it is

quite evident from the counter-affidavit of the Respondent, that the Zonal Promotion Committee was aware of such instructions, of the Board of

Directors and that is why it is specifically stated that the instructions must be borne in mind, while drawing up the list for promotion.

Thus the Zonal Promotion Committee had knowledge of such instructions given by the Board of Directors, much earlier to the drawing up of

the June list and it is patent from the counter-affidavit.

We are unable to share the view of Mohan, J., when he says that the three years period has to be reckoned as on the date to selection and that

the administrative instructions on the reckoning of the crucial date for service qualification runs counter to the statutory requirement. We have

earlier come to the conclusion that the said instructions are in accordance with Clauses 10(iii) and 91 of the Staff Regulations framed u/s 45 of the

Food Corporation of India Act and such instructions are binding on the Zonal Promotion Committee.

Even on the footing that the instructions can be considered to be administrative, those instructions will have binding force and any violation

thereof has to be considered as arbitrary. Reference in this connection may be usefully made to the decision reported in Ramana v. I.A. Authority

of India AIR 1970 S.C. 1628. That case dealt with the grant of a contract with reference to the running of a restaurant and snack bar at the

international airport at Bombay. Tenders were called for. The tender notice stated in clear terms that sealed tenders in the prescribed form are

hereby invited from the registered second class hoteliers having at least five years, experience for putting up and running a second class restaurant

and two snack bars at this airport for a period of three years. Admittedly, the person whose tender was eventually accepted did not have

experience of running second class restaurant or experience of five years as a registered second class hotelier as contemplated by the tender

notice, but had experience of running canteens only. The acceptance of the tender submitted by such a person was challenged in writ proceedings

by a person who had not even submitted a tender, which ultimately reached the Supreme Court and it was contended that the tender notice setting

out the conditions of eligibility had no statutory force and, therefore, even if it had been departed from that would not furnish any cause of action to

the Appellant before the Supreme Court to question the same. In dealing with the question of the eligibility required to be satisfied by every person

submitting a tender, the Supreme Court observed thus:

This was the standard or norm of eligibility laid down by the first Respondent and since the fourth Respondent did not satisfy this standard or norm,

it was not competent to the first Respondent to entertain the tender of the fourth Respondent. It is a well settled rule of administrative law that an

executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those

standards on pain of invalidation of an act in violation of them.

In this connection, the Supreme Court referred to with approval the following observations of Mr. Justice Frank Fur Fer in Vitarelli v. Seaton

(1959) 359 U.S. 535 L.ed. (2nd edition) 1012 (at page 1635):

An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from

employment is based on a defined procedure even though generous beyond the requirements that bind such agency, that procedure must be

scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so he that takes the

procedural sword shall perish with the sword.

We have already held that the Respondent was aware of the instructions issued by the Board of Directors of the Food Corporation of India

regarding the service qualification for the preparation of the panel for promotion to the post of Assistant Manager. Those instructions were given by

way of a resolution at the meeting held on 5th April, 1976 and according to them, the crucial date for the determination of the eligibility with

reference to years of service should be 31st of December of the year preceding the year of selection, for the purpose of drawing up a panel for

promotion. Regulation 10(iii) of the Staff regulations, 1971, as amended has been noticed earlier.

We have already held that the field of choice of the candidates will be regulated by the instructions issued by the Board of Director at the

meeting held on 5th April, 1976. In this case, the impugned panel was prepared on 25th June, 1976, while the instructions had been given by the

Board as regards the eligibility of candidates for such empanelling on 5th April, 1976. We have already adverted to the stand taken by the

Respondent in the counter-affidavit to the effect that the Zonal Promotion Committee had to bear in mind the inspections issued by the Head Office

and draw up the panel for promotion It is not the case of the Respondent in the counter-affidavit that it was unaware of the instructions at the time

of the preparation of the panel. The covering letter, dated 30th June,1976 sent from the Head Office already spells out that the instructions given

by the Board of Directors in the meeting held on 5th April, 1976 have to be followed while drawing up the panel in future. We are of the view that

the use of the expression in future occurring therein would apply with reference to the drawing up of panels subsequent to 5th April, 1976 the date

when the 97th meeting of the Board of Directors was held, at which the decision was taken by them to give the instructions regarding the

preparation of such panels. Even on the footing that such instructions would take effect only from the date of the knowledge, we have already held

that Respondent had knowledge of the instructions much earlier to the drawing up of the panel on 25th June, 1976. If so, the Zonal Promotion

Committee cannot consider the persons, who do not possess the requisite qualification as on 31st December, 1975. Admittedly, such candidates

have been considered in the selection held in June 1976. If so the drawing up of a panel on that basis cannot be sustained and has to be quashed.

The Food Corporation of India had already quashed the selection made in May 1976, and we make it clear that that will stand. The result is, the

new list drawn up by the Zonal Promotion Committee, Madras, on 25th June, 1976 in respect of Assistant Managers in the employment of the

Food Corporation of India is quashed.

In these circumstances and with the above said observations, the writ appeal is allowed. There will be, however, no order as to costs.