Sri. Suresh Mallya and Others vs The Karnataka Forest Development Corporation and Others

Anand Byrareddy, J.—Heard the Learned Counsel for the parties.

The Petitioners are employees of the Karnataka Forest Development Corporation (hereinafter referred to as '' the KFDC for brevity) which is a Government company as defined u/s 617 of the Companies Act, 1956. The Petitioners were working as First Division Assistants and as Superintendents as on the date of the petition. The private Respondents were said to be Accounts Assistants who were promoted as Superintendents, which orders are sought to be questioned in the present petition.

It is the case of the Petitioners that there have been two wings of services in the KFDC, namely, the Administrative Wing and the Accounts Wing. These wings, according to the Petitioners, are separate and independent of each Ors. This is evident from the fact that the employees of one wing were never transferred to the Ors. The promotional prospects are on the same vertical ladder in the very wing. It is further stated that the KFDC Cadre and Recruitment Rules, 1.992 (hereinafter referred to as '' C & R Rules'' for brevity) came into force in March 1992. The said Rules also did not provide for any common service Rules for the two wings. It is further stated that all the posts in the organisation have been classified under four groups, namely, A,B,C, and D. The posts winch are the subject matter of the present petition namely, the Superintendents, First Division Assistants and Accounts Assistants are classified under Group-C in terms of the Schedule to the C & R Rules.

It is the case of the Petitioners that the First Division Assistants consists of Accounts Assistants and First Division Assistants. The posts of Superintendents and First Division Assistants are tinder the Administration Wing whereas the posts of Accounts Assistants are under the Accounts Wing. This is the undisputed stand taken by the KFDC in various proceedings before this Court as evident from Annexures B, Bl and B2. The identity of the posts of Accounts Assistants and First Division Assistants has been retained even after their enlistment of common cadre of First Division Assistants and they are not merged to constitute one single post. With the framing of the C & R Rules, the management, by a Memorandum dated 9.8.1.995 prepared and published their Final Seniority List including the amalgamated cadre of First Division Assistants. The Accounts Assistants were not happy with that circumstance and had sought dismemberment from the common cadre. The management finally conceded the demand and by a resolution dated 23.6.1998 prescribed a higher pay scale to the Accounts Assistants from which date the Accounts Assistants ceased to be equals and have been treated as a separate clause for all functional purposes. The management by a Memorandum, dated 20.10.1998, published a separate Draft Gradation List of Accounts Assistants and a Final Seniority List followed on the same lines as per Memorandum dated 30.10.1998. There were no objections to the same not-even from the Accounts Assistants. Thereafter, promotions were also given to the First Division Assistants to the post of Superintendents. Two of the Petitioners were thus promoted and have continued as such and there was no objection from the Accounts Assistants. When that was the position, one Mulimani, who was to retire on 31.12.2004 as the Managing Director of the KFDC, is said to have issued an Office Order dated 7.10.2004 withdrawing the Gradation. List of October 1998 and thereby revived the Common Seniority List of both the First Division Assistants and the Accounts Assistants that was finalised in the year 1995, on the ground that the Board Resolution did not stand the test of legal scrutiny. Thereafter, yet another order was issued granting promotion to the contesting Respondents with retrospective effect from 31.10.1998. Some of the Petitioners herein had filed writ petitions in WP 46236-240/2004, challenging those orders. The contesting Respondents had entered caveat. this Court had, in the first instance, granted an interim order dated 1.12.2004, staying the impugned orders. Thereafter, final orders were passed on 10.11.2005 quashing the impugned orders and remitting the matter to the Board for a fresh consideration.

The main contest was whether there was an effective Board Resolution bifurcating the posts of Accounts Assistants from the cadre of First Division Assistants. and consequently, whether the separate Gradation List of First Division Assistants published on 31.10.1993 was illegal. The management, had constituted a two member Sub-Committee to address the issue. It is the complaint of the Petitioners that they were not personally heard in the matter nor was a copy of the report furnished to them. It transpires that in the meanwhile a Committee called Sugur Committee, which was constituted for studying the rationalisation of staffing pattern had submitted its recommendations, one of which was to the effect that the Accounts Assistants constitute a separate cadre and the First Division Assistants alone are to be promoted as Superintendents. There was no objection to the said recommendation. However, the Board of Directors, who had thereafter met on several occasions did not choose to deliberate on those recommendations. Therefore, a representation was made on 2.2.2006 furnishing relevant particulars including the orders of this Court. The Board, at its meeting on 31.5.2006. unilaterally resolved to revive the effect of the orders dated 7.10.2004 and 8.10.2004, which was earlier quashed by tills court. The Petitioners raised this objection, but the management ignored the same. The effect of the above resolution was that the 1995 Common Gradation List of both the First Division Assistants and the Accounts Assistants was revived rescinding the 1998 Seniority List of the First Division Assistants. Some of the Petitioners who had been promoted as Superintendents as early as in 1998 were rendered juniors to the contesting Respondents, who were promoted as such. There is however, no reference to the Sugur Committee recommendations inspite of the Petitioners having drawn specific attention to the same. It is in this background that the Petitioners are before this Court.

The Learned Counsel for the Petitioners while highlighting the above sequence of events would emphasize that the management has proceeded on a wrong legal premise that in the absence of a specific provision under the Rules, all posts enlisted in one cadre would automatically become the feeder cadre to the next higher post in the promotion. This premise is contrary to the law laid down in a catena of decisions and is contrary to the known canons of service Jurisprudence. The impugned orders retrospectively alter the ranking of the Petitioners and therefore, a vested right is taken away after a long lapse of time which was conferred on. them, without any objection from any of the contesting Respondents and by granting promotion to the Accounts Assistants to the Post of Superintendents, would amount to treating the unequals as equals and hence is violative of Article 14 of the Constitution of India. The impugned orders are also contrary to the principles of natural justice in as much as the Petitioners were not given an opportunity of due representation and have not been furnished with copies of the Sub-Committee Report and are therefore seeking that appropriate orders he passed.

The petition is contested by the Respondents. Respondent No. 2 has filed a separate statement of objections to contend that he was appointed as an Accounts Assistant in the year 1981-82 and that the Board of Directors of KFDC had constituted a Sub-Committee for drafting the Cadre and Recruitment Rules and recommended that the following posts be equated and treated as cadre, namely (a) First Division Assistant (b) Accounts Assistant (c) Junior Assistant (d) Purchase Assistant (e) Store Clerk (f) Sales Assistant (g) Cashier-cum-Clerks. This recommendation was examined by the Board and duly approved as on 1.2.1992.The State Government, in turn, had approved the Cadre and Recruitment Rules framed by the KFDC, which inter alia provided for merger of 58 posts from among 7 cadres into one common cadre of First Division Assistants. With the corning into force of the revised Cadre and Recruitment Rules, the Provisional Seniority List was prepared effective from 3.2.1992. On 9.8.1995 a Final Seniority List of First Divisicn Assistants, by taking into consideration common cadre of 7 posts was issued. There was anomaly of fixation of pay-scale, according to the second Respondent and this was resolved by the Board of Directors on. 23.6.1998 refixing the pay scale of the said Respondent with prospective effect. The resolution was incorrectly interpreted and KFDC prepared a Provisional Seniority List of Accounts Assistants alone. The said Respondent No. 2 had filed his objections that seniority list of Accounts Assistants could not have been prepared in the absence of any such provision in the Rules. In the face of the objections, an order was passed creating eight supernumerary posts and granting promotions to the First Division Assistants to the post of Superintendents while ignoring the second Respondent, who also was in the same cadre. It was on realising the mistake committed, a subsequent order was passed reversing the earlier order granting promotions to the First Division Assistants, which was the subject matter of challenge before this Court and on a direction issued, the Sub-committee had submitted its recommendations and. thereafter, further order has been passed granting promotions to 13 Accounts Assistants on the footing that there was no bifurcation amongst the posts from that of Accounts Assistants and by virtue of the revised 1992 Cadre and Recruitment Rules, they were treated as First Division Assistants. Hence, it is stated that there is No. infirmity in the impugned orders.

Respondent No. 4 to 11 have filed statement of objections to contend that the premise as to there being two wings of services in the KFDC namely, the Administration Wing and the Accounts Wing is denied. The 1992 Rules have merged the several posts of First Division Assistants, Junior Assistants, Cashiers, Store Clerks, Sales Assistants, Accounts Assistants into one cadre. The Final Gradation List of First Division Assistants after merger was prepared and published on 7.8.1995 and the Respondents are certainly senior to the Petitioners. A Gradation List dated 27.10.1990 was never operated as it was contrary to the Recruitment Rules. It is also denied that the Board Resolution of its 169th meeting has created a separate cadre. The Resolution only implements the guidelines issued by the State Government regarding fixation of pay scales. On the Ors. hand, the seniority list prepared was contrary to the Recruitment Rules and therefore it was ignored. The order passed by the Managing Director on 7.10.2004 only sought to implement the Cadre and Recruitment Rules. Though the Petitioner had challenged the said order and the matter was remanded for a fresh consideration, the Sugur Committee, which was appointed, in turn having also held in favour of the Respondents, there is no infirmity in. the impugned orders. The Recruitment Rules provide for only one wing and promotion after the merger. The contention that the Respondents had not filed any objection to the Gradation List prepared in the year 1998 is immaterial since the same was void ab initio. Reliance is placed on the following orders in support of their case.

(a) Chandrappa K and Anr. v. Karnamka State Small Industries Development Corporation Limited and Ors. WP 23630/2004

(b) Shivanna v. The Command Area Development Authority and Ors. WP 8373/2006

(c) Shivanna v. The Command Area Development Authority and Ors. WA 1921/2007

In the light of the above rival contentions, the basic premise on which the petition proceeds is that notwithstanding the framing of the Cadre and Recruitment Rules and in the absence of any provision therein whereby independent existence of two separate wings namely, the Administration Wing and Accounts Wing and on the further premise that the Draft Gradation List dated 20.10.1998 materialised into a Final Seniority List dated 30.10.1998 and on the basis of the same, the Petitioners seeking to challenge the promotion granted to the Respondents would require this Court to accept that contention in order to hold in their favour. This was the very contention raised in the earlier writ petition in WP 46236/2004 and to address the same, the matter had been remitted whereby the management had then appointed a Sub-committee to address the issue and the impugned orders having been passed on the basis of the said report which has found that with the merger of the several posts as aforesaid, it was no longer possible to hold that there were two separate wings namely. Administration Wing and Accounts Wing and in the absence of any express provision under the Rules in that regard, the promotion granted to the Petitioners was de hors the Rules and any Seniority List prepared contrary to the Rules would be void ah initio, would disentitle the Petitioners from laying claim to any such seniority.

Therefore, this Court does not find any scope for interference and the petition stands dismissed.