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1988 DIGILAW 553 (KER)

Ramachandran v. Food Corporation of India

1988-11-17

BHASKARAN NAMBIAR, MALIMATH

body1988
Judgment :- 1. This appeal is against the judgment of the learned single judge allowing O.P.No.71 of 1983. The appellants were holding the posts of Assistant Grade II in the West Zone. They sought voluntary transfer to south zone. That request was granted and they came to be transferred to the South zone. But they were not posted to function as Assistants Grade II but were posted to function as Assistants Grade III. This according to the appellants was on account of the fact that there were no posts in the south zone at the relevant point of time to accommodate them in the category of Assistants Grade II. When vacancies in the category of Assistants Grade II did arise, as the appellants' case for being accommodated in the cadre of Assistants Grade II was not considered, they came to this Court on an earlier occasion in O.P. No.4420/78. That writ petition was allowed and a direction was issued to the Zonal Manager and the Managing Director of the Food Corporation of India to accord them notional promotion to the category of Assistants Grade II on the dates on which the vacancies arose in the said higher category of Assistants Grade II, That judgment was challenged by the Food Corporation of India in W.A.No.251/82. The said appeal was dismissed and the judgment of the learned Single Judge was affirmed. In pursuance of the said decision, the Food Corporation of India passed orders as per Exts.P3 and P3(a) dated 22-11-1982 fixing the seniority of the appellants in the seniority list of Assistant Grade II by assigning the appropriate rankings. 2. It is in the aforesaid circumstances that respondents 3 and 4 presented O.P.No.71 of 1983 praying for the quashing of Exts.P3 and P3(a) and for a declaration that the judgment Ext.P2 and the judgment in W. A.No.251/82 are not binding on respondents 3 and 4 and for other consequential reliefs. The principal complaint of respondents 3 and 4 is that as they were not parties to the earlier decisions in O.P.No.4420 of 1978 and W.A.No.251/82, the directions issued by this court in those judgments shall not adversely affect their rights. The learned single judge accepted this contention, quashed Exts.P3 and P3(a) in so far as it relates to the appellants and directed that the dispute between the parties should be decided afresh by the Corporation after hearing all the parties concerned. The learned single judge accepted this contention, quashed Exts.P3 and P3(a) in so far as it relates to the appellants and directed that the dispute between the parties should be decided afresh by the Corporation after hearing all the parties concerned. It is the said judgment that is challenged in this appeal. Before we address ourselves to the merits of the case, we consider it appropriate to advert to certain procedural aspects. It is not disputed that in O.P.No.4420/78 and in W.A.No.251/82 affirming the said judgment in the O.P., respondents 3 and 4 were not parties. Assuming for the sake of argument that respondents 3 and 4 were necessary parties in the earlier cases, the question for consideration is as to what is the proper procedure to be adopted in a case like this. As things stand, there is one set of directions issued in O.P.No.4420/78 affirmed in W.A.No.251/82 directing the Food Corporation of India to assign notional dates of promotion to the appellants as and when vacancies in the category of Assistants Grade II arose after they stood transferred to the south zone. The said decision having been implemented and Exts.P3 and P3(a) having been passed by the Corporation, at the instance of respondents 3 and 4 the learned single judge has issued a direction in O.P.No.71/82 quashing those orders which were made in obedience to the directions issued by this court to the Corporation and issued a further direction to the Corporation to examine the matter afresh after due notice to all the parties. Thus we arrive at a situation, where there are two conflicting directions, one in O.P.No.4420/78 affirmed in W.A.No.251/82 directing the Food Corporation of India to do certain things and another direction issued by the learned single judge in O.P.No.71/83 commanding the Corporation to do something at variance with what has been directed by this court in the earlier case. So far as the Corporation is concerned, it cannot satisfactorily comply with the conflicting directions issued by this court in two sets of cases. So far as the Corporation is concerned, it cannot satisfactorily comply with the conflicting directions issued by this court in two sets of cases. In a situation like this, if a particular person is a necessary party and a decision has been rendered without impleading the necessary party, the proper course to be adopted is not to seek contrary directions at the hands of this court under Art.226 but to make an appropriate petition to reopen the earlier judgment on the ground that he was a necessary party and that the adverse decision rendered affects him and to get himself impleaded as a party and get the judgment rendered behind his back reviewed. That is the procedure which has to be followed as laid down by this court in W.A.No.683 of 1982, wherein it is observed as follows: "It is necessary to point out that the decision in O.P.No.1392/80 has become final, it having been affirmed by a Division Bench on appeal in W.A.No.693/82. The said decision, therefore operates as res judicata in this appeal even though the appellant was not a party to the said proceedings (vide Joseph v. State of Kerala (AIR 1965 SC 1514)). The proper course open to the appellant is to get the previous decision re-opened, as otherwise the appellant would be barred by the principle of res judicata. That this is the correct principle to be followed is what was ruled by the Supreme Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909). Hence on this short ground' the appeal is liable to be dismissed, as the decision in W.A.No.693/82 operates as res judicata." Following the said decision it has to be held that the learned single judge could not have allowed the writ petition and quashed Exts.P3 and P3(a) which have been passed in obedience to the judgment of this court in W.ANo.251/82. It is also not possible to understand the judgment of the learned single judge as having the effect of reopening the earlier decision of this court, for the obvious reason that the earlier judgment rendered in O.P.No.4420/78 stood affirmed and merged in the judgment rendered in W.ANo.251/82 by a Division Bench. Hence the learned single judge would not have reopened a judgment rendered by a Bench of two judges of this court in W.A.No.251/82. 3. Hence the learned single judge would not have reopened a judgment rendered by a Bench of two judges of this court in W.A.No.251/82. 3. Whatever may be the form in which respondents 3 and 4 sought relief at the hands of this court, this court could apply the principles indicated above and give appropriate reliefs to the parties. Now as the matter has come up before the Division Bench, though by way of appeal, where we are exercising jurisdiction under Art.226, it is open to us to reopen the earlier judgment rendered by this court in W.A No.251/82, if we are satisfied that grounds exist for doing so. It is from that angle that we propose to examine the merits of the case. 4. All the parties in the earlier proceedings are also parties to these proceedings. 5.When the appellants made a request for transfer from west zone to south zone, they were holding the posts in the category of Assistants Grade II. When a transfer is made in the interests of the Corporation, it is not disputed, that the transferred employee does not lose the benefit of the service which he had rendered in the zone where he was functioning before his transfer. But if the transfer is made at the request of the employee of the Corporation, the rights of the transferee were governed at the relevant point of time by the order produced as Ext.P1 in O.P.No.4420/78, the relevant portion of which reads as follows:- "In other cases where no mutual transfer is involved an employee on his transfer from one zone to another at his own request should be treated as a fresh entrant in the later zone for the purpose of seniority, i.e., he will reckon his seniority only from the date of joining the new zone in the particular post and as such he will not be given the benefit of service in a particular post in the old zone for the purpose of seniority in the new zone. The employees applying for transfer from one zone to another should be informed of the principles which are proposed to be applied for the determination of their seniority in the zones to which they seek transfer." The same principle stands incorporated in Regulation.16(7) of the Food Corporation of India (Staff) Regulation.1971 made in exercise of the power conferred by S.45 of the Food Corporation of India Act 1964. The relevant clause in this behalf reads as follows: 7. Relative seniority of an employee transferred from one unit to another. An employee transferred from one unit of seniority to another will be ranked as the juniormost in the particular category on the date he joins the new unit. If, however, such transfer is in the opinion of the competent authority in the interest of the Corporation, seniority of the transferee will be fixed in the new unit after giving full weightage to the service counting for seniority in the particular category in the old unit." Thus we find that right from the beginning a uniform principle has been enunciated by the Corporation in the matter of determination of seniority consequent upon voluntary transfer. A person who seeks a voluntary transfer from one unit of seniority to another is required to be ranked as the juniormost in the particular category on the date on which he joins the new unit. The only consequence that flows as a result of seeking voluntary transfer is the loss of the earlier service rendered in the unit in which the employee was serving. That is a principle which has been clearly enunciated in the earlier judgment of this court in W.A.No.251/82. Learned counsel for respondents 3 and 4 also does not dispute the correctness of that principle. But what he contends is that the appellants, on their transfer, were required to be placed at the bottom of the category of Assistants Grade III by application of the principle in Ext.P1 produced in O.P.No.4420/78 and Regulation.16(7) of the Regulations. For this argument an assumption is made that those belonging to Assistants Grade II and Assistants Grade HI as also those belonging to Assistants Grade I belong to one category. For this argument an assumption is made that those belonging to Assistants Grade II and Assistants Grade HI as also those belonging to Assistants Grade I belong to one category. If that assumption is correct, it follows that consequent upon the transfer of the appellants from the west zone to the south zone, the appellants were required to be placed at the bottom of all the employees who were in Grade I, II and III. This would mean that they had to be placed below all those who were in Grade III in south zone on the date on which the appellants came to be transferred. Respondents 3 and 4 would be right in this contention if an assumption is made that the category is one consisting of Assistants Grade I, II and III for the purpose of seniority. It is not disputed that promotion to the cadre of Assistants Grade II is required to be made from the cadre of Assistants Grade III. Similarly the promotions to the cadre of Assistants Grade I are required to be, made from Assistants Grade III. Thus it is clear that Assistants Grade III is feeder category for those in Assistants Grade II. Similarly Assistants Grade II is a feeder category for the cadre of Assistants Grade I. A feeder category as also a promotional category cannot both be regarded as forming one unit for seniority. Hence it is not possible to accept the contention of the learned counsel for respondents 3 and 4 that Assistants Grade I, II and HI must be regarded as one unit for the purpose of seniority. We have therefore no hesitation in taking the view that consequent upon promotion of a person from Grade III to Grade II, the seniority of that official has to be determined in the promotional category of Assistants Grade II and not in any combined category. Thus it follows that as a consequence of transfer of the appellants who were holding the posts of Assistants Grade II, they were required to be posted at the bottom of the seniority list of Assistants Grade II in the south zone. 6. Thus it follows that as a consequence of transfer of the appellants who were holding the posts of Assistants Grade II, they were required to be posted at the bottom of the seniority list of Assistants Grade II in the south zone. 6. Another contention was also urged by the counsel for respondents 3 and 4 to the effect that the appellants gave an undertaking at the time of their transfer not only to lose their seniority in the cadre of Assistants Grade II but also agreed to be posted in the lower category of Assistants Grade HL Our attention was invited to the averments of respondents 3 and 4 in Para.4 of the writ petition which reads as follows: "Respondents 3 to 7 fully knowing the clear provisions governing their inter zonal transfers gave a written undertaking to forego their past seniority and came over to the south zone and work in the lower grade for several years." This averment is only to the effect that the appellants being aware of the provisions governing inter-zonal transfers undertook to forego their seniority when they came to the south zone. Though there is a statement about the appellants having worked in the lower cadre for several years, it is not averred that the appellants agreed to work in the lower cadre consequent upon their seeking voluntary transfer. No other material has been placed before us to show that the appellants gave such an undertaking to be posted in the lower category of Assistants Grade III and at the bottom of the seniority list belonging to that category. The Corporation has in Para.7 of the counter affidavit stated that the appellants opted to come over to the south zone forfeiting their seniority in the original zone. They have not taken the stand that the appellants also forfeited their right to be placed at the bottom of the list of Assistants Grade II of the south zone and agreed to be placed at the bottom of Assistants Grade III in the south zone. We have therefore no hesitation in taking the view that the appellants did not give any such undertaking as contended by the learned counsel for respondents 3 and 4. 7. But the fact remains that the appellants were not accommodated in the post of Assistants Grade II consequent upon their transfer to the south zone. We have therefore no hesitation in taking the view that the appellants did not give any such undertaking as contended by the learned counsel for respondents 3 and 4. 7. But the fact remains that the appellants were not accommodated in the post of Assistants Grade II consequent upon their transfer to the south zone. They were actually accommodated in the post of Assistants Grade III. Respondents 3 and 4 have themselves stated in the writ petition that this was so done for the reason that there were no posts of Assistants Grade II in which the appellants could be accommodated on the date on which they stood transferred. It is staled that it is for that reason that they were accommodated in the lower category of Assistants Grade III. That also appears to be the stand taken by the Corporation. But as the rights of the appellants were governed by Ext.P1 produced in O.P.No.4420/78 and Regulation.16(7) of the Regulations, the appellants cannot be made to surrender any rights higher than those that are stipulated by these provisions. We would like to point out that what is contained in Regulation.16(7) and Ext.P1 referred to above is also a general principle which is applied consistently in service law. But having regard to the peculiar problem that arose in this case, there being not adequate posts to accommodate the appellants, it is obvious that as a stop-gap arrangement the appellants were accommodated in the lower category of Assistants Grade III. The rights of the appellant to be posted as Assistants Grade II consequent upon their transfer were required to be respected and given effect to by the Corporation. If it could not do so immediately for the reason that requisite number of posts were not available, it is obvious that it is the duty of the corporation to rectify the omission or mistake at the earliest opportunity when posts become available. Hence even though the appellants' rights are unreasonably abridged as a result of being posted as Assistants Grade III consequent upon their transfer, they do not lose their right for being placed at the bottom of the list of Assistants Grade II consequent upon their transfer. Hence even though the appellants' rights are unreasonably abridged as a result of being posted as Assistants Grade III consequent upon their transfer, they do not lose their right for being placed at the bottom of the list of Assistants Grade II consequent upon their transfer. That could be done by assigning to the appellants notional dates of promotion on the date on which the vacancies under the category of Assistants Grade II became first available after transfer to the south zone. We have therefore no hesitation in taking the view that the directions issued by this court in O.P.No.4420/78 affirmed in W.A.No.251/82, though not issued after giving an opportunity to respondents 3 and 4, are right directions to be issued having regard to the factual and legal position in this case. As the orders Exts.P3 and P3(a) have been passed consistent with the relevant facts and the law bearing on the question, they do not call for interference. For the reasons stated above this appeal is allowed, the judgment of the learned single judge is set aside and the original petition of respondents 3 and 4 is dismissed. No costs.