Ravi Nandan Sharma v. Food Corporation of India — 1992 DIGILAW 314 (ALL)

JUDGMENT S P. Srivastava, J. 1. While the petitioner was an employee of the Central Government holding the post of Upper Division Clerk, he was deputed to work with the Food Corporation of India, which established under the provisions of the Food Corporation Act, 1964 and was sent there on deputation on 7th April, 1969 and posted as Assistant Grade 2, which was a post equivalent to that of Upper Division Clerk. The Food Corporation of India framed (Staff) Regulations 1971 in exercise of the jurisdiction conferred by Section 45 of the Food Corporation Act, 1964, which were published in the Gazette on 8-5-1971. The petitioner was granted promotion to the post of Assistant Grade-I by the Food Corporation of India under the order dated 13th December, 1970. In the Zonal seniority list of the Assistant Grade-I, the petitioner was placed all serial No. 199. He was granted a further promotion to the post of Assistant Manager (General) under the order dated 12th April, 1972. However, vide an order dated 23-12-1974 a true copy of which has been filed as Annexure-4 to the writ petition he was reverted to the post of Assistant Grade-I. The petitioner has challenged the order reverting him to the post of Assistant Grade-1, by means of this writ petition, which had been filed on 13th Feburary 1975, 2. During the pendency of this writ petition various developments took place which had some bearing on the controversy raised in the case, and were brought to the notice of the Court by means of Supplementary Affidavits which form part of the record. We have heard Sri Rakesh Dwivedi, learned counsel for the petitioner and Sri N. P. Singh, appearing for the respondent Food Corporation of India at some length and have carefully perused the record. 3. We have heard Sri Rakesh Dwivedi, learned counsel for the petitioner and Sri N. P. Singh, appearing for the respondent Food Corporation of India at some length and have carefully perused the record. 3. From the facts brought on record, it is apparent that by 21st July 1979, the petitioner continued to be a Central Government employee working with the Food Corporation of India on deputation On 21st July, 1979, the Central Government issued a notification, which was published in the Gazette of India, whereunder exercising the jurisdiction envisaged under section 12-A of the Food Corporation Act, 1964, the petitioner was transferred to the Food Corporation of India with effect from 1-4-69 and it was with effect from the aforesaid date that the petitioner became a 'transferred employee' as contemplated under Regulations 2 (1) of the Food Corporation of India (Staff) Regulations, 1971. It further appears from the record that after his reversion under the order dated 23-12 1974, the petitioner was again promoted to the post of Assistant Manager (General) on 4-9-1979 and since then he is continuing to hold that post. It is, therefore, obvious that the dispute raised in the present case is now confined to the validity of the order dated 23-12-1974 and the question as to whether the petitioner was entitled to be treated as continuing to hold the post of Assistant Manager (General) during the period between 23-12-197'4 and 4-9-1979 and further entitled to the service benefits attached to the 3aid post during the said period- 4. The petitioner claims that he was entitled to the benefits available under the provisions contained in the Food Corporation of India (Staff) Regulations, 1971 and the decision of the Food Corporation of India contained in its circular dated 15th May, 1975 which had been issued for regularisation of the 'transferred employee' as envisaged under Regulations 2 (1) of the Regulations, who had been permanently absorbed in the service of the Corporation. On his behalf it has further been asserted, that in the circumstances of the case, he will be deemed to have been confirmed on the post of Assistant Manger (General) on account of his having been selected by the Zonal Promotion Committee which bad considered the case of the petitioner for promotion in its meeting held on 28-3-1973 and the impugned order of reversion clearly amounted to an order imposing punishment, which having been passed in violation of the procedure prescribed under Regulation 58, without affording any opportunity of being heard was void ab-initio. It has been asserted by the petitioner that a meeting of the Zonal Promotion Committee had been held on 28th March, 1973 and the petitioner was duly considered by the said Committee and found suitable to hold the post of Assistant Manager (General). It has been further asserted that the petitioner was never served with a charge-sheet nor any explanation was asked from him nor he was given any warning or adverse comment and his record of service was unblemished. He has further asserted that the order of reversion has been passed in an arbitrary and in a grossly discriminatory manner. The petitioner has thus, claimed benefits envisaged under the decision of the Food Corporation of India contained in its circular dated 15th May, 1975 as well as the protection envisaged under tine Regulation 15 of the Regulations. The counsel for the Food Corporation of India, on the other hand,has contested the claim of the petitioner asserting that the petitioner was not governed by the Food Corporation of India (Staff) Regulations, 1971. It has been further asserted on behalf of the Corporation that the Promotion of the petitioner on the post of Assistant Manager (General) was on a purely temporary and ad hoc basis. It has further been asserted that the post of Assistant Manager (General) is a selection post, the criterian for promotion being seniority cum merit and that the petitioner had been reverted consequent upon his not having been found fit for promotion by the Zonal Promotion Committee, which had met on 22-10-1974. It has further been asserted that in the circumstances, the question of imposing any punishment or the impugned order being vitiated on account of being discriminatory did not arise. 5. It has further been asserted that in the circumstances, the question of imposing any punishment or the impugned order being vitiated on account of being discriminatory did not arise. 5. The question as to whether the provisions contained in the Food Corporation of India (Staff) Regulations, 1971 could be made applicable to the case of the petitioner and as to whether he was entitled to the protection evisaged there under really depends on the interpretation and effect of the notification dated 21st July, 1979 issued by the Central Government in exercise of its jurisdiction envisaged under section 12-A of the Food Corporation Act, 1964. 6. The relevant portion of section 12-A of the Act referred to above in as under :- "12A Special provisions for transfer of Government employees to the Corporation in certain cases (1) Where the Central Government has ceased or ceases to perform any functions which under section 13 are functions of the Corporation, it shall be lawful for the Central Government to transfer by order and with effect from such date or dates (which may be either retrospective to any date not earlier than the 1st January, 1965, or prospective) as may be specified in the order, to the Corporation any of the officers or employees serving in the Department of the Central Government dealing with food or any of its subordinate or attached offices and engaged in the performance of those functions : Provided.......... (2) .............. (3) An officer or other employee transferred by an order made under sub-section (1) shall, on and from the date of transfer cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and Thalf| (subject to the provisions of sub-sections (4), (4A), (4B), (4C), (5) and (6) be governed by the regulations made by the Corporation under this Act as respects remuneration and other conditions of service including pension, leave and provident fund, and shall continue to be an officer or employee of the Corporation unles and until his employment is terminated by the Corporation. (4) .......... (4A).......... (4B).......... (4C).......... (5) .......... (6) .......... (4) .......... (4A).......... (4B).......... (4C).......... (5) .......... (6) .......... (7) .........." (emphasis supplied) The provisions contained in section 12-A of the Food Corporation Act, 1964 made it lawful for the Central Government to transfer by order and with effect from such date or dates, which may be either retrospective to any date not earlier than the 1st January, 1965 or prospective as may be specified in the order of the Corporation, all the officers or employees serving in the department of the Central Government dealing with the Food or any of its subordinate or attached offices and engaged in the performance of those functions. Sub-sec. (3) of section 12-A of the aforesaid Act provides that an officer or employee transferred by an order made under sub-section (1) shall on and from the date of transfer cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and shall be governed by the Regulations made by the Corporation under the Act with respect to remuneration and other conditions of service and shall continue to be an officer and employee of the Corporation unless and until his employment is terminated by the Corporation. Sub-section )4) of section 12-A provides that every officer or employee transferred by am order made under section (1) shall within six months from the date of transfer exercise his option in writing as envisaged under that provision. It is not disputed in this case that the petitioner had submitted his option within the stipulated period From a perusal of the provisions contained in section 12-A of the Food Corporation Act, 1964 to which a reference has been made above, it is apparent that the Central Government had been specifically authorised to transfer its employee with retrospective effect. It is further apparent that on the order of transfer having been passed as envisaged under sub-section (1) of section 12-A of the Act, the employee concerned is to be deemed to have become an employee of the Corporation from the date of transfer, specified in the order issued by the Central Government in exercise of the jurisdiction envisaged under subsection (1) of the section 12-A of the Act. 7. 7. In the present case, the notification dated 21st July, 1979, which had been issued by the Central Government in exercise of the jurisdiction envisaged under sub section (1) of section 12-A of the Act, specifically mentions the date of transfer of the petitioner to be 1-4-69. It is, therefore, obvious that with the issuance of: the notification dated 21st July, 1979, the petitioner stood transferred to the Food Corporation of INdia with retrospective effect from 1-4-1969. This retrospective transfer of service had been specifically permitted under the provisions of section 12-A of the Food Corporation Act, 1964 and the provisions contained in section 12-A (3) of the Act clearly stipulate that by virtue of a statutory fiction, the petitioner was to be deemed to be an employee of the Food Corporation of INdia w.e.f. 1st April, 1969. 8. In the above connection, it may be noticed that the aforesaid statutory legal fiction, securing in favour of the petitioner the status of an employee of the Corporation with effect from 1-4 69 has to be given full effect and a state of things will have to be assumed in accordance with the aforesaid fiction and the rights of the parties will have to be determined on that basis. It is a rule of interpretation well settled that in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts, on which the fiction can operate. A construction, which would defeat the object of the notification dated 21-7-79 must be avoided. The aforesaid position in law stands settled by the decision of the Apex court in the cases of Maharashtra State Textiles Corporation Limited v. The Official Liquidator, AIR 1978 SC 476 and Commissioner of INcome Tax Delhi v. S. Teja Singh, AIR 1959 SC 352 . In the case of Maharashtra State; Textiles Corporation (supra) it has been observed thus : "In the rase of East End Dwellings Co. In the case of Maharashtra State; Textiles Corporation (supra) it has been observed thus : "In the rase of East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109, Lord Asquith observed as follows :- "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the punative state of affairs had in fact existed, must inevitably have flowed from or accompanied it-----The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." These observations were quoted with approval by this Court in the case of Mr. Boucher Pierre Audre v. Supdt., Central Jail, Tihar, New Delhi, AIR 1975 SC 164 , where Bhagwati, J. speaking for the Court observed as follows "It is now well settled law that where a legal fiction is created, full effect must be given to it and it should he carried to its logical conclusion" 9. In the facts and circumstances, indicated above there cannot be any escape from the conclusion that the petitioner was entitled to the benefits available under the provisions contained in Food Corporation of INdia (Staff) Regulations, 1971. IN veiw of the retrospectively envisaged under the order of the Central Government issued an 21-7-79, the petitioner clearly fell within the category of 'transferred employee' as contemplated under the Food Corporation of INdia (Staff) Regulation, 1971 w.e.f. the date of his transfer i e 1-4- 1969. 10. The contention raised by the counsel for the Food Corporation of India to the contrary cannot, therefore, by accepted. However, so far as the question relating to the benefits made available under the Circular issued by the Fool Corporation of India dated 15-5-75 is concerned, the contention raised by the learned counsel for the petitioner has no substance. In this connection it may be noticed that the aforesaid Circular stands on an entirely different footing. As has been indicated above, the impugned order of reversion had been passed on 23-12-74 i.e. at a time much anterior to the issuance of the aforesaid Circular. In this connection it may be noticed that the aforesaid Circular stands on an entirely different footing. As has been indicated above, the impugned order of reversion had been passed on 23-12-74 i.e. at a time much anterior to the issuance of the aforesaid Circular. There is nothing in the aforesaid Circular which may lead to an inference that it was retrospective in operation so as to have any effect on the impugned order of reversion. It cannot, therefore, come to the rescue of the petitioner. Further he cannot derive any benefit out of it for assailing the impugned order of reversion as he falls out side the: category of the Food-Transferee- Promotees' covered by the said Circular providing that an ad hoc promotee will be deemed to be on probation, presupposing such promotion to be on a regular basis. In any case, the circular in question being an administrative order, could not, under the law, have the effect of diluting the rigour of Regulation 10 of the Regulations of 19711 so as to dispense with the requirement of consideration by the promotion Board as envisaged under the Regulations which have statutory force. This conclusion is inescapable in view of the decision of a Division Bench of this Court in the case of Mohan Lal Mehrotra v. Comptroller and Auditor General of India, 1979 AWC 602 . 11. In the first supplementary affidavit filed by the petitioner it had been clearly asserted that the meeting of the Zonal Promotion Committee was held on 28-3-73 and this Zonal Promotion Committee had found the petitioner suitable for holding the post of Assistant Manager (Central). IN the supplementary counter-affidavit which had been filed in reply to the allegations made in the aforesaid first supplementary affidavit, the aforesaid assertion was not specifically denied and what had been asserted in reply to the aforesaid allegations was that this allegation was not relevant. IN the aforesaid supplementary counter affidavit, the Food Corporation of INdia had asserted that the petitioner was also considered by the Zonal Promotion Committee at its meeting held on 22-10-1974 and this Committee had not considered him fit for promotion The correctness of the assertion of the fact that a Zonal Promotion Committee had met on 28th March, 1973 and had considered the case of the petitioner was never disputed by the Food Corporation of INdia. IN the case of S. K. Sethi v. Food Corporation of INdia and others (Civil Writ No. 151 of 1975) decided by the Delhi High Court on 25th April 1988, the Food Corporation of INdia had taken up a definite stand there that a Zonal Promotion Committee had infact met on 28-3-1973 and had considered the cases of Assistants Grade-I up to the seniority position of 232 for the regularisation of their promotions to the post of Assistant Manager (General). The seniority position of the petitioner at the relevant time was at serial no. 199. It is, therefore, obvious that the question of regularisation of the petitioner's promotion had been considered by the Zonal Promotion Committee, which had met on 28-3-1973 and he was not found unfit as he was allowed to continue to hold the post, although on the basis of the recommendations of the aforesaid Committee several persons, some of whom ware senior to the petitioner and some of whom were junior to him were reverted. It is not the case of the Corporation that the petitioner had been found unsuitable for promotion by the Zonal Promotion Committee, which had met on 28-3-1973. IN this view of the matter once the petitioner had been considered by the Zonal Promotion Committee in its meeting held on 28th March, 1973 and was considered fit for promotion, there could not arise any question of his being considered for the same purpose again by the Zonal Promotion Committee in its meeting held on 22-10-74. The petitioner, therefore, could not have been reverted on the basis of the report of the Zonal Promotion Committee, which is said to have met on 22-10-1974 and in case the petitioner was sought to be reverted on the basis of the assessment of his work or conduct during the period elapsing between 28-3-73 and 22-10-74, in pursuance of the recommendations of the Committee which is said to have met on 22-10- 74, it was incumbent upon the respondent to comply with the requirements of Regulation 58 of the Staff Regulations, 1971 and afford an opportunity of hearing to the petitioner before passing the impugned order which has admittedly not been done in the present case. As a matter of fact the respondent Corporation has clearly assarted in the counter-affidavit filed on its behalf dated 1-3-76 and in the supplementary counter-affidavit of the same date that the impugned order had not been passed as a measure of punishment. IN these circumstances there could be no justification for passing the impugned order of reversion when the Zonal Promotion Committee which had met on 28-3-73 had already cleared the case of the petitioner and found him suitable for promotion. The effect of the recommendations of the aforesaid Zonal Promotion Committee was that the ad hoc promotion of the petitioner stood regularised. 12. As has already been indicated above in the facts and circumstances of the case the petitioner was entitled to the benefits available under the Regulations of 1971. The effect of the approval of the Promotion Committee of the name of the petitioner was that the petitioner was to be deemed to have been regularly appointed under Regulation 7 (1) of the Regulations. He had been promoted to the post of ASsistant Manager (General) on 12-4-72. On this regularisation even if the status of the petitioner is taken to be that of a Probationer it is not the case of the Corporation that the probationary period of the petitioner was ever extended or that discharge of the duties attached to the office on which the petitioner had been promoted was unsatisfactory in any manner. The petitioner will thus, be deemed to have completed the probationary period after the expiry of one year and will be deemed to have been confirmed. It has been held in the case of State of Punjab v. Dharam Singh, 1968 (2) SLR 247 by the Apex court that where the service rules fixed a certain period of time beyond which the probationary period cannot be extended and an employee promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without any express order of confirmation, he cannot be deemed to continue in that post as probationer by implication. It has further been held in the aforesaid decision that in such a case it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication, It may be noticed hat under the Regulations of 1971 the limit of the period of probation is fixed as one year from the date of appointment which period could be extended by a further period not exceeding one year. This is so provided in Regulation 15 of the Regulations. Examining the case from this point of view also, taking into consideration the principle indicated above it is, therefore, obvious that in the circumstances of the case, the petitioner will be deemed to have been confirmed in the post of ASsistant Manager (General) much before the passing of tie order dated 23-12-74 and consequently the impugned reversion could not have been ordered in the manner as done by the respondents in the present case. In view of our conclusions indicated hereinbefore, the writ petition succeeds and is allowed. The impugned order dated 23-12-1974, a true copy of which has been filed as Annexure 4 to the writ petition is quashed with a direction that the petitioner with be entitled to the consequential benefits. In the peculiar circumstances of the case, we, however, direct the parties to bear their own costs. Petition allowed.