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2001 DIGILAW 333 (GAU)

Bhanu Lodh v. Union of India

2001-12-21

B.B.DEB

body2001
B.B. DEB, J. — By this writ petition under Article 226 of the Constitution of India, the petitioner sought for quashing/cancelling the communication dated 21.8.1995 issued by the Govt. of India and also for quashing the communication dated 6.11.1995 issued by the Govt. of India relating to recruitment process for filling up the posts of Joint Manager (Accounts), Joint Manager (General Administration), Deputy Manager (General Administration), Deputy Manager (Accounts), Deputy Manager (Technical) and Deputy Manager (Legal) and also for a writ of mandamus directing the respondent No. 3 to appoint the petitioner whose name had been figured in the select list for the post of Deputy Manager (Gen. Admn.) and also for quashing the subsequent advertisement dated 14-20/11/98 issued by the respondent No. 3 for fresh selection. 2. In short, the petitioner's case could be summarised as follows : The Food Corporation of India (in Short FCI) being a statutory body has been dealing with procurement/purchase of food grains and selling of the same through different State Governments in order to functioning the public distribution system smoothly and as such the administration of the FCI is subject to the provisions of the Food Corporation Act, 1964 (in short FC Act). The FCI floated an advertisement in Employment News weekly issue dated 6-12 November, 1993 inviting candidature for different posts. Along with others the petitioner also participated in the said selection process having offered his candidature for the post of Deputy Manager (Gen. Admn.). The department having conducted the selection process published select list wherein the petitioner's name was figured at serial No. 53. While the petitioner was expecting to be offered with the said post, the Union of India, respondent No.1 herein issued a letter dated 21.8.1995 directing the respondent No. 3, the Chairman, FCI not to fill up the existing vacancies in the cadre of Deputy Manager (Gen. Admn.). That was followed by another letter of Govt. of India dated 6.11.1995 by which the entire process for direct recruitment to various posts once advertised stood declared null and void by the Union of India, as a result the entire process was stopped causing irreparable loss to the petitioner. But curiously the respondent Nos.5 to 11 who were also selected under the said selection process have been appointed by the FCI, of course to the posts of Joint Manager and they have .been continuing in service. But curiously the respondent Nos.5 to 11 who were also selected under the said selection process have been appointed by the FCI, of course to the posts of Joint Manager and they have .been continuing in service. According to the petitioner, the Government of India having no authority/ competence issued the aforesaid directives amounting to interference in the internal management of FCI which is a body autonomy. The impugned communications had been signed by the Joint Secretary, Government of India and as such according to the petitioner, the directions contained in the aforesaid communications have no legal force as the same had never been issued in the name of the President of India pursuant to Article 77 of the Constitution of India. The petitioner made numerous correspondences, but of no avail. Hence this case. 3. The respondents Union of India and FCI filed joint counter-affidavit on 24.1.2000 resisting the claim of the petitioner contending, inter alia, that pursuant to the advertisement selection process was undertaken, but before the select list for the posts of Deputy Manager (Gen. Admn.). was approved by the Executive Committee of the Board of Directors, the respondent No.l issued a directive on 6.11.95 pointing out the irregularities and as a result, the selection process could not be finalised. But so far the posts of Joint Manager are concerned, the select list was finalised on 26.8.1994 and 19.7.1995 for Joint Manager (A/Cs) and Joint Manager (Genl.) respectively before the receipt of the directives issued by the Union of India dated 6.11.1995. Pursuant to the directives of the Union of India dated 6.11.1995, the selection process so far the posts of Deputy Manager are concerned, stood nullified. Though the joint counter-affidavit acknowledged that the select list for the post of Deputy Manager (Gen. Admn.) was prepared but before that select list could be approved by the Executive Committee, the aforesaid directives from the Union of India was received and everything was stalled. Pursuant to Section 6(2) of the FC Act, 1964, the FCI authority is bound to follow and to abide by the directives issued by the Central Government. Admn.) was prepared but before that select list could be approved by the Executive Committee, the aforesaid directives from the Union of India was received and everything was stalled. Pursuant to Section 6(2) of the FC Act, 1964, the FCI authority is bound to follow and to abide by the directives issued by the Central Government. There is a reference in the counter-affidavit that the Hon'ble Andhra Pradesh High Court held in a writ petition bearing number W.P. • 18960/94 that the FCI is bound to follow the instructions of the Government of India under Section 6(2) of the FC Act and that decision was affirmed by the Division Bench of the Andhra Pradesh High Court in W.A. No. 659 of 1996. There is also another reference that the Hon'ble Jammu & Kashmir High Court also shared the same view in W.P. No. 647 of 1996 holding, inter alia, that the Central Govt's. decision relating to appointment of the officers and staff of FCI is binding upon the Corporation in view of Section 6(2) of FC Act, 1964. The counter-affidavit further contends that since the Government of India vide letter dated 6.11.1995 declared the recruitment process of November, 1993 being null and void and since the directives was issued by the Government of India pursuant to Section 6(2) of FC Act, 1964, the further processing of the select list had rightly been avoided and as such the petitioner has no case. 4. It is pertinent to mention here that initially Mr. P.B. Dhar, learned counsel, represented both the Union of India and FCI as Senior Central Govt. Standing Counsel and filed joint counter-affidavit, but subsequently Mr. Dhar ceased to be the Senior Central Govt. Standing counsel w.e.f. 8.5.2000 and none was appointed by the Union of India to conduct the case. Mr. Dhar along with Mr. D.K. Biswas, learned counsel argued the case only on behalf of FCI (Order sheet dated 18.12.2001 may be referred to). 5. From the pleadings of the parties, the following point emerged to be decided : "Whether the Government of India has any lawful authority to interfere with the internal administration of FCI, particularly relating to the matter regarding internal management viz. appointments and service of its staff ?" In this respect, Mr. S. Deb, learned senior counsel appearing on behalf of the petitioner referred Section 6 of the FC Act, 1964. appointments and service of its staff ?" In this respect, Mr. S. Deb, learned senior counsel appearing on behalf of the petitioner referred Section 6 of the FC Act, 1964. For convenience sake, the same is reproduced below: "6. Management - (1) The general superintendence direction and management of the affairs and business of the corporation shall vest in a board of directors which may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation under this Act. (2) The board of directors, in discharging its functions, shall act on business principles having regard to the interests of the producer and consumer and shall be guided by such instructions on questions of policy as may be given to it by the Central Government. (3) If any doubt arises as to whether a question is or is not a question of policy, the decision of the Central Government thereon shall be final." Mr. Deb, learned senior counsel for the petitioner submits that in view of sub-section (1) of the aforequoted Section 6 of the FC Act, the Board of Directors have the sole control and superintendence relating to the management of the affairs and business of the Corporation and pursuant to sub-section (2) of Section 6, the Central Government may provide guidance so far the business principles of the Corporation are concerned. According to the learned senior counsel, the business principles mean and include the matters pertaining to procurement of food grains, movement thereof and sale and distribution including fixation of rates. According to the learned senior counsel, the management of the Corporation pertains to internal administration including the appointment, transfer, promotion of its staff and employees. 6. On careful perusal of the aforequoted sub-section (1) and (2) of Section 6 of FC Act, 1964, it appears that so far policy decision is concerned regarding the business of the Corporation which obviously includes procurement, storage, distribution, sale of the food grains/food stuff, the Central Government has undoubtedly power to give policy directions, but so far internal management of its staff is concerned which includes appointment, promotion, transfer of the staff and employees of the Corporation, the Central Government has nothing to say. 7. From the counter affidavit filed by the respondents it remains acknowledged that the petitioner having fulfilled the pre-requisite criteria required for the post of Deputy Manager (Gen. 7. From the counter affidavit filed by the respondents it remains acknowledged that the petitioner having fulfilled the pre-requisite criteria required for the post of Deputy Manager (Gen. Admn.) participated in the selection process and in the select list his position stood figured at serial number 53 (Annexure-D), but in view of the order issued by the Government of India in the Ministry of Food, the select list could not be finalised. The Central Govt.'s order bearing No. 12-6/95-FC.I dated 21.8.1995 as available under Annexure-E to the writ petition speaks that the Central Government in exercise of power under Section 6(2) of FC Act, 1964 directed the existing vacancies to be freezed. From the subsequent letter bearing D.O. No. 10-4-/ 95-FC.I dated 6.11.1995 issued by the Govt. of India in the Ministry of Food, it appears that due to violation of Recruitment Rules, the Government of India was constrained to treat the entire selection process to be null and void. 8. The counter-affidavit jointly filed by the FCI and the Union of India reveals that the Government of India declared the selection process to be null and void by its communication dated 6.11.1995 and as such the authority could not approve the finally prepared select list so far the posts of Deputy Manager (Gen. Admn.) are concerned though the select list so far the posts of Joint Manager are concerned had been finalised on 26.8.1994 prior to the directives issued by the Government of India. 9. In view of the Government of India's order dated 21.8.1995, all the existing vacancies, regardless of the classification of posts, stood freezed and as such there cannot be any discrimination between the two posts under the select list viz. Deputy Manager on one hand and Joint Manager on the other. The select list so far it relates to the posts of Joint Manager, the authority finally approved the select list followed by issuing of appointment letters by which the respondent Nos. 5 to 11 have been appointed while the select list for the post of Deputy Manager (Gen. Admn.) had been stalled. This discriminatory treatment obviously violates Articles 14 and 16 of the Constitution of India and no lawfully acceptable reason had been put forward by the respondents. 10. 5 to 11 have been appointed while the select list for the post of Deputy Manager (Gen. Admn.) had been stalled. This discriminatory treatment obviously violates Articles 14 and 16 of the Constitution of India and no lawfully acceptable reason had been put forward by the respondents. 10. In my considered opinion, sub-section (2) of Section 6 of FC Act no way relates with the internal administration of the Corporation pertaining to appointment and service of the staff concerned, rather the provision is applicable to the business principles of the Corporation. So far the business policy of the Corporation is concerned, the Central Government has the power to regulate it by issuing directives, but so far the internal management of staff and employees is concerned, the Central Government has nothing to do. Moreover, it is not the case of the respondents that due to financial crunch, all sorts of appointment stood freezed because of the fact that admittedly out of the same selection process, the posts of Joint Manager have been filled up as has already been discussed. 11. Under the aforesaid circumstances and the legal position discussed, I am of the considered opinion that the impugned order bearing No. 12-6/95-FC.I dated 21.8.95 is not applicable to the internal management of the Corporation so far it relates to recruitment, transfer, promotion of its staff is concerned. The Government of India has the power only under Section 6(2) of the Act to give directives so far the commercial business of the Corporation is concerned, but the Central Government has no business with nor has any way been vested with power under sub-section (1) of Section 6 of the Act to interfere with the internal administrative affairs of the Corporation. 12. It is not the case of the Corporation that the board of directors of the Corporation at its own discretion stalled the selection process and as such in refraining from acting upon the prepared select list, the board of directors of FCI has been influenced by external and extraneous consideration being unduly influenced by the directives of the Central Government. The Central Government cannot exercise any power under Section 6(1) of the Act and as such the board of directors should have proceeded with the selection process they initiated. 13. Under the aforesaid, I am left with no other alternative but to allow the petition. The writ petition succeeds. The Central Government cannot exercise any power under Section 6(1) of the Act and as such the board of directors should have proceeded with the selection process they initiated. 13. Under the aforesaid, I am left with no other alternative but to allow the petition. The writ petition succeeds. The impugned order bearing No. 12-6/95-FC.I dated 21.8.1995 issued by the Government of India having no sanction of law and as such the subsequent directives issued by the Central Government vide D.O. No. 10-4/95-FC.I dated 6.11.1995 have no manner of legal application. The FCI authority is to act in accordance with the prepared select list within 60 (sixty) days. 14. The writ petition is allowed accordingly with no order as to costs.