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2002 DIGILAW 796 (AP)

Bandala Bhaskar Rao v. Zonal Manager, Pood Corporation of India

2002-06-28

DALAVA SUBRAHMANYAM, S.R.NAYAK

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S. R. NAYAK, J. ( 1 ) THIS Writ Appeal is by the unsuccessful writ petitioner and is directed against the order of the learned Single Judge dated 5-2-2002 made in W. P. No. 4146 of 1990. ( 2 ) THE appellant-petitioner filed the above writ petition praying for a certiorari to quash the office order No. PF/3711/e1 A4 dated 8-8-1989 issued by the Senior Regional manager, Food Corporation of India, hyderabad, the 2nd respondent herein. The impugned proceeding reads as under:"the FOOD CORPORATION OF INDIA regional OFFICE: HYDERABAD-4no. PF/3711/e. I. A4 dated: 8-8-1989to the DM, FCI, Kmm. Sir,sub. : Sri Bandla Bhaskar Rao, AGII (Depot) - Revision of Seniority-reg. REF. : D. O. Lr. VZA No. Esst. A1/1446/pf dt. 24-4-89. PLEASE refer letter cited. A copy of zonal Office Lr. No. 5/10 (2)/88-SC dt. 4-5-1989 is forwarded herewith wherein seniority of Sri Bandla bhaskara Rao has been revised from s. No. 497 to S. No. 1128 (a) below sri K. R. Krishna at S. No. 1128 and above Sri U. Gopaiah at S. No. 1129 in the seniority list of AG. III (D) as on 31-5-1977. In the seniority list of AG. III (D) as on 31-12-1986 the seniority of Sri Bandla bhaskara Rao, has been fixed at s. No. 642 (a) in between K. R. Krishna at s. No. 642 and U. Gopaiah at S. No. 643. Further informed that Bandarupalli bhaskara Rao, seniority will not undergo any revision as his seniority has been refixed at appropriate place. The officials may be informed accordingly and necessary entries made in service record. YOURS faithfully sd. /- for Sr. Regional Manager. " ( 3 ) ON the basis of the impugned proceeding dated 8-8-1989 which was assailed in W. P. No. 4146 of 1990, the Zonal manager, Food Corporation of India, madras passed the office order 888/91/ estt. I, dated 23-9-1991 reverting the petitioner to the post of Assistant Grade III (D) from the post of Assistant Grade II (D ). Being aggrieved by the said action of the zonal Manager dated 23-9-1991, the petitioner has filed W. P. No. 15062 of 1991 seeking quashing of the said order. I, dated 23-9-1991 reverting the petitioner to the post of Assistant Grade III (D) from the post of Assistant Grade II (D ). Being aggrieved by the said action of the zonal Manager dated 23-9-1991, the petitioner has filed W. P. No. 15062 of 1991 seeking quashing of the said order. ( 4 ) THE validity of the impugned proceeding dated 8-8-1989 was assailed, inter alia, on the ground of violation of principles of natural justice, inasmuch as no notice was given to the writ petitioner before the impugned proceeding was issued by the 2nd respondent. As could be seen from the impugned proceeding, the rank assigned to the writ petitioner in the Seniority list of assistant Grade-Ill (D) was reduced from s1. No. 497 to 1128 (a), that is to say, below k. R. Krishna at S1. No. 1128 and above u. Gopaiah at S. No. 1129. The impugned action is dated 8-8-1989. Admittedly, the writ petitioner joined the service of the corporation as Assistant Grade-Ill (D) on 2-8-1976 and his appointment was on regular basis and against the backlog vacancies. It appears that after the petitioner s entry into service, the final seniority list of Assistant Grade-Ill (D) was prepared oh 31-5-1977 and the writ petitioner was assigned the rank at s. No. 497. It further appears that on the basis of the rank assigned to the writ petitioner in the final Seniority list of Assistant-Grade-III (D), he was promoted as Assistant Grade-II (D) with effect from 27-8-1979. Nearly after one decade from the promotion of the petitioner to the post of Assistant Grade-II (D) and nearly after 12 years from the preparation of the Seniority list of Assistant grade-III (D), the impugned proceeding came to be issued. At this juncture itself, it needs to be noticed that the impugned proceedings of the 2nd respondent dated 8-8-1989 has ultimately resulted in the reversion of the writ petitioner from assistant Grade-II (D) to Assistant Grade-III (D) post by office order No. 888/91/estt. I, dated 23-9-1991, the validity of which is impugned by the writ petitioner in W. P. No. 15062 of 1991. That is why that writ petition was directed to be tagged on to this writ appeal by an order of the Court and accordingly they are placed before us for final hearing and disposal. I, dated 23-9-1991, the validity of which is impugned by the writ petitioner in W. P. No. 15062 of 1991. That is why that writ petition was directed to be tagged on to this writ appeal by an order of the Court and accordingly they are placed before us for final hearing and disposal. ( 5 ) IT is trite that the impugned proceeding dated 8-8-1989 impugned in W. P. No. 4146 of 1990 has the effect of vitally affecting the legal rights of the writ petitioner and, in fact, as anticipated, the said impugned action led to the reversion of the writ petitioner from the post of Assistant Grade-II (D) to the post of Assistant Grade-Ill (D ). Affected should be apprised is the constitutional creed flowing not only from Article 14 of the constitution, but also from the principles of natural justice. Admittedly, before the impugned proceeding dated 8-8-1989 was issued by the 2nd respondent, no notice was given to the writ petitioner to have his say in the matter. However, the learned Judge did not think it appropriate to interfere with the impugned proceeding of the 2nd respondent dated 8-8-1989 by observing as under:"there is no dispute with regard to the legal proposition. But in the instant case, due to the identical names of the petitioner and his colleague viz. , b. (Banda) Bhaskararao and b. (Bandarupalli) Bhaskararao respectively working at one place in district office, Vijayawada, a Clerical mistake has crept in at the time of making service entries in the history record that as if the petitioner joined on 8-1-1976 on which date actually his colleague B. (Bandarupalli) bhaskararao joined against his actual date of joining 2-8-1976. Subsequently, the said mistake has been noticed, as a result of which, the impugned orders have been passed. The delay in noticing the mistake done by the office inadvertently should not be an obstacle for rectifying the mistake, and this court cannot fortify the commission of the mistake which was committed at the time of making the entries due to the identical names of the petitioner and his colleague. Therefore, there is no justification to contend that the authority should have acted within a reasonable time so as to rectify the mistake. In the circumstances, I do not find any infirmity legal or otherwise in the impugned order. Therefore, there is no justification to contend that the authority should have acted within a reasonable time so as to rectify the mistake. In the circumstances, I do not find any infirmity legal or otherwise in the impugned order. " ( 6 ) THE reasons stated by the learned judge, with respect, if we may so, may not be a good ground to deny the relief to the writ petitioner, because, the impugned proceeding has the effect of vitally affecting his legal rights. ( 7 ) SRI M. Panduranga Rao, learned counsel appearing for the appellant-writ petitioner contended that the impugned action dated 8-8-1989 itself is based on an untenable ground. Elaborating the contention, the learned counsel would contend that the impleaded 4th respondent in W. P. No. 15062 of 1991 viz. , Bandarupalli bhaskara Rao, was appointed on contract basis for a period of one year initially w. e. f. 18-5-1975 and subsequently on 15-8-1978 his services were regularized in the post of assistant Grade-Ill (D) w. e. f. 8-1-1976, that is to say with effect from a date anterior to the date on which the writ petitioner reported for duty on 2-8-1976, and that regularization being not a mode of recruitment, there was no question of the Corporation directing regularization of the service of the 4th respondent in the year 1978 with retrospective effect and on that basis to reduce the rank of the petitioner earlier assigned to him at SI. No. 497 in the final seniority list of Assistant Grade-Ill (D ). We do not think it necessary for us to adjudicate upon this particular contention of Sri Pandu ranga Rao. We referred to this argument only for a limited purpose to show that the petitioner was denied an opportunity of putting forth such defiance before the administration of the Food Corporation of india before the impugned proceeding was issued. The question whether the objection raised is justified or legal whether there is any substance or not and on that count he would succeed or fall, is not for this Court to decide at this stage. As quite often said and reiterated by the Constitutional Courts, in exercising judicial review power, the constitutional Courts are not primarily concerned with the decision as such, but, they are essentially concerned with the decision-making process. As quite often said and reiterated by the Constitutional Courts, in exercising judicial review power, the constitutional Courts are not primarily concerned with the decision as such, but, they are essentially concerned with the decision-making process. In other words, if the Court finds that the decision-making process is irregular and illegal or finds any infraction of the statutory Rules governing the procedure or any violation of the principles of natural justice, it should step in to correct such illegal procedure. Here is a case where we are fully satisfied that the procedure adopted by the administration of food Corporation of India in passing the impugned proceeding dated 8-8-1989 was not at all in conformity with the principles of natural justice. It is well settled that an adverse action taken by an authority in violation of the principles of natural justice is void ab initio. Further, it needs to be stated that if the order impugned in W. P. No. 4646 of 1990 is set-at-naught on the ground of violation of principles of natural justice, the further action taken by the Food corporation of India in reverting the writ petitioner to a lower cadre post impugned in w. P. No. 15062 of 1991 should also fall to the ground. In other words, the writ petitioner is also entitled to succeed in W. P. No. 15062 of 1991, wherein the reversion order is assailed. ( 8 ) IN conclusion, we allow this writ appeal and set aside the order of the learned single Judge and allow W. P. No. 4646 of 1990 and quash the impugned proceedings of the 2nd respondent dated 8-8-1989 with no order as to costs. Consequently we also allow W. P. No. 15062 of 1991 and quash the impugned proceedings dated 23-9-1991 passed by the 1st respondent with no order as to costs. ( 9 ) HOWEVER, we make it clear that this order will not come in the way of the administration of the Food Corporation of india from initiating appropriate fresh steps to rectify the mistakes, if any, in the final seniority list of Assistant Grade-Ill (D) in accordance with law and after giving reasonable opportunity to the petitioner and all concerned employees.