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2014 DIGILAW 676 (PAT)

Srikant Jha v. Union of India

2014-06-17

CHAKRADHARI SHARAN SINGH

body2014
ORDER : 1. Petitioner in the present writ application seeks quashing of the order dated 24.11.2011 issued under the signature of Executive Director (East Zone), of Food Corporation of India (hereinafter referred to as the ‘F.C.I.’), Zonal Office, Kolkata whereby he has rejected the petitioner’s case for change of his cadre from Boiler Attendant to A.G. II (Assistant Grade II) with effect from 1990 and A.G. I (Assistant Grade I) with effect from 2002. As per the petitioner, he was appointed on 19.06.1978 as Boiler Attendant under Engineering Staff of the Food Corporation of India. He superannuated with effect from 31.03.2010. The MCO, ECO, Welder-cum-fitter and Boiler Attendant belong to the Engineering Cadre having same pay-scale of Rs. 290-485/-. As per the petitioner’s case, vide letter dated 01.08.1985 issued by the District Manager, Food Corporation of India, Silliguri the petitioner was asked to give his option for change of cadre from Boiler Attendant to A.G. III or T.A. The petitioner is said to have given his representation on 12.03.1986 accordingly. His grievance is that another person, similarly situated, namely Hari Shankar Prasad Singh, Oilman, was allowed to change his cadre and was subsequently promoted whereas similar benefit was denied to the petitioner. On the date of his retirement, he served the post of A.G. III (Depot). 2. The petitioner had earlier approached this Court by filing writ petition vide C.W.J.C. No. 10944 of 2010 making similar grievance. This Court vide order dated 24.08.2010 disposed of the writ application with the following direction:- “Having heard counsel for the petitioner and the FCI, I direct the Executive Director, FCI to consider the case of the petitioner for change of cadre with effect from the date of his option or from the date from which change of cadre has been permitted in the case of M/s Hari Shankar Prasad Singh, Fulena Singh, Oilman and unskilled worker respectively as early as possible, in any case within two months from the date of receipt of this order by the Executive Director, FCI, meanwhile admitted retiral dues of the petitioner if not already paid be paid to the petitioner by 30.9.2010. In case, case of the petitioner is not found suitable for promotion within the cadre, his case for grant of promotional/ACP benefit be considered in the light of the order of the Hon’ble Supreme Court dated 5.2.2008, Annexure-21. In case, case of the petitioner is not found suitable for promotion within the cadre, his case for grant of promotional/ACP benefit be considered in the light of the order of the Hon’ble Supreme Court dated 5.2.2008, Annexure-21. The writ application is, accordingly, disposed of.” 3. It also transpires that alleging non-compliance of the order, the petitioner had approached this Court by filing a contempt petition vide M.J.C. No. 2598 of 2011. However, since the order dated 24.11.2011 came to be passed by the Executive Director, during the pendency of the contempt petition, it was disposed of granting him opportunity to challenge the said order dated 24.11.2011. The present writ application has been filed challenging the said order dated 24.11.2011 passed by the Executive Director (East Zone) of Food Corporation of India. 4. From the pleadings of the writ application, it would appear that petitioner’s main grievance is that other Engineering Staff i.e. Bikash Chandra Saha, Boiler Attendant, Rabi Ranjan Bhattarcharya, Cleaner/ Khalasi, Hari Shankar Prasad Singh, Oilman, and Phudena Singh unskilled workman have been allowed to change their cadre and, thereafter, promoted to AG-III, AG-II and AG-I. 5. The petitioner is said to have worked for more than 30 years and remained on the same post against which he was appointed. The petitioner accordingly alleges discrimination against him. There is specific averment in paragraph No. 27 of the writ application, giving the details of the employees who have been given benefits of change of cadre while denying such benefits to the petitioner. 6. A counter affidavit has been filed on behalf of the Respondents dealing with the allegation of discrimination. It has been stated in paragraph No. 13 of the counter affidavit that all employees named in the said paragraph are matriculate and they were promoted to category-III post as per the provisions of Food Corporation of India (Staff) Regulation, 1971. It has been stated that as per the said provisions, category-IV employees working in the Corporation, could be promoted to Category-III post if they were matriculate and vacancies were available. It has also been stated that petitioner was found suitable for consideration to the post equivalent to AG-II under Selection Grade with effect from 01.12.2008 and same has already been given effect to. It has also been stated that petitioner was found suitable for consideration to the post equivalent to AG-II under Selection Grade with effect from 01.12.2008 and same has already been given effect to. It has also been stated that pursuant to the order dated 12.11.2011 the petitioner’s pay has been accordingly fixed and vide order dated 14.12.2011, the entire amount has already been paid to the petitioner. 7. From the impugned order dated 24.11.2011, it appears that the petitioner was appointed as Boiler Attendant (MRM Engineering Staff) in the pay-scale of Rs. 290-485/-. Driver Mechanic is the promotional post of Boiler Attendant in the pay-scale of Rs. 380-640/-. It further appears that there were seven posts of Driver Mechanic as per the sanctioned strength with effect from 01.06.2000 and no post was vacant till the petitioner’s retirement on 31.03.2010. He could not be, therefore, given benefit of promotion within cadre in terms of various provisions of Food Corporation of India (Staff) Regulations, 1971. It has been mentioned in the impugned order that services of the petitioner alongwith other similarly situated surplus MRM (Modern Rice Mills Engineering Staff) was to be utilized and re-deployed in other cadre according to their educational qualification and experience without change of cadre. The promotional aspect was consequently dependent upon the vacancies arising in their current cadre. It has been mentioned that re-deployment of surplus MRM Engineering Staff did not confer any right of change of cadre in the re-deployed post / cadre and there was no question of seniority in that cadre and their promotional aspect depended upon the vacancies arising in their current cadre. Distinguishing the case of Shri Hari Shankar Prasad Singh and Phudena Singh, the Executive Director has mentioned that said Hari Shankar Prasad Singh was appointed as Oilman (Category IV post in pay-scale of Rs. 210-290/-) on 19.06.1976 and he subsequently passed matriculation examination in 1991. Being a matriculate and being in Category-IV, he was considered for promotion to the post of AG-III (Depot) in accordance with the provisions laid down at Item No. 6 under head of Category III post of Part III of Appendix-1 of Food Corporation of India (Staff) Regulations, 1971. According to the said provision, mode of recruitment to the said post is 70% by direct recruitment and 30% by promotion from matriculate Category-III employees holding post in the pay-scale of Rs. According to the said provision, mode of recruitment to the said post is 70% by direct recruitment and 30% by promotion from matriculate Category-III employees holding post in the pay-scale of Rs. 290-400/- and Matriculate Category-IV employees having three years experience in any cadre / lateral transfer of Matriculate Vehicle Drivers Grade-I. 8. It has been mentioned that Hari Shankar Prasad Singh was initially promoted to the post of Assistant Grade III (Depot). As regards Phudena Singh, it has been mentioned that he was appointed as unskilled worker (Category IV in the scale of Rs. 210-290/- on 18.01.1971) and he died on 08.03.1983 holding the same post. It has been mentioned thus that there has been no change of cadre in respect of Hari Shankar Prasad Singh and Phudena Singh. 9. From the impugned order, it appears that after consideration, the petitioner has been found suitable for promotion to the post equivalent to AG-II under Selection Grade with effect from 01.12.2008 and accordingly Administrative Order dated 24.11.2011 has already been affected. Dealing with the order of this Court for grant of Assured Career Progression etc., the Executive Director has mentioned that the Board of Directors of F.C.I. in a meeting held on 09.05.2011 have decided to implement the Assured Career Progression Scheme with effect from 01.09.2008. It has also been mentioned that the scheme has been sent to the Ministry for approval of the Government of India on 25.05.2011 followed by other communication dated 19.10.2011. It has accordingly been mentioned that since the petitioner retired on 31.03.2010 holding the post of Ex-Boiler Assistant, he will certainly be covered under the scheme for consequential residual and it will be admissible with effect from 01.09.2008 subject to approval by Government of India. From the impugned order thus, it appears that petitioner’s case for promotion has duly been considered and he has been found fit for promotion in A.G. II under Selection Grade with effect from 01.12.2008. 10. From the counter affidavit filed on behalf of the Respondents it transpires that the petitioner has already been paid the arrears consequent upon the decision to grant him promotion to a post equivalent to AG-II under Selection Grade with effect from 01.12.2008. 10. From the counter affidavit filed on behalf of the Respondents it transpires that the petitioner has already been paid the arrears consequent upon the decision to grant him promotion to a post equivalent to AG-II under Selection Grade with effect from 01.12.2008. It also appears that the Respondents are ready to grant to the petitioner benefits of Assured Career Progression Scheme which is likely to be implemented with effect from 01.09.2008, subject to approval of scheme by the Government of India. 11. This is settled law that an employee does not have any right to promotion though he has a right to be considered for promotion alongwith similarly situated persons. I find in the present case that the petitioner’s case has been considered and reason for rejecting the petitioner’s case for change of cadre has been assigned which cannot be said to be baseless. This is admitted position, now, that the petitioner has superannuated with effect from 31.03.2010. The claim of the petitioner that similarly situated persons were given the benefit of change of cadre as asserted in paragraph No. 27 of the writ application, has been replied in paragraph No. 13 of the counter affidavit. The averments made in paragraph No. 13 of the counter affidavit have not been denied by the petitioner. Nothing has been stated in the writ application, as to how the impugned order dated 24.11.2011 is bad, passed in contravention of any statutory provision or is in violation of Articles 14 and 16 of the Constitution of India. 12. I do not find any merit in this application. This application is accordingly rejected.