GUNENDRA PRASAD SENGUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant is an employee-of the Food Corporation of India (hereinafter referred to as the Corporation'). For purposes of administrative convenience, the entire temtory of India in which the Corporation carries on its operations is divided into several Regions. The appellant was working as a Godown- Keeper in the Northern Region in the year 1961. At his request the appellant was transferred to the Eastern Region on 1/03/1961. In July 1962, a circular was issued by the government of India to the effect that an officer who was transferred from one Region to another at his own request should be treated 03 0 fresh Clltra Ut in the cadre to which he belonged in the latter Region for the purpose of seniority, that is, his seniority should be reckoned only from the date of joining duty in a particular post in the new Region and as such he would not be entitled to claim the benefit of service in the particular post in the former Region for the purpose of snwrity in the same cost in the latter Replon to which he was transferred The circular also stated that it would apolv to all cases of transfers of officials made on or after March 1, 1960. In the seniority list dated 1/11/1969, the name of the appellant anneared apainet SI. NO. 261 but in the niority list dated 10/05/1972, the appellant's name was shown apainst SI. No. 266. In view of the seniority list dated 10/05/1972, four persons who had been considered to be juniors to the appellant earlier were promoted in suppression of the claims of the appellant. The appellant made several representations to the authorities concerned against his suppression in which he questioned the aoolicability of the above said circular issued in July 1962 to him. Since the appellant was not given any reply, he filed a petition Civil Rule No. 6044 (W) of 1972 under Article 226 of the Constitution before the High court of Calcutta on 14/07/1972. In that petition, he prayed for a writ in the nature of mandamus directing the respondents therein, namely, the Ministry of Food and Agriculture, government of India, the Regional Director (Food). Eastern Region. government of India, the Joint Manager (Port Operations) and the Zonal Manager (Eastern Zone). Food Corporation of India to forbear from giving effect to the aforementioned circular in his case or in the alternative to transfer him back to his original place of posting in the Northern Region with his former seniority. By its order dated May 13, 1974, the High court of Calcutta issued a writ in the nature of mandamus to the respondents in that petition to consider the case of the petitioner for transfer back to his original place of posting in the Northern Region within two months from the date of the communication of that order. After some correspondence, the Joint Personnel Manager of the Corporation at New Delhi wrote to the Zonal Manager (E) of the Corporation at Calcutta that the seniority position of appellant in the Northern Region prior to his transfer to the Eastern Region would bo restored to him. The Zonal Manager, Calcutta conveyed the above information to the appellant by his letter dated 1/09/1976. Thereafter the appellant was transferred to the Northern R6giod I. D. November 1976 After he joined his post in the Northern Region, the appellant realised that some of his juniors had been promoted to higher positions during the period when he had been working in the Eastern Region. He, therefore, made a representation on 4/09/1978 t0 the Managing Director of the Corporation that his case for promotion to the higher cadre should be considered with effect from the date on which his immediate junior had been promoted. He made a further representation to the Personnel Manager of the Corporation OH 27/08/1979 making a similar request. On 20/01/1980, he wrote to the Manager (Establishment) of the Corporation about his grievance and on January 30, 19x0 to the Zonal Manager (North) of the Corporation. As these representations yielded no result, the appellant filed a writ petition under Article 226 of the Constitution before the High court of Delhi in C. W. P. NO. 371 of 1981. That petition was dismissed in limine by the High court Of Delhi On March 11, 1981 This appeal by special leave is preferred against the aforesaid order of the High court.

(2.) The case of the appellant is that since he had been reported to the Northern Region with the seniority which he held before he was transferred to the Eastern Region, the Corporation should consider his case for promotion to the higher cadre as on the date on which his immediate junior was promoted and if he is found fit he should be given such promotion and placed above his immediate junior in the seniority list. He also claims that he should be accorded all consequential benefits.

(3.) In this court, the Corporation has filed a counter-affidavit the deponent of which is Shri Madhusudan, Deputy Manager (Administration) , of the Corporation. In the said counter-affidavit, it is admitted that before the appellant was retransferred to the Northern Region, he had been given an assurance that his seniority in the Northern Region prior to his transfer to the Eastem Region would be restored. It is further stated that the case of the appellant was placed before the Zonal Promotion Committee of the Corporation at its meeting held on 5/12/1977 for considering his case for promotion to the post of Assistant Manager (Depot) against 1970 panel wherein his juniors were empanelled. As the Confidential Reports relating to the appellant for the years 1966 to 1968 were not available for assessment of his suitability, the Zonal Promotion Committee deferred his case but the appellant was, however, empanelled against 1976 panel on the basis of the available reports. The Confidential Reports for the years 1966 to 1968 were later on traced and the case of the appellant was again placed before the Zonal Promotion Committee at its meeting held in May 1979 for considering his claim for inclusion in the 1970 panel. Thereupon the Zonal Promotion Committee passed a cryptic resolution to the effect that 'on the basis of records of his service, his case cannot be reopened'. It is contended on behalf of the Corporation that since the promotion in question is one to be made on, the basis of selection, the appellant is not entitled to any relief. It may be mentioned here that the appellant was not informed by the Corporation that the Zonal Promotion Committee had found him unsuitable for being included in the 1970 panel. The records pertaining to the proceedings of the Zonal Promotion Committee are not also placed before us. The resolution passed by the Zonal Promotion 'committee does not convey the meaning which the Corporation wants to attribute to it viz. that the Zonal Promotion Committee had found on a consideration of the relevant Confidential Reports that the appellant Was unsuitable for being included in the 1970 panel. The resolution passed by the Zonal Promotion Committee means that it was not willng to reopen the case of the appellant on the basis of his service records. The resolution does not show that the Zonal Promotion Committee had in fact considered the suitability of the appellant for promotion t0 a higher post at the time when his juniors were empanelled for purposes of promotion. If it had done so, the Zonal Promotion Committee would have recorded in its resolution that the appellant had been found to be unsuitable for promotion during the relevant time. Tt appears that the Zonal Promotion Committee had not considered the case of the appellant in the year 1977 in accordance with law. As mentioned earlier when the case of the appellant came no before the Zonal Promotion Committee for the first time on 5/12/1977. it deferred the consideration of the case of the appellant on the ground that the relevant Confidential Reports were not available. Having thus deferred the consideration of the case of the appellant on that occasion, the Zonal Promotion Committee should have considered the case of the appellant when the relevant Confidential Reports were placed before it and passed an appropriate resolution instead of remarking that the case of the appellant could not be reopened. The reopening of a case arises only when it has been once considered and a decision is taken thereon. Since we have no material before us to show that there has been such a consideration earlier, the resolution of the Zonal Promotion Committee passed in May 1979 stating that the case of the appellant could not be reopened has to be treated as an ineffective one in the eye of law. It is. therefore, difficult to accept the submission made on behalf of the Corporation that the case of the appellant had been duly considered by the Zonal Promotion Committee for the purpose of including him in the 1970 panel. In these circumstances, we have no option but to issue a direction to the Corporation to consider the case of the appellant for being included in the 1970 panel, We accordingly allow this appeal and issue a direction to the Corporation to consider the case of the appellant for promotion as on the date on which his immediate junior in the Northem Region in the year 1970, mat is, respondent 13 was promoted and if on such consideration the appellant is found suitable for promotion to promote him to the higher cadre and place him above such immediate junior in the higher cadre, if the appellant is so promoted, the Corporation shall also give him all consequential benefits but he would not be entitled to any arrears of salary (the difference between the salary of the higher post and the salary he had actually drawn) up to the date on which he rejoined his duties in the post in the Northem Region after he was retransferred.