Union of India (Uoi) and ors. Vs. Bhanu Lodh and ors. - Court Judgment

Excerpt:
- - therefore, there is no reason to deny appointment to the departmental as well as non- departmental candidates, other than the said 39 candidates, who can be accommodated within the 34 advertised posts in order of merit subject to the relevant reservation policy. (2) the fci authority shall consider the writ petitioner and other similarly situated persons, both departmental as well as non- departmental, who qualify for appointment to the 34 posts of deputy a manager (gen. t. vaiphei, j.1. all the three writ appeals being directed against the same impugned judgment and order, are taken up together and disposed of the same by this common judgment and order.2. the facts of the case are no longer in dispute, which may be briefly stated for disposal of the appeals :-the food corporation of india (hereinafter called 'fci' for short) is constituted under the food corporation act, 1964 (hereinafter called the 'act') for dealing with procurement/purchase of food grains and selling of the same through the different state governments in order to facilitate the public distribution system smoothly. the appellants floated an advertisement in the employment news weekly in its issue, dated 6-12 november, 1993, for recruitment to the posts of deputy manager (general.....

Judgment:

T. Vaiphei, J.

1. All the three writ appeals being directed against the same impugned Judgment and Order, are taken up together and disposed of the same by this common Judgment and Order.

2. The facts of the case are no longer in dispute, which may be briefly stated for disposal of the appeals :-

The Food Corporation of India (hereinafter called 'FCI' for short) is constituted under the Food Corporation Act, 1964 (hereinafter called the 'Act') for dealing with procurement/purchase of food grains and selling of the same through the different State Governments in order to facilitate the public distribution system smoothly. The appellants floated an advertisement in the Employment News Weekly in its issue, dated 6-12 November, 1993, for recruitment to the posts of Deputy Manager (General Administration), Joint Manager etc. Pursuant to this advertisement, the writ petitioner, who is appellant in W.A. No. 102/2002, was one of the candidates, who had applied for the post of Deputy Manager (Gen. Admn.) and participated in the selection process. After conducting the selection process, the appellants published the select list in which the name of the writ petitioner found placed at Sl. No. 53. However, the Union of India, i.e., the appellants in W.A. Nos. 78/2002 and 79/2002 issued the letter, dated 21.8.1995, directing the Chairman, FCI, not to fill up the existing vacancies to the post of Deputy Manager (Gen. Admn.). This was followed by another letter, dated 6.11.1995, of the Government of India by which the entire process for direct recruitment to the various posts, so advertised, was declared null and void. It may be noticed that the respondent Nos. 5 to 11 in the writ petition, whose names appeared in the said select list, were given appointment to the post of Joint Manager and have been continuing in that posts till now. Aggrieved by the aforesaid action of the Chairman, FCI, the writ petitioner filed a writ petition in which it was contended that the Government of India had no authority / competence to issue the aforesaid directives inasmuch as the same amounted to interference in the internal management of FCI, which is an autonomous body. It was also contended that the impugned letters having been signed by the Joint Secretary, Government of India, the directions given in the impugned letter have no legal force since they were not issued in the name of the President of India as required by Article 77 of the Constitution of India.

3. The Union of India and the FCI jointly filed a counter affidavit contesting the writ petition. It was stated in the counter affidavit that though the selection process was actually initiated by them in pursuance of the said advertisement, the directives in the letter, dated 6.11.1995, intervened before the select list for the post of Deputy Manager (Gen. Admn.) was approved by the executive body of the Board of Directors and as such, the selection process could not be finalised. It was pointed out in the said counter affidavit that the directives of the Central Government were issued due to detection of irregularities in the selection process inasmuch as contrary to Recruitment Regulations, departmental candidates of age 52-53 years were sought to be appointed, whereas the maximum age prescribed was 35/40 years. It was also pointed out that the appointment to the posts of Joint Manager was already made in accordance with the said select list before receipt of the said directives of the Central Government. According to the appellants, it was under the aforesaid circumstances that no appointment could be given to the, writ petitioner. The stand taken by the appellants was that in terms of section 6(2) of the Act, the authorities of the FCI are bound to follow and abide by the directives issued by the Central Government. In support of this stand, reliance is placed upon the decision of the Andhra Pradesh High Court in W.P. No. 18960/1994 as affirmed by the Division Bench of the same High Court in W.A. 659/ 1996 and the decision of the Jammu & Kashmir High Court in W.P. No. 547/1996.

4. After hearing the learned counsel for the FCI, the learned Single Judge, by the impugned Judgment and Order, allowed the writ petition, quashed the impugned letter, dated 21.8.1995, and subsequent directives contained in the letter dated 6.11.1995 and accordingly, directed the FCI authority to act in accordance with the prepared select list within sixty days. After going through Section 6(1)(2) of the Act, the learned Single Judge has recorded a finding that the policy decision referred to in Section 6(2) of the Act is with regard to the business of the Corporation, which includes procurement, storage, distribution, sale of the food grains/food stuff and in respect of matters so specified, the Central Government has, undoubtedly, the power to give policy direction. According to the learned Single Judge, the matter of appointment, promotion, transfer of staff and employees of the Corporation come within the purview of internal management in terms of Section 6(1) of the Act, for which the Central Government has no such power. Thus, the learned Single, Judge held that the Central Government has no power to issue the impugned directions contained in the letter dated 21.8.1995. The learned Single Judge also took the view that the FCI authority acted discriminatorily by giving appointment to the posts of Joint Manager, while staling the appointments in respect of the posts of Deputy Manager (Gen. Admn.). According to the learned Single Judge, the select list in respect of the post of Deputy Manager (Gen. Admn.) was not acted upon without any legal and justified reason; rather, the Board of Directors of the FCI got influenced by external and extraneous considerations by following the directives of the Central Government.

4A. On the basis of the conclusions so reached, the learned Single Judge set aside the impugned directives and commanded the FCI authority 'to act in accordance with the prepared list within 60 days'. Aggrieved by this decision, while the authorities concerned, as appellants in Writ Appeal Nos.78/2002 and 79/2002, have approached this Court seeking to get aside the directions given by the learned Single Judge, as a whole, the writ petitioner in writ Appeal No. 102/2002 has approached this Court seeking a direction upon the respondents to appoint him to the post of Deputy Manager (Gen. Admn.) pursuant to the said advertisement.

5. Mr. D.K. Biswas, learned counsel appearing for the appellant - FCI, strenuously argues that the learned Single Judge mis-directed himself by holding that the Central Government has no power to issue the impugned directions to the FCI. It is contended by him that a conjoint reading of Sections 3, 4, 6, 7, 12, 12A and 14 of the Act read with Regulations 2(b) (c) (d) and (e) of the Food Corporation of India (Staff) Regulations, 1971, unmistakably, conferred powers upon the Central Government to issue directions in the matter of appointment and recruitment of officers and other employees of the Corporation. According to him, the recruitment process came to be stalled in view of the fact that there were complaints of irregularity in the recruitment process, which were valid considerations for cancelling the selection process. He further argues that even assuming without admitting that the Central Government have no such power, the writ petitioner has no vested right to appointment in terms of the select list and that no mandamus could be issued by a writ Court to direct appointment on the basis of a select list. On the other hand, Mr. S. Deb, learned senior counsel appearing for the respondent, vehemently submits that there is no provision under the Act or the Rules or Regulations made thereunder leaving residuary powers or any power, for that matter, to issue the impugned directives and as such, there is no ground for interfering with the impugned Judgment and Order.

6. Before coming to the rival contentions of the parties, it may be appropriate to set out the provisions of Section 6 (1) (2) (3) and Section 12, 12A of the act as under :-

'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.

12. Officers and other employees of Corporation

(1) The Central Government shall, after consultation with the Corporation, appoint a person to be the Secretary of the Corporation.

(2) Subject to such rules as may be made by the Central Government in this behalf, the Corporation may appoint such other officers and employees as it considers necessary for the efficient performance of its functions.

(3) The methods of appointment, the conditions of service and the scales of pay of the officers and other employees of Corporation shall -

(a) as respects the Secretary, be such as may be prescribed;

(b) as respects the other officers and employees, be such as may be determined by regulations made by the Corporation under this Act.

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 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 that no order under this Sub-section shall be made in relation to any officer or employee in such Department or office who has, in respect of the proposal of the Central Government to transfer such officer or employee to the Corporation, intimated within such time as may be specified in this behalf by that Government, his intention of not becoming an employee of the Corporation.

(2) In making an order under Sub-section (1), the Central Government shall, as far as may be, take into consideration the functions which the Central Government has ceased or ceases to perform and the areas in which such functions have been or are performed.'

7. It is obvious from the above provisions that the general superintendence, direction and management Of the affairs and business of the Corporation stands vested in the Board of Directors and that the Central Government has the power to issue instructions on the question of policy concerning the business principles having regard to the interests of the producer and consumer. It is provided therein that whether a question is or is not a question of policy, is for the Central Government to decide and the decision of the Central Government in this regard shall be final. As per Section 12(2) of the Act, the rule-making powers concerning the officers and other employees of the Corporation rest vested in the Central Government. In exercise of this power read with Section 44 of the Act, the Central Government has framed a set of rules, namely, The Food Corporation of India (Staff) Regulations, 1971. After going through the provisions of Regulations, 1971, we are of the view that there is no power vested in the Central Government to issue c the impugned directives. Insofar as the provisions of Section 6(2) of the Act are concerned, we are in agreement with the learned Single Judge that the power to issue instructions, on questions of policy, by the Central Government is necessarily confined to discharge of functions of the Board of Directors so far as such functions relate to the business principles concerning the interest of the producer and consumer. In our view, under Section 6(2) of the Act, the limited directions, which can be issued by the Central Government are confined to the business activities of the Corporation having regard to the interest of the producer and the consumer. Service matters of the employees of the Corporation do not fall within the ambit and scope of the expression, business principles having regard to the interest of the producers and consumers occurring in Section 6(2) of the Act. Whatever powers the Parliament wanted to be reserved for the Central Government have been specifically provided in the Act itself. Section 12A of the Act is one of such powers Section 44 of the Act provides rule-making power to the Central Government. Regulations can be framed after due Consultation with the Government of India. In this connection, the Central Government has already framed the Food Corporation of India (Staff) Regulations, 1971. Once such Rules and Regulations governing the recruitment and service conditions of the employees of the Corporation have been framed after consultation with the Central Government and no residuary powers are reserved thereafter for the Central Government in respect of service matters, it cannot be held that the Central Government has the power to issue the kind of directives as have been issued in the present case. Accordingly, we hold that the impugned directives of the Central Government, purportedly issue under Section 6(2) of the Act, are contrary to law.

8. Having held that the Central Government has no power to issue the impugned directives, we, now, come to the crux of the matter. Before proceeding further, some undisputed and material facts for disposal of these appeals need to be highlighted. It is an admitted position that the number of posts of Deputy Manager (Gen. Admn.) advertised for recruitment are 34, It is also admitted at the bar that there are 39 departmental candidates, who are above 40 years of age and whose names appeared in the select list for the post Deputy Manager (Gen. Admn.), viz. Sl. Nos. 8, 9, 10, 11, 12, 16, 17, 21, 22, 25, 31, 32, 33, 34, 35, 41, 42, 43, 44, 47, 48, 51, 52, 56, 57, 59, 60, 71, 72, 73,!74, 80, 81, 82, 83, 84, 93, 94 and 106. It is also an admitted fact that in terms of the Recruitment Regulations these in-service candidates are not eligible for the said posts due to age bar. In the absence of relaxation of age by the competent authority, it will be against the Recruitment Regulations to give appointment to these in-service candidates. It is settled law that while the conditions of service may be relaxed, the conditions of recruitment cannot be relaxed. There being allegations that the said 39 candidates were above the permissible age of recruitment under the relevant Recruitment Regulations and these allegations having remained uncontroverted, the said 39 candidates have to be removed from the select list in question. We reach this conclusion on the basis of the decision in Ludhiana Central Co. Op Bank Ltd. v. Amrik Singh and Ors. reported in 2003 AIR SC 4041) which Mr. Biswas has relied upon. Therefore, the impugned Judgment and Order needs to be modified, insofar as it directed the respondents to act in accordance with the prepared select list. It may be noted that no allegation of malpractice and/or irregularity in respect of selection of the non- departmental candidate has been made. There is no allegation that the writ petitioner and other non-departmental candidates suffered from any disqualification. The allegation of disqualification is made only against the aforesaid 39 in-service candidates. Therefore, there is no reason to deny appointment to the departmental as well as non- departmental candidates, other than the said 39 candidates, who can be accommodated within the 34 advertised posts in order of merit subject to the relevant reservation policy. The reference made by Mr. Deb to the case of Dr. Khagendra Narayan Baruah v. State of Assam and Ors., reported in (2002) 3 GLR 286 and Union of India and Ors. v. Rajesh P. U. Puthuvalnikathu and Anr., reported in (2003) 7 SCC 285 is, therefore, not misplaced.

9. In the result, the impugned judgment and order stands modified as follows :-

(1) The FCI authority shall exclude the names of the in-service candidates appearing at Sl. Nos. 8, 9, 10, 11, 12,16, 17, 21, 22, 25, 31, 32, 33, 34, 35, 41, 42, 43, 44, 47, 48. 51, 52, 56, 57, 59, 60, 71, 72, 73, 74, 80, 81, 82, 83, 84, 93, 94 and 106 of the select list.

(2) The FCI authority shall consider the writ petitioner and other similarly situated persons, both departmental as well as non- departmental, who qualify for appointment to the 34 posts of Deputy a Manager (Gen. Admn.) in terms of the said select list and in accordance with law.

(3) The entire exercise, as directed hereinabove, shall be completed within a period of two months from today.

10. The three writ appeals stand disposed of in the manner indicated above. The parties are directed to bear their own costs.