Gunendra Prasad Sen Gupta Vs. Union of
India & Ors [1983] INSC 57 (3 May 1983)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) FAZALALI, SYED MURTAZA
CITATION: 1983 SCR (3) 6 1983 SCC (3) 303
1983 SCALE (1)516
ACT:
Service Jurisprdence-Seniority and Promotion
to higher post-Assurance given to the employee that his seniority in the post
to which he was initially appointed on his re- transfer would be
considered-Departmental Promotion Committee first rejecting to consider the
case for empanelling for promotion for want of personal records and later when
available refuses to reopen the case-Legality of the refusal Estoppel by
conduct, applicability of.
HEADNOTE:
The appellant was working as a Godown-Keeper
in the northern region of the Food Corporation of Delhi. He was transferred to
the eastern region at his own request on March 1, 1961. In August 1962, the
Union of India issued a circular to the effect that an officer who was
transferred from one region to another at his own request should be treated as
a fresh entrant in the cadre to which he belonged in the latter region for the
purpose of seniority and thus thereby such an officer will forfeit his past
services. In the Seniority List of 1969, the appellant's name was shown at S.
No 261 but in the seniority list of 1972 his name was shown against SI. No. 266
and as a result four of his juniors were promoted. The appellant's several
representations against the said promotions having failed, he filed a writ
petition in the Calcutta High Court praying for a mandamus directing the
respondents either to forbear from giving effect to the promotions or to
transfer him back to Northern region restoring his seniority. As per the High
Court's orders, the Joint Personnel Manager of the Corporation wrote to the
Zonal Manager (E) at Calcutta assuring that the seniority position of appellant
in the Northern region prior to his transfer to the Eastern region would be
restored to him. After his re-transfer to the Northern region, the appellant
found that some of his juniors had already been promoted. On his
representation, the Departmental Promotion Committee empanelled him in the 1976
panel and refused to empanel him from 1970 on the ground of non-availability of
service records. But when they were traced and produced, the Departmental
Promotion Committee refused to empanel his name in the 1970 List with a cryptic
resolution to the effect that "on the basis of records of his service, his
case cannot be reopened". His representations against the said resolution
having failed, the appellant filed a writ petition in the Delhi High Court
which was dismissed in limine. Hence the appeal by Special Leave.
Allowing the appeal, the Court
HELD: 1:1 The resolution of the Zonal
Committee passed in May 1979 stating that the case of the appellant could not
be reopened has to be 7 treated as non-est and ineffective one in the eye of
law.
The Zonal Promotion Committee had not
considered the case of the appellant for the purpose of including him in the
1970 panel. The re-opening of a case arises only when it has been once
considered and a decision is taken thereon. [10 G-H, 11 A-B] 1:2 The resolution
passed by the Zonal Promotion Committee means that it was not willing to reopen
the case of the appellant on the basis of his service records. The resolution
does not show that the Committee had in fact considered the suitability of the
appellant for promotion to a higher post at the time when his juniors were
empanelled for the purposes of promotion. If it had done so, the Committee
would have recorded in its resolution that the appellant had been found to be
unsuitable for promotion during the relevant time. When his case came up before
the Committee for the first time in December 5, 1977, it deferred the
consideration of his case 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 his case when the relevant Confidential Reports were placed before
it and passed an appropriate resolution instead of remarking that his case
could not be reopened.
[10C G]
CIVIL APPELLATE JURSIDICTION : Civil Appeal
No. 4061 of 1983 Appeal by Special leave from the Judgment and Order dated the
11th March, 1981 of the Delhi High Court in C.W.P. No 371 of 1981.
A. Ganguli for the Appellant.
K. C. Keshav Dayal, A. V: Rangam and .G.
Gopalakrishnan with him for the Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The appellant is an employee of the Food Corporation of India
(hereinafter referred to as 'the Corporation'). For purposes of administrative
convenience the entire territory 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 March 1, 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 as
a fresh entrant in the cadre to which he belonged in the latter Region for the
purpose 8 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 seniority in the same post in the latter
Region to which he was transferred. The circular also stated that it would
apply to all cases of transfers of officials made on or after March 1, 1960. In
the seniority list dated November 1, 1969, the name of the appellant appeared
against S. No. 261 but in the seniority list dated May 10, 1972, the
appellant's name was shown against S. N. 266. In view of the seniority list
dated May 10, 1972, four persons who had been considered to be juniors to the
appellant earlier were promoted in supersession of the claims of the appellant.
The appellant made several representations to the authorities concerned against
his supersession in which he questioned the applicability 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)/72 under Article 226 of the
Constitution before the High Court of Calcutta on July 14, 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 be restored to him. The Zonal Manager,
Calcutta conveyed the above information to the appellant by his letter dated
September 1, 1976. Thereafter the appellant was transferred to the Northern
Region in 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 9 representation on September 4, 1978 to the Managing
Director of the Corporation that his cases 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, on August 27, 1979 making a similar request. On January 20,
1980, he wrote to the Manager (Establishment) of the Corporation about his
grievance and on January 30, 1980 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. 371/81. 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.
The case of the appellant is that since he
had been reposted to the Northern Region with the seniority which he hold
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.
In this Court, the Corporation has filed a
counter affidavit the deponent of which is Shri Madhusudan, Deputy Manager
(Admn.), of the Corporation. In the said counter affidavit, it is admitted that
before the appellant was re- transferred to the Northern Region, he had been
given an assurance that his seniority in the Northern Region prior to his
transfer to the Eastern 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 December 5, 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 10 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 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 willing 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 to 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. It 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 up before the Zonal Promotion Committee for the first time on
December 5, 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 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 on the Corporation that the case of the
appellant had been duly considered by the Zonal Promotion Committee for the
purpose 11 of including him in the 1970 panel. In these circumstances, we have
no option but to issue a direction of 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 Northern
Region in the year 1972, that is, Respondent No. 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 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 salary he had
actually drawn) upto the date on which he rejoined his duties in the post in
the Northern Region after he was retransferred.
There will be no order as to costs.
S.R. Appeal allowed.
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