Court held respondent arbitrary for forcibly retiring petitioner under VRS without reversion. Declared promotion vacancy for SC not backlog. Ordered reinstatement with seniority continuity except pension gap.
Petitioner reinstated as Deputy Manager (Agriculture) with continuity of service and seniority.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE C.V. RAMULU
W.P. Nos. 9906of 2007, 7029 of 2008
and C.C. No. 1004 of 2010
COMMON ORDER:
Since the issue involved in these writ petitions is one and the same, they are disposed of, along with the contempt case, by this common order.
W.P. No. 9906 of 2007:
This writ petition is filed seeking a Mandamus declaring Proceedings No. P&A/HR-3/SUPREME COURT/2197-2007 dated 21.4.2007 of 4th respondent as arbitrary, illegal and violative of Article 14 of the Constitution of India; consequently, to direct 4th respondent to continue the petitioner in service with all consequential and other attendant benefits.
Under the impugned proceedings dated 21.4.2007 of 4th respondent - A.P. Cooperative Oil Seeds Growers Federation Limited, represented by its Managing Director, the services of petitioner were dispensed with, purported to be under the Voluntary Retirement Scheme, since he was declared as surplus in the cadre of Deputy Manager (Agriculture), It appears, impugned proceedings were the result of prolong litigation between petitioner and one Achyuta Rao, which attained finality before the Supreme Court. The relevant portion of the judgment of the Supreme Court is as follows:
“Similarly in the case of Achyuta Rao (respondent in SLP (C) Nos. 15912-15913 of 2004) in the High Court found that he was appointed as Field Officer on November, 29, 1983. He claimed seniority over Ramesh Kumar Reddy, who was appointed Field Officer on December 5, 1983. So far as their promotions to the post of Executive (Agriculture) in the Unions are concerned, while Achyuta Rao was promoted
on September 18, 1989, Ramesh Kumar Reddy was promoted on March 15, 1989. The facts, therefore, disclose that Achyuta Rao when initially appointed to the post of Field Officer was senior to Ramesh Kumar Reddy, but if the promotion granted in the Union is ignored, he must be declared senior to Ramesh Kumar Reddy and ought not to be included in the surplus list. The High Court, therefore, rightly upheld the contention of Achyuta Rao”.
According to the petitioner, on downsizing the personnel in 4th respondent-Organisation, many posts were rendered surplus and two lists were published and the name of petitioner was shown in the non-surplus list and as such he was continued. Some of the employees, who were declared surplus on account of their promotion to higher cadre and being junior most in the higher cadre, approached the Supreme Court, and the Supreme Court directed the respondents to reconsider their cases in the lower cadre. As a result, petitioner was rendered surplus and he was sought to be relieved vide impugned proceedings. Immediately, petitioner submitted a representation dated 25.4.2007 against the said proceedings, contending, inter alia, that there are other posts wherein the petitioner could be accommodated, but in vain. It is the grievance of the petitioner that on account of the impugned proceedings, there is every possibility of loosing his livelihood.
While admitting the writ petition on 1.5.2007, status quo obtaining as on that day was directed to be maintained by the parties. However, it appears, by that time petitioner’s services were already dispensed with.
W.P. No. 7029 of 2008:
During pendency of W.P. No. 9906 of 2007, respondent-Federation issued a notification dated 5.3.2008, which was published in ‘Andhra Jyothi’ on 12.3.2008, whereunder a post of
Deputy Manager (Agriculture) was notified for being filled up as backlog vacancy in the cadre of SC/ST. Aggrieved by the same, this writ petition is filed.
It is the case of the petitioner that the post of Deputy Manager (Agriculture) is to be filled by way of promotion from the post of Area Officer, Grade-II and, in fact, petitioner was initially appointed as Procurement and Input Assistant in December, 1983 and was redesignated as Field Officer and was further promoted as Area Officer, Grade-II on 15.3.1989 and then promoted to the post of Deputy Manager (Agriculture) in the year 2001. While that being so, for want of vacancy, Voluntary Retirement Scheme was introduced in the year 2003 and one D.Achuta Rao, being junior most in the cadre of Deputy Manager, was made to voluntarily retire. The said Achyuta Rao challenged the same in W.P.Nos. 9565 and 13985 of 2003, but the said writ petitions were dismissed by this Court vide order dated 26.9.2003. Aggrieved by the same, he filed W.A.Nos. 1787 and 1786 of 2003 respectively. The said writ appeals were allowed declaring the appellant- D.Achyuta Rao senior to 3rd respondent – K. Ramesh Kumar Reddy (petitioner herein). Aggrieved by the same, respondents carried the matter in Civil Appeal (Civil) Nos. 1391 of 2007 arising out of Special Leave to Appeal (Civil) Nos. 15912-15913 of 2004, wherein it was stated that the said Achyuta Rao is senior to the petitioner in the cadre of Deputy Manager (Agriculture). Consequently, vide Proceedings No.P&a/HR-3/Supreme Court/2197-2007 dated 21.4.2007, petitioner was relieved pursuant to Voluntary Retirement Scheme. Against the said forcible retirement under Voluntary Retirement Scheme, he made representation on 25.4.2007. Since no orders were passed on the said representation, he filed W.P. No. 9906 of 2003 before this Court and obtained status quo orders on 1.5.2007. While the matter stood thus, a vacancy of Deputy Manager
(Agriculture) arose on 26.12.2007 due to promotion of one Yella Reddy, Deputy Manager (Agriculture) as Manager (Agriculture) and the petitioner is seeking relief to continue him as Deputy Manager (Agriculture) in the respondent-Federation in the said vacancy, in W.P. No. 9906 of 2007.
The contention of the petitioner is that the post of Deputy Manager (Agriculture), since its creation, is filled up only by way of promotion and as such, the question of filling up the same by following the rule of reservation will not arise, computing as backlog vacancy. Only direct recruitment contemplates reservation in favour of Schedule Castes and any backlog vacancy is to be computed only against direct recruitment. Even otherwise, the cadre of Deputy Manager (Agriculture) consists of three vacancies, therefore, the policy of reservation in respect of promotion is not applicable. Resorting to fill up the said post, not by promotion but by way of direct recruitment is not permissible in law. Even assuming that the direct recruitment is the method of appointment to fill up the said post, the present vacancy is to be treated as first vacancy in the roster and the same cannot be reserved in favour of Schedule Caste (Women or Men). Therefore, impugned action of respondent-Federation notifying the above said vacancy by direct recruitment and reserving the same to Schedule Caste (Women) is arbitrary and illegal. Instead of considering the case of the petitioner for continuation in service as Deputy Manager (Agriculture) in the vacancy caused on promotion of M. Yella Reddy as Manager (Agriculture) on 27.12.2007, respondents have adopted a novel method of notifying the same by direct recruitment.
While admitting W.P. No. 7029 of 2008 on 1.4.2008, an interim was passed in WPMP No. 9206 of 2008, staying all further proceedings in pursuance of the impugned notification. However, it was made clear that the said order does not preclude the respondent from engaging the services of the petitioner as Deputy Manager, since
he held that post till he was relieved on 21.4.2007. On filing WVMP No. 1671 of 2008, the stay order dated 1.4.2008 was made absolute and the said WVMP was dismissed. However, it appears, petitioner was not accommodated and, therefore, C.C.No. 1004 of 2010 was filed.
When the contempt case had come up, it was felt that it was better to dispose of the writ petitions and the contempt case together, and accordingly, with the consent of the learned counsel appearing for the parties, they were heard finally.
A counter affidavit has been filed by the respondentFederation in W.P. No. 7029 of 2008 stating that the cadre strength of the post of Deputy Manager is ‘12’, out of which two posts must be filled by SC candidates, one post must be filled by ST candidates, four posts must be filled by BC candidates and six posts shall be filled by OC candidates. This is inclusive of physically challenged persons. At present, in all the 12 posts of Deputy Managers, candidates belonging to OC alone are working. Therefore, there is no proper representation from SC/ST candidates including BC, as per Rule 22 of the A.P. State and Subordinate Service Rules, 1996. Since a vacancy of Deputy Manager arose due to promotion of M. Yella Reddy as Manager, the said post was notified to be filled by direct recruitment of SC (W), being roster point No.2, so as to fulfil the constitutional obligation of Rule of Reservation and to keep adequate representation of SC candidates in the cadre of Deputy Managers. As there are no candidates belonging to SC working even in the feeder category of Area Officer (Agriculture) so as to fill up the vacancy of Deputy Manager by way of promotion, the backlog vacancy meant for SC was notified for direct recruitment. Further, the scale of pay for the post of Deputy Managers cadre is Rs.9285-21550. All the posts of Deputy Managers comprising agriculture, technical and general subjects belong to same class,
category and grade. The contention of the petitioner that there are only three posts of Deputy Managers is incorrect for the reason that all the 12 posts of Deputy Managers, namely, Deputy Manager (Agriculture) – 3, Deputy Manager (Technical) – 4 and Deputy Managers (General) – 5 are in the same scale of pay and belong to same class and category with difference in functional responsibilities. However, for the purpose of implementation of rule of reservation, if the posts carry the same class, category or grade, it shall be treated as single category as per Section 3 of Act No. 24 of 1997.
Further, it is admitted that the petitioner was declared surplus by the Supreme Court vide judgment dated 15.3.2007, which has become final. Subsequently, one D. Achyuta Rao joined in place of petitioner. As such, there is no vacancy and, therefore, petitioner was relieved as per directions of the Supreme Court. It is not true to say that the petitioner was relieved forcibly. In fact, he was relieved in obedience to the orders of the Supreme Court dated 15.3.2007. In so far as the representation made by petitioner is concerned, since he was declared surplus by the Supreme Court and the said judgment attained finality, entertaining subsequent representation of the petitioner is against the spirit of judgment of the apex Court. The employees, who were declared surplus, were offered with all eligible terminable benefits as per rules and the petitioner was also relieved. Even for the sake of arguments, if the request of petitioner is to be entertained, accommodating him in the vacancy caused due to promotion would amount to reopening of entire issue of Voluntary Retirement Scheme and that would amount to contempt of the orders of the Supreme Court. Hence, writ petition is devoid of merits.
In the reply affidavit, it is stated that the respondentFederation has chosen to fill up the post of Deputy Manager (Agriculture) by way of promotion and as such, the question of reserving certain posts for specified category or classes of persons as
per Regulation 9.1 will not arise. Reservation policy in respect of SC candidates is effective in case of promotions by way of G.O.Ms.No.5 Social Welfare Department dated 14.2.2003 and according to the said G.O., such reservation is applicable only when the cadre strength of the posts is more than 5. Therefore, the cadre of Deputy Manager (Agriculture), which is having three posts, is filled up by promotion till now. At any rate, the present vacancy at best can be treated as first vacancy arose in the roster point for the purpose of direct recruitment and as such the same cannot be reserved in favour of any class, except to fill up the same by O.C. candidates. The contention that the cadre of Deputy Managers is 12 and therefore two posts must be filled by SC candidates is contrary to the minutes of 75th meeting of the Board of Directors of A.P. Cooperative Oil Seeds Growers’ Federation Limited dated 31.1.2003, wherein the posts of Deputy Manager (Agriculture) are sub-categorized into General, Technical and Agriculture. In respect of General, 5 posts are earmarked and in respect of Technical, 4 posts are earmarked and in respect of Agriculture, 3 posts are earmarked. Though the pay-scale is the same for all the 12 posts of Deputy Managers, qualifications and experience in respect of each individual specialization posts are different and in fact they are promoted to the six posts of Managers, which are again in different specialization. In fact, the Deputy Managers of concerned speciality are promoted as Managers in the said speciality. The seniority in the cadre of each specialization is the criteria for their promotions as Managers and in fact Yella Reddy was now promoted from the post Deputy Manager (Agriculture) to the post of Manager (Agriculture), even though persons like J. Hari Prasad, T. Ramulu, Md. Basha and P. Krishna Mohan were seniors to him, if the total service as Deputy Manager is to be taken into account. This itself shows that each specialization in the cadre of Deputy Manager is treated as a
separate cadre and as such all the 12 posts cannot be considered in one cadre as claimed by the respondent-Federation to enable them to effect reservation. If all the 12 posts are treated as one cadre, the question of discharging petitioner from service forcibly by operating the V.R.S., while continuing his junior V. Chandrasekhara Reddy, Deputy Manager (Technical), will not arise. The said Chandrasekhara Reddy was initially appointed as Assistant Executive Engineer on 4.11.1991 and he was promoted as Deputy Manager (Technical) on 21.7.1999, while petitioner was initially appointed as Field Officer on 5.12.1983 and promoted as Executive/Area Officer (Agriculture) on 15.3.1989 and further promoted as Deputy Manager (Agriculture) on 21.7.1999. As the post of Assistant Executive Engineer and the Area Officer/Executive are the feeder categories for the post of Deputy Managers and the petitioner and V. Chandrasekhara Reddy are promoted to the post of Deputy Manager on the same day, the seniority of the petitioner in the feeder category is to be taken into account and as such he is senior to V. Chandrasekhara Reddy in the cadre of Deputy Manager.
Learned counsel for the petitioner reiterated the same stand as was taken in writ and reply affidavits.
Learned counsel for the respondents has reiterated the stand taken in the counter.
I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record.
At the outset, it may be noticed that the petitioner is a Post-Graduate in Agriculture and initially was appointed in the respondent-Federation by way of direct recruitment as a Field Officer on 5.12.1983 and was promoted as Area Officer Grade-II on 15.3.1989 and further promoted as Deputy Manager with effect from 23.7.1999 and thus he had put in more than 25 years of service as on the date of
retiring him under the Voluntary Retirement Scheme, holding that he became surplus in the cadre of Deputy Manager (Agriculture). In fact, petitioner was not initially included in the list of surplus staff. One D. Achyuta Rao was included therein as surplus in the cadre of Deputy Manager (Agriculture). However, the said Achyuta Rao filed W.P. Nos. 9565 of 2003 and 13985 of 2005, which were dismissed by common order dated 26.9.2003. The said order was challenged in W.A.Nos. 1787 and 1986 of 2003 respectively and a Division Bench of this Court, vide common order dated 27.4.2004, held as follows:
“34. In this case, the writ petitioner-appellant Mr. Achyuta Rao seeking seniority over the 3rd respondent Ramesh Kumar Reddy. It is the case of the appellant that he was appointed as Field Officer on 29.11.1983 while the 3rd respondent was appointed on 5.12.1983. However, he was promoted as Executive (Agriculture) on 18.9.1989, while the 3rd respondent was promoted on 15.3.1989 and these promotions were only in the Unions. However, both of them were promoted as Deputy Manager (Agriculture) with effect from 21.7.1999. The promotions of appellant and the 3rd respondent in the Unions in the cadre of Executive (Agriculture) has to be ignored for the purpose of assessing seniority in the OILFED. Therefore, their entry at the level of Field Officer has to be taken into consideration. Admittedly, the appellant joined on 29.11.1983 and the 3rd respondent was appointed subsequent to the appointment of the appellant. Under those circumstances, the appellant is entitled for seniority over the 3rd respondent.
Accordingly, both the writ appeals are allowed declaring the appellant is senior to the 3rd respondent-K. Ramesh Kumar Reddy”.
Aggrieved thereby, it appears, petitioner carried the matter in Civil Appeal (Civil) No. 1391 of 2007 before the Supreme Court, in which the following order was passed.
“Similarly in the case of Achyuta Rao (respondent in SLP (C) Nos. 15912-15913 of 2004) in the High Court found that he was appointed as Field Officer on November, 29, 1983. He claimed seniority over Ramesh Kumar Reddy, who was appointed Field Officer on December 5, 1983. So far as their promotions to the post of Executive (Agriculture) in the Unions are concerned, while Achyuta Rao was promoted on September 18, 1989, Ramesh Kumar Reddy was promoted on March 15, 1989. The facts, therefore, disclose that Achyuta Rao when initially appointed to the post of Field Officer was senior to Ramesh Kumar Reddy, but if the promotion granted in the Union is ignored, he must be declared senior to Ramesh Kumar Reddy and ought not to be included in the surplus list. The High Court, therefore, rightly upheld the contention of Achyuta Rao”.
Thus, in W.A.Nos. 1786 and 1787 of 2003, it was held by this Court that D. Achyuta Rao is entitled for seniority over 3rd respondent-petitioner herein. The same was upheld by the Supreme Court, saying that the facts disclose that Achyuta Rao, when initially appointed to the post of Field Officer was senior to Ramesh Kumar Reddy, but if the promotion granted in the Union is ignored, he must be declared senior to Ramesh Kumar Reddy and ought not to be included in the surplus list. All this would show that there was no issue before the Courts in the earlier litigation that whether the petitioner could be declared as surplus and whether he was not entitled for absorption against any future vacancy or whether he could not have been reverted for want of vacancy to a lower post till such similar post arose in future etc. It is true that the purport of the said orders is that Achyuta Rao could not have been included in the surplus list since he was senior to the petitioner. May be, indirectly it can be said that the petitioner could have been included in the surplus list and he could have been dealt with accordingly, but the fact remains that the
petitioner’s substantive post was not Deputy Manager (Agriculture). He climbed the ladder over a period of 25 years, having been initially appointed as Field Officer in the year 1983. There was no consideration by the respondent-Federation as to why petitioner could not have been reverted to a lower post for want of vacancy instead of forcing him to retire, applying Voluntary Retirement Scheme. As on the date of passing the impugned order, petitioner was only aged about 47 years. He had more than 11 years’ of service. Further, respondent has not examined as to whether petitioner could be accommodated in any other alternative post, if not reversion. However, it appears, the Board, in its 75th meeting held on 31.1.2003 while confirming its earlier minutes of 74th meeting held on 13.5.2002 discussed the modalities of fixing the seniority and approved the norms for preparing the final common seniority list based on the date of joining in the promotional post and resolved that wherever the date of joining is different on the promotion, seniority list be fixed depending upon the date of joining in the promoted cadre. The Board also further considered the request of the APOILFED Employees Association to allow the employees to opt for reversion to the lower post and discussed the same and the Board resolved not to allow the employees to opt for reversion. Therefore, it appears, petitioner was also not reverted to the lower post. Under those circumstances, petitioner made a representation on 25.4.2007, inter alia, stating that the Federation requires some more expertise for smooth functioning of its activities. Being a technically qualified person as well as gained valid experience of 23 years in all activities of the Federation, he may be permitted to continue his services in the Federation, as it absolutely requires more technical staff.
Be that as it may, petitioner was not even 45 years at the time of introduction of Voluntary Retirement Scheme. RespondentFederation, in fact, included the name of the petitioner in the non-
surplus list. Only when Achyuta Rao challenged the matter, which attained finality before the Supreme Court as noticed above, he became surplus in the cadre of Deputy Manager (Agriculture). Since there was no provision for reversion under the Voluntary Retirement Scheme, the same was thrashed on him and he was made to retire. In this regard, learned counsel for the petitioner strenuously contended that firstly 12 vacancies were not considered to be of a common cadre or class. All the posts of Deputy Manager were treated as separate cadre though they were carrying the same pay-scale and as such petitioner was declared surplus and made to retire. If the post held by petitioner was treated as one of the cadre post out of 12 posts identified, the junior most could have been declared surplus and he could have been reverted. This question did not arise during pendency of the litigation which attained finality before the apex Court. If this is taken into consideration, definitely petitioner could not have been made to retire voluntarily, declaring him as surplus. Further, as contended by learned counsel for the petitioner, if there are only three vacancies, the question of reserving one vacancy for SC/ST as backlog vacancy and filling up the same does not arise. According to learned counsel for the petitioner, all these facts were suppressed in earlier round of litigation and, ultimately, petitioner is made to suffer. The whole litigation was proceeded on the ground that there were three vacancies and Achyuta Rao, being senior, could not have been declared as surplus in the cadre of Deputy Manager (Agriculture). In fact, M. Yella Reddy was promoted as Manager (Agriculture) on 26.12.2007. When an application was made by petitioner requesting the authorities to accommodate him in any post, they could have visualized promotion of M. Yella Redy, Deputy Manager (Agriculture) and would have asked petitioner to go on leave for some time and they could have accommodated him in the said post. It is not the case of respondents that the petitioner came forward to accept Voluntary
Retirement Scheme. Petitioner never accepted the Voluntary Retirement Scheme. He was declared as surplus in view of the judgment of this Court and when he made a request to permit him to continue in service in the respondent-Federation, that was not considered. At least, his request could have been considered on the date when M. Yella Reddy was promoted as Manager (Agriculture) and when a vacancy of Deputy Manager (Agriculture) arose. Since petitioner has not accepted the Voluntary Retirement Scheme and requested for his retention, they could have considered his case for reversion to a lower post under the general service law applicable to petitioner, ignoring the terms of Voluntary Retirement Scheme or he should have been asked to go on leave for some time till he could be accommodated either in any alternative post or in any vacancy that that would arise after retirement of somebody. Instead of doing that, impugned orders dated 21.4.2007 were passed, which are under challenge in W.P. No. 9906 of 2007, and impugned notification, which is under challenge in W.P. No. 7029 of 2008, was issued for filling up of the said vacancy, on the premise that it is a backlog vacancy, though it is a post for promotion and no person belonging to SC is available in the feeder category. The justification sought to be made by the respondents that there were 12 vacancies and when there is no person available in the cadre the vacancy could be notified for the purpose of direct recruitment is unfortunate and not supported by any law, including Section 3 of Act 24 of 1997.
Under those circumstances, it has to be seen whether a person who did not opt for Voluntary Retirement Scheme, though declared as surplus, could not have been reverted to a lower post, may be contrary to Voluntary Retirement Scheme but in consonance with the general service rules applicable?
In the facts and circumstances of the case, I am of the
opinion that if the petitioner was declared surplus in the cadre of Deputy Manager (Agriculture), he should have been allowed to be reverted to the lower post from which he was promoted as Deputy Manager. This was not done on the ground that the Board has passed a resolution. Further, when M. Yella Reddy was promoted as Manager from the post of Deputy Manager, the case of the petitioner could have been considered. That was also not done. A person who is well qualified and aged only 45 years was made to retire without considering all these aspects. I am of the opinion that such a practice adopted by the respondents is liable to be deprecated. Simply because there was no candidate available in the feeder category for being promoted as Deputy Manager (Agriculture), it cannot be said that a post can be created for direct recruitment and it can be filled up by an SC candidate.
For all the above reasons, the impugned proceedings No.P&A/HR-3/Supreme Court/2197-2007 dated 21.4.2007 of 4th respondent in W.P.No. 9906 of 2007 and the impugned Notification for filling up the post of Deputy Manager (Agriculture) vide Letter No.HRD/HR.3/ Backlog vacancies/ 2314/2008/338 dated 5.3.2008 are declared as arbitrary and illegal and accordingly set aside. In the facts and circumstances of the case, I am of the opinion that the petitioner is entitled to be considered for reinstatement in the vacancy which is notified under the impugned order.
In the result, both the writ petitions are allowed as
follows:
1. The respondents are directed to reinstate the petitioner as Deputy Manager (Agriculture) in the post available, with continuity of service. However, the period from the date of retirement/removal till the date of writ petition shall not be counted for the purpose of seniority except for the
purpose of pensionary benefits.
2. Petitioner is entitled for continuity of service from the date of filing W.P. 7029 of 2008 till the date of reinstatement. However, he is not entitled for any other attendant benefits, except seniority.
C.C. No. 1004 of 2010:
In view of the final orders passed in W.P.Nos. 9906 of 2007 and 7029 of 2008, no further orders need be passed in the contempt case and it is accordingly closed.
JUSTICE C.V. RAMULU.
Date: 03-11-2010.
MVB.
3 issues framed by the court
Whether a person declared surplus under Voluntary Retirement Scheme without opting for it and without reversion to a lower post can be reinstated.
Whether a promotion vacancy can be treated as a backlog vacancy filled by direct recruitment for Scheduled Castes when no feeder candidates are available.
Whether the treating 12 posts of Deputy Managers as a single cadre for reservation purposes is legally sustainable given they are in separate specializations.
Colour shows how this judgement treated each authority
2 provisions across 2 enactments
Ramesh Kumar Reddy
A.P. Cooperative Oil Seeds Growers Federation Limited
C.V. Ramulu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
