Allowed

Sri Chintha Venkata Sivayya, v. The a.P.Co.operative Oil Seeds Growers Federation Ltd.

Telangana HC12 Feb 2013WP/20741/2007

Case brief

AI extract

What is this about?

The Court held that the petitioner, declared a permanent employee senior to the second respondent (who was deemed surplus), was entitled to reinstatement with continuity of service. However, due to the petitioner's inaction and delay in approaching the Court since July 2003, he was granted only 50% of the monetary benefits and costs were imposed on the Federation.

What did the court decide?

Reinstatement in service with continuity of benefits; 50% of monetary benefits arrears from July 2003; costs of Rs. 50,000 against Federation.

Sri Chintha Venkata Sivayya, Vs The… — Pension and Retirement Benefits | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION NO.20741 OF 2007

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DATED 1 2 TH FEBRUARY, 2013

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Between Sri Chintha Venkata Sivayya S/o C.Ramachandraiah, aged 44 years, Occ: Service, R/o Door No.16-8, Pathapet, Bazar Street, Opp Saibaba Temple, Chandragiri Village, Post & Mandal, Chittoor District.

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...Petitioner

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And The A.P.Co-operative Oil Seeds Growers Federation Ltd., 9^th Floor, Parisram Bhawan, Basheerbagh, Hyderabad-4, Rep. by its Vice Chairman and Managing Director and another.

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...Respondents

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION NO.20741 OF 2007

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O R D E R

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Chintha Venkata Sivayya, an Area Officer of the Andhra Pradesh Co-operative Oilseeds Growers’ Federation Limited (for brevity, ‘the Federation’) is the petitioner. By way of the amended prayer in this writ petition, he seeks a declaration that the action of the Federation in treating A.Sambasiva Reddy, the second respondent, as a permanent employee in the category of Executive/Area Officer-II(Agriculture) in preference to him is arbitrary, illegal and unconstitutional. He seeks a consequential declaration that he is a permanent employee of the Federation, entitled to be retained in service in preference to the second respondent in the existing vacant post; to set aside the letter dated 02.06.2003 issued by the Federation and to release his salary and allowances from July, 2003.

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The petitioner entered the service of the Federation as a Field Officer (Agriculture) under appointment order dated 13.07.1990. His appointment was pursuant to a selection process and he joined service on 26.07.1990. His probation was declared by proceedings dated 12.12.1991. He was deputed to work in Srikrishna Devaraya Cooperative Oil Seeds Growers’ Union Limited at Piler from 13.10.1993. Some of the employees of the Federation posted at the Unions filed Writ Petition No.2497 of 1996 and batch before this Court contending that they could not be deputed to work at the Unions without their consent and that they should be treated as employees of the Federation. By order dated 06.06.2000, reported in M.THIRUPATHI

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REDDY V/s. ANDHRA PRADESH CO-OPERATIVE OILSEEDS GROWERS’ FEDERATION LTD., HYDERABAD^[1] , this Court held that all the employees of the Federation who were deputed to the Unions should be considered to be employees of the Federation only and that they should be granted promotion from the date their juniors in the Federation were promoted. Pursuant to these orders, the petitioner was promoted as an Area Officer-II (Agriculture) with effect from 21.07.1999, under proceedings dated 30.07.2001.

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While so, the Federation introduced a Voluntary Retirement Scheme (VRS) under Circular dated 05.12.2002 for the purpose of restructuring its staff. A common seniority list of employees of the Federation was issued under proceedings dated 12.12.2002, wherein the petitioner was shown at Sl.No.18 while the second respondent was shown at Sl.No.23 in the cadre of Area Officer-II (Agriculture). The second respondent was appointed as a Field Officer on 21.11.1990 and was promoted by the Union where he was deputed to work. However, in the seniority list dated 12.12.2002 the date of promotion of the second respondent was shown as 01.01.1998 being the date of his promotion by the Union, which was contrary to the law laid down by this Court in M.THIRUPATHI REDDY¹ . The petitioner therefore made a representation on 09.02.2003 to fix his seniority based on his appointment in the category of Field Officer and to ignore the promotions granted by the Union as the same were effected without following any norms.

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By Circular dated 07.05.2003, the Federation notified the list of surplus/non-surplus employees. Even though the petitioner was shown as senior to the second respondent in the common seniority list dated 12.12.2002, his name was included in the list of surplus employees and the second respondent was left out. On the other hand, the list of non-surplus employees notified by the Federation on 07.05.2003 contained the name of the second respondent.

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The petitioner filed W.P.No.9696 of 2003 challenging the list of surplus and non-surplus employees issued by the Federation in the context of another employee, P.Gopi Krishna, who was sought to be retained. Pending this writ petition, the petitioner submitted VRS application dated 29.05.2003 under protest. This application was allegedly accepted by the Federation under letter 02.06.2003. W.P.No.9696 of 2003 was heard by this Court along with a batch of writ petitions. By common judgment dated 26.09.2003, the cases were disposed of holding that the promotions given by the Unions had to be ignored while effecting the VRS. Further, this Court declared unequivocally that A.Sambasiva Reddy, the second respondent, should be treated as a surplus employee. He was a party to the batch but in a different case. However, in so far as W.P.No.9696 of 2003 filed by the petitioner was concerned, this Court dismissed the same. Pursuant to the common order dated 26.09.2003, the Federation circulated a modified common seniority list under Circular dated 27.10.2003. The promotions given by the regional Unions to 19 employees on various dates were sought to be brought on par with the promotions given by the Federation on 21.07.1999. As per this modified common seniority list, the petitioner was shown at Sl.No.15 while the second respondent was at Sl.No.16. Grievances, if any, as to this seniority list were to be submitted on or before 15.11.2003. The petitioner claims that no objections were submitted by the second respondent as to his position in this seniority list, and therefore, their inter se seniority became final.

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While so, some of the employees whose writ petitions were dismissed by this Court under the common order dated 26.09.2003 filed appeals. Some of these writ appeals, viz., Writ Appeal Nos.1784 of 2003 and batch were disposed of by common judgment dated 27.04.2004, whereby a Division Bench of this Court affirmed that promotions given by the Unions had to be ignored and seniority had to be fixed based on the date of entry into the initial cadre in the

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Federation. This Court further held that the principle of ‘first come last go’ had to be followed while effecting the VRS. Thereby, the appellants therein were deemed to have been continued in service and they were held entitled to pay and allowances duly treating them as non-surplus employees. Aggrieved by this common judgment, the Federation approached the Supreme Court. By judgment dated 15.03.2007 in Civil Appeal Nos.1391 of 2007 and batch, the Supreme Court confirmed the judgment of the Division Bench of this Court. The Supreme Court held that the promotions earlier granted by the Unions could not be applied to determine the inter se seniority of the employees of the Federation. The seniority was to be reckoned with reference to the length of service in the Federation. Therefore, the date of initial appointment in the Federation was held to be the deciding factor for determining seniority.

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Applying these norms, the second respondent had to be treated as a surplus employee as held by the learned single Judge in the judgment dated 26.09.2003 in the batch of cases. This was obviously given effect to by the Federation in its modified common seniority list dated 27.10.2003, wherein the petitioner was shown at Sl.No.15 while the second respondent was shown at Sl.No.16 in the category of Area Officers-II/Exe.(Agriculture). In the separate cadre-wise seniority list prepared pursuant to the judgment dated 26.09.2003 passed by the learned single Judge, the petitioner was shown at Sl.No.17 in the cadre of Executives/Area Officers(Agrl.)-II, while the second respondent was shown at Sl.No.21. In the said list, the date of promotion of the petitioner and the second respondent as Area Officers-II (Agriculture) was shown as 21.07.1999. Significantly, the second respondent did not file an appeal against the order of the learned single Judge categorically declaring him a surplus employee. He was the third respondent in W.P.No.10294 of 2003 filed by one P.M.Konda Reddy, which was one of the cases in the batch, and was therefore bound by the declaration of the learned Judge that he was a

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surplus employee. He also did not choose to question his position in the seniority list dated 27.10.2003. Despite the same, the Federation strangely continued the second respondent in service.

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The petitioner was posted at the Tirupati Office of the Federation on 17.07.2000 while he was still a Field Officer. He was promoted as an Area Officer-II (Agriculture) while working at Tirupati, under proceedings dated 30.07.2001, with effect from 21.07.1999. He was thereafter retained at the Tirupati Office. However, from July, 2003 onwards he was not paid any salary. He claims that no decision was communicated to him as to the acceptance of his VRS application and he was never relieved from duty. The petitioner claimed that from July, 2003 he forwarded his attendance record every month to the Head Office and the same was duly received by the Head Office at Hyderabad. The petitioner’s many representations for release of his salary only evoked the response that his continuation in service and his entitlement to salary would be finalized after the decision in the Writ Appeals. After the disposal of the Writ Appeals, the Federation informed him that his case would be finalized after the decision of the Supreme Court. The petitioner stated that he made representations dated 20.07.2006, 24.08.2006, 22.09.2006, 30.10.2006, 29.12.2006, 02.04.2007 and 10.04.2007 seeking release of his salary. However, the Federation maintained a studied silence. The petitioner therefore made a representation on 29.12.2006 to the Federation under the Right to Information Act seeking to know his status. The Federation replied under letter dated 14.02.2007 that his seniority would be notified after the decision of the Supreme Court in connected matters. Thereafter, the Supreme Court delivered judgment in the batch of cases on 15.03.2007, confirming the judgment of the Division Bench of this Court in W.A.No.1784 of 2004 and batch. Thereupon, the petitioner again submitted representations dated 02.04.2007 and 15.04.2007 to the Federation seeking justice. However there was no reply from the Federation. The Federation separately issued Circular

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dated 15.05.2007 notifying the common seniority list of permanent employees, which was stated to be in accordance with the orders of this Court and the Supreme Court. Employees were asked to submit their grievances, if any, to the said seniority list. In this list the second respondent was shown at Sl.No.14 in the category of Area Officers-II (Agrl.) and the post against Sl.No.15 was shown as vacant. The petitioner’s name was completely ignored in this list. In his representation dated 22.05.2007, the petitioner pointed out that as per the earlier reply of the Federation, his position was to be finalized after the judgment of the Supreme Court but, despite the decision of the Supreme Court, the Federation had not taken any steps in the matter in so far he was concerned. He pointed out that he was shown as senior to the second respondent in the earlier seniority lists. He also pointed out that the declaration of the learned single Judge as to the second respondent being a surplus employee had not been disturbed in appeal and asserted that he was entitled to be retained in service in preference to the second respondent. He therefore sought inclusion of his name in the list of permanent employees in the cadre of Area Officer-II (Agriculture). He also sought release of his salary from July, 2003 onwards.

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The petitioner stressed in the writ affidavit that he was senior to the second respondent and the promotion of the second respondent by the Union on 01.01.998 had no legal impact. He further stated that he had not been relieved pursuant to the VRS and he was also not paid any VRS benefits. He therefore initially prayed for a declaration that the action of the Federation in treating the second respondent as a permanent employee in the cadre of Executive/ Area Officer-II (Agriculture) in preference to him was arbitrary, illegal and unconstitutional and prayed for a further declaration that he was a permanent employee of the Federation entitled to be retained in service in preference to the second respondent and to direct the Federation to release his salary and allowances from July, 2003.

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Thereafter, by WPMP No.25457 of 2008, he sought amendment of the prayer, which was allowed on 24.09.2008, and the relief sought presently is as set out hereinbefore.

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The writ petition was admitted by this Court on 04.10.2007 and by interim order of the same date; the Federation was directed to release salary and allowances due to the petitioner from July, 2003 onwards and continue to pay him the same every month. The Federation then filed WVMP No.3398 of 2007 to vacate the above interim order. In the counter-affidavit filed in support thereof Sri T.Radha, IAS, the Vice Chairman and Managing Director of the Federation, stated to this effect:

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The petitioner was initially appointed as a Field Officer and joined as such on 26.07.1990. His probation was declared thereafter. As per the orders of this Court in M.THIRUPATHI REDDY¹ , all the employees of the Federation deputed to the Unions were to be considered as employees of the Federation only and promotions were accordingly effected w.e.f. 21.07.1999 whereby, the petitioner was also promoted as an Area Officer-II (Agriculture). The tentative seniority list dated 12.12.2002 showed the petitioner at Sl.No.18 in this category while the second respondent was shown at Sl.No.23. However, the date of promotion of the petitioner as an Area Officer-II (Agriculture) was shown as 21.07.1999 while that of the second respondent was shown as 01.01.1998. However, objections were received from employees as to this seniority list and after considering the same, the seniority list was finalized under Circular dated 07.05.2003 along with a list of surplus and non-surplus employees. As per this list, the second respondent was shown at Sl.No.7 while the petitioner was shown at Sl.No.20 in the category of Executive/Area Officer-II (Agriculture). The second respondent was accordingly treated as a non-surplus employee while the petitioner was shown as a surplus employee. This fixation was stated to be in accordance with the norms decided upon by the Federation at its 75^th Board Meeting on

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31.01.2003. As per these norms, in case of promotions when the date of joining was the same, the seniority of the employees was to be decided as per the entry into the feeder channel rather than fixing the seniority on the date of birth. However, when the date of joining was different upon promotion, the seniority was to be fixed depending upon the date of such joining in the promoted cadre only. The petitioner submitted his VRS application under protest, but by virtue of the interim orders of the status quo passed in the batch of writ petitions, he was continued in service. However, his application was accepted by the Federation under proceedings dated 02.06.2003 wherein it was mentioned that his notice period started from 01.06.2003 and ended on 30.06.2003. The said proceedings further stated that his VRS benefits would be settled and released in due course and that the petitioner would be relieved from the service of the Federation at the close of working hours on 30.06.2003. It was also pointed out that in W.P.No.9696 of 2003, the second respondent was not a party and the dispute of the petitioner was with P.Gopi Krishna, another employee of the Federation. The Vice-Chairman-cum-Managing Director therefore stated that the petitioner would be barred by the principles of res judicata and constructive res judicata from raising the issue of his seniority in the list dated 07.05.2003. He further pointed out that W.P.No.9696 of 2003 filed by the petitioner was dismissed by the learned single Judge under the common order dated 26.09.2003. He therefore asserted that the petitioner’s position at Sl.No.20 in the final seniority list dated 07.05.2003 as well as his placement in the surplus list became final as the petitioner did not choose to file an appeal. He further contended that the proceedings dated 02.06.2003, whereby the petitioner’s VRS application was accepted, also became operative and that there was no relationship of employer and employee between the Federation and the petitioner after 30.06.2003, notwithstanding the fact that no order was issued formally relieving him from service. He alleged that the petitioner had withheld the proceedings dated

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02.06.2003 in his affidavit and the writ petition was liable to be dismissed on the ground of suppression of facts.

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He further stated that the seniority list dated 27.10.2003 was prepared in the light of the decision of the learned single Judge dated 26.09.2003, whereby the Federation was to equate the promotions made by the Unions with those made by the Federation on 21.07.1999. The seniority list dated 27.10.2003 was stated to be a tentative list. He however admitted that the petitioner was shown therein at Sl.No.17 but asserted that it did not confer any right on him as it was only a tentative seniority list. He therefore contended that mere inclusion of his name in the said seniority list did not clothe the petitioner with the right to contend that he continued to be an employee of the Federation. Several employees were stated to have submitted grievances against the tentative seniority list dated 27.10.2003, but the petitioner did not choose to do so. The said list however was not finalized as 30 employees preferred 21 Writ Appeals against the common order of the learned single Judge dated 26.09.2003. On account of the pendency of these appeals, no further action was taken by the Federation. He pointed out that the judgment of the Division Bench in Writ Appeal No.1784 of 2003 and batch was limited to the appellants therein and therefore, it had no effect on the petitioner. The appeals by the remaining 23 employees in Writ Appeal No.2027 of 2003 and batch was disposed of by another Division Bench of this Court on 14.09.2005, whereby directions were given in conformity with those suggested by the Government under proceedings dated 12.09.2005, envisaging a fresh VRS for all employees of the Federation and redrafting of the seniority list amongst the remaining employees. These directions were said to be inapplicable to the petitioner as he was not one of the appellants and the directions were confined to the appellants therein. He reiterated that the petitioner ceased to be an employee of the Federation with effect from 30.06.2003. In that context, he stated that there was no question of the

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petitioner being continued in the service of the Federation at its Tirupati office after 30.06.2003. He stated that the purported attendance record submitted by the petitioner from the Tirupati Office was a self-certified attendance without attestation by any responsible officer of the Federation. He stated that the official attendance particulars of the employees at Tirupati office did not include the petitioner’s name after 30.06.2003. The Tirupati office was said to have only three employees. He however admitted receipt of the representations dated 29.12.2006 and 22.09.2006 made by the petitioner. He also admitted that the Federation had replied on 14.02.2007 informing the petitioner that the judgment of the Supreme Court was awaited and basing on that, an appropriate decision would be taken as to his seniority. He sought to explain this, by stating that the entire facts of the case were not examined when this reply was issued and asserted that no right was created nor could be claimed by the petitioner on the basis of the said reply. The indication of a post as vacant in the seniority list dated 15.05.2007 was stated to be unconnected with the petitioner as it pertained to disciplinary proceedings pending against some other employee who had been removed. He admitted receipt of the petitioner’s representation dated 22.05.2007, wherein he sought to be declared a permanent employee of the Federation and for inclusion of his name in the final seniority list. He stated that without waiting for the orders of the Federation on his representation, the petitioner approached this Court straightaway. He accordingly prayed for vacating the interim order dated 04.10.2007 and for dismissal of the writ petition.

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A copy of the letter dated 02.06.2003, signifying acceptance of the petitioner’s VRS application, was filed and reads as under:

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“F&A/VRS-2003/ACK/ACCEPTN/03

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Monday, June, 02, 2003.

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LETTER OF ACCEPTANCE OF VRS – 2003

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Subject: Introduction of VRS to the eligible employees of APOILFED/Unions vide Notification No. APOILFED: MD: P&A: VRS-2003 dt.7-5-2003.

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Reference: Your Application for APOILFED and Regional Unions Employees VRS-2003 dated:30-05-2003

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With reference to the above, we acknowledge receipt of your Application for APOILFED and Regional Unions Employees Voluntary Retirement Scheme – 2003. This is to inform you that your Application is examined and found the same in order and the same is accepted herewith. Your notice period starts from 01-06-2003 and ends as at close of working hours on 30-06-2003. The Voluntary Retirement Scheme benefits will be settled and released to you in due course. You will be relieved from the services of APOILFED/Regional Unions, Gadwal/Piler which ever is applicable, as at close of working hours on 30.06.2003. The other terms and conditions stipulated in our above Notification remain unchanged.

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For Managing Director, APOILFED & Chairperson of Regional Unions, Gadwal and Piler. Sd/2/6/2003 Manager (Per. & Admn.)

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Sri Ch. Venkatasivaiah, Executive-Agriculture, Sri Krishnadevaraya Coop. Oilseeds Growers’ Union Limited, Piler. (Tirupati)”

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There is however no evidence of the letter dated 02.06.2003 having been served on the petitioner at that point of time and he, in turn, denies having received any such intimation.

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In his reply to the above counter, the petitioner stated that as per the orders of this Court in M.THIRUPATHI REDDY¹ , the date of promotion of the second respondent by the Union had no relevance and his later promotion for the purpose of seniority was only to be taken as 21.07.1999, being the date of promotion of employees of the Federation. It was in pursuance of this principle, that the petitioner was shown as senior to the second respondent in the seniority list dated 12.12.2002. The list dated 07.05.2003 was stated to be a list of surplus/non-surplus employees and not a seniority list. Even in the final seniority list dated 27.10.2003, the petitioner was shown above the second respondent at Sl.No.15, while the second respondent was at Sl.No.16. He pointed out that he had filed W.P.No.9696 of 2003 challenging the VRS notification dated 07.05.2003 along with the

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surplus/non-surplus list and by interim order dated 26.06.2003, the Federation was directed not to relieve the petitioners in the batch till 20.07.2003. The writ petition itself was directed to be listed for hearing on 10.07.2003. He therefore asserted that during the subsistence of the orders passed by this Court, the Federation could not have given effect to his VRS application. He pointed out that the second respondent was not a party to W.P.No.9696 of 2003 filed by him and that the dispute raised by him in the said writ petition was with regard to the appointment of P. Gopi Krishna as a Computer Programmer in preference to him. He further pointed out that as per the common order dated 26.09.2003 in the batch of cases, the second respondent was specifically held to be a surplus employee on the ground that the promotions made by the Unions were to be ignored and the cases of such employees working in the Unions were to be treated on par with Federation employees, taking into account the promotions of such Federation employees with effect from 21.07.1999. It was on the basis of these directions, that the Federation issued the final seniority list dated 27.10.2003 wherein, once again, the second respondent was shown as junior to the petitioner. He further asserted that no orders were ever issued by the Federation relieving him from service and that he was permitted to continue in service. He therefore contended that the allegation to the contra that he stood relieved and ceased to be an employee of the Federation from 30.06.2003 was not valid and correct. He pointed out that in the case of other employees, whose writ petitions were also dismissed, the Federation issued relieving orders dated 14.10.2003 and asserted that no such orders were issued to him. The monthly attendance record sent by him from June 2003 onwards was placed on record along with the acknowledgements, evidencing receipt thereof by the Federation. He pointed out that the Federation, at no point of time, informed him that he had been relieved from service on 30.06.2003 and that he was no longer its employee. On the contrary, the Federation informed him, time and again, that as

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the matter was pending before the Courts, his case would have to await a final decision. The same stand was also reflected in the letter dated 14.02.2007 issued by the Federation in response to his query under the Right to Information Act. He pointed out that though he was not a party to the proceedings before the Division Bench and the Supreme Court, the principle of law laid down by the learned single Judge to the effect that the promotions given by the Unions had to be ignored and that employees in the Unions had to be brought on par with the Federation employees was confirmed throughout.

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Applying the said principle, the petitioner pointed out that he necessarily had to be treated as a senior to the second respondent and was therefore entitled to be continued in service in preference to him. The final seniority list dated 27.10.2003 demonstrated that the Federation followed and applied this principle and therefore, the question of the petitioner submitting any objections thereto did not arise. In fact, the Federation itself reaffirmed the seniority list dated 27.10.2003, rejecting the grievances advanced by some of the employees, under its proceedings dated 01.11.2007. While doing so, the Federation specifically pointed out that the principle laid down by the learned single Judge of this Court in the batch of cases had been upheld by the Division Bench and thereafter, by the Supreme Court. He therefore argued that the Federation could not take a different position in the case of each employee. Reference was made to the proceedings dated 01.11.2007 issued to K.V.Ranga Reddy, who was also not a party to the Writ Appeals or the cases before the Supreme Court, but the same principle was affirmed and applied to him. This action, according to the petitioner, clearly indicated the biased attitude of the Federation.

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Apropos the contention of the Federation that he ceased to be an employee on 30.06.2003, the petitioner pointed out that those employees who had not challenged the VRS were issued relieving orders and their VRS benefits were settled expeditiously. In this

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regard, an order dated 30.06.2003 was filed to demonstrate the point. However, in so far as he was concerned, no relieving orders were issued to him at any point of time and his VRS benefits had not been settled till date. In consequence, the petitioner asserted that he must be deemed to have continued in service as per the principle laid down by the learned single Judge in the judgment dated 26.09.2003, as implemented by the Federation itself in its final seniority list dated 27.10.2003. He also relied upon the reply dated 14.02.2007 given by the Federation to prove his point that he had never been relieved and continued to be an employee of the Federation. He stated that he had been sending his attendance records under self-attestation since December, 2001 as there were only two employees in the ‘Procurement and Inputs Wing’ at Tirupati. However, the other employee, Y.Mohan Reddy, was also transferred to Eluru on 09.01.2002 and after the said date, as the petitioner was the only employee at the Tirupati office, he continued to send his attendance under self-attestation. The three employees mentioned in the counter were said to have been posted at the Tirupati office only after implementation of the VRS.

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As regards payment of his salary, the petitioner stated that he had made several representations to the Federation orally and also approached the Hyderabad office several times, but he was informed that as the matter was pending before the Courts, he would have to await a final decision. He therefore denied that he had not approached the Federation for over three years i.e. from 2003 to 2006. He reiterated that he made several representations in the years 2006 and 2007 and was in a position to file acknowledgements to prove the receipt thereof by the Federation. He therefore asserted that the second respondent was his junior in the cadre of Area Officer-II (Agriculture) and that having waited for justice to be done to him after the decision of the Supreme Court, he had no alternative but to approach this Court upon his deletion from the seniority list dated

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15.05.2007. He accordingly reiterated his prayer for the reliefs sought by him in this writ petition.

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Upon hearing arguments on the vacate stay petition, a learned Judge of this Court, by order dated 21.04.2008, taking note of the alleged acceptance of the petitioner’s VRS application on 02.06.2003 and the subsequent seniority list dated 27.10.2003 wherein he was shown as senior to the second respondent, left it open to him to make a representation to the Federation to take him into service and the Federation was directed to pass appropriate orders on such application within a timeframe. The learned Judge also made it clear that in view of these changed circumstances, the Federation was under no obligation to comply with the interim direction dated 04.10.2007. Thereafter, on 16.06.2008, the learned Judge recorded that the petitioner’s representation dated 22.04.2008, made in pursuance of the order dated 21.04.2008, had been considered by the Federation and by letter dated 16.05.2008 the Federation stated that it may be possible for it to examine the petitioner’s case for appointment in the place of A.Sambasiva Reddy, who had been relieved under the VRS, provided the petitioner gave a clear undertaking waiving his claim for salary from 01.07.2003 till date. The Federation stated that if such an undertaking was given, the petitioner’s request for appointment in the place of A.Sambasiva Reddy may be examined by it so as to place his case for a final decision before the Board of Directors. The petitioner responded thereto, under his letter dated 30.05.2008, reiterating his claim for continuation in service and for the arrears of salary, stating that the requirement of waiving his past salary was inconsistent with the order dated 21.04.2008. The Federation, by its letter dated 09.06.2008, refused to accept the petitioner’s request as it would amount to granting the full relief prayed for by him in the writ petition. Taking note of these developments, the learned Judge, by his order dated 16.06.2008, stated that no further orders were necessary at that stage and directed the matter to be posted for final hearing.

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Heard Sri G.Mohan Rao, learned counsel for the petitioner, and Sri T.S.Praveen Kumar, learned counsel for the Federation.

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Certain admitted factual aspects of the case may be reiterated at the cost of repetition. The petitioner and the second respondent joined the service of the Federation as Field Officers in the year 1990 but the petitioner was senior as he joined on 26.07.1990, while the second respondent joined the service on 21.11.1990. Both of them were deputed to work in the Union offices. As per the judgment of this Court in M.THIRUPATHI REDDY¹ , employees of the Federation who were deputed to the Unions had to be considered as employees of the Federation only and therefore, the promotions granted to such employees by the Unions had no impact on their seniority in the Federation. Both the petitioner and the second respondent therefore had to be treated as having been promoted to the next higher post of Area Officer-II (Agriculture) with effect from 21.07.1999 only on par with the other Federation employees. It is also a matter of record that the petitioner was shown as senior to the second respondent in the seniority list dated 12.12.2002 (petitioner was shown at Sl.No.18 and the second respondent was shown at Sl.No.23). Though the petitioner’s name was included in the list of surplus employees, while the second respondent was shown as non-surplus, when the notification dated 07.05.2003 was issued in respect of the VRS, the judgment of this Court dated 26.09.2003 in the batch of cases held in unequivocal terms that the second respondent was to be declared a surplus employee. This finding attained finality as neither the Federation nor the second respondent, who was a party to the batch, chose to challenge it by way of an appeal. Pursuant to this judgment, the common seniority list dated 27.10.2003 was issued by the Federation, once again showing the petitioner (Sl.No.15) as senior to the second respondent (Sl.No.16). The principle laid down by the learned single Judge was affirmed in appeal viz., Writ Appeal No.1784 of 2003 and batch, when the Division Bench held that the promotions

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given by the Unions should be ignored and that seniority had to be fixed on the basis of the date of entry in the initial cadre in the Federation. The Division Bench also directed that the principle of ‘first-come-last go’ had to be followed while effecting the VRS. This common judgment was challenged by the Federation before the Supreme Court but the said appeals were dismissed on 15.03.2007.

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It is relevant to note that in the judgment dated 27.04.2004 rendered in Writ Appeal Nos.1784 of 2003 and batch, the Division Bench held that not challenging the promotion given to the junior employees who were working in the Unions was not fatal to the case of the employees for proper fixation of seniority in the Federation. The Bench held that for the purpose of assessing such seniority, the date of entry into service in the respective cadres in the Federation alone has to be taken consideration and the promotions given by the Unions outside the cadre were of no effect. It was only in the context of employees who had accepted VRS benefits and had not challenged the seniority list, that the relief granted was to be confined only to such of the employees who had challenged the seniority list irrespective of their acceptance or otherwise of the VRS. The Supreme Court, while dealing with this judgment in Civil Appeal No.1391 of 2007 and batch, observed that the Bench was right in holding that the promotions earlier granted in the Unions and the norms later laid down by the Federation could not be applied to determine the inter se seniority of the employees of the Federation and that the only rule which, in the facts of the case, could be safely applied to determine seniority was to reckon seniority by reference to the length of service in the Federation. As a necessary corollary, the Supreme Court observed that the date of initial appointment in the Federation was decisive in determining their seniority. The Supreme Court also made it explicitly clear by clarifying that, thus applied, seniority must be determined by reference to the date of initial appointment and not by reference to the dates of promotions granted by the Unions, unguided by Rules or norms. The

¶56

Supreme Court, taking note of the fact that 20 of the writ petitioners whose cases were dismissed by the High Court had already accepted VRS pursuant to the judgment dated 14.09.2005, observed that the dispute before it was confined to the 6 contesting respondents before it whose Writ Appeals were allowed by the High Court. Though the relief granted was limited to the said respondents, the principle of law laid down by the Supreme Court would have binding application under Article 141 of the Constitution. It may also be noted that this principle was only a reiteration of the edict of this Court in M.THIRUPATHI REDDY¹ .

¶57

In so far as Writ Petition No.9696 of 2003 filed by the petitioner is concerned, the prayer therein reflects that he challenged the VRS 2003 notification dated 07.05.2003 along with the non-surplus and surplus list issued by the Federation. But the said challenge was made in the context of P.Gopi Krishna, the third respondent therein. Dealing with this writ petition in the common order dated 26.09.2003, the learned Judge observed that the contention of the petitioner was that he had joined as a Field Officer on 29.07.1990 and as an Area Officer on 21.07.1999, while P.Gopi Krishna, the third respondent, was junior to him in the cadre of Field Officer, but promoted as an Area Officer on the same day, and therefore, he was junior to him, but was retained as a Computer Programmer. The learned Judge took into account the fact that P.Gopi Krishna possessed Computer Programming qualification and was not comparable with the petitioner and as only one post of Executive (Computers) was available he alone was found suitable. The learned Judge therefore held that though the petitioner was senior to P.Gopi Krishna, he was not entitled to hold the post of Executive (Computers).

¶58

In the context of the Federation’s assertion that the promotions given by the Unions should be taken into account, the learned Judge observed as under:

¶59

“The contention of the learned counsel for the

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Federation that the promotions given by the Unions cannot be disturbed and they cannot be treated on par with the Federation employees while finalizing the common seniority list has already been considered and is to be rejected. The contention of the petitioners is that 19 promotions were given by the Unions from 1994 to 1999 are liable to be ignored and all of them have to be treated on par with the Federation employees. There is force in the said contention of the learned counsel for the Federation in view of the judgment of this Court in M.THIRUPATHI REDDY (1 supra) and the deputationists are always to be treated the employees of the parent department alone…”

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The learned Judge thereafter considered the status of 19 employees promoted by the Regional Unions and asked the Federation to submit the details of the changes that took place in their seniority, if such promotions in the Unions were to be ignored and they were to be considered for promotion along with others similarly situated in the Federation as on 21.07.1999. As per the tabulated statement provided by the Federation itself, giving effect to this direction, A.Sambasiva Reddy, the second respondent herein, figured at Sl.No.14 and was rendered surplus. In that context, the learned Judge specifically declared that the second respondent herein at Sl.No.14 alone became surplus. This finding attained finality as stated supra. It is pursuant to this judgment, that the Federation came up with the seniority list dated 27.10.2003, wherein it was specifically stated that as a consequence of this judgment, certain changes had been made in the final common seniority list, mainly, with reference to the inter se seniority between the employees in certain cadres due to the changed date of promotion to 21.07.1999. The Federation accordingly stated that the earlier final common seniority list had been modified and the present modified common seniority list was being communicated to all the employees who were affected by the modifications. Grievances, if any, as to the modified common seniority list were to be submitted along with documentary proof by 15.11.2003, and grievances received thereafter were not to be considered. This

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seniority list indicated the name of the petitioner at Sl.No.15, while the second respondent figured at Sl.No.16. At Sl.No.21 of this list was one K.V.Ranga Reddy, Deputy Manager (Agriculture). When K.V.Ranga Reddy submitted his grievance under letter dated 23.07.2007 to the seniority list dated 15.05.2007, the same was rejected by the Federation under letter dated 01.11.2007. This letter was signed by none other than Sri T.Radha, IAS, Vice-Chairman-cum-Managing Director of the Federation, who deposed to the counter-affidavit filed in this writ petition. Therein, he quoted from the judgment of this Court and the Supreme Court dated 15.03.2007, that fixation of seniority on the basis of the date of entry in the initial cadre would be a safe method which would ensure the principle of ‘last come first go’ and concluded that as per the findings of this Court and the Supreme Court, the contention of K.V.Ranga Reddy was to be rejected and the seniority communicated under the seniority list dated 27.10.2003 and 15.05.2007 stood confirmed. Surprisingly, Sri T.Radha stated in his counter before this Court that the seniority list dated 27.10.2003 was only tentative!

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A copy of the relieving order dated 14.10.2003 issued by the Federation to one D.Achyuta Rao, Deputy Manager, is placed on record. D.Achyuta Rao had also applied for the VRS under protest and subject to the outcome of his Court cases. The Federation accepted his VRS application on 02.06.2003. However, after dismissal of his case, along with the batch on 26.09.2003, the Federation issued proceedings dated 14.10.2003 relieving D.Achyuta Rao from service with effect from 14.10.2003. These proceedings also reflect that the VRS benefits payable to D.Achyuta Rao would be released in due course, after adjusting the amounts payable by him. Similar such relieving orders pertaining to other employees of the Federation are also placed on record.

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The relieving order dated 30.06.2003 issued to one K.Poli Reddy is placed on record to show that in the case of employees who did not

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choose to contest the issue, their VRS benefits were settled promptly. In the case of K.Poli Reddy, the Federation accepted his VRS application on 02.06.2003 and by the relieving order dated 30.06.2003, he was not only relieved from service with effect from that date, but was also paid his ex gratia, additional ex gratia and informed that his remaining terminal benefits would be settled in due course. The Federation’s reply dated 14.02.2007 to the petitioner’s query under the Right to Information Act makes for an interesting reading. It stated as under:

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“Sub: Representation dated 29-12-2006 of Sri Ch.Venkata Sivaiah, Ex. Area Officer under Section 4(1) of Right to Information Act – Status – Regarding. *** With reference to the cited, this is to inform that the fixation with regard to seniority and the final seniority list has not been notified, awaiting the decision of the Honourable Supreme Court of India in connected matters. The Federation, therefore, intends to implement judgment of the Honourable High Court of Andhra Pradesh in Writ Appeal No.2027 of 2003 & Batch cases after receiving the Judgment of the Hon’ble Supreme Court of India, especially as principles of determination of seniority were questioned by some of the employees of the Federation and judgment of the Honourable Supreme Court is awaited. The position of his query raised by Sri Ch.Venkata Sivaiah as to whether he is in surplus or non-surplus would therefore, be known when the seniority list is notified accordingly.

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The receipt of this letter may be acknowledged.”

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Sri T.S.Praveen Kumar, learned counsel, while reiterating the contentions urged in the counter affidavit, attacked the maintainability of this writ petition on the grounds of res judicata/constructive res judicata. This contention however merits rejection at the outset. The second respondent was not a party to the earlier writ petition filed by the petitioner and the issue raised by him was altogether different. His dispute was with regard to the continuation of one P.Gopi Krishna as a Computer Operator on the ground that he was junior to him. The dismissal of the said writ petition therefore has no impact whatsoever

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on the present lis. On the other hand, the observations of the learned Judge in the said common order, in so far as it pertained to the second respondent, is of utmost and crucial importance and cannot be brushed aside as is now sought to be done by the Federation.

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It is now stated that the second respondent left the service of the Federation in the year 2008. The departure of the second respondent was admittedly at his own initiative. Reference was made by Sri T.S.Praveen Kumar, learned counsel, once again to the norms adopted by the Federation under its letter dated 05.05.2003 with regard to reckoning of seniority. As per these norms, in the case of promotions, the seniority was to be fixed as per the date of joining in the immediate feeder channel only if the date of joining was the same. Wherever the date of joining was different on promotion, the seniority was to be fixed depending on the date of joining in the promoted cadre. These norms were not in accordance with the dictum of this Court in M.THIRUPATHI REDDY¹ and taking note of the same, the learned single Judge, in the common order dated 26.09.2003, rejected the formula adopted by the Federation for finalizing the seniority. The Supreme Court also confirmed the view taken by this Court and extracted the observations of the Division Bench with approval. It is therefore too late in the day for the Federation to now justify its action in continuing the second respondent in service till 2008 on the basis of these norms which were frowned upon, time and again, by the Courts. Reference was also made by the learned Standing Counsel to the other Division Bench judgment of this Court in Writ Appeal No.2027 of 2003 and batch. These Writ Appeals also arose out of the same common order dated 26.09.2003 rendered by the learned single Judge in the batch of cases. However, the earlier Division Bench judgment of this Court in the other appeals arising from this very same batch, were not brought to the notice of the later Division Bench. Perusal of the judgment reflects that the Bench mainly considered the issue of effecting further retirements under the Voluntary Retirement Scheme

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floated by the Federation, along with the seniority list dated 15.05.2007, and the Writ Appeals were disposed of in the light of its suggestions being accepted by the Government. No principle of law, applicable generally, was laid down by the Division Bench. As pointed out by the Federation itself in its counter, this judgment has no application to the case of the petitioner. It is therefore inexplicable as to why the learned Standing Counsel sought to place reliance upon this judgment.

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In so far the issue of the petitioner sending his own selfattested attendance record is concerned, Sri G.Mohan Rao, learned counsel, pointed out that the material placed on record reflected that this practice was in vogue even prior to June, 2003. The attendance particulars of the petitioner in the self-attested format from October, 2001 onwards are placed on record in proof of this averment that the practice followed by the Federation was to allow such self-attested attendance records being transmitted to the Head Office. Learned counsel therefore pointed out that the said practice was not adopted after the rendition of the judgment in the batch of cases on 26.09.2003 and that it was not open to the Federation to disown the same at this late stage.

¶73

Sri T.S.Praveen Kumar, learned counsel, has no answer as to why no relieving order was issued to the petitioner if his VRS application was really accepted and acted upon. In the light of the interim order dated 26.06.2003 in the batch of cases that the petitioners therein should not be relieved till 20.07.2003, there could have been no ‘deemed relieving of the petitioner from service’ on 30.06.2003, as he was one of the petitioners in the batch. There is also no explanation forthcoming as to why the petitioner’s VRS benefits were not paid, if his VRS application was accepted as long back as in June, 2003 and he was deemed to have been relieved from service on 30.06.2003. Upon a pointed query from this Court, the learned Standing Counsel also admitted that the second respondent had never

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raised any objection with regard to his being shown as junior to the petitioner in the seniority lists dated 12.12.2002 and 27.10.2003.

¶75

As per the notification dated 07.05.2003, the VRS was to be effected on the basis of seniority alone. Though the lists of surplus/non-surplus employees circulated along with the said notification showed the name of the petitioner erroneously in the surplus category while retaining the second respondent in the nonsurplus category, the same was modified upon the common order of this Court dated 26.09.2003 in the batch of cases and the anomaly was set right in so far as the petitioner and the second respondent were concerned, through the modified seniority list dated 27.10.2003. The petitioner therefore had no cause to complain after the issuance of the said seniority list, as he would have been under the impression that he would be retained in service as the second respondent had been categorically held to be a surplus employee by this Court in its order dated 26.09.2003. As the second respondent failed to file an appeal or raise an objection against the said seniority list within the time stipulated, the same attained finality. Further, the petitioner was never relieved from service pursuant to the so-called acceptance of his VRS application and no VRS benefits were paid to him. Reference may be made to the various relieving orders issued in respect of other employees who had filed cases in the context of the VRS. Separate and individual relieving orders were issued even to such persons and the Federation therefore cannot contend that the petitioner alone was deemed to have been relieved even though no such relieving order was passed in his case. Reference in this regard may be made to the relieving orders issued in October, 2003 to S.Sekhar Goud, Mohd.Anwar Ali, U.Sudhakar Rao, D.Achyuta Rao, M.Seshagiri Rao and K.V.Nageshwara Rao. All these persons had filed writ petitions before this Court challenging the VRS and were covered by the same interim order that applied to the petitioner.

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Significantly, S.Sekhar Goud, Mohd.Anwar Ali, U.Sudhakar Rao,

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D.Achyuta Rao, M.Seshagiri Rao and K.V.Nageshwara Rao were the six respondents before the Supreme Court who were granted relief. Thereupon, they were not only reinstated in service but were also granted full monetary benefits for the period that they were kept out of service. On principle, there is nothing to distinguish the petitioner from these persons. In fact, he stood on a better footing as he was straightaway entitled to be continued in service in the light of this Court declaring that the second respondent was a surplus employee, which translated into the petitioner being shown as senior to the second respondent in the modified seniority list dated 27.10.2003. He therefore had no reason to file an appeal or complain at that stage. Further, he was not even issued a relieving order by the Federation, as was done in the case of the others, which would have put him on notice of its intentions. The material filed demonstrates that the petitioner had been sending his attendance record for each month since June, 2003 onwards, if not earlier, though the same is disputed by the Federation. This Court is not inclined to enter into this disputed question of fact and in any event, the same is of no real significance. However, it is noteworthy that the Federation chose to adopt a studied silence and never responded to the petitioner’s communications in this regard. Had it been its case that the petitioner stood relieved from service, the Federation would have immediately informed him of the same and asked him to desist from submitting his so-called attendance records. Further, the communication dated 14.02.2007 addressed by the Federation clearly reflects that even by that date, the Federation did not inform the petitioner of his alleged cessation from service. It was only on 26.08.2010 that the Federation, for the very first time, asked the petitioner not to send his attendance record.

¶78

It is significant to note that one K.Ramesh Kumar Reddy, who was the third petitioner in W.P.No.13985 of 2003 in the batch of cases decided by the learned single Judge on 26.09.2003, who had lost in the earlier round of litigation in W.A.No.1787 of 2003 and batch before

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the Division bench, which was confirmed in appeal by the Supreme Court in Civil Appeal No.1391 of 2007 and batch, was also relieved from service in 2007, but was directed to be reinstated in service by judgment dated 03.11.2010 passed by a learned Judge of this Court in W.P.No.9906 of 2007 and batch. The Federation implemented this judgment without further appeal!

¶80

The VRS application dated 28.01.2008 of the second respondent was accepted by the Federation under letter dated 23.07.2008 and he was relieved from the service of the Federation with effect from 18.07.2008. However, given the ineluctable fact that he was declared a surplus employee by this Court in the judgment dated 26.09.2003 itself, the Federation had no right to continue him in service after the said finding attained finality. Despite the same, the Federation merrily continued to retain him and denied relief to the petitioner, who automatically stood to gain from the adverse finding delivered by this Court against the second respondent. The varying stands of the Federation as to the status of the petitioner as demonstrated by its correspondence, its pleadings and as to the seniority list dated 27.10.2003 leaves a lot to be desired. Such impetuousness and caprice are not expected of a State instrumentality manned by a responsible IAS officer. The present stance of the Federation that the petitioner was deemed to have been relieved from service, merits rejection outright for the reasons already set out supra.

¶81

Viewed thus, this Court finds that the petitioner was entitled to be retained in service in preference to the second respondent; he was never relieved from service under the VRS and there was no cessation of the employer-employee relationship between the Federation and him as he was not even paid his VRS and terminal benefits. However, the fact remains that the petitioner remained quiet and dormant despite the Federation denying him salary since July, 2003. The Federation seems to have kept him hanging, ostensibly on the ground that the pending litigation was yet to conclude. But the petitioner, had he been

¶82

chary and vigilant, could have sought justice even at that stage by invoking suitable legal remedies. Given his inaction in this regard, this Court is not inclined to grant him full monetary benefits on par with the respondents before the Supreme Court. In the totality of the circumstances, this Court is of the opinion that the ends of justice would be adequately served by granting the petitioner 50% of the monetary benefits.

¶83

The letter dated 02.06.2003 issued by the Federation purporting to accept the petitioner’s VRS application is accordingly set aside. The Federation shall reinstate the petitioner in service with continuity of service and all consequential benefits. He would however be entitled to only 50% of the arrears of the monetary benefits due to him from July, 2003 till the date of his reinstatement.

¶84

The writ petition is accordingly allowed to the extent indicated above. The facts of the case demonstrate that the Federation deliberately favoured the second respondent and denied justice to the petitioner despite the clear and unambiguous directions of this Court. This is therefore a fit case to impose costs upon the Federation for its wanton and reckless disregard of Court orders. The Federation shall consequently pay costs of Rs.50,000/- to the petitioner.

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-------------------------SANJAY KUMAR,J

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12^TH FEBRUARY, 2013. PGS

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Note: Furnish CC in one week. B/O BSS/PGS

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[1] 2000 (3) ALT 460

Sri Chintha Venkata Sivayya, v. The a.P.Co.operative Oil Seeds Growers Federation Ltd.

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Sri Chintha Venkata Sivayya, v. The a.P.Co.operative Oil Seeds Growers Federation Ltd.

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