THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NOs. 8851 OF 2008 and batch
19-01-2015
N. Satyanarayana Murthy, S/o N. Sri Ram Murthy Occ: Deputy Manager (Marketing)
A.P. Oil Federation, Eluru Petitioner
The A.P. Cooperative Oil Seeds Growers Federation Ltd, Rep by its Vice
Chairman and Managing Director Parisram Bhavan, Basheerbagh, Hyderabad and 2
others.. Respondents
Counsel for the petitioners : Sri V. Padmanabha Rao
Counsel for the respondents : 1. Sri M. Papa Reddy
2. G.P. for Cooperation
3. Sri V. Raja Manohar
4. Mrs. Marie Desai
<GIST:
>HEAD NOTE:
?Cases referred
1. AIR 1988 SC 959
2. 2010 (3) SCC pg 119
3. AIR 1974 SC 532
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NOs. 8851, 11944, 16535 OF 2008
AND
6453 OF 2011
COMMON ORDER:
W.P.No.8851 of 2008 was instituted by one
Sri N. Satyanarayana Murthy who was then working as Deputy
Manager (Marketing) with the first respondent-Andhra Pradesh
Cooperative Oil Seeds Growers Federation Limited, challenging the
appointment of respondents 2 & 3 as Managers through
proceedings dated 26.12.2007 without considering his case. The
same individual has instituted W.P.No.11944 of 2008 challenging
the appointment of the third respondent therein as Manager
through proceedings dated 07.05.2008. W.P.No.16535 of 2008
was instituted by one Sri K.V. Ranga Reddy challenging the
appointment of the fourth respondent as Manager through
proceedings dated 26.12.2007 as bad. The fourth writ petition
W.P.No.6453 of 2011 has been filed by the Employees Association
of the Andhra Pradesh Cooperative Oil Seeds Growers Federation,
the second respondent therein (henceforth referred to, for short as
Corporation), challenging the appointment of respondents 4, 5, 6
and 7as Managers. All these four cases substantially deal with the
same question of law and hence, they are heard together and
disposed of by this common order.
Heard Sri C.V. Mohan Reddy, learned Senior Counsel on
behalf of Sri V. Padmanabha Rao, learned Counsel for the
petitioners and Sri P. Sri Raghu Ram, learned Senior Counsel on
behalf of Ms. Mary Desai, learned counsel for the contesting
unofficial respondents and Sri T. S. Praveen Kumar, learned
counsel on behalf of the Corporation.
The Corporation is a public sector undertaking which was
established in the year 1981 in collaboration with National Diary
Development Board to increase the oil seeds production. Initially,
the federation used to work at the state level and the cooperative
oil seeds unions used to function at divisional level and
subsequently the primary agricultural societies at each village level
have been added up. Due to the financial crisis, the unions
established at Gadwal in Mahabubnagar District and Piler in
Chittoor District, have been closed down. Thereafterwards, the
cadre strength has been approved by the Registrar of Cooperative
Societies in terms and in accordance with Section 116 (C) of the
Andhra Pradesh Cooperative Societies Act, 1964. In pursuance of
earlier round of litigation, common seniority list of all categories of
employees has been published on 15.05.2007. It is the claim of
the petitioners that there are seven different categories of
Manager/Divisional Officer which are approved in the cadre of the
Corporation. They are:
1. Manager (Personal & Administration or HRD)
2. Manager (Finance)
3. Manager (Marketing)
4. Manager (Plants & Projects)
5. Manager (Procurement & Inputs)
6. Manager (Oil Palm Development) and
7. Manager (Divisional Officer at Field Level)
It is contended that the job requirement of each of these
posts being vastly different from one another, though they may
carry identical scale of pay, but each is a separate and isolated
post by itself in the cadre concerned. All the posts cannot be added
together for purposes of applying the principles of reservation
amongst various social sectors such as Scheduled Castes,
Scheduled Tribes, etcetera. Sri C.V. Mohan Reddy, learned Senior
Counsel would submit that, when these posts are isolated posts,
they form into a single post cadre and consequently, the question
of applicability of principles of reservation would not arise. Any
attempt to apply the principles of social reservation amongst
various social sectors would amount to reserving 100%, which is
impermissible. The learned Senior Counsel would therefore submit
that the notification issued by the Corporation on 01.11.2007
inviting applications exclusively from members belonging to
Scheduled Castes and Scheduled Tribes treating the vacancies that
have arisen in these isolated cadres as backlog vacancies to be
filled in by candidates belonging to Scheduled Castes or Scheduled
Tribes, as the case may be, is completely illegal. He, therefore,
challenges the very process of recruitment initiated by the
notification dated 01.11.2007 inviting applications which fructified
ultimately in recruiting the respective unofficial respondents in the
writ petitions.
On behalf of the Corporation, Sri Praveen Kumar would
contend that the Corporation has framed its own services
regulations which were brought into force from 01.06.1983. As per
Regulation 9 where the appointments are made by direct
recruitment, the Corporation has a right to reserve certain posts
for specified categories or classes of persons in keeping with the
rules or regulations in force. Therefore, Sri Praveen Kumar would
contend that the Corporation and the employees are bound by this
principle and hence, there is no tenability behind the challenge to
the notification issued by the Corporation on 01.10.2007 inviting
applications exclusively from members belonging to SCs/STs Sri
Praveen Kumar would further contend that, when once educational
qualifications and age criteria is notified, if internal employees of
the Corporation satisfy the said norms, they can also respond to
the notification and file their applications. Since the maximum
upper age limit is fixed as 43 years, the petitioners have crossed
the same, therefore lacked the eligibility to respond to the
notification and hence, the petitioners cannot validly challenge the
notification issued by the Corporation making resort to direct
recruitment.
Sri P. Sri Raghu Ram, learned Senior Counsel would submit
that the petitioners have proceeded on the basis of the provisional
cadre strength in contending that the posts in question are isolated
posts, whereas, the finally approved cadre strength is what is
required to be taken into consideration. According to the learned
Senior Counsel, the cadre strength of Managers has been raised
from 7 to 16 and hence, the principle of reservation in favour of
various social sectors is attracted for filling up the posts of
Managers. Learned Senior Counsel would further contend that the
posts of Manager/Divisional Officer are included in managerial
cadre II services of the Corporation in terms of Regulation 18 of the
service regulations of the Corporation. They carry the same scale of
pay and hence, they occupy the same status in the service
hierarchy of the Corporation and discharge functions and
responsibilities of a comparable nature. In view of their inclusion
in a common cadre, the fact that there were same dissimilarities in
the nature of functions performed by them should not result in
treating all of them as distinct and separate posts. Learned Senior
Counsel would further contend that, as per Regulation 9 of the
service regulations of the Corporation, the reservation amongst
various social sectors is the choice of the Corporation and the said
choice is a reasonable one intended to carry forward the
constitutional mandate of social justice. In this view of the matter,
there is no justification for challenging the notification issued by
the Corporation for taking recourse to direct recruitment. The
learned Senior Counsel would further contend that, when once
Corporation has treated them as common cadre posts and the
Corporation has not treated them as single cadre posts, the
Corporation is justified in taking out the notification for direct
recruitment. Taking recourse to the method of direct recruitment
instead of promotion is again a choice of the Corporation, which
method of recruitment is ideally suited for the efficient functioning
of the Corporation is a matter of value based choice of the
Corporation and any such decision of the Corporation cannot be
ignored. So long as the choice of recruitment is in accordance with
Regulation 11 of the service regulations of the Corporation, the
petitioners cannot challenge the same excepting on grounds of
violation of any of their rights or any fundamental rights
guaranteed to them. The learned Senior Counsel would expand
this idea by submitting that Regulation 11 left a choice in the
hands of the Corporation to fill up the vacancies through any of
the methods specified therein which included inviting applications
through advertisement and then selection of the candidates, which
is the method known popularly as direct recruitment method.
Similarly, the Corporation could have also availed the other
method of selection from among the Corporation employees which
is by the method of promotion. Since, no fundamental rights or no
legal rights are available in favour of the petitioners, the learned
Senior Counsel would contend that the petitioners cannot
maintain the writ petitions. Finally, the learned Senior Counsel
would submit that the petitioners have also earned subsequent
promotions as Managers and hence, the issue raised by them has
reduced to a pure and simple academic issue and such academic
issues are not required to be answered by the Courts. Hence, the
learned Senior Counsel would suggest to dismiss the writ petitions.
The notification issued by the Corporation on 01.11.2007
inviting applications for certain posts notified therein is placed at
page no.18 of the writ petition paper book in W.P.No.6453 of 2011.
It has clearly set out that the vacancies which were existing as on
31.08.2007 in the service of the Corporation which are treated as
backlog vacancies to be filled in with candidates belonging to
Scheduled Castes and Scheduled Tribes. The upper age limit for
the candidates is prescribed as 43 years and the qualifications
required to be possessed by them against each post is specified.
The post of Manager, which is reserved for women candidate of
scheduled castes, required the candidate to possess the following
qualifications namely, B.Sc (Agriculture) with experience in
procurement of edible oil seeds and distribution activities and
experience in oil palm development. The next post of Manager
notified for Scheduled Caste (General Category) (i.e. both men and
women amongst scheduled castes can respond) required the
candidates to possess qualification of any degree. However, those
who are possessing M.B.A. degree would be given preference. Thus,
in between the two posts of Managers which have been notified, it
becomes clear that they do belong to two different disciplines.
Consequently, they are intended to discharge two distinct and
dissimilar functions, while one is required to take care of consumer
marketing activities, the other is required to perform procurement
activities. While the procurement of the oil seeds deals with pre-
crushing basic input activity of the Corporation, whereas, the
marketing activity of the finished product comes after the
production activity is completed at the plant. The functions which
are required to be performed by these two Managers are vastly
different and they stand at the either end of the rainbow. There is
no meeting ground in between these two stages. Similarly, the
qualifications required also speak of their divergent professional
inputs. Once is required to possess the professional qualification of
B.Sc Agriculture, while the other could be filled in with any
Graduate, not necessarily a Science Graduate such as B.A. or
B.Com., and by giving preference to candidates who have
possessed M.B.A Degree discipline with marketing as the subject
matter of specialized study. Therefore, the contention canvassed by
Sri P. Sri Raghu Ram that all the posts are common cadre posts
which have been included in the same cadre namely Managerial
Grade-II under Regulation 18 of the Employees Regulations does
not hold water. I have no hesitation to come to the conclusion that
the posts of Managers and Divisional Officers including in the
common cadre are each one of them distinct and separate one and
consequently, a person recruited as a Manager to discharge one set
of functions cannot be transferred and posted against the other.
Hence, these posts of Managers belong to distinct and separate
disciplines. They are isolated posts and there is common nature of
duties performed by them.
For instance, the Manager who has been recruited for
purpose of Oil Palm Development cannot be posted as Manager of
Consumer Marketing or as Manager (Personnel and
Administration). The converse is also true. A person recruited as
Manager (Personnel and Administration) cannot similarly be posted
as Manager (Plants and Products) or procurement and inputs or
consumer marketing. Each is a distinct and separate post in the
same cadre. Where there is only one post in a cadre, the question
of applying principles of reservation in favour of various social
sectors would not normally arise. If there is only one post and if
that one post is reserved exclusively in favour of any of one
particular social sector, no other post in that cadre would be
available to be filled in by candidates belonging to the other social
segment. In other words, a single post in a cadre if it is filled up
applying the principles of reservation amongst various social
sectors, it would amount to reserving 100%. Providing 100%
reservation is wholly impermissible and it directly conflicts with
the guarantees held out under Article 14 and 16 of our
Constitution.
The Supreme Court in Chakradhar Paswan v. State of
Bihar and others case had occasion to consider the applicability
of the principles of reservation in favour of various social sectors
and the principle has been spelt out as herein below:
The main contention of Dr. Y.S. Chitale, learned
counsel for the appellant, is that there are four posts in the
Directorate of Indigenous Medicines and all the posts are
Class I posts and therefore according to the 50 point roster,
the post of Director having been treated as unreserved by
the rotational system, the post of Deputy Director
(Homeopathic) was rightly reserved for a scheduled caste
candidate. According to him, the High Court fell into an
error in assuming that the reservation of the post of Deputy
Director (Homeopathic) for a scheduled caste candidate
under Art. 16(4) amounted to 100% reservation and
suffered from the vice of offending against the equality
clause under Art. 16(1) read with Art. 14 of the
Constitution. In answer to the argument Shri L.N. Sinha,
learned counsel appearing for respondent No. 4. submits
that firstly, the posts of Director and Deputy Directors are
not carried in the same cadre and therefore they could not
be grouped for purposes of implementing the policy of
reservation under Art. 16(4). and secondly, the three
systems of indigenous medicines, namely, Homeopathic,
Ayurvedic and Unani are distinct and separate systems of
medicine and thus the 50 point roster could not be applied.
The questions that fall for our determination are : (1) Is
the post of Deputy Director (Homeopathic) an 'isolated post'
and therefore reservation of the post for a scheduled caste
candidate amounts to 100% reservation and must therefore
be declared to be impermissible under Art. 16(4)? (2)
Whether the posts of the Director and the three Deputy
Directors could be grouped together for purposes of
implementing the policy of reservation, according to the 50
point roster. And (3) Could the posts of the Director and the
three Deputy Directors in the Directorate of Indigenous
Medicines although they are posts carried on different
grades, still be clubbed together for purposes of reservation
merely because they are Class I posts?
.Admittedly, the post of the Director is
the highest post in the Directorate of Indigenous Medicines
and is carried in the higher pay scale or grade of Rs. 2225-
75-2675 while the posts of the Deputy Directors are carried
in the pay scale or grade of Rs. 1900-75-2500. In service
jurisprudence, the term 'cadre' has a definite legal
connotation. In the legal sense, the word 'cadre' is not
synonymous with service'. Fundamental R. 9(4) defines the
word 'cadre' to mean the strength of a service or part of a
service sanctioned as a separate unit. THE post of the
Director which is the highest post in the Directorate, is
carried on a higher grade or scale, while the posts of
Deputy Directors are borne in a lower grade or scale and
therefore constitute two distinct cadres or grades. It is open
to the Government to constitute as many cadres in any
particular service as it may choose according to the
administrative convenience and expediency and it cannot
be said that the establishment of the Directorate
constituted the formation of a joint cadre of the Director
and the Deputy Directors because the posts are not
interchangeable and the incumbents do not perform the
same duties, carry the same responsibilities or draw the
same pay. The conclusion is irresistible that the posts of
the Director and those of the Deputy Directors constitute
different cadres of the Service. It is manifest that the post of
the Director of Indigenous Medicines, which is the highest
post in the Directorate carried on a higher grade or scale,
could not possibly be equated with those of the Deputy
Directors on a lower grade or scale. In view of this,
according to the 50 point roster, if in a particular cadre a
single post falls vacant, it should, in the case of first
vacancy, be considered as general. That being so, the State
Government could not have directed reservation of the post
of Deputy Director (Homeopathic) which was the first
vacancy in a particular cadre i.e. that of the Deputy
Directors, for candidates belonging to the scheduled castes.
Such reservation was not in conformity with the principles
laid down in the 50 point roster and was impermissible
under Art. 16(4) of the Constitution and clearly violative of
the, guarantee enshrined in Art. 16(1) of equal opportunity
to all citizens relating to public employment. Clause (4) of
Art. 16 is by way of an exception to the proviso to Art.
16(1). THE High Court rightly held that the reservation of
the post of Deputy Director (Homeopathic) amounted to
100% reservation which was impermissible under Art. 16(4)
as otherwise it would render the guarantee of equal
opportunity in the matter of public employment under Art.
16(l) wholly elusive and meaningless.
Another serious infirmity in the argument of the
learned counsel for the appellant is that it overlooks, the
basic principle that if there is only one post in the cadre,
there can be no reservation under Art. 16(4) of the
Constitution. The whole concept of reservation for
application of the 50 point roster is that there are more
than one post, and the reservation as laid down by this
Court in M.R. Balaji's case ( AIR 1963 SC 649) can be up to
50%. The Government cannot, for instance, declare that the
post of the Director of Indigenous Medicines shall be
reserved for candidates belonging to scheduled castes. The
Directorate is a paramedical service with Director as its
head and the there Deputy Directors belonging to three
distinct and separate disciplines viz. Homeopathic, Unani
and Ayurvedic under him. In the para-medical system the
three posts of Deputy Directors pertain to three distinct
systems and therefore each of them is an isolated post by
itself. The same principle should, we think, as in the case of
the Director, apply.
Similarly, the same question has fallen for consideration
before the Supreme Court once again in Jitendra Kumar Singh
and Anr. Vs. Respondent: State of U.P. and Ors. , wherein, the
principle has been enunciated as under clearly:
From the above it becomes evident that the very
premise on the basis of which Madhav case (1997 AIR SCW
3113) was decided has been held to be erroneous.
Thereafter it is further observed in paragraph 30 that "it
also appears that the decision in Indra Sawhney case (1992
AIR SCW 3682) has also not been properly appreciated in
Madhav decision." The conclusion of the judgement is given
in paragraph 37 which is as under (Para 38 of 1998 AIR
SCW 1553):-
"37. We, therefore, approve the view taken in Chakradhar
Case (AIR 1988 SC 959) that there cannot be any
reservation in a single post cadre and we do not approve
the reasonings in Madhav Case (1997 AIR SCW 3113), Brij
Lal Thakur case (1997 AIR SCW 1937) and Bageshwari
Prasad case upholding reservation in a single post cadre
either directly or by device of rotation of roster point.
Accordingly, the impugned decision in the case of Post
Graduate Institute of Medical Education and Research,
Chandigarh is, therefore, allowed and the judgment dated
2.5.1997 passed in Civil Appeal No.3175 of 1997 is set
aside."
In view of the clear principle spelt out by the Supreme Court,
any attempt to apply the principles of reservation to single and
isolated posts of Managers would be wholly impermissible.
However, Sri P. Sri Raghu Ram, learned Senior Counsel had
adverted to the aspect that there are more number of posts of
Managers in each cadre. The learned Senior Counsel has also
criticized that the action of the Corporation which has not
specifically adverted to and brought out the final cadre strength
approved by the Registrar of Co-operative Societies, in its
pleadings for the Managers categories. It could be due to the
failure to grasp the significance and distinction between single
cadre and multi member cadre posts in the matter of applicability
of principles of social sector reservations. In the absence of any
such plea or material produced by the Corporation, it would be
hazardous on the part of this Court to record a finding of fact
firmly that there is more than one post available in each cadre
such as Manager (Personal & Administration or HRD), Manager
(Finance), Manager (Marketing), Manager (Plants & Projects),
Manager (Procurement & Inputs), Manager (Oil Palm Development)
and Manager (Divisional Officer at Field Level). However, on the
last occasion, the Corporation seemed to have addressed a
communication to its standing counsel, a copy of which Sri
Praveen Kumar has circulated for my consideration. It emerges
from the contents thereof that the petitioners have been
subsequently promoted as Managers. This event of promotion of
the petitioners would only leave a hint that there are more number
of posts than one available in the cadre of Managers in the service
of the Corporation. Otherwise, the petitioners could not have been
promoted while the unofficial respondents are still holding the
same posts of Managers. Such a promotion could only become
possible if only there is one more post of Manager available.
Otherwise, two people could not have been appointed and
promoted against one single post. It is for the Corporation to sort it
out, this factual controversy. However, it is worthy to note that
where there are two or more number of posts available in a cadre
the principle evolved in Chakradhar Paswans case (referred supra)
will not get attracted. Dealing with this very aspect- where there
are two posts of Principals available - the Supreme Court in Arati
Ray Choudhury v. Union of India case held as under:
The model roster accompanying the letter of the
Railway Board dated 16/01/1964 is designed to meet the
requirements of the new situation arising out the rules
framed in deference to the judgment in Devadasan's case,
(1964) 4 SCR 680 = ( AIR 1964 SC 179). Both the letter and
the Note appended to the roster state expressly that if
"there are only two vacancies to be filled on a particular
occasion, not more than one may be treated as reserved
and if there by only one vacancy, it should be treated as
unreserved". THE words "on a particular occasion" were
substituted on 2/09/1964 by the words "year of
recruitment". Thus, in the first place each year of
recruitment is directed to be considered separately and by
itself as laid down in Devadasan's case, (1964) 4 SCR 680,
694-695 = ( AIR 1964 SC 1790) so that if there are only two
vacancies to be filled in a particular year of recruitment,
not more than one vacancy can be treated as reserved.
Secondly, and that is directly relevant for our purpose, if
there be only one vacancy to be filled in a given year of
recruitment, it has to be treated as unreserved irrespective
of whether it occurs in the model roster at a reserved point.
THE appointment then is not open to the charge that the
reservation exceeds 50 Per Cent for, if the very first vacancy
in the first year of recruitment is in practice treated as a
reserved vacancy, the system may be open to the objection
that the reservation not only exceeds 50 Per Cent but is in
fact cent per cent. But, if "on this account" that is to say, if
on account of the requirement that the first vacancy must
in practice be treated as unreserved even if it occurs in the
model roster at a reserved point, "a reserved point is treated
as unreserved" the reservation can be carried forward to
not more than two subsequent years of recruitment. Thus,
if two vacancies occur, say, within an initial span of three
years, the first vacancy has to be treated as an unreserved
vacancy and the second as reserved.
The corporation is a public sector undertaking. When it
undertakes direct recruitment, it should be very cautious and
careful. If, for any reason, the process of direct recruitment is
faulted or vitiated, the candidate who was selected by it and who
joined the service will get caught in the cross-fire. A direct recruit
candidate cannot be reverted back to any other lower post. He is
normally picked up, while competing with the other candidates,
from the open market. Therefore, for any reason, the process of
direct recruitment is found fault with, then, he will have to be sent
out of the service of the Corporation altogther, but cannot be
reverted. Same would be the prospect even in case of an internal
candidate. An internal candidate offered his candidature only
because he satisfied the recruitment criteria in all respects
including the upper age limit. He is required to compete with the
candidates drawn from the open market. For all practical
purposes, he is standing at par with the candidate drawn from the
open market. If, for any reason, when the direct recruitment
process fails, he will have to be terminated from the employment of
the Corporation like any other candidate drawn from the open
market. Therefore, keeping this grave consequence in mind, the
Corporation would regulate its affairs properly and carefully from
now on.
Accordingly, a declaration is issued that the principle of
reservation in favour of various social sectors segments in so far as
single cadre posts is impermissible and it will be violative of the
concept of equality enshrined under Articles 14 & 16 of our
Constitution. The Corporation would accordingly regulate the
entire exercise.
The writ petitions stand disposed of with this order.
Miscellaneous applications pending shall stand closed. No costs.
_______________________________________
JUSTICE NOOTY RAMAMOHANA RAO
Date:19-01-2015
WRIT PETITION NOs. 8851 OF 2008 and batch
19-01-2015
N. Satyanarayana Murthy, S/o N. Sri Ram Murthy Occ: Deputy Manager (Marketing)
A.P. Oil Federation, Eluru Petitioner
The A.P. Cooperative Oil Seeds Growers Federation Ltd, Rep by its Vice
Chairman and Managing Director Parisram Bhavan, Basheerbagh, Hyderabad and 2
others.. Respondents
Counsel for the petitioners : Sri V. Padmanabha Rao
Counsel for the respondents : 1. Sri M. Papa Reddy
2. G.P. for Cooperation
3. Sri V. Raja Manohar
4. Mrs. Marie Desai
<GIST:
>HEAD NOTE:
?Cases referred
1. AIR 1988 SC 959
2. 2010 (3) SCC pg 119
3. AIR 1974 SC 532
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NOs. 8851, 11944, 16535 OF 2008
AND
6453 OF 2011
COMMON ORDER:
W.P.No.8851 of 2008 was instituted by one
Sri N. Satyanarayana Murthy who was then working as Deputy
Manager (Marketing) with the first respondent-Andhra Pradesh
Cooperative Oil Seeds Growers Federation Limited, challenging the
appointment of respondents 2 & 3 as Managers through
proceedings dated 26.12.2007 without considering his case. The
same individual has instituted W.P.No.11944 of 2008 challenging
the appointment of the third respondent therein as Manager
through proceedings dated 07.05.2008. W.P.No.16535 of 2008
was instituted by one Sri K.V. Ranga Reddy challenging the
appointment of the fourth respondent as Manager through
proceedings dated 26.12.2007 as bad. The fourth writ petition
W.P.No.6453 of 2011 has been filed by the Employees Association
of the Andhra Pradesh Cooperative Oil Seeds Growers Federation,
the second respondent therein (henceforth referred to, for short as
Corporation), challenging the appointment of respondents 4, 5, 6
and 7as Managers. All these four cases substantially deal with the
same question of law and hence, they are heard together and
disposed of by this common order.
Heard Sri C.V. Mohan Reddy, learned Senior Counsel on
behalf of Sri V. Padmanabha Rao, learned Counsel for the
petitioners and Sri P. Sri Raghu Ram, learned Senior Counsel on
behalf of Ms. Mary Desai, learned counsel for the contesting
unofficial respondents and Sri T. S. Praveen Kumar, learned
counsel on behalf of the Corporation.
The Corporation is a public sector undertaking which was
established in the year 1981 in collaboration with National Diary
Development Board to increase the oil seeds production. Initially,
the federation used to work at the state level and the cooperative
oil seeds unions used to function at divisional level and
subsequently the primary agricultural societies at each village level
have been added up. Due to the financial crisis, the unions
established at Gadwal in Mahabubnagar District and Piler in
Chittoor District, have been closed down. Thereafterwards, the
cadre strength has been approved by the Registrar of Cooperative
Societies in terms and in accordance with Section 116 (C) of the
Andhra Pradesh Cooperative Societies Act, 1964. In pursuance of
earlier round of litigation, common seniority list of all categories of
employees has been published on 15.05.2007. It is the claim of
the petitioners that there are seven different categories of
Manager/Divisional Officer which are approved in the cadre of the
Corporation. They are:
1. Manager (Personal & Administration or HRD)
2. Manager (Finance)
3. Manager (Marketing)
4. Manager (Plants & Projects)
5. Manager (Procurement & Inputs)
6. Manager (Oil Palm Development) and
7. Manager (Divisional Officer at Field Level)
It is contended that the job requirement of each of these
posts being vastly different from one another, though they may
carry identical scale of pay, but each is a separate and isolated
post by itself in the cadre concerned. All the posts cannot be added
together for purposes of applying the principles of reservation
amongst various social sectors such as Scheduled Castes,
Scheduled Tribes, etcetera. Sri C.V. Mohan Reddy, learned Senior
Counsel would submit that, when these posts are isolated posts,
they form into a single post cadre and consequently, the question
of applicability of principles of reservation would not arise. Any
attempt to apply the principles of social reservation amongst
various social sectors would amount to reserving 100%, which is
impermissible. The learned Senior Counsel would therefore submit
that the notification issued by the Corporation on 01.11.2007
inviting applications exclusively from members belonging to
Scheduled Castes and Scheduled Tribes treating the vacancies that
have arisen in these isolated cadres as backlog vacancies to be
filled in by candidates belonging to Scheduled Castes or Scheduled
Tribes, as the case may be, is completely illegal. He, therefore,
challenges the very process of recruitment initiated by the
notification dated 01.11.2007 inviting applications which fructified
ultimately in recruiting the respective unofficial respondents in the
writ petitions.
On behalf of the Corporation, Sri Praveen Kumar would
contend that the Corporation has framed its own services
regulations which were brought into force from 01.06.1983. As per
Regulation 9 where the appointments are made by direct
recruitment, the Corporation has a right to reserve certain posts
for specified categories or classes of persons in keeping with the
rules or regulations in force. Therefore, Sri Praveen Kumar would
contend that the Corporation and the employees are bound by this
principle and hence, there is no tenability behind the challenge to
the notification issued by the Corporation on 01.10.2007 inviting
applications exclusively from members belonging to SCs/STs Sri
Praveen Kumar would further contend that, when once educational
qualifications and age criteria is notified, if internal employees of
the Corporation satisfy the said norms, they can also respond to
the notification and file their applications. Since the maximum
upper age limit is fixed as 43 years, the petitioners have crossed
the same, therefore lacked the eligibility to respond to the
notification and hence, the petitioners cannot validly challenge the
notification issued by the Corporation making resort to direct
recruitment.
Sri P. Sri Raghu Ram, learned Senior Counsel would submit
that the petitioners have proceeded on the basis of the provisional
cadre strength in contending that the posts in question are isolated
posts, whereas, the finally approved cadre strength is what is
required to be taken into consideration. According to the learned
Senior Counsel, the cadre strength of Managers has been raised
from 7 to 16 and hence, the principle of reservation in favour of
various social sectors is attracted for filling up the posts of
Managers. Learned Senior Counsel would further contend that the
posts of Manager/Divisional Officer are included in managerial
cadre II services of the Corporation in terms of Regulation 18 of the
service regulations of the Corporation. They carry the same scale of
pay and hence, they occupy the same status in the service
hierarchy of the Corporation and discharge functions and
responsibilities of a comparable nature. In view of their inclusion
in a common cadre, the fact that there were same dissimilarities in
the nature of functions performed by them should not result in
treating all of them as distinct and separate posts. Learned Senior
Counsel would further contend that, as per Regulation 9 of the
service regulations of the Corporation, the reservation amongst
various social sectors is the choice of the Corporation and the said
choice is a reasonable one intended to carry forward the
constitutional mandate of social justice. In this view of the matter,
there is no justification for challenging the notification issued by
the Corporation for taking recourse to direct recruitment. The
learned Senior Counsel would further contend that, when once
Corporation has treated them as common cadre posts and the
Corporation has not treated them as single cadre posts, the
Corporation is justified in taking out the notification for direct
recruitment. Taking recourse to the method of direct recruitment
instead of promotion is again a choice of the Corporation, which
method of recruitment is ideally suited for the efficient functioning
of the Corporation is a matter of value based choice of the
Corporation and any such decision of the Corporation cannot be
ignored. So long as the choice of recruitment is in accordance with
Regulation 11 of the service regulations of the Corporation, the
petitioners cannot challenge the same excepting on grounds of
violation of any of their rights or any fundamental rights
guaranteed to them. The learned Senior Counsel would expand
this idea by submitting that Regulation 11 left a choice in the
hands of the Corporation to fill up the vacancies through any of
the methods specified therein which included inviting applications
through advertisement and then selection of the candidates, which
is the method known popularly as direct recruitment method.
Similarly, the Corporation could have also availed the other
method of selection from among the Corporation employees which
is by the method of promotion. Since, no fundamental rights or no
legal rights are available in favour of the petitioners, the learned
Senior Counsel would contend that the petitioners cannot
maintain the writ petitions. Finally, the learned Senior Counsel
would submit that the petitioners have also earned subsequent
promotions as Managers and hence, the issue raised by them has
reduced to a pure and simple academic issue and such academic
issues are not required to be answered by the Courts. Hence, the
learned Senior Counsel would suggest to dismiss the writ petitions.
The notification issued by the Corporation on 01.11.2007
inviting applications for certain posts notified therein is placed at
page no.18 of the writ petition paper book in W.P.No.6453 of 2011.
It has clearly set out that the vacancies which were existing as on
31.08.2007 in the service of the Corporation which are treated as
backlog vacancies to be filled in with candidates belonging to
Scheduled Castes and Scheduled Tribes. The upper age limit for
the candidates is prescribed as 43 years and the qualifications
required to be possessed by them against each post is specified.
The post of Manager, which is reserved for women candidate of
scheduled castes, required the candidate to possess the following
qualifications namely, B.Sc (Agriculture) with experience in
procurement of edible oil seeds and distribution activities and
experience in oil palm development. The next post of Manager
notified for Scheduled Caste (General Category) (i.e. both men and
women amongst scheduled castes can respond) required the
candidates to possess qualification of any degree. However, those
who are possessing M.B.A. degree would be given preference. Thus,
in between the two posts of Managers which have been notified, it
becomes clear that they do belong to two different disciplines.
Consequently, they are intended to discharge two distinct and
dissimilar functions, while one is required to take care of consumer
marketing activities, the other is required to perform procurement
activities. While the procurement of the oil seeds deals with pre-
crushing basic input activity of the Corporation, whereas, the
marketing activity of the finished product comes after the
production activity is completed at the plant. The functions which
are required to be performed by these two Managers are vastly
different and they stand at the either end of the rainbow. There is
no meeting ground in between these two stages. Similarly, the
qualifications required also speak of their divergent professional
inputs. Once is required to possess the professional qualification of
B.Sc Agriculture, while the other could be filled in with any
Graduate, not necessarily a Science Graduate such as B.A. or
B.Com., and by giving preference to candidates who have
possessed M.B.A Degree discipline with marketing as the subject
matter of specialized study. Therefore, the contention canvassed by
Sri P. Sri Raghu Ram that all the posts are common cadre posts
which have been included in the same cadre namely Managerial
Grade-II under Regulation 18 of the Employees Regulations does
not hold water. I have no hesitation to come to the conclusion that
the posts of Managers and Divisional Officers including in the
common cadre are each one of them distinct and separate one and
consequently, a person recruited as a Manager to discharge one set
of functions cannot be transferred and posted against the other.
Hence, these posts of Managers belong to distinct and separate
disciplines. They are isolated posts and there is common nature of
duties performed by them.
For instance, the Manager who has been recruited for
purpose of Oil Palm Development cannot be posted as Manager of
Consumer Marketing or as Manager (Personnel and
Administration). The converse is also true. A person recruited as
Manager (Personnel and Administration) cannot similarly be posted
as Manager (Plants and Products) or procurement and inputs or
consumer marketing. Each is a distinct and separate post in the
same cadre. Where there is only one post in a cadre, the question
of applying principles of reservation in favour of various social
sectors would not normally arise. If there is only one post and if
that one post is reserved exclusively in favour of any of one
particular social sector, no other post in that cadre would be
available to be filled in by candidates belonging to the other social
segment. In other words, a single post in a cadre if it is filled up
applying the principles of reservation amongst various social
sectors, it would amount to reserving 100%. Providing 100%
reservation is wholly impermissible and it directly conflicts with
the guarantees held out under Article 14 and 16 of our
Constitution.
The Supreme Court in Chakradhar Paswan v. State of
Bihar and others case had occasion to consider the applicability
of the principles of reservation in favour of various social sectors
and the principle has been spelt out as herein below:
The main contention of Dr. Y.S. Chitale, learned
counsel for the appellant, is that there are four posts in the
Directorate of Indigenous Medicines and all the posts are
Class I posts and therefore according to the 50 point roster,
the post of Director having been treated as unreserved by
the rotational system, the post of Deputy Director
(Homeopathic) was rightly reserved for a scheduled caste
candidate. According to him, the High Court fell into an
error in assuming that the reservation of the post of Deputy
Director (Homeopathic) for a scheduled caste candidate
under Art. 16(4) amounted to 100% reservation and
suffered from the vice of offending against the equality
clause under Art. 16(1) read with Art. 14 of the
Constitution. In answer to the argument Shri L.N. Sinha,
learned counsel appearing for respondent No. 4. submits
that firstly, the posts of Director and Deputy Directors are
not carried in the same cadre and therefore they could not
be grouped for purposes of implementing the policy of
reservation under Art. 16(4). and secondly, the three
systems of indigenous medicines, namely, Homeopathic,
Ayurvedic and Unani are distinct and separate systems of
medicine and thus the 50 point roster could not be applied.
The questions that fall for our determination are : (1) Is
the post of Deputy Director (Homeopathic) an 'isolated post'
and therefore reservation of the post for a scheduled caste
candidate amounts to 100% reservation and must therefore
be declared to be impermissible under Art. 16(4)? (2)
Whether the posts of the Director and the three Deputy
Directors could be grouped together for purposes of
implementing the policy of reservation, according to the 50
point roster. And (3) Could the posts of the Director and the
three Deputy Directors in the Directorate of Indigenous
Medicines although they are posts carried on different
grades, still be clubbed together for purposes of reservation
merely because they are Class I posts?
.Admittedly, the post of the Director is
the highest post in the Directorate of Indigenous Medicines
and is carried in the higher pay scale or grade of Rs. 2225-
75-2675 while the posts of the Deputy Directors are carried
in the pay scale or grade of Rs. 1900-75-2500. In service
jurisprudence, the term 'cadre' has a definite legal
connotation. In the legal sense, the word 'cadre' is not
synonymous with service'. Fundamental R. 9(4) defines the
word 'cadre' to mean the strength of a service or part of a
service sanctioned as a separate unit. THE post of the
Director which is the highest post in the Directorate, is
carried on a higher grade or scale, while the posts of
Deputy Directors are borne in a lower grade or scale and
therefore constitute two distinct cadres or grades. It is open
to the Government to constitute as many cadres in any
particular service as it may choose according to the
administrative convenience and expediency and it cannot
be said that the establishment of the Directorate
constituted the formation of a joint cadre of the Director
and the Deputy Directors because the posts are not
interchangeable and the incumbents do not perform the
same duties, carry the same responsibilities or draw the
same pay. The conclusion is irresistible that the posts of
the Director and those of the Deputy Directors constitute
different cadres of the Service. It is manifest that the post of
the Director of Indigenous Medicines, which is the highest
post in the Directorate carried on a higher grade or scale,
could not possibly be equated with those of the Deputy
Directors on a lower grade or scale. In view of this,
according to the 50 point roster, if in a particular cadre a
single post falls vacant, it should, in the case of first
vacancy, be considered as general. That being so, the State
Government could not have directed reservation of the post
of Deputy Director (Homeopathic) which was the first
vacancy in a particular cadre i.e. that of the Deputy
Directors, for candidates belonging to the scheduled castes.
Such reservation was not in conformity with the principles
laid down in the 50 point roster and was impermissible
under Art. 16(4) of the Constitution and clearly violative of
the, guarantee enshrined in Art. 16(1) of equal opportunity
to all citizens relating to public employment. Clause (4) of
Art. 16 is by way of an exception to the proviso to Art.
16(1). THE High Court rightly held that the reservation of
the post of Deputy Director (Homeopathic) amounted to
100% reservation which was impermissible under Art. 16(4)
as otherwise it would render the guarantee of equal
opportunity in the matter of public employment under Art.
16(l) wholly elusive and meaningless.
Another serious infirmity in the argument of the
learned counsel for the appellant is that it overlooks, the
basic principle that if there is only one post in the cadre,
there can be no reservation under Art. 16(4) of the
Constitution. The whole concept of reservation for
application of the 50 point roster is that there are more
than one post, and the reservation as laid down by this
Court in M.R. Balaji's case ( AIR 1963 SC 649) can be up to
50%. The Government cannot, for instance, declare that the
post of the Director of Indigenous Medicines shall be
reserved for candidates belonging to scheduled castes. The
Directorate is a paramedical service with Director as its
head and the there Deputy Directors belonging to three
distinct and separate disciplines viz. Homeopathic, Unani
and Ayurvedic under him. In the para-medical system the
three posts of Deputy Directors pertain to three distinct
systems and therefore each of them is an isolated post by
itself. The same principle should, we think, as in the case of
the Director, apply.
Similarly, the same question has fallen for consideration
before the Supreme Court once again in Jitendra Kumar Singh
and Anr. Vs. Respondent: State of U.P. and Ors. , wherein, the
principle has been enunciated as under clearly:
From the above it becomes evident that the very
premise on the basis of which Madhav case (1997 AIR SCW
3113) was decided has been held to be erroneous.
Thereafter it is further observed in paragraph 30 that "it
also appears that the decision in Indra Sawhney case (1992
AIR SCW 3682) has also not been properly appreciated in
Madhav decision." The conclusion of the judgement is given
in paragraph 37 which is as under (Para 38 of 1998 AIR
SCW 1553):-
"37. We, therefore, approve the view taken in Chakradhar
Case (AIR 1988 SC 959) that there cannot be any
reservation in a single post cadre and we do not approve
the reasonings in Madhav Case (1997 AIR SCW 3113), Brij
Lal Thakur case (1997 AIR SCW 1937) and Bageshwari
Prasad case upholding reservation in a single post cadre
either directly or by device of rotation of roster point.
Accordingly, the impugned decision in the case of Post
Graduate Institute of Medical Education and Research,
Chandigarh is, therefore, allowed and the judgment dated
2.5.1997 passed in Civil Appeal No.3175 of 1997 is set
aside."
In view of the clear principle spelt out by the Supreme Court,
any attempt to apply the principles of reservation to single and
isolated posts of Managers would be wholly impermissible.
However, Sri P. Sri Raghu Ram, learned Senior Counsel had
adverted to the aspect that there are more number of posts of
Managers in each cadre. The learned Senior Counsel has also
criticized that the action of the Corporation which has not
specifically adverted to and brought out the final cadre strength
approved by the Registrar of Co-operative Societies, in its
pleadings for the Managers categories. It could be due to the
failure to grasp the significance and distinction between single
cadre and multi member cadre posts in the matter of applicability
of principles of social sector reservations. In the absence of any
such plea or material produced by the Corporation, it would be
hazardous on the part of this Court to record a finding of fact
firmly that there is more than one post available in each cadre
such as Manager (Personal & Administration or HRD), Manager
(Finance), Manager (Marketing), Manager (Plants & Projects),
Manager (Procurement & Inputs), Manager (Oil Palm Development)
and Manager (Divisional Officer at Field Level). However, on the
last occasion, the Corporation seemed to have addressed a
communication to its standing counsel, a copy of which Sri
Praveen Kumar has circulated for my consideration. It emerges
from the contents thereof that the petitioners have been
subsequently promoted as Managers. This event of promotion of
the petitioners would only leave a hint that there are more number
of posts than one available in the cadre of Managers in the service
of the Corporation. Otherwise, the petitioners could not have been
promoted while the unofficial respondents are still holding the
same posts of Managers. Such a promotion could only become
possible if only there is one more post of Manager available.
Otherwise, two people could not have been appointed and
promoted against one single post. It is for the Corporation to sort it
out, this factual controversy. However, it is worthy to note that
where there are two or more number of posts available in a cadre
the principle evolved in Chakradhar Paswans case (referred supra)
will not get attracted. Dealing with this very aspect- where there
are two posts of Principals available - the Supreme Court in Arati
Ray Choudhury v. Union of India case held as under:
The model roster accompanying the letter of the
Railway Board dated 16/01/1964 is designed to meet the
requirements of the new situation arising out the rules
framed in deference to the judgment in Devadasan's case,
(1964) 4 SCR 680 = ( AIR 1964 SC 179). Both the letter and
the Note appended to the roster state expressly that if
"there are only two vacancies to be filled on a particular
occasion, not more than one may be treated as reserved
and if there by only one vacancy, it should be treated as
unreserved". THE words "on a particular occasion" were
substituted on 2/09/1964 by the words "year of
recruitment". Thus, in the first place each year of
recruitment is directed to be considered separately and by
itself as laid down in Devadasan's case, (1964) 4 SCR 680,
694-695 = ( AIR 1964 SC 1790) so that if there are only two
vacancies to be filled in a particular year of recruitment,
not more than one vacancy can be treated as reserved.
Secondly, and that is directly relevant for our purpose, if
there be only one vacancy to be filled in a given year of
recruitment, it has to be treated as unreserved irrespective
of whether it occurs in the model roster at a reserved point.
THE appointment then is not open to the charge that the
reservation exceeds 50 Per Cent for, if the very first vacancy
in the first year of recruitment is in practice treated as a
reserved vacancy, the system may be open to the objection
that the reservation not only exceeds 50 Per Cent but is in
fact cent per cent. But, if "on this account" that is to say, if
on account of the requirement that the first vacancy must
in practice be treated as unreserved even if it occurs in the
model roster at a reserved point, "a reserved point is treated
as unreserved" the reservation can be carried forward to
not more than two subsequent years of recruitment. Thus,
if two vacancies occur, say, within an initial span of three
years, the first vacancy has to be treated as an unreserved
vacancy and the second as reserved.
The corporation is a public sector undertaking. When it
undertakes direct recruitment, it should be very cautious and
careful. If, for any reason, the process of direct recruitment is
faulted or vitiated, the candidate who was selected by it and who
joined the service will get caught in the cross-fire. A direct recruit
candidate cannot be reverted back to any other lower post. He is
normally picked up, while competing with the other candidates,
from the open market. Therefore, for any reason, the process of
direct recruitment is found fault with, then, he will have to be sent
out of the service of the Corporation altogther, but cannot be
reverted. Same would be the prospect even in case of an internal
candidate. An internal candidate offered his candidature only
because he satisfied the recruitment criteria in all respects
including the upper age limit. He is required to compete with the
candidates drawn from the open market. For all practical
purposes, he is standing at par with the candidate drawn from the
open market. If, for any reason, when the direct recruitment
process fails, he will have to be terminated from the employment of
the Corporation like any other candidate drawn from the open
market. Therefore, keeping this grave consequence in mind, the
Corporation would regulate its affairs properly and carefully from
now on.
Accordingly, a declaration is issued that the principle of
reservation in favour of various social sectors segments in so far as
single cadre posts is impermissible and it will be violative of the
concept of equality enshrined under Articles 14 & 16 of our
Constitution. The Corporation would accordingly regulate the
entire exercise.
The writ petitions stand disposed of with this order.
Miscellaneous applications pending shall stand closed. No costs.
_______________________________________
JUSTICE NOOTY RAMAMOHANA RAO
Date:19-01-2015
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