Calcutta High Court (Appellete Side)
Samity & Anr vs The Food Corporation Of India & Ors on 4 August, 2025
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Raja Basu Chowdhury
WPA 19056 of 2011
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Abasarprapt Bhartiya Khadyanigam Karmachari Kalyan
Samity & Anr.
vs.
The Food Corporation of India & Ors.
For the petitioners : Mr. Debdeep Sinha
For the FCI : Mr. Kamal Kumar Chattopadhyay
Ms. Rini Chatterjee
For the Union of India : Mr. Shyamal Kumar Mukherjee
Mr. Bishwambher Jha
Mr. B. K. Singh
For the Respondent : Mr. Dipta Dipak Banerjee
nos. 6 to 49.
Heard on : 04.04.2025 & 25.04.2025. Judgment on : 4th August 2025. Raja Basu Chowdhury, J:
1. The instant writ petition has been filed, inter alia, for a direction
upon the respondent no.2 to extend the benefit of Liberalised
Pension Scheme, as formulated by the Central Government on the
basis of the recommendation of the Fourth Pay Commission, to all
the retired employees of the respondent no.1, as extended to the
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employees absorbed from the Central Government Service
(hereinafter referred to as the “food transferees”).
2. On contest, by judgment and order dated 20th December, 2023, this
Court in the facts of this case was, inter alia, pleased to observe and
direct as under.
3. Since, the determination involved the interest of all the employees
of the respondent no.1, by an order dated 25th November, 2011 the
petitioners were directed to publish an advertisement disclosing
factum of moving this writ petition in representative capacity, in one
daily vernacular, within a period of two weeks. In compliance of the
aforesaid direction, an advertisement had been published in the
“Daily Statesman” dated 2nd December, 2011. Consequent
thereupon a Co-ordinate Bench of this Hon’ble Court by an order
dated 20th December, 2011, had issued direction for exchange of
affidavits. Pursuant to the issuance of the aforesaid public notice,
in the newspaper, several applicants had applied before this Hon’ble
Court for being added as parties to the writ petition claiming similar
interest in the subject matter of the writ petition, by filing a
connected application. Such application was registered as CAN No.
7769 of 2008. By an order dated 13th December, 2018 a Co-
ordinate Bench of this Hon’ble Court by permitting addition of the
applicants, as parties to the writ petition and by directing the
department to amend cause title of the writ petition, had posted the
matter for hearing.
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4. In the interregnum the applicant no.48 having died, the factum of
death of the said applicant was brought on record and his legal heir
was substituted in his place and stead.
5. The petitioner no.1 is an Association of Retired Employees of Food
Corporation of India, being the respondent no.1 herein. The
petitioners say that its members were initially the employees of the
Government of West Bengal in the department of Food and Supplies
and were designated as Sub-Inspector as well as in other posts.
6. The petitioners claim that by an agreement dated 26th November,
1966 entered into, between the Government of West Bengal and the
respondent no.1, 5000 employees of Foods and Supplies
department of the Government of West Bengal, including the
members of the petitioner no.1 were sent on deputation to the
respondent no.1 with effect from 12th December, 1966 as also on
subsequent dates (hereinafter referred to as the “Deputationists”).
7. On 19th March, 1984 the respondent no.1 introduced a circular no.
29 of 1984 (hereinafter referred to as the “said Circular”) which
related to absorption of West Bengal State Government
deputationists in the respondent no.1. As would appear from the
said circular the deputationists, were proposed to be absorbed as
the employees of respondent no.1 subject to, inter alia, the following
terms and conditions:
“(i) The State Government employees who opt for permanent
absorption in the service of the Corporation will be treated as
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conditions as prescribed in FCI (Staff) Regulations, 1971.
(ii) They will count their seniority in the post/grade in which
they are absorbed from the date of absorption in the
Corporation.
(iii) Details indicating the post and the scale of pay held by
the state Government Deputationists as also the
corresponding post in the F.C.I., and the scales of pay
attached to the post is indicated in annexure II. The
employees who opt for absorption in the Corporation will be
initially appointed to the Corresponding post indicated
therein.
(iv) West Bengal State Government employees who have
been on deputation in F.C.I. for a period of at least five years
as on 30th April, 1984 will only be eligible for absorption in
the service of the Corporation.”
8. The said circular, inter alia, further provided that for the service
rendered prior to the date of absorption in respondent no.1, the
employee concerned will draw pro-rata pension, death-cum-
retirement gratuity and other terminal benefits, if any, as
admissible to them in accordance with Rules and Regulations of the
Government of the West Bengal. It was further provided that the
respondent no.1 will not bear any liability in respect of the service
rendered prior to the date of permanent absorption in the service of
the respondent no.1. In terms of the said circular those employees
who were interested in permanent absorption in respondent no. 1,
were required to give their options in the prescribed form. As would
appear from the option form, one of the conditions for absorption
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was to agree to be treated as direct recruit and to be made a
member of Contributory Provident Fund (CPF) under the
respondent no.1 with Contributory Provident Fund Regulations and
to be guided as per Regulation 17 of the FCI (Staff) Regulations,
1971. The deputationists as aforesaid were, however, absorbed in
the respondent no.1 with effect from 1st July, 1984, in terms of the
aforesaid circular letter dated 19th March, 1984 and on the basis of
the option exercised by them as aforesaid. The petitioners contend
that the policy relating to the recruitment of staff in the respondent
no.1 is governed by Section 12 of the Food Corporation of India Act,
1964 (hereinafter referred to as the “said Act”) which reads as
under:
“12. Officers and other employees of Corporation (1) The
Central Government shall, after consultation with the
Corporation, appoint a person to be the Secretary of the
Corporation. (2) Subject to such rules as may be made by the
Central Government in this behalf, the Corporation may
appoint such other officers and employees as it considers
necessary for the efficient performance of its functions.”
9. In the year 1968 Section 12A was inserted in the said Act, by way of
amendment, to enable the Central Government to make an order
directing its employees to be transferred to the service of
respondent no.1. Those employees who were working as Food
transferees were regularized pursuant to the said amendment.
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10. The petitioners state that subsequently Staff Regulation was
framed in 1971, inter alia, laying down the terms and conditions for
the employees of respondent no.1.
11. In the interregnum, however, since, according to the petitioners,
discrimination was being meted out at the stage of absorption to
some of the members of the petitioner no.1 by posting them as
Assistant Grade-III, a writ petition was filed questioning their
absorption in the said grade by contending that they were entitled
to be posted as Assistant Grade-II. The said question ultimately
came up for consideration before the Hon’ble Supreme Court in the
case of Food Corporation of India v. F.C.I. Deputationist
Association & Ors. reported in (1996) 6 SCC 90 and by a
judgment and order dated 29th August, 1996, the Hon’ble Supreme
Court held that the said deputationists were entitled to the post of
Assistant Grade-II.
12. The petitioners contended that although, the Food transferees
from the Central Government as well as the deputationists from the
State Government were initially absorbed in the same cadre,
namely, the post of Assistant Grade-II and were admittedly,
discharging the same duties and functions, having the same
qualification and were governed by the same service conditions with
identical pay scale, but in so far as the Food transferees were
concerned, admittedly, on their absorption they were given one
extra increment on the basis of the circular letter issued in that
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behalf, which was not extended to the deputationists who were
erstwhile employees of the State of West Bengal a challenge was put
forth in a writ petition noted as under.
13. Thus, challenging the unequal treatment and discrimination,
some of the members of the petitioner no.1 filed a writ petition,
which was registered as WP No. 19266 (W) of 1997 (Ashis Kumar
Ganguly & Ors. v. Food Corporation of India & Ors.), inter alia,
praying for grant of advance increment in fixation of pay in the
similar manner as it was done in respect of the transferred
employees from the Central Government to respondent no.1.
14. On contested hearing the aforesaid writ petition was allowed by
directing the respondent no.1 to pass appropriate orders in respect
of the grant of advance increment to the petitioners in accordance
with law. Although, an appeal was carried from the aforesaid order,
by a judgment and order dated 29th November, 2006 the Division
Bench of this Hon’ble Court was, inter alia, pleased to dismiss the
said appeal on contest.
15. Being aggrieved the respondent no.1 had challenged such order
before the Hon’ble Supreme Court of India. By a judgment of the
Hon’ble Supreme Court, in the case of Food Corporation of India
& Ors. v. Ashis Kumar Ganguly & Ors., reported in (2009) 7
SCC 734, it was inter alia, observed that in a case of this nature,
legal right of the respondents emanated from violation of the
equality clause, contained in Article 14 of the Constitution of India.
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If they were otherwise similarly situated, there was absolutely no
reason why having regard to the provisions contained in Article 39-
A of the Constitution of India, the respondents should be treated
differently. It is, therefore, not a case where persons differently
situated were being treated differently and proceeding on such
premise the Special Leave Petition which then converted to an
appeal, was dismissed.
16. By relying on the observations made by the Hon’ble Supreme
Court in the aforesaid judgment the petitioners seek to challenge an
order dated 12th August, 2010 forming Annexure ‘P-14’ passed by
the Deputy General Manager (Pension) of the respondent no.1,
whereby the respondent no.1 has by relying on the provisions
contained in F.C.I. (Staff) Regulation, 1971, has held that the
deputationists from the West Bengal who were later absorbed with
the respondent no.1 are not entitled to the benefits of Liberalised
Pension Scheme and consequentially held that the demand for
conversion of Contributory Provident Fund Scheme to Liberalised
Pension Scheme of the Central Government based on Fourth Pay
Commission recommendation is not permissible. The aforesaid
rejection is impugned in the instant writ petition.
17. Mr. Sinha, learned advocate representing the petitioners,
contends that the impugned rejection order has been passed on the
premise that the petitioners as deputationists having exercised their
option in terms of the circular dated 19th March, 1984 are not
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entitled to the benefits of the Liberalised Pension Scheme. He says
that the respondent no.1 had introduced the Liberalised Pension
Scheme after Fourth Pay Commission recommendation and the
same was implemented by the respondent no.1 from 1986. The said
scheme envisaged conversion from C.P.F. to G.P.F. By reasons of
implementation of the Liberalised Pension Scheme, the Central
Government employees who had been transferred to respondent
no.1, were granted opportunity to exercise option for conversion from
C.P.F. to G.P.F., and were extended the benefits thereunder, whereas the
State Government employees being members of the petitioner no.1 were
not granted such option or the benefit thereof. This according to Mr.
Sinha is a discrimination meted out to the members of the petitioner
no.1 who were originally the State Government employees.
18. Fourth Pay Commission recommendation was duly implemented
by respondent no.1 in terms of revision of Pay Scale for all its
employees; but only the State Government employees, absorbed in
the services of respondent no.1 were not allowed the benefit of the
Liberalised Pension Scheme. By inviting the attention of this Court
to the order dated 11th April, 2013 passed by a Co-ordinate Bench
of this Court, he submits that although, this court had directed the
respondent no.1 to file an affidavit specifically stating relevant facts
about the benefits that the erstwhile Central Government employees
and erstwhile State Government employees were getting, while in
employment of respondent no.1, no appropriate affidavit has been
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filed by the respondent no.1. Even the affidavit filed pursuant to the
order dated 19th November, 2019 does not give a clear picture and
is full of suppression of facts. The State Government employees are
only receiving paltry pension from the State Government based on
their short length of service with the State Government, at the rate
prevailing on the date of their deputation in respondent no.1. They
are only getting meager amount on pro-rata gratuity and pension
which is not more than Rs.2000/- to Rs.3000/- per month from the
Regional Provident Fund Commissioner, as per the scheme framed
under the Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952.
19. On the contrary, the Food transferees, who are also recipient of
pro-rata pension from the Central Government and pro-rata
gratuity amount, have also been extended the benefits Liberalised
Pension Scheme. Disallowing the State Government deputationists
who were later absorbed to exercise their option under the
Liberalised Pension Scheme, while extending such benefits to the
Food transferees with liberty to exercise such option, amounts to
creation of a class within a class. The aforesaid steps taken by the
respondent no.1 is violative of Article 14 of the Constitution of
India. The Hon’ble Supreme Court had already in the judgment
delivered in the case of Ashis Kumar Ganguly & Ors. (supra) held
that in cases of both Central Government employees and State
Government employees, common regulation would bind them. The
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conditions of service of the employees recruited from two different
sources cannot be different, only because they were recruited from
different sources.
20. In the backdrop as aforesaid he prays that the aforesaid order of
rejection dated 11th/12th August, 2010 be set aside and the
petitioners be afforded with the benefits of Liberalised Pension
Scheme as formulated by the Central Government on the basis of
the recommendation of Fourth Central Pay Commission as
extended to the employees absorbed from the Central Government.
21. Mr. Banerjee, learned advocate representing the added
respondent nos. 6 to 49, has adopted the submissions of Mr. Sinha,
and submits that similar benefits be also extended to the
respondent nos. 6 to 49.
22. Per contra, Mr. Chattopadhyay, learned advocate representing the
respondent no.1, by placing the agreement dated 26th November,
1966, in particular clause 9(b) thereof, submits that it was, inter
alia, provided for in such agreement that till such time the
employees of the State Government are not taken over by the
respondent no.1 and absorbed by the respondent no.1, they shall
be on deputation and shall be governed by the same pay and scales
of pay under the State Government. The other terms and conditions
of their deputation will be settled by mutual consultation between
the respondent no. 1 and the State Government, which in any case
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shall not be less favourable than what is admissible under the West
Bengal Government Rules.
23. By referring to clause 9(c) of the aforesaid agreement, it is
submitted that in respect of the officers and staff who were to be
eventually absorbed by the respondent no.1 in its service, the
respondent no.1 was required to make regulations in such manner
so as to conform to, as far as possible, to the conditions of service
that governed such officers and staff under the State Government.
By relying on the circular dated 19th March, 1984, he says that the
deputationists had opted for being treated as a direct recruit and
had subjected them to the terms and conditions as prescribed in
the F.C.I. (Staff) Regulations, 1971. As per the aforesaid circular
and the option form, on absorption, the deputationists have agreed
to be treated as not only direct recruits but to become members of
Contributory Provident Fund under F.C.I. By placing reliance on the
Provident Fund Act and other allied schemes and Chapter IV
thereunder, which relates to the Contributory Provident Fund, he
says that the members of the General Provident Fund is only
confined to the Food transferees whose services have been finally
transferred to respondent no.1 from the erstwhile Regional
Directorates (Food), functioning under the Department of Food of
the Government of India and to those who specifically opted, within
a period of six months from the date of issue of the notification
regarding their final transfer to the respondent no.1, to be governed by
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Government of India G.P.F. (CS) Rules, 1960. In the event, the members
of the petitioner no.1 are permitted to opt to the Liberalised Pension
Scheme, by transferring them from C.P.F. to G.P.F., the same would
create an anomaly. The members of the petitioner no.1 have retired
and other deputationists, have all taken the benefits of the
Contributory Provident Fund. Thus, having taken such benefit, they
cannot be permitted to turn the clock back for availing the benefits
of Liberalised Pension Scheme.
24. By referring to the Regulation 81 of the F.C.I. (Staff) Regulations,
1971, it is submitted that pay of employee on his first appointment,
to a post in the service of the respondent no.1 shall be fixed at the
minimum of the time scale applicable to the post to which he is
appointed, or where the post is on fixed pay, such fixed pay. That as
per Section 12A of the said Act, special provisions had been made
for transfer of Central Government employees to the respondent
no.1 in certain cases. By further referring to Section 12A(4A) of the
said Act, he says only such provision contemplates pension payable
to the Food transferees. As such the respondent no.1 cannot be
said to have discriminated against the members of the petitioner
no.1. By further referring to Regulation 7 and 81 of the F.C.I. (Staff)
Regulations, 1971, it is submitted that the mode of recruitment
from the State Government is through deputation, the employees
who were on deputation were later absorbed by offering them the
option. These employees are different than those of the Food
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transferees and as such the State Government deputationists even
on absorption cannot be permitted to draw pension as the same
would tantamount to permitting them to draw pension from two
sources. By distinguishing the judgment delivered by the Hon’ble
Supreme Court in the case of Ashis Kumar Ganguly & Ors.,
(supra), he says that the Hon’ble Supreme Court in said judgment
only dealt with the scope of additional increment, in the scale of
pay. The said judgment does not deal with pension. The petitioners’
claim has already been turned down; no relief can be afforded to the
members of the petitioner no.1 or to the deputationists.
25. Heard the learned advocates appearing for the respective parties
and considered the materials on record.
26. As would appear from the sequence of events narrated
hereinabove the members of the petitioner no.1 and the added
respondent nos. 6 to 49 complain of discrimination. The petitioners
say that the members of the petitioner no. 1 along with the added
respondents were originally employed with the state Government.
Notwithstanding the members of the petitioner no.1 along with the
added respondents being taken on deputation sometimes in the
year 1966, and were later absorbed in the respondent no.1, on the
terms and conditions as laid down in the circular dated 19th March,
1984 which formed the basis where under options were taken from
the members of the petitioner no.1 and the added respondents, in
the year 1984, however, the same stood altered in the year 1986
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when the Liberalised Pension Scheme after Fourth Pay Commission
recommendation was implemented. The said Scheme envisaged
conversion from C.P.F. to G.P.F. By reasons of implementation of
the policy, it is alleged that the Central Government employees who
had been transferred to the respondent no.1 were granted the
benefit of the Liberalised Pension Scheme whereas State
Government employees, the deputationists, being the members of
the petitioner no.1 were not granted the benefits of Liberalised
Pension Scheme. The petitioners and the added respondents
complain that the Hon’ble Supreme Court, while considering the
issue of grant of incentive in the case of Ashis Kumar Ganguly &
Ors., (supra), was, inter alia, pleased to take note of the selfsame
circular dated 19th March, 1984 including the impact of section 12A
of the said Act and in paragraph 30 to 35 was, inter alia, pleased to
observe as follows:-
“30. It is contended that the deputationists who were the
Central Government employees were transferred in terms of
Section 12-A of the Act. We may notice sub-section (3)
thereof, which reads as under:
“12-A. (3) An officer or other employee transferred by an
order made under sub-section (1) shall, on and from the date
of transfer, cease to be an employee of the Central
Government and become an employee of the Corporation
with such designation as the Corporation may determine
and shall, subject to the provisions of sub-sections (4), (4-A),
(4-B), (4-C), (5) and (6), be governed by the regulations made
by the Corporation under this Act as respects remuneration
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provident fund, and shall continue to be an officer or
employee of the Corporation unless and until his
employment is terminated by the Corporation.”
As in terms of the aforementioned provision, the employees
so transferred would be deemed to be the employees of the
Corporation upon cessation of the relationship of employer
and employee between the Central Government and
themselves and they would be subject to the provisions of
the same Regulations. We fail to understand, why the
benefit of the said Regulations shall be denied to the
employees who were deputed to the Corporation from the
State Government cadre.
31. Incidentally, we may notice that even in the Circular
Letter dated 19-3-1984, it was categorically stated:
“The absorption of the employees will be subject to the
following conditions:
(i) The State Government employees who opt for
permanent absorption in the service of the Corporation will
be treated as direct recruits and will be subject to the terms
and conditions as prescribed in the Food Corporation of
India (Staff) Regulations, 1971.”
If the respondents, thus, were to be treated as direct recruits
subject to the terms and conditions and as prescribed in the
Food Corporation of India (Staff) Regulations, 1971, in law
they were also required to be treated alike as having entered
the services of the Corporation for the first time. Even their
seniority in the post in which they were absorbed was to be
accounted from the date of absorption in the Corporation.
32. Thus, for all intent and purport, the past services of the
Central Government employees and the State Government
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employees whether appointed in the service of the
Corporation by way of transfer or by way of absorption
would result in cessation of relationship of employer and
employee between the Central Government or the State
Government as the case may be and the employees
concerned. In other words, until their absorption, the
respondents were the employees of the State Government
and they became the employees of the Corporation only upon
their absorptions. Furthermore, in the cases of both the
Central Government employees as also the State
Government employees, common regulation would bind them
since their absorption in the service of the Corporation either
in terms of sub-section (3) of Section 2-A of the Act or in
terms of the order of absorption passed in respect of each of
the respondents.
33. Submission of the learned Additional Solicitor General
that the employees transferred from the Central Government
and those deputationists who have been absorbed fall in
different classes cannot be accepted.
34. The learned Additional Solicitor General pointed out the
following purported differences between the two groups of
employees:
“(a) The services of the Food transferees from the Central
Government were transferred to FCI on
compulsory/permanent basis after Central Government
Gazette notification, in accordance with Section 12-A of the
Food Corporations Act, 1964. Whereas the West Bengal
deputationists were sent on deputation to FCI as per
agreement with the Government of West Bengal and FCI.
(b) The Food transferees from the Central Government
had no option for joining or otherwise in FCI on transfer from
RDF. It was compulsory for them. Whereas there was no
compulsion for the West Bengal deputationists for their
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repatriated to their parent department, Government of West
Bengal or to be inducted in FCI as per FCI, HQ Circular No.
21 of 19-3-1984.
(c) After the transfer of the services of the Food
transferees from the Central Government to FCI, their parent
department was wound up except for existence of power
with one or two officers to settle their pension cases.
Whereas existence of the parent department of the West
Bengal deputationists i.e. Food & Supplies Department,
Government of West Bengal with manpower was/is all along
there.
(d) The Food transferees from the Central Government did
not have to tender any resignation with their parent
department for transfer of their services to FCI. Whereas the
deputationist employees had to resign from the Department
of Food & Supplies of West Bengal before their absorption in
FCI.
(e) The Food transferees from the Central Government
enjoyed continuity of their services. They were the Food
‘transferees’. Whereas by virtue of the option exercised with
FCI by the deputationist employees, their status is of a direct
recruit w.e.f. 1-7-1984.
(f) On joining FCI, the Food transferees from the Central
Government did not get any gratuity from their parent
department in respect of their services rendered with the
Government of India. Whereas the deputationist employees
had received their gratuity and pro rata pension from their
parent department for the services they rendered with the
Government of West Bengal.
(g) The Food Corporation of India (Staff) Regulations,
1971 were not in existence at the initial stage of the transfer
of the RDR employees in FCI. Whereas at the time of the
absorption of the deputationist employees in FCI, the Food
Corporation of India (Staff) Regulations, 1971 were in
existence.”
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35. We would deal with them in seriatim:
(a) The conditions of service of employees from two
different sources cannot be different only because they were
recruited from different sources. In view of the fact that both
the sets of employees were governed by the same set of
Regulations, it would not be correct to contend that the
transferees from the Central Government had no option.
(b) It was for the Central Government to issue an
appropriate notification in terms of Section 12-A(1) of the Act.
Only when such an order was issued, sub-section (3) thereof
would come into play. Applicability of a rule would not
depend upon the question as to whether the respondents
had an option either to be repatriated to their parent
department or not inasmuch as the rule became applicable
only on their absorption and not prior thereto.
(c) No additional fact has been placed before us in
support of the statement that the entire Food Department
was wound up. Even if that be so, in absence of any such
regulation governing their cases, they could have been given
the benefit of an additional increment to which other
employees were also entitled to.
(d) For the aforementioned reasons, in our opinion, it is
wholly immaterial as to whether cessation of relationship of
employer and employee took place by reason of resignation
or by transfer.
(e) In view of the terms and conditions of transfer, so far
as the Central Government employees are concerned and the
option exercised by the deputationists as well as the effect of
Regulation 81, there is no force in the aforementioned
contention.
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(f) As in the case of the employees of the Central
Government, the continuity of service had been maintained
only because the deputationists had received their gratuity
and pro rata pension from their parent department, in our
opinion that would not make any difference as the sole
question was as to whether the proviso appended to Rule 81
was applicable in their case or not.
(g) We have noticed hereinbefore that even before coming
into force of the Food Corporation of India (Staff) Regulations,
1971, there existed a similar provision by way of Para 4.68
of the Manual. Thus, whereas in the case of the Central
Government employees, the earlier provisions were applied,
in the case of the State Government employees, the
Regulations are to be made applicable.”
27. The Hon’ble Supreme Court was further pleased to hold that in a
case of this nature, the legal right of the deputationists emanated
from violation of equality clause and proceeded to conclude that it is
not a case where persons differently situated are treated differently.
28. In the instant case, Mr. Chattopadhyay has, however,
strenuously argued that no discrimination has been meted out to
the members of the petitioner no.1. The members of the petitioner
no.1 had opted, in terms of circular dated 19th March, 1984 and
having so opted cannot be entitled to the benefits of Liberalised
Pension Scheme. It has also been contended that the members of
the petitioner no.1 having taken advantage of the Contributory
Provident Fund cannot today claim to convert the same to a General
Provident Fund under Liberalised Pension Scheme. According to
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Mr. Chattopadhyay, the same would create an anomaly. It is also
noted that the Hon’ble Supreme Court has held that in cases of
both the food transferees and the deputationists, common
regulation would bind them since, their absorption in the service of
the respondent no.1, either in terms of sub-section (3) of section
12A of the said Act, or in terms of the order of absorption passed in
respect of each respondent.
29. It would, however, appear from the supplementary affidavit
affirmed on behalf of the respondent no.1 on 26th April, 2013 that
the Central Government employees on transfer to respondent no.1
had retained the existing benefits being enjoyed by them with the
Central Government including those under CCS (Pension) Rules.
This, however, happened only after the insertion of section 12A by
way of amendment of the said Act. As such, those Food transferees
were enjoying the benefit of GPF unlike the State Government
deputationists in terms of Section 12A(4A) of the said Act, this
benefit was only made available once, an order was made under
section 12-A (1) of the said Act.
30. The question that falls for consideration is whether the members
of the petitioner no.1 have been discriminated and whether the
members of the petitioner no.1 and the respondent nos.6 to 49,
ought to have been extended the benefits of the pension scheme
introduced by the Central Government pursuant to the
recommendations of the Fourth Central Pay Commission.
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31. However, to decide the aforesaid issue the primary consideration,
in my view, is whether the members of the petitioner no.1 are being
treated differently or whether by distinguishing between the
members of the petitioner no.1 being the State Government
deputationists, who were later absorbed in the respondent no.1 and
the Food transferees, a class can be differentiated by applying the
principal of intelligible differentia. I find from the arguments
advanced by Mr. Chattopadhyay that the primary objection of
granting Liberalised Pension Scheme to the members of the
petitioners lies in Section 12A of the said Act.
32. In this context it would be relevant to indicate that the Hon’ble
Supreme Court in the case of Ashis Kumar Ganguly & Ors.
(supra) had the occasion to consider the effect of Section 12A of the
said Act. The Hon’ble Supreme Court after taking note of the class
distinction then sought to be created by providing additional
increment to the Food transferees, had noted that in the opinion of
the Hon’ble Court, it was wholly immaterial as to whether cession of
relationship of the employer and employee had taken place by
reasons of resignation or transfer as in both cases the previous
relationship had snapped. Both set of employees were governed by
the same set of regulations, as such it was not correct to contend
Food transferees had no option. It also noted that it was for the
Central Government to issue an appropriate notification in terms of
section 12A(1) of the Act. Only when such an order is issued,
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subsection (3) thereof, would come into play. The Hon’ble Supreme
Court has also observed that if the deputationists were being
treated as direct recruits subject to terms and conditions as
specified in the Food Corporation of India (Staff) Regulations, 1971,
in law they were also required to be treated alike, as having entered
the services of the Respondent no.1 for the first time. Even their
seniority in the post in which they were absorbed was to be
accounted from the date of absorption in the Respondent no.1. The
Hon’ble Court thus, had brushed aside the objection then raised by
the respondent no.1 with regard to the terms and conditions of
transfer, so far as the Central Government employees were
concerned and the option exercised by the deputationists, as well as
the effect of Staff Regulation 1971, and held that it is, therefore,
not a case where persons differently situated are being treated
differently. The issue of prorata pension being paid to the State
Government deputationists was also considered by the Hon’ble
Supreme Court.
33. Having regard to the aforesaid I am of the view, that the issue
whether the members of the petitioner no.1 and other similarly
placed deputationists can be said to be differently situated from the
Food transferees, is no longer res integra. The legal right of the
members of the petitioner no.1 and the respondent nos.6 to 49 to
be treated equally and at par with the Food transferees has long
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been recognised by the Hon’ble Supreme Court in the case of Ashis
Kumar Ganguly & Ors. (supra).
34. However, before proceeding further, it must be noted the parties
had not been able to appropriately clarify, whether the benefit of the
office memorandum dated 1st May, 1987 under the Liberalised
Pension Scheme, had been extended to Central Government Food
transferees and whether the said scheme was marked to FCI for
implementation. Although, the respondent no.1 has claimed by
relying on the office report dated 7th August, 2023 that the benefit
of the office memorandum dated 1st May, 1987 has not been made
available to Food transferees of respondent no.1 or to its employees,
the aforesaid document, however, also makes a reference to a
communication dated 25th February 2022. The contents of the
letter dated 25th February, 2022 are extracted herein below:
“F. No. WRC/39/1/2019
Food Corporation of India
Headquarters, Khadya Sadan
16-20, Barakhamba Lane
New Delhi.
Date 25.02.2022
(CIRCULAR NO- WR-08-2022-04)Subject: Revision/Rationalization/Consolidation of
Pension/Family Pension in respect of IDA Employees/Food
Transferees who opted for Central Government Pension-reg.
Enclosed please find to F. No. 38020/1/2019-FC-3
dated 15.02.2021 issued by GOI, Ministry of CA, F&PD,
Department of Food & Public Distribution (Copy Enclosed)
regarding Revision/Rationalization of Pension/Family
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CAN 5 of 2020Pension in respect of IDA Food Transferees who opted for
Central Government Pension, which is self-explanatory. This
is for information & necessary action.
This issues with the approval of Competent Authority.
(Sangeet Verma)
Asstt. Genl. Manager (WRC)Distribution: As per standard Mailing list.”
35. Interestingly the aforesaid document has been disclosed without
the enclosure.
36. As would appear from the above, the recent stand of the
respondent no.1 seeks to somewhat contradict the statement made
by the said respondent in paragraph 4 of the affidavit in opposition,
where it has been specifically stated that the benefit of Liberalised
Pension Scheme to the Food transferees has been granted by the
Central Government in terms of the provisions of Section 12A of the
Food Corporation of India Act, 1964. If, I accept the aforesaid stand,
taken by the respondent no.1 in its affidavit by ignoring the recent
disclosure, then I have no hesitation in my mind to conclude that
the deputationinst are being discriminated since, there is otherwise
no distinction between the State Government deputationists, who
were later absorbed in the respondent no.1 and the Food
transferees whose service was transferred on the basis of order
passed in terms of section 12 A (1) of the said Act. And in such case
the respondent no.1 is obliged to ensure that the Liberalized
pension scheme is also extended to the deputationists.
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37. However, by reasons the conflicting stand taken by the
respondent no.1 and since, there appears to be a lack of clarity on
the issue whether the office memorandum dated 1st May, 1987 was
at all made applicable, for being implemented to the Food
transferees and whether the Food transferees were extended the
benefit of Liberalized Pension Scheme, I consider it prudent to
direct the Ministry of Personnel, Public Grievance and Pension,
Department of Personnel and Training, Government of India
represented by the Secretary, having its office at North Block, New
Delhi 110001, and the Ministry of Consumer Affairs, Food and
Public Distribution, Department of Food & Public Distribution,
Government of India represented by the Secretary, having its office
at Krishi Bhawan, New Delhi 110001, to be added as party
respondents to the instant proceeding with a further direction on
the aforesaid added respondents to identify whether the Food
transferees who were in service of the respondent no.1 on 1st
January, 1986 had been afforded any benefits under Liberalised
Pension Scheme in terms of the office memorandum dated 1st May,
1987, and whether the aforesaid office memorandum dated 1st
May, 1987 had been marked to the respondent no.1 by the Central
Government for its implementation and to file a report before this
Court on or before the matter is taken up next.
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38. Department is directed to carry out the aforesaid amendment and
to serve a copy of this order along with the amended writ petition on
the aforesaid added respondents
39. The petitioners are directed to put in costs as may be notified by
the department, for effecting service on the added respondents
40. Since then, the Department had carried out the direction dated
20th December, 2023, as would appear from an office report dated
12th February, 2024, which was filed in compliance with the
direction dated 5th February, 2024 passed by this Court.
41. In the interregnum, however, an appeal was filed from the order
dated 20th December, 2023, which was registered as FMA 312 of
2024. The said appeal was disposed of by the Hon’ble appellate
Court by an order dated 9th April, 2024 directing this Court to
revisit the issues on the basis of the disclosure to be made by the
added respondents and to dispose of the matter finally after giving
reasonable opportunity of hearing to the parties on the basis of
affidavits to be filed by the added respondents in terms of the
direction passed by the Hon’ble Appeal Court. Despite the aforesaid
direction being passed both by this Court as well as by the Hon’ble
Appeal Court, the added respondents did not file the report as
directed.
42. Records would reveal that the writ petitioners had since applied
before the Hon’ble Appeal Court by filing an application being I.A.
CAN 2 of 2024, on the ground that despite specific directions, no
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report having been filed by the added respondents, inter alia,
praying for necessary direction that the learned Single Judge hear
out and decide the writ petition upon considering the
communication dated 2nd February, 2024 issued by the under
Secretary, Government of India, Ministry of Consumer Affairs, Food
and Public Distribution. Records would reveal that by an order
dated 8th January, 2025 by noting that in compliance of the order
dated 9th April, 2024 a report had been filed, thus, while returning
such report to the learned advocate appearing for the added
respondents to enable him to file the same before the learned Single
Judge, the application was disposed of. Pursuant to the aforesaid,
the added respondents had filed the report in the form of an
affidavit affirmed on 18th December, 2024 and in furtherance
thereto, had also submitted the document dated 2nd February, 2024
issued by the Government of India, Ministry of Consumer Affairs,
Food and Public Distribution to clarify whether food transferees
who were in service of Food Corporation of India on 1 st January,
1986 had been afforded with any benefit under Liberalised Pension
Scheme in terms of the office memorandum dated 1st May, 1987. In
course of argument, the learned advocate for the added respondents
had submitted that the food transferees had twice been afforded
options, first of such options was given in the year 1968 and the
second option to switch over from Contributory Provident Fund
(CPF) Scheme to the Liberalized Pension Scheme of the Central
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Government was given in the year 1977, and no further option was
afforded. Although, a writ petition was filed by some of the food
transferees, by judgment and order dated 28th October, 1991, the
Hon’ble Supreme Court had refused to interfere having regard to
the judgment delivered in the case of Krishena Kumar v. Union of
India & Ors., reported in (1990) 4 SCC 207. In course of
argument, Mr. Chattopadhyay, learned advocate representing the
Food Corporation of India had only reiterated that the office memo
dated 1st May, 1987 was not extended to the food transferees of FCI.
Insofar as the petitioner is concerned, Mr. Sinha learned advocate
representing the petitioners had contended that the judgment
delivered in the case of Food Corporation of India and Ors. v.
Ashis Kumar Ganguly & Ors., reported in (2009) 7 SCC 734
squarely covered the case of the petitioners. According to him, it
would clearly appear from the above that while on one hand, the
Central Government Food Transferees had been extended the
benefit of the Liberalized Pension Scheme who stand on the same
footing as that of the petitioners, but in the petitioners’ case, the
same had been denied. According to him, this was the clear case of
discrimination and as such the same benefit should be extended in
favour of the petitioners.
43. Having heard the learned advocates for the respective parties, I
find that the scope of consideration of the writ petition is now
confined to the issue as to whether the food transferees who were in
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service of the respondent no.1 on 1st January, 1986 had been
afforded any benefit under the Pension Scheme. Although, a further
issue was noted in the order dated 20th December, 2023 as to
whether the aforesaid office memorandum dated 1st May, 1987 had
been marked to the respondent no.1 by the Central Government for
its implementation, I find having regard to the submissions made
by the learned advocate for the added respondents, such issue is no
longer relevant, since on the basis of the disclosure made by the
learned advocate for the Central Government, the food transferees
who had been permanently absorbed in the food Corporation of
India in the year 1968, after the said Act had been enacted, were
twice given the option, first in the year 1968 and the second in the
year 1977 to switch over from Contributory Provident Fund (CPF)
Scheme to Liberalized Pension Scheme of the Central Government.
44. I, however find that by relying on the judgment delivered in the
case of Krishena Kumar (supra) it has been contended that the PF
retirees and Pension retirees do not belong to a particular class, as
such there is no discrimination. Further the PF and Pension
Scheme being structurally different and as such there could not
have been any discrimination in this regard. However, as noted in
the order dated 20th December, 2023 to reiterate, I find from the
supplementary affidavit affirmed on behalf of the respondent no.1
on 26th April, 2013 that it has been asserted that Central
Government Employees on being transferred to the respondent no.1
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had retained the existing benefits being enjoyed by them with the
Central Government including those under CCS (Pension) Rules. I,
however, notice that Section 12A(3) and (4) was substituted by Act
of 1977 with effect from 31st December 1976. Thus, only after
insertion of Section 12A(3) and (4) by way of amendment of the said
Act that the food transferees who were enjoying the benefit of CPF,
unlike the State Government deputationist, in terms of Section
12A(3) and (4) of the said Act, were made available the option to
switch over from Contributory Provident Fund (CPF) to the Pension
Scheme. The aforesaid option to switch over as admitted, was
provided twice, first in the year 1968 and again with the
amendment of section 12A of the said Act when 12A (3) and (4) were
substituted in the year 1977. In this context, to reiterate, it may be
noted that the Hon’ble Supreme Court in the case of Ashis Kumar
Ganguly & Ors. (supra) had the occasion to consider the scope of
Section 12A of the said Act, the Hon’ble Supreme Court after taking
note of the class distinction then sought to be created by providing
additional increment to the Food transferees, had noted that in the
opinion of the Hon’ble Court, it was wholly immaterial as to whether
cession of relationship of the employer and employee had taken
place by reasons of resignation or transfer as in both cases the
previous relationship had snapped. The Hon’ble Court thus, had
brushed aside the objection then raised by the respondent no.1
with regard to the terms and conditions of transfer, so far as the
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Central Government employees were concerned and the option
exercised by the deputationists, as well as the effect of Staff
Regulation 1971, and held that it is, therefore, not a case where
persons differently situated are being treated differently. In the light
of the above, I once again reiterate that the members of the
petitioner no.1 and other similarly placed deputationists cannot be
said to be differently situated from the food transferees. The legal
right of the members of the petitioner no.1 and the respondent no.4
to 69 to be treated equally and at par with food transferees has
been recognized by the Hon’ble Supreme Court in the case of Ashis
Kumar Ganguly & Ors (supra).
45. Admittedly, I find both from the report as also from the letter
dated 2nd February, 2024 that the food transferees had been twice
offered the option to switch over from Contributory Provident Fund
(CPF) Scheme to Liberalized Pension Scheme of the Central
Government. No such option was, however, afforded to the State
Government deputationists or the members of the petitioner no.1.
As noted above, both the deputationists and the food transferees
have a legal right to be treated at par and cannot be considered a
separate class. The issue that fell for consideration in the case of
Krishena Kumar (supra) was entirely different. In the said case, all
the petitioners had retired with provident fund benefits without
opting for pension under the pension scheme though such option
was made available to them. In fact, some of the petitioners in such
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case retired by opting for the provident fund scheme. Although, the
option was given to switch over in the year 1987, the same provided
for a cut-off date. The claim for switch over after retirement was
rejected in such case. The option also provided that option once
exercised, would be final. Originally in case of such employees since
the employes felt that the benefits under the CPF were considered
more or less equal they had opted accordingly. Between 1957 and
1987 the pensionary benefits were enhanced. For this the
petitioners in the above case wanted to opt for pensionary benefits
after retirement.
46. A perusal of the option afforded vide letter dated 8th May, 1987
would clarify that all persons who were in service as on 1 st January,
1986 will be deemed to have come over to pension scheme unless,
they specifically opt out of the pension scheme and desires to retain
the CPF Scheme. It was argued that the said memorandum made a
distinction between persons in service as on 1st January 1986 and
the CPF retirees. It is in that context that the Supreme Court
observed that the pension retires and provident fund retires do not
belong to the same class. The above judgment was delivered in
different set of facts, the same cannot assist the respondent no 1
and the Union of India. Such is not the case here. The members of
the petitioner no.1 / deputationists were never offered any option to
switch over, as the respondent no.1 always recognised them as a
separate class and were discriminated, which issue was addressed
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by the Hon’ble Supreme Court in the case Ashis Kumar Ganguly
& Ors (supra).
47. Once, this Court comes to a conclusion that the food transferees
are to be treated at par with the members of the petitioner no.1 and
once, the above issue stands concluded that the benefits of the
Pension Scheme which was admittedly extended to the food
transferees though, by virtue of such food transferees being treated
as directed recruits, the above benefit can no longer be denied to
the members of the petitioner no.1 and the respondent nos. 4 to 69,
since the above distinction had not been accepted by the Hon’ble
Supreme Court.
48. In the facts noted hereinabove, the writ petition stands allowed
accordingly.
49. The concerned respondents are directed to recompute the
benefits payable to the members of the petitioner no.1 who were in
service as on 1st January, 1986/respondent nos. 4 to 69 and
ascertain the amount which is refundable by the them and to
accordingly notify the same to the respective respondents nos. 4 to
69 within 8 weeks from date. The refund amount shall carry an
interest @8% from the date of disbursal in favour of the members of
the petitioner no.1, upto the date of refund. Accordingly, upon
receipt of such amount, the concerned respondents are directed to
issue Pension Payment Orders within 4 weeks from the date of
receipt of refunded amount. The Pension Payment Order shall also
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carry interest so far as arrear is concerned to the extent of 8%. The
writ petition thus, stands allowed to the above extent.
50. The connected applications, if any, including CAN 5 of 2020
accordingly also stands disposed of without any further order.
51. There shall be no order as to costs.
52. Urgent photostat certified copy of this order, if applied for, be
made available to the parties upon compliance of all necessary
formalities.
(Raja Basu Chowdhury, J.)
Later :
53. After the judgment is delivered, Mr. Chattopadhyay, learned
advocate representing the respondent no.1 prays for stay of
operation of the order, the same is considered and refused.
(Raja Basu Chowdhury, J.)