2009 Supreme(SC) 1060

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE MR. JUSTICE CYRIAC JOSEPH
Food Corp. of India & Others
Versus
Ashis Kumar Ganguly & Others
CIVIL APPEAL NO. 3481 OF 2009 [Arising out of SLP (Civil) No. 5163 of 2007]
Decided on : 12-05-2009

IMPORTANT POINTS
Employees from Central Government joining FCI on transfer and getting absorbed and employees joining FCI on deputation form State Government and getting absorbed belong to same class. One cannot be discriminated from the other.
Writ of mandamus can be issued if the Administrative Authority uses its discretion in different ways for different employees.

Headnote:(a) Food Corporation of India (Staff) Regulations, 1971 – Regulation 81 r/w paragraph 4.70 of Office Manual – Appellant Corporation always being keen to obtain services of government employees – Respondents having been in service for not less than two years in their parent department and appointed to a time scale in FCI – Central Government employees absorbed in FCI given benefits of Regulation 81 – Nature of duties, qualification and service conditions of both set of employees standing on similar footing – Regulation 81 and paragraph 4.70 applies. (Para 15, 16)

       SLP (C) No. 16416 of 1996 – Referred

       (b) Service law – Appointment on deputation – Employees drawn from two different sources – Differential treatment – Amounts to discrimination – Constitution of India – Article 14. (Para 18)

       (c) Administration of Justice – Judicial propriety – Issue of one advance increment – Not raised in earlier writ petition – Respondents’ representation being pending at relevant time, there was no occasion to raise the issue before High Court – No infirmity. (Para 19)

       (d) Code of Civil Procedure, 1908 – Section 11 and Order II Rule 2 – Res judicata – Contention not raised before High Court – Cannot be raised before Supreme Court. (Para 19)

       (2007) 10 SCC 137 – Referred

       (e) Constitution of India – Article 226 – Delay and latches – Writ of mandamus can only be issued on establishment of legal right in the petitioner and corresponding legal duty in respondent – Earlier writ petition disposed of finally be Supreme Court in October 1996 – Instant writ petition filed in September 1997 – No undue delay. (Para 22)

       (f) Constitution of India – Article 226 – Discretion exercised by Administrative authorities – Whether mandamus can be issued – If the Administrative Authority uses its discretion in different ways for different employees – Court will be right in issuing writ of mandamus. (Para 22)

       AIR 1954 SC 493; (2003) 9 SCC 294 – Distinguished

       (g) Food Corporations Act, 1964 – Section 12A r/w Regulation 81, FCI Staff Regulations, 1971 – Conditions of service of employees from two different sources cannot be different only because they were recruited from different sources – Regulation 81 applies only on absorption – Question whether the employee had an option to get repatriated or not is irrelevant – Central Government employees transferred to Corporation and later absorbed – State Government employees joining FCI on deputation and getting absorbed – Both belong to the same class – cannot be treated differently – Constitution of India – Article 14 and 39A. (Para 25, 26, 27, 28)

       (2006) 9 SCC 321; (2008) 1 SCC 586; (2008) 7 SCC 375 – Distinguished

       Facts of the case:

       The services of the employees of the Food Department of the Central Government as also the State Government were initially taken for running the affairs of the Corporation. Respondents before us were employees of the State of West Bengal. They were on deputation to the Food Corporation of India from several States.

       Those employees who had been working as deputationists from the Central Government were absorbed. They admittedly were given one extra increment purported to be on the basis of a circular letter issued in this behalf. In the year 1984, an option was given to the respondents herein for being absorbed in the Food Corporation of India upon tendering resignation in their parent cadre; pursuant to or in furtherance whereof the respondents herein opted to join the Food Corporation of India. They were so absorbed and posted to the post of Assistant Grade II.

       Respondents thereafter filed a writ petition in the year 1997 claiming grant of one additional increment. This writ petition has been allowed by a learned Single Judge of the Calcutta High Court and affirmed by the Division Bench thereof on an intra-court appeal filed by the appellants herein.

       Finding of the Court:

       Deputationists from State Government are entitled to same benefits as transferees from Central Government.

       Result:

       Appeal dismissed.