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
with
CAN 5 of 2020
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 2 WPA 19056 of 2011 with CAN 5 of 2020 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 4 WPA 19056 of 2011 with CAN 5 of 2020 a direct recruit and will be subject to the terms and 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 5 WPA 19056 of 2011 with CAN 5 of 2020 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. 6
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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 7 WPA 19056 of 2011 with CAN 5 of 2020 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. 8
WPA 19056 of 2011 with CAN 5 of 2020 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 9 WPA 19056 of 2011 with CAN 5 of 2020 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 10 WPA 19056 of 2011 with CAN 5 of 2020 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 11 WPA 19056 of 2011 with CAN 5 of 2020 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 12 WPA 19056 of 2011 with CAN 5 of 2020 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 13 WPA 19056 of 2011 with CAN 5 of 2020 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 14 WPA 19056 of 2011 with CAN 5 of 2020 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 15 WPA 19056 of 2011 with CAN 5 of 2020 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 16 WPA 19056 of 2011 with CAN 5 of 2020 and other conditions of service including pension, leave and 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 17 WPA 19056 of 2011 with CAN 5 of 2020 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 18 WPA 19056 of 2011 with CAN 5 of 2020 absorption in FCI. They had an option either to be 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 21 WPA 19056 of 2011 with CAN 5 of 2020 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. 22
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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, 23 WPA 19056 of 2011 with CAN 5 of 2020 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 24 WPA 19056 of 2011 with CAN 5 of 2020 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 25 WPA 19056 of 2011 with CAN 5 of 2020 Pension 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. 26
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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. 27
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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 28 WPA 19056 of 2011 with CAN 5 of 2020 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 29 WPA 19056 of 2011 with CAN 5 of 2020 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 30 WPA 19056 of 2011 with CAN 5 of 2020 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 31 WPA 19056 of 2011 with CAN 5 of 2020 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 32 WPA 19056 of 2011 with CAN 5 of 2020 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 33 WPA 19056 of 2011 with CAN 5 of 2020 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 34 WPA 19056 of 2011 with CAN 5 of 2020 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 35 WPA 19056 of 2011 with CAN 5 of 2020 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.)