REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.      3481            OF 2009 [Arising out of SLP (Civil) No. 5163 of 2007]

Food Corp. of India & Ors. …Appellants

Versus

Ashis Kumar Ganguly & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. Food Corporation of India constituted and incorporated under the  

Food  Corporations  Act,  1964  (for  short  “the  Act”)  is  before  us  

questioning  the  correctness  of  a  judgment  and order  dated  29.11.2006  

passed by a Division Bench of the Calcutta High Court in F.M.A. No. 356  

of  2002  directing  it  to  grant  advance  increments  to  57  deputationist  

employees.

3. 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.   

4. The  Act  was  enacted  to  provide  for  the  establishment  of  Food  

Corporations for the purpose of trading in foodgrains and other foodstuffs  

and for matters connected therewith and incidental thereto.  The matter  

relating  to  recruitment  of  staff  in  the  Food  Corporation  of  India  is  

governed by Section 12 of the Act, which reads as under:

“12. Officers  and  other  employees  of  Corporation  –  (1)  The  Central  Government  shall,  after  consultation  with  the  Corporation,  

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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.”

5. In the year 1968, however, Section 12A was inserted in the Act so  

as  to  enable  the  Central  Government  to  make  an  order  directing  its  

employees to be transferred to the services of the Food Corporation of  

India.  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 but  were posted as Assistant  Grade III.  

They filed a writ petition questioning their absorption in the said grade  

contending that they were entitled to be posted as Assistant Grade II.  The  

said question came up before this Court in Food Corporation of India &  

Ors.   v.  F.C.I. Deputationists  Assocn.  & Ors. [SLP (C) No. 16416 of  

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1996] and by a judgment and order dated 29.08.1996, it was opined that  

the respondents were entitled to the post of Assistant Grade II.

6. Respondents thereafter filed a writ petition in the year 1997 inter  

alia contending that in terms of the proviso appended to Regulation 81 of  

the Food Corporation of India (Staff) Regulations, 1971 (for short “the  

Regulations”),  they were entitled to  grant  of  one additional  increment.  

The said 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

 7. The learned Additional  Solicitor  General  appearing  on behalf  of  

the appellants would contend:

(i) The High Court committed a serious error insofar as it failed  

to take into consideration that the employees deputed from the  

State of West Bengal and from the Central Government stand on  

different  footings  and  in  view  of  the  fact  that  they  formed  

different  classes,  no  discrimination  inter  se  amongst  the  said  

employees  cannot  be  held  to  have  been  committed  by  the  

appellants.

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(ii) Proviso appended to Regulation 81 of the Regulations is not  

applicable in the cases of the respondents as they were not the  

first appointees.  Such a regulation having been framed with a  

view to attract the best talent in higher posts, the same was not  

applicable to the case of the respondents.   

(iii) In any view of the matter, the said regulation providing for  

exercise of discretion on the part of the appointing authority, nor writ  

of or in the nature of mandamus could be issued.

8. Mr. Bhaskar Gupta, learned senior counsel appearing on behalf of  

the respondents, on the other hand, urged:

(i) A  rule  similar  to  Regulation  81  of  the  Regulations  was  

available even prior to framing thereof and, thus, it is incorrect  

to  say  that  such  a  benefit  was  conferred  upon  the  Central  

Government  employees  by  reason  of  a  separate  rule  as  

concededly,  the  nature  and content  of  the  job  required  to  be  

performed by the employees whether  drawn from the Central  

Government or from the State Government being the same, no  

discrimination could be caused amongst the employees similarly  

situated.   

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(ii) The  writ  petition  having  immediately  been  filed  after  the  

decision of this Court, it was not barred by delay or laches.   

 9. Upon  establishment  of  the  Food  Corporation  of  India,  several  

circular letters were issued.  The said circular letters were compiled in an  

Office Manual; Paragraph 4.70 whereof reads as under:

“4.70 Pay on first appointment  The pay of an employee on first appointment to  a post in the service of the Corporation 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 a fixed pay, such fixed  pay.

Provided that where any person appointed  to a post to which a time-scale is applicable has  been in continuous service for a period of not  less  than  2  years  in  any  Department  of  the  Central or any State Government or any Public  Sector  or  Private  Sector  Undertaking  immediately  preceding  such  appointment,  the  appointing authority may in its discretion fix the  pay at the stage in the time-scale applicable to  the pay of the post next higher than the pay last  drawn  by  him  in  such  department  or  undertaking  and  may  in  addition,  in  his  discretion, grant one advance increment.

Provided also that  in no case shall  the pay be  fixed at higher than the maximum of the time- scale.”

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10. First Appellant thereafter framed the Staff Regulations, 1971 inter  

alia laying down the terms and conditions of service of the employees.

Regulation 81 of the Regulations reads as under:

“81. Pay on first appointment: The pay of an employee on first appointment to  a post in the service of the Corporation 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 a fixed pay, such fixed  pay.

Provided that where any person appointed to a  post to which a time-scale is applicable has been  in  continuous  service  for  a  period  of  not  less  than 2 years in any Department of the Central or  any State  Government or any Public Sector or  Private  Sector  Undertaking  immediately  preceding  such  appointment,  the  appointing  authority may in its discretion fix the pay at the  stage in the time-scale applicable to the pay of  the post next higher than the pay last drawn by  him in such department or undertaking and may  in addition in his discretion, grant one advance  increment.”

11. On or about 19.11.1965,  the Food Corporation of India issued a  

circular  letter  stating that  the transferees and deputationists  were to be  

brought to the scales of pay of the Corporation as contained in Para 4.8 of  

the  Manual  with  effect  from  1.04.1965,  subject  to  the  instructions  

contained therein which inter alia are as under:

“Fixation of pay in the case of transferees

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2) Transferees  from  the  Food  Department  may either opt for the Corporation pay scales or,  if they so choose, retain their existing scales of  pay. 3)(a) In the case of transferees from the Food  Department, who have put in not less than two  years’  continuous  service  in  that  Department  and who have opted for the Corporation’s scales  of pay, pay may be fixed after giving them the  benefit of the first proviso to Regulation 70 of  the  draft  Staff  Regulations  (paragraph  5.70  of  the Manual) i.e., by allowing fixation of pay at  the stage in the time-scale applicable to the post  next  higher  than  the  pay  last  drawn  and  the  grant  of  one advance increment,  provided that  the  total  monetary  benefit  resulting  from  the  fixation  of  pay  on  the  above  basis  does  not  exceed the limits specified below:-

Corporation’s  pay  scale  ending  at  Rs.  250/- or less

..Rs. 10/-

Corporation’s  pay  scale  ending  at  Rs.  550/- or less but above Rs. 250/-

..Rs. 20/-

Corporation’s  pay  scale  ending  at  Rs.  700/- or less, but above Rs. 550/-

..Rs. 40/-

Corporation’s  pay  scale  ending  at  Rs.  1000/- or less, but above Rs. 700/-

..Rs. 60/-

Corporation’s  pay  scale  ending  at  above  Rs. 1000/-

..Rs. 75/-

(b) Where  as  a  result  of  fixation  of  pay  in  accordance  with  the  above  principles,  the  maximum  monetary  limits  mentioned  are  exceeded, pay should be fixed at the next higher  stage  than  the  pay  actually  last  drawn  by  an  employee,  without  granting  an  advance  increment, but personal pay should be allowed  to  the  extent  necessary  in  order  to  enable  the  employee to derive a total monetary benefit upto  the  maximum  limit  specified  above,  such  

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personal  pay  being  absorbed  in  future  increments,  i.e.,  the  difference  between  the  present  pay  in  the  Food  Department  plus  the  maximum  monetary  benefit  mentioned  above,  and the revised pay in the new scale (fixed at  the  next  higher  stage  without  an  advance  increment) should be allowed as personal pay to  be  absorbed  in  future  increments.   It  should,  thus, be ensured that the total monetary benefit  to an employee does not in any case exceed the  above maxima.”

12. Our  attention  has  also  been  drawn  by  the  learned  Additional  

Solicitor General to the following illustration:

“Pay in the parent  office  with  the  scale  (on  the  day  of fixation)

Scale  in  the  Corporation  to  which appointed

Stage  at  which  to  be fixed

Pay  on  next  increment  drawn  in Corporation

450/-  in  the  scale  of 350-20-450-25- 475

350-25-500-30- 620-40-700

475  +  15  P.P.  to  be  absorbed  in  future  increments  (next  stage  plus  part  of  increment,  maximum  monetary  benefit  limited to Rs. 40/-)

550/-”

13. Indisputably,  the  respondents  were  deputationists.   They  were  

absorbed in terms of a circular letter issued on 19.03.1984; the relevant  

conditions whereof read as under:

“(i) The  State  Government  employees  who  opt  for permanent  absorption in the service of  

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the Corporation will be treated as 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.”

14. Options having been exercised by the respondents pursuant thereto,  

they were appointed in the appellant – corporation.

15. Before  coming  into  force  of  the  1971  Regulations,  as  noticed  

hereinbefore,  paragraph  4.70  of  the  Manual  was  applicable.   The  

Corporation, therefore, had all along been keen to obtain the services of  

government  employees working in the Food Departments  of the States  

evidently because they did have the requisite experience.  It is not denied  

or disputed that those employees were appointed to a post to which a time  

scale was applicable.  They were in continuous service for not less than  

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two  years.   Paragraph  4.70  of  the  Manual  and  Regulation  81  of  the  

Regulations  are  attracted  both  in  the  case  of  the  Central  Government  

employees and the State Government employees.  Concededly, in the case  

of  the  Central  Government  employees,  the  said  benefit  had  been  

extended.   

16. Before the High Court, the Corporation conceded that the nature of  

duties, qualification and service conditions of both set of employees stand  

on similar footings.

17. The  deputationists  were  not  the  employees  of  the  Corporation.  

They were still on the State Cadre.  They became the employees only on  

their  absorption.   The  circular  letter  inviting  options  stated  so  in  

unmistakable terms.

18. The learned Additional Solicitor General drew our attention to the  

statements made in the rejoinder affidavit to show as to how the Central  

Government employees were different from that of the State Government  

employees.   

Only  because,  according  to  the  Corporation,  they  were  treated  

differently, in our opinion, by itself cannot be a ground not to apply the  

rules applicable to the employees of the Food Corporation of India on  

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their  absorption  in  the services  of  the Food Corporation  of  India  only  

because  they  have  been  taken  from  the  different  sources.   Different  

treatments meted out to the respondents vis-à-vis the Central Government  

employees although drawn from separate cadre, for the purpose of grant  

of  benefit  to  one  class  only,  would,  in  our  opinion,  amount  to  

discrimination.   

19. This Court,  in its  judgment and order dated 29.8.1996 passed in  

SLP (C) No.16416 of 1996 took notice of the fact that the respondents  

herein had served the Corporation for a period of 18 years on deputation  

in  the  post  of  Assistant  Grade-II.   The  learned  Additional  Solicitor  

General,  however,  contends  that  the  appellants  in  their  first  writ  

application itself should have prayed for grant of one increment.  In this  

connection, our attention has been drawn to the statements made in para  

23  of  the  writ  application  alleging  that  the  appellant  had  taken  an  

arbitrary decision to deny the advance increment to those candidates who  

had been absorbed at that point of time.   

It,  however,  appears  that  a representation  was filed by the Food  

Corporation of India Deputationists Association thereagainst on 8.1.1991.  

In  the  said  paragraph  of  the  writ  petition,  the  appellants  categorically  

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stated that  the said representation  had not  been disposed of.   The said  

allegations  had  not  been  traversed  by  the  appellants  in  their  counter  

affidavit  before the High Court.   It  was, thus,  not  contended by or on  

behalf  of  the appellant  that  a decision  one way or  the other  had been  

taken by the Corporation in that behalf so as to enable them to raise such  

a contention specifically in the earlier writ petition.   

Submission  of  the  learned  Additional  Solicitor  General  that  the  

present writ petition was barred under the principles of constructive res  

judicata and/or Order II Rule 2 of the Code of Civil Procedure was not  

raised before the  High Court.   Had such a contention  been raised,  the  

respondents  would  have  been able  to  show that  for  one reason or  the  

other and, particularly, in view of the fact that their representations in that  

behalf was still pending, the question which has been raised herein could  

not have been raised.

20. Mr.  Gupta,  in  our  opinion,  is  correct  in  his  submission  that  the  

question  of  claiming  an  additional  increment  in  terms  of  proviso  

appended to Regulation 81 of the Regulations could not have been raised  

in the earlier application as the respondents were not certain as to whether  

they would be fitted as Assistant Grade-II or Assistant Grade-III.   

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21. Strong reliance has been placed by Mr. Saran on a decision of this  

Court  in  State  of  Tamil  Nadu v.  Seshachalam [(2007)  10  SCC  137]  

wherein this Court held :

“Some  of  the  respondents  might  have  filed  representations  but  filing  of  representations  alone would not  save the period  of limitation.  Delay or latches is a relevant factor for a court  of law to determine the question as to whether  the  claim  made  by  an  applicant  deserves  consideration. Delay and/or latches on the part  of a Government servant may deprive him of the  benefit which had been given to others. Article  14 of the Constitution of India would not, in a  situation of that nature, be attracted as it is well  known that law leans in favour of those who are  alert  and  vigilant.  Opinion  of  the  High  Court  that  GOMs  No.  126  dated  29.5.1998  gave  a  fresh lease of life having regard to the legitimate  expectation, in our opinion, is based on a wrong  premise. Legitimate expectation is a part of the  principles of natural justice. No fresh right can  be  created  by  invoking  the  doctrine  of  legitimate  expectation.  By reason  thereof  only  the existing right is saved subject, of course, to  the  provisions  of  the  statute.  {See  State  of  Himachal  Pradesh  and  Anr. v.  Kailash  Chand  Mahajan and Ors. 1992 Supp.(2) SCC 351}.”

In  view  of  the  fact  that  such  a  contention  had  not  been  raised  

before the High Court and keeping in view the facts and circumstances of  

the  case,  as  noticed  hereinbefore,  we  are  of  the  opinion  that  the  

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aforementioned contention should not be permitted to be raised before us  

for the first time.

22. The question as to whether the respondents disentitled themselves  

from obtaining an equitable relief under Article 226 of the Constitution of  

India, because of delay or latches on their part must also be rejected as the  

earlier writ petition was disposed of only on 29.8.1996.  The writ petition  

having been filed in the year 1997 and the order of the Supreme Court  

having been given effect on 7.10.1996, it cannot be said that any undue  

delay  was  caused  by  the  respondents  in  filing  the  writ  petition  on  

9.9.1997.  There cannot be any doubt whatsoever that a writ of or in the  

nature of mandamus can be issued only when existence of a legal right in  

the writ petitioner and a corresponding legal duty in the respondent are  

established.   

23. Where  the  administrative  authority  is  conferred  with  a  

discretionary jurisdiction, the High Court, it was urged, ordinarily would  

not  issue  a  writ  of  mandamus.   Our  attention  in  this  behalf  has  been  

drawn to a judgment of this Court in  The State  of Madhya Pradesh v.  

G.C. Mandawar [AIR 1954 SC 493] wherein this Court in the context of  

exercise  of  discretionary  power  in  the  matter  of  grant  of  dearness  

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allowance at a particular rate under Rule 44 of the Fundamental Rules,  

opined :

“Under this provision, it is a matter of discretion  with the local Government whether it will grant  dearness allowance and if so, how much. That  being  so,  the  prayer  for  mandamus  is  clearly  misconceived,  as  that  could  be  granted  only  when there is in the applicant a right to compel  the  performance  of  some  duty  cast  on  the  opponent.  Rule  44  of  the  Fundamental  Rules  confers no right on the Government servants to  the grant of dearness allowance; it  imposes no  duty on the State to grant it. It merely confers a  power  on  the  State  of  grant  compassionate  allowance  as  its  own  discretion,  and  no  mandamus can issue to compel the exercise of  such a power. Nor, indeed, could any other writ  or direction be issued in respect of it, as there is  no  right  in  the  applicant  which  is  capable  of  being protected or enforced.”

To the similar effect is the decision of this Court in Union of India  

v.  R.  Rajeshwaran  & Anr. [(2003)  9  SCC 294]  wherein  again  in  the  

context of grant of admission in a medical college, reservation of some  

seats in some medical colleges, it was held :

“9. In  Ajit  Singh  (II) v.  State  of  Punjab this  Court held that Article 16(4) of the Constitution  confers  a  discretion  and  does  not  create  any  constitutional duty and obligation. Language of  Article  15(4)  is  identical  and  the  view  in  Comptroller  and  Auditor  General  of  India,   Gian  Prakash v.  K.S.  Jagannathan and  

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Superintending  Engineer,  Public  Health v.  Kuldeep Singh that a  mandamus  can be issued  either  to  provide  for  reservation  or  for  relaxation  is  not  correct  and  runs  counter  to  judgments of earlier Constitution Benches and,  therefore, these two judgments cannot be held to  be  laying  down  the  correct  law.  In  these  circumstances,  neither  the  respondent  in  the  present  case could have sought  for a direction  nor  the  High  Court  could  have  granted  the  same.”

The  said  decisions,  in  our  opinion,  cannot  be  said  to  have  any  

application to the facts and circumstances of the present case.  A statutory  

authority or an administrative authority must exercise its jurisdiction one  

way or the other so as to enable the employees to take recourse to such  

remedies as are available to them in law, if they are aggrieved thereby.  

The question which, however, arises for consideration is as to whether  

having  exercised  its  jurisdiction  in  favour  of  a  class  of  employees,  a  

statutory authority can deny a similar relief to another class of employees.  

In a case of  this  nature,  in  our  opinion,  the  writ  court  was entitled  to  

declare such a stand taken by the statutory authority as discriminatory on  

arriving at a finding that both the classes are entitled to the benefit of a  

statutory rule.   

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It  is  contended  that  the  deputationists  who  were  the  Central  

Government employees were transferred in terms of Section 12A of the  

Act.  We may notice sub-section (3) thereof, which reads as under :

“12.(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), (4A), (4B), (4C), (5) and (6) to  be  governed  by  the  regulations  made  by  the  Corporation  under  this  Act  as  respects  remuneration  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.   

24. 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  

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State Government cadre.   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 recruit and will be subject to the  terms and conditions as prescribed in FCI  (Staff) Regulations, 1971.”

25. If respondents, thus, were to be treated as direct recruits subject to  

the  terms  and  conditions  and  as  prescribed  in  FCI  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.  Thus, for all intent and purport, the past  

services of the Central Government employees and the State Government  

employee 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 become the  employees of  the  Corporation  

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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 2A of the  

Act or in terms of the order of absorption passed in respect of each of the  

respondents.

26. 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.   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  Central  Government  were  transferred  to  FCI on compulsory/permanent basis after  Central Government Gazette Notification,  in  accordance  with  Section  12A  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  Central  Government had no option for joining or  otherwise  in  the  FCI  on  transfer  from  RDF.   It  was  compulsory  for  them.  Whereas  there  was  no  compulsion  for  West  Bengal  Deputationists  for  their  

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absorption  in  FCI.   They had an  option  either  to  be  repatriated  to  their  parent  department.  Govt. 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  Central  Government  to  FCI,  their  parent  department  was  wound  up  except  for  existence of power with 1 or 2 officers to  settle  their  pension  cases.   Whereas  existence  of  the  parent  department  of  West  Bengal  Deputationists  i.e.  Food &  Supplies  Department,  Government  of  West  Bengal  with  manpower  was/is  all  along there.

d. The  Food  transferees  from  Central  Government  did  not  have  to  tender  any  resignation  with  their  parent  department  for  transfer  of  their  services  to  FCI.  Whereas  the  deputationists  emplopyees  had  to  resign  from  the  Department  of  Food & Supplies of West Bengal before  their absorption in FCI.

e. The  Food  transferees  from  Central  Government  enjoyed  continuity  of  their  services.   They  were  the  food  “Transferees”.  Whereas by virtue of the  option  exercised  with  FCI  by  the  Deputationists  Employees, their  status is  of a direct recruit w.e.f. 01.07.1984.

f. On joining FCI, the Food transferees from  Central  Government  did  not  get  any  gratuity  from their  parent  department  in  respect of their services rendered with the  Government  of  India.   Whereas  the  Deputationists  Employees  had  received  

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their  gratuity  and  pro-rata  pension  from  their  parent  department  for  the  services  they  rendered  with  the  Government  of  West Bengal.

g. FCI  Staff  Regulations,  1971  was  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  FCI  (Staff)  Regulations,  1971  were  in  existence.”

27. We would deal with them in seriatum.

a. The conditions of service of employees from two different sources  

can  not  be  different  only  because  they  were  recruited  from different  

sources.  In view of the fact that both the set 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 12A(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.

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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 the effect of Regulation 81, there is no force in the  

aforementioned contention.

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 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.

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g. We have noticed hereinbefore that even before coming into force  

of the FCI Staff Regulations, 1971, there existed a similar provision by  

way of paragraph 4.68 of the Mannual.  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.

28. Submission of the learned Additional Solicitor General that Article  

14 of the Constitution of India postulates a valid classification cannot be  

said to have any application in the instant case.  The High Court, in our  

opinion,  has rightly found that in the matter of grant of benefits under  

proviso  appended  to  Regulation  81,  all  the  employees  were  similarly  

situated.  In a case of this nature, legal right of the respondents emanated  

from violation of the equality clause contained in Article 14.  If they were  

otherwise similarly situated, there was absolutely no reason why having  

regard to the provisions contained in Article 39A of the Constitution of  

India, the respondents should be treated differently.   

It  is,  therefore,  not  a case where persons  differently situated are  

being  treated  differently  as  was  submitted  by  Mr.  Saran.   Equally  

meritless  is  the  plea  of  the  learned  Additional  Solicitor  General  that  

fixation of pay-scale should be left  to the expert  or employer.  Strong  

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reliance has been placed in this connection on State of Haryana & Ors. v.  

Charanjit Singh & Ors. [(2006) 9 SCC 321], wherein this Court has held :

“19. Having considered the authorities and the  submissions  we  are  of  the  view  that  the  authorities in the cases of  Jasmer Singh,  Tilak   Raj,  Orissa  University  of  Agriculture  &  Technology and  Tarun  K.  Roy lay  down  the  correct law. Undoubtedly, the doctrine of “equal  pay for equal work” is not an abstract doctrine  and is capable of being enforced in a court  of  law. But equal pay must be for equal  work of  equal  value.  The  principle  of  “equal  pay  for  equal  work”  has  no  mechanical  application  in  every  case.  Article  14  permits  reasonable  classification  based  on  qualities  or  characteristics of persons recruited and grouped  together, as against those who were left out. Of  course, the qualities or characteristics must have  a reasonable relation to the object sought to be  achieved. In service matters, merit or experience  can be a proper basis for classification for the  purposes of pay in order to promote efficiency  in  administration.  A higher  pay scale  to avoid  stagnation  or  resultant  frustration  for  lack  of  promotional  avenues  is  also  an  acceptable  reason for pay differentiation. The very fact that  the person has not gone through the process of  recruitment may itself, in certain cases, make a  difference. If the educational qualifications are  different,  then  also  the  doctrine  may have  no  application.  Even  though  persons  may  do  the  same  work,  their  quality  of  work  may  differ.  Where  persons  are  selected  by  a  Selection  Committee on the basis of merit with due regard  to seniority a higher pay scale granted to such  persons  who  are  evaluated  by  the  competent  authority cannot be challenged. A classification  

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based on difference in educational qualifications  justifies  a  difference  in  pay  scales.  A  mere  nomenclature  designating  a  person  as  say  a  carpenter or a craftsman is not enough to come  to the conclusion that he is doing the same work  as  another  carpenter  or  craftsman  in  regular  service. The quality of work which is produced  may be different  and even the nature  of  work  assigned  may  be  different.  It  is  not  just  a  comparison of physical activity. The application  of the principle of “equal pay for equal work”  requires consideration of various dimensions of  a  given  job.  The  accuracy  required  and  the  dexterity that the job may entail may differ from  job  to  job.  It  cannot  be  judged  by  the  mere  volume  of  work.  There  may  be  qualitative  difference  as  regards  reliability  and  responsibility.  Functions  may be the same but  the  responsibilities  make  a  difference.  Thus  normally the applicability of this principle must  be  left  to  be  evaluated  and  determined  by an  expert body. These are not matters where a writ  court  can  lightly  interfere.  Normally  a  party  claiming  equal  pay  for  equal  work  should  be  required to raise a dispute in this regard. In any  event, the party who claims equal pay for equal  work  has  to  make  necessary  averments  and  prove that all things are equal. Thus, before any  direction  can  be  issued  by  a  court,  the  court  must first see that there are necessary averments  and there  is  a  proof.  If  the  High Court  is,  on  basis of material placed before it, convinced that  there  was equal  work of  equal  quality and all  other relevant factors are fulfilled it may direct  payment of equal pay from the date of the filing  of the respective writ petition. In all these cases,  we  find  that  the  High  Court  has  blindly  proceeded on the basis that the doctrine of equal  pay for equal  work applies  without  examining  any relevant factors.”

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In Union of India & Ors. v. Dineshan K.K. [(2008) 1 SCC 586], it  

was stated

“16. Yet again in a recent decision in  State of   Haryana v.  Charanjit  Singh a  Bench  of  three  learned Judges, while affirming the view taken  by  this  Court  in  State  of  Haryana v.  Jasmer   Singh,  Tilak  Raj8,  Orissa  University  of   Agriculture & Technology v. Manoj K. Mohanty  and Govt. of W.B. v. Tarun K. Roy has reiterated  that the doctrine of equal pay for equal work is  not an abstract doctrine and is capable of being  enforced in a court of law. Inter alia, observing  that equal pay must be for equal work of equal  value  and  that  the  principle  of  equal  pay  for  equal work has no mathematical application in  every  case,  it  has  been  held  that  Article  14  permits  reasonable  classification  based  on  qualities or characteristics  of persons recruited  and grouped together, as against those who are  left  out.  Of  course,  the  qualities  or  characteristics  must  have a reasonable  relation  to  the  object  sought  to  be  achieved.  Enumerating a number of factors which may not  warrant application of the principle of equal pay  for equal work, it  has been held that since the  said principle requires consideration of various  dimensions  of  a  given  job,  normally  the  applicability of this principle must be left to be  evaluated and determined by an expert body and  the court should not interfere till  it  is satisfied  that the necessary material on the basis whereof  the  claim is  made is  available  on  record  with  necessary proof and that there is equal work of  equal quality and all  other  relevant  factors are  fulfilled.”

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In Haryana State Minor Irrigation Tubewells Corportion & Ors. v.  

G.S. Uppal & Ors. [(2008) 7 SCC 375]

“19. In S.B. Vohra case this Court dealing with  the fixation of pay scales of officers of the High  Court  of Delhi  (Assistant  Registrars)  held  that  the fixation of pay scales is within the exclusive  domain of the Chief Justice, subject to approval  of  President/Governor  of  the  State  and  the  matter should either be examined by an expert  body or in its absence by the Chief Justice and  the Central  or State Government should attend  to  the  suggestions  of  the  Chief  Justice  with  reasonable promptitude so as to satisfy the test  of  Article  14  of  the  Constitution  of  India.  Further,  it  was  observed  that  financial  implications  vis-à-vis  effect  of  grant  of  a  particular  scale  of  pay  may  not  always  be  a  sufficient  reason  and  differences  should  be  mutually discussed and tried to be solved.

20. In State of Haryana case this Court held that  the  High  Court  was  in  error  in  allowing  the  parity in pay scale to State Civil Secretariat PAs  with Central Secretariat PAs merely because the  designation  was  same,  without  comparing  the  nature  of  their  duties  and  responsibilities  and  qualifications  for  recruitment  and  without  considering  the  relevant  rules,  regulations  and  executive  instructions  issued  by  the  employer  and governing the cadre concerned.

21. There is no dispute nor can there be any to  the  principle  as  settled  in  the  abovecited  decisions of this Court that fixation of pay and  determination of parity in duties is the function  of the executive and the scope of judicial review  of administrative decision in this regard is very  

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limited. However, it is also equally well settled  that  the  courts  should  interfere  with  the  administrative  decisions  pertaining  to  pay  fixation  and pay parity when they find such a  decision  to  be  unreasonable,  unjust  and  prejudicial to a section of employees and taken  in  ignorance  of  material  and  relevant  factors.  (See K.T. Veerappa v. State of Karnataka)”

Such a question does not arise in this case as it has been found that  

the action on the part of the appellant is grossly arbitrary.

29. It  was  furthermore  contended  by  Mr.  Saran  that  in  the  event  a  

finding is  arrived at  that  the  Central  Government  employees had been  

given, an advance increment wrongly, similar benefit may not be granted  

to  the  respondents  on  the  premise  that  no  equality  can  be  claimed in  

illegality.  Such a case has never been made out by the appellants.  Even  

otherwise, we are of the opinion, the Central Government employees have  

rightly been given the benefit of one additional increment in terms of the  

proviso appended to Regulation 81 of the Regulations.

30. For  the  reasons  aforementioned,  there  is  no merit  in  this  appeal  

which is dismissed accordingly.  However, in the facts and circumstances  

of the case, there shall be no order as to costs.

………………………….J.

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[S.B. Sinha]

..…………………………J.  [Cyriac Joseph]

NEW DELHI; MAY 12, 2009

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