AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2009 (5) TMI 1022
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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, 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. (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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able. 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 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 Govern....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll 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. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le 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 Superintending Engineer, Public Health v. Kuldeep Singh that a mandamus can be issued either to provide for reservation or for relaxation is no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nied to the employees who were deputed to the Corporation from the 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 employ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 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 doc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hould 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." 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....