Holding

The High Court was correct in directing the grant of advance increments to the deputationist employees, as they were similarly situated and denial would breach Article 14; therefore, the appeal is dismissed.

Summary

The Food Corporation of India (FCI) appealed against a Calcutta High Court order directing it to grant advance increments to 57 deputationist employees who had been absorbed from the West Bengal State Government. The employees claimed that, under the proviso to Regulation 81 of the FCI Staff Regulations, 1971, they were entitled to an additional increment, similar to Central Government deputationists. The Supreme Court examined whether the regulation applied to the State deputationists, whether denial would violate Article 14 and the principle of equal pay for equal work, and whether the High Court could issue mandamus in a matter involving discretionary authority. It held that the employees were similarly situated, the regulation was applicable, and the High Court was correct in its direction. Consequently, the appeal was dismissed.

Issues considered

Whether the proviso to Regulation 81 of the FCI Staff Regulations, 1971 applies to State Government deputationist employees absorbed by FCI.
Whether denial of the advance increment to such employees violates Article 14 of the Constitution and the doctrine of equal pay for equal work.
Whether a writ of mandamus can be issued to compel the exercise of a discretionary power in granting the increment.
Whether the petition is barred by delay, res judicata, or constructive res judicata.
Whether the classification of Central and State deputationists as different classes is constitutionally permissible.

Legislation cited

Food Corporations Act, 1964s. 12, s. 12A

Subjects

Service lawAdvance incrementRegulation 81Equality clauseArticle 14Food Corporation of IndiaDeputationist employeesClassificationMandamusDelayRes judicata

Judgment

[2009) 8 S.C.R. 806

A FOOD CORP. OF INDIA & ORS.
v.
ASHIS KUMAR GANGULY & ORS.
(Civil Appeal No. 3481 of 2009)

MAY 12, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Service Law:

c Food Corporations Act, 1964 - Sections 12, 12AI
Regulation 81 - Grant of advance increments to deputationist
employees - Directed by the High Court - Correctness of -
Held, Correct - The High Court has rightly found that in the
matter of grant of benefits under proviso appended to
0 Regulation 81, all employees were similarly situated -
Constitution of India, Articles 14, 39A.

Food Corporation of India & Ors. v. F.C.I. Deputationists
Assocn. & Ors. SLP (C) No. 16416of1996 decided by S.C.
on 29.8.1996; State of Tamil Nadu v. Seshachalam (2007)
E 10 SCC 137; The State of Madhya Pradesh v. G.C.
Mandawar AIR 1954 SC 493; Union of India v. R.
Rajeshwaran & Anr. (2003) 9 SCC 294; State of Haryana &
Ors. v. Charanjit Singh & Ors. (2006) 9 SCC 321; Union of
-..
India & Ors. v. Dineshan K.K. (2008) 1 SCC 586 and
F Haryana State Minor Irrigation Tubewells Corporation & Ors.
v. G.S. Uppal & Ors. (2008) 7 SCC 375, referred to.
Case Law Reference :
SLP (C) No. 16416 of 1996 Referred to Para 5
G
(2007) 10 SCC 137 Referre(I to Para 21
AIR 1954 SC 493 Referred to Para 23
(2003) s sec 294 Referred to Para 23
H 806
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 807
GANGULY & ORS.

(2006) 9 sec 321 Referred to Para 28 A
(2008) 1 sec 586 Referred to Para 28
(2008) 1 sec 375 Referred to Para 28

CIVIL APPELLATE JURISDICTION : Civil Appeal No. B
3481 of 2009.
r
From the Judgment & Order dated 29.11.2006 of the High
Court of Calcutta in F.M.A. No. 356 of 2002.

A. Sharan, ASG, Suruchii Aggarnal, Amit Anand Tiwari c
and A.K. Singh, for the Appellants.

Bhaskar P. Gupta, Pijush K. Roy and G. Ramakrishna
Prasad for the Respondents.
' D
The Judgment of the Court was delivered by

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
E
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' F
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. G
' I
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
H
808 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
B
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
c 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
0 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
E 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 Ill. They filed a
F wr!t 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 1996] and by a judgment and
order dated 29.08.1996, it was opined that the respondents
G were entitled to the post of Assistant Grade II.

6. Respondents thereafter filed a writ petition in the year
1997 inter a/ia contending that in terms of the proviso
appended to Regulation 81 of the Food Corporation of India
H (Staff) Regulations, 1971 (for short "the Regulations"), they were
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 809
GANGULY & ORS. [S.B. SINHA, J.]
~

... entitled to grant of one additional increment. The said writ
petition has been allowed by a learned Single Judge of the
A

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 B
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 c
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.
D
(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 E
was not applicable to the cas~ of the respondents.

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

- T providing for exercise of discretion on the part of
the appointing authority, nor writ of or in the nature
F
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
G
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 H
810 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
B
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
c 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
D
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.

E Provided th~t 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 f ..:
Public Sector or Private Sector Undertaking immediately
F 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.
G
Provided also that in no case shall the pay be fixed at
) .
higher than the maximum of the time-scale."
10. First Appellant thereafter framed the Staff Regulations,
H 1971 inter a/ia laying down the terms and conditions of service
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 811
GANGULY & ORS. [S.8. SINHA, J.]
.,
of the employees. A

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 8
the service of the Corporation shall be fixed at the minimum
-~
9f the time scale applicable to the post to which he is
appointe(:!, or where the post is on a fixed pay, such fixed
pay.

Provided that where any person appointed to a post to
c
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 D
in its discretion fix the pay at the stage in the time-scale
applicable to th~ pay of the post next higher than the pay
last drawn Py him in such department pr undertaking and
...... may in addition in his discretion, grant one advance
-/ increment,~ E

11. On or about 19.11.1965, tht:1 Fo9g QgrJ>oration of !ndia
'r
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 F
from 1.04.1965, subject to the instructions contained therein
which inter alia are as under:

"Fixation of pay In the case of transferees

(2) Transferees from the Food Department may either opt G
_. f 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 H
812 SUPREME COURT REPORTS [2009] 8 S.C.R. \

A 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
B 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:-
c Corporation's pay scale ending at .. Rs. 10/-
Rs. 250/- or less

Corporation's pay scale ending at .. Rs. 20/-
Rs. 550/- or less but above Rs. 250/-
D
Corporation's pay scale ending at .. Rs. 40/-
Rs. 700/- or less, but above Rs. 550/-

Corporation's pay scale ending at Rs. ..Rs. 60/-
E 1000/- or less, but above Rs. 700/-
''

Corporation's pay scale ending at .. Rs. 75/-
above Rs. 1000/-

(b) Where as a result of fixation of pay in accordance with
F 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
G in order to enable the employee to derive a total monetary
benefit upto the maximum limit specified above, such
personal pay being absorbed in future increments, i.e., the
) -
difference between the present pay in the Food
Department plus the maximum monetary benefit
H mentioned above, and the revised pay in the new scale
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 813
GANGULY & ORS. [S.B. SINHA, J.]

(fixed at the next higher stage without an advance A
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."
B
12. Our attention has also been drawn by the learned
,. Additional Solicitor General to the following illustration:

"Pay in the Scale in the Stage at which Pay on next
parent office Corporation to to be fixed increment
with the which drawn in c
scale (on the appointed Corporation
day of fixation)

450/- in the 350-25-500-30- 475 + 15 P.P. 550/-"
scale of 350- 620-40-700 to be absorbed
D
20-450-25-4 75 in future
increments
(next stage
plus part of
increment,
E
maximum
monetary
benefit limited
to Rs. 40/-)

13. Indisputably, the respondents were deputationists. They F
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 the Corporation will G
be treated as direct recruit and will be subject to the terms
, I
and conditions as prescribed in FCI (Staff) Regulations,
1971.

(ii) They will count their seniority in the posU grade in which
they are absorbed from the date of absorption in the H
814 SUPREME COURT REPORTS [2009) 8 S.C.R.

A 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
B
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
C 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
D pursuant thereto, they were appointed in the appellant -
corporation.
15. Before coming into force of the 1971 Regulations, as
noticed herein before, paragraph 4. 70 of the Manual was
applicable. The Corporation, therefore, had all along been keen
E 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
F 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.
G
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
H Corporation. They were still on the State Cadre. They became
';

... FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 815
GANGULY & ORS. [S.B. SINHA, J.)
"
the employees only on their absorption. Tti_e circular letter A
,· inviting options stated so in unmistakable terms.

18. The learned Additional Solicitor General drew our
i
attention to the statements made in the rejoinder affidavit to
) show as to how the Central Government employees were B·
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 their absorption in the services of the c
Food Corporation of India only because they have been taken
... from the different sources. Different treatments meted out to the
respondents vis-a-vis the Central Government employees
i although drawn from separate cadre, for the purpose of grant
·~
of benefit to one class only, would, in our opinion, amount to D
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
E
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
F
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.

I
It, however, appears that a representation was filed by the G
... f Food Corporation of India Deputationists Association
thereagainst on 8.1.1991. In the said paragraph of the writ
~ petition, the appellants categorically stated that the said
I:.
i representation had not been disposed of. The said allegations
had not been traversed by the appellants in their counter H
816 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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.
, B
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
C 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.

D 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
E as Assistant Grade-II or Assistant Grade-Ill.

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 :

F ·"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/
G 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.
H Opinion of the High Court that GOMs No. 126 dated
-
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 817
GANGULY & ORS. (S.B. SINHA, J.]

29.5.1998 gave a fresh lease of life having regard to the A
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 B
provisions of the statute. {See State of Himachal Pradesh
and Anr. v. Kai/ash Chand MaJ:lajan and Ors. 1992
Supp.(2) sec 351}."

In view of the fact that such a contention had not been C
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 aforementioned contention should not be
permitted to be raised before us for the first time.

22. The question as to whether the respondents disentitled D
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 · E
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 F
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 G
has been drawn to a judgment of this Court in The State of
Madhya Pradesh v. G. C. Mandawar [Al R 1954 ·SC 493]
wherein this Court in the context of exercise of discretionary
power in the matter of grant of dearness allowance at a
particular rate under Rule 44 of the Fundamental Rules, opined: H
'...--

818 SUPREME COURT REPORTS [2009] 8 S.C.R.

A "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
B 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
c 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."

D 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:
E
"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
F Comptroller and Auditor General of India, Gian Prakash
v. K.S. Jagannathan and Superintending Engineer,
Public Health v. Ku/deep Singh that a mandamus can be

G
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."

H The said decisions, in our opinion, cannot be said to have
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 819
GANGULY & ORS. [S.B. SINHA, J.)
,,
any application to the facts and circumstances of the present A
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 B
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 th~ statutory authority as discriminatory on arriving at c
a finding that both the classes are entitled to the benefit of a
statutory rule.

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 D
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 E
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),
(48), (4C}, (5) and (6) to be governed by the regulations
made by the Corporation under this Act as respects F
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 1 G
~ ).
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. H
820 SUPREME COURT REPORTS [2009) 8 S.C.R.

A 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 State Government cadre.
Incidentally, we may notice that even in the circular letter dated
19.3.1984, it was categorically stated:
B
'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
C 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
0 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
E 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
F 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 only upon their
absorptions. Furthermore in the cases of both the Central
G Government employees as also the State Government
employees, common regulation would bind them since their , i..

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.
H
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 821
GANGULY & ORS. [S.B. SINHA, J.]
I

26. Submission of the learned Additional Solicitor General A
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: B

"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 C
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 D
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 absorption in FCI. They had
an option either to be repatriated to their parent E
department. Govt. of West Bengal or to be inducted
in FCI as per FCI, HQ circular No.21of19.3.1984.

r c. After the trahsfer of the services of the Food
transferees from Central Government to FCI, their F
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
departme:nt of West Bengal Deputationists i.e.
Food & Supplies Department, Government of West
Bengal with manpower was/is all along there. G

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 H
822 SUPREME COURT REPORTS (2009] 8 S.C.R

A 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
B 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
c 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
D 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
E
absorption of the Deputationist Employees in FCI,
the FCI (Staff) Regulations, 1971 were in existence."

27. We would deal with them in seriatum. ~

F 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
G 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)
H thereof would come into play. Applicability of a rule would
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 823
GANGULY & ORS. [S.B. SINHA, J.]
not depend upon the question as to whether the A
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
B
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.
c
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.
D
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.
E
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 F
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 FCI Staff Regulations, 1971, there existed G
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.
H
824 SUPREME COURT REPORTS [2009) 8 S.C.R.

A 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
B to Regulation 81, ~II the employees were similarly situated. In
a case of this nature, le.gal right of the respondents emanated
from violation of the E:lquality 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
C 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
D 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 :

E "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 .
F 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
G
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
H
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 825
GANGULY & ORS. [S.B. SINHA, J.]
, promote efficiency in administration. A higher pay scale A
to avoid stagnation or resultant frustration for lack of
. promotional avenues is C!lso an ;:icceptable 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 B
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 c
such persons who are evaluated by the competent
authority cannot be challenged. A classification 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 D
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
E
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 F
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 G
~
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 H
826 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
B 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
c
"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
D Agriculture & Technology v. Manoj .K. Mohanty and Govt.
of WB. 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 a/ia,
observing that equal pay must be for equal work of equal
E 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.
F 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,
G
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
H
FOOD CORP. OF INDIA & ORS. v. ASHIS KUMAR 827
GANGULY & ORS. [S.B. SINHA, J.]
,
equal work of equal quality and all other relevant factors A
are fulfilled. n

In Haryana State Minor lnigation Tl!bewells Corporation
& Ors. v. G.S. Uppal & Ors. [(2008) 7 SCC 375]'
11
19. In S.S. Vohra case this Court dealing with the fixation a
of pay s_cales of officers of the High Court of Pelhi
(Assistant Registrars) held that the fixation of pay scales
is within the exclusive domain of the Chief Justice, supject
to approval of President/Governor of the State: and the
matter should either be examined by an expert body ot in c
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-a-vis effect of grant D
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
E
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 F
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 G
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 limited.
However, it is also equally well settled that the courts
should interfere with the administrative decisions H
828 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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)"
B
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 furthArmore contended by Mr. Saran that in the
C 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
D 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.

E 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.

G.N. Appeal dismissed.

•.