Food Corporation of India Vs. Laxmi Narain - Court Judgment

Excerpt:
letters patent appeal--re-employment--ex-servicemen--army personnel--re-employed by fci-staff regulation and policy decision of fci--representation for fixation of seniority taking into account of military service--fci rejected request--writ petition allowed--appeal against--allowed--constitution of india, 1950, a. 14. - - 11. it was further submitted by the learned counsel for the appellant that regulation 85 of the staff regulations clearly prescribes the method for pay fixation on re-employment which benefit was given by the fci to the respondents on their re-employment. since the benefit of fixation of pay is prescribed under the rules but any other benefit like seniority on re-employment cannot be given because the same has specifically not been provided under the rules. regulation.....orderdalveer bhandari, j.1. by this judgment we propose to dispose of aforementioned appeals arising out of the judgment dated 31.3.1998 passed by the learned single judge of this court. the controversy involved in all these appeals is of identical nature. thereforee, we proceed to dispose of these appeals by this judgment. 2. the relevant facts which are necessary to decide these appeals are as under:-3. the respondents in the aforesaid lpas are ex-servicemen. after completing their tenure, they were released from service and, thereafter, they were re-employed by the food corporation of india (for short hereinafter referred to as fci). the fci is a body created under a statute, namely, the food corporation act, 1964 and the service under the fci is governed by the staff regulations and.....

Judgment:
ORDER

Dalveer Bhandari, J.

1. By this judgment we propose to dispose of aforementioned appeals arising out of the judgment dated 31.3.1998 passed by the learned Single Judge of this Court. The controversy involved in all these appeals is of identical nature. thereforee, we proceed to dispose of these appeals by this judgment.

2. The relevant facts which are necessary to decide these appeals are as under:-

3. The respondents in the aforesaid LPAs are ex-servicemen. After completing their tenure, they were released from service and, thereafter, they were re-employed by the Food Corporation of India (for short hereinafter referred to as FCI). The FCI is a body created under a statute, namely, the Food Corporation Act, 1964 and the service under the FCI is governed by the Staff Regulations and other policy decisions framed by the FCI.

4. Rule 85 of the Staff Regulations lays down that the pay of such employees shall be regulated in accordance with the principle applicable to similar appointments in the civil departments of the Central Government. It was submitted by Mr. Ajit Pudussery, learned counsel for the FCI, that there is no provision in the rules or regulations for grant of seniority for re-employed personnel in category III/IV posts on the basis of service rendered by them prior to their employment in the FCI.

5. The respondents are working in the category III post in the FCI. The respondents after re-employment made representations that their seniority may be fixed taking into account the military service rendered by them. The FCI rejected their representations. Thereafter, the respondents filed writ petitions before this Court. The writ petitions were allowed on the strength of the judgment of the Karnataka High Court delivered in Civil Writ Petition No. 7695 of 1976 K.P. Thomas vs. Union of India on 31.1.1977.

6. The appellant FCI is aggrieved by the judgment of the learned Single Judge and preferred these appeals against the said judgment.

7. Learned counsel appearing for the appellant submitted that the learned Single Judge erred in holding that the circulars issued by the Government of India would have application in the matter of fixation of seniority of re-employed by the FCI. Learned Single Judge relied on circular dated 4.12.1959. The said circular reads as under:-

No.13034/D(Appts)

Government of India

Ministry of defense

New Delhi, 4.12.1959

MEMORANDUM

Subject : Seniority.

In amplification of the provisions of Army Instructions 241/50 and corresponding orders decided in consultation with the Ministry of Home Affairs that in determining the seniority of Govt. servants on appointment in civil posts, benefits of all previous service rendered in the same or equivalent posts (including service rendered in the same or equivalent posts including service rendered in combatant capacity) should be given and for this purpose the post should be treated as equivalent if the nature and duties attached to them are similar, irrespective of the rate of pay drawn in the previous posts.

sd/-

Brij Raj Bahadur

Under Secretary to the Govt, of India

8. It was submitted by the learned counsel for the appellant that the aforesaid circular cannot be made applicable to the respondents. This circular deals with the fixation of pay and seniority of re-employed persons to 'civil posts' and the same cannot be applied where re-employment is not to the 'civil posts'. It was also urged that the conditions of service being entirely different between the Government and the FCI, the benefits granted to the holders of 'civil posts' in the Government cannot by analogy be granted to the employees of FCI.

9. Learned counsel for the appellant has drawn our attention to Section 12(3) of Food Corporation Act,1964. The said Section 12(3) reads as under:-

'(3) The methods of appointment, the conditions of service and the scales of pay of the officers and other employees of the Corporation shall -

(a) as respects the Secretary, be such as may be prescribed;

(b) as respects the other officers and employees, be such as may be determined by regulations made by the Corporation under this Act.'

10. It was submitted by the counsel for the appellant that in view of the statutory prescription regarding the conditions of service and scale of pay the same has to be determined through regulations made by the FCI. The respondents cannot be granted benefit by following the circular issued by the Government of India. It was also urged on behalf of the appellant that the conditions of service being totally different in the Government and the Corporation, no benefit other than what has been specifically sanctioned by the FCI, can be granted to its employees.

11. It was further submitted by the learned counsel for the appellant that Regulation 85 of the Staff Regulations clearly prescribes the method for pay fixation on re-employment which benefit was given by the FCI to the respondents on their re-employment. Since the benefit of fixation of pay is prescribed under the rules but any other benefit like seniority on re-employment cannot be given because the same has specifically not been provided under the rules.

12. Learned counsel for the appellant contended that the learned Single Judge has wrongly based the entire impugned judgment on the aforementioned judgment of the Karnataka High Court. The learned Single Judge also erroneously proceeded on the basis that the FCI was a party before the Karnataka High Court. The judgment of the learned Single Judge proceeds on the basis that all submissions of the appellant FCI were considered and rejected by the Karnataka High Court. The learned Single Judge also observed that since no appeal has been filed against the said judgment of the Karnataka High Court, the same has become final and binding on the FCI. According to the appellant FCI, it is factually incorrect. The FCI was not a party before the Karnataka High Court in the said petition filed by K.P. Thomas. As a matter of fact, after the judgment was delivered by the learned Single Judge on 31.3.1998, the appellant moved C.M. No. 5807 of 1998 praying the learned Single Judge to correct the error which has crept in the impugned judgment. The learned Single Judge on 29.5.1998 has allowed the application and observed that 'I have perused the judgment of the High Court of Karnataka. FCI was not a party to that judgment. thereforee, that portion in para 8 in which FCI was a party shall stand deleted.'

13. Learned counsel for the appellants submitted that it was not merely a clerical error which was required to be corrected, but the entire judgment ought to have been reviewed by the learned Single Judge because the impugned judgment has been decided on the strength of the said judgment of the Karnataka High Court. The FCI was not aware of that judgment because it was not a party to that judgment and consequently it is not bound by that decision.

14. Learned counsel for the appellant also submitted that even on facts the Karnataka High Court judgment cannot be made applicable to the facts of this case. The post held by the petitioner in the said judgment before the Karnataka High Court was a 'civil post', whereas, the respondents were not appointed on 'civil posts' in the FCI. thereforee, the Karnataka judgment has no relevance for the respondents. Learned counsel for the appellant submitted that the ratio of the judgment of the learned Single Judge would lead to a situation that the employees of the FCI can claim all the benefits granted to the employees of the Central Government, if there is no specific provision denying employees of the FCI can claim pension similar to the pension granted to the Central Government employees or the benefits of dearness allowance or the benefit of the Central Government Health Scheme or housing as available to the employees of the Central Government.

15. Learned counsel for the appellant submitted that unless the benefit of counting of seniority is specifically granted by the FCI by amending its staff regulations or by issue of some circular for this purpose, the same cannot be made available to the employees.

16. Learned counsel for the appellant placed reliance on the Constitution Bench judgment of the Supreme Court in the case of State of Assam and others vs . Shri Kanak Chandra Dutta : (1968)ILLJ288SC . The Supreme Court observed that there is no formal definition of 'post' and 'civil post'. A 'civil post' is distinguished in Article 310 from a post connected with defense; it is a post on civil as distinguished from the defense side of the administration, an employment in a civil capacity under the Union or a State. The Court observed that a person holding a post under a State is a person serving or employed under the State. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remunerations. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. The Court further observed that in the context of Articles 309, 310, and 311, a post denotes and office. A person who holds a 'civil post' under a state holds 'office' during the pleasure of the Governor of the state, except as expressly provided by the Constitution. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and int emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.

17. On the strength of the aforesaid observations of the Constitution Bench of the Supreme Court the learned counsel for the appellant submitted that the respondents are not holders of 'civil posts'. It was submitted by the counsel for the appellant that 'civil posts' are under the control of the Centre or the State Governments and not under the public undertakings. In other words the holders of posts in public undertaking are not the holders of 'civil posts'. In this view of the matter, the judgment of the Karnataka High Court has no application whatsoever as far as this case is concerned and the instant case could not be decided on the basis of the said judgment.

18. It is submitted by the appellant that all the cases in which the benefit of counting of seniority was granted, are cases of FCO and SSCO recruited during the national emergency for whom there is a definite policy to grant benefit. Other categories of army personnel are not entitled to the benefit according to the law.

19. It is also submitted by the learned counsel for the appellant that the judgment of the learned Single Judge was erroneous but in law and facts, and granting the benefit of seniority to the respondents would mean that the seniority of the respondents which was fixed on their employment in 1975-76 would have to be refixed from the back date taking into account their army service of 10 to 15 years. This would amount to unsettling the seniority in the FCI.

20. Learned counsel appearing for the respondents, Ms. Maninder Acharya, on the other hand submitted that these respondents are entitle to the seniority benefit after counting their military service and they are also entitled to the benefit of pensionary scheme on retirement. Learned counsel for the respondents also submitted that the aforesaid circular issued by the Government of India is equally applicable to the respondents.

21. During the pendency of the appeals, the learned counsel for the respondents, Ms. Maninder Acharya, filed an application to bring additional facts on record and submitted that the benefit which has been given in the case of C.W.P. No. 761 of 1998 Darshan Singh vs. FCI (decided by the Punjab and Haryana High Court, the same benefit be granted to the respondents in these appeals, In reply, it was submitted that the same benefits cannot be given to the respondents in these because in the writ petition before the Punjab & Haryana High Court, the FCI did not file reply to the writ petition in spite of repeated opportunities and averments incorporated in the writ petition were not controverter by the FCI. It is also mentioned that after judgment was delivered on 9.12.1998, the petitioner Darshan Singh Cheema expired on 31.1.1999. The claim of the petitioner in that petition was for refixation of seniority on employment in the FCI taking into account the army service rendered by him. After his expiry there was no need to unsettle the settle seniority lists. Thus, in order not to embroil the legal representatives of the deceased employee in further litigation a decision was taken at the level of the Managing Director not to take further proceedings because it was an isolated case and the matter not being decided on merits would not have any precedential value. It is also mentioned in the affidavit that the Managing Director did not file a Special leave Petition and had desired that the responsibility of the officers may be fixed in the matter because the counter affidavit was not filed before the Punjab & Haryana High Court. On the basis of the said decision steps were taken and major penalty proceedings were initiated against several officials. thereforee, the Punjab and Haryana High Court's judgment also cannot be used as a precedent in this case.

22. We have heard learned counsel appearing for the appellant end the respondents at length. We have carefully examined the circulars, judgments of Karnataka and Punjab & Haryana High Courts. The judgment of the Karnataka High Court delivered in K.P. Thomas vs. Union of India (Supra) cannot come to the rescue of the respondents. The Food Corporation of India was not a party before the Karnataka High Court and consequently the point of view of the FCI is not reflected in the judgment. The said judgment cannot be binding on the FCI in consonance with the principles of equity, justice and fair play. Similarly, the aforesaid circular dated 4.12.1959 issued by the Ministry of defense cannot ipso facto be made applicable to the FCI. The FCI has its own Staff Regulations dealing with the conditions of service, scale of pay and the employees of the FCI are governed by those Staff Regulations. Thus the respondents are not entitled to the benefits flowing from the said circular issued by the Government of India Neither the said circular was made applicable to the F.C.I. by the Union of India nor it was ever adopted by the F.C.I.

23. On re-employment when the respondents joined the FCI they knew that they would be governed by the Staff Regulations of the FCI. Regulation 85 of the Staff Regulations clearly prescribes the method for pay fixation on re-employment; which benefits shall be given by the FCI to the respondents on their re-employment. Since the benefit of fixation of pay is prescribed under the rules, they cannot be given any other benefit like seniority on re-employment because the same has specifically not been provided under the staff Regulations.

24. Learned Single Judge has passed the impugned judgment on the strength of the judgment of the Karnataka High Court. Learned Single Judge erroneously proceeded on the basis that the FCI was a party before the Karnataka High Court, thereforee, he directed that the benefits given to the petitioner in the Karnataka High Court should also be made available to the respondents herein (who were the petitioners before the learned Single Judge). In fact, after the judgment was delivered, the appellant filed an application for making necessary correction in the judgment, the learned Single Judge allowed the application by order dated 29.5.1998 and the court directed that the portion in para 8 'in which FCI was a party' shall stand deleted from the judgment.

25. Learned counsel for the appellant submitted that it was not only a clerical error which has crept in, in the impugned judgment of the Single Judge but the entire judgment proceeded on the basis that the FCI was a party. In this view of the matter, the Learned Single Judge ought to have reviewed his entire judgment.

26. The judgment of the Karnataka High Court cannot be made applicable to this case for another reason also because facts of both the cases are not similar. The petitioner in the Karnataka High Court case was a holder of a 'civil post' whereas, the respondents in these appeals are not holders of 'civil post' because they are employees of a public undertaking, i.e., the Food Corporation of India and not the holders of 'civil posts' under the Centre or the State governments.

27. The Constitution Bench of the Supreme Court in Kanak Chand Dutta (supra) observed that a person holding a post under a state is a person serving or employed under the State. There is relationship of master and servant between the state and a person holding a post under it. A person who holds a 'civil post' under a State holds 'office' during the pleasure of the Governor of the State, except as expressly provided by the Constitution. The Constitution Bench observed that a post under the state is an office or a position to which duties in connection with the affairs of the State is an office or a position to which duties in connection with the affairs of the state are attached, and office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. The court also observed that Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasizes the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post.

The post under the State means a post under the administrative control of the state.

28. In Purshottam Lal Dhingra vs . Union of India : (1958)ILLJ544SC it was observed that the doctrine of pleasure codified in Article 311 (1) is a legacy of the English. It means that a servant of the Crown holds office during the pleasure of the sovereign. In order to protect civil servants against the political interference Article 311 introduces certain safeguards. The holder of the post under the Union of the State enjoys the constitutional protection under Article 311, which reads as under:

311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. - (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

[Provided ......]

(3) ......

29. Holders of the 'civil posts' under the Union or the State enjoy the constitutional protection under Article 311 of the Constitution. Similar protection is not enjoyed by the respondents because they are not the holders of the 'civil posts'.

30. In Suprasad Mukherjee vs . State Bank of India and another : (1961)IILLJ736Cal Calcutta High Court had occasion to examine this question. The court observed that the petitioner who was an employee of the State Bank of India is not a civil servant under the State or the Union but is an employee of a limited company incorporated under a special statute and he is not entitled for protection under Article 311 of the Constitution. In this case reliance has been placed on the judgment of Patna High Court in Subodh Ranjan Ghosh vs . Sindri Fertilisers and Chemicals Limited and Another : (1957)IILLJ686Pat in which it was held that the employee of the Sindri Fertilisers and Chemicals Limited Company is a separate legal entity, has separate legal existence and is a different person altogether, from the subscribers to the memorandum, namely, the President or the Secretary to the Government of India, and that in the eye of the law it is not the agent of the Union Government or trustee for them, and thereforee, Articles 311 & 320 of the Constitution of India have no application to the case of the servants of that company. The court consequently held that the employees of the Sindri Fertilizers and Chemicals Limited Company are not the employee of Central or the State Government.

31. In Ram Babu Rathaur vs . Divisional Manager, Life Insurance Corporation of India and others : AIR1961All502 the court held that the Life Insurance Corporation of India not being a department of Government but an autonomous body, the provisions of Article 311 of the Constitution of India would not be applicable to this case. The employees of the Life Insurance Corporation are governed by the statutory provisions.

32. The Full Bench of the Allahabad High Court in Mohammad Ahmad Kidwai vs . Chairman, Improvement Trust, Lucknow : (1958)IILLJ281All held that an employee of the Improvement Trust constituted under the U.P. Town Improvement Act did not hold a civil post under the State nor did he belong to a civil service of the crown.

33. The Division Bench of Punjab High Court in Mangal Sain vs . The State of Punjab and another held that the employees of the legal bodies, departments are not holders of civil posts and Article 311 of the Constitution has no application. The court held that the expression, 'civil post under a State' does not include the post held by persons in the service of any local authority within the territory of the States. An executive officer appointed under the Punjab Municipal (Executive Officer) Act, 1931 does not hold a civil post under a State within the meaning of Article 311 although the Government may have a hand in the appointment or dismissal under the provisions of sub-sections (7) and (9) of Section 3 of the Act.

34. On careful analysis of aforesaid judgments it can be safely concluded that the respondents in these appeals, who are working with the FCI do not hold 'civil post' either in the Centre or the State Governments and consequently they are not entitled to the protection of Article 311 of the Constitution. In this view of the matter, the judgment of the Karnataka High Court in the case of K.P. Thomas (supra) could not have been made applicable in the instant case by the learned Single Judge.

35. The detailed reasons and peculiar circumstances have been enumerated in the preceding paragraphs in which the judgment of Punjab and Haryana High Court was made applicable in the case of Darshan Singh (supra). The said judgment in Darshan Singh's case is of no avail to the respondents and cannot be made applicable to them.

36. The respondents also assailed the order of the FCI rejecting their representations on the ground of violating Article 14 of the Constitution of India. The cases in which the benefit of counting of past military service was granted are the cases of ECO's & SSCO's recruited during the national emergency for whom there was a definite policy to grant them benefit. Other categories of army personnel were not given similar benefit and consequently they are not entitled to the benefit.

37. According to the judgment of the Supreme Court, the respondents cannot successfully maintain the petition on the ground of violation of Article 14 of the Constitution of India. The Supreme Court in the case of Ram Janam Singh vs . State of U.P. and Another in : (1994)ILLJ901SC observed that preferential treatment given to person who had been commissioned between 1.11.1962 to 10.1.1968 and again on or after 3.12.1971 is based on the fact that such person were commissioned when nation faced foreign aggression and the cry of the time was to save its honour. If such person have been treated as a separate class for extending any benefit in the matter of seniority, none can make any grievance and the classification can be upheld on the touchstone of Article 14 and 16 of the Constitution.

38. The Hon'ble Supreme Court in another case titled Union of India & Ors. vs . Dr. S.Krishna Murthy & Ors. : (1989)4SCC689 held that ECOs and SSCOs formed a definite class, distinct from the respondent officers recruited from the State services or other officers of IFS and IPS. Thus the classification of ECOs and SSCOs is founded on an intelligible differentia. This classification cannot be challenged on the ground of violation of Article 14 of the Constitution.

39. Similarly in All India Ex-emergency Commissioned Officers' and Short Commissioned Officers' Welfare Association & Another vs . Union of India & Another reported as the Supreme Court observed that in fact a policy decision was taken to give some benefit to those servicemen who had stood with the people when the country was invaded and had rendered useful service during the emergency in question.

40. On consideration of the totality of facts and circumstances, we are of the considered opinion that benefit given to the petitioners in the judgments of Karnataka and Punjab & Haryana High Court cannot be extended to the respondents herein because of the aforesaid reasons. Both these judgments were delivered on the peculiar facts and circumstances of those cases. thereforee, law laid down in these cases cannot be made applicable to the respondents in these appeals.

41. Consequently, the appeals filed by the Food Corporation of India are allowed and the miscellaneous applications are accordingly disposed of, but we direct the parties to bear their own costs.