SREEKUMAR V. THAMPY, V. UNION OF INDIA,

WA/655/2023

AI Insights

The case revolves around Sreekumar V. Thampy, an employee who was initially part of the Ministry of Food Processing Industries and later transferred to the Food Safety and Standards Authority of India (FSSAI) under the provisions of the Food Safety and Standards Act, 2006. The petitioner challenged the application of Rule 37A of the CCS Pension Rules, 1972, which was applied during his repatriation to his parent office, arguing that it contradicted the protections offered under Section 90 of the FSS Act. The court examined the provisions of the FSS Act and the CCS Pension Rules, ultimately deciding that the specific provisions of the FSS Act should prevail, thus modifying the application of Rule 37A(6) in the petitioner's case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 687159 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 07-11-2023
• Assessment Year: misc
• Laws Referred To: Food Safety and Standards (FSS) Act, 2006, CCS Pension Rules, 1965
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: SANTHAN NAIR; MANU
• Assessee Lawyers: JOHN PAUL
• Keywords: Delay and latches; Service Conditions; Deemed deputation; Option exercise; Repatiation
• Section: 90; 4; 37-B; 37A

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 7TH DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 WA NO. 655 OF 2023 AGAINST THE JUDGMENT IN WP(C) 17968/2019 OF HIGH COURT OF KERALA APPELLANT/PETITIONER: SREEKUMAR V. THAMPY, INSPECTOR OF INCOME TAX, RESIDING AT VATTAKKUNNEL HOUSE, N S H MOUNT P O., KOTTAYAM- KERALA., PIN - 686006 BY ADV JOHN T.PAUL RESPONDENT/RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH & FAMILY WELFARE, ROOM NO.156-A, NIRMAN BHAVAN, NEW DELHI, PIN - 110002 2 THE SECRETARY, MINISTRY OF FOOD PROCESSING INDUSTRIES, PANCHSHEEL BHAWAN, AUGUST KRANTI MARG, KHELGAON, NEW DELHI ., PIN - 110049 3 CHIEF EXECUTIVE OFFICER, FSSAI, 3RD & 4TH FLOOR, FDA BHAVAN, NEAR BAL BHAVAN, KOTLA ROAD, NEW DELHI, PIN - 110002 4 DY DIRECTOR (E &A), FSSAI, 3RD & 4TH FLOOR, FDA BHAVAN, NEAR BAL BHAVAN, KOTLA ROAD, NEW DELHI, PIN - 110002 5 THE DIRECTOR, DEPARTMENT OF EXPENDITURE, MINISTRY OF FINANCE, 'E' BLOCK, CENTRAL SECRETARIAT, NEW DELHI, PIN - 110001 6 THE DEPUTY LEGAL ADVISOR, DEPARTMENT OF LEGAL AFFAIRS, MINISTRY OF LAW AND JUSTICE, 'A' WING, SHASTRI BHAVAN, NEW DELHI, PIN - 110001 WA NO. 655 OF 2023 2 7 THE DIRECTOR DIRECTORATE OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI, PIN - 110001 8 THE PRINCIPAL DIRECTOR OF INCOME TAX, INCOME TAX DEPARTMENT, 3RD FLOOR, AYABHANGI PINNACLE, VYTTILA, ERNAKULAM, KERALA, PIN - 682020 BY ADVS. DEPUTY SOLICITOR GENERAL OF INDIA SANTHAN V.NAIR MANU S. DSG OF INDIA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 655 OF 2023 3 JUDGMENT Amit Rawal, J. 1. Petitioner had sought indulgence of this Court while filing a writ petition by laying challenge to Exts.P7, P12, P13, P18, P19 and P22. The writ petition has without advertence on merits been dismissed on the ground of delay and latches. 2. The case set out by the petitioner in the writ petition was that he was appointed on 14.1.2000 in the post of Junior Inspecting Officer (Group B Gazetted) under the Directorate of Fruit and Vegetable Preservation, Ministry of Food Processing Industries (MoFPI). The aforementioned joining was on the basis of selection through UPSC. With effect from 30.1.2008 was promoted to the hierarchical post of Senior Inspecting Officer, (Group A gazetted) on ad-hoc basis which was restored to regular appointment in consultation with the Departmental Promotion Committee (DPS). 3. Government of India, came out with a new Act, ie., Food Safety and Standards (FSS) Act, 2006 and formed the regulatory body named Food Safety & Standards Authority of India (FSSAI) as per Section 4 of the FSS Act which came into existence with effect from 28.8.2008. Section 90 of the aforementioned Act protected the interest of the employees in various directorates administrating WA NO. 655 OF 2023 4 food laws that they will continue to hold their office in the Food Authority by the same tenure and upon the same terms and conditions of service including remuneration, leave, provident fund, retirement and other terminal benefits as would have held such office if the Food Authority had not been established. Petitioner alleged to have accepted the FSSAI service. Respondent invited options from the employees who had completed six months of period in FSSAI either to be retained in FSSAI or in the MoFPI. Petitioner did not exercise any option. On 26.3.2012, a circular was issued for calling the options with a last date as 31.3.2012, wherein it was stated that the employees who had already been transferred under Section 90 of FSS Act of 2006, have been treated as a deemed deputation and were requested to exercise the option as to whether or not to be the employee of FSSAI by 31.3.2012. Petitioner again did not give any option. It is pertinent to mention here that the guidelines/criteria for processing of employees transferred to FSSAI also envisage that in case the option is exercised, the employee would be regulated in the manner as prescribed under Rule 37 (b) of CCS Pension Rules, 1965 ie., the Rules which are applicable to autonomous bodies which tantamount to reduction of pension. 4. After the expiry of the aforementioned period, a WA NO. 655 OF 2023 5 representation dated 30.10.2014 was submitted for exercising the option for the reason that aforementioned circular was stayed by the High Court of Calcutta vide order dated 26.9.2012. Pendency of the representation gave cause to the petitioner to approach this Court for expeditious disposal in WP(C) No.1952 of 2019 which was disposed of vide order dated 23.1.2019 with a direction to the competent authority to decide the representation of 2014. The said representation was decided by rejecting the case of the petitioner vide order dated 2.4.2019, Ext.P22. By laying challenge to the aforementioned order along with other orders, writ petition was filed claiming the following reliefs: I. Issue a writ of certiorari or any direction or order to quash Exts.P7, P12, P13, P18, P19 and P22 and consequential order pursuant to Ext.P7 being non-est, and void ab-initio. II. Issue a writ of mandamus or any direction or order to the 7th respondent, to revert the petitioner to FSSAI with all consequential benefits including pay, promotion and arrears. 5. Respondent appeared and filed the counter. The claim aforementioned was contested by raising objection of maintainability much less delay and latches and also on concealment of the fact that vide Ext.R3(6) request dated 26.10.2011 was submitted by the petitioner, ie, three years before the submission of the representation for exercising the option. Another application with similar request dated 29.3.2012 on WA NO. 655 OF 2023 6 19.3.2015, R3(9) was submitted. Both aforementioned requests were accepted by the respondent vide order dated 19.3.2015, R3(10) whereby he was repatriated to his parent office with effect from 31.3.2015 and after almost one year and two months was given assignment in the Income Tax Department as Income Tax Inspector vide order dated 13.5.2016. 6. Learned Single Bench noticing the fact that the petitioner / appellant failed to make any request within the time slot prescribed as per the circular dated 26.3.2012 dismissed the writ petition on delay and latches. 7. Learned counsel appearing on behalf of the appellant submitted that the learned Single Judge failed to notice the fact that there was a challenge to the order dated 2.4.2019, Ext.P22. Therefore there could not have been any delay in challenging the action of the respondents in not accepting the request of the petitioner for exercising the option to be retained in FSSAI department as the service conditions of the petitioner in view of the provisions of Section 90 of the Food Safety Act are protected. 8. The pay scale of the petitioner in the Income Tax department was considerably reduced which is against the circular dated 26.3.2012. 9. Provisions of Rule 37(A) of the CCS pension Rules was WA NO. 655 OF 2023 7 made applicable to the employees which in fact is applicable to employees of the autonomous bodies. The pay scale and the pensionary benefits of autonomous body viz-a-viz the central government employees are totally different and against the provisions of Section 90 of the FSS Act. Even if, the petitioner had exercised the option, his request for retainment cannot be rejected in the manner and mode. 10. On the other hand, learned counsel appearing on behalf of the respondent submitted that once the appellant had himself requested in 2011 and 2012 which was accepted in 2015 without disclosure of the same, could not have sought the indulgence of this court in earlier round of litigation resulted into a direction, and rejection of the same. There is no material on record to establish the reduction of the pay scale and urged this Court for dismissal of the writ appeal. 11. We have heard the learned counsel for the parties and appraised the paper book. The employment of the appellant, petitioner in the department of Food Safety with effect from 14.1.2000 and promotion in 2008 is not in dispute. It is a matter of record that Food Safety Act undergone a major change and 2008 Act came into force. Section 90 of the FSS Act reads as under: 90. Transfer of existing employees of Central Government Agencies governing various foods related Acts or Orders to WA NO. 655 OF 2023 8 Food Authority.– On and from the date of establishment of the Food Authority, every employee holding office under the Central Government Agencies administering food laws immediately before that date shall hold his office in the Food Authority by the same tenure and upon the same terms and conditions of service including remuneration, leave, provident fund, retirement and other terminal benefits as he would have held such office if the Food Authority had not been established and shall continue to do so as an employee of the Food Authority or until the expiry of the period of six months from that date if such employee opts not to be the employee of the Food Authority. 12. On perusal of the aforementioned provisions, it is evident that all the service conditions of the employee was protected. Appellant, petitioner after having rendered 6 months of service did not exercise option for going back to the parent department. Certain clauses of the circular dated 26.3.2012 and clause (b) of the guidelines are worth reading and are required to be extracted. Circular dated 26.3.2012: Sub: Exercising of Options by the employees transferred to FSSAI under Section 90 of FSS Act, 2006 reg. 1. Reference is invited to this Authority's memorandum no.12-26/Admn/2008-FSSAI dated 29th June, 2009 clarifying the position that the employees who have been transferred under Section 90 of FSS Act, 2006 will continue to be on 'deemed deputation' till finalization of the 'terms and conditions of service' of the transferred employee and further orders by FSSAI. 2. The draft Service Regulations for FSSAI employees has already been circulated for information of all concerned. The Government servants who have been transferred under Section 90 of FSS Act, 2006 and are being presently treated on 'deemed deputation' are hereby requested to exercise their option whether or not to be an employee of FSSAI by 31.3.2012. 3. The option so exercised shall be treated as final. The bond criteria/guidelines for processing options/absorption of WA NO. 655 OF 2023 9 transferred employees who opt to be an employee of FSSAI is also enclosed for information. clause (b) of the guidelines: b. The option of the employees shall be regulated in the manner prescribed in Rule 37A of CCS pension Rules, 1965. 13. The last date for submission of the option was 31.3.2012. Concededly, no such request at the behest of the appellant was made. Purported to have made a representation for exercising option only in 2014 without disclosing the fact that he had already asked for repatriation in 2011 and 2012 which was accepted in 2015 as per Ext.R3(10) dated 19.3.2015. The contents of the letter dated 19.3.2015 reads as under: Office order dated 19.3.2015: Shri. S.V Thampy, Senior Inspecting Officer who was transferred from the Ministry of Food Processing Industries to the Food Safety and Standards Authority of India under Section 90 of Food Safety and Standards (FSS) Act, 2006 and presently is being treated on 'deemed deputation' is hereby repatriated to his parent office with effect from afternoon of 31st March 2015. 2. He is directed to report to Sri. S.K Mohanty, Under Secretary, Ministry of Food Processing Industries, New Delhi. 3. The repatriation is subject to the provisions of Section 90 of FSS Act, 2006 and Rule 37A(6) of CCS (Pension) Rules, 1972 and the 'Scheme for disposal of Personnel Rendered Surplus due to Reduction of Establishment in Central Government Departments/Offices' issued vide Dop&Ts OM No.1/18/89/CS III dated 1st April 1983 and amended from time to time. 4. This issues with the approval of the Chief Executive Officer, FSSAI. 14. It is settled law that the person cannot be permitted to blow hot and cold in the same breath and non disclosure in a court WA NO. 655 OF 2023 10 of law is the biggest crime on the earth as person who approaches this Court with such intention, no respite can be given for vindication of the grievance. No material has been placed on record as to how and what manner, his pay on repatriation was reduced. Thus we do not intend to interfere with the order of repatriation which was even not challenged in the writ petition. 15. Order Ext.R3(10) extracted above, also has not been challenged. However with a caveat that the aforementioned order can be only construed with regard to the applicability of the provisions under Section 90 of the FSS Act but not with provisions of Rule 37A(6) of the CCS pension Rules. Rule 37A(6) of the CCS Pension Rules reads thus: 37A. Conditions for payment of pension on absorption consequent upon conversion of a Government Department into a Public Sector Undertaking.-- 6.The employees who opt to revert to Government service shall be redeployed through the surplus cell of the Government. 16. The said rule prescribes the conditions for payment of pension on absorption consequent upon conversion of a Government Department into a Public Sector Undertaking. Public Sector Undertaking would be autonomous bodies. Even the Income Tax department is not an autonomous body. Therefore for the reasons best known, we fail to comprehend how and what manner respondent applied Rule 27 while accepting the request of the WA NO. 655 OF 2023 11 petitioner for repatriation. Perhaps it may be on the ground that a guidelines annexed to the circular were applicable. It appears that there was some confusion with regard to applicability of provisions of Rule 37 of the CCS Pension Rules which was clarified by letters of Ministry of Finance Department of Expenditure vide letter dated 14.2.2017, Ext.P14 and Ministry of law and Justice, Department of Legal Affairs dated 20.2.2017, Ext.P15, same reads thus: Ext.P14; Letter of Ministry of Finance Department of Expenditure vide letter dated 14.2.2017 Ministry of Health & Family Welfare (MH&PW) may please refer to then notes on preceding pages, in file, seeking the advice of this Department regarding allowing the terms and conditions of service, including remuneration, leave, provident fund, retirement and other terminal benefits, to the 13 employees absorbed in the Food Safety & Standards Authority of India (FSSAI), as per section 90 of the PS3 Act, 2006 The matter has been considered in this Department. It appears that MH&FW unilaterally introduced the FSS Act, 2006, without 2. consulting DOP&PW and Department of Expenditure, which is not appropriate. 3. The case of the FSSAI covered in Rule 37 of CCS (Pension) Rules, 1972, according to which on absorption in an Autonomous Body, a Government servant shall be deemed to have retired from service from the date of absorption and subject to Sub-rule (3) he shall be eligible to receive retirement benefit. As FSSAI has been established only in 2008, CCS (Pension) may not be applicable to them. Both Section 90 of FSS Act, 2006 and provisions of Rule 37 of CCS (Pension) Rules, 1972 are not in consonance. Therefore, MH&FW first seek the advice of Ministry of Law in the matter and thereafter resolve the matter in consultation with DOP&PW as the limited question is whether Section 90 of FSSAI Act will prevail over the Rule 37 of CCS (Pension) Rules, 1972. Ext.P15: Letter of Ministry of law and Justice, Department of WA NO. 655 OF 2023 12 Legal Affairs dated 20.2.2017 The Ministry of Health &FW has desired our views as to whether provisions of 590 of the Food Safety and Standards Act, 2006 will prevail over Rule 37 of CCS (Pension) Rules, 1972. 2. Pre pages explain the matter. The matter was discussed with Shri NL Meena, former Legislative Secretary who is presently senior adviser in Ministry of Health &FW. 3. 5.90 of 2006 Act read as under: Section 90-Transfer existing employees of Central Government agencies governing various food related Acts or Orders to Food Authority On and from the date of establishment of the Food Authority, every employee holding office under th Central Government Agencies administering food laws immediately before that date shall hold his office in the food Authority by the same tenure and upon the same terms and conditions of service including remuneration, provident fund, retirement and other terminal benefits as he would have held such office if the Food Authority had not been established and shall continue to do so as an employee of the Food Authority or until the expiry of the period of six months from that date if such employee opts not to be the employee of the Food Authority. 4. In terms of S 90 of the 2006 Act, it is statutory obligation of the Government to extend the same terms and conditions of service including remuneration, leave, Provident Fund, retirement and other terminal benefits to employees of central government absorbed in the Authority. 5. In terms of above stated provisions, a mechanism for GPF remittances in respect of absorbed employees were Initiated and comments of Dept of Pension &FW and D/Expenditure were obtained. These departments have desired to consult this department. 6. We have perused the matter and are of view that a specific provision has been made in terms of 5.90 of Act providing for transfer of existing central government employees who shall hold office In Food Authority on same terms and conditions as they would have held such office if authority had not been established. 7. It is well settled rule of Interpretation that special provisions would prevail over general provisions. The provisions contained in S. 90 of 2006 Act (in respect of service benefits of central government employees absorbed in Food WA NO. 655 OF 2023 13 Authority) being special and latter in time would prevail over general rules. Further, provisions contained in statutory law le 2006 Act would have overriding effect over subordinate legislation le CCS (Pension) Rules, 1972. 8. In view of the above, we are inclined to agree with views of administrative Ministry as stated at Para 5 of 87 / N. 17. On perusal of the same, it is evident that for transfer of existing central government employees, who shall hold office on same term and conditions as they would have held such office, if authority had not been established. The CSS pension Rule may not be applicable but only Section 90 of FSS Act. Thus in our view, the letter Ext.R3(10) dated 19.3.2015 accepting the repatriation of the petitioner, requires to be modified. We thus delete the provisions of applicability of Rule 37A(6) of CSS pension Rules and rest of the order in the writ petition is upheld. With the aforementioned modification Writ appeal stands disposed of. Sd/- AMIT RAWAL JUDGE Sd/- sab C.S. SUDHA JUDGE "