Sreekumar v. Thampy, Inspector Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 7 DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 WA NO. 655 OF 2023 AGAINST THE JUDGMENT IN WP(C) 17968/2019 OF HIGH COURT OF KERALAAPPELLANT/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: 1UNION OF INDIA,REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH & FAMILY WELFARE, ROOM NO.156-A, NIRMAN BHAVAN, NEW DELHI, PIN - 1100022THE SECRETARY,MINISTRY OF FOOD PROCESSING INDUSTRIES, PANCHSHEEL BHAWAN, AUGUST KRANTI MARG, KHELGAON, NEW DELHI ., PIN - 1100493CHIEF EXECUTIVE OFFICER,FSSAI, 3RD & 4TH FLOOR, FDA BHAVAN, NEAR BAL BHAVAN, KOTLA ROAD, NEW DELHI, PIN - 1100024DY DIRECTOR (E &A),FSSAI, 3RD & 4TH FLOOR, FDA BHAVAN, NEAR BAL BHAVAN, KOTLA ROAD, NEW DELHI, PIN - 1100025THE DIRECTOR,DEPARTMENT OF EXPENDITURE, MINISTRY OF FINANCE, 'E' BLOCK, CENTRAL SECRETARIAT, NEW DELHI, PIN - 1100016THE DEPUTY LEGAL ADVISOR,DEPARTMENT OF LEGAL AFFAIRS, MINISTRY OF LAW AND JUSTICE, 'A' WING, SHASTRI BHAVAN, NEW DELHI, PIN - 110001 27THE DIRECTORDIRECTORATE OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI, PIN - 1100018THE PRINCIPAL DIRECTOR OF INCOME TAX, INCOME TAX DEPARTMENT, 3RD FLOOR, AYABHANGI PINNACLE, VYTTILA, ERNAKULAM, KERALA, PIN - 682020BY ADVS.DEPUTY SOLICITOR GENERAL OF INDIASANTHAN V.NAIRMANU S. DSG OF INDIA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Amit Rawal, J. JUDGMENT 1.Petitioner had sought indulgence of this Court whilefiling a writ petition by laying challenge to Exts.P7, P12, P13, P18,P19 and P22. The writ petition has without advertence on meritsbeen dismissed on the ground of delay and latches. 2.The case set out by the petitioner in the writ petitionwas that he was appointed on 14.1.2000 in the post of JuniorInspecting Officer (Group B Gazetted) under the Directorate ofFruit and Vegetable Preservation, Ministry of Food ProcessingIndustries (MoFPI). The aforementioned joining was on the basisof selection through UPSC. With effect from 30.1.2008 waspromoted to the hierarchical post of Senior Inspecting Officer,(Group A gazetted) on ad-hoc basis which was restored to regularappointment in consultation with the Departmental PromotionCommittee (DPS). 3.Government of India, came out with a new Act, ie., FoodSafety and Standards (FSS) Act, 2006 and formed the regulatorybody named Food Safety & Standards Authority of India (FSSAI) asper Section 4 of the FSS Act which came into existence with effectfrom 28.8.2008. Section 90 of the aforementioned Act protectedthe interest of the employees in various directorates administrating 3.Government of India, came out with a new Act, ie., FoodSafety and Standards (FSS) Act, 2006 and formed the regulatorybody named Food Safety & Standards Authority of India (FSSAI) asper Section 4 of the FSS Act which came into existence with effectfrom 28.8.2008. Section 90 of the aforementioned Act protectedthe interest of the employees in various directorates administrating food laws that they will continue to hold their office in the FoodAuthority by the same tenure and upon the same terms andconditions of service including remuneration, leave, provident fund,retirement and other terminal benefits as would have held suchoffice if the Food Authority had not been established. Petitioneralleged to have accepted the FSSAI service. Respondent invitedoptions from the employees who had completed six months ofperiod in FSSAI either to be retained in FSSAI or in the MoFPI.Petitioner did not exercise any option. On 26.3.2012, a circularwas issued for calling the options with a last date as 31.3.2012,wherein it was stated that the employees who had already beentransferred under Section 90 of FSS Act of 2006, have beentreated as a deemed deputation and were requested to exercise theoption as to whether or not to be the employee of FSSAI by31.3.2012. Petitioner again did not give any option. It is pertinentto mention here that the guidelines/criteria for processing ofemployees transferred to FSSAI also envisage that in case theoption is exercised, the employee would be regulated in the manneras prescribed under Rule 37 (b) of CCS Pension Rules, 1965 ie., theRules which are applicable to autonomous bodies whichtantamount to reduction of pension. 4.After the expiry of the aforementioned period, a representation dated 30.10.2014 was submitted for exercising theoption for the reason that aforementioned circular was stayed bythe High Court of Calcutta vide order dated 26.9.2012. Pendencyof the representation gave cause to the petitioner to approach thisCourt for expeditious disposal in WP(C) No.1952 of 2019 whichwas disposed of vide order dated 23.1.2019 with a direction to thecompetent authority to decide the representation of 2014. The saidrepresentation was decided by rejecting the case of the petitionervide order dated 2.4.2019, Ext.P22. By laying challenge to theaforementioned order along with other orders, writ petition wasfiled claiming the following reliefs: I.Issue a writ of certiorari or any direction or order toquash Exts.P7, P12, P13, P18, P19 and P22 and consequentialorder pursuant to Ext.P7 being non-est, and void ab-initio.II.Issue a writ of mandamus or any direction or order tothe 7[th] respondent, to revert the petitioner to FSSAI with allconsequential benefits including pay, promotion and arrears. 5.Respondent appeared and filed the counter. The claimaforementioned was contested by raising objection ofmaintainability much less delay and latches and also onconcealment of the fact that vide Ext.R3(6) request dated26.10.2011 was submitted by the petitioner, ie, three years beforethe submission of the representation for exercising the option.Another application with similar request dated 29.3.2012 on 19.3.2015, R3(9) was submitted. Both aforementioned requestswere accepted by the respondent vide order dated 19.3.2015,R3(10) whereby he was repatriated to his parent office with effectfrom 31.3.2015 and after almost one year and two months wasgiven assignment in the Income Tax Department as Income TaxInspector vide order dated 13.5.2016. 6.Learned Single Bench noticing the fact that thepetitioner / appellant failed to make any request within the timeslot prescribed as per the circular dated 26.3.2012 dismissed thewrit petition on delay and latches. 19.3.2015, R3(9) was submitted. Both aforementioned requestswere accepted by the respondent vide order dated 19.3.2015,R3(10) whereby he was repatriated to his parent office with effectfrom 31.3.2015 and after almost one year and two months wasgiven assignment in the Income Tax Department as Income TaxInspector vide order dated 13.5.2016. 6.Learned Single Bench noticing the fact that thepetitioner / appellant failed to make any request within the timeslot prescribed as per the circular dated 26.3.2012 dismissed thewrit petition on delay and latches. 7.Learned counsel appearing on behalf of the appellantsubmitted that the learned Single Judge failed to notice the factthat there was a challenge to the order dated 2.4.2019, Ext.P22.Therefore there could not have been any delay in challenging theaction of the respondents in not accepting the request of thepetitioner for exercising the option to be retained in FSSAIdepartment as the service conditions of the petitioner in view of theprovisions of Section 90 of the Food Safety Act are protected. 8.The pay scale of the petitioner in the Income Taxdepartment was considerably reduced which is against the circulardated 26.3.2012. 9.Provisions of Rule 37(A) of the CCS pension Rules was made applicable to the employees which in fact is applicable toemployees of the autonomous bodies. The pay scale and thepensionary benefits of autonomous body viz-a-viz the centralgovernment employees are totally different and against theprovisions of Section 90 of the FSS Act. Even if, the petitioner hadexercised the option, his request for retainment cannot be rejectedin the manner and mode. 10.On the other hand, learned counsel appearing on behalfof the respondent submitted that once the appellant had himselfrequested in 2011 and 2012 which was accepted in 2015 withoutdisclosure of the same, could not have sought the indulgence of thiscourt in earlier round of litigation resulted into a direction, andrejection of the same. There is no material on record to establishthe reduction of the pay scale and urged this Court for dismissal ofthe writ appeal. 11.We have heard the learned counsel for the parties andappraised the paper book. The employment of the appellant,petitioner in the department of Food Safety with effect from14.1.2000 and promotion in 2008 is not in dispute. It is a matter ofrecord that Food Safety Act undergone a major change and 2008Act came into force. Section 90 of the FSS Act reads as under: 90.Transfer of existing employees of Central GovernmentAgencies governing various foods related Acts or Orders to Food Authority.– On and from the date of establishment ofthe Food Authority, every employee holding office under theCentral Government Agencies administering food lawsimmediately before that date shall hold his office in theFood Authority by the same tenure and upon the sameterms and conditions of service including remuneration,leave, provident fund, retirement and other terminalbenefits as he would have held such office if the FoodAuthority had not been established and shall continue to doso as an employee of the Food Authority or until the expiryof the period of six months from that date if such employeeopts not to be the employee of the Food Authority. 12.On perusal of the aforementioned provisions, it isevident that all the service conditions of the employee wasprotected. Appellant, petitioner after having rendered 6 months ofservice did not exercise option for going back to the parentdepartment. Certain clauses of the circular dated 26.3.2012 andclause (b) of the guidelines are worth reading and are required tobe extracted. Circular dated 26.3.2012: Sub: Exercising of Options by the employees transferred toFSSAI under Section 90 of FSS Act, 2006 reg. 12.On perusal of the aforementioned provisions, it isevident that all the service conditions of the employee wasprotected. Appellant, petitioner after having rendered 6 months ofservice did not exercise option for going back to the parentdepartment. Certain clauses of the circular dated 26.3.2012 andclause (b) of the guidelines are worth reading and are required tobe extracted. Circular dated 26.3.2012: Sub: Exercising of Options by the employees transferred toFSSAI under Section 90 of FSS Act, 2006 reg. 1.Reference is invited to this Authority's memorandumno.12-26/Admn/2008-FSSAI dated 29[th] June, 2009 clarifying theposition that the employees who have been transferred underSection 90 of FSS Act, 2006 will continue to be on 'deemeddeputation' till finalization of the 'terms and conditions ofservice' of the transferred employee and further orders byFSSAI. 2.The draft Service Regulations for FSSAI employees hasalready been circulated for information of all concerned. TheGovernment servants who have been transferred under Section90 of FSS Act, 2006 and are being presently treated on 'deemeddeputation' are hereby requested to exercise their optionwhether or not to be an employee of FSSAI by 31.3.2012. 3.The option so exercised shall be treated as final. The bondcriteria/guidelines for processing options/absorption of transferred employees who opt to be an employee of FSSAI isalso enclosed for information. clause (b) of the guidelines: b. The option of the employees shall be regulated inthe 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 exercisingoption only in 2014 without disclosing the fact that he had alreadyasked for repatriation in 2011 and 2012 which was accepted in2015 as per Ext.R3(10) dated 19.3.2015. The contents of the letterdated 19.3.2015 reads as under: Office order dated 19.3.2015: Shri. S.V Thampy, SeniorInspecting Officer who was transferred from the Ministry ofFood Processing Industries to the Food Safety and StandardsAuthority of India under Section 90 of Food Safety andStandards (FSS) Act, 2006 and presently is being treated on'deemed deputation' is hereby repatriated to his parent officewith effect from afternoon of 31[st] March 2015. 2.He is directed to report to Sri. S.K Mohanty, UnderSecretary, Ministry of Food Processing Industries, New Delhi. 3.The repatriation is subject to the provisions of Section 90of FSS Act, 2006 and Rule 37A(6) of CCS (Pension) Rules, 1972and the 'Scheme for disposal of Personnel Rendered Surplusdue to Reduction of Establishment in Central GovernmentDepartments/Offices' issued vide Dop&Ts OM No.1/18/89/CSIII dated 1[st] April 1983 and amended from time to time. 4.This issues with the approval of the Chief ExecutiveOfficer, FSSAI. 14.It is settled law that the person cannot be permitted toblow hot and cold in the same breath and non disclosure in a court of law is the biggest crime on the earth as person who approachesthis Court with such intention, no respite can be given forvindication of the grievance. No material has been placed onrecord as to how and what manner, his pay on repatriation wasreduced. Thus we do not intend to interfere with the order ofrepatriation which was even not challenged in the writ petition. 15.Order Ext.R3(10) extracted above, also has not beenchallenged. However with a caveat that the aforementioned ordercan be only construed with regard to the applicability of theprovisions under Section 90 of the FSS Act but not with provisionsof Rule 37A(6) of the CCS pension Rules. Rule 37A(6) of the CCSPension Rules reads thus: 37A. Conditions for payment of pension on absorption consequentupon conversion of a Government Department into a PublicSector Undertaking.-- 15.Order Ext.R3(10) extracted above, also has not beenchallenged. However with a caveat that the aforementioned ordercan be only construed with regard to the applicability of theprovisions under Section 90 of the FSS Act but not with provisionsof Rule 37A(6) of the CCS pension Rules. Rule 37A(6) of the CCSPension Rules reads thus: 37A. Conditions for payment of pension on absorption consequentupon conversion of a Government Department into a PublicSector Undertaking.-- 6.The employees who opt to revert to Government service shallbe 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 aGovernment Department into a Public Sector Undertaking. PublicSector Undertaking would be autonomous bodies. Even the IncomeTax department is not an autonomous body. Therefore for thereasons best known, we fail to comprehend how and what mannerrespondent applied Rule 27 while accepting the request of the petitioner for repatriation. Perhaps it may be on the ground that aguidelines annexed to the circular were applicable. It appears thatthere was some confusion with regard to applicability of provisionsof Rule 37 of the CCS Pension Rules which was clarified by lettersof Ministry of Finance Department of Expenditure vide letter dated14.2.2017, Ext.P14 and Ministry of law and Justice, Department ofLegal Affairs dated 20.2.2017, Ext.P15, same reads thus: Ext.P14; Letter of Ministry of Finance Department ofExpenditure vide letter dated 14.2.2017 Ministry of Health & Family Welfare (MH&PW) may pleaserefer to then notes on preceding pages, in file, seeking theadvice of this Department regarding allowing the terms andconditions of service, including remuneration, leave, providentfund, retirement and other terminal benefits, to the 13employees absorbed in the Food Safety & Standards Authorityof India (FSSAI), as per section 90 of the PS3 Act, 2006 The matter has been considered in this Department. Itappears that MH&FW unilaterally introduced the FSS Act,2006, without 2. consulting DOP&PW and Department ofExpenditure,whichisnotappropriate. 3. The case of the FSSAI covered in Rule 37 of CCS (Pension)Rules, 1972, according to which on absorption in anAutonomous Body, a Government servant shall be deemed tohave retired from service from the date of absorption andsubject to Sub-rule (3) he shall be eligible to receiveretirement benefit. As FSSAI has been established only in2008, CCS (Pension) may not be applicable to them. BothSection 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 matterand thereafter resolve the matter in consultation withDOP&PW as the limited question is whether Section 90 ofFSSAI Act will prevail over the Rule 37 of CCS (Pension)Rules, 1972. Ext.P15: Letter of Ministry of law and Justice, Department of Legal Affairs dated 20.2.2017 The Ministry of Health &FW has desired our views as towhether provisions of 590 of the Food Safety and StandardsAct, 2006 will prevail over Rule 37 of CCS (Pension) Rules,1972. 2. Pre pages explain the matter. The matter wasdiscussedwithShriNLMeena,former Legislative Secretary who is presently senior adviserin Ministry of Health &FW. 3. 5.90 of 2006 Act read as under:Section 90-Transfer existing employees of CentralGovernment agencies governing various food related Acts orOrderstoFoodAuthority Ext.P15: Letter of Ministry of law and Justice, Department of Legal Affairs dated 20.2.2017 The Ministry of Health &FW has desired our views as towhether provisions of 590 of the Food Safety and StandardsAct, 2006 will prevail over Rule 37 of CCS (Pension) Rules,1972. 2. Pre pages explain the matter. The matter wasdiscussedwithShriNLMeena,former Legislative Secretary who is presently senior adviserin Ministry of Health &FW. 3. 5.90 of 2006 Act read as under:Section 90-Transfer existing employees of CentralGovernment agencies governing various food related Acts orOrderstoFoodAuthority On and from the date of establishment of the Food Authority,every employee holding office under th Central GovernmentAgencies administering food laws immediately before thatdate shall hold his office in the food Authority by the sametenure and upon the same terms and conditions of serviceincluding remuneration, provident fund, retirement and otherterminal benefits as he would have held such office if the FoodAuthority had not been established and shall continue to do soas an employee of the Food Authority or until the expiry of theperiod of six months from that date if such employee opts notto be the employee of the Food Authority. 4. In terms of S 90 of the 2006 Act, it is statutory obligation ofthe Government to extend the same terms and conditions ofservice including remuneration, leave, Provident Fund,retirement and other terminal benefits to employees of centralgovernmentabsorbedintheAuthority.5. In terms of above stated provisions, a mechanism for GPFremittances in respect of absorbed employees were Initiatedand comments of Dept of Pension &FW and D/Expenditurewere obtained. These departments have desired to consultthisdepartment. 6. We have perused the matter and are of view that a specificprovision has been made in terms of 5.90 of Act providing fortransfer of existing central government employees who shallhold office In Food Authority on same terms and conditions asthey would have held such office if authority had not beenestablished. 7. It is well settled rule of Interpretation that specialprovisions would prevail over general provisions. Theprovisions contained in S. 90 of 2006 Act (in respect of servicebenefits of central government employees absorbed in Food Authority) being special and latter in time would prevail overgeneral rules. Further, provisions contained in statutory lawle 2006 Act would have overriding effect over subordinatelegislationleCCS(Pension)Rules,1972. 8. In view of the above, we are inclined to agree with views ofadministrative 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 onsame term and conditions as they would have held such office, ifauthority had not been established. The CSS pension Rule may notbe applicable but only Section 90 of FSS Act. Thus in our view, theletter Ext.R3(10) dated 19.3.2015 accepting the repatriation of thepetitioner, requires to be modified. We thus delete the provisionsof applicability of Rule 37A(6) of CSS pension Rules and rest of theorder in the writ petition is upheld. With the aforementionedmodification Writ appeal stands disposed of. Sd/- AMIT RAWAL JUDGE Sd/- sab C.S. SUDHA JUDGE