iN THE HIGH COURT OF DELHi AT NEW DELHi W.P.ICI reo. 4971/2QG8 Raseived on g 13.7,2QQ5 Date of Deeisien luiv 25= 2005 KRiSHAN SWiURAR! Petitioner Thrsughs l^f. KHshan S^^rari, Petitiessr in person Versus FOOD CORPORATiOSa OF INDiA & ANR Respondents Through: Mr. HimincSer La!, Ms. Ran|l, Advocates CORAMs THE HOra'BLE MR.JUSTSCES-RAVINDRA BHAT 1, Whether reporters of local papers may be allowed to see the judgment.? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? S.RAVIWDRA BHAT. j 1. The Issue involved in these proceedings under Article 226 of the. Constitutionis whether the previousemploymentof the petitionerin the Army Medical Corps as a Nursing Assistantcan be taken into considerationfor the purposesofseniority,promotionand incrementsetc., and a directionoughtto W|x;-4971/00 Digitally Signed By:VIRENDER KUMAR Signing Date:04.06.2024 11:40:41 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified be given to re-fixthe service benefits being availed of by him. 2. The petitioner joined the Army Medical Corps as a Nursing Assistant on 6.10.1S65, during a national emergency. It is averred that on 19.9.1S70 he was discharged from the Corps after having seived 4 years and 349 days. The discharge certificate describes him as a Sepoy. The basis for the petitionet^s discharge was that he was a patient of Neurosis and that he was un-fitfor army .service but fit for civilian duties. Later on, on 3'^^ July, 1972, the respondent-Food Corporation of India (hereafter called "the FCr') appointed the petitioner to its sefvices in a regional office at Chandigarh, as a'Godown Assistant. The petitioner accepted the appointment and continued to work with the FCI. Hewas subsequently promoted to the rank ofAssistant Grade-ll (Ministerial) in September 1976; he was promoted as a AssistantGrade-1 fAccountsl in October 1983. 3. The petitioner relies upon two circulars issued on 16.9.1974 and 23.11.1994issued by the FCI on the subject of granting benefits of Military Services. He also relies upon- a circular/orderof the Chief Secretaty, Government of Haivana dated 28.5.1985 to the same effect. It is averred that the petitioner made repeated representationsto the FCI for counting the period of his servicein the Army Medical Corps, grantingseniorityand other benefits but these were to no avail. Hence, he has moved this petition for Wpt;-4971/(X) 2of 9 aDDroDtiate directions. 4. The defenceof FCi in these proceedingsisthai the natureofpetitioner's empioyment,namely,as a NursingAssistantfor 4years and 11 months des- entitles him to the benefitsclaimed. The FCI contendedthat the benefitof the 1974 circular is available only to Combatant Clerks (Sepoy) and the petitionerdid not setve that capacity. The petitionerwas asked to produce documentaryevidenceto show that hewas holdingthe positionof Comoatani. Cler'K or equivalent post but he did not do so. The FCI avers that a clarificationwas receivedfrom the Army statingthat a NursingAssistant is not a CombatantClerk or person with equivalentrank. It is also averredthat the FCI sought clarificationsas to whetlier the benefits of seniority could be granted to which the Central Government replied on 28.3.1379, that the benefit of MilitaryServicecould not be extendedfor the purposeof seniority etc. 5. The petitionerwho argued the matter himselfsubmittedthat the denial of the benefitssought, from FCI is-arbitrateand iilegal. He placed reliance upon the circularof 1974and submiittedthatthe groundtaken by FCI to deny the benefitof seniorityon the basis of past MilitaryServicecannotbe upheld. He submitted that the characterisation of MilitaryService in his case as a non- Combatant is completelyirrationaland un-justified. Wtx:-^971/{X) 3of 9 6- The petitioner has placed reliance upon a judgment of the Punjab and Hatyana High Court in Darshan Singh Cheerna vs. Food Corporation of India and Gis., decided on 9.12.1996 by Division Bench to say that when an identical claim was raised by a person who had worked in the Bengal Engineering Group of the Army but subsequently discharged from the military service, the Court had directed grant of such benefit;the FCI accepted and released the benefits. Hence, there Is no rationale in denying them to the petitioner. 7. The petitioner also relied upon the judgment of the Supreme Court in K.C. Araa and Ann vs. siaie of rlaiyana & Ors., (1984) 3 SCC 281. In that case, the Court while interpreting setvice t'ules framed by the State of Haryana held that an ex-serviceman who had rendered national setvice during emergency in the Armed Forces and given benefit of higher pay and seniority etc, upon re-employment with the State could not.be deprived such benefits, retrospectively. The petitioner also relied upon thejudgmetii repotted as Union of India & Ors. vs. Dr. S. Krishna Murthy & Qrs., (1989) 4 SCC 689, in support of his submission that the Central Government held out a promise that service benefits would be given to all those who volunteered for military duties during national emergency. The ratio of that decision, he says clearly binds the FCI. which cannot deny him the benefits claimed in these proceedings. Wdc^971/(X) 4 of 9 8. The respondents on the other hand submit that apart from the question as to whether the petitioner oould be called a Combatant, no advantage could be sought from the judgment in Cheema's case (supra) since it was in the absence of a counter affidavit and effective defence. It was also, submitted that the benefits in Cheema's case were granted since the employee had subsequently expired and the matter was not carried further in appeal. 9. Learnt counsel for the respondents has placed strong reliance on a Division Bench of this Court in the case of FCi itself being Food Gaporaiion of india Vs. Laxmi Narayan & Qrs. (LPA Nos. 346, 351 and 336 of 1998) decided on 27.2. 2001. In that decision, the Court had occasion to consider Cheema's case (supra), judgment of Karnataka High Court rendered on 31.1.1997 in. K.P. Thomas vs. Union of India, the regulations, (particularly, regulation85 governingthe FCI) and theeffectof a generalcircularissuedby the Central Government in 1959 to the effect that benefit of all previous servicerendered In the same or equivalentposts in the armed fotces should be given to thoseworking in civil posts. The Division Benchalso considered the judgment,in Dr. S. Krishna Murihy's case (supra) and a judgment of SupremeCourt in All India Ex-EmergencyCommissionedOfficersand Shoii CkjrnmissionedOfficeis'WelfareAssociaiic^ and Anr. vs. Union of India and Ann, 1995 Supp (1) SCC 78, Wtx;-4971/00 5of9 f 10. The grant or otherwiseof service benefits is a matter of ruies and conditionsor service. In the presentcase, the petitionerhad worked for a period of 4 years and 11 months in the (Sorps. The FCI, in my considered opinion, has engaged in a needless controversyabout the nature of the petitioner'sduties.There is no disputeto the fact that the petitionerworked In the Army MedicalCorps. It is also not disputedthat he enrolledwith theArmy during the time of crisis when a national emiergencywas in existence; he participatedin the theatre of war. The characterisationof the petitionei's "W employmentas a non-combatant,therefore,cannot be a basis for denyina nim whateverbenefitswould be otherwiseadmissibleto employeessituated identically. The discharge certificate obtained by the petitioner, which admittedlywas the basisfor his employmentby"FCI shows him to bea Sepoy. Hence, the denial or benefitson this ground in my consideredopinion is not justified. 11. The above finding in the .petitioner's favour does not however automaticallyconclude the entire issue. The question for grant of service benefits,on account of militaryservicewas the subject matter of an appeal fx. beforea Division Bench of this Court in LaxmiNarayan'scase (supra). The Division Bench considered a circular issued in 1959 which directed "the inclusion or past military service for purposes of seniority benefits in civil posts, it was concluded, in the light of severaljudgmentsof the Supreme Wix;-4971/00 r -c Court that the clrcuiar, could not be applied since employees of the FCI were not holders of civil posts. The Division Bench had occasion to deal with the .udgment in Dn S. Krishna Muilhy's case which had dealt with whether those who have voiunteeted for emergency militaiy service and had been granted benefits on account of "missed opportunities'' by inclusion of their seivices in civil employment could be deprived that benefit. In that context the Court had observed that such deprivation was arbitrary, particularly, in vi©« a promise held out by the Central Government at the time of engaging such personnel in the Armed Forces that they would not lose in the event of their deciding to join civil employment after completion of emergency commission/short seivlce commission. The factor to be noticed here is that the rules permitted inclusion of such benefits. Likewise, in K.C. Arora's case (supra) the rule permitted inclusion of seniority and other benefits which were sought to be taken away subsequently. The Supreme Court held such amendment/laterpolicy decision to be afbitraty. 12. In the present case, the Division Bench consideredthe effect of the 1959 circulars and the staff regulations governing employees of the FCI and concluded that they were not entitled to the benefits of past militaryservice. The Court also noted other provisions. The Court held as follows: "5. The respoTuienisare working in ihe category III post in die FCL The reapomienVt afier re-employment mad?. W|x:^97l/(X) 7of9 r represenkUiom thai iheir senioriiy may be fixed inking into arcoiwt the military sf.rvit'e iv.tidered hy them. The FCT rejected iheir representations. Thereufier, the respondents filed writ petitions }?eforethis Court The writ petitions were allowed on the strength of the judgment of the Kamiitaka High Court delivered ifi Ciiil Writ Petition No. 769.5of }976 K.P. Thomas w. Union ofIndia on 31.1.1977. 6. The appelkmt FCJ is aggrieved by the judgment of the learned Sifigle Judge coui preferred these appeals against the said judgmenL XXX XXX XXX 34. • On careful itniuysis of ttforesaid judgments it can lie safely com-luded that the respondents in these appeals, whoare working with the FCI do not hold "civilpost" either in the Centre or the State Governmentscmdconsequently they are not entitled to the protection of Article 311 of the Constftuiion. hi diis viiew of the matter, the judgment of the Kamaiaka High Court in the case of K.P. Thoma (supra) could not have }jeen made applica}?le in the instatit case hy the learned Single Judge. XXX XXX XXX 40. On consideration of the toicUity of facts and circumstances, we are of the considered opinion that f?enefit given to the petitioners in the judgments of Karnatakii and Piinjal? tS: Haryann High Court cannot }?e extended to the respondents herein because of the aforesaid reasons. Both these judgments were delivered on the peculiar facts and circiunstiinces of those cases. Therefore, law laid down in diese ca.'iescannnt }je made applica!?leto the respondents in these appeals." 13. On an careful analysis of all the circumstances, It is evident that though the stand of the respondents that the petitioner was not a Combatant Clerk, cannot be sustained, nevertheless, on account of the clear position in the regulations of the FCl and the Division Bench ruling in Laxmi Nmayan's case the relief claimed, namely, fixation of seniority, promotion and grant of Wpc-4971/(X) 8 of 9 r higher stages of pay (re-fixation) in the existing pay-scale by counting the previous militatyservice cannot be granted. In the result, the writ petition is dismissed. No costs. juiy 25f 2005 S. ElAViNDRA 8HAT, S dkg Wtx;^97.1/00 9of 9