SREEKUMAR V THAMPY, INSPECTOR OF INCOME TAX v UNION OF INDIA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 WP(C) NO.17968 OF 2019** ## **- PETITIONER :** SREEKUMAR V THAMPY, INSPECTOR OF INCOME TAX, RESIDING AT VATTAKKUNNEL HOSUE, N S H MOUNT P.O KOTTAYAM-KERALA-686 006. BY ADV JOHN T.PAUL ## **- RESPONDENTS :** |1|UNION OF INDIA REPRESENTED BY THE SECRETARY,| |---|---| ||MINISTRY OF HEALTH AND FAMILY WELFARE,| ||ROOM NO.156-A, NIRMAN BHAVAN, NEW DELHI-110 002.| |2|THE SECRETARY| ||MINISTRY OF FOOD PROCESSING INDUSTRIES,| ||PANCHESHEEL BHAWAN, AUGUST KRANTI MARG, KHELGAON,| ||NEW DELHI-110 049.| |3|CHIEF EXECUTIVE OFFICER| ||FSSAI, 3RD AND 4TH FLOOR, FDA BHAVAN,| ||NEAR BAL BHAVAN, KOTLA ROAD, NEW DELHI-110 002.| |4|DY DIRECTOR (E AND A)| ||FSSAI, 3RD AND 4TH FLOOR, FDA BHAVAN,| ||NEAR BAL BHAVAN, KOTLA ROAD, NEW DELHI-110 002.| |5|THE DIRECTOR| ||DEPARTMENT OF EXPENDITURE, MINISTRY OF FINANCE,| ||'E' BLOCK, CENTRAL SECRETARIAT, NEW DELHI-110 001.| |6|THE DEPUTY LEGAL ADVISOR| ||DEPARTMENT OF LEGAL AFFAIRS,| ||MINISTRY OF LAW AND JUSTICE, A WING,| ||SHASTRI BHAVAN, NEW DELHI-110 001.| |7|THE DIRECTOR| ||DIRECTORATE OF PERSONNEL AND TRAINING,| ||MINISTRY OF PERSONNEL,| ||PUBLIC GRIEVANCES AND PENSIONS, NORTH BLOCK,| ||CENTRAL SECRETARIAT, NEW DELHI-110 001.| WP(C) NO.17968 OF 2019 -: 2 :- 8 THE PRINCIPAL DIRECTOR OF INCOME TAX INCOME TAX DEPARTMENT, 3RD FLOOR, AYABHANGI PINNACLE, VYTTILA, ERNAKULAM, KERALA-682 020. BY ADVS. SRI.P.VIJAYAKUMAR SRI.SANTHAN V.NAIR SRI.MANU S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.1.2023, THE COURT ON 27.2.2023 DELIVERED THE FOLLOWING: WP(C) NO.17968 OF 2019 -: 3 :- ## JUDGMENT ## Dated this the 27th day of February, 2023 This writ petition is filed seeking the following reliefs :- - “(i) Issue a writ of certiorari or any direction or order to quash Exhibit P7, P12, P13, P18, P19 and P22 and all consequential orders pursuant to Exhibit P7 being nonest, and void ab-initio. - (ii) Issue a writ of mandamus or any direction or order to the 7[th] respondent to revert the petitioner to FSSAI with all consequential benefits including pay, promotion and arrears.” 2. Heard the learned counsel for the petitioner and the learned DSGI as well as the learned counsel appearing for the 3[rd] respondent. 3. The petitioner was appointed as Junior Inspecting Officer in the Central Government on 14.1.2000. In the year 2006, the Food Safety and Standards Act (for short, 'the Act') was enacted and the 3[rd] respondent was formed as a Regulatory Body for the implementation of the Act. The petitioner was deputed to work in the 3[rd] respondent and he contends that he became a permanent employee of the 3[rd] respondent. It is submitted that Section 90 of the Act provides for an employee to submit an option for being repatriated to his parent department and if no WP(C) NO.17968 OF 2019 -: 4 :- such option is exercised, he would continue to be an employee of the 3[rd] respondent. It is submitted that by Ext.P7 executive order, the 4[th] respondent again sought an option from officers serving in the 3[rd] respondent to submit an option either to continue as employees of the 3[rd] respondent or to be repatriated to the parent department. The petitioner submits that Ext.P7 provided that the option of the employees would be as prescribed in Rule 37-A of CCS (Pension) Rules, 1972 and that the persons who opt for permanent absorption shall be absorbed in the Food Authority with effect from the date to be notified by the Government. It is contended that since the option sought was in the year 2012 and there was ambiguity as to the date of absorption and the mode of pension which would be paid, the petitioner sought clarifications. It is submitted that since option had to be exercised within four days, he opted to remain in the Central Government service and was repatriated to the Central Board of Direct Taxes. It is contended that the communication requiring a further option is against the provisions of Section 90 of the Act and that the same has been subjected to a challenge and is stayed by the High Court at Calcutta as evidenced by WP(C) NO.17968 OF 2019 -: 5 :- Ext.P8. It is stated that since it was later clarified that FSS Act would have overriding effect and that the petitioner's service conditions would not be affected by his absorption into the FSSAI he had submitted representations for being absorbed in the FSSAI with effect from the date of notification, but such requests were rejected which has led to the filing of this writ petition. 4. The learned counsel for the petitioner places reliance on the decisions of the Apex Court in State of Tamil Nadu and another v. P. Krishnamurthy and others [(2006) 4 SCC 517], State of Punjab v. Davinder Pal Singh Bhullar and others etc. [(2011) 14 SCC 770], Ravi Yashwant Bhoir v. District Collector, Raigad and others [(2012) 4 SCC 407], D. K. Yadav v. J.M.A. Industries [(1993) 3 SCC 259] and M.S. Mohinder Singh Gill v. The Chief Election Commissioner [AIR 1978 SC 851]. 5. A detailed counter affidavit has been placed on record by the 3[rd] respondent wherein it is contended that Section 90 only stipulates that employees of Central Government agencies administering food laws would hold office in the Food Authority on the same tenure and upon same terms and conditions that they were holding till then until the expiry of six months from the WP(C) NO.17968 OF 2019 -: 6 :- date such employee opts not to be an employee of the Food Authority. It is submitted that the Section does not provide that the option has to be exercised in within six months or that all employees who do not submit options within six months would become employees of the Food Authority. It is stated that the petitioner had submitted repeated options to be repatriated to his parent department and that the challenge now raised is hopelessly belated apart from being totally misconceived and an abuse of process of court. It is stated that the petitioner had been given sufficient time to submit his options and had specifically opted to be repatriated to the Central Government and not to continue as an employee of the Food Authority. It is further contended that Ext.P7 order has not been stayed by the High Court of Calcutta and it was only a communication issued pursuant thereto which was the subject matter of the writ petition before the Calcutta High Court. It is submitted that pursuant to the specific option submitted by the petitioner in this writ petition as evidenced by Ext.R3(9) produced along with the counter affidavit of the 3[rd] respondent he had been repatriated to his parent office in the year 2015 and had joined the IT WP(C) NO.17968 OF 2019 -: 7 :- Department in 2016. His first representation thereafter was only in the year 2018 which was specifically rejected by Ext.P18. It is submitted that the petitioner who had specifically opted to return to his parent department pursuant to Ext.P7 cannot now raise a challenge to Ext.P7 on legal contentions when he had himself voluntarily acted upon Ext.P7 and submitted an option pursuant thereto. 6. Having considered the contentions advanced, I notice that the challenge raised by the petitioner against Ext.P7 dated 26.3.2012 is belated since no objections had been raised at the relevant time. He submitted a specific option to return to his parent department. The said option was acted upon and he was repatriated to his parent department as early as in 2015. He joined duty in the Income Tax Department in the year 2016. Even then, no challenge was raised. It appears that it was only in the year 2018 that a contention was raised for the first time that he ought to have been permitted to continue in the FSSAI. His representation was rejected by Ext.P18. Further requests made by him have also met with the same fate. In the said facts and circumstances, I am of the opinion that the petitioner cannot now WP(C) NO.17968 OF 2019 -: 8 :- be heard to contend that Ext.P7 was not in terms of Section 90. The question raised before the High Court of Calcutta therefore has absolutely no bearing on the facts of the instant case where the petitioner submitted unequivocal option to be repatriated to his parent department and followed up on the same. In the facts of the instant case, I am of the opinion that the prayers as sought for cannot be granted. The writ petition fails and the same is, accordingly, dismissed. Sd/ANU SIVARAMAN JUDGE Jvt/3.2.2023 WP(C) NO.17968 OF 2019 -: 9 :- ## **APPENDIX OF WP(C) 17968/2019** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY FO THE DOFPI OFFICE ORDER NO.A-| |---|---| ||12025/2/94-F&VP(A) DATED 11.2.2000.| |EXHIBIT P2|TRUE COPY OF THE MOFPI OFFICE ORDER NO.19/2008| ||DATED 29.1.2008.| |EXHIBIT P3|TRUE COPY OF THE FSSAI OM NO.01/HRD/2008-FSSAI| ||DATED 25.11.2008.| |EXHIBIT P4|TRUE COPY OF THE MOFPI OFFICE ORDER NO.220/2008| ||DATED 2.12.2008.| |EXHIBIT P5|TRUE COPY OF THE FSSAI LETTER NO.12-| ||26/ADMN/FSSAI-2009 (PT.1) DATED 22.4.2009.| |EXHIBIT P6|TRUE COPY OF THE FSSAI OFFCE ORDER F.NO.A-| ||12012/2/2011-ADMIN. FSSAI DATED 19.10.2011.| |EXHIBIT P7|TRUE COPYOF THE FSSAI OFFICE ORDER FILE NO.A-| ||21021/04/2012-ADMIN.FSSAI DATED 26.3.2012.| |EXHIBIT P8|TRUE COPY OF THE HON'BLE CALCUTTA HIGH COURT| ||ORDER IN W.P.NO.13167 OF 2012 DATED 26.9.2012.| |EXHIBIT P9|TRUE COPY OF THE FSSAI OFFICE ORDER NO.1-| ||340/FSSAI/IMPORT/2013 DATED 19.8.2013| |EXHIBIT P10|TRUE COPY OF THE FSSAI LETTER F.NO.Z-| ||16011/07/2014-E&A DATED 26.6.2014.| |EXHIBIT P11|TRUE COPY OF PETITIONER'S REPRESENTATION DATED| ||30.10.2014.| |EXHIBIT P12|TRUE COPY OF THE FSSAI LETTER NO.A-| ||19016/01/2013-D&A DATED 19.3.2015.| |EXHIBIT P13|TRUE COPY OF THE DOPT LETTER NO.4/7/2012-R&R AND| ||DC(VOL.II) DATED 13.5.2016.| WP(C) NO.17968 OF 2019 ||-: 10 :-| |---|---| |EXHIBIT P14|TRUE COPY OF THE MINISTRY OF FINANCE, DEPARTMENT| ||OF EXPENDITURE I.D.NOTE NO.1(8)/EV/2017 DATED| ||14.2.2017.| |EXHIBIT P15|TRUE COPY OF THE NOTE OF THE DEPARTMENT OF LEGAL| ||AFFAIRS, FTS NO.27178/2017/B DATED 20.2.2017.| |EXHIBIT P16|TRUE COPY OF THE MINISTRY OF HEALTH AND FAMILY| ||WELFARE ORDER F.NO.P.15025/43/2014-FR DATED| ||10.3.2017.| |EXHIBIT P17|THE TRUE COPY FO THE RELEVANT PORTIONS OF FSSAI| ||FILE NO.E-17011/01/2015-D&A DATED 19.12.2016.| |EXHIBIT P18|TRUE COPY OF THE FSSAI LETTER F.NO.A-| ||21021/04/2012-ADMN. FSSAI DATED 8.2.2018.| |EXHIBIT P19|TRUE COPY OF THE FSSAI LETTER F.NO.A-| ||21021/04/2012-ADMN. FSSAI DATED 1.6.2018.| |EXHIBIT P20|TRUE COPY OF THE PETITIONER'S REPRESENTATION| ||DATED 12.12.2018.| |EXHIBIT P21|TRUE COPY OF THE JUDGMENT IN WPC NO.1952 OF 2019| ||DATED 23.1.2019.| |EXHIBIT P22|TRUE COPY OF THE FSSAI LETTER F.NO.A-| ||21021/04/2012-ADMN. FSSAI DATED 2.4.2019.| |EXHIBIT P23|TRUE COPY OF THE FSSAI LETTER NO.E-| ||12017/01/2019-HR DATED 25.1.2019.| |EXHIBIT P24|TRUE COPY OF THE FSSAI LETTER NO.E-| ||12020/01/2019-HR DATED 3.5.2019.| |Exhibit P25|TRUE COPY OF THE 8TH RESPONDENT LETTER| ||F.NO.DG(INV)/ESTT.37/2021-22 DATED 22/7/2021| |Exhibit P26|TRUE COPY OF MY REPRESENTATION BEFORE THE 8TH| ||RESPONDENT DATED 22/9/2021| |Exhibit P27|TRUE COPY OF THE RTI REPLY LETTER| WP(C) NO.17968 OF 2019 ## -: 11 :- NO.P.15026/22/2020-FR DATED 8/12/2020 Exhibit P28 TRUE COPY OF THE FOOD SAFETY STANDARDS (AMENDMENT) BILL, 2014 DATED 13/2/2014 INTRODUCED IN THE RAJYA SABHA Exhibit P29 TRUE COPY OF THE 80TH REPORT OF THE PARLIMENTARY STANDING COMMITTEE ON THE FOOD SAFETY STANDARDS (AMENDMENT) BILL, 2014 DATED 27/11/2014 Exhibit P30 RTI REPLY IN FIRST APPEAL REGISTRATION NO FSSAI/A/E/22/0086 DATED 9.5.2022 Exhibit P31 TRUE COPY OF THE REPATRIATION ORDER OF R.K. GUPTA AC FNO. A-12021 ADMN FSSAI DATED 4.4.2012 Exhibit P32 TRUE COPY OF THE SIGNATURE BY R.K.GUPRA IN FILE NO 130115/1/2016 Q A DATED 4.1.2017 Exhibit P33 TRUE COPY OF THE OFFICE ORDER NO 12/2022 DATED 13.1.2022 Exhibit P34 TRUE COPY OF THE OFFICE ORDER NO 27/2022 DATED 28.1.2022 Exhibit P35 TRUE COPY OF THE OFFICE ORDER NO 14/2022 DATED 13/1/.2022 Exhibit P36 TRUE COPY OF THE OFFICE MEMORANDUM NO E/1011/01/ 2016 E&A DATED 22.1.2016 RESPONDENT EXHIBITS EXHIBIT R3 1 TRUE COPY OF THE OFFICE ORDER NO-1/2008 DATED 17/12/2008 EXHIBIT R3 2 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 16.2.2009 EXHIBIT R3 3 TRUE COPY OF THE LETTER DATED 2-4-2009 EXHIBIT R3 4 TRUE COPY OF THE LETTER DATED 17-3-2010 WP(C) NO.17968 OF 2019 -: 12 :- EXHIBIT R3 5 TRUE COPY OF THE FSSAI NOTIFICATION DATED 27-22012 EXHIBIT R3 6 TRUE COPY OF THE LETTER DATED 26-10-2011 SENT BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT R3 7 TRUE COPY OF THE OFFICER ORDER DATED 19-10-2011 OF FSSAI EXHIBIT R3 8 TRUE COPY OF THE OFFICE MEMORANDUM DATED 26-32012 OF FSSAI EXHIBIT R3 9 TRUE COPY OF THE LETTER DATED 29-3-2012 ISSUED BY THE PETITIONER ADDRESSED TO THE 4TH RESPONDENT EXHIBIT R3 10 TRUE COPY OF THE OFFICE ORDER DATED 19-3-2015 REPATRIATING PETITIONER TO HIS PARENT OFFICE WITH EFFECT FROM 31.3.2015 EXHIBIT R3 11 TRUE COPY OF THE INTERIM ORDER PASSED BY CALCUTTA HIGH COURT DATED 26-9-2012 IN WPC NO13167/2012 EXHIBIT R3 12 TRUE COPY OF THE CIRCULAR NO-G7 7(a) 8-9-1240 TO 1300DATED 28-5-2012 OF FSSAI EXHIBIT R3 13 TRUE COPY OF THE LETTER DATED 22-4-2009 NO-1226/ADMIN/FSSAI -2009 DENOTING OPTIONS EXERCISED BY THE EMPLOYEES OF CENTRAL GOVERNMENT TRANSFERRED TO FSSAI. EXHIBIT R3-14 TRUE COPY OF THE EXTRACT OF RULE 37 A OF THE CCS(PENSION) RULES. EXHIBIT R3 15 TRUE COPY OF THE ORDER ISSUED BY MINISTRY OF HEALTH AND FAMILY WELFARE GOVERNMENT OF INDIA DATED 10.3.2017 WITH REGARD TO MATTERS RELATING TO PF,LEAVE ENCASHMENT OTHER RETIREMENT AND TERMINAL BENEFITS TO CENTRAL GOVERNMENT EMPLOYEES ABSORBED IN THE FSSAI IN TERMS OF SECTION 90 OF FOOD SAFETY AND STANDARDS ACT 2006 EXHIBIT R3 16 TRUE COPY OF THE LETTER ISSUED BY THE FSSAI WP(C) NO.17968 OF 2019 -: 13 :- DATED 8.2.2018 TO THE PETITIONER EXHIBIT R3 17 TRUE COPY OF THE LETTER DATED 1-6-2018 ISSUED BY THE FSSAI TO THE PETITIONER EXHIBIT R3 18 TRUE COPY OF THE LETTER ISSUED BY THE FSSAI DATED 26.11.2018 TO THE PETITIONER EXHIBIT R3-19 TRUE COPY OF THE LETTER ISSUED BY THE FSSAI DATED 2-4-2019 TO THE PETITIONER EXHIBIT R3 20 TRUE COPY OF THE ORDER DATED 19-4-2012 IN F NOP-15025/29/2007-DFQC