MADAN, J. - (1.) THIS special appeal has been preferred by appellant Food Corporation of India (for short, "fci") against the judgment and order dated 25. 8. 1998 of the learned Single Judge of this court on the grounds inter-alia that respondent S. S. Agrawal, who had retired from services of the appellant FCI on the post of Assistant Manager (Depot) with effect from January 31, 1996, was entitled to receive pensionary benefits on Central DA pattern as applicable to the employees of the Central Government. Respondent employee was initially appointed on the post of Inspector (FPS) in the year 1963 in the Food Department of the Central Government. In the year 1964 the Legislature enacted Food Corporation Act, 1964 (for short, "the Act") whereby various functions of the Food Department were en-trusted to the FCI which has been created under the Act. After creation of the FCI, services of respondent employee were transferred from the Food Department to the "food Corporation of India (appellant's office) in November 1966 on the equivalent post which he was holding in the erstwhile department by virtue of provisions contained in Section 12a of the Act. Section 12a was inserted in the Act by the Amendment Act of 1968 which was further amended by the Amendment Act No. 12 of 1977 making it effective from 31. 12. 1976. Prior to the said amendment, there was no stipulation as regards service conditions mentioned in sub-section (3) of Section 12a of the Act for the transferred employees of the erstwhile Food Department, who were absorbed with FCI for protecting their pay and other bene-fits which were being paid to them during service tenure of the Central Govt. As regards remuneration and other service conditions including pension, leave, Provident Fund (PF), gratuity etc. , since various employees of the Food Department were transferred to the FCI and absorbed by virtue of powers conferred under Section 12 of the Amending Act of 1968, the Legislature in its wisdom protected their rights and service conditions. Consequently for the first time, the amendment was brought about by the Act No. 12 of 1977 protecting the rights of the employees under the terms subject to the provisions of sub-sections (4), (4a), (4b), (4c), (5) and (6) The mode of option was prescribed as required under the provisions contained in clause (a) of sub-section (4a) of Section 12a of the Act and the respondent em-ployee was required to submit his option for availing of pension, leave and other benefits as admissible under the Act within six months from the appointed date i. e. 31. 12. 1976. The options so exercised was to reach the competent authority latest by 30. 6. 1977.
(2.) IT has been contended that as per aforesaid requirement, the respondent employee submitted his option well within time on 25. 6. 77 as is evident from his option form duly forwarded by the District Manager FCI Ludhiana, thereby the respondent employee became entitled as of right to receive all benefits according to pay scale prevalent and admissible to similarly placed employees of the Central Government on Central DA pattern besides other allied benefits as is evident from a perusal of Annexure 1 transferring services of the respondent employee to the FCI permanently w. e. f. 1. 3. 1969, as has been stated in his option form referred to above (Ann. 2 ). With regard to the GPF, and leave encashment dues etc. the respondent raised objections notwithstanding communication dated 13. 12. 1996 (Ann. 3) by the Deputy Manager (GPF) to the Deputy Zonal Manager (North), because while a sum of Rs. 1,31,913/-towards GPF was released to the respondent employee on Central DA pattern, the pensionary benefits as admissible to similarly placed employees like the respondent employee were unlawfully withheld by the FCI notwithstanding repeated requests conveyed through relevant correspondence by the respondent without any justifiable cause or excuse, on the pretext that the petitioner was trans-ferred by the respondents Corporation vide notification dated 20. 09. 1979 wherein as per the said Notification he was required to submit his option latest by 19. 03. 1980 i. e. within six months and since it was exercised beyond the period of six months on 11. 04. 1980 as such he was not entitled to pensionary benefits. Hence the aforesaid pension was not treated as valid. As regards earlier option exercised by the respondent, it has been contended that since during the relevant period there was no notification, it was for no significance in the light of circular dated 11. 1. 1977. As regards the respondent employee's entitlement for leave encashment, the appellant FCI has not disputed the same on the pretext that the said benefit is admissible to all sets of employees of the Corporation, irrespec-tive of the fact whether those are covered under pensionary benefits of Central Government as terminal benefits of the appellant Corporation. We have heard the learned counsel for the parties at length and examined rival contentions as well as relevant documents on the subject. Prima facie we are of the considered view that the appellants have failed to take judicial notice of the salutary provisions of Section 12a of the Act which is special provision for transfer of Government employee to the FCI and sub-section (3) of Section 12a reads as under: " 12a. Special provisions for transfer of Government employees to the Corporation in certain cases :- (3) An officer or other employee transferred by an order made under sub-section (1) shall on and from the date of transfer, cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and shall, subject to the provisions of sub-sections (4), (4a), (4b), (4c), (5) and (6) to be governed by the regulations made by the Corporation under this Act as respects remuneration and other conditions of service including pension, leave and provident fund, and shall continue to be an officer or employee of he Corporation unless and untill his employment is terminated by the Corporation. " Sub-section (4a) to Section 12a which came into force by Act 12 of 1977 w. e. f. 31. 12. 1976 reads as under: " (4a) Not with standing anything contained in sub-section (4)- (a) every officer or other employee in respect of whom an order of transfer under sub-section (1) had been made before the date of commencement of the Food Corporations (Amendment) Act, 1977 (hereafter in this section referred to as the appointed day) shall whether or not he had exercised the option under sub-section (4) before the appointed day, exercise such option within six months from the appointed day; and (b) every officer or other employee in respect of whom an order of transfer under sub-section (1) may be made after the appointed day shall, within six months from the date of such order, exercise his option under sub-section (4), and in each such case such option once exercised shall be final: Provided that where an officer or other employee having exercised an option under sub-section (4) before the appointed day- (i) has died or retired before the appointed day, or dies or retires after the appointed day, before exercising the option as required by this sub-section, or (ii) does not exercise the option as required by this sub-section, vali-dly exercised by him under sub-section (4)". In para 6 of the reply filed by the FCI to the writ petition they have admitted in unequivocal terms that the respondent employees had exercised his option earlier within stipulated time of six months but it could not be taken into consideration since no notification was in existence at the relevant time and hence option of the respondent was of no significance. The contention of the respondent employee is that he had exercised his option within six months as per the provisions contained in Section 12 of the Act of 1964 with a further assertion that the benefit of pay scale and GPF on Central DA pattern was extended to him in view of the op-tions exercised by him earlier on 25. 6. 1977. Hence, in our considered view, it is not open to the department appellant to take a contrary view of the matter with a view to deprive the respondent of his pensionary benefits as admissible to other similarly placed employees of Central Government which would serve as a deterrent to those employees of the Corporation, who on transfer from erstwhile food depart-ment were absorbed in the FCI and all the service benefits admissible to other similarly placed employees on Central DA pattern should have been equally extended to the respondent employee. In our considered view the findings arrived at by the learned Single Judge are not open to challenge. Thus, we are further of the view that the FCI has raised hypertechnical objection on technical grounds with a view to defeat the benevolent and legitimate claims of the respondent employee as regards his entitlement to pecuniary benefits while PF and leave encashment as has already been permitted to him on parity with other similarly placed employees of the FCI. This would obviously result in gross discrimination which is neither permissible nor warranted by the statute, itself viz. the Act of 1964. The learned Sin-gle Judge has recorded well reasoned findings that the options earlier exercised by the respondent employee could not be ignored on the ground that it was premature since the benefit of GPF and pay scale on central DA pattern had already been extended to the respondent employee on the basis of the option earlier exercised on 25. 6. 1977. In our considered view, he is also entitled to get the benefits on central DA pattern as admissible to similarly placed employees and consequently there was no justification for the FCI to have directed the respondent employee to exercise his option afresh as regards pensioner benefits. As a result of the above discussion, this appeal fails and is hereby dismissed with no order as to costs. The order and judgment passed on 25. 8. 98 by the learned Single Judge is upheld. The appellants are directed to release all consequential benefits as admissible to the respondent in accordance with law within eight weeks from today if not already released. . ;