Abdul Majid Khan vs Jammu & Kashmir Industries Limited And Others

M. A. Chowdhary, J

The Petitioner, through the medium of the present Petition filed under Article 226 of the Constitution of India, seeks a direction upon the Respondents for grant and release of pension and other post-retirement benefits in his favour, as has been granted to other similarly situated employees of the Jammu & Kashmir Industries Limited (for short ‘the JKI’).

The Petitioner claims to have been engaged as a Daily Wager in the Respondent-JKI way back in the year 1957, whereafter he was confirmed and appointed as Boiler Mechanic on substantiative basis in the year 1961in the Leather Tannery, Shalteng, under the administrative control of the JKI; that vide cabinet decision No. 940 of 1978 dated 28th of December, 1978 read with Government Order No. 63-11 PAC ID 1980 dated 25th of February, 1980, sanction was accorded to the transfer of the Leather Tannery to M/S Dar Sons Boulevard, Srinagar, on the terms and conditions contained therein. In terms of the said Government Order, the aforesaid firm also took the staff and workers of the Leather Tannery and, as such, the Petitioner, along with other staff, continued to work in the said firm till the firm was wound up by the Government in 1990 and the employees of Leather Tannery were absorbed in various Government Departments.

The Petitioner further claims that he, too, came to be adjusted/ appointed in the Power Development Department, by which time he had completed more than 30 years of regular service in the Respondent-JKI; that, thereafter, the employees of the JKI filed various Petitions before the Courts for grant of pensionary benefits in their favour, which reached upto the Hon’ble Supreme Court, as a result whereof, the said employees were held entitled to the pensionary benefits and same were released in their favour by the Government. It is the case of the Petitioner that despite he having worked in the Respondent-JKI for more than 30 years on substantive basis and he being similar to other employees of the Respondent-JKI who were granted the pensionary benefits, he has been subjected to invidious discrimination, inasmuch as, he has not been granted the pensionary benefits. The Petitioner claims to have filed series of representations before the Respondents for seeking release of pensionary benefits in his favour, but no action with respect thereto was taken by the Respondents, thereby constraining the Petitioner to file the present Writ Petition before this Court.

Objections stand filed on behalf of the Respondents, wherein it has been stated that in the year 1990, the staff of M/S Dar & Sons, including the Petitioner herein, were appointed on a regular temporary basis, with relaxation of age and qualification requirements, in various Government Departments and these appointments were subject to the condition that they would be considered as fresh appointments, and the Government would not be liable for their previous service rendered with the JKI and M/S Dar & Sons. It is also submitted that the Petitioner’s appointment in the Power Development Department was a fresh one, to which he neither objected to at the relevant point of time nor asked for transfer back to the Respondent-JKI for over three decades. It is also submitted that there exists no relationship between the Petitioner and the Respondent-JKI as the Petitioner was appointed in the Power Development Department against available vacancy of Boiler Mechanic in the regular pay scale, therefore, he can claim the pensionary benefits from his parent Department viz. Power Development Department, wherefrom he attained the age of superannuation.

The Petitioner has also filed Rejoinder to the Reply so submitted by the Respondents, wherein he has denied the averments made by the Respondents. It has been reiterated that the Petitioner, being the employee of the Respondent-JKI from the year 1961 to 1990, is entitled to receive pensionary benefits, as have been granted to other similarly situated employees of the JKI.

Heard the learned Counsel for the parties, perused the record and considered the matter.

The matter, as is being urged on behalf of the Petitioner in the present Petition, has already been agitated before this Court by similarly situated ex-employees of the Respondent-Company, which were ordered to be granted pensionary benefits by the learned Single Judge of this Court, against which an intra Court appeal came to be filed before this Court and the orders passed by the learned Single Judge were not found favour with the learned Division Bench and the Judgment passed by the learned Writ Court was set aside. Aggrieved of the Judgment passed by the learned Division Bench, the Petitioners/ Appellants filed a Special Leave Petition before the Hon’ble Supreme Court and the Apex Court in case titled ‘Jawahar Lal Sazawal & Ors. v. State of Jammu & Kashmir and Ors.’, reported as ‘(2002) 3 SCC 219’, was pleased to set aside the Judgment passed by the Division Bench of this Court. While affirming the law laid down by the Apex Court in an earlier Judgment titled ‘Roshan Lal Tandon v. Union of India’, reported as ‘AIR 1967 Supreme Court 1889’, wherein it had been held that “once appointed to his post or office the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government”, it was held that the irresistible conclusion is that the Appellants were and continue to be the servants of the State Government and as permanent residents of the State of Jammu & Kashmir are entitled under Section 10 of the State Constitution to be treated on par with other Government servants in keeping with Articles 14 and 16 of the Constitution of India. It was also observed by the Hon’ble Supreme Court that by the impugned orders, the State Government has sought to deny the Appellants such equality and that the impugned orders cannot, therefore, be constitutionally sustained and must consequently be quashed.

The Apex Court, while tracing the genesis of the case, observed that the Appellants were Government servants and later their services were transferred to the Industrial Units set up under the administration of a Board of Directors and, lastly, to the Respondent-Jammu & Kashmir Industries Limited, incorporated as a Private Limited Company under the provisions of the Companies Act, 1977 to run, manage and administer the State Industrial Undertakings as may be notified by the Governor in a manner as would ensure their economic working. Thereafter, the Company framed its own service rules which were entitled as ‘the Jammu & Kashmir Industries Service Regulations’, however, the revision of grades and dearness allowance benefits were continued to be paid to the employees as were being paid to other Government servants of the State in view of 1973 Chatterjee Wage Committee Report. Again, in the year 1979, a Committee known as Rajan Committee was set up by the State government to examine the wage structure of employees of Public Sector Corporations, which was accepted by the Cabinet on 22nd of April, 1980. After giving the aforesaid factual background of the case, the Hon’ble Apex Court held that the High Court has proceeded on erroneous assumption that the Government Industrial Undertakings stood abolished with the formation of the Company and observed that there was nothing in the instructions which would remotely be construed as an order abolishing the posts held by the Appellants.

After the Judgment supra of the Apex Court, this Court in the Petitions filed by similarly situated employees, who were not Petitioners in the earlier litigation, considered their matters in SWP No. 1492/2006 titled ‘Santosh Kumari v. State & Ors.’, decided on 2nd of November, 2017 by the Jammu wing of this Court and SWP No. 275/2006 titled ‘Ab. Gani Hajam & Ors v. State of J&K’, decided on 28th of January, 2018 by the Srinagar wing of this Court, wherein it was held that similarly circumstanced ex-employees of the Respondent-Company, who had been initially recruited and appointed as Government employees and whose services were later transferred to the Respondent-Company, are entitled to the pensionary benefits/ retiral emoluments, like the Petitioners/ Appellants before the Hon’ble Supreme Court.

In Santosh Kumari’s case supra, this Court directed as under:

“A perusal of Annexure-A further shows that the appellants in the aforesaid case were thereafter given the benefit and pension etc. The said order was passed by the respondent State on 8th of August, 2002, after the decision of the Apex Court in the aforesaid case and about 169 employees of the different industrial units run by the Industries and Commerce Department of the State who were appointed before 3rd of October, 1963, as indicated above, were given the said benefit. Therefore, the deceased in the present case who was also similarly situated cannot be denied this benefit.

At the hearing, Mr P. C. Sharma, learned AAG, appearing for the respondent-State submitted that the benefit has been denied to the deceased as he was not an appellant before the Apex Court.

I am of the opinion that the said plea raised by Mr Sharma, AAG, cannot be accepted. Once the Apex Court had observed that the appellants before it are entitled under Section 10 of the State Constitution to be treated at par with other Government servants in keeping with Article 14 and 16 of the Constitution of India, then the aforesaid plea raised by the counsel for the respondents, as indicated above, cannot be accepted when the deceased husband of the petitioner was similarly situated to that of appellants before the Apex Court.

In view of the above, this petition is allowed. The respondents are directed to release the pension and retiral benefits in favour of the petitioner which were due to her husband. Let this be done within a period of three months from the date, a copy of this order is made available to respondent-State by the petitioner or her counsel.

Disposed of accordingly.”

Thereafter, while following the aforesaid Judgment passed in

Santosh Kumari’s case supra, this Court in Ab. Gani Hajam’s case supra, observed as under:

“I have heard learned counsel and considered the matter. Without necessary hair splitting, I feel the case of petitioners in so far as their claim of parity with petitioners of Sazwal’s case whose title to retiral benefits in terms thereof has been acknowledged by Hon’ble Supreme Court and later acknowledged by the State Government by passing requisite administrative orders in follow up, in respect of the petitioners of that petition, is well founded for the simple reason that principles of law and procedure as declared by Hon’ble Supreme Court cannot be limited to a particular case only particularly when other facts/ factors in which the same were laid down are similar to those under consideration of Court. This is so for the reason that state cannot discriminate between similarly situated persons at par with each other in all respects of the matter, which as a matter of fact is the central theme of Jammu Bench judgment mentioned above, which, as stated at bar, has not been challenged by respondents in appeal.

Accordingly, the petition is disposed of by providing that respondent-corporation shall consider grant of retiral/ pensionary benefits to petitioners at par with petitioners of Sazawal’s case above quoted provided they are similarly placed/ situated with them in all respects and do not otherwise suffer any genuine disability for grant of same. The process for such consideration be accorded within four months from now.

Disposed of.”

Both the aforesaid Judgments passed by this Court were not assailed in appeal by the Government of Jammu & Kashmir, rather, in compliance of the same, vide Government Order No. 03-IND of 2009 dated 1st of January, 2009, sanction was accorded to the grant of pensionary and other post-retirement benefits under Rules to 23 employees or their legal heirs viz. the Petitioners in Ab. Gani Hajam’s case supra and Santosh Kumari’s case supra, who were stated to have been appointed prior to 3rd of October, 1963 in the Government Industrial Units under the administrative control of the Industries & Commerce Department of J&K Government and transferred to the Respondent-J&K Industries Limited at the time of its establishment in 1963.

Keeping in view the law laid down by the Hon’ble Apex Court in Jawahar Lal Sazawal’s case supra, as followed by this Court in Santosh Kumari’s case supra and Ab. Gani Hajam’s case supra, and reverting to the factual background of the case of the present Petitioner, it is noticed that the Petitioner had been appointed in the Respondent-Company as a Daily Wager in the year 1957, whereafter, he came to be appointed on substantive basis as Boiler Mechanic in the year 1961, as gets revealed from the pleadings placed on record by the Petitioner along with the Writ Petition viz. much prior to 3rd of October, 1963. Therefore, the contention raised on behalf of the Respondents that the present Petitioner is not similarly circumstanced with the Petitioners/ Appellants, who were before the Hon’ble Supreme Court and were found entitled to all the pensionary benefits, is belied in view of the subsequent Judgments passed by this Court in similarly situated employees, while following the mandate of Jawahar Lal Sazawal’s case supra, coupled with fact of the Respondents having acted upon those Judgments without assailing the same. That being so, the irresistible conclusion is that the Petitioner, ex-employee of the Corporation, is/ was to be treated as a servant of the Government of Jammu & Kashmir and, thus, entitled to be treated on par with other Government servants in keeping with Articles 14 and 16 of the Constitution of India.

In the light of the aforesaid observations and the law discussed hereinabove, as enunciated by Hon’ble the Supreme Court and followed by this Court in earlier decisions, the present Petition is allowed and the Respondents are directed to consider release of pensionary/ retiral benefits in favour of the Petitioner, being an ex-employee of the Respondent Corporation. Let this exercise be completed by the Respondents within a period of two months from the date a copy of this Judgment is made available to them.

Writ Petition is, thus, disposed of on the above terms, along with the connected CM(s). No order as to costs.