Krishan Chand vs State of J & K

Arun Kumar Goel, Judge.

Petitioners have filed this writ petition for seeking a writ of mandamus against the respondents to the effect that all three of them were to retire at

the age of 60 years, as a consequence whereof they were entitled to pay and allowances etc.; with a further direction to grant them the service

pension with interest and costs. Petitioners came to be appointed as Mate/Gang Collie/Gang Mazdoor on 15.11.1956, 15.10.1956 and

11.6.1963 respectively in the Public Works Department, Roads and Building Division at Basohli. All the petitioners claim to have worked

continuously till 31.5.1991 without any break. Further case of the petitioners is that petitioners 1 and 2 were brought on the regular establishment

of Mate vide order dated 9.2.1984 issued by respondent No. 2, and petitioner No. 3 was brought on such establishment vide orders of the said

respondent dated 13th March 1984.case of the petitioners is that as per Article 226 of Jammu and Kashmir Civil Service Regulations read woth

Schedule II thereof, their age of superannuation was 50 years but the respondents had ordered the premature retirement of all the petitioners with

effect from 31.5.91 on their attaining 58 years of age. It is also the case set up in the writ petition by all the petitioners that since they had

completed five years of service on 31st July, 1979, therefore in view of Cabinet Decision No. 119 dated 14.3.1980 they were entitled to be

absolved on the regular establishment of the department on 31st July, 1979, despite this cabinet decision they were brought on regular

establishment on two dates i.e 9.2.1984 and 13.3.1984, as detailed hereinabove.

In the aforesaid background reliefs as noted hereinabove, have been claimed by the petitioners and an order of this court dated 7.11.1991

passed in SWP No. 622/91, in case titled as ""Shanti Prakash Vs. State and another"", was also pressed into service as an additional ground for the

grant of reliefs claimed in the writ petition. Respondents 1 to 3 have filed one set of objections to the writ petition and respondent No. 4 has filed

the other set of objections. However common defence in both the objections is that as per Article 226 (1) of Jammu and Kashmir Civil Service

Regulations, All persons, who were in service on 10.10.1966 and were treated inferior as per Schedule II of these regulations, were to retire on

their attaining age of 60 years. Whereas, on the other hand those who were appointed on 1.1.1987 or after that date were to retire on their

attaining age of 58 years.

As per their own showing petitioners were brought on to regular establishment by the respondents on 9.2.1984, therefore, the petitioners have

been rightly retired on their attaining the age of superannuation at 58 years and not 60 years as claimed by them. In the face of these facts it is

clearly made out that petitioners were not in service on 10.10.1966 so as to get the age benefit of 60 years for their superannuation. That being so,

the plea urged in this behalf by the petitioners is hereby rejected.

Now coming to the claim of pension as made by the petitioners in the present writ petition. Stand of respondents 1 to 3 in their objections is that as

per Jammu and Kashmir Civil Service Regulations in order to enable an employee to be entitled to pensionary benefits, he should have rendered

10 years regular service. As per respondents' case petitioners were brought on regular service of the department with effect from 10.2.1984 and

prior to it they were working as daily rated workers in the department. Therefore their case in this behalf had been rightly rejected. Respondent

No. 4 has taken up a stand in its objections that though pension papers of the petitioners were forwarded to the said office, on examination of

these cases in the light of rules relating to grant of pension, those have been rejected treating 10.2.1984 as the date of their being brought into

regular establishment who retired on 31.5.1991. In case 10.2.1984 is taken to be the date for entry of the petitioners into regular establishment,

then rejection of their claim for grant of pension calls for no interference.

Regarding claim of pension by the petitioners, paragraph 7 of the writ petition needs to be referred to which is to the folio wing effect:

That by virtue of Cabinet decision No. 119 dated 14380, the petitioners having already completed 5 years of service as on July 31,1979 were to

be absolved on the regular establishment w.e.f. July, 31,1979, but vide order No. 772728 dated 9284 issued by respondent No. 2, the cabinet

decision No. 119 dated 14380 has wrongly been interpreted to give effect to said cabinet decision w.e.f.10284 when the petitioners were brought

on regular establishment. In this connection it may be pointed out that the Cabinet decision is unambiguously clear to bring those PDL and TDL

having completed 5 years service as on July 31,1979 on regular basis, therefore, by virtue of directing contain in the Cabinet decision the

petitioners have to be treated in regular establishment w.e.f. 3171979. In this context it may be submitted that there was no break in the service of

the petitioners right from the very beginning and also right from 31779 onward till their date of premature retirement. Copy of the said Cabinet

Decision dated and No given above is annexed as annexure P5.

In their objections respondents 1 to 3 have replied this paragraph in the following terms:

Facts stated in para No. 7 are not correct hence denied. It is not correct that the petitioners had already completed five years of service as on

3171979. In this regard it is respectfully submitted that the posts were sanctioned vide Govt. order No. PW458 dated 1.9.1981 of 1981 in the

regular establishment and the petitioners were brought on regular establishment vide Superintending Engineer, PWD (RandB) Kathua's order No.

772728 dated 9.2.1984 as such it cannot be said that they had already completed five years service on regular establishment in the year 1979."" 6.

In view of the stand of petitioners made in para7 and that of respondents in their objections, it is clear that the existence as well as applicability of

Cabinet Decision No. 119 dated 14.3.1980 is not disputed. Reply on this aspect in their objections has been purposely kept vague by the

respondents. As a corollary to this what follows is that in case the Cabinet decision in question had not at all been issued and or was inapplicable in

the case of the petitioners, objection would have been pointed as well as specific, but again that is not the case. It hardly needs to be emphasised in

this context that under the law of pleadings each question of fact needs to be either specifically admitted or denied. Vague and or evasive denials of

a question of fact (as in the present case regarding the Cabinet decision (supra) is no denial in the eyes of law. That being so it is held that the

Cabinet decision in question was applicable fully to the case of the petitioners.

In the light of this factual position now let the case of the petitioners be examined. In paragraph2 of the objections it is the stand of respondents 1

to 3 that petitioner No. 1 was engaged as daily rated/gang mazdoor in the month of October, 1956, petitioner No. 2 was engaged on 1.4.1956

and petitioner No. 3 on 11.8.1962 in PWD (RandB) Division Basohli. In view of the Cabinet Decision No. 119 dated 14.3.1980 the petitioners

having already completed five years of service as on 31.7.1979, were to be absolved on regular establishment from the said date i.e. 31.7.1979.

But instead of doing so, para7 of the objections filed by the respondents mentions that petitioners were brought on regular establishment of the

department on from a later day, why ? Has not been explained.

In this context at the risk of repetition it may be appropriate to mention that petitioners were entitled to and in fact should have been brought on

regular establishment with effect from 31.7.1979. That being so the petitioners on the date of their superannuation i.e. 31.5.1991 had admittedly

completed more than 10 years of service in terms of aforesaid Cabinet decision i.e. with effect from 31,7.1979.

Respondents 1 to 3 might say that petitioners being brought in the year 1984 on the regular establishment of the department was never questioned

by them till they were superannuated on 31.5.1991,. as such the claim of the petitioners regarding pension by giving them the benefit of Cabinet

decision in question having either become stale or suffering from delay and laches which also disentitles them from maintaining the present petition.

This court cannot loose sight of the fact that the petitioners were admittedly Class IV employees borne on the strength of the department, who

prima facie appear to be illiterate persons being hardly able to put in their signatures as is evident from the signatures put on Vakalatnama by all

three of them and on affidavit by Krishan Chand. Besides this, petitioners being low paid employees probably felt happy on having been brought

on to the regular establishment of the department in the year 1984 little realising that it will be of no consequence. This court further cannot loose

sight of the fact that the petitioners would be more concerned in making their both ends meet rather than fighting out with the department, a limb of

the Welfare State. In all fairness as a model employer it was expected of respondents 1 to 3 to have given them the benefit of Cabinet decision by

taking them on regular establishment of the department on and with effect from 31.5.1979.

In addition to the above pension, it is by now well settled, is a property and an employee has a constitutional guarantee for receiving the same. That

being so grant of pension cannot be termed as a bounty becoming payable at the whim and fency of the Government. Consequently a government

employee has a right to get the admissible pension under Rules on his superannuation as a matter of right vested in him. For earning pension a

Government employee puts in service for a requisite number of years and it is only thereafter that he earns the same.

For taking this view support can be had from AIR 1962 Punjab 503, ""Bhagwant Singh V. Union of India"", AIR 1971 SC 1409, ""Deekinandan

Prasad V. State of Bihar"" AIR 1967 Punjab 279, ""K. R. Erry V. State of Punjab"", and AIR 1976 SC 667 ""State of Punjab V. Iqbal Singh"". A

reference may also be made to the plea urged in support of this petition that on the basis of decision in SWP No. 622/1991 (supra) petitioners are

entitled to grant of pension, firstly that is a judgement on its own facts wherein the learned Judge had based his conclusion on the findings arrived at

between the parties under Payment of Wages Act as well as under the Payment of Gratuity Act wherein both the authorities had allowed the

petitioner in the said writ petition his retirement and gratuity benefit by holding that he was entitled to retire at the age of 50 years under Section

226(1) of Civil Service Regulations and such findings had become final interparties. Thus the said decision cannot be taken to be a binding

precedent, muchless declaring the law which may become applicable to the facts of the case. As such no benefit can be drived by the petitioners in

the present case from this judgement.

Regarding pleadings of parties, a passing reference needs to be made to the orders passed by the court from time to time. This writ petition

was admitted on 27.3.1992 and notice was ordered to be issued. Record of the case shows that respondents were allowed time for filling counter

and finally on 17.8.1993 following order has been passed :

Mr. Adarsh Sharma.

Mrs. Seema Shekharfor R.1 to 3

Mr. M. K. Bhardwaj for R.4.

Counter has not been filed, in terms of the court order dated 15.3.1993, and the right to file the same seems to have been closed. Mrs. Seema

submits that she has already filed the objections to the writ petition, feeling that the case has not as yet been admitted, and the objections so filed

by her within the prescribed period be treated as counter to the writ petition. Her prayer is allowed. Mr. Bhardwaj appearing for respondent No.

4 has submitted that he could not file the counter due to the fact that record was not received by him from the concerned quarter and in case the

right to file the counter is not reopened, the respondent/State will be put to trouble, and the case cannot be disposed of on merits. The other side

has no objection in case Mr. Bhardwaj is allowed to file the counter in the matter, but, however, subject to the payment of costs. Hence, on

payment of costs to the tune of Rs. 500/ to the other side, Mr. Bhardwaj is directed to file counter on behalf of respondent No. 4, and it shall be

entertainable only after the costs are paid to him to the other side. For weeks time is granted to him for this purpose. List thereafter.

No other point is urged.

For the aforesaid reasons it is clear that so long the petitioners were employed as daily rated/gang mazdoor etc. they were not on the regular

establishment of the department. Since it has been held that the case of the petitioners is governed by Cabinet Decision No. 119 dated 14.3.1980

and they had put in five years of service as on 31.7.1979, they were entitled to be brought on regular establishment from the said date. That being

so on the date of their superannuation i.e. 31.5.1991 they had admittedly put in more than 10 years service from this date i.e 31.7.1979. As such

in view of the stand of respondents 1 to 3 they are entitled to pension having rendered qualifying service for the grant of pension. This writ petition

is allowed to this extent and it is held that all the three petitioners are entitled to the grant of pension taking the date of their being brought on to

regular establishment as 31.7.1979. Respondents 1 to 3 are directed to forward the case of the petitioners to respondent No. 4 for fixation as well

as grant of pension within a period of three months of the receipt of a certified copy of this order by respondent No. 2. In case any papers are

required to be signed or any other formalities required to be done by the petitioners, it shall be the responsibility of the incumbent of the post of

respondent No. 2 to get the needful done from the petitioners and it shall not be a ground for extension of time of three months for processing as

well as forwarding the case to respondent No. 4. Within three months of the receipt of proposal, respondent No. 4 is directed to accord necessary

sanction and issue the pension payment order to the petitioners including working out the arrears etc. Thus the entire exercise will be completed by

respondents 2 and 4 for finalising as well as issuance of pension payment order together with arrears etc. within a period of six months as

aforesaid. Failure to do the needful within the specified period would further entitle the petitioners to claim interest @15 % per annum so long the

amount remains unpaid. This amount shall be recoverable personally from the officer/official concerned responsible for delaying the matter.

No costs.