Tej Krishan and others vs State of J & K

O.P.Sharma J.

Both these petitions can be dealt with under a common judgment since what arises for our consideration is the status of the petitioners as

employees of the erstwhile Government Industrial Undertakings after the foundation of J and K Industries Ltd. i,e, respondent No: 2 Consequent

upon the Government Order No.SR27 of 1962 dated 3101963, which reads.

Sanction is accorded to the formation of a company under the J and K Companies Act 1977 for the running of the Industrial undertakings

mentioned in the annexure to this order.

The article and memorandum of Association of the said company as per annexures to this order, are also approved and it is directed that these he

registered under the J and K Companies Act, 1977"".

As a follow of action by order dated 08101963, the Government entriested 15 Govt. Industrial undertakings to the respondent No:2 alongwith the

assests and employees employed in these undertakings. Consequently, the petitioners and all those whose interest they claim to represent in these

petitions stood appointed by transfer in the newly formed company after its incorporation under the Jammu and Kashmir company's Act, 1977.

The case of the petitioners is that before the government industrial undertakings were transferred to the respondent company vide Govt order

dated '08.10.1963, their service conditions were regulated under the J and K Service Regulations (hereinafter Service Regulations). As they were

transferred to the respondent company without obtaining their option in terms of Article 207 of the Service Regulations, their status as Government

servant has remained undisturbed, entitling them to all the service benefits available to a government servant.

Mr. Sadiq, learned counsel appearing for the petitioners argued that the petitioners' status as government servant could be determined only

under Article 207 of the Service Regulations. Since they were transferred to the respondent company without obtaining their option, the order

impugned does not effect their status as government servant and they continue to be governed by the Service Regulations.

Mr.Kawoosa, appearing for the state, argued that the petitioners having accepted the new appointments without reservation and earned

promotions, cannot be permitted to challenge the action of the state after twenty years. This apart, the petitioners, according to the learned counsel,

by joining the new place of posting under the management and control of the respondent company have exercised the option under Art. 207 of the

Regulations and as such their status as government servants stands determined in accordance with the statutory rules.

5). It is admitted by the parties that before the formation and incorporation of respondent NO:2, all the Government Industrial Undertakings

entrusted to it by order dated 08101963 were under the administrative control of the Department of Industries and Commerce of the state. It is

also not disputed that all those who had been appointed in the undertakings were government servants, appointed by the Administration

Department. It is also an admitted fact that with the constitution of respondent No.2 and entrustment of the Government undertakings to it, the

petitioners accepted the appointments under the new management and have earned promotions under the service rules by the respondent

company.

The only question involved for consideration is, whether Article 207 of the service regulation has been observed and if not what is its

consequences on the service conditions of the petitioners', the Article reads as under:

If an officer is selected for discharge owing to the abolition of his permanent post he shall unless he is appointed to another post the

conditions of which are deemed to be at least equal to those of his own, have the option

a) of taking any compensation, pension or gratuity to which he may be entitled for the service he has rendered; or

b) of accepting another appointment on such pay as may he offered and continuing to count his previous service for pension.

This Article forms part of chapter xvii of the Regulation and deals with conditions of Grant of Pension. As a consequence of SRO27 dated

03.10.1963 read with govt order dated 08.10.1963, ail the government industrial undertakings stood abolished with the formation of the

respondentcompany under the company's Act. In terms of the Article, the petitioners had either to be selected for discharge or appointed t( >

another post, the conditions of which have c t least to be deemed to be equal but not necessarily the same. They ware n;;t selected for discharge,

but appointed by transfer in the respondent company having the same designation and pay, which they accepted without any reservation. In doing

so, the petitioners have exercised the option by accepting another appointment on such pay as was offered to them in terms of clause (b/ of Art.

What is the consequence of this upon their right to question the order may now be examined.

In Warryamchand Vs state of J and K, SWP No:549 of 1983 decided on 29.06.1988 in which a learned single judge of this court held that;

After the factory was taken over by the J and K Industries Limited, petitioners came to be transferred to .the company and became the

company's employees, and he is said to have earned promotion as a Distiller in 1972. The promotion was given to him by the company which

would mean that he had optioned for the services of the company. As such he cannot now say that he was not given choice of option under Article

207 K.C.S.R. It is too late in the day for him to invoke the aid of Art. 207 KCSR

The correctness of this judgment was questioned before the learned single judge(Mr. Justice VK Gupta), who observed as under:""...There is no

need to formulate any specific precise question of law because in my opinion, the entire matter should be heard and decided by a Division Bench

of this court, especially keeping in a view the service interests of a very large number of employees of the company, who are petitioners in this case

and who claim to be the employees of the State Govt. Additionally even though primafacie the view expressed earlier by the single Bench in SWP

No:549/83 appears to be legally sound and correct, yet, on the question of the availability of the right to exercise option at the time of transfer of

the undertaking to the company incorporated under the Companies Act and the relatable question regarding the waiver of such right, coupied with

the principle of acquiescence by a larger bench is considered very desirable in the interest of justice, especially because the matter at one stage was

taken to the apex court and a large number of employees working in the company would tend to get effected, one way or the other...

The judgement of the learned single judge in waryam Chand case (SWP No:549/1983), in our opinion, is based on the correct interpretation of

Article 207 of the Service Regulation because the petitioners have during all these years earned promotions and enjoyed service benefits under the

Service Regulations, framed by the respondentcompany and having accepted the new appointment they cannot turn back and claim the status of a

government servant which they voluntarily surrendered in 1963. What ever status they held as government servants stands determined after they

exercised the option available to them under this provision.

Mr.Sadiq, however, argued that petitioners status as government servants could not be determined by their acceptance of the appointments as

duties of a government servants are fixed by law in the enforcement of which society has an interest, as laid down in Rosan Lal Tandan and another

Vs union of India and another, AIR 1967,SC 1889, holding that:

.... It is true that the origin of Government service is contractual. There is an offer 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 status and statutory rules which may be framed and altered

unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of

status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The

emolument of the governed servant and his terms of service are government by status or statutory rules which may be unilaterally altered by the

Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted

to the president and the Governor under Article 310 But it is obvious that the relationship between the government and its servant is not like an

ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It

is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the

enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which

powers and duties are exclusively determined by law and not by agreement between the parties concerned...

However, the ratio of the decision only endotherses the view that status of a Government servant can be determined either under the Constitution

or statutory rules. Petitioners, status having been determined under Art 207 of the Service Regulations, framed under section 124 of the

Constitution of Jammu and Kashmir, there is no infraction of any of their rights. Since the status of the petitioners have been determined under

Article 207 of the Service Regulations, there is no substance in the contention of Mr Sadiq.

It was next argued by Mr. Sadiq that the status of a Government servant is protected by the constitution which could not be determined by

unilateral action. Since the order has visited the petitioners with penal consequences as their service conditions have been changed it amounts to

discrimination between one section of the Government servants and other, which is unconstitutional. Even this argument has to be noticed only to

be rejected because their status stood properly determined under Article 207 of the Service Regulations, which is a statutory provision. However,

even otherwise time and again it has been held that delay disentitles a party to the discretionary relief under Article 226 of the Constitution of India

and section 103 of the state Constitution. In Jagdish Lal and others Vs state of Haryana and others, AIR 1997 Sc 2366, the apex court held that:

..... This court has repeatedly held the delay disentitles the party to the discretionary relief under Article 226 or 32 of the constitution. It is not

necessary to reiterate all catena of precedences in this behalf. Suffice it to state that the appellants kept sleeping over their rights for long and

elected to wake up when they had the impetus from Vir Pal Chauhan and Ajit Singh's ratio.........

Similarly, in Bhoop Singh Vs Union of India and others, AIR 1992, Sc 1414, their Lordships held that:

It is expected of a Government servant who has a legitimate claim to approach the court for the relief he seeks within a reasonable period

assuming no fixed period of limitation applies, this is necessary to avoid dislocating the administrative set up after it has been functioning on a cert;

in basis for years. During the interregnum those who have been working to gain more experience and acquire rights which cannot be defeated

casually by collateral entry of a person at a higher point without the benefit of actual experience during the period of his absence when he chose to

remain silent for years before making the claim.....

In Naib Subedhar Lachhman Dass Vs Union of India and others, Ml'. 1977 SC 1979, the relief was denied because of the delay and laches by

holding that:

... It may perhaps be that the appellant was misdirected in regard to the remedies which he should have adopted, but what stares one in the face

Is that it was for the first time in September 1970 that the appellant invoked the extraordinary powers of the High court under Article 226 of the

Constitution for challenging (he legality of an order dated December 21,1966. ""The. writ petition was filed after a gross delay for which there is no

satisfactory explanation and, therefore, the High Court was justified in dismissing ii summarily.

There is not even a whisper in the petitions explaining the delay. An attempt was made to explain in the rejoinder stating that concept of State

owned company was not clear during all these years and, therefore, they could not seek enforcement of their rights. This is no ground to justify a

delay of nearly twenty years. The only change was that a state owned corporation would be a state within the meaning of Article 12 of the

Constitution But this had no effect on the service conditions of the employees of such corporation.

A similar question was considered by the

Apex Court in R.C. Sharma Vs the Chief Secretary Govt of M.P. Bhopal, AIR 1973 Sc 2279 in which the facts were as follows

The short question involved in this appeal is whether under the terms of the offer made and accepted by the employees they are entitled to the

same Dearness allowance as is being paid by the State Government to its employees?

While answering this question, their Lordships held that:

:....The object of creating a fiction of continuity of service was not to make the corporation employees and to make applicable to them any change

effected in the conditions of service of government employees, but what was intended was to secure to the transferred employees leave and

benefits depending upon the length of service by making their service fictionally uninterrupted. Ordinarily the change of employers would have the

effect of interrupting service.....

As clause(C) of Article 207 of the service regulations is parimateria with the condition existing in R.C.Sharma's case, the issue is no longer

resintegra. So the petitioners cannot claim Dearness allowances and other benefits on the same rates as available to the Government servants..

Lastly, it was argued that the writ petitions are not maintainable because the petitioners had earlier filed similar petition in the Supreme Court

which was dismissed as withdrawn without liberty to file the present petitions in this court. It is true that a petition under Article 32 is different than

the one under Article 226 of the constitution of India, But when rights sought to be enforced in both the petitions are on the same facts and no

attempt is made to explain the difference, the principle underlying R.I of 0.23 of the code of civil procedure should be extended in the interests of

administration of justice to cases of withdrawal of writ petition also, not on the ground of rest judicata but on the ground of public policy.

Since the petitions are being dismissed on the ground of compliance of Article 207 of the Service Regulations and delay and laches, it is not

necessary to express any opinion on this point.

in view of the above, both the writ petitions arc dismissed without any order as to costs,