Jammu, Sep 22: In LPA No.64/2020 titled 1. UT of J&K th. Chief Secretary, Govt. Of J&K, Jammu & ors V/s 1 Balwan Singh 7 ors after hearing HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE ordered as:-
JUDGMENT Sanjeev Kumar, J.
1 This appeal clause 12 of the Letters Patent is directed against judgment dated 31.12.2008 passed by a learned Single Judge of this Court [„the Writ Court”] in SWP No. 141/2014 titled „Balwan Singh and others vs. State of Jammu and Kashmir whereby the wit petition filed by the respondents No. 1 to 12 herein [“the writ petitioners”] has been allowed with a direction to the appellants herein to count the services rendered by the writ petitioners in the Society for the purpose of pensionary benefits only.
2 Before we advert to the grounds of challenge urged by Mr. Gupta, AAG appearing for the appellants, we deem it appropriate to give brief resume of factual antecedents leading to filing of this appeal.
3 The writ petitioners were the permanent employees holding different posts carrying different pay scales in the Rural Electric Cooperative Society Limited, Vijaypur (Samba) [“the Society”].
The Government of Jammu and Kashmir was a major shareholder/member of the Society. In the year 1997, the appellants vide Government Order No. 382-PDD of 1997 dated 16.02.1997 wound up and dissolved the Society which was established under Government Order No. 52-PDD of 1978. Consequent upon dissolution of the Society, 159 subordinate employees appointed by the Society from time to time were absorbed in the Power Development Department [“PDD”] by corresponding creation of posts of equal grade and designation in the PDD subject to the only 3condition that the absorption of such employees shall not operate disadvantageously vis-à-vis the existing employees of the PDD in the matter of seniority. On similar lines, about 101 daily rated workers working in the Society were also taken on the roll of PDD, to be regularized as per the provisions of SRO 64 of 1994.
Simultaneously, with the dissolution of the Society and absorption of its subordinate employees in PDD, all assets, properties, equipments and actionable claims of the Society were also taken over by the Chief Engineer, M& RE Wing as liquidator appointed by the Registrar, Cooperative Societies, Jammu.
4 The writ petitioners, some of them were retired and some were still in service of the PDD, filed SWP No. 141/2014 seeking, inter alia, a direction to the appellants herein to count the period of service rendered by them in the Society to be a qualifying service for the purpose of pension.
5 Despite service and having cause their appearance before the Writ Court, the appellants chose not to file any objections. As is apparent from the interim order dated 27.09.2018 passed by the Writ Court, further time was granted to the appellants to file reply subject to payment of Rs.4000/- as costs, to be paid to the writ petitioners, making it clear that in case of failure, the matter would be considered on its own merit.
Left with no option, the Writ Court, on the basis of averments made in the writ petition and the record annexed therewith, considered the case set up by the writ petitioners in ex parte and came to the conclusion that the refusal of the appellants to count the services rendered by the writ petitioners in the Society for the purpose of payment of pension was illegal, arbitrary and unfair.
46 The writ petition was allowed by the Writ Court on the ground that the Government Order No. 382-PDD of 1997 dated 16.12.1997 whereby the writ petitioners along with others were absorbed in the PDD clearly indicated that the writ petitioners were entitled to all the benefits upon their absorption other than claiming seniority over the existing employees of the PDD.
The Writ Court also found that, under similar set of circumstances, the Government had treated the services rendered by employees in some of the Cooperative Societies before their absorption in the Government service towards qualifying period for pension. Vide judgment dated 31.12.2018, the writ petition was allowed and a direction was issued to the appellants to count the services rendered by the writ petitioners towards qualifying period for pension. It is this judgment which is assailed by the Union Territory of Jammu and Kashmir along with the officers of the Department of Power Development, appellants herein, on numerous grounds.
7 Mr. Gupta, learned AAG appearing for the appellants submits that the Writ Court has not appreciated that the writ petitioners were the employees of a Cooperative Society and, therefore, did not hold a civil post under the Government.
It is submitted that in terms of Article 71 of J&K CSR, only the period rendered under following circumstances qualifies for pension: (i) Service must be rendered under the Government; (ii) Employment must be substantive and permanent; and, (iii) Service must be paid by the Government. 8 Mr. Gupta argues that the relevant provisions of J&K CSR providing for treating the service qualifying for pension have not been considered by the Writ Court. He also points out that the Government had considered the entire issue in the year 2001 and vide Government Order dated 518.08.2001 rejected the claim of employees of the erstwhile Society for counting their services rendered in the Society towards qualifying period for pension.
He submits that this Government order dated 18.08.2001 was within the knowledge of the writ petitioners, but the same was not challenged. He submits that in absence of any challenge to the Government order dated 18.08.2001 (supra), writ petition was not maintainable. Learned AAG also takes exception to the maintainability of the writ petition on the ground of delay and laches.
He submits that the issue raised in this petition was decided by the Government against them in the year 2001 and the writ petition was filed by the writ petitioners in the year 2014 without explaining this huge delay. 9 Per contra, Mr.R.S. Thakur learned Senior Counsel assisted by Mr. Ashwani Thakur Advocate submits that the Writ Court has considered the entire controversy in proper perspective and has, on the basis of interpretation put on Government Order dated 16.12.1997 (supra) came to the conclusion that the writ petitioners were entitled to count their past service rendered in the Society towards qualifying period for pension and that the Government order dated 16.12.1997 only provided that the absorption of the writ petitioners and other employees of the Society will not operate disadvantageously vis a vis the existing employees of PDD. He submits that there was no delay in approaching the Court, for, the Government order dated 18.08.2001 (supra) never saw the light of the day till the year 2011 when the writ petitioners found its reference and mention in one of the communications of the appellants.
It is submitted that the matter was agitated before the appellants and thereafter, in the year 2014, the writ petition was filed. 610 Having heard learned counsel for the parties and perused the material on record, we are of the considered view that the judgment passed by the Writ Court is well reasoned and, therefore, unquestionable both on facts and in law.
11 Indisputably, the writ petitioners were the employees of the society which was established by the appellants vide Government Order No. 52-PDD of 1978. The Government of Jammu and Kashmir was a major shareholder in the society. The appointment of the writ petitioners on different posts in the Society was proceeded by a proper selection process conducted by the District Development Commissioner, Jammu who was the ex-officio Chairman of the Society. The writ petitioners not only held the posts similar to those existing in Government Departments, but were also placed in the relevant pay scales. It is also not in dispute that, in the year 1997, pursuant to Cabinet decision No. 237/234 dated 18.10.1997, the Society was wound up and dissolved. All assets, properties, funds and dues were vested in the Government in PDD. 12 From a reading of Government Order dated 16.12.1997 (supra), it clearly transpires that the Society in which the writ petitioners were working as employees virtually merged with the PDD.
This necessitated the absorption of 159 subordinate employees working in the Society, in the PDD by corresponding creation of posts of equal grade and designation. This is how the writ petitioners came to be absorbed in the PDD against the posts and the grade they were holding in the Society.
From a reading of order dated 16.12.1997, it would further transpire very clearly that the absorption of the subordinate employees of the Society including the writ petitioners was complete and 7without any pre-conditions except that the seniority of the existing employees of the PDD was protected. The relevant paragraph of Government Order dated 16.12.1997, which is of extreme importance in the case, needs to be set out below:
“Absorption of 159 subordinate employees appointed by the Society in the PDD by corresponding creation of posts of equal grade and designation in the PDD subject to the condition that the absorption of the such employees shall not operate disadvantageously vis a vis the existing employees of the PDD in the matter of seniority”.
13 A careful reading of above paragraph of the aforesaid Government Order would make it abundantly clear that the intention of the Government was to take over the Society and absorb its employees in the PDD by placing them in equal grade and designation without subjecting them to any disadvantage. The Government was aware that absorption of the employees of the Society into PDD with all benefits and without any pre-conditions may affect the seniority of existing employees of the PDD. It is because of this reason a specific provision was made to protect the seniority of existing employees of the PDD vis a vis their counterparts in the Society who would become employees of the PDD with the issuance of Government order dated 16.12.1997.
14 It is true that the Government Order dated 16.12.1997 (supra) does not specifically provide that the employees of the Society upon their absorption in the PDD would be entitled to count their service rendered in the Society towards qualifying period for pension. but the intention of the Government is clear and unequivocal when it goes on to provide that absorption of the employees of the Society in the PDD would not operate 8disadvantageously vis a vis the existing employees of the PDD in the matter of seniority.
15 The Writ Court has rightly concluded that, from a reading of the entire Government Order dated 16.12.1997(supra), it is clearly inferable that the Government never intended to deprive the writ petitioners of their past service for the purpose of counting it as qualifying period for pension.
That apart, we find that, under similar set of circumstances when the employees of the erstwhile Milk Federations were absorbed in the Department of Animal Husbandry, the period of services rendered by them in the respective Federations was counted for working out the qualifying service for pension.
That being the admitted position, we find no reason to subject the writ petitioners to discriminatory treatment. That apart, it is not the case of anybody that writ petitioners were absorbed in the Government service on their request. They were serving in the Society and could have been entitled to receive the postal retiral benefits envisaged under bylaws of the Society.
However, the Government, pursuant to the decision of the Cabinet, dissolved the Cooperative Society and decided to absorb all the employees working in the Society in the PDD. Such action by the Government could not have been taken to the prejudice of the employees of the society.
Viewed in this background, it would be highly inequitable and unfair on the part of the appellants to deprive the absorbed employees of the Society including the writ petitioners of their past service for the purpose of counting it as a qualifying service for pension.
16 So far as the contention of Mr. Gupta, learned AAG that the Government order dated 18.08.2001 (supra) was not challenged by the writ petitioners specifically in the writ petition, we have gone through the entire writ petition and we find that the writ petitioners have mounted a scathing attack on the Government order dated 18.08.2001 and have contended that in the face of Government order dated 16.12.1997(supra) having been issued pursuant to a Cabinet decision, the Government order dated 18.08.2001 could not have provided to the contrary. Almost one page of the writ petition is devoted to the discussion around Government order dated 18.08.2001.
17 It is true that in the prayer clause, the writ petitioners have omitted to pray for a writ of certiorari or mandamus to declare Government Order dated 18.08.2001 (supra) bad in the eye of law.
However, having regard to the fact that the pleadings in respect of challenge to the Government order dated 18.08.2001 exist in the writ petition, we think it would not be appropriate for the Court to declare the same invalid as the same would be covered by the prayer for issuance of writ, order or direction which the Court deems just fit and proper in the circumstances of the case, which the writ petitioners have made in the writ petition. Having held that the Government order dated 16.12.1997 did not take away the right of the writ petitioners in respect of their past service rendered in the society being counted for pension, we find the objection taken by Mr. Gupta, learned AAG only technical in nature.
The Writ Court has elaborately discussed the case law relating right of an employee to receive pension etc. However, we will not like to burden this judgment with the case law discussed by the writ Court and would rather decide the matter on the admitted factual landscape of the matter.
18 Before we part with the judgment, we would like to clarify that there is no vested right in an employee for pension and the same is regulated by the relevant rules and regulations framed by the employer. In case of 10 employees of cooperative societies, their service conditions including their right to pension or post retiral benefits, if any, is regulated by the byelaws of such Society.
So far as the Government employees are concerned, their pension is regulated by J&K CSR, Article 71 thereof, which is relied upon by Mr. Gupta, learned AAG provides that, for entitlement to pensionary benefits on retiring from Government service on superannuation, a Government servant must have rendered the qualifying service under the State Government and that such service must be substantive and permanent, besides the employee must be paid by the Government.
19 In the instant case, the writ petitioners were employees of the Society registered under the Cooperative Societies Act and, therefore, were not Government servants.
However, by virtue of Government order dated 16.12.1997 (supra), they were absorbed in the PDD and became the Government servants. Whether they became Government servants w.e.f the issuance of Government Order dated 16.12.1997 or would be treated to be so for the purpose of counting their past service rendred in the Society for pension, was a question put for determination before the Writ Court and before us in this appeal.
20 It is not disputed by Mr. Gupta, learned AAG that the Government has plenary power to treat the service rendered by an employee in the erstwhile Department or organization as qualifying period for grant of pension. There could not have been a better occasion for the Government to do so when they took over the Society in which the writ petitioners were the permanent employee along with its assets and properties.
The absorption of employees of the Society was unequivocal and without any pre-condition except that their 11 absorption will not affect the seniority of the existing employees of the PDD. By so providing in the Government order dated 16.12.1997. It was made abundantly clear that the absorbed employees of the Society will suffer no disability or disadvantage and would be treated on a par with the Government employees.
The intention of the Government while issuing Government order dated 16.12.1997 was, thus, clear in favour of providing the benefit of counting the past service rendered by the writ petitioners in the Society towards qualifying service for pension under the Government.
21 Regarding delay and laches, suffice it to say that in the matter of pension, cause of action is recurring and so long as an employee entitled to pension is denied pension, it would be a fresh cause of action every month.
However, the Constitutional Court exercising equitable writ jurisdiction can not ignore unexplained inordinate delay and grant the relief. Hon‟ble Supreme Court in the case of Shiv Dass vs. Union of India (2007) 9 SCC 274 has provided three years time normally as reasonable period for approaching the Court even in the matters of pension. 22 In the instant case, when writ petition was filed in the year 2014, some of the writ petitioners were in service and only few of them had retired.
The real cause of action accrued to them for the first time only when retired writ petitioners were denied the pensionary benefits by the Accountant General by not counting the services rendered by them in the society as “qualifying period”.
True, it is, that similar claim made by some similarly situate employees stood turned down in the year 2001 but, as pleaded and not rebutted, the writ petitioners were not aware of such order till the year 2011 when they found reference of 2011 order in some official communication.
The 12 writ petition filed by them in the year 2014 was, thus, not inordinately delayed to be thrown out on the ground of delay and laches.
23 For all these reasons, as also for the reasons given by the Writ Court, we find no merit in this appeal and the same is, accordingly, dismissed
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