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2000 DIGILAW 18 (JK)

Bachan Singh v. State Of J. &K.

2000-02-11

A.K.GOEL, T.S.DOABIA

body2000
JUDGMENT 1. The second round of litigation was held to be barred by the principles contained in Order 2 Rule 2 of the Code of Civil Procedure. Writ petition stands dismissed. Now the present appeal has been preferred. 2. Before noticing the controversy which has arisen in this appeal, it would be apt to notice a few facts. 3. The appellant sought a writ of mandamus to the effect that he should be allowed to continue on the post of Chargeman in the pay scale of Rs. 1200-2040 for a further period of two years. This was on the basis of some recommendations made by the Power Development Commissioner and the Chief Engineer Systems and Operation Wing. His contention was that he cannot be made to superannuate on 31.1.1997. It was submitted that his case had been recommended for extension. He was of the view that the direction given by the respondents referred to above asking him to superannuate w.e.f. 31.1.1997 is contrary to Rule 10 of the J&K Work Charge Employees Service Rules of 1972. This prayer of his was made in a writ petition bearing SWP No. 108/1997. This was declined. The writ petition was dismissed. In the above writ petition, as indicated above, the prayers made were: i) That the attempt on the part of the respondents to superannuate the appellant w.e.f 31.1.1997 is illegal; ii) That the writ of Madamus be issued to let the appellant continue in service for a period of two years; 4. This prayer, as indicated above, was declined. This prayer of his was declined on 30.1.1997. After the writ petition was dismissed, the appellant preferred a second petition. By that time the appellant stood superannuated. He submitted that the order 31.1.1997 by which he had been ordered to superannuate is contrary to Article 226 of the Jammu and Kashmir CSR Volume-l. His plea was that he is a member of inferior service He also stated that he was entitled to pensionary benefits, particularly he claimed leave encashment salary, benefit of gratuity and pension. This prayer of his was declined. The writ petition came to be dismissed. This prayer of his was declined. The writ petition came to be dismissed. This was on the ground that he had claimed the same relief in SWP No. 108/ 1997 and therefore on account of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure 1997, a second petition on the same cause of action would not be maintainable. This order passed on 29.4.1997 is subject matter of challenge in this appeal. 5. A fine distinction is sought to be made by the appellant. This is to the effect that earlier he came with a plea that he should be permitted to continue for a period of two years expiring on 31.1.1997. This prayer was declined on 30.1.1997. In the present petition, he is challenging the actual termination and is also claiming pensionary benefits. 6. We are of the opinion that so far as relief of pensionary benefits and post retirement benefits are concerned, this was and could not be a subject matter of challenge in the earlier petition because on the date he filed the earlier petition i.e. 25-1-1997 he was still in service. His petition came to be dismissed on 30.1.1997 i.e. before his date of retirement, therefore, when he preferred a second petition, he was filing the same challenging the factum of retirement and at the same time, he was claiming pensionary benefits. We are of the view, that so far as pensionary benefits are concerned, this was not the subject matter of challenge in the earlier writ petition and therefore, the provisions and principles laid down in Order 2 Rule 2 of the Civil Procedure Code would not be attracted. To repeat, the cause of action qua claim regarding pension arose only after 31.1.1997. The earlier writ petition was filed before the date of superannuation. It was decided earlier. As such so far relief of pension is concerned, this would not be barred by the principles of constructive res-judicata contained in Order 2 Rule 2. 7. The question arises as to whether the merit of the controversy can be gone into in this appeal or whether this is a case where the issue to be settled is required to be sent back to the Learned Single Judge of this Court for re-deciding the writ petition. 7. The question arises as to whether the merit of the controversy can be gone into in this appeal or whether this is a case where the issue to be settled is required to be sent back to the Learned Single Judge of this Court for re-deciding the writ petition. If there is sufficient material available on the record and on that basis, judgment can be pronounced, then there is no necessity to remand the matter. The subject of remand is dealt with in Order21 Rule 23 of the Civil Procedure Code. The factor which should be present necessitating an order of remand have been stated therein. Again Order 21 Rule 24 lays down in clear terms that the Appellate Court can dispose of a case finally without a remand if there is sufficient material on the record to do so. We are of the opinion that this appeal can be disposed of without remitting the same. This is because the question involved in this case is as to whether the appellant is entitled to pensionary benefits or not is purely legal. No doubt, It would indirectly lead to determination of the question as to what should have been his date of retirement but as indicated above, this is being done only to determine the pensionary benefits. The legal position as to pensionary benefits be examined. 8. Pension is payable under Regulation 177 and 177(A) of the Civil Services Regulation. Age of retirement is fixed under Regulation 226. The legal position as to pensionary benefits be examined. 8. Pension is payable under Regulation 177 and 177(A) of the Civil Services Regulation. Age of retirement is fixed under Regulation 226. These Regulations are relevant and are being noticed: "177 Service does not qualify unless the Officer holds substantive office on a permanent establishment: Provided that in case of a Government servant retiring from service on or after 1st of January 1962, if he was holding a substantive office on a permanent establishment on the date of his retirement temporary, officiating including temporary service contemporary establishment / Department, S.P.T. or quasi permanent service followed with out interruption by confirmation in the same or another post shall count in full as qualifying service except in respect of: - (i) periods of service paid on work charge establishment and (ii) periods of service paid from contingencies; Provided further that in case of continuous quasi-permanent service of 5 years or more, a government servant who may not have been confirmed on any post before the date of his retirement (including retirement on invalid pension) shall be entitled to count the entire period of quasi permanent service and the continuous temporary service whether on pensionable or temporary establishments/ Department (excluding non-pensionable establishments mentioned above) preceding his quasi-permanency towards service qualifying for pension and he shall be eligible for pensionary benefits as if the entire period of temporary service and the quasi-pensionable. (i) Provided also that a temporary Government servant who on his retirement from service on his being declared permanently incapaciated for further Government services by the appropriate medical authority or who on his death while in service has rendered temporary service or not less than 20 years, shall for purposes of all pensionary benefits, be treated to have held a permanent pensionable post in a substantive capacity immediately before his retirement or death as the case may be. Pending cases if any shall be regulated accordingly. 177-A Notwithstanding anything contained in Art. 177-A work-charged employees who is brought on regular establishment and retire without having been declared substantive or quasi-permanent, shall be allowed to count 50% of his work charged service as qualifying for pension together with the period of service rendered on regular establishment. Pending cases if any shall be regulated accordingly. 177-A Notwithstanding anything contained in Art. 177-A work-charged employees who is brought on regular establishment and retire without having been declared substantive or quasi-permanent, shall be allowed to count 50% of his work charged service as qualifying for pension together with the period of service rendered on regular establishment. If the total of the two spells is 20 years or more, he will be eligible for pension under preceding provision." "226(i) An officer shall retire compulsorily on his attaining the age of 55 years unless the competent authority considers him efficient and permit him to remain in service. He may, however be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances: - Provided that the Government servants who were in service on 10.10.1966 and were treated inferior as per Schedule II will retire on attaining the age of 60 years. Provided further that a Government servant in service on 1.1.1987 or appointed on or after that date shall retire on his attaining the age of 58 years Provided further that the retirement of a Government employee in service on 2.1.1976 or appointed on or after that date shall take effect from the afternoon of last year of month in which the employee concerned attains the age of superannuation instead of the actual date of his superannuation." 9. Retiral benefits which are admissible to work charge employees are mentioned in Rule 15 of the Jammu and Kashmir Work Charged Employees Service Rules 1972 This Rule reads as under: "15. Retirement Benefits: - An employee of work charged establishment will not be entitled to any superannuation, invalid, retirement and compensation etc pension. Such of the employees who have permanent status shall be entitled to retirement gratuity at the rate of 1/4 months pay in each completed period of six months subject to the maximum of (16 months) pay at the time of retirement. The retirement gratuity admissible under these rules will not in any way debare the employees from their entitlement to compensation admissible under the workmens Compensation Act in the event of death/ injury/disability while in service. Classification under 8(iii) of the family pension-cum-gratuity Rules. The retirement gratuity admissible under these rules will not in any way debare the employees from their entitlement to compensation admissible under the workmens Compensation Act in the event of death/ injury/disability while in service. Classification under 8(iii) of the family pension-cum-gratuity Rules. In the case of death of work charged employee with permanent status while in service, death gratuity shall be payable to the beneficiary calculated at the rates indicated in Rule 15 subject to a minimum of 12 times the pay of the employee at the time of death. The provisions of Art. 240-B to 240-G of the Jammu and Kashmir Civil Service Regulation I in respect of Rules of procedure etc. will apply mutatus mutadis in the case." 10. The facts in brief be noticed: 11. The appellant was in service of the respondents. He initially joined the Kalakote Thermal Power Project in the year 1964. This Thermal Power Project is now a part and parcel of Power Development Department of Jammu and Kashmir. The appellant later on worked in the Chenani Hydel Project with effect from 1st of May, 1969 on work charge establishment. In this project he continued till 31st of Jan., 1997. The fact that he came to be so appointed is sought to be projected by placing reliance on various orders including an order dated 16th of Jan., 1997, by which the appellant was ordered to be superannuated. A recommendation was made for extending his tenure for a period of two years. The recommendation made by the concerned officer has been placed on the record as Annexure-A-6, for facility of reference this is being reproduced below: - "Subject: - Extension of 2 years of service in favour of Sh. Bachan Singh Chargeman on work charge establishment of TLMD Udhampur in terms of SRO 31 of 20.1.1992 inserted in the J&K Workcharge employees service rule 1972. ¢¢¢ 1. The Chief Engineer System and Operation Wing vide his letter No: CE/ SCLO/C/6414-15 dated 21.11.96, has stated that Shri Bachan Singh. chargeman (1200-2040) work charge is due for retirement on a superannuation on 31.1.1997. The concerned Executive Engineer, has recommended the two years extension may be granted in favour of workcharge official on the plea that official is a dedicated worker and well with the pneumatic apparatus and handlip heavy machineries in the Grid Station. chargeman (1200-2040) work charge is due for retirement on a superannuation on 31.1.1997. The concerned Executive Engineer, has recommended the two years extension may be granted in favour of workcharge official on the plea that official is a dedicated worker and well with the pneumatic apparatus and handlip heavy machineries in the Grid Station. He is also rich technical hand with lot of experience which are very useful for the department, which are required by the department. 2. In this context it is submitted that as Rule 10 of the J&K Workcharge rules, a workcharge incumbent can be retained in the Govt. service after compulsory retirement on the grounds that his service are required in the public interest, as a special case and circumstances, but cannot be retained after attaining the age of 60 years. 3. Shri Bachan Singh chargeman will retire on 21.1.1997, after attaining the age of 58 years. The department intend to utilize his experience in handling the machines etc. in Grid Station for another two years i.e. upto the date he will attain the age of 60 years as a special case. It may also be pointed on here that the official belongs to the outside the State and as such is not also entitled for pensionary benefits, as per rules. 4. If approved, may approach Administrative for accord of sanction to the retension of Shri Bachan Singh, chargeman (workcharge) in the service for two years w.e.f. 1.2.1999 of course after his compulsory retirement due on 31.1.1997 A.N. on public ground, as a special case. Sd/- 5. S/O Paras 1-4 may please be perused. Keeping in view the recommendation of CE Sto for extension of 2 years service in favour of Sh. Bachan Singh chargemen (on work charge establishment) retiring on superannuation on 31.1.1997, if approved may refer the case to Adm. Deptt. Needless to mention that CE/Sto has stated that the official is a dedicated worker and is well vested with the pneumatic apparatus and handling of heavy machinery in the Grid Station and his service are required in the vital. Submitted for orders Sd/- 6. If approved we may take up the case with the Adm. Deptt. for obtaining sanction of extension of two years service w.e.f. 1.2.1997 to 31.1.1999 in favour of Sh. Bachan Singh workcharge establishment as recommended by the CE SXO Wing vide his communication No. CE/SXO/C/6414dated21.11.96. Submitted for orders Sd/- 6. If approved we may take up the case with the Adm. Deptt. for obtaining sanction of extension of two years service w.e.f. 1.2.1997 to 31.1.1999 in favour of Sh. Bachan Singh workcharge establishment as recommended by the CE SXO Wing vide his communication No. CE/SXO/C/6414dated21.11.96. Submitted for orders Sd/- Since the rules.... provided for extension of a w/charged employee upto attaining of the age of 60 years, as given at para (2). we may if approved, agree the proposal of CE S&O Wing. Sd/-" 12. The appellant further submits that some other employees who were similarly situated were allowed to work. Reference in this regard is being made to paragraphs 6 and 7 of the petition. His case is that he was entitled to continue up to the age of 60 years, and he also claims pensionary benefits. He submits that he is a member of the Workcharge -Establishment since 1964 and therefore, he is entitled to all other benefits under the Rules He also submits that another person by name of Kartar Singh has been given the benefit and therefore, there is no justification in denying him the said benefit. 13. A perusal of the facts on the file in the present case does indicate that the appellant could continue up to the age of 60 years, but he was superannuated earlier to that. Therefore for giving pensionary benefits his age of retirement has to be 60 years. 14. Reference in this regard be made to the decision reported as S.P. Dubbey V.M.P.S.R.T. Corpn. and another, AIR 1991 SC 276. The facts were that the State of Madhya Pradesh was re-organised under the States Reorganisation Act 1956. The Central Government by a notification dated February 28, 1961, extended the provisions of Road Transport Corporation Act 1950 (hereinafter called the Act) to the State of Madhya Pradesh with effect from April, 1961. There after the Madhya Pradesh Government acting under S.2 of the Act established the Madhya Pradesh State Road Transport Corporation (hereinafter called Corporation) with effect from May 21, 1962. The Madhya Pradesh Government issued two memorandum on May 4, 1962. By one memorandum the services of the concerned employees including Sh. There after the Madhya Pradesh Government acting under S.2 of the Act established the Madhya Pradesh State Road Transport Corporation (hereinafter called Corporation) with effect from May 21, 1962. The Madhya Pradesh Government issued two memorandum on May 4, 1962. By one memorandum the services of the concerned employees including Sh. Dubey were transferred to the Corporation and by the second it was clarified that the said transfer was subject to the conditions that their service would be treated as uninterrupted and their pay scales and conditions of service would not be affected. Under the Regulations of the Corporation the appellant was sought to be retired at the age of 58 years. Allowing the appeal the Supreme Court of India said: "The appellant was in service of the Company from 1947 to August 30, 1955. Admittedly, the age of superannuation of the Company employees was 60 years. The Government of Madhya Pradesh took over the company with effect from August 31,1995 by a notification specifically stated that the existing staff of the company would not be adversely affected with regard to their conditions of service. It is no doubt correct that on August 31, 1995 rules were operating in respect of the State Government employees according to which the age of superannuation was 58 years, but the persons who were serving with the company were taken into Government service with a specific assurance that their conditions of service were not to be adversely affected. When the State Government taken over a private company and gives an assurance of the type it is but fair that the State Government should honour the same. Thus, the State service rules which fixed the age of superannuation at 58 years could not be made applicable to the appellant and other employees of the taken over company. We therefore, do not agree with reasoning of the High Court." 15. The above observations do help the appellant. 16. With regard to period of service beyond 31.1.1997, it would be apt to notice that was said in case reported as Nand Kishore Nayak V. State of Orissa and another, AIR 1991 Supreme Court 1724, is being quoted: "The appellant has claimed two relief. One for payment of salary for the two years period second for refixation of his pension. With regard to period of service beyond 31.1.1997, it would be apt to notice that was said in case reported as Nand Kishore Nayak V. State of Orissa and another, AIR 1991 Supreme Court 1724, is being quoted: "The appellant has claimed two relief. One for payment of salary for the two years period second for refixation of his pension. So far as the first relief is concerned, even from the order of the High Court, which we have extracted above. it is obvious that salary was directed to be paid to only those who had actually served and not to others. It is true that this observation was in respect of those who had served beyond their regular superannuation period but the concept is clearly to pay for work actually done. Cases of the present type where the employee accepted his retirement at the age of 58 years and is now seeking the benefit of the High Courts order stand on a different footing from those whose 0 services were wrongly terminated. In our view such employees would not be entitled to salary for the idle period but the relief for refixation of pension by extending the date of superannuation by two years can be granted to them. We. therefore, direct the State Government to grant the benefit of the judgment to all those employees including the appellant herein who would have otherwise retired at the age of 60 years on the interpretation placed on the relevant provisions of the Act and the Rules by the High Court. In the present case. we. therefore, direct the State Government to extend the benefit of the judgment to the appellant, refix his date of superannuation add two years to his qualifying service and refix his pension and grant the same from the deemed date of superannuation. The arrears of pension within a reasonable time not exceeding three months." 17. Regulation 177 makes it apparent that every Government employees retiring with effect from 1st of January 1962, if he is holding a substantive office on permanent establishment on the date of his retirement temporary establishment/Department without interruption by confirmation in the same or another post shall be eligible for pension. Only exception is that period of service on work charge establishment and period of services paid from contingencies is to be excluded. Only exception is that period of service on work charge establishment and period of services paid from contingencies is to be excluded. Two exceptions referred to above are to be read only where a person is working on the post which has been described as: "or quasi-permanent service followed without interruption by confirmation in the same or another post shall count in full as qualifying service, except in respect of. 18. These exceptions are not to be read when a person is holding substantive office on a permanent establishment on his date of retirement or is temporary officiating or is holding officiating including temporary service. 19. Thus the plain meaning on the reading of Article 177 and 177 (A) quoted above is that an employee who is holding a substantive post on permanent establishment on the date of his retirement or is holding temporary officiating including temporary service he becomes entitled to pension. Thus on the true interpretation of Regulation of Article 177 and 177-A and 226 of Civil Service Regulation it is concluded: (i) that an employee can be permitted to continue in service till the age of sixty years (See Article 226(i)). (ii) if service is rendered by an employee upto the age of 60 years then the State Government is bound to pass an order within a view to regularise the same. (iii) the service so rendered under Article 226 (I) enables an employee to get this period counted towards qualifying service for pension purpose. (iv) once an employee who is working on a work charged establishment becomes permanent he becomes entitled to pension in terms of the opening lines contained in Regulation 177. (v) would apply to that category which is mentioned last of all i.e. after the word or (vi) in any case 50% of service rendered as work charged employee is to be counted towards the qualifying service. (vii) the service mentioned at serial no. (vi) is to be added to that service which is rendered on regular basis. 20. In the present case, the appellant had been working since 1964. If this date of retirement is 60 years then it would be deemed to have completed 35 years of service. In this situation the appellant would be entitled to the benefit of pension regulations noticed above. 21. It be seen that in the year 1994 SRO 64 of 1994 came into force. If this date of retirement is 60 years then it would be deemed to have completed 35 years of service. In this situation the appellant would be entitled to the benefit of pension regulations noticed above. 21. It be seen that in the year 1994 SRO 64 of 1994 came into force. The services of appellant if not regularised are required to be regularised in terms of SRO 64 of 1994, this SRO confers a right on an employee. If he has rendered seven years of service then he has to be necessarily regularised. This aspect be also considered, as in terms of Article 177(A) benefit is to be given to the work charged employee who is brought on the regular establishment, even if no declaration has been made that he is a substantive or a permanent employee. 22. As a matter of fact, observations made by the Division Bench in LPA No: 438/98 decided on 16.8.1999 (Daya Krishan & ors. Vs. State of J&K and ors.) would also be attracted. What was stated by the Division Bench qua the workcharge employees is being reproduced below: - These rules indicate that where an employee has completed seven years service or completes such service in a subsequent financial year, then he or she is entitled to seek regularisation. Rule 7 & 8 are being noticed. These read as under: - Rule-7, Restriction on engagement of Daily Rated Workers/ Work charged Employee:- (1) with effect from the commencement of these Rules, no filed/subordinate officer shall have the power for engagement of Daily Rated workers or work charged employees in the Department and the existing delegation, if any, in this regard is withdrawn. Provided that the Competent Authority may engage casual labour or seasonal labour in any of the Department to be specified by Notification from time to time by the Government and such payment of wages and no engagement or appointment order shall be issued. Provided that the Competent Authority may engage casual labour or seasonal labour in any of the Department to be specified by Notification from time to time by the Government and such payment of wages and no engagement or appointment order shall be issued. (2) After the commencement of these Rules the work charged posts shall be created only by the Administrative Departments in consultation with the Finance and Planning Department." "Rule-8 Application for Rule to existing Daily Rated Worker and Work charged employees: - The policy of absorption of Daily Rated workers and work charged employees shall also apply to such of the existing Daily Rated Workers and work charged employees who may not have completed seven years on 31.3.1994 but may complete by the end of subsequent financial years and their absorption shall be considered in that financial year in accordance with these Rules. 23. Thus the rules provided for the policy of absorption of Daily Rated Workers and Work charged Employees. Employees who may have completed seven years are entitled to regularisation. These employees who have not completed seven years of service, but may complete their seven years by the end of subsequent financial year can also be regularised. Rule 8 taken care of those Daily Rated Workers who are working with the employee but have not completed seven years tenure. The only exception which has been carved out is that they could be entitled to absorption only on the completion of seven years of service. It be seen that the words used in Rule 8 are: ".... seven years on 31.3.1994 but may complete by the end of subsequent financial year...." 24. The words the subsequent financial years has to be given full meaning. The Rule cannot be ignored. The intention of rule marking authority is let an employee continue and then regularise the services of an employee who is working as a Daily Rated Worker or Work charged Employee and has not completed seven years of service. He is to be permitted to continue to work as such but his services are to be regularised only when he completes seven years of service." 25. The respondents would also take note of Article 240 AAAA (1) (b) which reads as under: - (b) Pension for twenty completed six monthly periods of qualifying services or more:- 50% of average emoluments in all cases. The respondents would also take note of Article 240 AAAA (1) (b) which reads as under: - (b) Pension for twenty completed six monthly periods of qualifying services or more:- 50% of average emoluments in all cases. The amount of pension so arrived at will be related to the maximum qualifying service of 33 years. For Government servants who at the time of retirement have rendered qualifying service of ten years or more but less than 33 years, the amount of pension will, be such proportion of maximum admissible pension as the qualifying service rendered by them bears to the maximum qualifying service of 33 years. The pension under this rule shall be subject to a minimum of Rs. 325/-and maximum of Rs. 2850/-. 26. To some extent this regulation also applies the appellant. 27. The respondents would consider the impact of the regulation quoted above. His service tenure would be determined and the pensionary benefits would be calculated accordingly. The appellant be provided an opportunity to put across his point of view vis-a-vis service tenure. 28. The above aspect are required to be taken note of. The claim of the appellant for regularization should be considered and his pensionary benefits are required to be fixed accordingly. 29. This appeal is accordingly disposed of with a direction that the respondents would examine the question of the retiral benefit i.e. pension, gratuity, etc., and take a decision within a period of three months from the date copy of the order passed by this Court today is made available to the respondent-authorities. The appellant to do the needful. Claim for regularisation has also to be dealt with This be also decided. In case a decision is not taken and ultimately it is found that something is due then the appellant would be entitled to interest at the rate of 12%. This interest would be payable by the person on whose account delay occurs. Disposed off accordingly.