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2000 DIGILAW 198 (JK)

Syed Mohd. Shafi v. Union Of India

2000-09-20

G.D.SHARMA

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1. Petitioner vide order No: 81-HD of 1976 dated: 10-06-1996 was appointed by the Commissioner Handicrafts as Master craftsman in the training centre shown in this order on temporary basis alongwith other appointees shown in that order. The Government vide Govt. Order No: 157-Ind of 1991 dated: 21-06-1991 regularised the services of Master craftsmen and Assistant craftsmen on regular time pay scales. In pursuance of this Govt. order, The petitioner got the benefit of regularising his service as senior crafts instructor, vide order No: 54-HTP of 1993 dated: 21-09-1993. The petitioner retired as senior instructor Papermachi. Training Centre Alamagari-bazar, District Srinagar with effect from 30-09-1993 afternoon. The petitioner applied for the pension and his employer, that is, Government issued order No: 54-Ind of 1998 dated: 10-02-1998 (Annexure-E) whereby the deficiency in qualifying service of the petitioner was removed. 2. Respondent NO. 2 vide his letter No: PHR-II/II-A/304781/98-99/5165-66 dated 23-04-1998 (Annexure-G) refused to issue the pension in favour of the petitioner on the plea that he docs not qualify pension keeping in view his total regular and temporary and contract service which comes to 17 years 3 months and 17 days. In other words, his case for pension was closed. The petitioner is aggrieved of this order and through the medium of the writ petition has challenged the same on the following grounds: 1) The employer of the petitioner (Government of Jammu and Kashmir) was within its powers to treat the contractual service rendered by him as qualifying service for pension and that power was exercised by issuing Govt. order No: 54 Ind of 1998 dated: 10-02-1998. 2) A similarly situated, ex-employee of the Government namely, Ghulam Mohi-ud-din Dalal vide Annexure-P was given the benefit of contractual service for pensionary purposes vide Govt. order No: 263-lnd of 1997 dated: 07-06-1997 and he was granted pension by respondent No. 2 vide Annexure-Q. The petitioner claims that he being a similarly situated person has been discriminated by respondent No. 2 and thus his fundamental rights stands violated. 3) The petitioner has claimed the immediate relief of pensionary benefits as he has suffered heart ailment and requires immediate medical treatment but his earned pension has been denied. 3. 3) The petitioner has claimed the immediate relief of pensionary benefits as he has suffered heart ailment and requires immediate medical treatment but his earned pension has been denied. 3. The petitioner has prayed for the relief of writ of certiorari for quashing letter No: PMR-II/II-A/304781/98-99/5165-66 dated: 23-09-1998 and writ in the nature of mandamus commanding the respondents to release the pension in his favour from the date of his retirement in accordance with the scales provided by the J&K C.S.R. The petitioner has also claimed interest @ 18% per annum. 4. In the objections respondent No. 2 has pleaded that petitioner has to be in regular temporary service on 2-years 3-months and 9-days as also contract service of 15-years and 8-days in accordance with the relevant rules. A retiree is required (Sic) in not less than 20 years of service in the temporary™ capacity. The petitioner does not qualify to receive the pension in terms of the conditions laid down in Art. 177-A of J&K C.S.R. That the matter has been taken with the Government with regard to the grant of the pension in favour of similarly situated person and reply is awaited. It is also pleaded that the whole period of service if in case is counted that does not qualify a continuous service of 20 years and thus the petitioner is not eligible for pension. The discriminatory treatment is denied on the plea that Government vide order No: 263-Ind had relaxed the rules for pensionary benefits in favour of Ghulam Mohi-ud-Din Dalal and Finance Department has also concurred. There is no such relaxation in favour of the petitioner and his matter has been referred to the Government vide letter dated: 15-09-1998 and the reply is awaited. 5. Heard the arguments. 6. Counsel appearing for the petitioner has contended that respondent No. 2 has wrongly relied on Art. 177-A of the C.S.R. This article does not govern the service conditions of the petitioner because he has not worked as work-charge employee. Article 177-A applies in case of a work-charge employee for counting his 50% of work-charge service as qualifying service for pension together with the period of service rendered on regular establishment. The limitation of 20 years applies in his case and not in case of any other employee. Article 177-A applies in case of a work-charge employee for counting his 50% of work-charge service as qualifying service for pension together with the period of service rendered on regular establishment. The limitation of 20 years applies in his case and not in case of any other employee. According to him the pension of the petitioner is regulated by Art. 236 of the C.S.R. and a government employee becomes eligible for pension in case he completes ten years service. He has also referred Art. 240-AAA of the J&K C.S.R. wherein the minimum qualifying period for counting the pension has been fixed as ten years and maximum is 30 years. That case of the petitioner was considered under Art, 240AAA and under J&K C.S.R. (Classification, Control and Appeal) Rules, 1956. The Government has the power to regularise the unqualifying period of service in case of government employee for pensionary and other benefits. The Government has inherent power being the rule making authority to regularise the service conditions for its employees for their benefits. The counsel appearing for the respondents has reiterated the grounds of his objections by Adhering to the plea that petitioner does not qualify for pensionary benefits as his service is not covered under Art. 177-AA of the J&K C.S.R. 7. I have given my thoughtful consideration to the respective contentions of the counsel for the parties and perused the relevant provisions of law cited at the bar. Undoubtedly, the Government has the power of regularising the deficiency in qualifying service for pensionary benefits in favour of its employees. The case of the petitioner does not fall under Art. 177-A of the J&K C.S.R. but under those articles which have been cited by Mr. Hussain in his arguments. In case the deficiency in qualifying service for a similarly situated employee namely, Glmlam Mohi-ud-Din Dalal could be made up and then accepted, what is inhibition for accepting relaxation in favour of the petitioner. In this view of matter, the petition is accepted and communication No: PHR-II/AA-A/304781/98-99/5165-66 dated: 23-09-1998 (Annexure-G) issued by respondent No. 2 is hereby quashed. Respondent No. 2 is directed to release the pension in favour of the petitioner within two months failing which he shall be responsible to pay him interest @ 12% per annum on the amount which will be payable to him.