Research › Search › Judgment

J&K High Court · body

2011 DIGILAW 712 (JK)

All J&K SRTC v. State & Ors.

2011-12-17

MOHAMMAD YAQOOB MIR

body2011
1. Petitioners (pensioners) appear to have been clamouring for getting the arrears and pensionery benefits on the basis of revised pay fixable on the basis of sanctioned 43 installments of COLA. In principle claim of the petitioner is not denied but stand of the respondent No. 4 is that it is to be paid by the respondent No. 1, 3 & 5 out of its own resources and in the process petitioners are caught, resultantly their retiral life has been made painful. 2. Contention of the petitioners that it is respondents No. 1 to 3 who have to release the funds, is also supported by respondent No. 4 (Managing Director, J&KSRTC, Srinagar). Respondents No. to 3 and 6 have not chosen to file any reply whereas respondents No. 4 and 5 have separately filed their objections. 3. Factual background has to be precisely noticed:- (I) Petitioners were on the establishment of Government Transport Undertaking, same was converted into J&K State Road Transport Corporation in the year 1976. The claims/terms and conditions of its employees were required to be settled in terms of Cabinet Decision No. 51 dated 19th of February, 1979. As a result thereof, formal Government Order No. 25-TR of 1979 dated 27th of March, 1979 was issued, in terms whereof, employees of the Government Transport Undertaking were taken on deputation in the State Road Transport Corporation. It was also provided therein that the employees of the Government Transport Undertaking, who were holding permanent status or were holding quasi-permanent status of five years on the date of formation of Transport Corporation, have the option either to retain pensionery benefits available to them under Government Rules or to be governed by the rules of the Transport Corporation. In pursuance to the said Govt. order petitioners claim that it is the responsibility of the government i.e. respondent Nos. 1 to 3 and 5 to pay all the arrears to the petitioners who were permanent employees born on the establishment of Government Transport Undertaking and were holding status of permanent Government employees till their retirement. In pursuance to the said Govt. order petitioners claim that it is the responsibility of the government i.e. respondent Nos. 1 to 3 and 5 to pay all the arrears to the petitioners who were permanent employees born on the establishment of Government Transport Undertaking and were holding status of permanent Government employees till their retirement. (II) The respondent State vide Cabinet Decision No. 197 dated 22nd April, 1980, while accepting recommendations of the Wage Review Committee for Public Sector Enterprises, issued Order No. 19-GR of 1980 dated 26.4.1980 in pursuance whereof rate and scale of DA including Cost of Living Allowance (COLA) was fixed for different scales of the employees including the State Road Transport Corporation. Accordingly petitioners were receiving the said benefits till January, 1999 and it is from January, 1999 the arrears as are due to the petitioners have not been released despite having made repeated requests. (III) Financial Advisor/CAO, Transport Department, vide its letter dated 24th of August, 2005 had asked the respondent No. 4 (Managing Director) to furnish the formal proposal along with financial implications of such staff retired as well as likely to retire in next five years working in Jammu and Kashmir State Road Transport Corporation. (IV) On 7th of February, 2006 in terms of the communication, Accounts Officer (Codes) Finance Department had called for detailed financial implications so that the proposal is processed in the Finance Department. (V) 34 slabs of COLA were duly sanctioned by J&K SRTC Board in its 64th meeting along with other benefits like leave salary, pay arrears as well as gratuity which the respondent No. 5 has not release in favour of the petitioners. (VI) The respondent No. 4 vide its letter dated 28th of June, 2006, addressed to Director (Codes) Finance Department indicated that COLA benefits have been partly released with the result remaining slabs are still unpaid with other benefits of leave salary. (VII) Non response made the petitioners to file memorandum to the Chairman, J&K SRTC. In the meantime respondent No. 4 (Managing Director) on 13.4.2007 in categoric terms clarified that in terms of Govt. (VII) Non response made the petitioners to file memorandum to the Chairman, J&K SRTC. In the meantime respondent No. 4 (Managing Director) on 13.4.2007 in categoric terms clarified that in terms of Govt. order No. 25-TR of 1979 the petitioners are entitled to all service benefits available to permanent civil servants of respondent No. 1 who have opted to be treated as civil servants on permanent establishment than to be employees of the Corporation, making it clear that the responsibility has to be discharged by the State in paying their arrears to which they are entitled to. (VIII) The respondent No. 4 vide order dated 6.12.2007 made it clear that 17 installments of COLA have been sanctioned i.e. 9 installments from 1.1.2004 and 8 installments from 1.1.2005, same have been released subject to availability of funds but due to financial crunch in the J&K SRTC benefits could not be given to its employees who are in service as well as those who have retired or expired. Then a request has been made that notional fixation for drawal of pensionery benefits till the amounts are practically released and orders were issued accordingly but before same could fructify, on 6th of September. 2007 respondent State issued SRO 319 pursuant to which Article 240-BB of Civil Service Regulations was amended by way of an addition in Proviso to Note 7 of the said Article, in terms whereof it was made clear that the benefits shall apply in respect of the petitioners as being governed by State Pension Rules, a part of the COLA equivalent of 50% of their basic pay would be treated as basic pay for the purposes of computation of death-cum-retirement gratuity and same was also made applicable to permanent pensionable employees, a part of COLA would be treated as part of the basic pay for the purposes of computation of average emoluments. (IX) Subsequently respondent No. 5 (Accountant General) has issued a communication wherein it has been made clear that the Finance Department in the letter dated 16th of November, 2007 has notified that actual payment of COLA due with effect from 1.1.2004 and 1.1.2005 is subject to availability of own resources of Public Sector Undertakings. (IX) Subsequently respondent No. 5 (Accountant General) has issued a communication wherein it has been made clear that the Finance Department in the letter dated 16th of November, 2007 has notified that actual payment of COLA due with effect from 1.1.2004 and 1.1.2005 is subject to availability of own resources of Public Sector Undertakings. It is also made clear that J&K SRTC is not in a position to make actual payment of the COLA equivalent to 50% of the basic pay in favour of the employees at this stage. (X) Subsequently Manager, J&K SRTC on 4th of October, 2008 addressed a communication to the Accountant General Office to the effect that out of sanctioned 42 slabs of COLA Corporation has released 17 slabs in favour of the employees with effect from April, 2008. When benefits were not paid to the petitioners, they made various representations to the higher authorities so that their arrears and other benefits due from January, 1999 are paid to them. When all such efforts failed, they filed the instant petition. 4. The grievance of the petitioners is that their service benefits and pensionery benefits have been kept hostage to the own resources of the State Road Transport Corporation. Petitioners in status being civil servants are entitled to be paid benefits and such benefits cannot be made hostage to the financial condition of the respondent Corporation when it is the responsibility of the State to pay the same. 5. It is the positive case of the petitioners that they have exercised option of retaining pensionery benefits under Government rules so were entitled to receive their pension under Govt. Pension Rules as were in force at the time of retirement from the Corporation, therefore, liability for paying pension and other retiral benefits is the responsibility of the respondent State irrespective of financial viability of the respondent Corporation. 6. Ground projected is sound and of prevailing force. Pension Rules as were in force at the time of retirement from the Corporation, therefore, liability for paying pension and other retiral benefits is the responsibility of the respondent State irrespective of financial viability of the respondent Corporation. 6. Ground projected is sound and of prevailing force. In this connection it shall be quite apt to quote Article 185-D (iv) of Civil Service Regulations:- "Notwithstanding anything contained in Article 185-D (2) (i) to Article 185-D (2) (iii), the pensionery benefits in respect of Government servants who are transferred to an autonomous body/public sector undertaking on the conversion of a government department/off ice into an autonomous body/public sector undertaking on the conversion of a government department/office into an autonomous body or public sector undertaking, shall be governed by the following conditions: (a) The permanent government servant shall have an option to retain pensionery benefits available to him under the Government Rules to be governed by rules of public sector undertaking/autonomous body. The option shall also be available to quasi permanent and temporary employees after they have been confirmed in an autonomous body/public sector undertaking. (b) The government servant who opt to be governed by pensionery benefits available under the government shall at the time of their retirement be entitled to pension etc. in accordance with State Government Rules in force at that time. (c) .... (d) ...." 7. Testing the legal validity of letter dated 29th of January, 2008 bearing No. PNRJ-III/SRTC/2007-08/783, issued by Deputy Accountant General, to the extent of providing payment of COLA to be dependent upon financial position of J&K SRTC, same deserves to be quashed because it is the State Government who has to pay the same to the petitioners in the backdrop of the position stated herein above which is also supported by the objections filed by the respondent No. 4 wherein it is categorically pleaded as under;- "In terms of the said Govt. order (25-TR of 1979 dated 27-03-1979) it was the liability of the respondents 1 - 3 & 5 to pay all the arrears of monetary benefits as were liable to be paid to the permanent employees of the erstwhile Govt. Transport Undertaking holding the status of permanent Govt. servants till their retirement." 8. order (25-TR of 1979 dated 27-03-1979) it was the liability of the respondents 1 - 3 & 5 to pay all the arrears of monetary benefits as were liable to be paid to the permanent employees of the erstwhile Govt. Transport Undertaking holding the status of permanent Govt. servants till their retirement." 8. It is further pleaded as under:- "The claim as raised by the petitioners in terms of the writ petition has already been referred by the answering respondents to the Government but without any positive response." 9. Then again it is pleaded:- "It has been the consistent stand of the respondent Corporation that the liability claimed by the erstwhile employees of Govt. Transport Undertaking was to be shared fully by the Government." 10. The pleadings of the petitioners as well as pleadings of the respondent No. 4 have remained to be rebutted. 11. Respondent No. 4 has raised objection vis-a-vis maintainability of the petition on the count that the petitioner association is not a registered association, therefore, does not possess any juristic position to maintain the writ petition. 12. In the rejoinder, petitioners have clearly repelled the same condition by stating that the petitioner association is duly registered having been affiliated with all J&K Trade Union Centre dated 14.9.2009, copy of which is placed on record. It being so, the objections raised vis-a-vis maintainability fails. 13. Record of this petition would reveal that from 8.10.2009 till 27.5.2011, respondent State has failed to file objections and their right was accordingly closed. The matter was considered on 30.7.2011 and the petition was admitted/ Again respondents were given time to file the counter affidavit but again State has failed to file the same which would clearly indicate that the respondent State has no serious objection and sound ground to oppose what has been claimed by the petitioners and what has been pleaded by the respondent No. 4. 14. Viewed thus, the impugned letter dated 29th of January, 2008 bearing No. PNRJ-III/SRTC/2007-08/783 to the extent it subjects the payment of COLA lo the availability of the own resources of J&K SRTC is quashed. 14. Viewed thus, the impugned letter dated 29th of January, 2008 bearing No. PNRJ-III/SRTC/2007-08/783 to the extent it subjects the payment of COLA lo the availability of the own resources of J&K SRTC is quashed. Resultantly petitioners grievances /entitlement vis-a-vis pensionery benefits including COLA, leave salary as permanent employees of the State shall be finalized and the respondents irrespective of the financial condition of the respondent Corporation shall ensure release of the said benefits in favour of the petitioners within eight weeks from today failing which petitioners shall be entitled to the due amount with interest @ 6%. 15. Record produced by learned counsel Mr. Shabir Ahmad, appearing for respondents No. 1 to 3, be returned to him.