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2013 DIGILAW 441 (JK)

Ab. Rahim Mir v. State Of J&K

2013-07-31

TASHI RABSTAN

body2013
1. The writ petition, at the consensus of learned counsel for parties, is taken up for final disposal. 2. Petitioners, initially appointed as Chowkidars in erstwhile Government Lumbering Undertaking (for brevity "GLU"), were vide Government Order No. 494-FST of 1976 dated 13.12.1976 redesignated as Lumber Guards. The GLU, in the year 1978 in view of enactment of the Jammu and Kashmir State Forest Corporation Act, 1978, was converted into State Forest Corporation. The persons working in GLU were given an option either to continue as GLU borne or adopt the State Forest Corporation. The persons, who adopted State Forest Corporation, are as such regulated by J&K State Forest Corporation Act and rules made thereunder and those who continued to be GLU employees, were adjusted in Forest Department and some of them continued to work in State Forest Corporation on deputation basis. 3. There was disparity in the pay scale of Lumbering Guard working in J&K State Forest Corporation and Forest Guard in Forest Department. The J&K State Government vide Government Order No. 281-FST of 1989 dated 18.09.1989 removed the disparity and fixed the pay scale of Lumber Guards, working in the J&K State Forest Corporation as 800-20-1000-EB-25-1400. It would be advantageous to reproduce apropos excerpt of Government Order No. 281-FST of 1989 dated 18.09.1989 hereunder: "Government Order No. 281-FST of 1989 Dated: 18.9.1989 It is hereby ordered that the Lumber Guards working in the J&K State Forest Corporation in the pay scale of Rs. 745-14-1025 ever since the Government Lumbering Undertaking was converted into a Corporation are allowed the pay scale of Rs. 800-20-100-EB-25-1400 same as is attached to the post of Forest Guards in the Forest Department, while they continue to be in the J&K State Forest Corporation with the same designation viz. Lumber Guards. The revised scale will be effective from 1.4.1987. This issues with the concurrence of the Finance Deptt. conveyed vide their u.o. no:FA-19/88-FST dated 4.9-1989." 4. The petitioners herein retired as Forest Guards from the Forest Department and their pension cases were recommended to the Accountant General J&K at Srinagar-respondent no.3 herein, for release of pensionary benefits. However, respondent no.3 has not released full pensionary benefits in favour of petitioners. 5. Feeling aggrieved of non-payment of pensionary benefits, petitioners have come up with the writ petition at hand. However, respondent no.3 has not released full pensionary benefits in favour of petitioners. 5. Feeling aggrieved of non-payment of pensionary benefits, petitioners have come up with the writ petition at hand. The petitioners, in the writ petition, state that respondent no.3 has withheld their gratuity/pension under the pretext that petitioners are not entitled to 2nd Time Bound Promotion whereas the similarly situated persons i.e. respondents 4 and 5 in the petition, have also been given the same benefit and their gratuity/pension has been released by respondent no.3. It is further contended by petitioners that they have never been promoted inasmuch as they, while working as Chowkidars in the Government Lumbering Undertaking (GLU), were redesignated as Lumber Guards vide Government Order No. 494-FST of 1976 dated 13th December 1976. It is insisted that redesignation of the post of Chowkidar to that of Lumber Guards has been given by the competent authority i.e. J&K State Government and that removal of disparity of pay scale of Lumber Guards with that of Forest Guards of Forest Department has as well been sanctioned and accorded by J&K State Government vide Government Order No. 281-FST of 1989 dated 18.09.1989, thus, withholding of their pension/gratuity by respondent no. 3 is illegal, inasmuch as respondent no.3 has no authority or competence to do so, as the benefits have been given to them by the J&K State Government. 6. The respondents, 1 & 2, in their Reply in opposition to writ petition, have stated that petitioners alongwith others, were appointed as Chowkidars in GLU, and thereafter vide Government Order No. 494-FST of 1976 dated 13.12.1976 they were redesignated as Lumber Guards and that in the year 1978 after enactment of Jammu and Kashmir State Forest Corporation Act, 1978, the GLU was converted into State Forest Corporation. The persons working in GLU were given an option either to continue as GLU borne or adopt the State Forest Corporation. The persons, who adopted State Forest Corporation, are, as such, regulated by J&K State Forest Corporation Act and rules made thereunder and those who continued to be GLU employees, were adjusted in Forest Department and some of them continued to work in State Forest Corporation on deputation basis. The persons, who adopted State Forest Corporation, are, as such, regulated by J&K State Forest Corporation Act and rules made thereunder and those who continued to be GLU employees, were adjusted in Forest Department and some of them continued to work in State Forest Corporation on deputation basis. It is insisted that since there was disparity in the pay scale of Lumber Guard, working in J&K State Forest Corporation and Forest Guard in Forest Department, vide Government Order No. 281-FST of 1989 dated 18.09.1989, said disparity was removed and the pay scale of Lumber Guards, working in the J&K State Forest Corporation was fixed as 800-20-1000-EB-25-1400. The said revised pay scale was made effective from 1.4.1987. The respondents also aver that consequent upon retirement from the Forest Department, petitioners' pension cases were recommended to respondent no. 3 for release of pensionary benefits. However, respondent no.3 has not released full pensionery benefits in favour of petitioners for the reason that 2nd insitu granted by the respondent department was not due to petitioners. The respondents 1 and 2 vehemently insist that the insitu are being granted strictly as per the rules and after perusing the service records of the employees and that petitioners have no grievance against respondents 1 & 2 inasmuch as the main grievance of petitioners is against respondent no.3. 7. Respondent no.3, in his Reply, states that petitioners were not found entitled to 2nd Time Bound promotion w.e.f. 01.01.1995 as same was found due to petitioners from 01.01.2000 whileas 3rd Time Bound Promotion was not found due to petitioners, as such, part of pension/gratuity of petitioners has been withheld. 8. Heard. Considered. 9. Learned counsel for petitioners states that petitioners, in view of withholding of pension/gratuity, moved a number of representations to respondent no. 3 for release of their pension/gratuity. In response to petitioners' representations, respondent no. 3, vide letter No. PNR.II/ IIA/08-09/193 dated 29.04.2013 (Annexure E to writ petition), informed one of the petitioners namely Abdul Rahim Mir (petitioner No. 1) that he was initially appointed as Chowkidar on 1.10.1974 and subsequently promoted as Lamber Guard on 01.01.1982, as such, he was not eligible for 2nd Institu Time Bound Promotion w.e.f. 1.1.1995 but from 1/2000 and 3rd institu promotion was not at all due to him. The letter further indicates that matter was also taken up with Principal Chief Conservator of Forests and accordingly his pension case was finalised. It is made clear in the letter that in case it is clarified by the Government that all Chowkidars working in the erstwhile GLU were redesignated as Lumber Guards, the office of respondent no.3 will release the withheld pension/gratuity in his favour. It would be profitable to reproduce relevant extract of letter dated 29.04.2003 hereunder: "Please refer to your representation dated 8/3/2008 regarding the subject noted above. In this connection I am to state that as you were initially appointed as chowkidar on 1.10.1974 and subsequently promoted as Lumber Guard on 1.1.1982, as such you were not eligible for IInd time bound promotion w.e.f. 1.1.1995 but from 1/2000 and 3rd insitu promotion was not at all due to you. This fact was brought to the notice of Principal Chief Conservator of Forest, J&K, Srinagar while verifying your title to voluntary retirement under letter No. PNR.II/06-07/675 dated 20.7.2006 and accordingly your pension case was finalized. In case it is clarified by the Govt., that all the chowkidars working in the erstwhile GLU were redesigned as Lumber Guard and the post of chowkidar has been abolished in the Forest Department, this office will release the withheld DCRG in your favour accordingly. You are, as such, requested to approach the Principal Chief Conservator of Forest for getting the above clarification issued so as to enable this office to release the withheld DCRG in your favour." 10. A bare perusal of letter dated 29.04.2008, reveals that respondent no.3 had sought clarification as to whether Chowkidars were redesignated as Lumber Guards or not. The respondent no.3, in the said letter also mentions that in the event respondent department explicates clarification, the withheld pension/gratuity would be released in favour of petitioner(s). The question, therefore, revolves around redesignation of Chowkidars of GLU to that of Lumber Guards. 11. It is significant to point out here that the Government of J&K in Forest Department vide Government Order No. 494-FST of 1976 dated 13.12.1976 (annexure R-1 to Reply of respondents 1&2), has redesignated Chowkidars of Government Lumbering Undertaking (GLU) as Lumber Guards. Thus the question raised by respondent no.3 qua redesignation of Chowkidars as Lumber Guards stands already clarified by the Government, therefore, the petitioners are entitled to all the pensionary/gratuity benefits. 12. Thus the question raised by respondent no.3 qua redesignation of Chowkidars as Lumber Guards stands already clarified by the Government, therefore, the petitioners are entitled to all the pensionary/gratuity benefits. 12. The settled law on the subject is that once the department has made fixation wrongly, it cannot reduce the pay by holding that the pay fixation was wrongly done and that too at the fag end of service of an employee and that the department is not within its rights to deduct the pension. The pension, it is trite law, is to be fixed on the basis of the salary last drawn by an employee and he pensionary benefits are, accordingly, to be calculated. In this regard reference may be made to Mushtaq Ahmad v. State & Ors. [2011 (1) JKJ [HC] 322], Maryam Bano v. State [2003 (1) JKJ [HC] 783: 2003 (1) SLJ 188], Perdhuman Krishan Khullar v. Union of India [2003 (3) JKJ [HC] 423.] 13. For all what has been discussed above, the writ petition is allowed and respondent no.3 is directed to do the needful by releasing the withheld pension/gratuity benefits in favour of petitioners within a period of two months. 14. Disposed of alongwith connected CMP(s).