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2016 DIGILAW 560 (JK)

Jawahar Lal Koul v. State of J&K

2016-10-24

DHIRAJ SINGH THAKUR

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JUDGMENT : Dhiraj Singh Thakur, J. 1. The present petition has been filed by the erstwhile employees of the State Financial Corporation, seeking the revised 6th Pay Commission arrears in their favour. The J&K State Financial Corporation created in terms of the J&K State Forest Corporation Act, 1951 is a body corporate having perpetual succession and a common seal. However, in terms of Section 39, the Corporation is governed by the policy decisions taken by the State Government. Section 39(2) specifically states that in the event of a dispute between the State Government and the Board, the decision of the State Government would be final. 2. In the backdrop of the aforementioned provisions, it appears that vide Government Order No. 256-F of 2009, dated 17.11.2009, a policy decision was taken, granting sanction to the revision of pay-scale to the employees working in the J&K State Financial Corporation with effect from 01.01.2006. Order dated 17.11.2009 for facility of reference is reproduced hereunder: "GOVERNMENT OF JAMMU & KASHMIR FINANCE DEPARTMENT CIVIL SECRETARIAT Subject: Revision of pay scales in favour of J & K State Financial Corporation. Govt. Order No. 256-F of 2009, dated 17.11.2009. Subject to SIDBI communication No. 1788/DFID/SFCs Regulations, dated 22.06.2005, sanction is hereby accorded to the revision of pay scales of the employees working in the J & K State Financial Corporation w.e.f. 01.01.2006 as per SRO-93 dated 15.04.2009 read with SRO 266/2009. The Managing Director shall therefore, first put up this sanction before the Board of Directions of the Corporation for consideration and present the case of the corporation about its ability to meet financial burden arising out of pay revision by indicating cash flows to the corporation over a period of time on sustained basis and to rule out the possibility of seeking budgetary support from the State Government for meeting fund requirement for the purposes. This order shall not apply to the employees on deputation with the Corporation who will continue to be governed by the terms and conditions of their deputation. For opting for the corporation grade, wherever covered in the terms of deputation, the restriction as provided in J & K CSR shall apply. By order of the J & K Government. Sd/- (Sudhanshu Pandey) IAS Commissioner/Secretary to Government Finance Department No. FD/Psu/2009/19 Dated: 17.11.2009. Copy forwarded to the:- 1. Commissioner/Secretary to Government, General Administration Department. 2. For opting for the corporation grade, wherever covered in the terms of deputation, the restriction as provided in J & K CSR shall apply. By order of the J & K Government. Sd/- (Sudhanshu Pandey) IAS Commissioner/Secretary to Government Finance Department No. FD/Psu/2009/19 Dated: 17.11.2009. Copy forwarded to the:- 1. Commissioner/Secretary to Government, General Administration Department. 2. Managing Director, State Financial Corporation, Jammu for information and n/a. This has reference to his letter No. SFC/HQ/09-934, dated 06.10.2009. 3. Special Assistant to Finance Minister for information of Hon'ble Minister. 4. Director, Codes, Finance Department. 5. Government Order file. Sd/- Additional Secretary to Government Finance Department" 3. It appears that pursuant to the aforementioned decision, vide Order dated 11.06.2011 the Board of Directors of the Corporation in its 223rd meeting, held on 01.09.2010 considered the proposal regarding implementation of the 6th Pay Commission and in its 224th meeting held on 19.04.2011, approved the implementation of revision in the pay-scale and other allowances of the Corporation in accordance with the provisions and the rules of the State Government and decided to release the benefit of 6th Pay Commission to the employees of the Corporation in a structured manner. 4. It was decided that the benefit of the revised pay-scale would be given with effect from 01.04.2011. The petitioners approached this Court through the medium of the present petition, stating therein that whereas the Government had taken a policy decision with regard to the grant of benefit of revised 6th Pay Commission with effect from 01.01.2006, the Board had decided to given the benefit only with effect from 01.04.2011, which was bad and illegal. 5. It was stated that the petitioners had, in the meantime, retired after 01.01.2006 and before 01.04.2011. 6. Objections to the writ petition filed by the Corporation, wherein a stand was taken that the Corporation had decided to accord the benefit of 6th Pay Commission only with effect from 01.04.2011 and that no decision had been taken about the implementation of pay revision with effect from 01.01.2016. 7. Subsequently, however, in response to supplementary affidavit, the Corporation in their affidavit dated 10.08.2015 took a stand, which are as under:- "The Board of Directors after taking the review of performance approved remaining two installments of pay revision benefits in its meetings held on 11.06.2011 and 21.12.2012 with effect from January, 2012 and April, 2013 respectively. 7. Subsequently, however, in response to supplementary affidavit, the Corporation in their affidavit dated 10.08.2015 took a stand, which are as under:- "The Board of Directors after taking the review of performance approved remaining two installments of pay revision benefits in its meetings held on 11.06.2011 and 21.12.2012 with effect from January, 2012 and April, 2013 respectively. Based on the above referred Government notification viz-a-viz Board decisions, fixation of pay to the serving employees was made notion-ally without paying any arrears accrued thereon out of implementation of 6th Pay Commission with effect from 01.01.2006 upto 01.04.2011." 8. Interestingly, learned counsel for the petitioners filed another supplementary affidavit dated 20.05.2015, for placing on record information collected by them under Right to Information Act, reflecting therein that certain officers working in the J & K State Financial Corporation, who had got the benefit of revised pay-scale with effect from 01.01.2006. Mohd. Farooq happens to be working as the Managing Director and had got the benefit of revised pay-scale with effect from 01.01.2006. Similarly, Mohammad Rafiq Dar and Mohd. Ashraf Shah, working as Deputy General Manager & Assistant Manager in the Corporation, they both were given the benefit of revised pay-scale with effect from 01.01.2006. Same is the case with Ghulam Mohammad Dar, working as Supervisor, who was also given the benefit of revised pay-scale with effect from 01.01.2016. 9. In reply to the aforementioned affidavit, it was stated that the pay fixation had been allowed by the Corporation to its employees with effect from 01.01.2006 on notional basis and the salary was released under the revised grades only prospectively with effect from 01.04.2011. 10. In view of the above, the position that emerges at this stage is that the Corporation has admitted to give the benefit of revised pay-scale with effect from 01.01.2006 only on notional basis although only to the serving employees of the corporation. 11. Learned counsel for the Corporation tried to draw a distinction between the employees, who had been given the benefit qua the petitioners on the ground that on the date of decision in the year 2011, the petitioners had retired from service and that the decision would be applicable only to those officers and employees, who were in place on the date of the decision. 12. The distinction drawn by the learned counsel for the Corporation, however, is clearly illogical and unreasonable. 12. The distinction drawn by the learned counsel for the Corporation, however, is clearly illogical and unreasonable. Since the decision was to give notional benefit w.e.f., 01.01.2006, it could not have been denied to the petitioners who were in place on the said date and serving. 13. It needs to be emphasized that even when arrears were not to be paid, in view of the stand taken by the Corporation yet the Corporation can retrospectively revise the retiral benefits in favour of the petitioners. 14. Be that as it may, this petition is disposed of a with a direction to the respondents to consider the petitioners eligible for grant of revised pay-scale notionally with effect from 01.01.2006. Petitioners shall also be entitled to all retiral benefits, including gratuity etc, strictly in accordance with the rules calculate on the pay so received. 15. Let an appropriate decision be taken positively within a period of three months from the date, a copy of this order is served upon the respondents through the petitioners. Disposed of as above along with all connected MPs.