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2018 DIGILAW 1051 (JK)

Balwan Singh v. State of J&K

2018-12-31

TASHI RABSTAN

body2018
JUDGMENT : 1. The construction of the expression “subject to the condition that absorption of such employees shall not operate disadvantageously vis-a-vis the existing employees in the Power Development Department in the matter of seniority” figuring in the Government Order No.382-PDD of 1997 dated 16.12.1997 issued pursuant to the Cabinet Decision No.237/234 of 18th October, 1997, relating to winding up and dissolution of the Rural Electric Cooperative Society, Vijaypur (Samba), formed and established under the Government Order No.52-PDD of 1978, and directing absorption of its employees in the Power Development Department, will determine the question arising in this case as to whether the service of the employees of the aforesaid Society can be counted towards their retiral benefits, including pension, provident fund, gratuity, etc. 2. In the instant petition, the petitioners seek a direction to the respondents to count the period of their service rendered by them in the Rural Electric Cooperative Society Limited, Vijaypur (Samba), which was wound up and whose registration as a Cooperative Society with the Registrar Cooperative Societies at the instance of the Government was cancelled in terms of government Order No. 382-PDD of 1997 dated 16.12.1997, and at the same time providing absorption of 159 subordinate employees of the Society in the Power Development Department, by creation of posts of equal grade and designation in that Department for the purpose of pecuniary benefits, pension and retiral benefits, and fix their pension accordingly. 3. The short grievance of the petitioners in this petition is that respondents be directed to count their service rendered by them in the Rural Electric Cooperative Society Limited, Vijaypur (Samba), prior to their absorption in the Power Development Department of Jammu and Kashmir Government, for the purposes of pension and other retiral benefits. 4. The brief facts leading to filing of instant petition are that the petitioners were appointed on different posts in different pay scales in the Rural Electric Cooperative Society Limited, Vijaypur (Samba), in which the Government of Jammu and Kashmir was a major shareholder. 4. The brief facts leading to filing of instant petition are that the petitioners were appointed on different posts in different pay scales in the Rural Electric Cooperative Society Limited, Vijaypur (Samba), in which the Government of Jammu and Kashmir was a major shareholder. The petitioners were appointed pursuant to the Advertisement Notices issued by the Deputy Commissioner, Jammu, in the capacity of the Chairman of the Rural Electric Cooperative Society from time to time and they continued in the Society until the same was wound up and dissolved on the direction of the Government by virtue of the Government Order No. 382-PDD of 1997 dated 16.12.1997 and the petitioners along with other employees of the Society were absorbed in the department. It is stated in the writ petition that some of the petitioners have retired from the department while some are still in service. It is also contended that petitioners for the first time came to know from the communication dated 28.03.2011 that the services rendered by them in the erstwhile Rural Electric Cooperative Society Vijaypur, have not been counted for pensionary benefits. Hence, the petitioners have been forced to file the present writ petition. 5. Despite granted several opportunities, respondents No. 1 to 4 have not filed their reply. Even vide order dated 27.09.2018, further time was granted fofiling reply subject to payment of costs of Rs. 4000/- to be paid to the petitioners, making it clear that matter would be considered on its own merit. Thus, the averments made in the writ petition stand admitted rather are deemed to be admitted and the documents relied upon by the petitioners go un-rebutted. However, the respondent no. 5- Accountant General, in its reply, has stated that as per Govt. Oder No. 376 dated 18.08.2001 and PDD letter No. PDD/III/21/86, dated 18.10.2002, the service of the employees of the erstwhile Rural Cooperative Society Vijaypur, has to be counted from the date of their absorption in PDD vide Govt. Order No. 382-PDD of 1997 dated 16.12.1997 and respondent No.5 has no major role to play. 6. I have heard learned counsel appearing on behalf of the petitioners and perused the record. 7. Order No. 382-PDD of 1997 dated 16.12.1997 and respondent No.5 has no major role to play. 6. I have heard learned counsel appearing on behalf of the petitioners and perused the record. 7. Perusal of the record on the file would reveal that the petitioners have been given in situ promotions taking into account their entire service since initial appointment in the Society, however, have been denied the pensionary benefits for the entire service. The Government Order No. 382-PDD of 1997 dated 16.12.1997 winding up the society and consequently absorbing the petitioners in the Power Development Department, provides that the absorption of the employees shall not operate disadvantageously vis-à-vis the existing employees in the Power Development Department, which itself infers that their service in the Society would be counted in the normal course for all service benefits including pension except that their absorption would not disturb seniority and promotional avenues of the existing employees of the department. As has also been rightly contended by learned counsel for petitioners that the petitioners are entitled to the benefit of the service that they have rendered in the said Cooperative Society for the purpose of retiral benefits, and denial of the same to them is not only arbitrary, discriminatory, unreasonable, unjust and unfair, but also violative of Govt. Order No.382-PDD of 1997. 8. Dwelling upon the concept of pension, the Apex Court in case titled D.S. Nakara and others V. Union of India reported in 1983 SCR (2) 165 held that pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. In fact, we look upon pension not merely as a statutory right but as the fulfillment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. 9. The employees of Society, taken over by the government cannot be treated differentially in respect of employees already serving in government. Such employees are required to be treated on equal footings and at par with the employees already borne on the cadre of government department. Relevant rules merely make effective the constitutional mandate. 9. The employees of Society, taken over by the government cannot be treated differentially in respect of employees already serving in government. Such employees are required to be treated on equal footings and at par with the employees already borne on the cadre of government department. Reference in this regard is made to R.L.Marwaha Vs Union of India and Others (1987) 4 Supreme Court Cases 31. In the said case also it is pointed out that there is no dispute that the ICAR, though a body registered under the Societies Registration Act, 1960, is a body which is sponsored, financed and controlled by the Central Government and that there had been a continuous mobility of personnel between Central Government departments and autonomous bodies. The Government thought that it would not be just to deprive an employee, who is later on absorbed in the service of the autonomous body, of the benefit of the service rendered by him earlier in the Central Government for purposes of computation of pension and similarly the benefit of service rendered by an employee, who is later on absorbed in the Central Government service. 10. Similarly the Apex Court in Chander Sain v. State of Haryana &Ors. reported in (1994 (1) S.C.C.750) held that the government was bound to take into account the service rendered by the teachers under the private management for the purpose of calculating the gratuity payable. 11. It is worthwhile to mention here and more particularly in view of doctrine of precedence, the Division Bench of this Court in LPASW No.07/2007 titled Parkash Singh V. State of J&K and others vide judgment dated 17th March 2018, has expressed its opinion while allowing benefit of the service rendered by the employees in the said Society to make up for the qualifying service for pension, and held that the benefit of past service, once given to similar employee of the Society, cannot be denied to similar employee absorbed in the department, on the pretext of less qualifying service in the department 12. In the facts and circumstances of the case in hand, the legal position settled on the subject, and once the respondents have counted the services rendered by the petitioners in the Society for purposes of fixing their insitu promotions, it is discriminatory to count the services rendered by petitioners in the Society for one purpose but not for counting the pensionary benefits. Therefore, the respondents are directed to count the entire service rendered by the petitioners including the services rendered by them in the Society and refix their pension and other incidental benefits and pay the same within a period of three months from the date of receipt of copy of this order. 13. Disposed of as above along with connected IAs if any.