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2018 DIGILAW 137 (JK)

Balbir Chander v. State of J&K

2018-03-07

RAMALINGAM SUDHAKAR, SANJEEV KUMAR

body2018
JUDGMENT : 1. Appellants have approached the Writ Court by filing SWP No.685/2017, wherein, inter alia, following reliefs have been claimed:- “a. Writ of certiorari for quashment of rejection order No.JKSRTC/Lit/Admn/Sgr/1171 dated 3.11.2016 passed by the General Manager (Admn.) and for quashment of SRO 422 passed by Special Secretary to Government Food, Supplies and Transport Department being unconstitutional, in applicable, Arbitrary, bad and illegal in the eyes of law; b. Writ of mandamus commanding the respondents to grant benefit of Pension and all pensionary benefits in favour of the petitioners from the due date, as has been granted to the similarly situated employees of the department in compliance to the directions of Judgment dated 01.07.2013 passed in SWP No.3082-J of 2010 in compliance of Judgment dated 11.03.2016 passed in SWP No.953/2015 by this Hon’ble Court in favour of the petitioners herein while considering Government Order No.38-GR(TR) of 1986 dated 03.10.1986 in pursuance of Government Order No.25/TR of 1979 dated 20.03.1979 which was issued while the petitioners were in service and the benefits of the same may kindly be extended in their favour;” 2. SRO 422 of 1976 dated 14.07.1976, which is under challenge reads as follows:- “GOVERNMENT OF JAMMU AND KASHMIR FOOD SUPPLIES AND TRANSPORT DEPARTMENT Notification Dated 14th July, 1976 SRO-422—In exercise of the powers conferred by section 3 of the Road Transport Corporation Act, 1950 (64 of 1950 ) the Government of Jammu and Kashmir hereby establish with effect from 1st day of September, 1976 a Road Transport Corporation under the name the “the J&K State Transport Corporation” for the whole of the Jammu and Kashmir State. By order of the Government of Jammu and Kashmir. (Sd) ………….. Spl. Secretary to Government Food Supplies and Transport Department” 3. At the first instance, we will deal with the primary issue raised by the writ petitioners-appellants, which was declined by the learned Single Judge. The appellants who are writ petitioners numbering about 38 pleaded in the writ petition that they were mostly employed as regular employees, either as Conductor, Driver, Bus, Washer, Daily wagers etc. and most of them have been appointed after September, 1976, some in 1978 and some in 1979. One employee, i.e., appellant No.20 claims that he was appointed on 09.11.1976, earlier to other appellants. and most of them have been appointed after September, 1976, some in 1978 and some in 1979. One employee, i.e., appellant No.20 claims that he was appointed on 09.11.1976, earlier to other appellants. Appellants claim that SRO 422 which came into effect on 01.09.1976 is bad and contrary to the Cabinet Decision No.51 dated 19.02.1979 and subsequent proceedings. Appellants further claim that in terms of the Cabinet Decision No.51 of 1979, they are also entitled to the benefits what have been accorded to the employees of Government Transport Undertaking (GTU). This issue was considered by the learned Single Judge. After hearing the learned counsel for the State as well as the Transport Corporation, a learned Single Judge held, both in fact and law, that the appellants have not made out a case for quashing SRO 422 dated 14.07.1976 and that the Cabinet Decision No.51, based on which the Government Order No.25-TR of 1979 dated 27.03.1979 was issued, will not apply for alluring any benefit to the appellants. 4. For better appreciation, the precise case of the appellants before the Writ Court, as has been noticed by the learned Single Judge in paragraph Nos.3, 4, 5, 6 and 7 is reproduced hereunder:- “3. Background facts, precisely, are that the Government Transport Undertaking (GTU) was established in the State of J&K as a Government owned Transport Organization for transportation of passengers and good grains in the State. The GTU was later converted into the Corporation. By virtue of Government order No.25-TR of 1979 dated 27.03.1979, the employees of the GTU, who opted for service in the Corporation, were given some options, one of them being to either retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the Corporation, insofar as they relate to the benefits consequent upon retirement. 4. The case as demonstrated on behalf of the petitioners by their counsel, precisely, is that they were the employees of the GTU and were holding regular posts as at the time of the issuance of the Government order dated 27.03.1979 (supra), whereby the Corporation was created, so they are entitled to the pensionary benefits in view of the judgment dated 01.07.2013 rendered by the Srinagar wing of this Court in SWP No.3082. 5. 5. The petitioners seem to have coined a wishful but trumpery notion that the Corporation was created vide Government Order No.25-TR of 1979 dated 27.03.1979. Page 64 on the paper book of SWP No.685/2017 is the SRO 422 dated 14.07.1976. This reads: “SRO-422- In exercise of the powers conferred by section 3 of the Road Transport Corporation Act, 1950 (64 of 1950) the Government of Jammu and Kashmir hereby establish with effect from 1st of September, 1976 a Road Transport Corporation under the name of “J&K State Transport Corporation” for the whole of the Jammu and Kashmir State.” 6. The Government order dated 27.03.1979 on the other hand relates to settlement of the terms of the adjustment of the GTU staff in the Corporation, which is clearly stated in the subject title of the order and is spelt out in the contents thereof. There is, thus, no scope of nourishing the idea or raising any question in regard to the date of creation of the Corporation. The Corporation was created by virtue of SRO 422 dated 14.07.1976 with effect from 1st September, 1976 and not by virtue of the Government order dated 27.03.1979 (supra). All the petitioners having been appointed after creation of the Corporation and not in the GTU, are not entitled to any benefit percolating to the erstwhile employees of the GTU by virtue of the Government order dated 27.03.1979 or the benefit of the judgment dated 01.07.2013 (supra), petitioner wherein were the persons, who claimed to have been appointed on daily wages basis in the GTU prior to the year 1976. 7. Viewed thus, both these writ petitions are dismissed as being misconceived and without any merit.” 6. Aggrieved of the dismissal of their writ petition, the writ petitioners/appellants are before this Court. It is pleaded that by virtue of Cabinet Decision No.51 dated 19.02.1979, benefit was extended to all persons who were on the roll of the J&K Road Transport Corporation with effect from 27.03.1979 and the appellants who are already working from 1976 onwards in the Road Transport Corporation are entitled to the same option and benefits as were available in terms of the Cabinet Decision No.51 dated 19.02.1979, which culminated in issuance of Government Order No.25-TR of 1979 dated 27.03.1979. 7. 7. The second contention raised by the appellants appears to be that in the case of All J&K Workers Union State Road Transport Corporation v. State of J&K and ors.(SWP No.3082-J/2010), decided on 01.07.2013, a learned Single Judge of this Court held that the petitioners therein are entitled to be given the right to exercise their option in respect of service benefits and the appellants are also entitled to the same benefit. To emphasize this plea, they rely upon Government Order No.110/TR/AF of 2014 dated 10.12.2014 (Annexure-C). 8. We have heard M/S Anil Gupta and G.S.Thakur, Advocates on behalf of the appellants and Mr. A.S.Raju, learned Dy. AG on behalf of the State and Mr. R.Koul on behalf of the State Road Transport Corporation. 9. The first contention that SRO 422 dated 14.07.1976 is bad, was rejected by the learned Single Judge primarily holding that the Government Order No.25-TR of 1979 dated 27.03.1979 based on Cabinet Decision No.51 of 1979 has no relevance to the creation of the J&K Road Transport Corporation with effect from 01.09.1976 and we agree with such finding because pursuant to the powers conferred by Section 3 of the Road Transport Corporation Act, 1950, the Government of Jammu and Kashmir established the Road Transport Corporation under by the name “J&K State Transport Corporation”, w.e.f. 01.09.1976. This fact is clear and unambiguous because it was not the Cabinet Decision No.51 of 1979 that deals with the creation of the J&K State Transport Corporation. Therefore, the said contention was rightly rejected. 10. Pursuant to the coming into force of the said Transport Corporation, certain benefits were extended to erstwhile employees of the GTU. This has been granted pursuant to Cabinet Decision No.51 of 1979 dated 19.02.1979, which culminated into Government Order No.25-TR of 1979 dated 27.03.1979. 11. A perusal of the said order makes it clear that the employees of the erstwhile Government Transport Undertaking, who were taken on deputation to the Road Transport Corporation and the government servants whose services were placed at the disposal of the Road Transport Corporation were given two options, i.e., either to continue in the Corporation with certain benefits or if they do not want to continue in the Corporation, to seek retirement from Government service on certain conditions. 12. 12. The Government Order No.25-TR of 1979 dated 27.03.1979, which is based on Cabinet Decision No.51 of 1979 dated 19.02.1979, has nothing to do with the creation of the J&K State Transport Corporation. It does not also deal with any daily wage or need based workers. Therefore, falling back on the Cabinet Decision No.51 of 1979 and Government order No.25-TR of 1979 dated 27.03.1979 does not further the case of the appellants. 13. Therefore, the learned Single Judge was right in declining the issuance of writ of certiorari. We find no error in the finding recorded by the learned Single Judge. 14. The other contention raised by the appellants is that based on order of a learned Single Judge in SWP No.3082-J/2010 (All J&K Workers Union State road Transport Corporation v. State of J&K and others) decided on 01.07.2013, the Government had issued Government Order No.110/TR/AF of 2014 dated 10.12.2014 and that order will enure to the benefits of the appellants as well. 15. This argument need to be rejected at the threshold because the preamble of Government Order dated 10.12.2014 makes it clear that it does not apply to the employees who have come into J&K State Transport Corporation after it was established, i.e., 01.09.1976. The preamble of Government Order dated 10.12.2014 reads as follows:- “Whereas in pursuance of Cabinet Decision No.51 dated 19.02.1979 Government established the J&K, SRTC by conversion of erstwhile Government Transport undertaking (GTU) vide Government order No.25-TR of 1979 dated 27.03.1979 and all the employees of erstwhile GTU were taken on deputation into the SRTC from 01.09.1976.” 16. It has been recorded by the learned Single Judge that the appellants were appointed somewhere in November, 1976 and thereafter. Therefore, by no stretch of imagination, they can seek benefit of Government Order No.25-TR of 1979 dated 27.03.1979 as it applies to GTU employees alone. The appellants were induced after coming into force the JKSRTC w.e.f. 01.09.1976. 17. The appellants also relied on the case of one Darshan Lal, whose service record has been placed on record by the appellants by filing MP No.1/2018. The appellants were induced after coming into force the JKSRTC w.e.f. 01.09.1976. 17. The appellants also relied on the case of one Darshan Lal, whose service record has been placed on record by the appellants by filing MP No.1/2018. But on perusal of the service record of said Darshan Lal, we find that the said case was of a person who was appointed as daily wager in 1973 and regularized in the year 1980 and his case was initially rejected by the J&K State Transport Corporation and was accepted by the Government in terms of the order of the learned Single Judge in All J&K Workers Union, State road Transport Corporation v. State of J&K and others (SWP No.3082-J/2010) dated 01.07.2013. 18. Even otherwise, we find that the benefit which flows to the erstwhile employees of the GTU could have been extended to the daily wagers. But in the present case we are concerned with the appellants who had been appointed as Driver, Conductor, and Bus Washer, daily wagers etc. after coming into force of the J&K State Transport Corporation with effect from 01.09.1976. Therefore, the question of equating the appellants with other persons, who were employed in the erstwhile GTU does not arise. 19. Yet, another plea was made by the learned counsel for the appellants that there are positive recommendations made by the Managing Director of the J&K State Road Transport Corporation in their favour to the Minister for Transport on 08.02.2017. We do not comment on its merits. It is open to the Government to consider the case of these appellants based on the recommendations of the Managing Director as per law on its own merits. 12. We find no merit in the appeal. Accordingly, the same is dismissed. However, there shall be no order as to costs.