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2021 DIGILAW 490 (JK)

Union Territory of J&K v. Abdul Rashid Makroo

2021-09-21

PANKAJ MITHAL, VINOD CHATTERJI KOUL

body2021
JUDGMENT : PANKAJ MITHAL, J. 1. Heard Mr. Irfan Andleeb, learned Dy. A.G. for the appellants and Mr. S.A. Makroo, learned senior counsel assisted by Mr. Mohammad Amin, Advocate, for the respondent. 2. The appeal under Clause 12 of the Letters Patent is directed against the judgment and order dated 20th November, 2020, passed by the writ court allowing W.P. (C) No. 2865/2019, Abdul Rashid Makroo vs. State of Jammu and Kashmir and Others, by which a writ in the nature of mandamus has been issued directing the appellants/respondents to release the pensionary/retiral benefits including gratuity etc. along with arrears thereof with interest @ 6% per annum in favour of the respondent/petitioner, in accordance with the rules as are applicable to the employees of the Government of Jammu and Kashmir. 3. The respondent/petitioner invoked the writ jurisdiction of this court claiming direction for release of his pension which was fixed at the rate of Rs. 70158/- as on November, 2018 and to release the arrears of pension amounting to Rs. 39,34,216/- up to November, 2018, in terms of the Pension Scheme notified by the Jammu and Kashmir State Power Development Corporation, hereinafter referred to as the Corporation. The respondent/ petitioner also claimed interest @ 18% per annum on account of illegal withholding of his pension and for award of costs to the tune of Rs. 2 lakhs and damages/compensation of Rs. 1 lakh for the mental agony and loss caused to him. 4. The aforesaid writ petition was filed on the allegations that the petitioner was appointed in the year 1982 with the Jammu and Kashmir State Industrial Development Corporation, hereinafter referred to as SIDCO. In the year 1995, he was posted on deputation in the Bureau of Public Enterprise as Financial Analyst. He was then sent on deputation vide order dated 7th August, 1997 to the Corporation. During his working with the Corporation though he continued to hold the post of Financial Analyst but vide order dated 29th August, 2001, his services were absorbed in the Corporation. The petitioner was promoted as the Chief General Manager in terms of the order dated 01.04.2008 and ultimately retired on 31.01.2014. He is entitled to pension and retiral dues with effect from the said date but the same have not been paid to him. 5. The petitioner was promoted as the Chief General Manager in terms of the order dated 01.04.2008 and ultimately retired on 31.01.2014. He is entitled to pension and retiral dues with effect from the said date but the same have not been paid to him. 5. The claim of the respondent/petitioner was resisted on the ground that the Rules of the erstwhile State of Jammu and Kashmir as applicable to the Government employees are not applicable to the respondent/petitioner. The Corporation has not yet formulated any scheme for pension. The respondent/petitioner under the absorption order is not entitle to the same benefit as are available to the Government employees of the State of Jammu and Kashmir. 6. The forth respondent in the writ petition i.e. LIC filed objections to the writ petition stating that a Memorandum of Understanding (MoU) has been entered into between the LIC and the Corporation on 13th June, 2018 and a policy was allotted to the Corporation. The Corporation has contributed the initial amount of Rs. 2,96,50,000/- on 19th June, 2018 and thereafter Rs. 3,50,00,000/- on 28.03.2019 against the aforesaid policy. On the intimation of the Corporation, the LIC had started paying monthly pension to one Ghulam Qadir Wani with effect from July, 2018 but since the Corporation has not directed the LIC to release any pension in favour of the respondent/petitioner, the LIC is unable to disburse any pension to him. 7. The writ court by the impugned order in directing for payment and release of the pensionary and retiral benefits to the respondent/petitioner broadly assigned two grounds to support the above direction. The first ground was that one of the employees of the Corporation, Ghulam Qadir Wani, who had attained the age of superannuation in the year 2010, was granted pensionary benefits in the light of the directions contained in the judgment and order dated 8th April, 2015 passed in SWP No. 184/2011 filed by him. The case of the respondent/petitioner is similar and identical to that of Ghulam Qadir Wani and, therefore, he cannot be discriminated in the matter of payment of pension/retiral benefits. The case of the respondent/petitioner is similar and identical to that of Ghulam Qadir Wani and, therefore, he cannot be discriminated in the matter of payment of pension/retiral benefits. The other reason assigned for granting pensionary/retiral benefits to the respondent/ petitioner that his absorption order dated 29th August, 2001 by which his services were absorbed in the Corporation in unambiguous and clear tone providing that the respondent/petitioner will be entitled to pensionary/retiral benefits which are being paid to other officials/employees borne on the establishment of the Corporation till such time the Corporation adopts its own rules. Since the Corporation has not framed its own rules, therefore, in accordance with the absorption order dated 29th August, 2001, it is bound to pay pensionary and retiral benefits to the petitioner in accordance with the Government rules i.e. Jammu and Kashmir Civil Service Regulations. 8. In order to examine the correctness of the second reasoning given by the writ court in directing for payment of pensionary/retiral benefits to the respondent/petition, let us first examine the absorption order dated 29th August, 2001. The said order which is Annexure-II to the writ petition is issued by the Managing Director of the Corporation. The said order reads as under: “J&K STATE POWER DEVELOPMENT CORPORATION LIMITED SRINAGAR Subject: Upgradation of post of Financial Analyst. ORDER NO. PDC/(sic) OF 2001 DATED: 29.08.2001 Consequent upon the approval of the chairman, JKSPDC, sanction is hereby accorded to the upgradation of the post of Financial Analyst from 10000-350-15200 to 12000-375-16500 and its subsequent release in favour of Sh. A.R. Makroo financial Analyst with immediate effect. Other terms and conditions governing services of Sh. Makroo will be same as are applicable to other employees borne on establishment of PDC till such time the Corporation adopts its own rules.” 9. A reading of the aforesaid order reveals that the Chairman, JKSPDC, has approved to the up-gradation of the post of Financial Analyst and for release of the upgraded salary in favour of the respondent/petitioner with immediate effect. The second part of the order states that other terms and conditions governing his services will be same as are applicable to other employees borne on the establishment of PDC (Power Development Corporation) till such time the Corporation adopts its own rules. 10. The second part of the order states that other terms and conditions governing his services will be same as are applicable to other employees borne on the establishment of PDC (Power Development Corporation) till such time the Corporation adopts its own rules. 10. The aforesaid order nowhere contains any direction that the respondent/petitioner will be entitled to pensionary/retiral benefits which are being paid to the Government employees or which are admissible to the employees of the Corporation according to the Jammu and Kashmir Civil Service Regulations. The direction was simply that the service conditions would be same as would be applicable to other employees of the Corporation. Admittedly, no employees other than Ghulam Qadir Wani was being paid any pensionary/retiral benefits, therefore, the writ court manifestly erred in law in interpreting the absorption order dated 29th August, 2001 as one which provides for grant of pensionary/retiral benefits to the respondent/petitioner. 11. In context with the pensionary and retiral benefits granted to Ghulam Qadir Wani, it may be noted that he was appointed in the Corporation vide Order No. PDC/CJ/10 of 2000 dated 29.04.2000. One of the conditions of his appointment order was as under: “.....Retirement/Terminal Benefits. The pensionary/terminal benefits will be permissible to the officer as per the rules followed by the State Government, till such time Corporation adopts its own rules, with due protection of his past service.” 12. The aforesaid condition clearly provided that he would be entitled to pensionary and retiral benefits as are admissible as per the rules followed by the Government till the Corporation adopts its own rules. The said condition is entirely different from the condition contained in the order of absorption of the respondent/petitioner wherein there is no reference of any pensionary or terminal benefits to be provided as per the rules followed by the State Government. 13. It was in the light of the above condition of the appointment of Ghulam Qadir Wani that his writ petition for payment of pensionary/retiral benefits was allowed by the court vide judgment and order dated 8th April, 2015 and the Corporation issued necessary directions for release of his pension. The case of the respondent/petitioner was entirely different. 14. 13. It was in the light of the above condition of the appointment of Ghulam Qadir Wani that his writ petition for payment of pensionary/retiral benefits was allowed by the court vide judgment and order dated 8th April, 2015 and the Corporation issued necessary directions for release of his pension. The case of the respondent/petitioner was entirely different. 14. The writ court materially erred in not comparing the conditions of the absorption/ appointment of the respondent/petitioner with that of the condition contained in the appointment order of Ghulam Qadir Wani, which are distinct and different from each other. 15. In view of the above, we are of the opinion that the learned Single Judge grossly erred in law in allowing the writ petition and directing for payment and release of pensionary and retiral benefits to the respondent/petitioner. 16. Notwithstanding the above, it has come on record that the Corporation for the benefit of the employees who came to be appointed before the New Pension Scheme (NPS) had entered into a MoU with the Life Insurance Corporation of India for adoption of JKSPDCL Group Superannuation Scheme which covers 51 employees including the respondent/ petitioner. The scheme has been approved by the Chairman of the Corporation and even by the Chief Minister with the condition to get it confirmed from the Board of Directors of the Corporation. The Board of Directors in one of its meetings has asked the Financial Committee to make fresh recommendations which probably have been made but thereafter the Board meeting had not taken place and, as such, the scheme remains pending approval/confirmation of the Board. 17. Learned counsel for the respondent/petitioner has tried to emphasize that the Scheme has already been approved and that the respondent/petitioner is now entitled to pensionary/ retiral benefits. The documents referred to by the learned counsel for the respondent/ petitioner in this regard no doubt establishes that the JKSPDCL Employees Superannuation Benefit Scheme has the approval of the Chairman of the Corporation as well as the Chief Minister and may have been placed before the Board but there is no final resolution of the Board to show that it has been confirmed by it. One of the order dated 13.06.2018 reveals that directions were issued to place the complete proposal along with the trust deed for establishment of the JKSPDCL Employees Superannuation Fund Trust and the rules before the next meeting of the Board for the purposes of its confirmation. The other order dated 14.06.2018 reveals that JKSPDCL Pension Rules shall be the same as are applicable to the State Government of Jammu and Kashmir for their regular employees before 01.01.2010 except to the extent that retirement benefits will be determined by the JKSPDCL Superannuation Fund Trust. However, there is no resolution of the Board which confirms and adopts the JKSPDCL Employees Pension Rules or the JKSPDCL Group Superannuation Scheme. In the absence of it, the writ court is not justified in directing for the payment of pensionary/retiral dues to the respondent/petitioner. 18. In view of the aforesaid facts and circumstances, the judgment and order of the learned Single Judge dated 20.11.2020 is not sustainable in law and is hereby set-aside but with the direction to the Corporation to forthwith get the confirmation/adoption of the Scheme/JKSPDCL Pension Rules and to issue necessary direction for release of the pensionary/retiral dues to the respondent/petitioner, if he is eligible and covered there under, most expeditiously preferably within a period of six months from the date a copy of this order is served upon the respondent Corporation. 19. The appeal is, accordingly, allowed with no order as to costs.