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2022 DIGILAW 735 (JK)

Mushtaq Ahmad Guru v. State of Jammu & Kashmir

2022-12-23

SANJAY DHAR

body2022
JUDGMENT Sanjay Dhar, J. - The petitioner claims that he was engaged as a Daily Wager in Government Transport Undertaking (hereinafter referred to as the GTU) in the year 1976 and that there were several other employees working as Daily wagers holding different designations with the GTU. While the petitioner and similarly situated employees of the GTU were due for attaining the temporary status, Government Order No.25-TR of 1979 dated 27.03.1979 came to be issued whereby it was decided to place the services of employees of GTU at the disposal of J&K SRTC that was established in the year 1976 under a Statute and, accordingly, all the employees of the GTU were given an option to treat their services as pensionable or to be the employees of the Corporation. However, this option was not extended to the daily wagers. This action of the respondents was challenged by the daily wagers through their union in a writ petition bearing SWP No.3082-J/2010. In terms of judgment dated 01.07.2013, the aforesaid writ petition was allowed and the Government was directed to take immediate necessary steps to make the offer of exercise of requisite option to the daily wagers. It was further provided that depending upon the option so exercised by the members of the petitioner union, the respondents shall take further steps to settle the matter. 2. Ultimately, the judgment of the Writ Court was implemented by the Government by issuance of formal Government Order No.110-TR of 2014 dated 10.12.2014. Vide the said order, the Managing Director of J&K SRTC was directed to ascertain the eligibility of all the members of the petitioner union who had been engaged in the erstwhile GTU prior to the date of its conversion into Corporation and to obtain fresh option from them with regard to the terms and conditions as were contained in Government Order No.25-TR of 1979 and Government Order No.38 of 1986. 3. In pursuance of the aforesaid Government Orders, the petitioner was asked to give the requisite information so as to ascertain whether he was employed prior to 1979 and whether he was in the establishment of the respondent Transport Department. The petitioner is stated to have provided full information to respondent No.2, vide his representation dated 15.4.2015. 3. In pursuance of the aforesaid Government Orders, the petitioner was asked to give the requisite information so as to ascertain whether he was employed prior to 1979 and whether he was in the establishment of the respondent Transport Department. The petitioner is stated to have provided full information to respondent No.2, vide his representation dated 15.4.2015. It is submitted by the petitioner that he had provided a certificate issued by the Deputy General Manager (Maintenance), GTU, wherein it was confirmed that he had been appointed in the GTU as a daily wager in the year 1976. However, the petitioner was asked to furnish his appointment order although he had made it clear in his reply that the initial appointment order is not available with him as the same has been misplaced. 4. A number of communications are stated to have been addressed by the petitioner to the respondents clarifying the facts but when nothing happened, the petitioner filed a writ petition bearing SWP No.01/2018 that was disposed of by this Court with a direction to the respondents to accord consideration to the claim of the petitioner. 5. It is contended that in utter disregard of the aforesaid order of the High Court, respondent No.2 issued impugned order No.JKSRTC/GMA/ PS/31/079 dated 05.04.218, whereby claim of the petitioner has been rejected. This order was challenged by the petitioner by way of writ petition bearing SWP No.1001/2018 and pursuant to the interim orders passed by this Court in the aforesaid writ petition, another consideration order dated 03.07.2018 has been passed by the respondents rejecting the claim of the petitioner. Both these orders have been challenged by the petition in the afore-titled two connected writ petitions. 6. It has been contended by the petitioner that the impugned orders deserve to be quashed on the grounds that the same have been issued without taking into consideration the material made available by the petitioner before the respondents. It has been further contended that the respondents have taken contrary stands in the impugned rejection orders as regards the status of the petitioner. 7. The respondents have filed reply to the writ petition, wherein they have contested the claim of the petitioner. It has been further contended that the respondents have taken contrary stands in the impugned rejection orders as regards the status of the petitioner. 7. The respondents have filed reply to the writ petition, wherein they have contested the claim of the petitioner. In the rely filed by respondent No.1, it has been admitted that pursuant to the judgment passed by this Court in SWP No.3082-J/210, the daily wagers of erstwhile GTU were held eligible for pension and, accordingly guidelines to determine their eligibility were laid down in Government Order No.110-TR of 2014 dated 10.12.2014. It has been submitted that the pension cases of those daily wagers having substantial documentary evidence with regard to their initial appointment order or salary acquaintance roll were finalized and they were granted pension. It is contended that the claim of the petitioner was proved to be unfounded as there was no substantial documentary evidence in his favour. It has been claimed that the certificate issued by the General Manager, Maintenance, J&KSRTC, Pampore, in which it has been certified that the petitioner was engaged as a daily wager in the year 1976, is not valid and it cannot be a substitute to the initial appointment order. It is claimed that the petitioner was appointed as Apprentice in the year 1980 and after his regularization, he was allotted Registration No.564. It is further contended that the petitioner does not fall in the category of daily wagers. 8. Respondent No.2 has also filed its reply to the writ petition, in which it has been claimed that the petitioner has failed to establish his eligibility for grant of benefit to him in terms of judgment dated 01.7.213 and the Government Order dated 10.12.2014 despite having availed full opportunity to produce evidence in support of his claim. It has been submitted that the petitioner was initially appointed as Apprentice on 13.10.1977, whereafter he was regularized as a Helper. 9. I have heard learned counsel for the parties and perused the record of the case. 10. It has been submitted that the petitioner was initially appointed as Apprentice on 13.10.1977, whereafter he was regularized as a Helper. 9. I have heard learned counsel for the parties and perused the record of the case. 10. Certain admitted facts which emerge from the pleadings of the parties are that pursuant to the judgment dated 01.07.2013 passed by this Court in SWP No.3082-J/2010, Government Order No.110-TR dated 10.12.2014, came to be issued whereby daily wagers engaged in GTU prior to the date of its conversion into J&KSRTC were held eligible for exercising option with regard to the terms and conditions as contained in Government Order No.25-TR of 1979 dated 27.03.1979 and Order No.38 of 1986. Accordingly, Managing Director, J&KSRTC was directed to ascertain the eligibility of daily wagers union and submit the cases to the Administrative Department along with substantial documentary evidence for verification on case to case basis. 11. The petitioner claims that he was engaged as daily wager in the erstwhile GTU in the year 1976. He has produced certificate dated 16.12.190 issued by Deputy General Manager (Maintenance), J&KSRTC, Pampore, along with his application in the prescribed form before the competent authority. As per this certificate, the petitioner was appointed in July, 1976. The respondents claim that this certificate cannot be taken into account because it does not bear any dispatch number. 12. It is not the case of the respondents that the certificate produced by the petitioner is either fake or forged. In fact, the petitioner has placed on record a copy of the communication bearing No.JKSRTC/Pen-II/301 dated 01.06.2017 addressed by Incharge Administration, JKSRTC, Srinagar, to the Secretary to Government, Transport Department, wherein it has been stated that the certificate issued by the then Deputy General Manager, Maintenance, Pampore, has been traced out by the Corporation and that the said officer was exercising DDO powers at the relevant time, meaning thereby that the certificate has been traced from the records and it is not manufactured or managed by the petitioner. The communication further indicates that the initial appointment order of the petitioner is not forthcoming from the records because of the damage caused due to the unprecedented and devastating floods that occurred in the year 2014. The communication further indicates that the initial appointment order of the petitioner is not forthcoming from the records because of the damage caused due to the unprecedented and devastating floods that occurred in the year 2014. In such a situation when the initial appointment order of the petitioner, as per the version of a responsible officer of the respondent Corporation, was not available in the records, the petitioner cannot be asked to produce the same. In these circumstances, the certificate issued by the Deputy General Manager, Maintenance, JKSRTC, Pampore, that was traced out from the records of the Corporation, could have easily been considered as a valid document in place of appointment order. However, while rejecting the claim of the petitioner vide the impugned orders, the respondents have kept on insisting on production of initial appointment order, which, as per the version of the Corporation itself, had been damaged in the floods. The stand taken by the respondents in this regard is palpably unreasonable and unsustainable in law. 13. Apart from the above, the petitioner has placed on record a copy of the statement issued by the respondent Corporation, showing particulars of the daily wagers of the erstwhile GTU. This statement also finds its mention in communication dated 01.06.2017 of Incharge Administration, JKSRTC, Srinagar. In the said statement, name of the petitioner figures at serial No.253, showing his date of engagement as daily wager as 01.03.1976 and the date of his regularization as 13.09.1980. This statement clearly shows that the petitioner was engaged as a daily wager in the erstwhile GTU prior to its conversion into J&KSRTC. The authenticity of this document has not been disputed by the respondents in their reply affidavits. Thus, there was substantial documentary evidence before the respondents to accord the benefit of Government Order No.110-TR of 2014 dated 10.12.2014 in favour of the petitioner. Instead of doing so, the respondents have rejected the claim of the petitioner on flimsy and technical grounds which are not sustainable in law. 14. One of the grounds of rejection incorporated in the impugned orders passed by the respondents is that as per the service record, the petitioner has been appointed as Apprentice on 13.10.1977 and, therefore, there is no question of his being appointed as daily wager prior to the said date. 15. 14. One of the grounds of rejection incorporated in the impugned orders passed by the respondents is that as per the service record, the petitioner has been appointed as Apprentice on 13.10.1977 and, therefore, there is no question of his being appointed as daily wager prior to the said date. 15. It is true that as per the service book, the date of appointment of the petitioner as Apprentice is shown as 13.10.1977. It is only upon his appointment on a substantive post that the service book of the petitioner has been prepared. Service book of a daily wager is not required to be maintained by the employer, as such, there could not have been any entry in the service book of the petitioner prior to his appointment on substantive basis, whether on temporary or permanent basis. So, the mere fact that the date of appointment of the petitioner in the service book is mentioned as 13.10.1977 does not go on to show that prior to that date, he was not serving as a daily wager in the erstwhile GTU when there is substantial documentary evidence/material on record to that effect. 16. In the face of the overwhelming material on record to show that the petitioner was working as a daily wager with GTU prior to its conversion into J&KSRTC, the impugned orders of rejection of the petitioner's claim regarding grant of pensionery benefits extended in terms of Government Order No.110-TR of 2014 dated 10.12.2014 to the daily wagers of the erstwhile GTU are not in accordance with the law and the same deserve to be set aside. 17. Accordingly, both the writ petitions are allowed and the impugned orders are set aside. The respondents are directed to recommend the case of the petitioner for grant of pensionery benefits as has been done in the case of other daily wagers of the erstwhile GTU in terms of Government Order No.110-TR of 2014 dated 10.12.2014 read with Government Order Nos.25-TR of 1979 dated 27.03.1979 and 38-GR(TR) of 1986 dated 03.10.1986. The needful shall be done by the respondents within a period of two months from the date a copy of this order is served by the petitioner upon them.