Jammu & Kashmir High Court - Srinagar Bench
Ghulam Qadir Wani vs State And Ors on 8 April, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No. 184 of 2011
Ghulam Qadir Wani
Petitioners
State and Ors.
Respondents
!Mr. Z.A.Shah, Sr. Advocate with
Mr. Hanan, Advocate
^None, Advocate
Honble Mr. Justice Muzaffar Hussain Attar, Judge
Date: 08/04/2015
: J U D G M E N T :
(Oral) Petitioner has retired on superannuation from the service of respondent-Corporation. In terms of Order dated 19th April, 2000, the petitioner was appointed as General Manager (Finance) in respondent-Corporation. The terms and conditions in respect of appointment of the petitioner are contained in the appointment Order No. PDC/CJ/10 of 2000 dated 19th April, 2000. Condition -7 of the appointment order, which is relevant for the purpose of disposal of this writ petition, is taken note of:-
....Retirement/Terminal Benefits.
The pensionary/terminal benefits will be permissible to the officer as per the rules followed by State Govt. till such time Corporation adopts its own rules, with due protection of his past service. The petitioner, after his retirement from the service, sent Communication dated 23rd October, 2010 to the respondent- Corporation, requesting them to release the pensionary benefits and gratuity in his favour. Vide Communication dated 28th November, 2010, the petitioner was informed by the Administrative Officer that his claim for grant of retiral benefits has been examined by the Administrative, Finance and legal wings of respondent-Corporation in terms of relevant articles of J&K CSR. The petitioner was also informed that since, he, all along, has been employee of one PSU or the other, as such, is not entitled to retiral benefits as extended to Government servants.
It is this communication which is called in question in this writ petition and it is prayed that the said communication as also communication dated 19th January, 2011 be quashed and respondents be directed to pay all post retiral benefits to the petitioner including pension and gratuity, computing the same under rules of pension applicable to Government employee of same rank and status as the petitioner was at the time of his retirement. It has been further prayed that respondents be directed to calculate pension as also the gratuity of the petitioner on the basis of service rendered by him from 1983.
In the reply affidavit/objections, the respondents have stated that the claim of the petitioner for grant of pensionary and other retiral benefits is not tenable in law, as the service of the petitioner was never pensionable one and he does not qualify for the same because, all along, he has been the employee of different Corporation/Public Sector Undertakings, which are having non-pensionable services. It is further submitted that none of the employees borne on establishment of Corporation has so far been granted the pension at par with Government employees. Yet another reason has been given for not allowing the claim of the petitioner for grant of retiral benefits viz. he does not fulfill the following conditions, which are taken note of:-
i. The service must be under the State;
ii .The employment must be a substantive and
permanent;
iii. The service must be paid by the Govt.
Mr. Z.A.Shah, Learned Senior Advocate, submitted that Corporation has misconstrued the issue involved in this case, inasmuch as, they have assumed that petitioner will be entitled for grant of retiral benefits only when he would have a status of an employee under the Government. Learned counsel, while referring to para-7 of the appointment order of the petitioner, stated that the petitioner is entitled to get the pensionary/retiral benefits as per rules followed by the State Government. Learned counsel further submitted that expression, these rules of the State Government are to be followed till such time, Corporation adopts its own rules, with due protection of his past service, would mean that until such time the Corporation frames its own rules, the rules, which are applicable for grant of retiral benefits to the State Government employees, are to be followed in the case of petitioner.
The respondent-Corporation, which is State owned Corporation, is authority in terms of Article 12 of the Constitution of India. The respondent-Corporation entered into contract with petitioner when he was appointed on the post of General Manager (Finance) in the Corporation vide Order dated 19th April, 2000. The respondent- Corporation being conscious of the fact that there was no rule available in the Corporation which would permit the Authorities to pay retiral benefits to the petitioner agreed to pay him retiral benefits. The para-7 of the appointment order is unambiguous and clear in its tone and toner and provides that petitioner will be entitled to pensionary/retiral benefits which are being paid to the officer as per the rules followed by the State Government till such time Corporation adopts its own rules. The Corporation has not framed its own rules. In the case of the petitioner in view of the conditions contained in para-7 of the appointment order, the Corporation is bound to pay the pensionary/retiral benefits to the petitioner in accordance with the Government rules viz. Jammu and Kashmir Civil Service Regulations.
At the time the petitioner was appointed in the respondent- Corporation, the appointing Authority was conscious that he is not a Government employee and has never worked in any of the Government department, but has all along worked in different corporations/Public Sector Undertakings. The Corporation in terms of appointment Order dated 19th April, 2000 has entered, as already stated, into contract with the petitioner, which, it is duty bound to fulfill being State owned Corporation. The stand taken by the respondents in their reply affidavit/objections that petitioner does not satisfy the requirements which are laid down in the Government rules, cannot be countenanced in view of the aforesaid fact situation. The respondent- Corporation may not have paid pensionary/retiral benefits to its other employees, but they are bound to pay the said benefits to the petitioner in view of para-7 contained contract of employment. Denial of the retiral benefits to petitioner would violate the Constitutional guarantee available to him under Article 14 and 21 of Constitution of India.
May be the petitioner may not have opted for the employment of respondent-Corporation, had they not extended the promise of paying pensionary/retiral benefits, which promise matured into a contract in terms of order dated 19th April, 2000. The respondent-Corporation cannot be permitted to wriggle out of its commitment to pay the pensionary/terminal benefits to the petitioner.
The pensionary/retiral benefit becomes the principal sources of sustenance to an employee after his retirement. It has been held by Honble the Supreme Court that payment of pensionary/retiral benefits is not bounty which is being paid to the employee. These benefits are being paid in recognition of service rendered by an employee to his Employer. The purpose for grant of pensionary/retiral benefits is to ensure that after the retirement an employee is in a position to sustain himself.
For the above stated reasons this writ petition is disposed of in the following manner:-
The Communication No. JKSPDC/Adm/Eg-5/CJ/8993 dated 28. 10.2010 and Communication No. JKSPDC/Adm/Eg-5/CJ/4443 dated 19.01. 2011 are quashed. The respondents are directed to pay the pensionary/retiral benefits including gratuity etc to the petitioner in accordance with the rules which are applicable to the employees of State Government. The respondents to pass orders in this behalf within a period of four weeks from the date copy of this order is served.
Disposed of.
(Muzaffar Hussain Attar) Judge SRINAGAR 08/04/2015 Shamim Ahmad