Jammu & Kashmir High Court - Srinagar Bench
J&K Tourism Development Corporation ... vs State Of Jk & Ors on 22 December, 2020
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Virtual Mode)
Reserved on: 26th of November, 2020
Pronounced on: 22nd of December, 2020
SWP No.1702/2017
J&K Tourism Development Corporation Employees Union
..... Petitioner(s)
Through: -
Mr Altaf Haqani, Senior Advocate with
Mr Shakir Haqani, Advocate.
V/s
State of JK & Ors.
..... Respondent(s)
Through: -
Mr M. A. Chashoo, AAG for R-1
Mr T. H. Khawja, Advocate for R-2&3
Mr Tahir Majid Shamsi, ASGI for R-4.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
JUDGMENT
01. Through the medium of this petition, the petitioners, who have filed this petition on behalf of the Jammu and Kashmir Tourism Development Corporation Employees Union, have craved the indulgence of this Court in granting them the following relief(s):
"A writ, order or direction one in the nature of Mandamus, commanding upon the respondents to give the same treatment to the petitioners and all employees of the respondent corporation as given to the employees of the respondent corporation as given to the employees of SKICC in the matter of adoption of defined pension scheme with a further direction upon the respondents to accord sanction to the adoption of defined pension rules as applicable to the State Government employees for payment of pension, including superannuating, special, retiring and invalid pension, family pension, commutation of pension, gratuity, etc., etc. and authorize the respondent No.4 to sanction pension and other retiral benefits to the eligible employees of JK Tourism Development Corporation in accordance TAHIR MANZOOR BHAT 2020.12.22 16:33 I attest to the accuracy and integrity of this document Page 2 of 11 SWP No.1702/2017 with the rules as applicable to the State Government employees after the same are checked and verified by the Corporation.
Any other writ, order or direction which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents."
02. The case of the petitioners, in nutshell, is that the petitioners' Union is an elected body of all the employees of the Jammu and Kashmir Tourism Development Corporation Ltd. (hereinafter referred to as 'the Corporation'). It is headed by Shri Abdul Momin Bhat as elected Chairman, with Shri Mohammad Shafi as its elected General Secretary, both of whom are permanent residents of Jammu and Kashmir. In terms of a special resolution of the Executive Body of the petitioners' Union, both the said office bearers of the Union have been authorized to institute this Writ petition before this Court for protection and preservation of the legal rights of the members of the Union. It is contended that the respondent Corporation was ordered to be created by the Government in the year 1969 by virtue of Government order No. 3475-GD of 1969 dated 21st of October, 1969. In terms of the said order, the respondent Corporation was created with a view to promote and advance the development of Tourism and to ensure better and efficient management as well as administration of hotels in Public Sector and other allied tourist establishments in Jammu and Kashmir. Thereafter, as stated, in order to segregate, allocate and rationalize the distinct functions and assignments of the Tourism Department and the newly created respondent Corporation, the Government, in terms of Government order No. 202-TSM of 1988 dated 16th of December, 1988, assigned the responsibility for administration of laws, rules, regulations and statutes concerning tourism sector; creation of TAHIR MANZOOR BHAT 2020.12.22 16:33 I attest to the accuracy and integrity of this document Page 3 of 11 SWP No.1702/2017 infrastructural support of tourism sector; creation of Human Resources Organization; and equipment of recreational/ adventure tourism and cultural tourism to the Tourism Department, whileas the respondent-Corporation was separately assigned the responsibility of running the tourist establishments in the main tourist resorts, running of package tours for domestic and foreign tourists. Besides on 16th of December, 1988, the then State Government passed another order, being Government Order No. 203-TSM of 1988, wherein transfer of tourist establishments mentioned therein from the Directorate of Tourism to respondent Corporation was ordered as also constitution of a Committee for evaluation of the said transferred assets, along with the staff. In terms of the said order, the staff transferred to the respondent Corporation was also ordered to exercise their option for permanent transfer of their services to the Corporation or, in the alternative, retention of their lien in the Government. It is pleaded that the respondent Corporation has a total strength of 1017 sanctioned posts, 679 posts occupied by the incumbents with Managing Director at the top, invariably appointed by the Government from Government Services and, in order to regulate the conditions of service of its employees, the Corporation, on the basis of the decisions of its Board of Directors and the sanction of the Hon'ble Governor of the erstwhile State of Jammu and Kashmir, has already framed the Employees Service Rules as have been amended from time to time. The Corporation, even though has framed its rules governing the conditions of service of the employees, yet, by virtue of the decisions of the Government/ Board of Directors, the provisions of CSRs, JK Leave Rules, TA Rules, Pay Rules have been adopted. While the employees of the Corporation, were initially governed by the Wage TAHIR MANZOOR BHAT 2020.12.22 16:33 I attest to the accuracy and integrity of this document Page 4 of 11 SWP No.1702/2017 Committee Report, yet, pursuant to implementation of 5 th Pay Commission Recommendations, the pay structure as applicable to the then State Government Employees has been applied to them as well. By virtue of Government Order No. 280-F of 2010 dated 14th of November, 2010 and Government Order No. 281-F of 2010 dated 14th of November, 2010, sanction was accorded to the conversion of cost of living allowance (COLA) to Dearness Allowance (DA) w.e.f. 1st of July, 2010 in favour of the employees of State owned Public Sector Undertakings. In this factual backdrop, the petitioners plead that even though the respondent Corporation owes its origin to the Tourism Department and the functions/ assignments performed by the employees of the Corporation were, prior to its incorporation and formation, performed by the Tourism Department and the assets of the Corporation were previously held by the Tourism Department, yet, they have been singled out in the matters of grant of pension which is being enjoyed by the employees of Tourism Department. This, as stated, has been done even when the employees of Sheri Kashmir International Convention Complex (SKICC) which was merged with the respondent Corporation in the year 2003, have already been accorded sanction for award of benefit of defined pension rules. It is pleaded that the petitioners alone have been singled out for discriminatory treatment, without any justification. The petitioners have proceeded to state that since the respondents failed to discharge their statutory duty as imposed upon them by the mandate of Constitution of India, the petitioners represented before the respondents for extension of pensionary benefits to them as applicable to the employees of the Government of Jammu and Kashmir or as applied to the employees of SKICC. The said representations, however, did not yield any TAHIR MANZOOR BHAT 2020.12.22 16:33 I attest to the accuracy and integrity of this document Page 5 of 11 SWP No.1702/2017 response from the respondent Corporation, constraining the petitioners to approach this Court through the medium of the instant petition.
03. Mr Altaf Haqani, the learned Senior Counsel appearing on behalf of the petitioners, submits that the petitioners/employees of the respondent Corporation have been singled out for differential treatment without any basis, even though the Corporation has its origin to the Tourism Department of the Government of Jammu and Kashmir and has been discharging its functions through the employees, which were being performed by the Tourism Department. It is further submitted that the petitioners and the employees of respondent Corporation have been classified separately and adversely vis-à- vis the employees of Tourism Department/Government Hotels Organization and SKICC without any justification merely on the basis of their origin even though they have been performing the same duties. This classification, as stated, is based on irrelevant and unreasonable considerations vis-a-vis the object sought to be achieved. It is pleaded that pension is part of the salary of an employee and that same is not a bounty subject to whims and caprice of the employer, but is a property within the meaning of Article 19 of the Constitution. The learned senior counsel has proceeded to contend that the respondents have failed to accord the same treatment to the petitioners, as granted to other similarly situated employees, which is not only arbitrary, unjust and unfair, but also violative of the mandate of Articles 14 and 16 of the Constitution.
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04. Objections stand filed on behalf of the respondent Corporation, resisting and controverting the averments made by the petitioners in their petition. It is stated that the petitioners' Union is not a registered body under the provisions of Trade Union Act and, thus, the petitioners have no right to file any Writ/petition/ case, including the instant one, before any Court of law. It is averred that the Writ petition filed by the petitioners is not maintainable in view of the fact that the Jammu and Kashmir Tourism Development Corporation Employee Service Rules, 1979, which clearly postulate that the services in the Corporation shall be non-pensionable in terms of Rule 29. The petitioners are employees of the Corporation and are governed by the said rules and that their service conditions like leave salary, lien, pension, etc., are governed by the said rules. It is contended that the petitioners cannot claim pension despite their being a clear and express provision in the rules governing the services in the Corporation that the services in the Corporation are non- pensionable. It is also contended that the petitioners, thus, cannot selectively apply the rules to their liking, moreso, when the petitioners, till date, have not challenged Rule 29 of the aforementioned rules. It is also submitted that the petitioners are governed by the express statutory rules which set out the terms and conditions of the services of employees, therefore the employees cannot claim for amendment in the service rules by way of filing writ petition.
05. The petitioners have also filed Rejoinder in opposition to the objections submitted by the respondent Corporation, wherein it is averred that the petitioners' Union is duly registered with the competent authority under registration No. 312 dated 15th of March, 1974. It is reiterated that the TAHIR MANZOOR BHAT 2020.12.22 16:33 I attest to the accuracy and integrity of this document Page 7 of 11 SWP No.1702/2017 respondents have failed to provide for the pensionary benefits to the employees of the retirees as also the existing employees in utter disregard of the relevant legal position as also the rules governing the conditions of service of the employees.
06. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter.
07. The first and foremost issue that requires consideration of the Court is whether in denying the pensionary benefits to the members of the petitioners' Union, any of the rights of the said members stands violated, thus, warranting issuance of a 'Writ of Mandamus' from this Court, as sought in this petition. 'Mandamus' literally means a command. The essence of 'Mandamus' is that it is a command issued for directing performance of a public legal duty. A 'Writ of Mandamus' is issued in favour of a person who establishes a legal right in himself. A 'Writ of Mandamus' is issued against a person who has a legal duty to perform, but has failed and/ or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The 'Writ of Mandamus' is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice, despite demanded, has not been granted.
08. Law on the subject is no more res integra. Hon'ble the Supreme Court, while dealing with the scope of mandamus, in case titled 'State of Kerela V. Smt. A. Lakshmikutty & Ors.', reported as '(1986) 4 Supreme TAHIR MANZOOR BHAT 2020.12.22 16:33 I attest to the accuracy and integrity of this document Page 8 of 11 SWP No.1702/2017 Court Cases 632', the Apex Court of the country, at paragraph No.34, has observed as under:
"34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, there- fore, the Court will only enforce the performance of statu- tory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Laws of England, 4th edn., vol. 1, paragarph 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed:
"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.
The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation.
The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court. Article 233 re- quires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct recruitment."
The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies."
09. Again, in the case of 'State of UP & Ors. V. Harish Chandra & Ors., reported as '(1996) 9 Supreme Court Cases 309', at paragraph No.10, has held thus:
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"10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, it any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not."
From the perusal of the law laid down above, it is crystal clear that existence of a right is the foundation of the jurisdiction of a Court to issue a 'Writ of Mandamus'. In the case on hand, the petitioners have not been able to show as to which of their right has been violated by the respondents in TAHIR MANZOOR BHAT 2020.12.22 16:33 I attest to the accuracy and integrity of this document Page 10 of 11 SWP No.1702/2017 denying them the pensionary benefits, which can be directed to be enforced by way of issuing a 'Mandamus' from this Court. In this context, the irrefutable conclusion which can be drawn is that none of the rights of the petitioners stand violated by the respondent Corporation for which a 'Writ of Mandamus' can be issued in their favour.
10. The next question that this Court is called upon to answer in this petition is that despite there being clear rule position with regard to the services in the Corporation being non-pensionable, can the members of the petitioners' Union still claim pensionary benefits in their favour on the analogy of other Government Corporations/ Departments. The answer to this question has to be in the negative inasmuch as the petitioners cannot seek to selectively apply the relevant recruitment rules to their liking. The petitioners are governed by express statutory rules which set out the terms and conditions of the services of employees, including the petitioners, therefore, the petitioners cannot claim for amendment in the service rules through the medium of the instant petition. The petitioners and other employees of the Corporation cannot deviate from the terms and conditions of service upon which they have been appointed.
11. Apart from the above, there is all substance in the argument of the learned counsel representing the respondent Corporation that once an employee accepts the terms and conditions governing a particular service at the time of entry in that service, he/ she subsequently cannot turn around and contend that the certain portion of the rules governing such service is not TAHIR MANZOOR BHAT 2020.12.22 16:33 I attest to the accuracy and integrity of this document Page 11 of 11 SWP No.1702/2017 tenable. This Court cannot issue directions to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. In this behalf, I am fortified by a judicial dictum rendered by Hon'ble the Supreme Court in case titled 'State of JK V. A. R. Zakki & Ors.', reported as 'AIR 1992 Supreme Court 1546'.
12. The judgments referred to and relied upon by the learned counsel for the petitioners, being distinguishable, are not applicable to the facts and circumstances of the case on hand.
13. In view of the preceding analysis, the petition of the petitioners is found to be devoid of any merit. It thus, entails dismissal and is hereby, accordingly, dismissed. Interim directions, if any, subsisting as on date shall stand vacated. This shall also dispose of any pending application(s) connected with this case accordingly.
(Ali Mohammad Magrey) Judge SRINAGAR December 22nd, 2020 "TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2020.12.22 16:33
I attest to the accuracy and
integrity of this document