Union Territory Of J&K And Others vs Abdul Rashid Makroo
2021 Latest Caselaw 1124 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

CJ Court

                                            Reserved on:     15.09.2021
                                           Pronounced on:    21 .09.2021

                           LPA No.02/2021

Union Territory of J&K and others.                        ....Appellants.
Through:   Mr. Irfan Andleeb, Dy.AG.

                                  Vs.
Abdul Rashid Makroo                                    ....Respondent(s)
Through:   Mr. S. A. Makroo, Sr. Advocate, with
           Mr. Mohammad Amin, Advocate.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                           JUDGMENT

Pankaj Mithal, CJ

01. Heard Mr. Irfan Andleeb, learned Dy.AG, for the appellants and

Mr. S. A. Makroo, learned senior counsel assisted by Mr. Mohammad

Amin, Advocate, for the respondent.

02. 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 WP(C) No.2865/2019 : Abdul Rashid Makroo v. State of

Jammu & 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 & Kashmir.

03. 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 & 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.

04. The aforesaid writ petition was filed on the allegations that the

petitioner was appointed in the year 1982 with the Jammu & 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.

05. The claim of the respondent/ petitioner was resisted on the ground

that the Rules of the erstwhile State of Jammu & 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 & Kashmir.

06. 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 13 th 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.

07. 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 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 & Kashmir Civil Service Regulations.

08. 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."

09. 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 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 & 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 29 th

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 Govt., 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 8 th

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 & 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.

                                   (VINOD CHATTERJI KOUL)                   (PANKAJ MITHAL)
                                                  JUDGE                      CHIEF JUSTICE
                     Srinagar
                     21.09.2021
                     Abdul Qayoom, PS




                                     Whether the order is speaking?               Yes.

                                     Whether the order is rep ortable?             No.





ABDUL QAYOOM LONE
2021.09.21 14:01
I attest to the accuracy and
integrity of this document