Jammu & Kashmir High Court - Srinagar Bench
Showkat Ali Wani & Others vs Ut Of J&K & Others on 2 August, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 26.07.2024
Pronounced on:02.08.2024
WP(C) No.683/2023
SHOWKAT ALI WANI & OTHERS ... PETITIONER(S)
Through: - Mr. Shakeel Sarwar, Advocate.
Vs.
UT OF J&K & OTHERS ...RESPONDENT(S)
Through: - Mr. Abdul Rashid Malik, Sr. AAG, with
Mr. M. Younis, Assisting Counsel.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioners have challenged order
No.RCS/LS/13 dated 27.02.2019, whereby their claim as
projected vide their writ petition bearing SWP
No.1707/2018, has been rejected. Challenge has also been
thrown to order No.122-Adm of 2019 dated 18.07.2019 to
the extent the intervening period of service of the
petitioners with effect from 07.04.2004 to 25.10.2007 has
been decided as on duty on notional basis.
2) The facts emanating from the pleadings of the parties
are that the petitioners were ex-employees of the Jammu
and Kashmir Cooperative Consumer Federation Limited
(CONFED) which was wound up in the year 1999 in terms
of Cabinet decision dated 15.07.1999. The said decision
provided for winding up of the CONFED and it was also
stipulated that the employees would be suitably adjusted.
The department was directed to submit a detailed proposal
at the earliest. Another Cabinet decision was taken on
24.04.2002 and it was decided that a Golden Handshake
Scheme for Cooperative institutions should be financed
from sale of their assets and government funding would
not be available for this purpose. Accordingly, the
Divisional Commissioners of Jam69mu and Kashmir were
asked to evaluate the assets of the Apex Cooperative
institutions and submit a report to the Government.
3) It is case of the petitioners that ten erstwhile
employees of CONFED including the petitioners herein did
not opt for of Golden Handshake Scheme and they insisted
for their suitable adjustment in terms of Cabinet decision
dated 15.07.1999.
4) It seems that about 134 employees of CONFED filed
a writ petition titled Mohammad Yousuf Magray & Ors.
vs. State & Ors (SWP No.1839/1999) before this Court and
the same came to be disposed of in terms of judgment
dated 30.09.2005, with the following directions:
"1) The Government shall implement the Cabinet
Decision No. 109/12 dated 15.07.1999 and for that
purpose should constitute a committee of officers
within a period of one month from the date copy of
the order is served on the respondents.
2) The committee so constituted shall look into the
suitability of the petitioners for their permanent
adjustment in the Govt. Department. The committee
shall find out as to whether the petitioners were
suitable for their adjustment in the Govt. department
i.e. whether they fulfill the other conditions such as
qualification, health conditions, permanent residence
etc. for Govt. employment. Those who are found
suitable, should be offered posts commensurate with
their qualification and the pay scale which they were
holding in the CONFED. Those not found suitable for
government job due to lack of qualification or any
other reasonable cause shall be offered the Golden
Handshake and for that purpose scheme be
formulated within a period of three months from the
date of the order is served on the Respondents.
3) Those employees of the CONFED who have at any
stage accepted the offer or asked for the Golden
Handshake Scheme shall be given the benefit of the
same and modalities thereof shall be formulated
within three months from the date this order is served
on the respondents. With these observations the writ
petition is disposed of."
5) The aforesaid judgment came to be challenged by the
Government of Jammu and Kashmir by way of LPA
No.294/2005 and the same was disposed of on
08.05.2006, in terms of the following directions:
"We, accordingly, dispose of this appeal by providing
that the report submitted by the Committee
constituted by appellants in compliance to the
impugned Writ Court judgment shall be placed before
the Cabinet within two months from the date..."
6) Ten employees of the erstwhile CONFED including
the petitioners were adjusted in the Cooperative
Department in terms of order No.26-COOP of 2007 dated
26.10.2007 as these ten employees did not opt for Golden
Handshake Scheme. The petitioners were adjusted against
the posts of Junior Supervisors/Sub-Auditors in the
Cooperative Department. Out of the ten employees
adjusted in the Cooperative Department, five employees,
namely, Mohammad Ibrahim Peerzada, Mohammad
Nayeem Shah, Gh. Ahmad Reshi, Gh. Hassan Najar and
Gh. Nabi Wani, filed a writ petition bearing SWP
No.812/2008 claiming arrears of salary with effect from
August, 1999 upto 26.10.2007, the date when they were
permanently absorbed in the Cooperative Department.
They also claimed reckoning of their service rendered by
them in the CONFED towards their total period of service,
with a further relief to place them in the same grade in
which they were working in the CONFED. The remaining
five employees including the petitioners herein filed
another writ petition bearing SWP No.1387/2008 seeking
a similar relief.
7) Writ petition bearing SWP No.812/2008 filed by the
employees other than the petitioners herein was allowed
by this Court in terms of judgment dated 22.04.2011 in
the following manner:
"For the reasons discussed, the writ petition is
disposed of with a direction to the respondents to
place the petitioners in the grade in which they were
working in the CONFED, release annual increments in
said pay scales and pay arrears, if any, accruing to
them in wake of such placement. The respondents are
further directed to count the services of the
petitioners rendered by them in the CONFED towards
their total period of service, which they will spend in
the Cooperative Department, after their permanent
absorption and on that basis, consider their cases for
time bound promotions and pensionery benefits."
8) The aforesaid judgment came to be challenged by the
State by way of LPA No.202/2011 and the same was
dismissed in terms of judgment dated 06.08.2015 in the
following manner:
"6.... The Writ Court did not err in holding that service
put in by the writ petitioners in the Federation did not
get obliterated only because the State Government
took a decision to wind up the Federation. The decision
to wind up the Federation was further supplemented
by the promise extended to the employees of the
Federation that they will be suitably adjusted
commensurate with their status, pay scales and career
progression. The impugned judgment gives effect to
the spirit of the Cabinet decision and cannot be held to
be conferring a benefit on the writ petitioners to which
they would not have been entitled to as employees of
the erstwhile Federation, had the same not been
wound up."
7. In the aforementioned backdrop, the impugned
judgment cannot be said to be flawed, warranting any
interference. We, therefore, find that the appeal in
hand lacks merit, which is, accordingly dismissed
alongwith CMP. Interim directions, if any shall stand
vacated forthwith."
9) The aforesaid judgment passed in the LPA was
challenged by the respondent-State before he Supreme
Court by way of SLP(C) No.17801/2016. The said SLP was
dismissed by the Supreme Court in terms of order dated
26.09.2016.
10) In the meanwhile, the Government issued order
No.29-Coop of 2016 dated 16.08.2016 regarding
implementation of judgment dated 22.04.2011 as upheld
by the Division Bench. In the said order, it was provided
that the writ petitioners shall be placed in the Cooperative
Department in the grades in which they were working in
CONFED and the annual increments in said pay scales
and pay arrears, if any, accruing to them upon such
placement, be released in terms of the judgment of the
High Court. It was also provided in the said order that the
Registrar, Cooperative Societies, J&K on placement of the
writ petitioners, shall consider their timebound
promotions and pensionary benefits in terms of the
judgment of the High Court.
11) Another order bearing No.69-Adm of 2016 dated
28.11.2016 was issued passed by respondent No.4,
whereby certain benefits were released in favour of the
petitioners of SWP No.812/2008. However, in the said
order, there was no mention of release of arears from the
years 1998/1999 to 2007
12) The writ petition bearing SWP No.1387/2008, in
which the petitioners herein were also the writ petitioners,
came to be finally disposed of by this Court in terms of
judgment dated 30.09.2016 by providing as under:
".....In the objections filed by the Respondents in the
Writ Petition, it is stated that the present Writ Petition
is similar and identical to SWP No. 812/2008. The
averments made under both the service writ petitions
are identical in nature and the Petitioners have made
similar prayer in both the petitions.
Learned Additional Advocate General appearing for the
respondents further states that that an appeal bearing
LPA No.202/2011 was preferred against the Writ Court
order 22.04.2011 made in SWP No.812/2008. The said
LP appeal was dismissed by this Court by judgment
dated 06.08.2015. The respondents preferred SLP
against the said Division Bench order bearing SLP
No.17801/2016 and the said SLP was dismissed by
Hon'ble the Supreme Court on 26.09.2016.
In light of the said stand taken by the respondents that
the applicants case is similar to SWP no.812/2008 and
the said writ petition having been allowed, affirmed in
LP appeal and SLP having been dismissed, this
application is also ordered in terms of the order made in
SWP No.812/2008 dated 2015// 22.04.2011 affirmed in
LPA no.202/2011 dated 06.08.2015.
13) In respect of writ petitioners of SWP No.1387/2008,
an order bearing No.07-Coop of 2017 dated 09.02.2017,
which is similar to the order passed in respect of writ
petitioners of SWP No.812/2008, came to be passed and it
was directed that Government Order No.29-Coop of 2016
dated 16.08.2016 issued for the implementation of
judgement dated 22.10.2011 passed in SWP No.712/2008
be similarly complied with and implemented in respect of
the petitioners in SWP No.1387/2008. Consequent upon
issuance of Government Order dated 09.02.2017 in
respect of the petitioners herein, an order bearing No.115-
Adm of 2017 dated 23.10.2017 was passed by respondent
No.4 in which there was no mention about the arrears of
salary and other benefits of the absorbed employees.
14) Petitioner Nos.1 and 2 challenged the aforesaid order
dated 23.10.2017 by way of writ petition bearing SWP
No.1707/2018 before this Court and the same was
disposed of in terms of order dated 01.08.2018 with a
direction to the respondents to treat the petitioners equally
with other similarly situated persons with respect to their
service, which they have rendered in CONFED and give all
service benefits including arrears, perks and emoluments
to the petitioners.
15) In compliance to the aforesaid order, the respondents
have issued impugned order dated 27.02.2019, wherein
they have claimed that the petitioners herein have been
treated equally with other similarly situated persons with
respect to their services which they have rendered in
CONFED and that all benefits including arrears, perks
and emoluments have been released in their favour as per
judgments dated 22.04.2011 and 30.09.2016 and
consequently claim of the petitioners herein has been
rejected.
16) The petitioners have challenged the impugned action
of the respondents in not paying the arrears of salary in
their favour with effect from the dated CONFED was
wound up upto the date of their absorption in the
Cooperative Department, primarily, on the ground that in
the case of writ petitioners in SWP No.812/2008, during
contempt proceedings, this Court has clarified that the
writ petitioners in the said case are entitled to arrears of
salary upon their placement in the grade in which they
were working in the CONFED with effect from December,
1998 to 26.10.2007 and in terms of order dated
29.05.2019 passed in CPSW No.718/2007, a direction has
been issued to the respondents to release the said arrears
in favour of the writ petitioners in the said writ petition. It
has been submitted that aforesaid order dated 29.05.2019
was challenged by the respondents before the Supreme
Court in Civil Appeal No.239 of 2022 claiming that the writ
petitioners in SWP No.812/2008 were not working for the
period from September, 1999, to October, 2007 and, as
such, they are not entitled to arrears of salary for the said
period. However, the said claim of the respondents was
rejected by the Supreme Court and their appeal was
dismissed by virtue of order dated 25th August, 2022. It
has been contended that pursuant to the aforesaid order
of the Supreme Court, the unpaid salary for the period
December, 1998 to 26.10.2007 came to be released in
favour the petitioners in SWP No.812/2008 and thereafter
the contempt proceedings were closed by the Supreme
Court vide its order dated 06.02.2023.
17) In short, the petitioners claim that because in terms
of judgment dated 01.08.2018, the petitioners who had
filed SWP No.1707/2018, are entitled to similar relief as
was given to the writ petitioners in SWP No.812/2008, as
such, the respondents cannot deny the benefit of arrears
of salary for the period beginning from winding up of the
CONFED upto the date the petitioners were absorbed in
the Cooperative Department i.e. 26.10.2007. According to
the petitioners, they have not been treated at par with the
writ petitions in SWP No.812/2008, therefore, the
impugned consideration order is liable to be quashed.
18) So far as the factual aspects regarding litigation
between the petitioners and other erstwhile employees of
the CONFED with the respondents, are concerned, the
same is not being disputed by the respondents in their
reply. The respondents have, however, claimed that the
payment of idle wages to the petitioners cannot be justified
under any reason. The respondents have taken a stand
that from the year 1999 till their absorption with the
Government, the petitioners were not on the rolls of the
institution or the Department. It has been submitted that
the petitioners were being paid from the earnings of the
CONFED which stopped functioning in the year 1999,
therefore, the employees working in the CONFED
including the petitioners ceased to function. It has been
contended that if claim of the petitioners is allowed, it
would result in administrative problems besides opening a
flood gate for such requests from employees of other
Cooperative Institutions which are about 1400 in number.
It has been contended that the services rendered by the
petitioners with an autonomous institution having its own
bye-laws cannot constitute a part of service with the
Government. According to the respondents, the claim of
back wages made by the petitioners is not tenable as the
whereabouts of the petitioners during the period for which
wages are being claimed were not known.
19) I have heard learned counsel for the parties and
perused record of the case.
20) The primary ground urged by the petitioners for
laying challenge to the impugned order dated 27.02.2019
passed by the respondents, whereby their claim has been
rejected, is that the same is not in accordance with the
directions passed by this Court in SWP No.1707/2018,
inasmuch as the petitioners have not been given the same
treatment as has been given to the writ petitioners of SWP
No.812/2008.
21) It is not in dispute that the petitioners herein and the
petitioners in SWP No.812/2008 were erstwhile employees
of CONFED, who declined to accept the Golden Handshake
Scheme and opted to get absorbed in the Cooperative
Department of the Government in terms of order No.26-
Coop of 2007 dated 26.10.2007. The present writ
petitioners as well as the writ petitioners in SWP
No.812/2008 filed two separate writ petitions before this
Court claiming similar reliefs which included, inter-alia,
the payment of arrears of salary with effect from August,
1999 to 26.10.2007. SWP No.812/2008 was allowed by
this Court in terms of judgment dated 22.04.2011,
whereby the respondents were directed to place the
petitioners in the grade in which they were working in
CONFED, release annual increments in the said pay
scales and pay arrears, if any accruing to them in the wake
of such placement. The respondents were further directed
to count the services of the petitioners rendered by them
in the CONFED towards their total period of service which
they will render in the Cooperative Department after their
permanent absorption and on that basis consider their
cases for time bound promotions and pensionary benefits.
It is also not in dispute that the aforesaid judgment was
upheld by the Division Bench of this Court and even the
SLP filed by the respondents was dismissed by the
Supreme Court. When the respondents did not implement
the judgment of the Court, the writ petitioners in SWP
No.812/2008 were constrained to file a contempt petition,
in which the matter regarding payment of arrears was
clarified by the Court in terms of order dated 29.05.2019
passed in CPSW No.718/2017, operative portion whereof
is reproduced as under:
"In view of the above, we direct the respondents to
forthwith compute the arrears of salary which are
admissible to the petitioners upon their placement
in the grade in which they were working in the
CONFED w.e.f. December 1998 to 26th October
2007 and immediately communicate the same to
the petitioners. Arrears which would accrue to the
petitioners upon such computation shall be
positively released within a period of eight weeks
thereafter."
22) A perusal of the aforesaid order, makes it evident that
this Court has clarified that the writ petitioners in SWP
No.812/2008 are entitled to salary in the grade in which
they were working in the CONFED for the period with effect
from December, 1998, to 26.10.2007, when they were
absorbed and adjusted in the Cooperative Department.
23) The aforesaid observations of this Court passed in
the contempt petition have been upheld by the Supreme
Court in Civil Appeal No.239 of 2022. The said appeal was
dismissed by the Supreme Court in terms of order dated
25.08.2022, the operative portion whereof reads as under:
"We, therefore, find no merit in the Civil Appeal. The
Civil Appeal is dismissed. However, we are keeping the
matter pending so far as to ensure the compliance
with the directions issued by the High Court. The poor
employees have been dragged by the mighty State in
three rounds of litigations. In that view of the matter,
we direct the appellant to pay the arrears to the
respondents as directed by the High Court within a
period of six weeks from today. 8. In case of non-
compliance with the orders of the High Court, we will
be constrained to take serious steps in the matter."
24) Besides dismissing the appeal of the respondents,
the Supreme Court posted the matter for awaiting
compliance of order of the Writ Court as upheld by the
Division Bench and the Supreme Court. As a result of this,
the respondents complied with the directions of the Court
and the contempt proceedings were closed when the
respondents made payment of dues in favour of the writ
petitioners in SWP No.812/2008. This is clear from a
perusal of Order dated 06.02.2023 passed by the Supreme
Court in the aforesaid case.
25) The present writ petitioners have also been litigating
before this Court since 2008 and they had filed a separate
writ petition bearing SWP No.1387/2008, which came to
be disposed of vide order dated 30.09.2016, whereby the
said writ petition has been decided in terms of order dated
22.04.2011 passed in SWP No.812/2008, as affirmed in
LPA No.202/2011 decided on 06.08.2015. It has been
clearly recorded in the said order that in light of the stand
of the respondents that the case of the petitioners herein
is similar and identical to the case of the petitioners in
SWP No.812/2008 and that the said writ petition having
been allowed, the petition is also disposed of in terms of
the order made in SWP No.812/2008. Thus, the stand of
the respondents throughout has been that the case of the
petitioners herein is identical to the case of writ petitioners
in SWP No.812/2008. However, while implementing
judgment dated 30.09.2016, the respondents did not
make any provision for release of arrears of salary in
favour of the petitioners for the period between 1999 to
26.10.2007.
26) It is pertinent to mention here that initially even in
the case of Writ petitioners of SWP No.812/2008, the
respondents did not make any provision for release of
arrears of salary in their favour. However, this Court in
contempt proceedings initiated at the instance of writ
petitioners in SWP No.812/2008 clarified that the
respondents have to pay the arrears of salary to the said
writ petitioners. The said clarification has been upheld by
the Supreme Court while dismissing the appeal of the
respondents, pursuant whereto, the respondents have
released the arrears of salary in favour of the writ
petitioners in SWP No.812/2008 in order to avoid
contempt proceedings before the Supreme Court.
27) The respondents cannot now take a different stand
in the case of the petitioners herein, who, as per their own
stand, are similarly situated with the writ petitioners of
SWP No.812/2008. The respondents have compelled the
petitioners herein to file two more writ petitions bearing
SWP No.1707/2018 and the present one. The action of the
respondents in passing impugned order dated 27.02.2019
is in clear violation of their consistent stand that the
petitioners herein are similarly situated with the writ
petitioners in SWP No.812/2008. Once the respondents
have released the arrears of salary in favour of the writ
petitioners in SWP No.812/2008, there is no justification
for the respondents to deny the same relief to the
petitioners herein in view of the directions contained in
order dated 30.09.2016 passed in SWP No.1387/2008
read with order dated 01.08.2018 passed in SWP
No.1707/2018.
28) The judgment passed by this Court in SWP
No.812/2008 as upheld by the Division Bench and the
Supreme Court as also order dated 29.05.2019 passed in
CPSW No.718/2017 as upheld by the Supreme Court are
clearly applicable to the case of the petitioners herein and,
therefore, they cannot be discriminated against by the
respondents in the matter of release of arrears of salary
29) The justification given by the respondents that it
would open a flood gate for other employees and that the
petitioners were not working during the period when
CONFED was would up till the time they were absorbed in
the Cooperative Department, does not offer a ground for
denying the fruits of litigation to the petitioners. The
CONFED was wound up not because of the reasons
attributable to the petitioners. They were all along
available for being absorbed and posted in any
Government department. Merely because the respondents
failed to take measures for their absorption upto the year
2007 does not disentitle the petitioners from the arrears of
salary for the aforesaid period. The petitioners were
prevented from performing their duties due to the reasons
attributable to the respondents and not because of their
own inaction. The impugned orders passed by the
respondents are, therefore, unsustainable in law and the
same deserve to be quashed.
30) For what has been discussed hereinbefore, the writ
petition is allowed and the impugned orders dated
27.02.2019 (supra) and 18.07.2019 (supra), to the extent
of the petitioners, are quashed. The respondents are
directed to release the arrears of salary in favour of the
petitioners for the period with effect from December, 1999
to 26.10.2007 within a period of two months from the date
of this judgment, failing which the petitioners shall be
entitled to interest @6% per annum from the date of filing
of the writ petition, till the release of the arrears of salary.
(Sanjay Dhar)
Judge
Srinagar,
02.08.2024
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
