Jammu & Kashmir High Court
Subash Chander vs State Of J&K And Ors on 2 May, 2025
Sr. No.47
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No:- SWP No. 1715/2018
IA No. 1/2018
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Subash Chander .....Petitioner(s)
Through:- Mr. Anuj Dewan Raina, Advocate.
Vs.
State of J&K and Ors. ..... Respondent(s)
Through:- Mrs. Monika Kohli, Sr. AAG.
Mulkh Raj
Through:- .....Petitioner(s)
Mr. K. Nirmal Kotwal, Advocate with
Vs. Ms. Surbhi Kotwal, Advocate.
State of J&K and Ors.
Through:-
......Respondent(s)
Mrs. Monika Kohli, Sr. AAG.
HIGH
OJUSTICE
Coram: HON'BLE MR. F J A MJAVED
M U &IQBAL WANI, JUDGE
COURT
K AJUDGMENT(ORAL)
SHMIR AND
02.05.2025
LADAKH
The issues involved in the instant clubbed petitions are akin and
analogous to each other, as such, are being disposed of by this common
judgment and order.
1. The petitioner herein claims to have been engaged as daily wager
in respondent- corporation and subsequently, his service converted from daily
wager to regular establishment w.e.f 07.06.1994 as work supervisor in the pay
scale of Rs.410-10-440-12-560-15-620-EB-16-700 and subsequently, promoted
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in the pay scale of Rs. 1200-2040 vide order dated 26.10.1994, subject to the
qualifying of ITI examination or putting in not less than 13 years' service and
subsequent to the passing of the said examination on 07.12.1995, petitioner
was allowed the financial upgradation of the pay scale of Rs. 1200-2040 vide
order dated 09.4.1996 and vide order dated 18.07.1996, sanction came to be
accorded to the grant of in-situ promotion in his favour in the pay scale
of Rs. 1200-2040 w.e.f from 01.01.1995 and on 11.02.1997, as also extended
the benefit of SRO 59 dated 18.09.1989 while placing him in the pay scale of Rs.
1200-30-1560-EB-2040 and thereafter, placed in the revised pay scale of
Rs. 4500-7000 in terms of SRO 18 dated 19.01.1992 and subsequently, placed
in the revised pay scale in terms of SRO 311 dated 09.09.1997 and under
SRO 14 dated 15.01.1196 and thereafter, granted in-situ promotion in the pay
scale of Rs. 5000-8000 w.e.f 01.04.1999 and vide order dated 11.11.2003,
granted 2nd stage of in-situ promotion in the pay scale of Rs. 5500-9000.
2. It is being stated that petitioner superannuated from the services
on 31.01.2014 while holding the pay scale of Rs. 5700-100-10100/-
(pre-revised) and consequently, the case of the petitioner came to be
recommended by the respondents 1 to 4 for settlement and payment of retiral
benefits as per the last pay received by the petitioner, however, the
respondent 5 herein, instead of, settling and releasing the retiral benefits in
favour of the petitioner as per the last pay received by him, settled the
retirement benefits of the petitioner on a lower pay scale without the taking
into consideration the last pay drawn by the petitioner, aggrieved whereof, the
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petitioner filed a petition bearing SWP No. 2212/2017 before this Court, which
petition came to be disposed of by this Court vide order dated 08.09.2017 on
the analogy of SWP No. 2178/2015, SWP No. 1129/2010, SWP No. 988/2011
and SWP 2059/2017 and that the respondents despite the receipt of the order
dated 08.09.2017 passed by this Court in the aforesaid writ petition, did not
comply with the direction contained therein, resulting into filing of a contempt
petition no. 264/2018, during the pendency of which contempt petition, the
respondents herein rejected the claim of the petitioner while issuing order
dated 01.02.2018, which, accordingly, resulted into disposal of the contempt
petition on 23.05.2018, providing a liberty to the petitioner to challenge the
said consideration order, whereupon the petitioner maintained the instant
petition against said consideration order dated 01.02.2018.
3. The petitioner has challenged order dated 01.02.2018 (supra),
impugned in the instant petition on the multiple grounds including that the
respondents overlooked the judgment passed by this Court in similar other
cases and while issuing the impugned order, sought recovery from the retiral
benefits of the petitioner without lawful justification, inasmuch, as withheld
the retiral benefits of the petitioner without any rhyme and reasons.
4. Respondents have filed objections to the instant petition, wherein
the petition is being opposed, primarily, on the ground that the petitioner has
sworn an affidavit before a Judicial Magistrate, authorizing the respondents to
make recoveries of the amount drawn by the petitioner without any
entitlement and secondly, that the petitioner has availed benefits under SRO
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59 without any entitlement, inasmuch as, the in-situ promotion under SRO 40
due to inadvertence on part of the respondents necessitating recovery of the
said amount from the petitioner in terms of the provisions of the Financial
Code contained Clause 17 Sub-Clause 4.
5. In the instant petition, the petitioner claims to have been engaged
as a Work Supervisor by the respondents on daily wage basis in the
respondent-corporation on 27.08.1977 and brought on regular establishment
on 12.06.1986 as Work Supervisor in the pay scale of Rs. 345-410, whereafter
the said pay scale came to be upgraded to Rs. 775-1025 and subsequently, to
the pay scale Rs.950-1500 in terms of orders dated 28.06.1994 and 11.02.1997
and thereafter, petitioner was placed in the 1st higher standard pay scale in
terms of SRO 14 of 1996 of Rs. 1200-2040 w.e.f from 01.01.1995 by
incorporating 50% daily wage service in terms of SRO 311 dated 09.09.1997
and, accordingly, pay of the petitioner came to be re-fixed and thereafter in
terms of order 18.06.2000, the petitioner was placed in the pay scale of Rs.
4500-7000 w.e.f 01.02.2000 and vide Government Order no. 84, the petitioner
came to be placed in the pay scale of Rs. 5000-8000 and subsequently, in terms
of order dated 05.05.2004 in the pay scale of Rs. 5150-8300 w.e.f from
01.01.2001.
6. It is next stated that the petitioner superannuated from the
services on 28.02.2014 in the pay scale of Rs.5150-8300 (pre-revised) and
though his case came to be recommended for settlement and payment of
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pensionary and retiral benefits, yet the respondent 5 settled the pension case
of the petitioner in lower pay scale without taking into consideration the pay
scale last drawn by the petitioner, aggrieved, whereof the petitioner
maintained SWP no. 2189 of 2017 before this Court on the analogy of various
other petitions and the said petition came to be disposed of on 06.09.2017
with a direction to the respondents to finally settle the pension case of the
petitioner having due regard to the recommendation and rules governing the
matter, as also the judgments passed by this Court in SWP nos. 2178/2015,
SWP No. 1129/2010, SWP No. 988/2011 and SWP No. 2059/2017 and that the
respondents did not comply with the order dated 06.09.2017 passed by this
Court, resulting into filing of contempt petition bearing no. 259/2018, however
during the pendency of the same, the respondents issued a consideration order
dated 13.01.2018, whereupon the said contempt came to be closed on
23.05.2018, while providing liberty to the petitioner to challenge the order in
question dated 30.01.2018, impugned in the instant petition.
7. The petitioner herein has maintained the instant writ petition on
the multiple grounds including one that the respondents have overlooked the
judgment passed by this Court in similar other case and while issuing the
impugned order, sought recovery from the retiral benefits of the petitioner
without lawful justification, inasmuch, as withheld the retiral benefits of the
petitioner without any rhyme and reasons.
8. Respondents have filed objections to the instant petition, wherein
the petition is being opposed, primarily, on the ground that the petitioner has
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sworn an affidavit before a Judicial Magistrate, authorizing the respondents to
make recoveries of the amount drawn by the petitioner without any
entitlement. It is also being stated in the objections that the petitioner has
availed benefits under SRO 59 without any entitlement inasmuch as, in-situ
promotion under SRO 14 due to inadvertence on part of the respondents
necessitating recovery of the said amount from the petitioner in terms of the
provisions of the Financial Code contained Clause 17 Sub-Clause 4.
Heard learned counsel for the parties and perused the record.
9. Learned appearing counsels for the petitioners while making their
respective submissions in line and tune the case set up in the respective writ
petitions invited the attention of this Court to the judgment passed by this
Court in case titled as "Vinod Kumar V/s UT of J&K and Ors. being WP(C) No.
846/2020 decided on 23.02.2024 and would contend that the said judgment is
squarely applicable to the case of the petitioners herein and would, as such,
seek disposal of the instant petitions on the similar lines, on which the
judgment (supra) came to be passed.
Learned counsel for the petitioners would also submit that the
judgment passed in Vinod Kumar's case (supra) has even been upheld by the
Division Bench of this Court upon being thrown challenge to by the
respondents in LPA no. 243/2024, which LPA came to be dismissed on
04.03.2025.
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The copies of the aforesaid judgments came to be produced by the
counsel for the petitioners and copies thereof are claimed to have been
furnished in advance to the counsel for the respondents.
10. On the contrary, learned counsel for the respondents would insist
that the judgments referred to and relied upon by the learned counsel for the
petitioners passed by this Court in Vinod Kumar's case (supra) and upheld by
the Division Bench are not applicable to the case of the petitioners for two-fold
reasons; one that the petitioners have had sworn an affidavit, authorizing the
respondents to effect recoveries thereof qua the excess amount drawn by
them due to inadvertence of the respondents and secondly, the recoveries are
permissible from the petitioners in terms of Rule 17 Clause 4 of the J&K
Financial Code.
11. Insofar as the aforesaid judgments relied upon by the learned
counsel for the petitioners are concerned, a closer examination of the same
reveals that the issues involved therein in the said judgments are similar and
identical to issues involved in the instant petitions and, thus, the said
judgments are squarely applicable to the cases in hand. Yet having regard to
the aforesaid plea raised by the learned counsel for the respondents that the
petitioners could not derive any benefit therefrom the aforesaid judgment in
view of swearing of an affidavit by them, is concerned, this Court is of the
considered opinion that the affidavit would not operate as bar or an
impediment thereto against the petitioners from seeking similar relief, which
have had been granted by this Court in Vinod Kumar's (supra) on the
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principle law laid down by the Hon'ble Supreme Court in case titled as
"Central Inland Water Transport Corporation Ltd. and Another V/s Brojo Nath
Ganguly and Another reported in AIR 1986 SC 1571", wherein it has been,
inter-alia, held that the Courts will not enforce and will, when called upon to
do so, strike down an unfair and unreasonable contract, or an unfair and
unreasonable clause in a contract, entered into between the parties who are
not equal in bargaining power. While providing that the said principle will apply
where the inequality of bargaining power is the result of great disparity in the
economic strength of the contracting parties or where the inequality is the
result of circumstance, whether of the creating of the parties or not and also
will apply to situations in which the weaker party is in a position in which he
can obtain goods or services or means of livelihood only upon the terms
imposed by the stronger party or go without them and would also apply where
a man has no choice, or rather no meaningful choice, but to give his assent to a
contract or to sign on the dotted line in a prescribed or standard form or to
accept a set of rules as part of the contract, however, unfair unreasonable and
unconscionable a clause in that contract or form or rules may be and that the
said type of contracts to which the principle formulated above applies are not
contracts which are tainted with illegality but are contracts which contain
terms which are so unfair and unreasonable that the shock the conscience of
the Court, as they are opposed to public policy and required to be adjudged
void.
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12. Even otherwise also, the respondents cannot effect any recovery
from the retiral benefits of the petitioners, in that, the petitioners have not
admittedly drawn the alleged excess amount of salary by paying any fraud or
misrepresentation and the plea of swearing of affidavits by the petitioners,
authorizing the respondents to recover the alleged excess amount cannot also
said to have been sworn by the petitioners except in distress in order to receive
their retiral benefits after their superannuation being left with no choice and
option, as record reveals that admittedly, the petitioner superannuated in the
months of January and February, 2014 and the respondents indisputably did
not release the retiral benefits in their favour after a period of more than four
months, having left the petitioners without any sustenance while withholding
their retiral benefits. Thus, in view of the aforesaid principle of law, the
swearing of the affidavits cannot but said to be unfair, unreasonable and not
operating as a bar or estoppel against the petitioners in the matter for seeking
the reliefs sought in the instant petition.
13. Insofar as next plea of the learned counsel for the respondents
seeking qua application of Rule 17 Clause (4) of the J&K Financial Code qua the
effecting of recoveries from the petitioners is concerned, the same cannot be
even pressed into service in the instant cases in view of the aforesaid judgment
passed and the principle of law laid down by the Apex Court noticed and relied
upon therein.
14. Viewed thus, the aforesaid contention and pleas of the learned
counsel for the respondents pale into significance, rendering the judgment
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passed by this Court in Vinod Kumar's case (supra), mutatis mutandis
applicable in the case of the petitioners herein in its entirety.
15. Accordingly, for what has been observed, considered and analyzed
hereinabove, the instant petition succeeds and impugned orders bearing
Nos. 08 of 2018 dated 01.02.2018 & 07 of 2018 dated 30.01.2018 issued by
the respondent 5-Deputy Director, Local Fund Audit & Pensions, Jammu are
quashed, as a consequence whereof, the respondents are commanded to
release the entire retiral benefits in favour of the petitioners forthwith,
preferably within a period of six weeks from the date of receipt of a certified
copy of this judgment and order, along with interest @7.5% from the date, the
amount was withheld by the respondents till the date of its actual payment.
As regards the fixation of the pension is concerned, the
respondents shall be free to fix the same on the basis of last pay drawn by the
petitioners after deducting the benefits granted under SRO-59 dated
16.02.1990.
16. Disposed of along with connected applications.
17. A copy of this judgment shall be placed on the record file of each
petition.
(Javed Iqbal Wani)
Judge
Jammu
02.05.2025
Javid Iqbal
Whether the judgment is speaking? Yes/No
Whether the judgment is reportable? Yes/No
