ABDUL RASHID MAKROO Vs. STATE OF J&K
LAWS(J&K)-2020-11-53
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 20,2020

Abdul Rashid Makroo Appellant
VERSUS
STATE OF JANDK Respondents


Referred Judgements :-

VIJAY L. MEHROTRA V. STATE OF UP [REFERRED TO]
D S NAKARA VS. UNION OF INDIA [REFERRED TO]
UMA AGRAWAL VS. STATE OF UTTAR PRADESH [REFERRED TO]
MUBARIK AHMAD VS. STATE OF J&K [REFERRED TO]


JUDGEMENT

ALI MOHAMMAD MAGREY - (1.)By medium of the instant petition, the petitioner has craved the indulgence of this Court in granting him the following relief(s):
"(i) Writ of Mandamus commanding the respondents to release the monthly pension in favour of petitioner, which has already been fixed to the tune Rs.70158/- as on November, 2018 and also release the arrears of pension which have been calculated to the tune of Rs.39,34,206/- upto November, 2018, in terms of the pension scheme notified by the respondent- JKSPDC. The respondents be further directed to release the rest of arrears of pension from November, 2018 till date at revised applicable rates and ensure its continuous disbursement in favour of the petitioner without any let or hindrance. The Hon'ble Court may be further pleased to command the respondent No.2 to issue PPO forthwith and respondent No.4 be also commanded to release the monthly pension regularly in favour of the petitioner.

ii. Writ of Mandamus commanding the respondents to pay the interest @ 18 per annum for intentionally withholding the payment of pension/arrears of pension calculated taking into consideration judgment of the Hon'ble Apex Court reported in AIR 2000 SC 3513 governing the field.

iii. This Hon'ble Court may further be pleased to award costs of litigation to the tune of Rs.2.00 lacs in favour of the petitioner and same may be recovered from respondents and also Rs.1.00 lac as compensation for causing mental agony and loss of valuable time to the petitioner.

iv. Any other order, writ or direction may also be issued in favour of the petitioner and against the respondents which this Hon'ble Court deems fit and necessary in the facts and circumstances of the case."

(2.)The case of the petitioner, put in a nutshell, is that he, on the basis of his qualification and merit, initially in the year 1982, came to be appointed in the Jammu and Kashmir State Industrial Corporation. On the basis of his performance, the petitioner, in the year 1995, was sent on deputation in the Bureau of Public Enterprise. Subsequently, by way of Government Order No.1245-GAD of 1997 dated 7th of August, 1997, the petitioner was sent on deputation in the Jammu and Kashmir State Power Development Corporation (hereinafter referred to as "the Corporation"). The petitioner claims to have accepted the aforesaid assignment only keeping in view the fact that since the Corporation, being one of the premier Corporations of the erstwhile State dealing in generation of power, was following the rules of the Government of Jammu and Kashmir vis-à-vis the service benefits of the employees in letter and spirit, as such, pension after retirement of an employee in the Corporation was one of the benefit which will flow to the petitioner after his retirement. Thereafter, in terms of Order No. PDC/103 of 2001 dated 29th of August, 2001, the post of Financial Analyst manned by the petitioner in the respondent Corporation was upgraded from 10000-35-15200 to 12000-375-16500 and the grade was ordered to be released in favour of the petitioner with immediate effect. In the said order, it was specifically provided that the other terms and conditions governing the services of the petitioner will be the same as are applicable to other employees borne on the establishment of the Corporation till such time the Corporation adopts its own rules. After upgrading the post of Financial Analyst held by the petitioner, the highest decision-making authority in the Corporation realized that the services of the petitioner are indispensable for the Corporation, as such, the petitioner was permanently absorbed in the Corporation vide order No. PDC/MD/6084 dated 25th of September, 2001. After the said absorption, the petitioner was given further promotions keeping in view the expertise and services rendered by the petitioner, thereby making the petitioner a permanent employee of the Corporation. The petitioner was, thereafter, promoted/redesignated as Chief General Manager in the respondent Corporation, in terms of order dated 1st of April, 2008. Upon absorption of the petitioner in the Corporation, all the service conditions as applicable to the Government employees of the erstwhile State of Jammu and Kashmir were made applicable in case of the petitioner as well, as a corollary thereof, the Corporation discontinued the contribution of CP Fund of the petitioner and commenced contribution towards the General Provident Fund as per Government rules applicable in the Corporation. Accordingly, while working as Managing Director, in the Corporation, the petitioner reached the age of superannuation and, in terms of Order No. PDC/CJ/57 of 2014 dated 31st of January, 2014, it was notified by the Corporation that the petitioner shall retire on attaining the age of superannuation on 31st of January, 2014. After superannuation of the petitioner, the respondent Corporation failed to settle all the post retiral benefits in favour of the petitioner, whereafter the petitioner made several requests, orally as well as in writing, before the respondents for releasing all the post retiral benefits in his favour. Thereafter, although, the Corporation released some post retiral benefits in the shape of Gratuity, Leave Salary and GPF accumulations in favour of the petitioner as per the Jammu and Kashmir Civil Service Rules, but they failed to release the pensionary benefits to which the petitioner was legally entitled as per the rules pertaining to the other Government employees of the erstwhile State being followed in the Corporation. Since, despite repeated requests, the monthly pension as well as arrears thereof were not released in favour of the petitioner, the petitioner was filed series of representations before the respondents seeking redressal of his grievance, besides serving legal notices through his counsel to the Corporation, requesting the Corporation to release the monthly pension as well as arrears thereof in his favour. The grievance of the petitioner, however, was not redressed and the pension claim of the petitioner was not released, though it was fixed and calculated by the Corporation, constraining the petitioner to approach this Court through the medium of the instant petition for the above stated relief.
(3.)Mr S. A. Makroo, the learned counsel appearing on behalf of the petitioner, submits that the action of the respondents in delaying the disbursement of pension in favour of the petitioner has infringed the 'Right to Life' of the petitioner, as guaranteed to him by the Constitution. It is submitted that pension is the property of an employee and that the delay in disbursement of the pension defeats the very purpose for which the monthly pension is being disbursed to a retired employee by the Government or any other authority where the employee has retired from service. It is further submitted that as per well settled legal position, a duty is cast upon the employer to prepare the pension case in advance and get all the requisite NOCs from the concerned departments and the purpose of processing the file in advance is that an employee gets the pension immediately after his retirement and does not face any problem. The learned counsel contents that the case of the petitioner for payment of pension has been delayed for about five years on one pretext or the other and, despite umpteen requests/representations made by the petitioner, the pension of the petitioner is not being released, though same has been fixed and arears calculated. It is pleaded that the pension is a compensation for the services rendered by an employee and the payment of pension is not dependent upon the discretion of the employer, instead, the employer is bound to release the pension in terms of the rules and the law governing the subject. The next argument raised by the learned counsel is that the Corporation has invidiously discriminated the petitioner vis-à-vis release of pension in his favour, as in case of one similarly situated employee, namely, Ghulam Qadir Wani, pension has been released on the basis of judgment rendered by this Court, which stands upheld by the Division Bench of this Court and, subsequently, confirmed by the Hon'ble Supreme Court. Mr Makroo, in this behalf, contends that on the basis of the said judgment, the Corporation has framed a policy covering 51 employees, including the petitioner, but the petitioner's pension is not being released though same has been fixed and arrears calculated by the Corporation. In order to buttress his arguments, the learned counsel for the petitioner has referred to and relied upon the following case law:
(1) D. S. Nakara V. Union of India and Ors.: AIR (1983) SC 130;

(2) Uma Agarwal V. State of UP: AIR 1999 SC 1212;

(3) Vijay L. Mehrotra V. State of UP and Ors.: AIR 2000 SC 3513; and

(4) Mubarik Ahmad (Dr.) V. State of JK and Ors.: 2010(3) JKJ 931.

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