AMEENA AND OTHERS Vs. STATE OF J&K

JUDGEMENT

(1.) One Ghulam Hassan Baqal son of Ghulam Mohammad Baqal resident of Malik Angan, Fateh Kadal, Srinagar, is original petitioner of instant petition and passed away during its pendency and as a consequence his next of kins (NOKs) appeared to have been brought on record vide order dated 7th October 2013. Petitioner was working as Assistant Craftsman (ACM) in the Craft Crewel Emb. on contract basis at Baramulla Training Centre (Elementary/Advance) in terms of order dated 1st May 1991 and had initially been appointed as ACM on contract basis vide order dated 1st June 1978, was temporarily placed in the time scale of Rs. 900-1830 vide Government Order no.157-Ind of 1991 dated 21st June 1991, issued by Industries and Commerce Department. In terms of the said Government order, sanction was accorded to regularisation of Mater Craftsmen/Assistant Craftsmen, working on contract basis and their placement in the regular scale of Rs. 1150- 2050 and Rs. 900-1830 with change of designation from Master Craftsmen to Senior Instructor and that of Assistant Craftsmen to Junior Instructor. Thus, petitioner was also designated as Junior Instructor for Training Centre functioning at Bamurda vide Order no.86-HDT of 1992 dated 19th March 1992 and his age was recorded as 57 years on 25th May 1991 as determined in the Age Committee and accepted by Director, Handicrafts. It is maintained in writ petition that petitioner was examined and his age declared as 50 years as on 25th May 1991, therefore, the age shown in terms of aforesaid order dated 19th March 1992 as 57 years as on 25th May 1991 was contrary to what was determined by Chief Medical Officer, Budgam. It is pleaded that petitioner's age determined as 50 years as on 25th May 1991, by Chief Medical Officer, Budgam, respondents had to retire him from service after allowing him to attain the age of 58 years, but sought to retire him from service in the year 1992 itself, forcing him to knock at portals of this Court with writ petition, being SWP no.1400/1992, seeking quashment of entry made in his service record, with further direction to respondents to follow medical report/certificate and record correct age of petitioner in the service records, which had been determined and assessed by medical board. It appears that vide order dated 4th June 1992, respondents were directed to allow deceased petitioner (Ghulam Hassan Baqal) to continue at his own risk and responsibility till the objections were filed by other-side and considered by the Court. In view of the said direction, petitioner was allowed to continue till final decision of the Court at his own risk and responsibility and in this behalf a letter was addressed by Assistant Director, Handicrafts Department, Budgam, vide no.HD/DDT/3565 dated 29th June 1992. It is also claimed in writ petition that petitioner continued in service and retired on superannuation on 24th May 1999 and therefore, after his retirement he was entitled to retiral benefits, but was not paid. Writ petition (SWP no.1400/1992), is stated to have been disposed of vide order dated 26th February 2002 with a direction to respondents to process the pension case of petitioner and release all pensionary benefits under rules within a period of two months for settlement of petitioner's case. Another writ petition, being SWP no.947/2004, is said to have been filed, seeking direction to respondents to settle pension case of petitioner and pay him all retiral benefits, which was disposed of vide order dated 31st August 2005, directing respondents to settle pension case of petitioner as far as practicable within a period of three months from the date the order was served on respondent and it was also ordered that if respondents found that deceased Ghulam Hassan Baqal had overstayed in service either under the orders of the Court or otherwise, the period of over-stayal would be treated as reemployment so that the case of his retiremental benefit did not get further delayed. Nonimplementation of aforesaid order dated 31st August 2005, is said to have forced deceased Ghulam Hassan Baqal to file Contempt Petition No.98/2007. It is also contended in petition on hand that on 2nd December 2008, the matter came up for consideration and counsel appearing for respondents submitted that unsettled period of petitioner had been treated as his reappointment and respondents would process petitioner's case for grant of pensionary benefits without any further delay. He sought three months' time to process and finalise petitioner's case and time sought for was granted and respondent no.2 was directed to look into the matter personally and it was directed that he would ensure that the case of petitioner for grant of his pensionary benefits was processed and finalised within aforesaid period and in case it is not so finalised, respondent no.2 would personally appear before the Court on next date of hearing to explain the delay. Compliance report is stated to have been filed on 16th February 2009, stating therein that Assistant Director, Handicrafts, Budgam, forwarded petitioner's case to Accountant General along with service book of petitioner for settlement of his pension case and therefore, they implemented the Court order. Accountant General, in view of submission of compliance report by respondent department, Accountant General was asked to submit status report. Accountant General (respondent no.5), it is next urged, submitted Status Report, in which he stated that petitioner was found not entitled to pension because he had rendered only 14 years' service and his status was temporary, as such, was not eligible to pension under Article 177 of J &K Civil Service Regulation. Further submission in the writ petition in hand is that this Court, in the aforesaid contempt petition, after examining the Government order no.14-IND of 2009 dated 14th January 2009 as also status report submitted by respondent no.5, held that there remained nothing to be settled in the contempt petition and accordingly discharged the rule vide order dated 29th September 2009. Thus it is the Government order no.14-IND of 2009 dated 14th January 2009, which is under challenge in this petition. On the edifice of case set up, following relief is sought in the petition:

(2.) Heard learned counsel for parties and considered the matter.

(3.) Pension is compensation for the service rendered by government servant. It has been long since held that pension is property and pensioner has a fundamental right to receive it. In the present case, deceased petitioner (Ghulam Hassan Baqal), according to respondents, is entitled to pension under Article 177 of J &K Civil Service Regulations, 1956, as deceased has rendered only 14 years' qualifying service and his status was temporary. This takes us to Article 177, which reads: