SHEIKH GH QADIR Vs. STATE OF J&K

JUDGEMENT

(1.) THIS petition for an appropriate writ arises in the following circumstances.

(2.) ACCORDING to the petitioners, two of them, namely petitioners 1 and 2 were gazetted employees and the others non -gazetted employees in the Department of Sericulture of the Government of Jammu and Kashmir. The petitioners further aver that the Sericulture Department is just like other Department of the Government consisting of gazetted and non -gazetted members of the staff and they were and are governed by the Jammu and Kashmir Civil Services Rules and Regulations in all matters and possess the facilities and the safeguards afforded to all Government servants of other departments. The petitioners further allege that they have always been treated as Government servants and their posts have been shown in the civil list and the budgets of the Departments concerned. In order, however, to stream -line the administration and to give it a commercial colour the Government on 3rd October 1963 constituted a Board called the Jammu and Kashmir Industries which was a State Government undertaking and which had a Memorandum and Articles of Association. After this undertaking came into existence, the then Sadar -i -Riyasat of Jammu and Kashmir (new Governor) issued instructions by which 21 industrial undertakings were entrusted to the Jammu and Kashmir Industries Ltd. The newly formed Jammu and Kashmir Industries was governed by a Board of Directors set up under the Memorandum of Association and was entrusted with several types of responsibilities like management, corporate organization, personnel and financial responsibilities and functions. The instructions further ordained that under the personnel responsibility of the Board the administration of the servants of the company was to be governed by the provisions of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules etc. from time to time. After the issue of the aforesaid instructions on 3 -10 -63 the petitioners who were permanent employees of the Sericulture Department started working under the Board of J & K Industries on the same terms and conditions as applied to them before and they were treated to be as on deputation from the State Government to this Government undertaking. Subsequently by a notification No. SRO 36 D/ - 11 -2 -66, note 6 was added to rule 52 of the KCSR which provided that service in the companies owned by the Government should not be treated as foreign service for the purpose of grant of deputation allowance. It was further stipulated that those employees of the Industrial concerns who were entitled to pensionary benefits should be treated as employees of the J & K Industries and the pension of the employees of Sericulture Department entitled to pensionary benefits should be shared by the Government and the company under the rule of proportion but no deputation allowance would be admissible. A particular set of Government servants, however, who had been deputed to the Government undertaking would continue to receive deputation allowance. Lastly it was provided that in future individual cases for grant of deputation allowance were to be considered on their merits. We shall refer to the broad details of this notification a little later when we discuss the arguments advanced before us by the learned counsel for the parties.

(3.) IN short the notification finally provided that henceforward the employees of the erstwhile Sericulture Department who were entitled to pensionary benefits should be treated as employees of the J & K Industries. It is this notification which has been assailed before us by the petitioners on various grounds. In the first place it was contended before us that the petitioners were only entrusted to the company that is to say they were directed to work under the company on the same terms and conditions which they had enjoyed as Government servants. Thus by asking the petitioners to work under the J & K Industries no change in their status, emoluments, conditions of service and other statutory safeguards was brought about and they continued to be just like Government servants of other departments. By virtue of the impugned notification, however, the Government by one stroke of pen sought to alter the entire status of the petitioners so as to terminate their service as Government servants and convert them into servants of the company. Such an act according to the petitioners clearly amounted to a termination of the service or reduction in rank of the petitioners and was therefore violative of Section 126 of the State Constitution (Art. 311 of the Constitution of India), inasmuch as such an action was resorted to without consent of the petitioners and operated to their serious prejudice. Secondly it was argued that the impugned notification sought to select the petitioners for hostile discrimination even as between Government employees situated in similar circumstances and therefore was hit by Art. 16 of the Constitution of India. Another objection taken was that the notification amounted merely to an executive order and it could not overrule the statutory provisions contained in the J& K Civil Service Rules which have the authority of the Constitution itself, having been kept alive under the provisions of the State Constitution. Lastly it was submitted that the impugned notification is clearly hit by Art. 207 of the KCSR inasmuch as the procedure laid down therein has not been followed in the present case before applying the impugned notification to the petitioners.