Srinagar, Oct 18: The Jammu and Kashmir high court has said that pension was property and pensioner has a fundamental right to receive it. The court also ruled that even an employee with ten years’ service was entitled to pension.
A single bench of the court comprising Justice Tashi Rabstan made the ruling wile disposing of a plea by a man who was working as Assistant Craftsman (ACM) in the Craft Crewel Emb.
“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,” the court according to Kashmir Glory said and held petitioner Ghulam Hassan Baqal entitled to pension. Baqal had rendered 14 years of service and died while the petition was pending before the court.
“…even an employee with ten years’ service, is entitled to pension. For that reason, it would be arbitrary, discriminatory and violative of Article 14 of the Constitution of India to create such a classification, by which an employee, like petitioner, is disentitled of the benefit of pension, in that, it has no nexus with the objective sought to be achieved,” the court said and directed government to take into account 14 years’ qualifying service of Baqal and pay and release the pension and other
retiral benefits in favour of next of kins within eight weeks.
Baqal was original petitioner of petition and passed away during its pendency and as a consequence his next of kins (NOKs) were 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 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, Baqal 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. As per the petition, he was examined and his age declared as 50 years as on 25th May 1991, therefore, the age shown in terms of 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 was argued 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 the Court with writ petition, 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 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 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 SWP no.1783/2009 no.HD/DDT/3565 dated 29th June 1992. It is also claimed in the petition that Baqal 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. The petition was stated to have been disposed of on 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, was 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 on 31st August 2005, directing respondents to settle pension case of petitioner as far as practicable within a period of three months. It was also ordered that if respondents found that Baqal had overstayed in service either under the orders of the Court or otherwise, the period of over-stayal would be treated as re-employment so that the case of his
retiremental benefit did not get further delayed. Non-implementation of order dated 31st August 2005, forced Baqal to file Contempt Petition in 2007. It was also contended in latest petition that on 2 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. Compliance report was filed on 16th February 2009, with government stating 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 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.