2002 Supreme(SC) 274

2002(2) Supreme 178
SUPREME COURT OF INDIA
(From Jammu & Kashmir High Court)
S. Rajendra Babu and Mrs. Ruma Pal, JJ.
Jawahar Lal Sazawal & Ors. -Appellants
versus
State of J & K & Ors. -Respondents
Civil Appeal No. 3079 of 2000
Decided on 27-2-2002
Counsel for the Parties :
For the Appellants : M.N. Krishnamani, Senior Advocate, A.K. Raina, A.K. Kaul, S. Pani, R.D. Upadhyay, Advocates.
For the Respondents : Anis Suhrawardy, Advocate.

IMPORTANT POINT
Appellants are entitled to relief of status as prayed in their writ petitions. High Court wrongly denied them that status.

Headnote:J & K Civil Services Regulations, 1956-Article 207-Appellants who were appointed prior to 1963 as permanent government servants under J & K Civil Services (C.C. and A.) Rules, 1956-Alleged to have voluntarily surrendered their status as Govt. servants in 1963 under Article 207 of J & K Civil Service Regulations, 1956-Challenged in 1982 before High Court-High Court has denied the appellants claim on ground of surrender under Art. 207 and also on ground of delay and laches-Whether correct? (No)-It is neither correct on precedent nor on merits-Appeal allowed-Appellants granted relief as prayed in writ petition. (on precedent)

       Held : The impugned decision directly conflicts with the earlier decision of the same High Court in Ghulam Quadir s case on the issue as to the status of Government employees like the appellants. The decision in Ghulam Quadir has remained unchallenged by the State respondents till today and was binding on the Court. In the absence of some distinguishing feature it should have been followed. It was not even referred to. We could have allowed the appeal before as on this short ground, but since the issue raised affects a large number of employees, it is necessary to decide the issue on merits. (Para 16)

       Held (on merits) : It is clear that the Article does not itself provide for the procedure for abolition of a permanent post nor the mode of appointment to another post nor for the manner in which the employee has to exercise the option. It only provides for the consequences of a permanent post being abolished, the consequence being that the employee shall have the option of accepting another appointment in which event he can count his previous service for the purpose of calculating the qualifying period for pension. Since there was in fact no abolition of the Government posts under Article 207, there was no question of the appellants exercising any option or surrendering their status under that Article at all. The reliance by the High Court on Article 207 to decide the appellants status was, in the circumstances wholly misplaced. The High Court also proceeded on the erroneous assumption, namely, that as a consequence of the "order dated 8th October 1963 all the Government industrial undertakings stood abolished with the formation of the Company". Firstly what is referred to as an order by the High Court was not an "order" at all but an "instruction" under Article 89 of the Articles of Association of the Company. It had no statutory force. Neither the Government Industrial Undertakings nor the posts of its employees could be abolished by such an instruction. The Governor could not in exercise of powers under the Articles of Association of the Company abolish industrial units belonging to the State Government and then transfer the undertakings to the Company. It would amount to an unilateral taking over of the industrial units by the Company without any instrument of transfer being executed by the State Government either in the form of an agreement or Statute. In fact and in law there was no abolition of the posts held by the appellants and none was intended. There is nothing in the instructions which could remotely be construed as an order abolishing the posts held by the appellants. Had the appellants been appointed as employees of the Company they should have been issued letters of appointment by the Company. No appointment letter was issued to any of the appellants by the Company. The irresistible conclusion is that the appellants were and continue to be servants of the State Government and as permanent residents of the State of Jammu and Kashmir are entitled under Section 10 of the State Constitution to be treated on par with other Government servants in keeping with Article 14 and 16 of the Constitution of India. By the impugned orders, the State Government has sought to deny the appellants such equality. The impugned orders cannot, therefore, be constitutionally sustained and must consequently be quashed. But should the appellants be denied their right to relief because of the finding of delay and laches by the High Court? We think not. The narration of facts clearly show that there was in fact no delay or laches on the part of the appellants. Till 1972 at least, the High Court in Ghulam Mohamad s case (supra) found the State had not denied parity of status and the employees were granted the right to challenge any denial of status if and when it took place. The appellants were in fact treated on par with other Government employees till the impugned orders were issued on the basis of the 1980 Wage Committee Report. These were challenged in 1981 before this Court and in 1982 before the High Court by the appellants. The fact that the High Court took 16 years to dispose of the matter cannot operate against the appellants. The dismissal of the writ petitions on the ground of delay and laches is, in the circumstances, unsustainable. The decision of the High Court is accordingly set aside and the appeal is allowed by granting relief to the appellants as prayed for in their writ petition. Costs to be paid by the respondent-State to the appellants jointly assessed at Rs. 15000/- (Rupees fifteen thousand only). (Paras 20, 21, 22, 23 & 24)