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2020 Supreme(J&K) 117
HIGH COURT OF JAMMU AND KASHMIR
Rajesh Bindal, Sindhu Sharma, JJ.
Tara Singh & Ors. - Appellant
Versus
B.B. Vyas, Chief Secretary & Ors. - Respondent
CPLPA No. 18/2018 c/w MCC No. 109 of 2019 [CM No. 202/2019]
Decided On : 04-03-2020
Mr. P. N. Raina, Sr. Advocate with M/s B. S. Jamwal, Soonam Dorjay & J. A. Hamal, Advocates, for the Appellant; Mr. K. D. S. Kotwal, Dy. AG, for the Respondent
Headnote:
Constitution of India, 1950 - Articles 14 and 15 - Account of embezzlement mismanagement - Employees societies filed claim parity in treatment - Petitioners in contempt petition were employees of Co operative Societies which were wound up in year on account of embezzlement mismanagement and misdeeds by management of societies - Some of employees societies filed claiming parity in treatment as was given to employees of Rural Electric Co operative Society Samba – Held, There were more back door than front door which normally remained closed - In case in hand as well without there being any policy at least brought to notice of court some of employees from cooperative societies which were wound up on allegations of embezzlement and mismanagement were engaged in government departments - Petitioners are in litigation for last more than two decades - other employees were adjusted in as no specific date as such has been pointed out - In case in hand fact remains that all employees have now attained age of superannuation and they are seeking their entry into service by engagement in any government department and that too from back date when other employees were absorbed - Factum of petitioners having attained age of superannuation was not brought to notice of Division Bench when appeals were allowed - This certainly was material fact in case where petitioners were claiming entry into service - Consequential effect of same which petitioners would claim is salary and thereafter retrial benefits - That too without working even for single day which cannot be granted to petitioners - At this stage petitioners cannot be granted any relief – Petition disposed
JUDGMENT
Rajesh Bindal, J. - This order will dispose of CPLPA No. 18/2018 and MCC No.109/2019 filed in LPASW No. 44/2016 by the State.
2. Before noticing the arguments raised by the learned counsels for the parties and also dealing with the two matters listed before the court, we deem it appropriate to notice the facts.
3. The petitioners in the contempt petition were the employees of Co- operative Societies which were wound up in the year 1990 on account of embezzlement/mismanagement and misdeeds by the management of the societies. Some of the employees of the societies filed SWP Nos. 1648 & 1371 of 1998 claiming parity in treatment as was given to the employees of Rural Electric Co-operative Society, Samba. It was pertaining to engagement of the wound up co-operative societies in the government departments. The aforesaid writ petitions were disposed of on 31.05.2001 with the following directions:
'..(iii) That the State Government would also consider the claims of the petitioners in the same way as has been done in the case of employees of Rural Electric Cooperative Society, Samba, and would accord same treatment to the petitioners;.'
4. When the State in compliance to the aforesaid order rejected the claim of the petitioners therein vide order dated 19.12.2002, the same was subject matter of challenge in SWP No.1691/2004. The aforesaid writ petition came up for final disposal before the learned Single Judge of this court and the same along with two petitions bearing SWP Nos.1963/2001 & 1786/2004 were dismissed vide judgment dated 01.02.2016. The operative part of the order passed by the learned Single Judge reads as under:
'35. In the present case, the right of absorption, contrary to rules, is not a fundamental right much less a legal or a statutory right. What has been highlighted in the present case is only the fact that the petitioners were similarly situate as the employees of RECS, Samba, who had been absorbed in the Government Service. Equality, it has been held, is a positive concept which cannot be invoked in a manner which would have the effect of defeating Articles 14 and 15 of the Constitution as regards those who despite being eligible, but not being parties to these selections would be affected.
36. In my view, therefore, the petitioners would not have any right to seek a mandamus to the respondent State to absorb them in the State Service contrary to rules or the spirit of the Constitution.'
5. The aforesaid judgment was subject matter of challenge in LPASW No. 44/2016. The same was allowed on 27.04.2017 along with two other appeals bearing LPASW Nos. 64 & 65/2016. The direction was in the following terms:
'10. In these circumstances, the impugned judgment cannot be sustained and the respondents are directed to comply with the earlier directions dated 31.05.2001, to which we have referred above, in letter and spirit within a period of six months from today.'
6. It was in tune with the direction issued by the learned Single Judge of this court in first round of litigation. In fact the same was reiterated to be complied with.
7. Two matters before this court are off-shoot from the aforesaid judgment of the Division Bench of this court. One is a Contempt Petition filed by the petitioners alleging non-compliance of the judgment. Whereas another one is an application filed by the State seeking clarification of the order dated 27.04.2017. It is in light of the fact that against the order passed by the Division Bench of this court on 27.04.2017, I was filed by the State before Honble the Supreme Court. The same was disposed of on 28.09.2018 by passing the following order:
'Learned counsel for the petitioners seeks permission to withdraw this petition with liberty to seek clarification of the impugned order from the High Court.
Permission is granted.
The special leave petition is, accordingly, dismissed as withdrawn with the afore-said liberty.'
Arguments On Behalf Of State
8. While pressing the prayer made in the app
