On 22nd December 2020, a Single Judge Bench consisting of Hon’ble Mr. Justice Ali Mohammad Magrey heard the case of J&K Tourism Development v. State of Jammu & Kashmir and Others via video conferencing.
A writ petition in the nature of Mandamus had been filed by the PETITIONERS on behalf of the Jammu and Kashmir Tourism Development Corporation Employees Union, commanding the RESPONDENTS to give the same treatment to the PETITIONERS and all employees of the RESPONDENT corporation as given to the employees of Sheri Kashmir International Convention Complex (SKICC) in the matter of adoption of a defined pension scheme.
Facts of the case
The PETITIONERS’ union was an elected body consisting of the employees of the Jammu and Kashmir Tourism Development Corporation Ltd. In 1988, the State Government had passed an ORDER on the transfer of tourist establishments from the Directorate of Tourism to the RESPONDENT Corporation. The Corporation based on the decisions of its Board of Directors and the sanction of the Hon’ble Governor of the State of Jammu and Kashmir had framed the Employees Service Rules which have been amended from time to time.
In 2010, a Government ORDER was passed and the corresponding sanction was accorded to the conversion of Cost of Living Allowance (COLA) to Dearness Allowance (DA) in favor of the employees of state-owned Public-Sector Undertakings (PSUs). Even though the RESPONDENT Corporation derives its origin from the Tourism Department yet, the PETITIONERS had been singled out in the matters of a grant of pension which was enjoyed by the employees of the Tourism Department. Hence, the present writ petition was filed for the protection and preservation of the legal rights of the members of the Union.
Contentions of the PETITIONER
Mr. Altaf Haqani, the learned senior counsel submitted that the PETITIONERS had been singled out for differential treatment without any basis, even though the Corporation derived its origin from the Tourism Department.
The counsel contended that pension forms a part of the salary of an employee and it was not a bounty subjected to the whims and caprices of an employer. It can be regarded as property within the meaning of Article 19 of the Constitution.
The learned senior counsel further contended that the RESPONDENTS had failed to accord the same treatment to the PETITIONERS as granted to other similarly situated employees, which was not only arbitrary and unfair, but it was also violative of the mandate of Articles 14 and 16 of the Constitution.
Contentions of the RESPONDENT
Learned counsel submitted that the PETITIONERS’ union was not a registered body under the provisions of the Trade Union Act and, thus, they had no right to file the writ petition before the Court of law. It was contended that the writ petition filed by the PETITIONERS was not maintainable since the Jammu and Kashmir Tourism Development Corporation Employee Service Rules, 1979, postulates that the services in the Corporation shall be non-pensionable in terms of Rule 29 of the impugned rules.
It was also submitted that the PETITIONERS were governed by the express statutory rules which set out the terms and conditions of the services of employees, therefore the employees could not claim for amendment in the service rules by filing the writ petition.
The COURT referred to the case of Mani Subrat Jain v. State of Haryana & Ors, to determine the scope of the writ of Mandamus:
“The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The judicial opinion appears to be that in case of non-selection to a post, no writ of mandamus lies.”
The COURT further referred to the case of State of UP & Ors. v. Harish Chandra & Ors. (1996) 9 SCC 309, which held that:
“Under the Constitution, a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition.”
The COURT observed that none of the rights of the PETITIONERS had been violated as they had not been able to prove as to which of their rights had been violated by the opposing party.
The COURT held that: “The PETITIONERS are governed by express statutory rules which set out the terms and conditions of the services of employees, including the petitioners, therefore, the petitioners could not claim for amendment in the service rules through the medium of the instant petition.” Further, the court ruled that once an employee accepts the terms and conditions governing a particular service at the time of entry in that service, he/ she could not subsequently deviate from a certain portion of the rules governing such service. The petition of the PETITIONERS was found to be devoid of any merit and thus, it was dismissed.
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