Case: Jawahar Lal Sazawal  Vs. State Of J &amp; K

should have been followed. It was not even referred to. We could have allowed the appeal before us on this short ground, but since the issue raised affects a large number of employees, it is necessary to decide the issue on merits. 16. On the merits we may start by reaffirming the statement of the law laid down by this Court in Roshan Lal Tandon vs. Union of India [AIR 1967 SC 1889 ] that: "once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government". 17. No statute or statutory rules have been drawn to our attention by which the permanent posts held by the appellants were abolished. The High Court held that the appellants status had been determined under Article 207 of the Regulations. The conclusion is based on an erroneous interpretation of the Article. To start with the High Court ignored Article 1-(a) of the Regulations which clarifies that these. "Regulations are intended to define the conditions under which Salaries, Leave, Pension, Travelling or other allowances are earned by Service in the Civil Departments and in what manner they are calculated. They do not deal otherwise than indirectly and incidentally with matters relating to recruitment, promotion, official duties, discipline or the like". (Emphasis supplied) 18. Article 207 is contained in Chapter XVII of the Regulations which deals with the conditions of grant of pension. It was, in this context that the Article had been framed. It deals with pension and its computation. It does not purport to determine status at all. It reads: "207. If an officer is selected for discharge owing to the abolition of his permanent post he shall, unless he is appointed to another post the conditions of which are deemed to be at least equal to those of this own, have the option -(a) of taking any compensation pension or gratuity to which he may be entitled for the service he has rendered; or(b) of accepting another appointment on such pay as may be offered and continuing to court his previous service for pension". 19. 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.20. 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. 21. 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. 22. 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 shows that there was in fact no delay or laches on the part of the appellants. Till 1972 at least, the High Court in Ghulam Mohammad’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 Wages 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. 23.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]No statute or statutory rules have been drawn to our attention by which the permanent posts held by the appellants were abolished. The High Court held that the appellants status had been determined under Article 207 of the Regulations. The conclusion is based on an erroneous interpretation of the Article. To start with the High Court ignored Article 1-(a) of the Regulations which clarifies thatis 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.20. 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 anby 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 wasshould 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 shows that there was in fact no delay or laches on the part of the appellants. Till 1972 at least, the High Court in Ghulamcase (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 Wages 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.