D.N. Dhar and Others vs State of Jammu and Kashmir

J.N. Wazir, C.J.—Thirteen writ petitions have been filed by Government officers in this Court u/s 103 of the Constitution of Jammu and

Kashmir praying that an appropriate writ be issued quashing the orders of the Respondent, Government Order No. 312-C of 1963 and

Government Order No. 313-C of 1963, dated 27th November, 1963 published in the Jammu and Kashmir Government Gazette of 5th December

and the Sadar-i-Rjyasat's Order No. SR-37 of 1963 dated 27th November, 1963 as being illegal, void, ineffective, inoperative and ultra vires and

that the Petitioners be held as continuing to hold their respective posts and offices which they held prior to the passing of the impugned orders.

These thirteen petitions are No. 54 of 1964 tiled by 22 officers who were holding different posts in different departments mentioned in their

petitions, No. 59 of 1964 by Syed Shah, Tehsil Education Officer, No. 61 of 1964 by seven officers, No. 63 of 1964 by J.N. Zutshi, S.P.

(A.I.G.) Central Police Office, No. 71 of 1964 by 12 officers of different Departments, No. 72 of 1964 by Chandra Udey Singh, Special Officer

Twaza Department, No. 73 of 1964 by Shri Pran Nath Malhotra, Superintendent Fire Brigade and N.N. Kaul, D.F.O., No. 77 of 1984 by R.L.

Nagpal, Secretary Legislative Council, No. 78 of 1964 by 7 officers, among whom there are two officers namely, D.N. KauI, Joint Director

Sheep Breeding and A. Azeez who after having attained the age of superannuation had been granted extension in service, No. 79 of 1964 by

Bashir Ahmed Taj, No. 82 of 1964 by Mahadev Kaul, Forest Ranger, No. 93 of 1964 by three officers, Ghulam Qadir and Ors. , No. 81 of

1964 by T.N. Raina, Deputy Director Industries and Ghulam Moh'd Sheikh, Labour Officer, who were alleged to be holding their posts

temporarily.

These petitions raise a common question of law in regard to the constitutional validity of Article 22 and Rule 5(1) of Sch. IX of the Jammu and

Kashmir Civil Service Regulations (hereafter called K.C.S.R.) and shall be disposed of by this order.

It will be convenient to place these 13 petitions in three groups. The first group consists of permanent Government servants in different

departments whose services have been terminated under the impugned rule. The other group consists of 2 officers, namely A. Azeez,

Superintendent of Police and D.N. Kaul, Joint Director Sheep Breeding who had attained the age of superannuation and had been granted

extension in their service. The third group consists of officers who were holding posts temporarily, namely T.N. Raina, Deputy Director Industries

and Ghulam Moh'd Sheikh, Labour Officer.

The writ petitions grouped in these three cate in these petitions have sought to challenge the validity of Article 225 and Rule 5(1) of Schedule IX

of K.C.S.R.

At the outset I propose to confine my discussion to the question of termination of services of permanent civil servants placed in the first group.

Having discussed their case I will deal with the petitions of officers whose services had been extended and are placed in second group, and the

officers who were holding temporary posts are placed in the third group.

The impugned Order No. 312-C of 1964 roads as under:

Whereas it is considered in the public interest to dispense with the further services of the officers, mentioned in the annexure to this order;

Now, therefore, in pursuance of Article 226(2) of the Jammu and Kashmir Civil Services Regulations the Government hereby sanctions the

retirement of the officers mentioned in the annexure to this order on special pension under Article 225-A read with 2nd proviso to Article 226(2)

of the said Regulation.

By order of the Government of Jammu and Kashmir.

Sd/- (Dwarka Nath)

Secretary to Government.

It is this order which the Petitioners seek to set aside on the ground, inter alia, that Article 226(2) is ultra vires and that the order passed thereunder

was illegal and void as it was made in violation of the mandatory provisions of Section 126(2) of the Constitution of Jammu and Kashmir without

affording them any reasonable opportunity to show cause against the action proposed to be taken against them. It was further averred that even if

the State had powers to order compulsory retirement without assigning any reasons, the impugned order amounted to removal from service since

imputations of corruption and inefficiency Which according to the Petitioners formed background of the order constitute indelible stigma on their

integrity and, therefore, was unconstitutional as they were not given reasonable opportunity of showing cause against the action proposed to be

taken against them as required by Sub-section (2) of Section 126 of the Jammu and Kashmir Constitution. It was further contended that the

provisions of Article 226(2) are inconsistent with Section 126(2) of the State Constitution and, therefore, invalid and ultra vires. Mr. Menon

appearing for the Petitioners drew our attention to the press note issued by the Information Department of the Government of Jammu and Kashmir

and pointed out that the document reflected the policy of the Government compulsorily retiring the officers with a view to streamlining the

administration and secondly to end corruption. According to the counsel it clearly meant that the Petitioners had been retired on grounds of

corruption and inefficiency which was a serious stigma on them and the compulsory retirement amounted to removal and was by way of

punishment.

Lastly, it was averred that Article 226 K.C.S.R. gives uncanalized and unguided arbitrary powers to the Government to pick and choose any

officer for termination of his service and, therefore, was hit by Article 14 of the Constitution of India. These petitions were contested by the State

of Jammu and Kashmir and it was urged that the order was nothing but an order of compulsory retirement and that the Government was entitled to

retire a Government servant compulsorily by virtue of Article 226(2), K.C.S.R. on the fulfilment of the conditions laid down amount to dismissal or

removal Is envisaged by Section 126(2) of the State Constitution; that there was no inconsistency between Article 226(2) K.C.S.R. and Section

126(2) of the State Constitution and therefore the Article cannot be said to be ultra vires of the Constitution. It was further contended that there is

sufficient guidance in the Article itself for exercise of the power given to the Government and therefore it is not hit by Article 14 of the Constitution

of India.

At this stage it would be convenient to reproduce the impugned Article 226, K.C.S.R.:

226(1) An officer in Superior service who has attained the age of 55 years and an officer in inferior service who has attained the age of 60 years

may be required to retire unless the competent authority considers him efficient and permits him to remain in service. He may, however, be retained

in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing but he

must not be retained after the age of 60 years except in very special circumstances.

(2) Notwithstanding anything contained in these regulations the Government retains an absolute right to retire an officer at any time whatever the

length of service put in by him without giving any reasons, and no claim for any compensation on this account shall be entertained.

Provided that this right will not be exercised except when it is considered in public interest to dispense with the further service of the officer.

Provided further that the officer is not deprivsd of the benefits already earned or that accrued to him and he is granted pension equal to what is

admissible after giving him the benefit of further qualifying service that he would have rendered had hp been retired at the age of fifty-five.

Punishments which can be imposed on civil servants for good and sufficient reason are enumerated in the Jammu and Kashmir Civil Services

(Classification, Control, Appeal) Rules, 1956, namely:

(i) Censure;

(ii) Fine not exceeding one month's pay;

(iii) Withholding of increments or promotion;

(iv) Reduction to a lower post or time-scale or to a lower stage in a time-scale;

(v) Recovery from pay or the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;

(vi) Compulsory retirement before attainment of the ago of superannuation;

(vii)Removal from the service of the State which does not disqualify from future employment.

(viii) Dismissal from the service of the State which ordinarily disqualifies from future employment.

There is an explanation added to it which is to the following effect:

Explanation I- The termination of employment-

(a) of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the appointment and the

rules governing the probationary service; or

(b) of a temporary Government servant appointed.

(c) of a person engaged under a dance with the terms of his contract;

does not amount to removal or dismissal within the meaning of this rule or of Rule 33.

The Government amended this rule by a notification dated - 13th August, 1962 and omitted Clause (vi) from Rule 30 of the said rules. In the

Explanation I after Clause (c), the following clause was added:

(d) of a Government servant who is retired in accordance with Article 226(2) of the Jammu and Kashmir Civil Service Regulations, 1956.

By this amendment of Rule 30 compulsory retirement before attaining the age of superannuation was deleted from the categories of penalties

enumerated in that rule. In the explanation to the rule it was specifically provided that compulsory retirement under Article 226(2), K.C.S.R. 1956

does not amount to removal or dismissal within the meaning of the said rule.

The question which we have to consider in the present petitions is whether or not termination of services of a permanent Government servant

under Article 226(2), K.C.S.R. amounts to dismissal or removal u/s 126(2) of the Constitution of Jammu and Kashmir. To answer this question it

is necessary to consider the three sections of the State Constitution, Sections 124, 125 and 126. They are in these words:

Subject to the provisions of this Constitution, the Legislature may by law regulate the recruitment, and conditions of service of persons

appointed, to public services and posts in connection with the affairs of the State:

Provided that it shall be competent for the Sadar-i- Riyasat of such person as he may direct, to make rules regulating the recruitment, and the

conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Legislature

under this section, and any rules so made shall have effect subject to the provisions of any such Act.

(1) Except as expressly provided in this Constitution, every person who is a member of a Civil Service of the State or 'holds any civil post

under the State holds office during the pleasure of the Sadar-i-Riyasat.

(2) Notwithstanding that a person holding a civil post under the State holds office during the pleasure of the Sadar-i-Riyasat, any contract under

which a person, not being a member of a civil service of the State, is appointed to hold such a post may, if the Sadar-i-Riyasat deems it necessary

in older to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of

an agreed period that post is abolished or he is, for reasons not connected with misconduct on his part, required to vacate that post.

126 (1). No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an

authority subordinate to that by which he was appointed.

(2). No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing

cause against the action proposed to be taken in regard to him:

Provided that this Sub-section shall not apply-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction, on a criminal charge;

(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that

authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the Sadar-i-Riyasat is satisfied that in the interests of the security of the State it is not expedient to give to that person such an

opportunity.

(3) If any question arises whether it is reasonably, practicable to give to any person an opportunity of showing cause under Sub-section (2), the

decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.

It has to be noticed that Sections 124, and 125 are subject to Section 126. If any rule is made u/s 124 as regards the conditions of service of

Government servants in the matter of their dismissal or removal or reduction in rank it has to comply with the, requirements of Section 126. u/s 125

all civil servants of the Stale hold their office during the pleasure of the Sadar-i-Riyasat. To this, Section 126 provides an exception in the case of

removal or dismissal. In other words, the pleasure of the Sadar-i-Riyasat to terminate services of a civil servant is controlled by Section 126, that

before removal or dismissal or reduction in rank of a civil servant is ordered he must be given a reasonable opportunity of showing cause against

the action proposed to be taken in regard to him Section 124 provides that subject to the provisions of this Constitution the Legislature may

regulate the recuitment and the conditions of service of the persons appointed to public services or posts in connection with the affairs of the State.

The proviso to Section 124 makes it clear that it would be competent for the Sadar- i-Riyasat or such person as he may direct in the case of

services and posts in connection with the affairs of the State to make rules regulating the recruitment and prescribe conditions of the service of

persons appointed to such services and posts. The pleasure of the Sadar-i- Riyasat u/s 125 can be exercised in accordance with the rules made in

that behalf. In short the pleasure of the Sadar-i-Riyasat embodied in. Section 125 is to be exercised in accordance with the rules made u/s 124 and

is controlled by the provisions of Section 126 of the Constitution of Jammu and Kashmir. If the termination of service of a civil servant in substance

amounts to dismissal or removal no matter what phraseology is used for such termination, it will attract the provisions of Section 126(2).

The counsel for the Petitioners has urged that although prematura retirement of Government servants has been deleted from the penalties

enumerated in the rules, yet the termination of services of the Petitioners amounts in substance to removal from service and they should have been

given an opportunity of showing cause before their services were terminated. It is well settled that every case of termination of service may not

amount to removal1. There may be cases in which terms of contract or service rules may provide for the termination of the service on notice of

specified period or on payment of salary for the said period and if in exercise of powers thus conferred on the employers the services of an em-

(sic) in accordance with the terms of contract or rules pertaining to the service, such termination will not amount to removal and Section 126(2) will

not be applicable. A person who substantively holds a permanent post has a right to continue in service subject of course to the rule of

superannuation and the rule of compulsory retirement. If for any other reason that right is invaded and the civil servant is asked to leave his office,

the termination of his service must mean the defeat of his right to continue in service and it will be in the nature of penalty and will amount to

removal. In Parshotam Lal Dhingra Vs. Union of India (UOI), the scope of Article 311(2) of the Constitution of India which corresponds to

Section 126(2) of the State Constitution particularly with reference to the meaning of the expression 'dismissal', 'or removal', 'or reduction in rank',

has been discussed and the following two tests have been laid down to ascertain whether a person has been dismissed or removed within the

meaning of Article 311 of the Constitution: (1) Whether the servant had a right to the post or the rank or (2) whether he has been visited with evil

consequences of the kind hereinbefore referred to, that is, loss of pay and allowance, loss of seniority in his substantive rank of stoppage or

postponment of future chances of promotion. If ha had a right on the post the termination of his service will by itself be a punishment and he will be

entitled to the protection of Article 311. So too if the termination had the effect of the officer being visited with evil consequences then whatever

may be the phraseology used that would put an end to his service and it would be dismissal as punishment. Applying these tests, which are not

cumulative but alternative, to the present case it would be abundantly clear that the impugned order deprived the Petitioners, who are permanent

Government servants, of their right to hold posts till they attained the age of superannuation and amounted to removal and thus would attract the

provisions of Section 126(2) of the State Constitution.

The Advocate General appearing for the State argued that the termination of the service; of the Petitioners by compulsory retirement was

under Article 226(2), K.C.S.R. and Section 126(2) of the Constitution had no application. Reliance was placed on Shyam Lal Vs. The State of

Uttar Pradesh and The Union of India (UOI), . Shyam Lal's services were terminated under Article 465-A of the Civil Service Regulations and

Note I appended thereto. Shyam Lal alleged that his compulsory retirement .offended the provisions of Article 311(2) on the ground that

compulsory retirement was in substance removal from service. Their Lordships of the Supreme Court after considering the scheme of the relevant

rule held that compulsory retirement did not amount to removal within the meaning of Article 311(2). Reliance was also placed on Anr. case the

The State of Bombay Vs. Saubhagchand M. Doshi, . This was a case of compulsory retirement under Rule 165(a) of the Bombay Civil Service as

amended by the Saurashtha Government. The rule gave the Government a right to retire a Government servant after he had completed 25 years of

qualifying service or 50 years of age, and it permitted the Government to ask the Government servant to retire compulsorily without giving any

reason and without giving him the right to claim special compensation. The rule further made it clear that the right conferred by it will not be

exercised except when it is the public interest to dispense with the further services ciency or dishonesty. The rule of compulsory retirement in these

circumstances was held by their Lordships of the Supreme Court as valid. Venkatarama Aiyar J. took the precaution of adding that.

questions of the said character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the

services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if,

there is one and the servant is retired before the age prescribed therein, then that can be regarded only as dismissal or removal within Article

311(2).

It is therefore that the provision for compulsory retirement was upheld on the ground that such compulsory retirement did, not amount to removal

under Article 311(2) because it was Anr. mode of retirement and it could be enforced between the period of age of superannuation prescribed and

after the minimum period of service indicated had been put in. The State of Bombay Vs. Saubhagchand M. Doshi, was recently noticed in Anr.

case which came up before their Lordships of the Supreme Court, Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon,

Pandu, etc., . Their Lordships upheld the principle) regarding Doshi's compulsory retirement and with regard to above-quoted principle laid down

by Iyer J. remarked ""With respect, we think this statement correctly represents the true position in law."" From these decisions of the Supreme

Court it is well settled that the termination of services of a permanent Government servant would not amount to his removal under Article 311(2)

where such termination is in accordance with the rule of superannuation and the rule as to compulsory retirement. It may be stated that rules of

superannuation are prescribed in respect of public servants in all modern states and are based on considerations of life expectation, mental capacity

of the civil servants having regard to the climatic conditions in which they work and the nature of the work they do. The rules are not on any ad hoc

basis and do not involve the exercise of any discretion. They apply uniformly to all public servants falling under the category in respect of which

they are framed. It is also well settled that the competent authority may frame rules under Article 309 of the Constitution of India, which

corresponds to Section 124 of our Constitution for compulsory retirement of a permanent Government servant and those rules as laid down in

Doshi's case will be valid provided they fix both the age of superannuation and an age for compulsory retirement and the services of the permanent

civil servant are terminated between these two points of time.

In the light of these rulings we have to examine the impugned order by which the services of the Petitioners, who are permanent Government

servants, have been terminated. It is not disputed that the Government passed the order under Article 226(2), K.C.S.R. On a careful perusal of

the impugned Article it will be clear that it permits the appropriate authority to retire compulsorily civil servants without imposing a limitation in that

behalf that such civil servants should have put in a minimum period of service. The impugned Article, therefore, is definitely invalid and the

premature retirement ordered under this Article would amount to removal of the civil servants within the meaning of Section 126(2) of the State

Constitution. In Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., their Lordships of the Supreme(sic).