Ghulam Ahmad Bandey and Another vs Inspector General of Police

Janki Nath Wazir, C.J.—This is a writ petition filed by Ghulam Ahmad Bandey and Kanshi Nath Raina Sub-Inspectors of Police (Junior

Grade) under Article 32(2A) of the Constitution of India as applicable to the State read with Section 103 of the Constitution of Jammu and

Kashmir against the order of the Inspector General of Police discharging them from their posts of Wireless Sub-Inspectors.

The Petitioners alleged that they were appointed on 8-12-1952 as probationers for six months and later on they were confirmed by the

Inspector General of Police. They were discharged on 17-3-1957 for disobedience of orders and cowardice. They challenged the legality of the

order by a writ petition and that order was held void and ineffective by a Division Bench of this Court and the opposite party was directed to allow

the Petitioners to continue in their service.

Three months later they were allowed to join the Department but again they were suspended on the directions of the Inspector General of Police

and an enquiry was ordered against them. Without holding an enquiry the Petitioners were informed that their posts were temporary and that their

service was terminable on one month's notice. A notice was served on them terminating their services from the 25th March, 1958.

The Petitioners have challenged that order on the ground that they were permanent members of the Kashmir Police Service and the opposite party

could not terminate their service without complying with the provisions of Section 126(2) of the Constitution of Jammu and Kashmir; that the

impugned order arbitrarily selected the Petitioners for retrenchment and the test applied was arbitrary and discriminatory which offended against

Article 16 of the Constitution of India. It was, therefore, prayed that the impugned order be quashed and directions issued to the opposite party to

retain them in service.

The Respondent has denied that the Petitioners were permanent members of the Kashmir Police Service. He has produced documents to show

that the Budget for the Additional Police is sanctioned from year to year and a definite number of officers mentioned in the budget are allowed to

remain in service whereas the officers beyond the prescribed number have to be retrenched. It is stated that the services of the Petitioners have

been terminated as they have not come up to the selective test prescribed by the officers of the department and the selective test applied is not

arbitrary.

The learned Counsel appearing for the Petitioners has argued that there are circumstances to show that the services of the Petitioners are not

temporary but they are permanent.

As there is a dispute between the Petitioners on the one hand and the Respondent on the other in regard to the nature of service, whether it is

temporary or permanent, such disputed question of fact cannot be gone into in a writ proceeding. If the services of the Petitioners are wrongfully

terminated they are entitled to institute an action to vindicate their rights and in such a suit the Court can go into the question whether the services of

the Petitioners were temporary or permanent and grant such relief as the Petitioners are entitled to. In this view I am supported by the following

observations of their Lordships of the Supreme Court in the case, Union of India (UOI) Vs. T.R. Varma, :

Under the law, a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights, and in such an

action, the court will be competent to award all the reliefs to which he may be entitled, including some which would not be admissible in a writ

petition. A writ petition under Article 226 is not the appropriate proceeding for adjudication of disputes like the present. It is well settled that when

an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special

jurisdiction of the High Court to issue a prerogative writ.... Where such a remedy exists, it will be a sound exercise of discretion to refuse to

interfere in a petition under Article 226 unless there are good grounds therefor.

The learned Counsel for the Petitioners argued that assuming that the services of the Petitioners were temporary, their services have been

terminated by way of punishment and, therefore, they are entitled to the protection of Section 126(2) of the Constitution of Jammu and Kashmir. It

is argued that according to 1 paragraph 6 of the objections taken by the Respondent the Petitioners are dubbed as being persons of doubtful

loyalty and on that score their services have been terminated from which it is manifest that they are thrown out of service by way of punishment

without giving them opportunity to defend themselves and to show that the charge levelled against them was baseless. In other words the

provisions contained in Section 126(2) have not been complied with.

Section 126 of the Constitution of Jammu and Kashmir reads as under:

(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

sub-ordinate 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.

It is well settled that a person who is a member of the civil service of the State or holds a civil post under the State, whether the service or the

post he holds is permanent or temporary, is entitled to the protection of Section 126 if he is dismissed or removed or has been reduced in rank

without affording him opportunity of showing cause against the action proposed to be taken in regard to him.

Dismissal, removal and reduction in rank are technical terms used in Sub-section (2) of Section 126 of the Constitution to mean different

punishments inflicted on an officer for his work and conduct having been found blame-worthy or deficient. If any of these punishments is imposed

on an officer holding permanent or temporary employment he is entitled to protection u/s 126(2) of the Constitution of Jammu and Kashmir.

But termination of service under terms of con tract or under the rules of service unless it is by way of penalty will not attract the provisions of

Section 126(2). Reliance may be placed on Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), , where it is laid down as

under:

Under the Constitution removal and dismissal stand on the same footing except as to future employment. In this sense removal is but a species of

dismissal. Removal, like dismissal, no doubt brings about a termination of service but every termination of service does not amount to dismissal or

removal. Article 311 does not apply to all cases of termination of service.

In Hartwell Prescott Singh Vs. The Uttar Pradesh Government and Others, , it has been held:

In the case of a person employed in a temporary capacity on probation and whose services could, according to the conditions of services

contained in the service rules, be terminated by a month's notice if he failed to make sufficient use of his opportunities or to give satisfaction, the

termination of his services according to the Rules does not amount to dismissal or removal from service within the meaning of the Article.

Shortly put, the principle is that when a servant has a right to a post either under the terms of the contract of employment express or implied, or

under the rules governing the conditions of his service, the termination of the service of such a servant is by itself and prima facie a punishment as he

is deprived of his right to hold that post and to get the emoluments attached thereto.

Therefore, the question for consideration is whether the Petitioners had the right to hold the posts when the impugned order was passed. If

they had, the impugned order deprived them of the posts without taking recourse to the provisions of Section 126(2) and, therefore, was bad in

law. But if the Petitioners had no right to the posts they were holding, and there were no rules governing the conditions of their service and their

services were liable to be terminated under the general law that is, by giving them one month's notice and there is nothing to show that the

termination of service was by way of penalty, then the Petitioners are not entitled to the protection of Section 126.

This principle is fully enunciated in Parshotam Lal Dhingra Vs. Union of India (UOI), . At page 49 it has been laid down that if the servant was

appointed to a post, permanent or temporary, on the express condition or term that the employment would be terminable on say a month's notice

as in the case of Satish Chandra Anand Vs. The Union of India (UOI), , then the Government might at any time serve the requisite notice.

In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of

employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the

Government may take the view that a simple termination of service is not enough and that the conduct of the servant has been such that he

deserves a punishment entailing penal consequences. In such a case the Government may choose to proceed against the servant on the basis of his

misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal

consequences. In such a case the servant will be entitled to the protection of Article 311(2).

It has been further held that the use of the expression ""terminate"" or ""discharge"" is not conclusive. In spite of the use of such innocuous

expressions, the court has to apply the two tests mentioned above, namely (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? If the case satisfies either of the two tests then it must be

held that the servant has been punished and the termination of his service must be taken as a dismissal of removal from service or the reversion to

his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to

government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in

violation of the constitutional right of the servant.

Applying the principle discussed above his Lordship held that the Petitioner in that case was appointed to officiate in that post and he was

appointed only to perform the duties of that post and he had no right to continue in that post and under the general law the implied term of such

appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a

forfeiture of any right and could not be described as a reduction in rank by way of punishment.

It is manifest from the above ruling that the Petitioners in order to succeed in this writ petition nave to show that they had a right to hold the

posts and that they were deprived of that right by way of punishment.

In the instant case, the Department being temporary, the two posts in the cadre were reduced. If the posts were temporary, then the persons

who were occupying those posts cannot be said to ""hold"" them. In other words, the Petitioners could not be holding the posts permanently when

the department itself was a temporary one. In Laxminarayan v. Union of India AIR 1956 Nag 113, it has been held that a person cannot be

deemed to be a member of a service unless he is permanently absorbed therein; nor can he be deemed to be the holder of such post unless he

holds it permanently.

For holding a post permanently the post itself must be permanent and the incumbent must be a permanent employee. If the post itself is temporary

then the person who is working thereon cannot be said to ""hold"" it. Similarly, where the post is permanent but the holder is only temporarily

working on it he cannot be said to ""hold"" the post but to merely officiate in that post."" The same view has been taken in State of Punjab and Others

Vs. Prem Parkash and Others, .

In the present case as the Petitioners had no right to hold the posts, being temporary, they have to show that there services have been

terminated by way of penalty. The order itself does not show that on account of misconduct or inefficiency their services have been terminated. In

the order it is simply mentioned that the services of the Petitioners being temporary they are given one month's notice on the expiry of which their

services are terminated.

The learned Counsel for the Petitioners has relied upon paragraph 6 of the objections filed by the Respondent and has argued that because there is

a blame attached to the Petitioners that their loyalty was doubtful and on that score their services have been dispensed with, therefore, the

provisions of Section 126(2) will apply to their case.

This contention is without any substance. The fact that the authorities have laid down certain selective tests for the retention of certain persons

in the Police Force and persons who do not satisfy those tests are retrenched, does not show that there is any blame attached to the persons who

have been retrenched.

Whatever may be the motive actuating the authorities to dispense with the services of an employee they cannot give the employee a right to seek

protection u/s 126(2) of the Constitution, if the employee has no right to hold the post. In the instant case, as has been observed above, the

Petitioners have no right to the posts which are temporary. The authorities did not find them suitable for those posts and they, therefore, retrenched

them. They cannot claim the protection of Section 126(2). Reliance may be placed on Shrinivas Ganesh Vs. Union of India, , in which it has been

held as under:

If Government does not choose to dispense with the services of a temporary servant under its contract with him but wishes to inflict a punishment

upon him and wishes to dismiss him or remove him, then it may be said that his case would stand on the same footing as the case of a permanent

servant who is being punished by the State which may result in serious consequences, and such punishment should not be inflicted unless he is

afforded the safeguard provided by Article 311.

Whatever may be the motive which may influence the exercise of a legal right if the legal right exists then the motive becomes irrelevant, and if in a

case where Article 311 does not apply the Government has the right to dispense with the services of a temporary servant then it is not open to a

temporary servant to say that his services were dispensed with for an ulterior motive or for a motive which was not a proper motive.

The authorities in the Police Department laid down selective tests and they found that the Petitioners did not satisfy the selective test and,

therefore, they dispensed with their services which being temporary they had no right to hold.

It is argued that the selective test was arbitrary and discriminatory and offended against Article 16(1) of the Constitution of India. It is urged

that although the Petitioners have been retrenched yet the Department still exists and other persons junior to the Petitioners have been retained in

service and thus the order terminating their services offends against Article 16 of the Constitution of India as applied to the State. In support of this

contention the counsel for the Petitioners relied upon Sukhnandan Thakur v. State of Bihar (S) AIR 1957 P&H 617.

This ruling is not applicable to the present case. In Patna case the selective test prescribed by the Government was found arbitrary and

unreasonable and clearly discriminated between persons who were similarly situate whereas in the present case the selective test is reasonable in

view of the fact that there is connection between the selective test and the efficient performance of the duties and obligations of the particular office.

The selective tests laid down by the Inspector General of Police for retrenchment are as follows:

Those whose record of service is such that there is no hope of their improvement as Police Officer;

(a) who have been awarded two major punishments or three minor punishments or both;

(b) whose loyalty is doubtful;

(c) morally unsound.

The tests laid down by the Inspector General of Police have got definite connection with the efficient performance of the duties of the office which

the Petitioners have been occupying and it could not be said that the selective test applied by the Inspector General of Police is in any way

unreasonable and discriminatory. In the same ruling cited by the learned Counsel for the Petitioners it has been laid down by Mr. Justice

Ramaswami as follows:

It is equally manifest that Article 16(1) does not preclude the administrative authority from making a selection from numerous candidates before

making appointments; but the selective test employed must be reasonable and not arbitrary. The selective test must be based upon some

reasonable principle. Otherwise, the principle of equality of opportunity would be infringed. In my opinion no selective test can be reasonable

unless there is some proximate connection between the selective test and the efficient performance of the duties and obligations of the particular

office. It must make it clear that the administrative authority has a wide range of discretion in making the appointment.

We are, therefore, of opinion that the conditions laid down by the Inspector General of Police for retrenching certain temporary hands are not

unreasonable and as the Petitioners who were holding temporary posts have not been able to show that their services have been terminated by

way of penalty they are not entitled to the writ prayed for.

In the result we find no force in this petition and dismiss it, but in the circumstances of the case we make no order as to cost.

Gopalakrishnan Nair, J.

I agree.