Mohammad Amin Salati & Ors. vs Chairman & Ors.

The petitioners in the above mentioned writ petitions were employees of the Jammu and Kashmir Road Transport Corporation, hereinafter

referred to as S. R. T. C. and have been prematurely retired with effect from 1st of August, 1987, purportedly, in terms of Article 226 (2) of the

Jammu and Kashmir Civil Service Regulations, hereinafter referred to as CSR. They have separately challenged their respective orders of

premature retirement in the above mentioned petition on common questions of law and facts. This judgment will, therefore, govern all of them.

Except two of the writ petitioners named Mohammed Ismail and Mohammed Amin Khan in writ petition No. 916 of 1987, all other writ

petitioneres have put in more than the qualifying service of 22 years or have attained 48 years of age. The said two writ petitioners had neither put

in 22 years qualifying service nor have they attained 48 years of age on the date of impugned order. All the writ petitioners were initially employees

of the Jammu & Kashmir Government Transport Undertaking, hereinafter referred to ""as GTU having appointed on different dates and on different

posts, which was a Government Department at that time. The Road Transport Corporation Act, 1950, was extended to the State of Jammu and

Kashmir as a result of which STRC was established in the State on 19 1976. All the employees of the GTU were given the option to join the

service of corporation on substantive basis or seek retirement from Government service. The petitioners one and all exercised their option for being

the employees of the said corporation.

In their petitions, it is averred by each of them that ever since their appointment in the Corporation, they have been discharging their duties with

dedication, honesty and to utmost satisfaction of their superiors. They have a clean record of service and nothing adverse has ever been recorded

in their confidential reports. No adverse remark has ever been communicated to them It is submitted that since their absorption in the corporation,

they have also earned promotions. According to them, under SRO of 1987 dated 511987, which has been made applicable to the employees of

the corporation as well, the age of the retirement of the employees has been raised to 58 years from 55 years, and they also have the right to

continue in service till attaining such age. It is further submitted that the power to retire an employee of the corporation has been delegated to

respondent No: 1 under item No : 22 of decision No : XIII in the third meeting of the Corporation Board of Directors held on 28th, 29th and 31st

of January, 1987, which they challenge on the following grounds :

i) That the power to retire an employee of the corporation has been delegated to respondent No : 1 herein with respect to the employees working

on the posts of which he is the appointing authority, vide item 22 of decision XIII quoted above. The aforesaid provision confers an unguided and

unfettered discretion upon the respondent No : I herein to retire an employee of the corporation by giving him a notice in writing of less then three

months or three months pay and allowances in lieu of such notice. No criteria or guidelines with respect to the limit of the tenure of service of the

concerned employees have been laid down in the aforesaid provisions conferring the power to retire an employee before attaining the normal age

of superannuation prescribed under the J&K Civil Service Regulations. In the circumstances, the aforesaid powers conferred on respondent No : 1

under item No : 22 of the decision No : XIII of the Board of Directors of the corporation vests an arbitrary, unchanelized, unbridled and unguided

discretion on the respondent No : 1. The provision is, therefore, liable to be struck off being violative of Article 14 of the Constitution of India.

ii) That the power to retire an employee of the corporation has been delegatied to the respondent No : 1 herein vide aforesaid item No : 22 of the

decision XIII of the Board of Directors of the J&K State Road Transport Corporation taken in its meeting held on 28fh 29th and 31st of January,

1987. The impugned order has been passed by respondent No : I purportedly under Article 226 (2) of the J&K Civil Service Regulations :

It is submitted by the petitioners that in the face of an express provision regarding the premature retirement of the employee of the corporation in its

regulations, the reference to J&K Civil Service Regulations by respondent No : 1 is totally illegal and without jurisdiction.

iii) That in any case under Article 226 (2) of the J&K Civil service Regulations, the necessary satisfaction regarding the existence of public interest

has to be arrived at by the Governor of the state. There has been no amendment in Article 226 (2) of the J&K Civil Service Regulations in this

regard. In the impugned order of premature retirement the requisite satisfaction regarding the existence of public interest is shown to have been

arrived at by the respondent No : 1, who has no such power under Article 226 (2) of the civil Service Regulations of the state. As such, the

impugned order of forcible retirement of the petitioners is without jurisdiction and violative of the provisions of Article 226 (2) of the J&K Civil

Service Regulations.

iv) That since the power to retire an employee prematurely is vested with the respondent No : 1 only under the aforesaid item No : 22 of decision

XIII, which in itself is illegal and unconstitutional, therefore, the impugned order of his premature retirement passed by respondent No : 1 against

the petitioner is also liable to be quashed as illegal and unconstitutional.

v) That, even assuming without conceding that the respondent No : 1 could issue an order of premature retirement of the petitioner under Article

226 (2) of the J&K Civil Service Regulations, hereinafter referred to as the Regulations, it is submitted by the petitioner that a Govt. Servant can

be retired from service under the aforesaid Article after he has completed 22 years of service or on attaining 48 years of age. The necessary legal

conditions to be satisfied before a Government servant can be compulsorily retired under the said Article of the Regulations, in the humble

submission of the petitioner are as follows :

a) That the Government should obviously form an opinion about the compulsorily retiring a Government servant who has completed the prescribed

qualifying service or who has attained the age of 48 years.

b) That the objective opinion of the Government in public interest should require and induce the Government to pass such an order.

c) That the objective opinion of the Government while making such an order should be based in public interest.

d) That in such an eventuality the Government servant is entitled t(c) three months notice or three months pay and allowance in lieu of notice and;

e) That the officer so retired shall be entitled to pensionary benefits admissible under rules on the basis of his qualifying service.

It is submitted by the petitioner that for proper exercise of powers under Article 226 (2) of the Regulations, it is necessary that opinion of the

Government should be based on objective satisfaction of the material which is the service record of a Government servant and that the opinion

should not be based on extraneous, collateral and alien considerations. The opinion and action of the Government should be inspired by reasons

and should be relevant to the intended action. The action should be motivated only by public interest and not by any other oblique motive. In other

words, the Government should be genuinely satisfied on the over all objective assessment of service record of the Government servant that such an

action is in the public interest. The action of the Government should not be arbitrary or unreasonable and should be free from malafides and other

such considerations constituting malice in eyes of law. In case the order passed under Article 226 (2) of the aforesaid regulations is violating any of

the conditions stated hereinabove, the order would be liable to be quashed.

It is further submitted by the petitioner that such an action of the Government is not immune from challenge before a court of law. The court is

competent in law to take a minimal view of the material constituting the basis of the Government action. Such examination must convince a

reasonable man about the genuineness of the Govt. action. It is only then that the action of the Government under the Regulation aforestated can be

said to be in accordance with law. The decision of the Government before the order is actually issued under the aforesaid Regulation should be

bonafide and the requisite opinion should have been formed on the basis of the relevant material and the decision should not be based on collateral

grounds nor should the same be arbitrary.

It is the positive case of the petitioners herein that the impugned order is arbitrary, and is based on collateral/extraneous/alien considerations and

is an act of colourable exercise of power and lacks in good faith The impugned order is not based on the objective consideration but emanates

from subjective considerations. The opinion framed by respondent No : 1 herein is not based on the service record of the petitioners. Had the

respondent No : 1 considered the service record of the petitioners, it was not legally and factually possible for the respondent No : 1 to pass the

impugned order, because no reasonable person could on the basis of said service record of the petitioners arrive at tee conclusion that the

petitioners were either inefficient or corrupt. As already detailed out in the preceding paras hereinabove, the petitioners have a clean record of

service and no adverse remarks have been ever communicated to them. The petitioners have all along earned excellent and good remarks from

their superiors. In the circumstances the petitioners have every reason to believe that no relevant material was considered by respondent No: 1

while passing the impugned order against the petitioners. The impugned order is, therefore, liable to be quashed on this ground alone.

The petitioners pray that the orders of their premature retirement may be quashed by a writ of certiorari and the respondents be directed by a

writ of mandamus to treat them in service and allow them all the consequential benefits and also declare the. powers conferred en respondent No :

1 under item 22 of the Decision No : XIII taken by the Board of Directors of respondent No : 2 as illegal and unconstitutional.

The respondents have filed the counters. It is submitted therein that the petitioners are subject to the rules and regulations of the Corporation and

such other rules and regulations of CSR, as have been adopted by the Corporation. Ipso facto, the provisions of CSR do not apply to

Corporation in toto. They apply only to the extent as are specifically made applicable by the Board of Directors, since, the said Board in its

meeting held on 1881983 have adopted CSR and Article. 226 (2) thereof, therefore, the retirement of the petitioners was validly effected. It is

further submitted that the efficiency of the petitioners was impaired as per the service record, therefore, the order impugned was in consonance

with the object sought to be achieved under Article 226 (2) of the CSR. According to them, the continuance of the petitioners in service was not in

the public interest. It is submitted that the impugned order has not entailed forfeiture of the petitioners on the basis of qualifying service and nor was

any question of ill will involved. As regards application of SRO of 1987 it is submitted that unless made applicable to the Corporation, it will not

ipso facto apply to its employees. It is further submitted that respondent No: 1 has passed the impugned orders after satisfying himself of all the

requirements. He has formed the opinion about compulsory retiring the petitioners after taking into consideration all aspects of their service career,

particularly their performance. According to them the public interest has been the motive in passing the said orders. Specific complaints about their

performance were received by the respondent No : 1.

It is the positive case of the respondents in their counter that an employee of the Corporation including the petitioners could be retired

prematurely if he has rendered 22 years service in the Corporation or has attained 48 years age without there being any allegations of corruption or

dishonesty or inefficiency against him. According to them the petitioners were not performing the duty to the satisfaction of the respondent No: 1

which was detrimental to public interest.

In the counter, it is not denied that Ice qualifying service of Mohammed Ismail wani and Mohammed Amin Khan, the petitioners in writ petition

No 916 of 1987 is more than 25 years or their age is 48 years or more. In short, it stands conceded that their qualifying service is less than 22

years and their age also less than 48 years.

I have heard the learned counsel for the parties at great length and have gone through the file thorughly. During the course of argilements the

learned counsel for the respondents were directed to produce the service record of the petitioners in the court for its perusal The service record

was, no doubt, produced and it was submitted by Mr. B. A Rather that there was no adverse entry against any of the petitioners in it. He made it

clear at the Bar at the very outset that he petitioners have not been retired prematurely on the basis of bad record of service.

Mr. B A Rather has fairly conceded, and rightly at the Bar that the writ petitioners in writ petition No : 916 of J987 have been wrongly and

.illegally retired prematurely. He has no objection in quashing the orders of their retirement.

Mainly, two questions are involved in all the writ petitions which are to be determined by this court.

1) Whether Article 226 (2) of the J&K CSR, is applicable to the Jammu & Kashmir S T R C, if so, whether it gives any power to the Managing

Director of the said corporation to pass any order hereunder against its employees ?

2) In case the reply to question No : 1 is in affirmative, whether the Managing Director has exercised his power lawfully while passing the

impugned orders ?

In respect of both the questions set up above, the learned counsel for the parties have advanced their arguments adhering to the stands taken by

them in their pleadings.

It was argued by Mr. Beg, learned counsel for the petitioners, that Article 226 (2) of the CSR was not applicable to SRTC at all and the

SRTC has taken a separate and a distinct decision in the behalf, which is decision No : X!II3rd Meeting of the J&K SRTC Board of Directors

held on 28th, 29th and 31st January, 1987, whereunder the respondent No : 1 has been given the powers to retire any corporation servant.

According to him, Article 226 (2) of the CSR and the decision of the Board mentioned above are two different concepts, having different

connotations, scope and extent The power under Article 226 (2) can be exercised only by the Government and no other authority. The Managing

Director of the Corporation is no authority there under to exercise such power and nor has any such power been conferred on him. Moreover, for

exercising power there under the employee against whom the order is to be passed, must have attained 48 years of age or put in 22 years of

qualifying service. While exercising power under the decision of the corporation, as mentioned above, no such restrictions were attached with it. In

the said decision, the restriction of age bar or qualifying service has not been laid down anywhere.

Mr. Beg has further submitted that the decision of the Corporation mentioned above, has no approval of the Government as envisaged under

section 45 of the Road Transport Corporation Act, and, therefore, the very decision is inoperative and illegal. That being so, according to him, any

action taken in terms of the said decision is unconstitutional. The service conditions of the employees of the Corporation cannot be changed by the

Corporation itself by passing resolutions. If any such change is to be made, it is to be made by a Regulation as envisaged under section 25 of the

Act, and that too, with the previous consultation of the State Government. Regulations can be passed by the Corporation for its day to day

business, as provided u/s 5 of the Act. Similarly, the Government can make rules for the Corporation u/s 44 of the Act giving effect to provisions

of the Act. These rules and regulations have already been framed and the Jammu and Kashmir Road Transport Corporation Employees Service

Regulations, 1979, given effect to. Rule 28 of the said Regulation provides for compulsory retirement of the employees of the Corporation, but it

does not lay down that it can be done only in the public interest. The existence of the public interest is not necessary for exercising power under

Rule 28. The compulsory retirement envisaged by the said Rule is quite different from the premature retirement provided under section 226 (2) of

the CSR. These are two different concepts. According to him, except Rule 28 there is no other provision in the said Regulations for premature

retirement and nor any provision is there for giving of notice for the same.

Mr Beg argued that the Decision No: XIII supra was taken by the Board in 1977, and by no streteh of imagination can it have the force of a

Regulation. After coming into force of the J&K SRTC Service Conditions Regulations, 1979, the said decision stood superseded and has lost its

validity.

Mr. B A. Rather the learned counsel for the Corporation has argued that the petitioners after exercising their option to be the employees of the

SRTC, have ceased to be the Govt. Servants, and, therefore the Managing Director has the power to pass the impugned orders against them.

According to him, the petitioners have retained the option only for pensionary benefits under the Government Rules, and only to that extent

Corporation Regulations are not applicable to them. He submitted that no instructions were ever issued by the Govt. under section 34 of the Act

for not exercising power by the Managing Director to retire the employees of the Corporation prematurely, and therefore, he has the power to do

so. According to him, the very exercise of option by the petitioners to be the employees of the SRTC has given the jurisdiction to the Corporation

to retire them, although there is to provision for premature retirement in the regulations of the Corporation, but the fact that the petitioners have

opted to retain the pensionary benefits under Act Govt. rules, the Corporation, therefore, got the power to retire them under the said Rules. His

further contention was that the petitioners have exercised the option not only for pensionary benefits under the Government Rules but also for their

retirement under the said Rules. As they themselves opted for their retirement also under the Govt. Rules, the Corporation therefore, could retire

them under the said Rules in terms of section 2 6 (2) of the CSR.

Mr. Rather urged that the qualifying service of petitioners except two of then, was more than 22 years and they have attained 48 years age

when they were retired prematurely, and that they were allowed pensionary benefits under the Government Rules, therefore, none of their legal

rights, much less, any fundamental right has been infringed, and that being so, the action of the corporation in passing the impugned orders was not

justiciable. According to him, it was the exclusive satisfaction of the respondent No : I that the retirement of the petitioners was deemed to be in the

public interest, and the court had no power to go into the question, He submitted that it was cot necessary for respondent No : 1 to the any

reasons for Inking any such decision It was his subjective satisfaction that the premature retirement of the petitioners was in the public interest

which was important. Mr. Rather made it clear that there was nothing adverse in the service record of the petitioners and that the impugned orders

have not been passed against them on that basis. According to him, the respondent No : 1 was, of the opinion, that it was in the public interest to

retire them, and therefore, he has passed the orders impugned in accordance with the Rules.

Mr. Ronga Government Advocate appearing for the State of Jammu & Kashmir submitted that the respondent No : 1 has the power u/s 226

(2) CSR to retire the petitioners and has exercised his power lawfully. According to him, it was in the public interest to retire the petitioners as the

respondent No : 1 wanted to have new talent and new techniques for the advancement and progress of the corporation.

In order to appreciate the argument of the learned counsel for the parties, it would be advantageous to notice the relevant provisions of law,

referred to by them. First of all, Article 226 (2) of the C. S. R. is reproduced below :

226(2) ;

Notwithstading anything contained in these Regulations Government may, if it is of the opinion that it is in public interest so to do"" require any

Government servant other than the one working on a post which is included in schedule II of these rules to retire at any time after he has completed

22 years or completed 44 six monthly periods of qualifying service or on attaining 48 years of age. provided that the appropriate authority shall

give in this behalf a notice one of the forms prescribed in annexes A and B hereto as the case may be to the Government servant of not less three

months before the date on which he is required to retire or three months pay and allowances in lieu of such notice Such a Government servant shall

be granted pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement.

The pare perusal of this Article shows that following are the essential ingredients to be satisfied for invoking the power given there under :

i) the power is only to the Government and to no other authority :

ii) The Government has to form an opinion that it is in the public interest to pass any order there under:

iii) the member of the service must have completed 22 years of qualifying service or the age of 48 years ;

iv) three months previous notice in writing is given to the Govt. Servant concerned before the order is passed against him, or in the alternative,

three months and allowances in lieu of such notice.

Here, I would like to mention as to what is the importance of the public interest as referred to in the above cited Article, and how it has been

defined. In AIR, J980, SC, 1994, it has been held that the expression in the context of premature retirement has a reference to cases where the

interests of public administration require the retirement a Govt. Servant who with the passage of years has prematured/ceased to possess the

standard of efficiency, competence and utility called for by the Government service to which he belongs. The court has to be satisfied that it is

service record which is the basis of the order and that the officer is corrupt and/or he has ceased to possess standard of efficiency and competence

and/or is of no utility to the service to which he belongs. It is upon the satisfaction of the said conditions that the order can be construed as being in

the public interest. Otherwise, the order is by way of punishment which can be imposed only after complying with the requirements of Article 311

of the Constitution of India read with section 126 of the Constitution of the J&K State,

The order of compulsory retirement in public interest could only be made when the work of the member of the service was unsatisfactory or

his health was indifferent or defective for discharging duties or he has outlived his utility or his integrity is doubtful or such other relevant

considerations. An order of compulsory retirement without any material to support the opinion of the Government that it was in the public interest

to retire the member of the service, would be invalid. .When such an order is challenged, it is the duty of the Government to satisfy the court by

production of the material that it formed the opinion that it was not in the public interest to continue the petitioners in service on the basis of some

material which could be considered the relevant material. It is always open to the court when a challenge is brought before it to see that the order is

based on appropriate opinion, the bonafide formation of the same, and the opinion is based on consideration of relevant and not collateral or

extraneous material. An order not based or an order based on opinion on irrelevant considerations or illegal material would be ultra vires of Article

226 (2) of the Regulations.

In exercise of its jurisdiction under Article 226 of the constitution, the court cannot, as such, consider the question about the sufficiency or of

the material before the competent authority in support of the orders of compulsory retirement in public interest of a member of service, but the High

Court can and must enquire as to what was the material in support 'of the impugned conclusion of compulsory retirement. There may be cases of

no material at all when the infirmity in the decision would be writ large on the records. There may be cases where the material to support the

determination of public interest was legally non existent, though factually found in the service record.

Now, coming to the first question as set up above, as to whether Article 226 (2) CSR is applicable to SRTC or not which in turn would

determine the fate of the casee either way. It would be profitable to notice section 45 of the Road Transport Corporation Act in the first instance,

which is reproduced below :

Power to make regulations : (1) A corporation may with the previous sanction of the State Government make regulations, not inconsistent with

this Act and the rules made there under, for the administration of the affairs of the corporation.

(2) In particular and without prejudice to the foregoing power, such regulations may provide for all or any of the following matters, namely :

(a) the manner in which, and the purposes for which, person may be associated with the (Board) under section 10;

(b) the time and place of meetings of the (Board) and the procedure to be followed in regard to transaction of' business at such meetings;

(c) the conditions of appointment and service and the scales of pay of officers and other employees of the Corporation other than the Managing

Director, the Chief Accounts Officer and the Financial Advisor or as the case may be, the Chief Accounts Officer cum Financial Adviser.

From the reading of the section, it is clear that the Board is empowered to make regulations of service matter including matters relating to

conditions of appointment and service and pay scale of its officers except those who are mentioned in section 45 (2) (c). Such regulations are valid

only if made with the previous sanction of the State Government.

It is the positive case of the respondents that the 'Board of Directors' in their 26th Meeting held on 1881983 have adopted J&K CSR and

Article 226 (2) of the same. They have produced the resolution before the court,' which forms Annexure ""A"" to their counter, and is reproduced as

below :

Sub: Bringing of J&K SRTC Employees Service Regulations at par with State Government Rules Board Decision No : 26. 2 (IV) of 26th,

Meeting.

As approved by the Board of the Corporation in their 26th meeting held on 1881983 vide item No: 26.2 (IV) it is ordered that except for

pensionary and other benefits as provided hereunder the J&K SRTC service Conditions Rules and Regulations of 1979 shall be deemed to have

been amended to the extent of Rules applicable to State Government Employees.

The permanent employees of the erstwhile GTU who opted for Corporation Services on 151979 shall however be governed by the

pensionary benefits accruing to them as per the option given to them in terms of the Government orders,

The temporary employees of the erstwhile GTU who opted for Corporation services and employees appointed after 191976 shall be

governed by the gratuity rules of the Corporation as laid down in Chapter of the S R T G Service Rules of 1979 read with order No:

JKSRTC/pension75/5445 dated 2nd of March, 1982.

Provided further that the Medical Rules applicable to the SRTC employees as per the Wage Committee Reports shall continue to be in force

instead of medical Rules applicable to the State employees.

Provided further that Rule 20, 31 and 32 and the Discipline and Appeal Rules from Rule No: 143 to 158 of SRTC Service Rules and

Regulations of 1979 shall continue to be in force as provided in the said Rules and Regulations.

This shall have effect from 1881983.

Sd/...A. Majid

Managing Director,

JKSRTC Srinagar.

The bare perusal of Annexure ""A"" to the counter shows that it is nothing but a resolution passed by the Board of Directors. Manifestly, by

bringing at par the J&K SRTC Employees Regulations with the State Government Rules, this resolution changes the service canditions of the

employees of the Corporation. Adoption of Article 226 (2) would also change the service conditions of its employees. That being so, this

regulation could not have a statutory force, unless it has previous sanction of the State Government as envisaged under section 45 of the Act.

Admittedly no such sanction has been .Sought by the Corporation and nor given by the Government, and, therefore, this resolution has no legal

force whatsoever. Had the State Government given its sanction to this resolution, it could have become a Regulation in terms of section 45 supra.

In absence of such sanction it is an invalid piece of resolution having no binding and legal force.

It being a major policy decision, the Board had no jurisdiction to pass such a resolution without previous sanction of the State Government It

directly related to conditions of service of the employees which could not be changed without the previous sanction of the Government.

The respondents also base their case on Annexure ""B"" to their counter, which, according to them, forms the source of power to respondent

No : 1 for premature retirement of the petitioners. It would be proper to reproduce the same as under :

JAMMU AND KASHMIR STATE ROAD TRANSPORT CORPORATION SCHEDULE OF POWERS DELEGATED TO CHAIRMAN,

VICE CHAIRMAN AND MANAGING DIRECTOR J&K S R T C.

(Decision No : XIII3rd. Meeting of the J&K SRTC Board of Directors held on 28th, 29th and 31st January, 1977).

S, No. Nature of/Chairman Vice Chairman/Managing Director, power:

1.

2.

3.

Retirement Full powers in respect Full powers in respect of all Officers/employ all Officers/employees workees working on posting on posts of

which he is of which he is the app the appointing authority, pointing authority. Not withstanding anything withstanding anything contained in service

Regulations contained in service the appointing authority Regulations the appointing shall if he is of the authority shall if opinion that it is in public he

is of the opinion interest to do so, have the that it is in the public absolute right to retire an interest to do so, have Corporation servant by the

absolute right to giving him notice of not retire any Corporation less than 3 months in servant by giving him ting or three months pay notice of less

than 3 and allowances in lieu of months in writing or 3 such notice, months pay and allowances in lieu of such notice.

The reading of this annexure shows that the Board of Directors in its meeting held on 2829 and 31st of January, 1977, resolved to give the

power to the Managing Director (respondent No : 1 ) to retire the employees of the Corporation. Firstly, this decision of the Board stands

superseded on coming into force of the Jammu & Kashmir SRTC Service Conditions Regulation, 1979, Secondly it confers an unguided and

unfettered discretion on respondent No : 1 to require an employee. No criterion or guide lines with respect to the age limit or the tenure of service

of the concerned employees have been laid down in it, as laid down in the J&K CSR. That being so, it is violative of Article 14 of the Constitution

of India. (Thirdly, the) impugned orders have been passed, purportedly, under Article 226 (2) of the CSR read with the above resolution of the

Board. In the face of an express provision of compulsory retirement in the Regulations of the corporation, the reference to J&K CSR, is illegal and

without jurisdiction. Fourthly, under Article 226 (2) supra the necessary satisfaction regarding the existance of public interest to has be arrived as

by the Government. There has been no amendment in Article 226 (2) CSR in this regard. In the impugned orders, the requisite satisfaction is

shown to have been arrived at by the respondent No : 1 who has no such power under Article 226 (2) supra.)

It was argued that even if there was no regulation framed in accordance with section 45 (?) of the Act in regard to premature retirement of the

employees, the Govt. was competent under section 34 of the Act to give such directions. Section 34 of the Road Transport Corporation Act is

reproduced below, for ready reference :

Directions by the State Government : (1) The State Government may after consultation with a corporation established by such Government

give to the Corporation general instructions to be followed by the corporation, and such instruction may include directions relegating to the

recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of

v its profits or stocks.

(2) In the exercise of its powers and performance of its duties under this Act, the corporations shall not depart from any general instructions issued

under subsection (1) except with the previous permission of the State Government.

From the reading of this section, it appears, the state Government can issue instructions/directions about the matters of recruitment etc, and

they are to be followed by the corporation. No regulation can be made u/s 45 which has effect of contravening the instructions issued u/s 34 of the

Act. The corporation cannot frame regulations contrary to Government instructions In fact, sections 34 and 45 of the Act are to be read together.

Moreover, Article 226 (2) CSR cannot ipso fact be made applicable to the employees of the corporation when they have their own regulations

providing for compulsory retirement. The Jammu & Kashmir Road Transport Employees service Regulations 1979, have been framed in

accordance with the Road Transport corporation Act and have sanction of the state Government, They conform to section 34 of the Act. There is

no provision therein for premature retirement of its employees, nor any regulation has been framed there under incorporating Article 226 (2) of the

CSR, for purpose of retiring its employees prematurely in the public interest. Under Rule 28 of the Regulations, the corporation is competent to

retire its employees compulsorily on the date of their completion of 55 years of age unless specifically permitted by the competent authority to

continue in service for a specified period thereafter, but he must in no case, be retained beyond the age of 60 years.

From the aforesaid discussion, it is thus clear that there is no valid regulation framed under section 45 (2) (c) of the Road Transport

corporation Act which would empower the respondent No. 1 to invoke the aid of Article 226 (2) of the CSR for purposes of retiring prematurely

the petitioners The decision of the Board concerned taken for the purpose is without any sanction from the state Government, and therefore, bad

and inoperative in law. That being so, the respondent No. I has no power to retire any employee of the corporation under Article 226 (2) of the

CSR. The said Article Is, therefore, held not to be applicable to the Jammu & Kashmir R. T. C. The petitioners are employees of the corporation

and they are to be dealt with by the J&K R. T. C. Service conditions Regulations and not by the J&K CSR, unless of course, any provision from

the CSR, is adopted by the corporation by framing a valid regulation under section 45 (2) (c) of the Road Transport corporation Act, and has a

previous sanction of the state Government.

After holding that Article 226 (2) supra was not applicable to J&K SRTC, the argument of Mr. Rather falls to the ground that the option

exercised by the petitioners to be employees of the corporation has ipsofacto given power to respondent No. 1 to retire them. The respondent

No. 1 cannot exercise any power under the CSR, unless any provision thereof is validly adopted by the corporation with the previous sanction of

the state Government. The argument of Mr. Rather that retirement/pensionary benefits retained by the petitioners under the Government Rules

would also include their retirement as also premature retirement under the Government Rules, is also repelled being without any force The

examination of Annexures P1 and P2 to the writ petition and their combined reading makes it manifestly clear that the erstwhile G. T U, Employees

who, opted for their absorption in the J&K RTC, retained only the pensionary benefits under the Government Rules. It is cot correct to say that

they had also opted to be retired under the Government Rules.

I think, the other arguments of Mr Rather need not be answered after holding that Article 226 (2) CSR was not, all applicable to the J&K R.

T. C. His arguments revolved round the application of Article 226 (2) supra to the corporation. That being so, I need not deal with the second part

of question No. 1 set up above and nor with the question No. 2 Similarly, in the facts and circumstances of the case, the question of existence or

otherwise of public interest in the premature retirement of the petitioners also is not to be gone into. The resolutions decisions contained in

Annexures 'A' and 'B' to the counter have no legal force, as they are without any sanction by the State Government In terms of section 45 (2) (c)

of the Act. Both the resolutions/decisions relate to service conditions of the employees of the corporation and being major policy decisions, could

not become valid without sanction by the State Government. Moreover, the decision contained in Annexure 'B' to the counter stands superseded

by the J&K R T C. service conditions Regulations, 1979.

In these circumstances, the impugned orders in the above mentioned writ petitions are liable to be quashed as being unconstitutional and

without jurisdiction. The said orders would not affect the rights of the petitioners to be in continuous service of the corporation, as if no such orders

were passed against them.

The result is that the writ petitions are allowed, and the impugned orders are hereby quashed. The petitioners shall be deemed to be in the

continuous service of the corporation with all consequential benefits. The writ petitioners shall be paid the costs also. assessed at Rs. 500/ in each

petition, to be paid by the corporation.