ASHOK SINGH Vs. CHIEF SECRETARY, J&K GOVT

JUDGEMENT

(1.) DR . Ashok Singh, a citizen of India and a resident of Banda, Uttar Pradesh, who was employed as Deputy Director in the Department of Geology and Mining has moved this court under Article 32 2 -A of the Constitution of India as applied to the State of Jammu and Kashmir and Section 103 of the Constitution of the State for a writ in the nature of Mandamus directing respondents Nos. 1 to 4 to withdraw and/or cancel and/or forebear from giving effect to the order dated 2nd May, 1969, terminating his services and to allow him to continue as Deputy Director, Geology and Mining.

(2.) THE case of the petitioner is that after obtaining Msc. degree in Geology from the Banares Hindu University in 1953 he underwent an advanced course in Geology and Mining and obtained a doctorate from Clausthal Mining Academy, West Germany and returned to India in 1958s, that he was appointed as Economic Geologist in National Council of Applied economic Research in Nov. 1958 and continued as such till 17th April, 1961 when on the recommendation of the Government of India, Ministry of Mining and Fuel, he was taken as Deputy Director in the Department of Geology and Mining of the State vide Government Order No, 126/MNC/61 of the even date, that the terms of his appointment were incorporated in the agreement dated 11th April, 1961, entered into between him and the Government of Jammu and Kashmir, that the said agreement which was to ensure for three years expired on 21st April, 1964 that on the expiry of the said agreement the Government of Jammu and Kashmir did not enter into any further agreement with him but allowed him to carry on work treating him as a regular temporary officer as envisaged by Order No. 35/ MNG/65 dated 17th February 1965, according to which all gazetted and non -gazetted techniciants employed in the department through the Public Service Commission were brought on the regular temporary basis from the date of their appointment that the petitioner continued to work uninterruptedly till the 9th July, 1966, when he was selected by the Government of India and sent by the State Government on deputation to France to qualify further in higher research and technique in the field of bauxite and bentonite deposits of Jammu Province, that while recommending his application for foreign training the Government of Jammu and Kashmir did not take any objection to his i.e. the petitioners describing himself as regular temporary in the questionnaire and obtained an undertaking from him to serve the State for three years after completion of the training, that he returned from France after successfully completing the training and in terms of the undertaking given by him joined the service of the State Government on 3rd October, 1967, that though the deputation was to be treated as one under Government Order No, 351 of 1967 dated 6th June, 1967 read with clause 5 of the agreement he was not paid any dues for 21 months including the period of his foreign training that the representation made by him in that behalf did not bear any fruit and ultimately the Government pressurised him to sign a fresh agreement that as there was no service agreement since 21st April, 1964 when his first agreement expired and he was considered as regular temporary in the -State employment he lodged a protest against the attitude of the State Government trying to change his service conditions but was told that the said agreement was only a formality meant to meet an audit objection and to secure the release of his salary which had been with -held by the Accountant General, that the agreement which was thus signed by him in good faith on 13th June, 1968, was illegally given retrospective effect from 21st April, 1967 that differences cropped up between him and respondent No. 3 as he pointed out some "grave" flaws in the plans and proposals submitted by the said respondent which in his i.e. petitioners opinion were bound to cause huge loss to the State Government, that immediately thereafter the said respondent vide his letter No. PA/ DGM/491 -492 dated 7th March, 1969, ordered him to hand over the charge of the files and records to Shri R L. Kaul, a very junior hand, which he complied with, that the said order of the respondent was illegal, ultra -vires and mala -fide and in spite of several applications and reminders a copy of the same was not supplied to him, that the State Government gave him notice No. 144 -MNG/61/ii dated 2nd May 1969, terminating his services under clause 34 of the agreement of the service which was received by him on 12nd May, 1969 and that he submitted his reply to the notice but the same was not acknowledged. It is contended by the petitioner that the aforesaid order terminating his contract of service is invalid having been passed against him by way of penalty on account of his pointing out certain flaws and fallacies in the proposals and plans submitted by the respondent No 3 which was evident from the correspondence forming Annexure "to the petition and the warning given to him for the alleged direct representation to the Government in regard to the revision of his grade and pay, that the petitioner being on regular temporary basis by virtue of Government Order No. 35 MNG dated 17th Ferbuary 1965, his service could not be terminated by invoking the terms of the contract which had ceased to apply to him by virtue of the aforesaid order, that his service could also not be terminated as his regular temporary status was equivalent to quasi permanent status and he had put in more than three years service in the normal budget scheme of the Directorate of Geology and Mining as opposed to planned budget scheme of the said directorate that his services could not have been terminated except in accordance with rule 6 of the Jammu and Kashmir Civil Service Temporary Service Rules, 1961, that in any event the contract of his service had to be read along with the bond which was got from him at the time of his deputation for foreign training and his services could not be terminated before the 4th October, 1970, that he has been discriminated against and hiss fundamental rights under Articles 14 and 16 lave been violated ash according to the Government order all persons on contract service had been made regular temporary, and that the impugned order being in essence an order of dismissal or removal from service within the meaning of Rule 11 of the Central Civil Services Classification, Control and Appeal, Rules, is illegal, unconstitutional and contrary to the principles of natural justice as it has been passed without following the procedure set -forth in the Central Service Regulations and without giving him an opportunity as envisaged by Article 311 of the Constitution of India. 4 The petition has been resisted by the respondents inter -alia on the grounds that the petitioner was employed on contractual basis, that after the expiry of the initial period of three years specified in the agreement dated 11th April 1961, the petitioners services were extended for another term of three years vide Government Order No. 44/MNG/67 dated 18th March, 1964 on the same terms and conditions on which he was originally appointed under Government Order No. 126/MNG/.61, that the agreement dated 13th June 1968 was executed by the petitioner not under any duress or mis -representation or merely as a procedural formally but of his own free will pursuant to Govt Order No 425/MNG/68 dated 14th May, 1968 and as such was perfectly valid and binding upon him and it was not open to him to challenge the same after an inordinate delay of one year and specially in a writ petition, that the petitioner cannot be deemed to be a regular temporary officer and has never been created as such that Order No. 35/Mining65 dated 17th February 1965, did not apply to the petitioner nor was he entitled to the benefit thereof as he was appointed directly on contractual basis and not on the recommendation or advice of the Public Service Commission, that the petitioner all along been serving on contractual basis and the terms and conditions of his service were governed by the agreement dated 13th June, 1968, that the termination of the petitioners service which was validly effected according to the contract did not amount to imposition of penalty or punishment, that the impugned order was neither illegal nor mala -fide nor was it violative of Articles 14 or 16 of the Constitution of India or Section 126 of the State Constitution Corresponding to Article 311 of the Constitution of India and was passed by the competent authority in a proper manner and since the petitioner did not file any review application or avail of the other remedy available to him, the petition was not maintainable. 5 Respondent No. 3 has also in the course of a separate affidavit filed by him supported the stand of the State Government and had denied the allegations and imputations of mala -fides leveled against him. 6 At the hearing of the petition, Mr. A. P. Chatterjee appearing on behalf of the petitioner has urged the following points: - i That the termination order is bad because it is not made by the Governor of Jammu and Kashmir. ii That the termination is in essence by way of penalty and has resulted in deprivation of the benefits that had accrued to the petitioner and as such Section 126 of the State Constitution Corresponding to Article 311 of the Constitution of India was applicable to the present case. iii That in any event the petitioner had acquired a permanent or quasi -permanent right to the post of the Deputy Director Geology and Mining. iv That the contract is to read along with the bond executed by the petitioner at the time of his deputation to France for higher training in the field of Bauxite and Bentonite deposits and the petitioner had a right to serve the Government for three years which has been taken away. 7 Mr. Raina appearing on behalf of the respondents has on the other hand contended that since contract relating to service cannot be specifically enforced by means of a suit in view of Section 21 b of the Specific Relief Act, the petition is not maintainable and the petitioner could at best have sued for damages, that the impugned order is in confirmity with the requirements of Section 45 of the Constitution of the State and Rules 12 and 13 of the Jammu and Kashmir Government Business Rules, that the petitioners service was governed by the terms and conditions contained in the agreement dated 13th June, 1968, voluntarily executed by him and service was validly terminated according to the agreement, that the impugned order was nor passed by way of penalty and does not amount to dismissal or removal from service as conceived by Section 126 of the Constitution of the State or Rule 3 of the Jammu and Kashmir civil services Classification, Control and Appeal, Rules, that the petitioner was not employed on regular temporary basis and had not acquired a permanent or quasi permanent right to the post of the Deputy Director, Geology and Mining. 8 Before dealing with the various contentions raised by Mr. Chatterjee let me dispose off the first objection raised by Mr. Raina that since the relief claimed by the petitioner cannot be given even in a suit in view of the restriction contained in Section 21 b of the Specific Relief Act, the remedy if any, of the petitioner lay in a suit for damages for wrongful termination of employment and not in a petition for a writ declaring the employment unlawful and a consequential order for restoration to service. A similar contention raised in S. R. Tewari Vs. The District Board, Agra AIR 1964 Supreme Court, 1680 was repelled by their Lordships of the Supreme Court in the following words: - "Under the common law the court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well recognized exceptions. It is open to the court in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ" 9 It was further pointed out by their Lordships in that ruling that the powers of a statutory body are always subject to the Statute which has constituted it and must be exercised consistently with the Statute and the courts have, in appropriate cases, the power to declare an action of the body illegal or ultra -vires even if the action relates to determination of employment of a servant. 10 In view of the above unequivocal enunciation of law, I find myself unable to accede to the contention of Mr. Raina and hold that the fact that a person may have a right to claim damages for wrongful termination of his service does not deprive him of his right to have a declaration that service was unlawfully terminated and in an appropriate case the court may command that the person be treated as lawfully in service. 11 Let me now proceed to consider each one of the grounds on which the impugned order has been challenged on behalf of the petitioner. 12 Regarding the first contention raised by Mr. Chatterjee I may at once observe that there is no substance in it. A reference to the agreement dated 13th June 1968 between the petitioner and the Governor of the State would show that it was executed on behalf of the Governor by the Secretary to Government, Industries and Commerce Department and clause 3 4 thereof empowered the State Government or their authorised officer to give three calendar months notice in writing to the petitioner for terminating his service. Now under Section 45 1 of the Constitution of Jammu and Kashmir all executive action of the Government is required to be taken in the name of the Governor or of the Government of Jammu and Kashmir. Sub -section 2 of that Section provides that orders and other instruments made and executed in the name of the Governor or the Government of Jammu and Kashmir shall be authenticated in such manner as may be specified in the Rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor or as the case may be by the Government of Jammu and Kashmir. According to Rule 13 of the Rules of Business framed under Section 43 and Sub -section sec of Section 45 of the Constitution of Jammu and Kashmir, every order or instrument of the Government of the St ate is to be signed either by the Secretary or an Additional Secretary, a joint Secretary, an Additional Joint Secretary, a Deputy Secretary, or an Under Secretary to the Government or such other officer as may be specially empowered in that behalf and such signature is to be deemed to be proper authentication of such order or instrument. 13 In the present case the impugned order has been signed by Shri G M. Mir Secretary to Government, Industries and Commerce Department. It ex -facie shows that it was issued for and on behalf of the Governor of the State. Having been so signed and issued, it has according to Rule 13 of the Jammu and Kashmir Government Business Rules to be deemed to have been properly authenticated and its validity cannot, in my opinion, be questioned. 14 In State of Bombay Vs. Purushottam Jog Naik, 1952 SCR, 674 AIR 1952 SC 317, where the order under consideration was expressed to be made in the name of the Governor because of its saying "by order of the Governor", their Lordships of the Supreme Court observed that the Constitution does not require a magic incantation which can only be expressed in a Set formula of words and what the court has to see is whether the substance of the requirements is there. 15 Again in P. Joseph John versus State of Travancore Cochin 1955 SCR, 1011 AIR 1955 SC 160, the Supreme Court held that the notice signed by the Chief Secretary of the State and expressed to be on behalf of the Government, giving opportunity to the petitioner to show cause against the action proposed to be taken against him substantially complied with the provisions of Article 166 of the Constitution of India. 16 In State of Bihar Vs. Rani Sonabari Kumari, AIR 1961 Supreme Court, 221, where an order of the Government namely a notification under Section 31 Bihar Land Reforms Act, was expressed to be made in the name of the Governor and was authenticated by the Additional Secretary to Government as prescribed by Article 16 2 of the Constitution of India the Supreme Court observed that the validity of the order or instrument could not be called in question on the ground that it was not an order or instrument made or executed by the Governor. 17 Again in Mohamad Yakub Vs. State of Jammu and Kashmir, AIR 1968 SC 765 where the order in question was in the form required by Section 45 of the Constitution of Jammu and Kashmir their Lordships of the Supreme Court held that the presumption must be made that the order was validly passed unless the petitioners could show that it was not passed as required by law. 18 The rulings namely 1959 SCR, 1424, AIR 1963 SC 395 and AIR 964 Calcutta, 255, cited by the learned counsel for the petitioner in support of his contention are all distinguishable. 19 In Chaiomall and Sons V. The State of Delhi and ors, 1959 SCR 1424, the order in question did not purport to be made in the name of the Chief Commissioner and could not therefore be treated as a properly authenticated order to which the presumption raised by Article 166 of the Constitution of India could validly attach. Further in that case the letter under consideration was only a communication of the sanction and could not be equated with the sanction. Moreover in that case the records produced before the Supreme Court revealed that the application for grant of license for vending liquor had never been placed before the Chief Commissioner, nor any order granting the said licence was ever made by him. 20 In Bachhitar Singh Vs. State of Punjab and another, AIR 1963 SC 395, it was merely emphasized that before something amounts to an order of the State Government, two things are necessary viz the order has to be expressed in the name of the Governor as required by clause 1 of Article 166 of the Constitution of India and then it has to be communicated. 21 In the last case namely Ram Chandra Choudhary V Secretary to Government of West Bengal and others AIR 1964 Calcutta, 265 in which an inter -departmental letter issued by the Under Secretary to the Government without mentioning the name of the Governor at all was sought to be utilized as a valid order, it was observed that an order of the Governor in view of Article 166 1 of the Constitution of India can be valid only if it is expressed in the name of the Governor, by the use of such words as "by order of the Governor" and not being so expressed it could not be treated as valid. 22 The impugned order satisfies, as already indicated, the requirements of Section 45 of the Constitution of Jammu and Kashmir and Rule, 13 of the Jammu and Kashmir Government Business Rules. The first contention of the learned counsel for the petitioner is, therefore, rejected. 23 I am also unable to appreciate the second ground of attack levelled by Mr. Chatterjee. The impugned order does not cast any stigma on the petitioner and does not terminate his service forthwith but says that his service would stand terminated at the expiry of three months from its receipt by him. The order or notice also does not say that the petitioner will not be entitled to the salary for the period of three months or any other allowance which he might have earned............As the impugned order or notice which was admittedly received by the petitioner on 12th May, 1969, does not take away any of the benefits which had accrued to the petitioner and does not cast any aspersion on him the same cannot be said to be by way of penalty. Clause 3 4 of the petitioners contract of service dated 13th June, 1968, expressly authorised the Government to terminate the petitioners service giving him three months notice without cause assigned. In these circumstances the petitioner was not entitled to the protection of Section 126 of the Constitution of Jammu and Kashmir. 24 In Ram Gopal Chaturvedi Vs. State of Madhya Pradesh AIR 1970 Supreme Court 158, where the impugned order on the face of it did not cast any stigma on the applicants character or integrity nor did it visit him with any evil consequences nor did it deprive him of any vested right to any office, their Lordships of the Supreme Court held that it was not passed by way of punishment and provisions of Article 311 of the Constitution of India were not attracted. 25 Again in State of Nagaland Vs. G. Vasantha AIR 1970 Supreme Court, 537, where the services of the respondent had been terminated according to the terms of the contract of service and the order terminating the service was one simpliciter and not by way of punishment, it was held that Article 311 of the Constitution of India had no application 25 In Satish Chandra Anand Vs. Union of India AIR 1953 SC 250, where a civil servant who had been engaged on the basis of a special contract for a certain term, was, on the expiry of the term re -appointed by a further contract on temporary basis and was discharged from service after notice in accordance with the Government Rules which formed part of his contract, it was held that Article 311 of the Constitution of India had no application because there was neither a dismissal nor a removal from service nor a reduction in rank. 27 In Hariwell Pressott Singh Vs The Uttar Pradash Government and others, AIR 1957 SC 886, it was held: - In the case of a person employed in a temporary capacity or probation and whose services could according to the conditions of service contained in the service rules, be terminated by a months 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. In principle there can be no distinction between the termination of his services in accordance with the conditions of his service and the termination of the services of a person under the terms of a contract governing him." 23 In P. L Dinghra Vs. Union of India, AIR 1958 SC 36, it was held that if the termination of service is founded on the right flowing from contract or the Service Rules then, prima facie, termination is not a punishment and carries with it no evil consequences and so Article 311 of the Constitution of India is not attracted. 29 In Ranendra Chandra Bannerjee Vs. The Union of India and anr, AIR sec SC 1552, where a termination of service in accordance with the terms in the letter of appointment was brought about during the probationary period without any notice and without any reasons being assigned it was held that it did not amount to dismissal or removal and the Civil servant was not entitled to the protection of Art. 311 2 of the Constitution of India. 30 In State of Punjab and others Vs. Sukh -raj Bahadur, AIR 1968 SC 089, their Lord -hips of the Supreme Court after an exhaustive review of the case law on the matter observed: - "On a conspectus of these cases, the following propositions are clear: - 1 The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution. 2 The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

(3.) IF the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.