GH RASOOL BABA Vs. STATE OF J&K

JUDGEMENT

(1.) A decision was taken by the Government on 24 -7 -1976 to prematurely retire a few Government Officers in public interest in exercise of its powers under Article 226 (2) of the Jammu & Kashmir Civil Service Regulations. This article reads as under: - "226 (2) : - Notwithstanding anything contained in these Regulations Government may, if it is of the opinion that it is in the public interest to do so, require any Govt. 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/44 completed 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 (in one of the forms prescribed in Annexures A, & B here to as the case may be), to the Government servant at least 3 months before the date on which he is required to retire or 3 months of pay and allowance in lieu of such notice. Such a Government servant shall be granted pensioner benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement."

(2.) THE petitioner had joined service in the Evacuee Department on 3 -1 -1950. He was, however, nominated to the Junior scale of Kashmir Administrative Service with effect from 1 -6 -1965. On 18 -3 -1975 he was posted as an officer on special Duty in the office of Custodian General and was later on posted as Officer on special Duty in the office of Divisional Commissioner, Kashmir. His admitted date of birth is 3 -4 -1931, In relaxation of Articles 175, 176 and 177 of the J & K C. S. R. the Government passed an order, being No: 1189 -GD of 1976 dated 5 -8 -1976, converting the period of eleven years of service rendered by the petitioner from 3 -1 -1950 F.N. to 31 -5 -1965 A.N. into qualifying service for the purpose of pension. This order reads as under: - "It is ordered that out of the total service rendered from 21 -9 -2006 Forenoon 21 -9 -1950 to 31 -5 -1965 AN in the Evacue Property Department by Shri Ghulam Rasool Baba O & D, attached to Divisional Commissioner (Kashmir), the period of eleven years shall be treated as qualifying for pension under the State Government in relaxation of Articles 175, 176 and 177 of the J&K CSRs". Another order being Govt. Order No. 1899 -GD of 1976 came to be passed on 6 -8 -1976 whereby the petitioner was retired from service. This order is also reproduced as below: - "Whereas the Government is of the opinion that it is in public interest to do so. Now, therefore, in exercise of the powers conferred by Article 226(2) of the Jammu & Kashmir Civil Service Regulations, the - Government hereby gives notice to Slid Ghulam Rasool Baba, Officer on special duty, attached with the Divisional Commissioner Kashmir that he having already rendered 22 years of service, shall retire from service with effect from the afternoon of 6th August 1976. He is allowed three months pay and allowance in lieu of three months notice."

(3.) AGGRIEVED by these two orders, the petitioner has challenged the same in this writ petition and the sum and substance of his challenge is contained in Para 22 of the writ petition which is reproduced as below: - "22. That on the face of it, even casual study of the rule aforementioned, would show that they would not permit calculation of the qualifying service except as envsaged by mandate of Rules. Their suspension was only to accord the benefit of 22 years of service to petitioner only to see that some basis for action is provided for applicability of decision announced on 23 -7 -1975 and is nothing short of misuse of authority and colourable exercise of power. This is quite contrary known principles. Such arbitrary and colourable exercise and abuse of authority can be born of nothing but malicious pre -inclination of placing an incumbent like the petitioner under the disability of premature retirement without his having the qualifications envisaged by Article 226 (2) even as amended on 22 -7 -76. The said order is illegal".