BALWANT RAI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS petition Under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir had come up for a hearing with regard to the quashing of the Government Order No. 128 -GR (Edu.) of 1990 dated 30 -1 -1990by virtue of which the petitioner Balwant Rai, Lecturer, who was awaiting the orders of his posting in pursuance of Government Order No. 273 (Edu) of 1989, dated 27 -2 -1989 was ordered to be posted in the Higher Secondary School, Nowshera Rajouri against the available vacancy and the period of his suspension was treated as on leave of whatsoever kind due to him.

(2.) THE material facts of this petition are not in controversy. The petitioner was a Lecturer in the Education Department and was prosecuted for an offence U/S 5 (2) of the P. C. Act read with Section 161 RPC. In view of the pendency of the prosecution against him, he was placed under suspension on 13 -11 -1986. On the trial of the case he was acquitted by the learned Special Judge Anti Corruption, Jammu, on file No. 8 A/L by a judgment announced by him on 30 -5 -1989. Against this judgment and order of the trial court, an appeal was preferred by the prosecution before this Court, and the same was dismissed on 27 -10 -1989 and the order of the trial court was upheld. After his acquittal was confirmed by the High Court, the petitioner on his representation was reinstated by the respondent vide Government order No. 273 -EDU of 1989 dated 27 -12 -1989 and while passing the said order of reinstatement, the respondent No. 2 i. e. Secretary to Government, Education Department, J&K Jammu, ordered that his period of suspension would be decided later on and also the petitioner was debarred from conducting Board Examination in future.

(3.) ACCORDING to the petitioner, the respondent No 2 in pursuance of the said order dated 27 -12 -1989, made an adverse entry in the service record of the petitioner without any show cause notice having been served upon him. The said entry had adversely affected his career and as per the service rules, no adverse entry could be made in the service record of an employee without a prior notice being served upon him, so as to enable him to furnish his explanation, before such an entry was recorded in his service record The petitioner approached the respondents with a request that he was falsely implicated in a criminal case, as a result of which, he was suspended without any fault of his and therefore prayed for his being treated as duty w e f 13 -11 -1986 to 27 -12 -1989 i.e. the period for which he remained under suspension due to his involvement in a false case Instead, the respondents pasted Order 128 -GR (Edu) of 1990 dated 30 -12 -1990 ordering thereby his period of suspension as on leave of whatsoever kind was due to him. On receipt of such an order, the petitioner again approached the respondents and made a representation Annexure P/4 attached with the petition, and the same was not considered by the respondents, and as the Order No. 128 -GR (Edu) of 1990 dated 30 -1 -1990 was un -justified and against the terms of Article 108 (B) of the J&K Civil Service "Regulations, therefore, he has come up by way of this petition for quashment of that order and prayed that his period of suspension from 13 -11 -1986 to 27 -12 -1989 be treated as on duty, and any adverse/bad entry made in the service record of the petitioner be ordered to be delated.