PT GOPI NATH WALI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition made by Pandit Gopi Nath Wali for issuing a writ in the nature of a writ of Mandamus and Certiorari for a declaration that the petitioner is a servant of the Government of Jammu and Kashmir and that Cabinet Order NO. 1445 -C of 1953 dated 12 -11 -1953 retiring him prematurely was illegal and ultra vires.

(2.) THE facts, which gave rise to this petition briefly, stated are these. In 1926 the Jammu and Kashmir Government on a permanent basis in the Education Department employed the petitioner. In March 1942 the services of the petitioner were borrowed by the Co -operative Department with the previous sanction of the Government of Jammu and Kashmir. By order NO. 123 -B/45 dated 31 -5 -1949 the petitioner was reverted to the Industries Department, and the petitioner was ordered to hand over, which he did but subsequently by partial modification of the Govt. Order No. 123 -B/45 dated 31 -5 -1949 the Government ordered the reversion of the petitioner to the Education Department under Government Order No. 35 dated 3 -10 -1949 and therefore in the year 1949 the petitioner got orders from the Co -operative Department in which he was serving then that he was reverted back to the Education Department. On receipt of these orders the petitioner reported himself for duty to the Education Deptt. Where he was informed that as his lien had been terminated in the year 2003 he could not be absorbed in that Department. The petitioner made several representations to the Government for being provided with a job in any Government Department but no heed was paid to these representations. Ultimately Cabinet Order No. 1445 -C of 1953 -dated 12 -11 -1953 informed the petitioner that the Government had decided to retire him prematurely. The petitioner has preferred the present petition challenging that order.

(3.) ON behalf of the Government of Jammu and Kashmir the Advocate General has put in objections which are to the effect that the Constitution Application to Jammu and Kashmir}, Order, 1954 is not retrospective in operation and cannot affect the orders passed before the promulgation of the said order; the applicant having been retired from service with effect from 28 -3 -2006 and his case having been decided by the -Government Order No. 1445 -C of 1953 long before the coming into force of the said Constitution Order, the application is not tenable; that a writ in respect of premature retirement cannot be issued as there has been no infringement of any fundamental right; that the application having been made after more than 1 Â 1/2 year of the Government order retiring the petitioner the same is liable to be rejected that the petitioner is not entitled to a declaratory relief under the Constitution Application to Jammu and Kashmir Order. Lastly it has been averred that other remedies under law being available to the petitioner the petition is not maintainable. It is, however, admitted by the respondent that the petitioner was prematurely retired on 12 -11 -1953.