MOHD AMIN SALATI Vs. CHAIRMAN

JUDGEMENT

(1.) 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 petitioners 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 1 -9 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.

(2.) 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 10 of 1987 dated 5 -1 -1987, 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.1 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 aribtrary, unchanelized, unbriddled 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 delegated 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 28th 29th and 31st of January, 1987. The impugned order has been passed by respondent No.1 purportedly under Article 226 (2) of the J&K Civil Service Regulations :

(3.) 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 to 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.