STATE OF J&K Vs. GH JEELANI BHAT

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment of Single Judge dated January 29, 1997, whereby writ petition has been allowed and order No. Home -410 of 1991 dated August 21, 1991 has been quashed and the State directed to take back the petitioner in service as if the order of dismissal impugned in the writ petition had never come into existence, with all consequential benefits, which accrue to the petitioner from the date of issuance of impugned order.

(2.) PETITIONER was dismissed by Government order NO. Home -410 of 1991 dated August 21, 1991 by the Governor in exercise of power under Clause (c) of the proviso to Sub -Section (2) of Section 126, Constitution of Jammu and Kashmir and Sub -Clause (c) of the proviso to Clause (2) of Article 311 of Constitution of India and in the interest of the security of the State holding of enquiry against the petitioner was not found expedient. Precisely. Order runs as under:

(3.) PETITIONER challenged the above order. Despite several opportunities, Appellant did not file counter affidavit, nor the record was made available to the court, with the result that Single Judge proceeded to decide the case on merit. After taking into consideration the decision of this court in SWP No. 352/1990, (Mohammad Shafi Mir Versus State of Jammu and Kashmir) decided on 4 -12 -1996, Single Judge ruled that action taken under Section 126(2)(c) of the State Constitution, Judicial Review is permissible within parameters laid down by the Apex Court in AIR 1995 SC 1403 (A.K. Koul and another Vs. Union of India and another) based on earlier decision of the same Court in 1994 (3) SCC 1, (S.R. Bommai Versus Union of India). Since the State did not raise any defence, dismissal of petitioner in terms of Section 126(2)(c) of the State Constitution was not sustainable. Reliance on a decision of this Court in 1995 SLJ 19 (Nazir Ahmad Dar Versus State and others) has been placed for arriving at this conclusion.