Abdul Latief Deva vs Union Of India & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The present Original Application has been instituted under Section 19 of the Administrative Tribunals Act, 1985 by the applicant, a former Chairman of the Jammu and Kashmir Public Service Commission, essentially questioning the consequences flowing from the reorganisation of the erstwhile State of Jammu and Kashmir and the manner in which his pensionary benefits have been regulated.

The applicant was appointed as Chairman of the Jammu and Kashmir Public Service Commission vide SRO 234 dated 23.07.2015. Prior thereto, he was a member of the Indian Administrative Service. According to the applicant, the tenure attached to the office of Chairman was five years or until attainment of the age of 65 years, whichever was earlier, and his tenure would ordinarily have continued up to 26.07.2020.

The controversy arose upon enactment of the Jammu and Kashmir Reorganisation Act, 2019 and issuance of the Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019 vide S.O. 3912(E) dated 30.10.2019. The applicant has challenged Section 16 of the said Order and the consequential communication dated 21.11.2019 whereby a fresh exercise for reconstitution of the Public Service Commission was contemplated. He has also challenged Government Order No.375-JK(GAD) of 2020 dated 16.03.2020 and subsequent communications relating to preparation of his pension case by taking 31.12.2016 as the relevant date of retirement.

The principal contention of the applicant is founded upon sub-sections (3) and (4) of Section 93 of the Jammu and Kashmir Reorganisation Act, 2019. According to him, a person holding the office of Chairman or Member of the Public Service Commission immediately before the appointed day was statutorily protected and was entitled to continue after the appointed day on conditions of service not less favourable than those applicable earlier. On this premise, it is contended that Section 16 of the Removal of Difficulties Order could not curtail the tenure protected by the principal enactment.

The applicant has further relied upon the Jammu and Kashmir Public Service Commission (Conditions of Service) Regulations, 1957, particularly Regulation 8, to contend that the period spent by him as Chairman was liable to be reckoned for pensionary purposes. His case is that he had been appointed as Chairman while in active Government service and had not exercised the option for drawing pension for his previous service; therefore, the service rendered as Chairman ought to have been taken into consideration while determining his pensionary benefits.

The respondents have resisted the Original Application. Apart from preliminary objections regarding maintainability and cause of action, their substantive stand is that the consequences of reorganisation have to be understood in the light of the Reorganisation Act read with the Removal of Difficulties Order, 2019. They contend that after reorganisation of the erstwhile State into the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, fresh orders concerning the Chairman and Members of the Commission were required.

It has further been pleaded that the applicant was picked up from active service while serving as Commissioner, Survey and Land Records, J&K and appointed Chairman, J&K Public Service Commission vide SRO 234 dated 23.07.2015. According to the respondents, he would have retired as a member of the IAS on attaining the age of 60 years on 31.12.2016. His appointment as Chairman of the Public Service Commission was not a continuation of his IAS service but constituted a separate appointment to a constitutional office. It is on this basis that the respondents justify the impugned action and the pensionary treatment accorded to the applicant.

We have heard learned counsel appearing for the parties and have carefully gone through the pleadings and material placed on record.

The questions which arise for determination are, firstly, whether the applicant acquired an indefeasible right to continue as Chairman of the Jammu and Kashmir Public Service Commission up to 26.07.2020 notwithstanding the statutory consequences flowing from the reorganisation of the erstwhile State and, secondly, whether his tenure as Chairman necessarily entitles him to have his pension regulated by treating 26.07.2020 as his date of retirement from service.

The two issues, though interconnected in the manner in which the reliefs have been framed, cannot be conflated. The applicant's substantive service as a member of the Indian Administrative Service and his subsequent appointment to the office of Chairman of the Public Service Commission operate in distinct fields. Appointment to the office of Chairman of a Public Service Commission cannot, merely because the appointee was drawn from Government service, be regarded as an uninterrupted continuation of the service from which he was appointed.

The respondents' stand in this regard assumes significance. The applicant's appointment as Chairman was made in exercise of the constitutional power then governing the Public Service Commission. His assumption of the office of Chairman brought about the consequences prescribed under the applicable conditions of service. The mere circumstance that certain pensionary benefits may be regulated with reference to previous service does not convert the tenure in a constitutional office into continued membership of the Indian Administrative Service.

Coming to the challenge to Section 16 of the Removal of Difficulties Order, 2019, it is not disputed that the Jammu and Kashmir Reorganisation Act, 2019 brought about a fundamental statutory reorganisation of the erstwhile State. Section 103 empowered the competent authority to issue orders for removal of difficulties in giving effect to the provisions of the Act. In exercise of such power, the Removal of Difficulties Order, 2019 was promulgated.

The applicant seeks to read Section 93(3) and (4) in isolation so as to create an absolute right to continue for the entire unexpired portion of his original tenure. We are unable to accept such an interpretation. The provisions governing the transition have to be read harmoniously with the statutory scheme brought into existence upon reorganisation and with the consequential measures lawfully taken to operationalise the new constitutional and administrative arrangement.

Section 93 undoubtedly dealt with the Public Service Commission and made transitional provision in relation to the Chairman and Members holding office immediately before the appointed day. However, such transitional protection cannot automatically be enlarged into an immutable guarantee that every pre-existing arrangement would continue irrespective of the statutory consequences flowing from reorganisation. The protection of conditions of service cannot, by itself, be equated with a guarantee of continuation in office beyond the manner contemplated under the transitional statutory framework.

Section 16 of the Removal of Difficulties Order was issued as part of the machinery for transition from the constitutional arrangement existing in the erstwhile State to that applicable after reorganisation. The provision dealt, inter alia, with persons who had taken oath or affirmation under the Constitution of Jammu and Kashmir or other applicable law and the consequences thereof under the new dispensation. We find no sufficient material in the pleadings to hold that the said provision is manifestly inconsistent with the parent enactment or that the authority issuing the same travelled beyond the power conferred by Section 103.

A statutory provision or an order issued in exercise of statutory power carries a presumption of validity. The burden lies heavily upon the person challenging it to establish that the subordinate measure plainly transgresses the parent enactment. A mere possibility of another interpretation, or the fact that the transitional arrangement adversely affects an individual's expectation of completing the original tenure, would not by itself furnish sufficient ground for invalidating the provision.

Equally, the communication dated 21.11.2019 informing the authorities regarding initiation of a fresh exercise for reconstitution of the Public Service Commission was consequential to the statutory arrangement brought about after reorganisation. The respondents have specifically maintained that fresh orders concerning the constitution of the Commission were necessitated after reorganisation. No independent mala fides or lack of competence in issuance of the said communication has been established before us.

There is another significant aspect of the matter. The applicant himself pleaded that, after the communication dated 21.11.2019, he addressed a communication dated 22.11.2019 to the Chief Secretary questioning the position and also conveyed the decision to stay away from office forthwith. Thus, the present case is not one where the applicant actually discharged the functions of Chairman up to 26.07.2020 and was subsequently denied the monetary consequences of service actually rendered during that period.

The consequential claim that 26.07.2020 must be treated as the applicant's date of retirement for pensionary purposes is therefore also untenable in the form in which it has been raised. The applicant cannot derive an automatic right to such declaration merely from the tenure originally contemplated at the time of his appointment as Chairman. His pensionary entitlement has necessarily to be regulated in accordance with the applicable service and pension rules and the legal consequences flowing from his cessation from the All India Service and appointment to the office of Chairman.

The respondents have specifically pleaded that the applicant would have retired as an IAS officer on 31.12.2016 on attaining the prescribed age and that his appointment as Chairman was a fresh appointment rather than continuation of his IAS service. The applicant has not demonstrated a statutory provision which would permit this Tribunal to simply substitute 26.07.2020 for 31.12.2016 as the date of his retirement from the All India Service.

Central Administrative Tribunal^{22. Regulation 8, upon which considerable reliance has been placed,} cannot be read divorced from the character of the office held by the applicant and the applicable pensionary regime. A provision enabling specified service rendered as Chairman to be taken into account for pensionary purposes, subject to fulfilment of its conditions, is qualitatively different from a provision declaring that the person continues as a member of his former service throughout the tenure of the constitutional office. The latter proposition does not follow merely from the former.

The claim for quashing Government Order No.375-JK(GAD) of 2020 dated 16.03.2020 and the communications dated 07.04.2020 and 09.10.2020 is substantially founded upon the applicant's primary contention that he possessed an enforceable right to continue as Chairman up to 26.07.2020 and that such date must consequently be treated as his retirement date. Once that foundational contention is not accepted, the consequential reliefs cannot survive on the grounds urged in the present OA.

Judicial review of policy and statutory action is concerned with legality and not with the desirability of an alternative arrangement. The Tribunal cannot rewrite the transitional provisions governing reorganisation or confer a service benefit merely on considerations of perceived hardship. An enforceable right must emanate from the applicable statutory provisions. On the material before us, no such right to the declarations sought by the applicant has been established.

We are, therefore, of the considered view that the applicant has failed to make out a case for interference with Section 16 of the Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019 or with the consequential communication dated 21.11.2019. For the same reasons, no ground is made out for quashing Government Order No.375-JK(GAD) of 2020 dated 16.03.2020 and the consequential pension-related communications impugned in the OA.

Accordingly, the Original Application is dismissed, being devoid of merit. The interim order, if any, shall stand vacated. Pending MAs, if any, shall also stand disposed of.

There shall be no order as to costs.