Des Raj vs State and Others

Sunil Hali, J.—The appellant was working in the State Revenue Department as Girdawar and vide Order No. 1263-GAD of 2004 dated

20.09.2004, he came to be retired from service w.e.f. 21.09.2004 in terms of Article 226(2) of the Jammu & Kashmir Civil Service Regulations.

The order of retirement of the appellant was passed in public interest.

Being aggrieved of the order of retirement, the appellant challenged the same before this court by filing writ petition (SWP No. 1797/2004) and

learned Single Judge vide its judgment dated 05.02.2009 allowed the writ petition with a direction to the respondents to reconsider the matter and

take a fresh decision in the matter in accordance with the rules on the basis of service record of the appellant.

Being aggrieved of the order of learned Single Judge, State-respondents filed appeal which came to be numbered as LPASW D-131/2009

along with application for condonation of delay bearing CDLSW No.D-58/2009. This appeal was not pursued and vide Order dated 11.02.2010,

this court permitted the Additional Advocate General to withdraw the application for condonation of delay, as a result of withdrawal of

condonation application, main appeal also stood dismissed. The Court while ordering the withdrawal of the appeal directed that the cross

objections / appeal (LCROS No.01/2010) filed by appellant be heard.

The grievance set out in the cross appeal by the appellant-writ petitioner was that after having allowed the writ petition, natural consequence of

order should have been the re-instatement of the appellant-writ petitioner as also release of his back wages to which he would be entitled to and

the matter should not have been left to the wisdom of the respondent-State for reconsideration of the matter. It is stated that the direction to that

effect by the learned Single Judge is not in accordance with the law.

Before considering the cross appeal, the appellant-writ petitioner has to overcome the impediment of delay in filing the appeal. The appellant has

filed an application for condonation of delay, which is numbered as CDLSW No. 09/2010.

The cause shown for filing of appeal beyond period of limitation is that appellant was pursuing the respondents to issue order of reinstatement

and release of his back wages. He genuinely was expecting that respondents would pass an order, which was not done as a result of which there

was delay in filing the appeal.

On the other hand, stand of the respondents is that appellant-writ petitioner was aware about the date when judgment was passed, as such,

there was no sufficient cause to condone the delay.

We have heard learned counsel for the parties and perused the record.

The plea of delay is an impediment in considering the appeal if third party interest is created in the meanwhile. The Courts while dealing with plea

of limitation, are required to examine the consequence of condoning the same and its effect on the person who has acquired the right in the

meanwhile. Where no such right has been created, the Courts are required to show indulgence in condoning the delay. In the present case, the

respondents were required, in terms of court order dated 05.02.2009, to re-consider the case of the appellant-writ petitioner on the basis of

service record. State was to examine the matter in terms of the Court directions and pass appropriate orders. While doing so, they were not

required to disturb the rights of the third party.

Having stated so, while looking to the controversy involved in the present case, we are inclined to allow this application for condonation of

delay. Application is, accordingly, disposed of.

Cross appeal is taken on board.

LCROSS No.01/2010.

Admit. Mr. Qazi has caused appearance on behalf of the respondents. With the consensus of the learned counsel for the parties, Cross Appeal

is taken up for final disposal.

The short grievance of the appellant in this appeal is that after having allowed the writ petition, the natural consequence of it should have been

an order of reinstatemerit of the appellant-writ petitioner and release of his back wages to which he would be entitled to. It is stated that the

learned Single Judge while allowing the writ petition, has not considered this question and has directed the State-respondents to consider the

matter afresh after considering service record of the appellant.

After hearing learned counsel for the parties and perusing the judgment impugned, we are of the view that the direction of the learned Single

Judge to reconsider the matter afresh was uncalled for in the present circumstances. Once the learned Single Judge had expressed an opinion that

there was no material on the basis of which the appellant-writ petitioner could be retired from service prematurely, the only direction which was

required to be issued under the said circumstances was to set aside the order of retirement.

It be seen that the order of premature retirement is passed in public interest and is intended to weed out the deadwood from the service. It is

passed keeping in view the overall assessment of service profile and reputation of the official. The limited judicial intervention is only to the extent of

examining the material on the basis of which opinion has been framed by the competent authority. Once the writ court, as indicated above, found

that there was no material on the basis of which the appellant-writ petitioner could be retired prematurely, the order passed in this regard by the

respondents-State was required to be quashed, which has not been done by the learned Single Judge. No direction could be issued by the writ

court to reconsider the matter on the basis of service record. Such a direction regarding reconsideration of the matter by the respondent-authorities

could not have been issued by the learned writ court as it was not dealing with an issue where some irregularity was committed in the matter of

procedure or application of law. Moreover, it is important to note that by the time writ petition was allowed, the appellant-writ petitioner was

already at the age of 57 years.

We, therefore, allow this appeal and set aside the order of learned Single Judge to the extent it directs the respondents to reconsider the matter

afresh after examining the service record of the appellant-writ petitioner, and direct the respondents to re-instate him in service from the date he

was retired prematurely. The appellant-writ petitioner shall also be entitled to all consequential benefits from the said date.

Appeal is, accordingly, disposed of along with connected CMP(s), if any.