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Judgment
Kotwal, J.—A decision was taken by the Government on 2471976 to prematurely retire a few Government 'Officers in public interest in
exercise of its powers under Article 226 (2) of the Jammu & Kashmir Civil Service Regulations. This article reads as under :
226 (2) : Notwithstanding anything contained in these Regulations Government may, if it is of the opinion that it is in the public interest to do so,
require any Govt. servant other than the one working on a post which is included in schedule II of these Rules, to retire at any time after he has
completed 22 years/44 completed six monthly periods of qualifying service or on attaining 48 years of age, provided that the appropriate authority
shall give in this behalf a notice (in one of the forms prescribed in Annexures A & B here to as the case may be), to the Government servant at
least 3 months before the date on which he is required to retire or 3 months of pay and allowance .in lieu of such notice. Such a Government
servant shall be granted pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such
retirement.
The petitioner had joined service in the Evacuee Department on 311950. He was, however, nominated to the Junior scale of Kashmir
Administrative Service with effect from 161965. On 1831975 he was posted as an officer on special Duty in the office of Custodian General and
was later on posted as Officer on special Duty in the office of Divisional Commissioner, Kashmir. His admitted date of birth is 341931. In
relaxation of Articles 175, 176 and 177 of the J&K C. S. R. the Government passed an order, being No: 1189GD of 1976 dated 581976,
converting the period of eleven years of service rendered by the petitioner from 311950 F.N. to 3151965 A.N. into qualifying service for the
purpose of pension. This order reads as under :
It is ordered that out of the total service rendered from 2192006 Forenoon 2191950 to 3151965 AN in the Evacue Property Department by
Shri Ghulam Rasool Baba O & D, attached to Divisional Commissioner (Kashmir), the period of eleven years shall be treated as qua'ifying for
pension under the State Government in relaxation of Articles 175, 176 and 177 of the J&K CSRs"".
Another order being Govt. Order No. 1899GD of 1976 came to be passed on 681976 whereby the petitioner was retired from service. This
order is also reproduced as below :
Whereas the Government is of the opinion that it is in public interest to do so. Now, therefore, in exercise of the powers conferred by Article
226(2) of the Jammu & Kashmir Civil Service Regulations, the Government hereby gives notice to Shri Ghulam Rasool Baba, Officer on special
duty, attached with the Divisional Commissioner Kashmir that he having already rendered 22 years of service, shall retire from service with effect
from the afternoon of 6th August 1976.
He is allowed three months pay and allowance in lieu of three months notice.
Aggrieved by these two orders, the petitioner has challenged the same in this writ petition and the sum and substance of his challenge is
contained in Para 22 of the writ petition which is reproduced as below :
That on the face of it, even casual study of the rule aforementioned, would show that they would not permit calculation of the qualifying service
except as envsaged by mandate of Rules. Their suspension was only to accord the benefit of 22 years of service to petitioner only to see that some
basis for action is provided for applicability of decision announced on 2371975 and is nothing short of misuse of authority and colourable exercise
of power. This is quite contrary known principles. Such arbitrary and colourable exercise and abuse of authority can be born of nothing but
malicious preinclination of placing an incumbent like the petitioner under the disability of premature retirement without his having the qualifications
envisaged by Article 226 (2) even as amended on 22776. The said order is illegal"".
The Government has defended the aforesaid two orders alleging that compulsory retirement of the petitioner was made in public interest and not
out of any malice or other consideration and that Articles 175, 176 and 177 have been relaxed in his favour to abviate harshness or unfairness to
which he might have been subjected on account of substantial loss in earned pension in the even of his retirement.
The petition was initially heard by a 'earned single Judge who referred it to a larger Bench as in his opinion it raised some important questions of
law relating to the interpretation of Art. 226 (2). That is how this petition is before us.
That the Government had a righl to compulsorily retire the petitioner from service in exercise of its powers under Article 226(2) provided he had
completed twentytwo years of qualifying service or had attained the age of forty eight years has not been disputed by the petitioner. He has also
not disputed that his retirement has been made by she Government in public interest. What he has in fact disputed is that the Government could not
have exercised its afaresaid powers because the condition of twentytwo years qualifying service or in the alternative attainment of forty eight years
age was lacking in his case and the Government had acted arbitrarily and maliciously in relaxing the conditions of qualifying service contained in
Articles 175, 176 and 177 by converting eleven years of his temporary service in the Evacuee department into substantive service to make up the
beficiency in his total twentytwo years of qualifying service, a prerequisite of Article 226 (2); the fact remaining that he had not attained the age of
forty eight years on the date he was compulsorily retired. By doing so, the Government, according to the petitioner, had passed both the orders
dated 581976 and 681976 in total disregard of Art. 226 (2) in colourable exercise of its powers under the said Article, which tantamounted to
malice in law.
The short question upon which the decision of this writ petition is bound to turn is whether or not the aforesaid, two orders challenged by the
petitioner are vitiated on account of malice in law. It is noticeable that he has not assailed these orders on the ground of malice in fact for he has not
imputed any mala fides to any particular authority who, according to him, has been instrumental in bringing about his compulsory retirement, nor
has he stated the necessary facts in the petition from which malice in fact may be inferred. Malice in law has been described by Viscount Haldane
in Shearer Vs. Shields (1914) AC 808 at P. 813 in these words:
A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did with an innocent mind: he is taken
to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although so far the state of his mind is concerned, he
acts ignorantly, and in that sense innacently"".
True, the Government could not have retired the petitioner in exercise of its powers under Article 226 (2) unless he had either completed
twentytwo years of qualifying service or had attained the age of fortyeight years, there nothing in this Article which debars the Government from
exercising its powers under other provisions of the Jammu and Kashmir Civil Service Regulations to convert the petitioner's temporary service into
permanent service to make it qualifying service in terms of Article 75. The Government under Article 4 had ample powers to convert the
petitioner's temporary service into qualifying service provided it was satisfied that to do so was necessary to obvita any unfairness or harshness to
which the petitioner might he subjected on his retirement. The only question which therefore, remains to be determined is whether the relaxation
ordered by the Government was aimed at removing any such apprehended harshness or unfairness to the petitioner ? If the answer to this question
is in the negative then the two orders assailed in the petition may be reasonably said to have been vitiated by malice in law and if the answer is in
the affirmative then the petitioner is clearly out of court.
The Government, there can be no manner of doubt, could have retained the petitioner in service for a little more than two years and still retired
him in exercise of its powers under Article 226 (2). But, in that even also the petitioner was bound to suffer loss in pension. The Government by
prematurely retiring the petitioner did not want to be harsh or unfair towards him and it was with a view to achieving this object that it relaxed the
rigor of Articles 175, and 177 in his favour so that in the event of his retirement he could get adequated pension. If incidentally the condition of
twentytwo years of qualifying service was also fulfilled in the process which enable the Government to retire him in August 1976 itself, it cannot be
contended that his compulsory retirement has been brought about by the Government in colourable exercise of its powers under Article 226 (2)
constituting malice in law. As already pointed out Article 226 (2) nonwhere provides that in no case could the Government exercise its powers
under para 4 and covert the petitioner's temporary service into qualifying service, even though such conversion what to the pensionary benefit of
the petitioner. The object behind his retirement, namely, serving the public interest not being in dispute, it can hardly be argued that to achieve this
salutary object the action of the Government was actuated by any malice whether in factor in law.
For all these reasons, we find no merit in this petition which we dismiss accordingly but in the circumstances of the case without any order as to
costs.