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Judgment
Petitioner, a Nazir in the court of 2nd Addl. Munsiff, Srinagar, was prematurely retired from service by order No: 1194 dated 25.3.1987
passed by the Lord Chief Justice in exercise of powers under Regulation 226(2) of Civil Service Regulations. He assails this order on the ground
that it lacked in jurisdiction and did not even conform tothe prescribed requirements of Regulation 226(2). According to him, he had completed
only 19 years of service as against requisite 22 years and had attained 41 years at the time he was ordered to retire. He also alleges that the order
was passed on malafide considerations and was a result of communal bias and conspiracy and in violation of his legal rights and procedural
safeguards guaranteed under Articles 14 and 16 of the Constitution.
In the counter filed by the Registrar of the High Court, it is pointed out that the petitioner was placed under suspension vide High Court Order
No: 500 of 1986 dated 1.9.1986 for in discipline and insubordination towards his officers. The Vigilance Commissioner was directed to hold an
inquiry into the matter who recommenced his premature retirement from service in the facts and circumstance's of his case and he was accordingly
ordered to retire, from service in the public interest and in the interest of administration and was allowed three months' pay and allowances in lieu
of three months' notice by High Court Order No: 1194 of 1987. It is denied that the impugned order was passed out of any communal bias or
pursuant to any conspiracy.
Petitioner's counsel, Mr. Farooqi, attacked the impugned order firstly on the ground that it could not have been passed by the Lord Chief
Justice under article 226(2) CSR which empowered the Government alone to retire a Govt. servant prior to his superannuation on satisfying the
condition laid down therein. He alternatively contended that even if it be assumed that he possessed the requisite power, still he had failed to satisfy
conditions for its exercise. According to him, a Govt. servant could be prematurely retired only if he had completed 22 years of service and 44
years six monthly periods of qualifying service from the date of his confirmation in service and not his entry into service and viewed thus, he had not
completed the requisite 44 six monthly periods of qualifying service.
On merits, Mr. Farooqi contended that the Lord Chief Justice had not formed the requisite opinion to retire petitioner in the public interest as he
had only approved the note of the Vigilance Commissioner prepared in reference to the charges against the petitioner and where amounted to
punishment attracting Art. 311(2) of the Constitution. He lastly urged that the petitioner deserved to be reinstated in service on equitable
considerations as he and his family were facing starvation and cited 1994SLJ 183, 1992 SCC299,1982(3)SCC 341,1985 (1) SLR 71 and AIR
1992 SC 1414 in support.
Since the issues raised by Mr. Farooqi revolve round the terms of Regulation 226(2), it would be advantageous to reproduce the provision
which reads, thus
Notwithstanding anything contained in these Regulations Government may, if it is of the opinion that it is in the pubic interest to do so, require any
Government 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 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 and B hereto 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 provision vests power in the Government to retire any Government servant from service before superannuation subject to following conditions:
a) that Government forms an opinion that it is in public interest/in the interests of administration to retire him prematurely/ compulsorily;
b) Such Govt. servant must have completed 22 years/44 six monthly periods of qualifying service; or
c) 48 years of age.
The formation of the opinion by the Govt. or its delegated Authority that it is in the public interest to retire the Government servant is the sina quo
non for exercise of this power. Where there is no basis for such opinion or where it is founded on irrelevant considerations that have no nexus with
public interest, the action to retire would be vitiated. However, the formation of such opinion and what considerations go into it falls squarely within
the province of the Government or its Authority.
The action to retire a Government servant prematurely becomes vulnerable also when other conditions prescribed in the provision are not
satisfied. In case he has yet to complete 22 years/44 six monthly qualifying service or 48 years of age, he can't be retired.
The controversy in the present case primarily converges on the connotation of expression ""qualifying service"". According to Mr. Farooqi
Qualifying Service"" is reckonable from the date of confirmation of service. But this does not find support from provisions of Article 174(b) CSR
which falls under Chapter ""Conditions of qualifying service"" and provides that the services of every officer in case other than those covered by Q.
(a) of this regulation, begins when he takes charge of the office to which he was first appointed. Similarly Article 177 lays down that service of an
employee does not qualify unless he holds substantive office on permanent establishment provided where a Government servant was retiring after
1.1.1962 and if he was holding a substantive office on permanent establishment on the date of his retirement, temporary officiating including
temporary service on a temporary establishment/department or quasi permanent service followed without interruption by confirmation in the same
or any other post, shall count in full as qualifying service except in respect of period of service paid on work charge establishment or paid from
contingencies.
All this suggests that the expression ""qualifying service"" occurring in Article 226(2) CSR had reference to the date of first appointment and that
where a Government servant was holding a substantive office on permanent establishment on the date of his retirement, his
temporary/officiating/quasi permanent service was also to count in full for his qualifying service. There is no rule or regulation which provides that
the qualifying service within the meaning of the expression used in Art. 226(2) CSR, would count from the date of confirmation and not from the
date of entry into service.
It is matter of record that petitioner was first appointed on 8.2.1965. He had thus surely completed 22 years and 44 Six monthly periods of
qualifying service on the date impugned order was passed even as he was confirmed on 20.4.1973. It would be too much to hold that his service
was reckonable from the date of his confirmation in 1973 to render him ineligible for retirement under Art. 226(2) CSR,
It is also incorrect to suggest that Lord Chief Justice was not competent to re1 tire petitioner or that he had not formed the requisite opinion in
the matter. So long as he was the delegatee of the power as would be evident from the relevant provisions of JKCSR he was within his rights to
exercise it in accordance with the requirements of Regulation 226(2). It is also borne by record that he had formed the requisite opinion taking in
regard the service profile of petitioner. The record shows that the petitioner's officers had complained against his misconduct and misbehaviour
towards litigants, lawyers and staff members as well as officers leading to an inquiry by the Vigilance Commissioner who reported against him and
recommended for his premature retirement from service in the public interest and thereafter Lord Chief Justice on consideration of the matter
approved the recommendation.
There is no hard and fast rule about the manner and method in which requisite opinion can be formed by the competent authority. A number of
considerations may go into the formation of such opinion but what is important is it must be based on some record/material which had nexus with
the issue of employee's compulsory retirement in the public interest. In the present case, it cannot be said that the action lacks in such basis or that
it amounted to any punishment in the facts and circumstances of the case.
Petitioner's last prayer that he deserved to be reinstated in service on equitable considerations also requires to be rejected more particularly
taking in regard his wild allegation that action against him was the outcome of a communal bias and conspiracy. The judgments cited by his counsel
also do not advance his case as these only lay down known positions of law on compulsory retirement. Resultantly, I find no merit in this petition,
which is dismissed.