J.N Wazir, C.J:— Thirteen writ petitions have been filed by Government officers in this Court under Sec. 103 of the Constitution of Jammu and Kashmir praying that an appropriate writ be issued quashing the orders of the respondent, Government Order No. 312-C of 1963 and Government Order No. 313-C of 1963, dated 27th November, 1963 published in the Jammu and Kashmir Government Gazette of 5th December and the Sadar-i-Riyasat's Order No. SR-37 of 1963 dated 27th November, 1963 as being illegal, void, ineffective, inoperative and ultra vires and that the petitioners be held as continuing to hold their respective posts and offices which they held prior to the passing of the impugned orders. These thirteen petitions are No. 54 of 1964 filed by 22 officers who were holding different posts in different departments mentioned in their petitions, No. 59 of 1964 by Syed Shah, Tehsil Education Officer, No. 61 of 1954 by seven officers, No. 63 of 1964 by J.N Zutshi, S.P (A.I.G) Central Police Office, No. 71 of 1964 by 12 officers of different Departments, No. 72 of 1964 by Chandra Udey Singh, Special Officer Twaza Department, No. 73 of 1964 by Shri Pran Nath Malhotra, Superintendent Fire Brigade and N.N Kaul, D.F.O, No. 77 of 1964 by R.L Nagpal, Secretary Legislative Council, No. 78 of 1964 by 7 officers, among whom there are two officers, namely, D.N Kaul, Joint Director Sheep Breeding and A. Azeez who after having attained the age of superannuation had been granted extension in service, No. 79 of 1964 by Bashir Ahmed Taj, No. 82 of 1964 by Mahadev Kaul, Forest Ranger, No. 93 of 1964 by three officers, Ghulam Qadir and others, No. 81 of 1964 by T.N Ralna, Deputy Director Industries and Ghulam Moh'd Sheikh, Labour Officer, who were alleged to be holding their posts temporarily.

2. These petitions raise a common question of law in regard to the constitutional validity of Article 225 and Rule 5(1) of Sch. IX of the Jammu and Kashmir Civil Service Regulations (hereafter called K.C.S.R) and shall be disposed of by this order. It will be convenient to place these 13 petitions in three groups. The first group consists of permanent Government servants in different departments whose services have been terminated under the impugned rule. The other group consists of 2 officers, namely A. Azeez, Superintendent of Police and D.N Kaul, Joint Director Sheep Breeding who had attained the age of superannuation and had been granted extension in their service. The third group consists of officers who were holding posts temporarily, namely T.N Raina, Deputy Director Industries and Ghulam Moh'd Sheikh, Labour Officer.

3. The writ petitions grouped in these three categories raiss common questions of law and the petitioners Page: 94in these petitions have sought to challenge the validity of Article 226 and R. 5(1) of Sch. IX of K.C.S.R

4. At the outset I propose to confine my discussion to the question of termination of services of permanent civil servants placed in the first group. Having discussed their case I will deal with the petitions of officers whose services had been extended and are placed in second group, and the officers who were holding temporary posts are placed in the third group.

5. The impugned Order No. 312-C of 1964 reads as under:—

“Whereas it is considered in the public interest to dispense with the further services of the officers, mentioned in the annexure to this order;

Now, therefore, in pursuance of Article 226(2) of the Jammu and Kashmir Civil Services Regulations the Government hereby sanctions the retirement of the officers mentioned in that annexure to this order on special pension under Article 225-A read with 2nd proviso to Article 226(2) of the said Regulation.

By order of the Government of Jammu and Kashmir.

Sd/- (Dwarka Nath)

Secretary to Government.”

6. It is this order which the petitioners seek to set aside on the ground, inter alia, that Article 226(2) is ultra vires and that the order passed thereunder was illegal and void as it was made in violation of the mandatory provisions of Section 126(2) of the Constitution of Jammu and Kashmir without affording them any reasonable opportunity to show cause against the action proposed to be taken against them. It was further averred that even if the State had powers to order compulsory retirement without assigning any reasons, the impugned order amounted to removal from service since imputations of corruption and inefficiency which according to the petitioners formed background of the order constitute indelible stigma on their integrity and, therefore, was Unconstitutional as they were not given reasonable opportunity of showing cause against the action proposed to be taken against them as required by sub-sec. (2) of Sec. 126 of the Jammu and Kashmir Constitution. It was further contended that the provisions of Article 226(2) are inconsistent with Sec. 126(2) of the State Constitution and, therefore, invalid and ultra vires. Mr. Menon appearing for the petitioners drew our attention to the press note issued by the Information Department of the Government of Jammu and Kashmir and pointed out that the document reflected the policy of the Government compulsorily retiring the officers with a view to streamlining the administration and secondly to end corruption. According to the counsel it clearly meant that the petitioners had been retired on grounds of corruption and inefficiency which was a serious stigma on them and the compulsory retirement amounted to removal and was by way of punishment.

7. Lastly, it was averred that Article 226 K.C.S.R gives uncanalized and unguided arbitrary powers to the Government to pick and choose any officer for termination of his service and, therefore, was hit by Article 14 of the Constitution of India. These petitions were contested by the State of Jammu and Kashmir and it was urged that the order was nothing but an order of compulsory retirement and that the Government was entitled to retire a Government servant compulsorily by virtue of Article 226(2), K.C.S.R on the fulfilment of the conditions laid down thereunder and that the compulsory retirement did not amount to dismissal or removal as envisaged by Sec. 126(2) of the State Constitution, that there was no inconsistency between Article 226(2) K.C.S.R and Sec. 126(2) of the State Constitution and therefore the Article cannot be said to be ultra vires of the Constitution. It was further contended that there is sufficient guidance in the Article itself for exercise of the power given to the Government and therefore it is not hit by Article 14 of the Constitution of India.

8. At this stage it would be convenient to reproduce the impugned Article 226, K.C.S.R:

“226(1) An officer in Superior service who has attained the age of 55 years and an officer in inferior service who has attained the age of 60 years may be required to retire unless the competent authority considers him efficient and permits him to remain in service. He may, however, be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.

(2) Notwithstanding anything contained in these regulations the Government retains an absolute right to retire an officer at any time whatever the length of service put in by him without giving any reasons, and no claim for any compensation on this account shall be entertained.

Provided that this right will not be exercised except when it is considered in public interest to dispense with the further service of the officer.

Provided further that the officer is not deprivsd of the benefits already earned or that accrued to him and he is granted pension equal to what is admissible after giving him the benefit of further qualifying service that he would have rendered had he been retired at the age of fifty-five.”

9. Punishments which can be imposed on civil servants fop good and sufficient reason are enumerated in the Jammu and Kashmir Civil Services (Classification, Control, Appeal) Rules, 1956, namely:

(i) Censure;

(ii) Fine not exceeding one month's pay;

(iii) Withholding of increments or promotion;

(iv) Reduction to a lower post or time-scale or to a lower stage in a time-scale;

(v) Recovery from pay or the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;

(Vi) Compulsory retirement before attainment of the age of superannuation;

(vii) Removal from the service of the State which does not disqualify from future employment.

(viii) Dismissal from the service of the State which ordinarily disqualifies from future employment.

10. There is an Explanation added to it which is to the following effect:—

“Explanation I.— The termination of employment—

(a) of a person appointed on probation during or at the end of the period of probation in accordance with the-terms of the appointment and the rules governing the probationary service; or

(b) of a temporary Government servant appointees otherwise than under contract; or

(c) of a person engaged under a contract, in accordance with the terms of his contract; does not amount to removal or dismissal within the meaning of this rule or of R. 33.”

11. The Government amended this rule by a notification dated 13th August, 1962 and omitted cl. (vi) from R. 30 of the said rules. In the Explanation I after cl. (c), the following clause was added:—

“(d) of a Government servant who is retired in accordance with Article 226(2) of the Jammu and Kashmir Civil Service Regulations, 1956.”

12. By this amsndmant of R. 30 compulsory retirement before attaining the age of superannuation was deleted from the categories of penalties enumerated in that rule. In the Explanation to the rule it was specifically provided that compulsory retirement under Article 226(2), K.C.S.R 1956 does not amount to removal or dismissal within the meaning of the said rule.

13. The question which we have to consider in the present petitions is whether or not termination of services of a permanent Government servant under Article 226(2) K.C.S.R amounts to dismissal or removal under Section 126(2) of the Constitution of Jammu and Kashmir. To answer this question it is necessary to consider the three sections of the State Constitution, Secs. 124, 125 and 126. They are in these words:—

“124. Subject to the provisions of this Constitution, the Legislature may by law regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State:

Provided that it shall be competent for the Sadar-i-Riyasat or such person as he may direct, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Legislature under this section, and any rules so made shall have effect subject to the provisions of any such Act.

125.(1) Except as expressly provided in this Constitution, every person who is a member of a Civil Service of the State or holds any civil post under the State holds office/during the pleasure of the Sadar-i-Riyasat.

(2) Notwithstanding that a person holding a civil post under the State holds office during the pleasure of the Sadar-i-Riyasat, any contract under which a person, not being a member of a civil service of the State, is appointed to hold such a post may, if the Sadar-i-Riyasat deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with misconduct on his part, required to vacate that post.

126(1). No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2). No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

Provided that this sub-section shall not apply—

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the Sadar-i-Riyasat is satisfied that in the interests of the security of the State it is not expedient to give to that person such an opportunity.

(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under sub-sec. (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.”

14. It has to be noticed that Secs. 124 and 125 are subject to Sec. 126. If any rule is made under Sec. 124 as regards the conditions of service of Government servants in the matter of their dismissal or removal or reduction in rank it has to comply with the requirements of Section 126. Under Sec. 125 all civil servants of the State hold their office during the pleasure of the Sadar-i-Riyasat. To this, Sec. 126 provides an exception in the case, of removal or dismissal. In other words, the pleasure of the Sadar-i-Riyasat to terminate services of a civil servant is controlled by Sec. 126, that before removal or dismissal or reduction in rank of a civil servant is ordered he must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Section 124 provides that subject to the provisions of this Constitution the Legislature may regulate the recuitment and the conditions of service of the persons appointed to public services or posts in connection with the affairs of the State. The proviso to Sec. 124 makes it clear that it would be competent for the Sadar-i-Riyasat or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and prescribe conditions of the service of persons appointed to such services and posts. The pleasure of the Sadar-i-Riyasat under Sec. 125 can be exercised in accordance with the rules made in that behalf. In short the pleasure of the Sadar-i-Riyasat embodied in Sec. 125 is to be exercised in accordance with the rules made under Section 124 and is controlled by the provisions of Sec. 126 of the Constitution of Jammu and Kashmir. If the termination of service of a civil servant in substance amounts to dismissal or removal no matter what phraseology is used for such termination, it will attract the provisions of Sec. 126(2).

15. The counsel for the petitioners has urged that although premature retirement of Government servants has been deleted from the penalties enumerated in the rules, yet the termination of services of the petitioners amounts in substance to removal from service and they should have been given an opportunity of showing cause before their services were terminated. It is well settled that every case of termination of service may not amount to removal. There may be cases in which terms of contract or service rules may provide for the termination of the service on notice of specified period or on payment of salary for the said period and if in exercise of powers thus conferred on the employers the services of an employee are terminated not by way of penalty but strictly Page: 96in accordance with the terms of contract or rules pertaining to the service, such termination will not amount to removal and Sec. 126(2) will not be applicable. A person who substantively holds a permanent post has a right to continue in service subject of course to the rule of superannuation and the rule of compulsory retirement. If for any other reason that right is invaded and the civil servant is asked to leave his office, the termination of his service must mean the defeat of his right to continue in service and it will be in the nature of penalty and will amount to removal. In Parshotam Lal Dhingra v. Union Of India, AIR 1958 SC 36 the scope of Article 311(2) of the Constitution of India which corresponds to sec. 126(2) of the State Constitution particularly with reference to the) meaning of the expression ‘dismissal’, ‘or removal’, ‘or reduction in rank’, has been discussed and the following two tests have been laid down to ascertain whether a person has been dismissed or removed within the meaning of Article 311 of the Constitution: (1) Whether the servant had a right to the post or the rank or (2) whether he has before visited with evil consequences of the kind hereinbefore referred to, that is, loss of pay and allowance, loss of seniority in his substantive rank or stoppage or postponment of future chances of promotion. If he had a right on the post the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. So too if the termination had the effect of the officer being visited with evil consequences then whatever may be the phraseology used that would put an end to his service and it would be dismissal as punishment. Applying these tests, which are not cumulative but alternative, to the present case it would be abundantly clear that the Impugned order deprived the petitioners, who are permanent Government servants, of their right to hold posts till they attained the age of superannuation and amounted to removal and thus would attract the provisions of Sec. 126(2) of the State Constitution.

16. The Advocate General appearing for the State argued that the termination of the service of the petitioners by compulsory retirement was under Article 226(2), K.C.S.R and Sec. 126(2) of the Constitution had no application. Reliance was placed on Shyam Lal v. State of Uttar Pradesh, (1955) 1 SCR 26 : (AIR 1954 SC 369). Shyam Lal's services were terminated under Article 466-A of the Civil Service Regulations and Note I appended thereto. Shyam Lal alleged that his compulsory retirement offended the provisions of Article 311(2) on the ground that compulsory retirement was in substance removal from service. Their Lordships of the Supreme Court after considering the scheme of the relevant rule held that compulsory retirement did not amount to removal within the meaning of Article 311(2). Reliance was also placed on another case The State of Bombay v. Saubhag Chand M. Doshi, (S) AIR 1957 SC 892. This was a case of compulsory retiremant under R. 165(a) of the Bombay Civil Service as amended by the Saurashtha Government. The rule gave the Government a right to retire a Government servant after he had completed 25 years of qualifying service or 50 years of age, and it permitted the Government to ask the Government servant to retire compulsorily without giving any reason and without giving him the right to claim special compensation. The rule further made it clear that the right conferred by it will not be exercised excent when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency or dishonesty. The rule of compulsory retiremant in these circumstances was held by their Lordships of the Supreme Court as valid. Venkatarama Aiyar, J. took the precaution of adding that

“questions of the said character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that can be regarded only as dismissal or removal within Article 311(2).”

17. It is therefore that the provision for compulsory retirement was upheld on the ground that such compulsory retirement did not amount to removal under Article 311(2) because it was another mode of retirement and it could be enforced between the period of age of superannuation prescribed and after the minimum period of service indicated had been put in. Doshi's case, (S) AIR 1957 SC 892 was recently noticed in another case which came up before their Lordships of the Supreme Court, Moti Ram Deka v. General Manager, North East Frontier Rly., Civil Appeal No. 711 of 1962: (AIR 1964 SC 600). Their Lordships upheld the principle regarding Doshi's compulsory retirement and with regard to above-quoted principle laid down by Iyer, J. remarked “With respect, we think this statement correctly represents the true position in law.” From these decisions of the Supreme Court it is well settled that the termination of services of a permanent Government servant would not amount to his removal under Article 311(2) where such termination is accordance with the rule of superannuation and the rule as to compulsory retirement. It may be stated that rules of superannuation are prescribed in respect of public servants in all modern states and are based on considerations of life expectation, mental capacity of the civil servants having regard to the climatic conditions in which they work and the nature of the work they do. The rules are not on any ad hoc basis and do not involve the exercise? of any discretion. They apply uniformly to all public servants falling under the category in respect of which they are framed. It is also well settled that the competent authority may frame rules under Article 309 of the Constitution of India, which corresponds to Sec. 124 of our Constitution for compulsory retirement of a permanent Government servant and those rules as laid down in Doshi's case will be valid provided they fix both the age of superannuation and an age for compulsory retirement and the services of the permanent civil servant are terminated between these two points of time.

18. In the light of these rulings we have to examine the impugned order by which the services of the petitioners, who are permanent Government servants, have been terminated. It is not disputed that the Government passed the order under Article 226(2), K.C.S.R On a careful perusal of the impugned Article it will be clear that it permits the appropriate authority to retire compulsorily civil servants without imposing a limitation in that behalf that such civil servants should have put in a minimum period of service. The impugned Article, therefore, is definitely invalid and the premature retirement ordered under this Article would amount to removal of the civil servants within the meaning of Sec. 126(2) of the State Constitution. In Deka's case, Civil Appeal No. 711 of 1962 (AIR 1964 SC 600), their Lordships of the Supreme Court have remarked that

“in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford a civil servant adequate protection against capricious action from his superior authority. If a permanent civil servant is guilty of misconduct he should no doubt be proceeded against strictly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Article 311(2); but in regard to honest, straightforward and efficient permanent civil servants, it is of utmost importance even from the point of view of the State that they should enjoy sense of security which alone can make them independent and truly efficient. In our opinion, the sword of Damocles hanging over the heads of permanent railway servants in the form of R. 148(3) and R. 149(3) would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with very wide powers which may conceivably be abused.”

19. A permanent civil servant therefore should (?) not think that he has no right to hold the post till he attains the age of superannuation. No rule framed under Section 124 of the State Constitution can trespass on the rights guaranteed by section 126. If a Government servant is guilty of misconduct, most certainly action should be taken against him, but after complying with the formalities prescribed Under Sec. 126(2) of the State Constitution. In the instant case the permanent Government servants have not attained the age of superannuation. There is no minimum age prescribed under the rules for compulsorily retiring any Government servant and most of petitioners have been retired after a very shot period of service. Such a termination of service would amount to dismissal or removal, within the meaning of Sec. 126(2). If the Impugned Article had fixed a minimum age for compulsory retirement and the permanent civil servant had been asked to retire between the age fixed for compulsory retirement and the age of superannuation, the Court even in such a case had to see whether the minimum period fixed is really reasonable or not. This view has been supported by a recent judgment of the Supreme Court in S. Gurdev Singh v. State of Punjab, Writ Petn. No. 200 of 1963, D/- 1-4-1964: (reported in AIR 1964 SC 1585). In this case their Lordships of the Supreme Court have held:

“The majority judgment in Moti Ram Deka's case, Civil Appeal No. 711 of 1962: (AIR 1964 SC 600) (supra) took the view that it would be inappropriate and insxpedient to reopen an issue which was covered by several prior reported decisions of the Court. Besides, the point covered by the said decisions did not directly arise in the case of Moti Ram Deka. Even so, the majority judgment took the precaution of adding a note of caution that if a rule of compulsory retirement purported to give authority to the Government to terminate the services of a permanent public servant at a very early stage of his career, the question about the validity of such a rule may have to be examined. That is how in accepting the view that a rule of compulsory retirement can be treated as valid and as constituting an exception to the general rule that the termination of the services of a permanent public servant would amount to his removal under Article 311(2), this Court added a rider and made it perfectly clear that if the minimum period of service which was prescribed by the relevant rules upheld by the earlier decisions was 25 years, it could not be reasonably reduced in that behalf. In other words, the majority judgment indicates that what influenced the decision was the fact that a fairly large number of years had been prescribed by the rule of compulsory retirement as constituting the minimum period of service after which alone the said rule could be invoked.”

20. In the impugned article there is no minimum period prescribed for retiring a civil servant compulsorily and such retirement amounted to removal and attracted the provisions of Sec. 126(2) of the State Constitution. Under these circumstances the Article is invalid inasmuch as it is inconsistent with the provisions contained in Sec. 126(2) of the State Constitution and the order retiring the permanent civil servants compulsorily is invalid and inoperative.

21. The counsel for the petitioners has further challenged the validity of Article 226(2), K.C.S.R on the ground that it contravenes Article 14 of the Constitution of India. It is contended that the impugned article confers absolute, unguided and uncanalized power on the appropriate authority to terminate services of a permanent civil servant and there is no guiding principle contained in the article for the exercise of the power. There is a proviso to cl. (2) of Article 226, K.C.S.R which reads as under:

“Provided that the; right will not be exercised except when if is considered in public interest to dispense with the further service, of the Officer.”

22. Under this proviso the appropriate authority has to determine whether it is in public interest to dispense with the further service of the Officer. The question that fails for determination is whether consideration of public interest is sufficient guidance to the appropriate authority for the exercise of the power. This point came up for consideration before their Lordships of the Supreme Court in T.G Shivacharana Singh v. State of Mysore, Writ Petns. Nos. 184 and 195 of 1963, D/- 13-3-1964 (SC). In that case the rule regarding compulsory retirement was challenged on the ground that it contravened Article 14 of the Constitution of India. The power under the impugned rule in that case also had to be exercised in public interest. Their Lordships observed as follows:—

“Whether or not the petitioner's retirement was in the public interest, is a matter for the State Government to consider; and so to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioners before us that the said order suffers from the vice of mala fldes.”

23. The guiding principle given in proviso to Article 226(2) is that the authority has to see that it is in the public interest to terminate the services of a permanent civil servant. It cannot therefore be said to be arbitrary power conferred upon the authority competent under the rules to terminate employment without any principle to guide him. The presumption always is that the officer in whom the power is vested will perform the duties of his office honestly vide In re Kerala Education Bill, 1957, AIR 1958 SC 956 at p. 976. The mere possibility that the power may in some cases be misused or abused will not per se induce the Court to hold that the power entrusted to the authority is arbitrary and unguided. The learned counsel for the petitioners relied on Deka's case cited above to show that Rule 148(3) and R. 149 of the Railway Rules were held to be invalid as contravene Article 14 of the Constitution. The ground on which these rules were held to contravene Article 14 of the Constitution of India was quite different from the one taken in the present case. It was held in Deka's case that under the impugned rules unequal or discriminatory treatment was Page: 98meted out to persons similarly situated and the rules contravened Article 14 of the Constitution. In the present case persons similarly situated are treated alike and there is sufficient guidance contained in the Article for exercising the power of terminating services of civil servant. Article 226(2), K.C.S.R does not, therefore, contravene Article 14 of the Constitution of India.

24. Having dealt with the case of permanent Government Servants now we come to another set of writ petitions filed by officers who had been granted extension after they had attained the age of superannuation. Those officers are Capt. Abdul Aziz, S.P and D.N Kaul, Joint Director Sheep Breeding. These officers have been granted extension in service under Article 226(1), K.C.S.R They had attained the age of superannuation and they could be retained in service till they attained the age of 60 years. In other words they could be given extension in service till they attained the age of 60 years. They have been given extension in service for one year from the date they attained the age of superannuation and soon thereafter the impugned order was passed by which these officers were retired. The question that falls for consideration is whether termination of their service; before the expiry of the period of extension amounts to removal within the meaning of S. 126(2) of the State Constitution. It is not disputed that these officers were permanent Government Servants and had a right to hold the posts till they attained the age of superannuation. On attaining the age of superannuation their right to hold the post came to an end under Article 226(1). The competent authority permitted them to remain in service for one year more from the date they attained the age of superannuation. Article 226(1) which contains the power to retain a Government servant after the age of superannuation contains also the implied power to revoke such permission. The petitioners could not, therefore, say that a right was conferred upon them under which they could insist to hold the post till the expiry of the extended period of service. Once the right of a permanent civil servant to hold the post comes to an end on attaining the age of superannuation, no fresh right to hold the post is created in him merely because he is permitted to remain in service for a certain period. In support of this view reliance may be placed on a Full Bench decision of the Allahabad High Court reported as Ram Autar Pandey v. State of Uttar Pradesh, AIR 1962 All 328 (FB) in which it has been observed as follows:

“The purpose of Fundamental R. 56 is not to confer upon Government servants any right to be retained in service up to a particular age, but to prescribe the age beyond which they may not be retained in service.

This shows the intention with which the rule was framed. What to say of a vested right, not even a right was intended to be conferred by R. 56. The petitioner could not, therefore, say that because at one stage 58 was the age of superannuation according to the rule a right was conferred upon him under which he could insist that he should be retained in service till that age and that the rule-making authority had lost its right to change the rule and to reduce the age of superannuation to a lower figure.”

25. Although the officers have no right to hold the posts after they attained the age of superannuation, yet they have been allowed to remain in service for one year from the date of superannuation. The question that arises for consideration is whether the competent authority has any power to terminate their services in the course of extended period. The officers after attaining the age of superannuation ceased to have any right to hold the post Reliance may be placed on Kailash Chandra v. Union of India, AIR 1961 SC 1346 in which it has been held that “after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficients”. The mere fact that the officers were permitted to remain in service vested the competent authority with an implied power to revoke the permission under which they continued to remain in service after superannuation. Unless the termination of their service is on ground personal to them and carried with it a stigma it cannot attract the provisions of S. 126(2) of the State Constitution. In the instant case it has not been shown that the termination of the service of officers on extension was based on any misconduct, inefficiency or dishonesty. In these circumstances the writ petition filed by officers on extension, namely, D.N Kaul and Abdul Azeaz cannot be granted.

26. Lastly, we have to deal with the petitions of two other officers who are temporary hands, namely, Mr. T.N Raina, Deputy Director Industries, and Ghulam Mohammad Sheikh, Labour Officer. T.N Raina contested that he was not a temporary servant but the appointment orders which have been produced show that his appointment is of a temporary nature. Ghulam Mohammait Sheikh has admitted that he is a temporary hand. ‘Temporary Post’ is defined in Article 34-A, K.C.S.R and reads as under:

“Temporary Post means a post carrying a definite rate of pay sanctioned for a limited time. Such a post can be held in an officiating capacity”.

27. The rules which govern temporary service are contained in Schedule IX of K.C.S.R Rule 5(1) of Schedule IS reads as under:

“The service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination on the expiry of the life of the post or at any time by notice in writing given either by the Government servant to the appointing authority, or by the eppointing authority to the Government servant.”

28. It is well settled from the decision of the Supreme Court in Dhingra's case, AIR 1958 SC 36 that since Article 311 makes no distinction between permanent and temporary posts, its protection must be held to extend to all Government servants holding permanent or temporary posts or officiating on any of them. The protection afforded-by Article 311(2), which corresponds to S. 126(2) of our Constitution is limited mostly to three major penalties, viz., dismissal, removal or reduction in rank. In the case of temporary servants their termination of services may not amount to removal. The terms of contract or service rules may provide for termination of service on notice of a specified period or on payment of salary for the said period and if the employer under the service rules terminates that services of temporary hand. It may not amount to removal or dismissal within the meaning of S. 126(2) of the State Constitution, but if the order terminating the services of a temporary hand partakes of the character of one or other of the penalties contemplates by the relevant service rules, S. 126(2) can be Invoked. It is competent for the State to enter into contracts for temporary employment and the services…… of temporary hands subject to the terms of contract would be terminated on one month's notice on either side. Such a contract is not inconsistent with S. 126(2) Page: 99of the State Constitution. In the present case the petitioners were temporary hands and they are governed by temporary Service Rules contained in Schedule IX to K.C.S.R Their services could be terminated by the competent authority under R. 5 of Schedule IX, K.C.S and S. 126(2) of the State Constitution had no application to their case unless they showed that their services had I been terminated by way of punishment. Our attention has been drawn to the press note which was issued after the Impugned order was passed and it was pointed out that the Government had terminated the services of the petitioners in order to root out corruption as also with a view to stream-lining the administration. According to the learned counsel it clearly showed that the order terminating the services of the temporary employess was by way of punishment. We are unable to agree with the contention raised by the learned counsel that the press note issued subsequent to the impugned order indicated that the services of the petitioners were terminated by way of punishment. It may be that some bad record or misconduct of the officers may have served as a background for terminating their services but that misconduct was not made the basis of the order. There is separate order No. 313C terminating the services of temporary employees. That order terminating their services does not indicate that they have been retired on some ground personal to them which was blame-worthy or there was a stigma attached to them and it involved a loss of benefit already earned by them. Under these circumstances. In our opinion, the writ petitions filed by Mr. T.H Raina and Ghulam Mohammad Sheikh also merit dismissal.

29. In the result we hold that Article 226(2), K.C.S.R is inconsistent with the provisions of S. 126(2) of the Constitution of Jammu and Kashmir and is struck down as invalid. The orders passed under the above Article so far as the petitioners, who are permanent Government servants, are concerned, are, therefore, void and inoperative. In consequence the writ petitions of all the officers, excepting T.N Raina and Ghulam Mohammad Sheikh, who are temporary employees, and O.N Kaul and Abdul Azeez, who are on extension are granted and the orders terminating their services are quashed. The services of T.N Raina and Ghirlam Mohammad Sheikh, who were temporary employees and D.N Kaul and Abdul Azeez, who are on extension, have been validly terminated and we dismiss their writ petitions. Keeping in view all the circumstances we leave the parties to bear their own costs in these writ petitions.

30. S. Murtaza Fazl Ali, J.:— I agree.

31. J.N Bhat, J.:— I agree.

CH/MRG/R.G.D

32. Writ petitions allowed in part.