Decided on December 03,1982

STATE OF J AND K Respondents


- (1.) THIS Judgement will govern the disposal of writ petitions Nos. 343 and 173 of 1978 which are directed against the same order and raise common questions of law and fact.
(2.) CONSEQUENT upon their selection by the Inspector General of Police, Jammu & Kashmir State, the petitioners, namely, Abdul Rashid Khan in Writ petition No. 143 and T. Angchuk in Writ petition No. 173 were temporarily appointed as A S. Is by the Deputy General of Police, Kashmir Range, Srinagar, respondent No. 2 in the writ petitions, with effect from 1.10.1975. Both of them were, however, placed under suspension by the second respondent on 7 -6 -1978 on a charge of grave misconduct involving moral turpitude in the discharge of their official duties. Only a couple of weeks thereafter i.e. on 24.6.1978., their services were terminated by the second respondent by his order impugned in the writ petitions. This order reads as under : - Order No. 236 of 1978. Dated 24 -6 -1978. The Services of probationary Assistant Sub Inspectors Abdul Rashid No. 1265/NGO and T. Anchok No. 1267/NGO are no longer required n the Police Department They are, therefore, hereby discharged from service with immediate effect. Sd/ (S.A. Shah) IPS, Dy. Inspector General of Police, Kashmir."
(3.) THE petitioners have challenged this order on the grounds: firstly, that their services had in fact been terminated with a view to imposing punishment on them and the impugned order was drafted to circumvent the provisions of Sec. 126 of the Constitution of Jammu and Kashmir; secondly, that they having continued in service for more than two years as probationers prior to its termination, and their initial appointments too being against clear vacancies, they had acquired the status of permanent employees under Rules 21, 22 and 24 of the J&K Civil services (Classification, Control and Appeal) Rules, 1956, and had, therefore, a right to continue in service till the age of supperannuation and the impugned order terminating their services prior to their superannuation had the effect of imposing a penalty on them within the meaning of Sec. 126; thirdly, that their appointing authority being the Inspector General of Police, and they in fact having been appointed by him, their services could not have been terminated by the Dy. Inspector General of Police; and fourthly, that their services could not have been terminated without following the procedure laid down in Rule 349 of the Police Rules. The respondents have resisted the petitions by denying either that services of the petitioners were terminated with a view to imposing any punishment on them by circumventing the provisions of Sec. 126, or that the petitioners had acquired the status of substantive employees under Rules 21, 22 and 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1256, on the date the impugned order came to be passed, or that the Dy. Inspector General Police was not their appointing authority, they have on the other hand contended that the Rules framed under Police act, as published in the Jammu and Kashmir Police Manual, 1960. They have also denied that the mischief of Rule 349 is attracted to their cases, and have challenged the maintainability of the petitions on the preliminary objection that the petitioners have not exhausted the alternative remedy of appeal provided under the Police Rules.;

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