MOHD SHAQIR HUSSAIN Vs. STATE OF J&K

JUDGEMENT

(1.) THE instant petition was filed as Public Interest Litigation by two Advocates of this Court, alleging that the appointment of the Chairman, J&K Advisory Board constituted under the Jammu and Kashmir Public Safety Act, 1978, is not in accordance with law and a writ of quo-warranto deserved to be issued. The principal ground set up in support of the aforesaid allegation is that in accordance with Section 14 of the Act the appointment is required to be made in consultation with the Chief Justice of the State High Court and that the aforesaid provision would continue to apply even when extension is given although initially appointment was made after due consultation with the Chief Justice.

(2.) IT is appropriate to mention that vide Notification dated 22.11.2000 respondent no.3, a former Judge of this Court was appointed as Chairman of the Advisory Board in pursuance of SRO 449 of 1989 dated 17.11.1989 after due consultation with the then Chief Justice of this High Court. According to the terms and conditions of appointment letter dated 23.01.2001 (Annexure A-2) the tenure of the Chairman was fixed for a period of 5 years despite the fact that there is no fixed tenure prescribed. Thereafter ex-post-facto sanction was accorded to the continuation of respondent no.3 as the Chairman and his tenure was further extended to three years vide Government Order dated 23.12.2008 (Annexure C) and vide order dated 26.12.2011 it was then extended to 30.11.2012. The extensions are presumably based on the performance of the incumbent of the office of the Chairman. The period has almost come to an end.

(3.) A perusal of Section 14 would show that the appointment to the office of the Chairman of State Advisory Board is not for a fixed tenure although in the terms and conditions of the appointment a five years tenure was fixed. It has also not been disputed that Hon 'ble the Chief Justice was in fact consulted before making the initial appointment of respondent no.3 as Chairman. In the facts and circumstances of this case the extensions given later on, would not necessarily require consultation. At best it can be regarded as irregularity not an illegality, particularly when respondent no.3 has almost completed the extended period of tenure as well.