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2001 DIGILAW 86 (JK)

Ab. Khaliq Poswal v. State Of J. &K.

2001-04-12

NISAR AHMAD KAKRU

body2001
1. The petition is at its threshold. The petitioner is present in person. He submits that he has hired services of an Advocate who has expressed inability to enter appearance because of strike of the Bar. His contention is that delay in consideration of the case is detrimental to his interests, therefore, he has chosen to address the court himself. I have heard him. 2. The petitioner, a Lecturer in the Education Department, came to be transferred and posted as Warden in the Gujar and Bakerwal Hostel Budgam. Being faced with the charge of misconduct, he has been placed under suspension by the Government vide order No.114-SW of 2001 dated: 30.03.2001 which is impugned by medium of this writ petition on the ground of lack of jurisdiciton. To bring home the point, reliance is placed on the Government order No. 1367-GAD of 1999 dated: 06.12.1999, which reads as under: - It is hereby ordered that administrative control regarding management of Gujar and Bakerwal Hostels in the State henceforth rest with the Advisory Board for development of Gujar and Bakerwal. By order of Government of Jammu & Kashmir. Sd/- Commissioner/Secy.to Government General Administration Deptt." 3. On the strength of the aforementioned Government order, the petitioner has contended that he could be placed under suspension by the Advisory Board and not by the Government. The text of the aforementioned order, undoubtedly shows that the Government has conferred the administrative control of the management of Gujar and Bakerwal Hostels on the Advisory Board, but is it available to the petitioner to canvass that the Government cannot place him under suspension, needs to be appreciated in the light of the mandate of sub-rule (1) of rule 31 of the Jammu & Kashmir Civil service (Classificatiion Control & Appeal) Rules 1956, which may be noticed: "The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf, may place a Government servant under suspension....." 4. A plain reading of Sub-rule (1) makes it manifestly clear that the appointing authority or any authority to which it is subordinate or any authority empowered by the Government can pass the order of suspension. Admittedly, the Board is not the appointing authority of the petitioner but it is the Government which is his appointing authority. A plain reading of Sub-rule (1) makes it manifestly clear that the appointing authority or any authority to which it is subordinate or any authority empowered by the Government can pass the order of suspension. Admittedly, the Board is not the appointing authority of the petitioner but it is the Government which is his appointing authority. The Government is not subordinate to the Board but legal and factual position is otherway round. 5. No doubt the above said Government order confers administrative control of management of the hostels upon the Board but it does not authorise the Board to exercise the power of suspension when the Government is his appointing authority. Moreso, since the Board has not been empowered to suspend a gazetted officer, the Board lacks the competence. This being the position, the contention of the petitioner that the Government cannot exercise the power of suspension, is wholly misconceived. 6. What is the legal position in a situation when any other authority is empowered by the Government with the power of suspension. The proposition gives rise to a short but an important question which may be summarized as follows:- "Is the Government debarred from exercising the power of suspension when any other authority, subordinate to the Government, is empowered to exercise such power?" 7. To answer the question, it may be noticed that sub-rule (1) of rule 31 aforementioned designates the authorities who can exercise the power of suspension. They are, the appointing authority of the Government servant or any authority to which such appointing authority is subordinate. Admittedly, the Advisory Board is a creation of the Government constituted perhaps to facilitate efficient administration of the management of the hostels, nevertheless, the controlling power remains with the Government. Obviously, it is far from imagination to conceive an idea that the assignment of administrative control can deprive the Government of the authority vested in it by the statute. Factually and legally, the Board is subordinate to the Government. In this backdrop, even if we proceed on a supposition that the Board is the appointing authority of the petitioner, yet the Government is not debarred to exercise the power, reason being that the Board is an authority subordinate to the Government. Factually and legally, the Board is subordinate to the Government. In this backdrop, even if we proceed on a supposition that the Board is the appointing authority of the petitioner, yet the Government is not debarred to exercise the power, reason being that the Board is an authority subordinate to the Government. To do away with the probability of any confusion, let me observe in explicit terms that the Board is neither the appointing authority of the petitioner nor is empowered to exercise the power of suspension. 8. It was next contended that the Secretary Social Welfare Department could not have passed the order of suspension. It is factually correct that the order of suspension of the petitioner has been issued under the signatures of the Secretary, Social Welfare Department, whereas the parent Department of the petitioner happens to be the Education Department, thus question centres around the power of authentication of the order. To appreciate the controversy, reference to Section 45 of the Constitution of Jammu and Kashmir becomes imperative which is reproduced hereunder: - "45. Form of orders and instruments and their authentication:- (1) All Executive action of the Government shall be expressed to be taken in the name of the Governor or of the Government of Jammu and Kashmir. (2) Orders and other instruments made and executed in the name of the Governor or of the Government of Jammu and Kashmir shall be authenticated in such manner as may be specified in the rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not executed by the Governor or, as the case may be, by the Government of Jammu and Kashmir." 9. A plain reading of the Section reveals that an instrument executed in the name of the Governor or the Government of Jammu and Kashmir has to be authenticated in such a manner as prescribed by the rules. The rules have been made, called the Jammu and Kashmir Government Business Rules. The Rule 12, being relevant to answer the question, be noticed:- "Rule 12: Every order or instrument of the Government of the State shall be signed whether by the Chief Secretary, a Secretary, an Addl. The rules have been made, called the Jammu and Kashmir Government Business Rules. The Rule 12, being relevant to answer the question, be noticed:- "Rule 12: Every order or instrument of the Government of the State shall be signed whether by the Chief Secretary, a Secretary, an Addl. Secretary, a Joint Secretary, an Addl, Joint Secretary, a Deputy Secretary or an Under Secretary to the Government or such other officer as may be specially empowered by the Government in that behalf and signature shall be deemed to be the proper authentication of such order or instrument." 10. This rule deals with the mode of authentication. The authorities who can authenticate the Government order have been identified in the rule. The rule does not envisage authentication by the parent Department or by the Administrative Department, therefor, the contention that order should be authenticated by the parent department or Administrative Department, is nothing but a wishfull endeavour to prompt the court to display indulgence, which is certainly not countenanced by law. In this backdrop, the only conclusion available is that the challenge is not sustainable. 11. In the result, the writ petition fails. It is dismissed. No order as to costs.