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2005 DIGILAW 368 (JK)

Sudershan Singh v. State Of J. &K.

2005-12-20

B.A.KHAN, J.P.SINGH

body2005
Per J.P. Singh, Judge 1. Aggrieved by Government Order No.215-HUD/LSG of 1995 dated 21-7-1995, whereby the Government had directed that all orders issued by Shri Lekh Raj Sharma from 7-6-1995 and onwards be treated as null and void, appellant, Sudershan Singh, approached the Writ Court for seeking a writ of certiorari for quashing the order, besides restraining official respondents from acting upon the same or disturbing the petitioners status and his continuance on the post of Secretary. 2. The Writ Court dismissed the writ petition in holding that Shri Lekh Raj Sharma, Director, Local Bodies, Jammu, was disabled on account of the accident and, as such, could not pass any order in favour of the petitioner, thereby upholding the order passed by the Government on 21st July, 1995. 3. Shri R.S. Thakur, learned counsel for the appellant, has questioned the order of the Writ Court, primarily, on the premise that Government Order No.215-HUD/LSG of 1995 dated 21-7-1995 had not been issued by the Government of Jammu and Kashmir, but had been so issued by the Commissioner/Secretary to Government, Housing and Urban Development Department, who was otherwise not competent to issue a Government Order. Learned counsel, thus, submits that the Writ Court was not right in dismissing the writ petition of the appellant and upholding Government Order dated 21-7-1995. Learned counsel further submitted that Order passed by Shri Lekh Raj Sharma, when he was in hospital on 7-6-1995, having suffered a serious accident, was valid in law, as a Government servant is an officer for 24 hours and his being in the hospital would not deprive him of his jurisdiction to pass the Order, whereby he had directed that appellant, Sudershan Singh, shall be deemed to have been promoted immediately prior to the promotion of Shri Ravi Kumar and that he will be entitled to all consequential benefits including notional fixation of pay and seniority. Learned counsel refers to Dr. S.N. Dhar and others v. State of Jammu and Kashmir and others, reported as 1986 KLJ 1; and Ramakant Shripad Sinai, Advalpalkar v. Union of India and others, reported as AIR 1991 SC 1145, to support his submission. 4. Learned counsel refers to Dr. S.N. Dhar and others v. State of Jammu and Kashmir and others, reported as 1986 KLJ 1; and Ramakant Shripad Sinai, Advalpalkar v. Union of India and others, reported as AIR 1991 SC 1145, to support his submission. 4. Shri Thakur made another submission that Inder Singh, Deputy Director, having been appointed temporarily to function as Director, Local Bodies, Jammu, vide Government Order No.C-2/HUD/LSG of 1995 dated 7-6-1995 was neither authorized nor competent to discharge the functions assigned to the post of Director, Local Bodies, and in that view of the matter, the counsel submits, would not deprive the substantive incumbent of the post to pass effective Orders regardless of his being away from the office. 5. Shri Adarsh Sharma, learned counsel for the respondents, on the other hand, submits that Shri Lekh Raj Sharma was in the hospital on 7th July, 1995 and was, thus, disabled to pass the order on 7th July, 1995 and that too, without hearing the affected party, i.e., Shri Ravi Kumar. He submitted that the Order is mala fide and was rightly annulled by the Government, which was aware of the disablement of Shri Lekh Raj Sharma to discharge the functions of Director Local Bodies and it was for this reason that the Government had made alternate arrangements authorizing the Deputy Director, Local Bodies, Jammu, Shri Inder Singh, to look after the duties of the post of Director, Local Bodies, Jammu, during the absence of the disabled Director. 6. We have heard learned counsel for the parties. Section 45 of the Constitution of Jammu and Kashmir provides as follows: Section 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 an order or instrument made or executed by the Governor or, as the case may be, by the Government of Jammu and Kashmir." 7. Government Order No.215-HUD/LSG of 1995 dated 21-7-1995, specifically records it to have been issued by the Order of Government of Jammu and Kashmir. This order has been authenticated to have been so issued by the Commissioner/Secretary to Government. 8. Section 45 (2) of the Constitution of Jammu and Kashmir, thus, does not permit the petitioner/appellant to call in question the Government Order on the ground that it has not been issued by the order of the Government of Jammu and Kashmir. The plea raised by Shri Thakur is misconceived and is rejected. 9. Second plea canvassed by learned counsel for the appellant that despite being in hospital, Director, Local Bodies, Jammu, continued to be a Government servant and, as such, authorised to pass Order dated 7-7-1997, be now examined 10. The judgments cited by learned counsel, are authorities for the proposition that a restraint Order can be issued against a Government servant, regulating his activities even after office hours. The case law cited by the learned counsel refers to the case of doctors, who had been restrained from doing private practice after the office hours. The judgments cited by learned counsel do not advance the plea raised by the learned counsel. 11. We fail to understand as to how a Government servant, despite being disabled to function as such, because of his being in the hospital, can be said to be a Government servant, on active Government service. Posting of the Government servants, is the prerogative of the Government. The Government, in its wisdom, had directed Shri Inder Singh, Deputy Director, Local Bodies, Jammu, to look after the work of Director, Local Bodies, Jammu, during the period the Director remains in the hospital. By this Government Order, the Director stood specifically ousted and deprived of the powers of Director during the period he remained in the hospital. This, in our opinion, disabled the Director from discharging the functions of the post of Director, Local Bodies, Jammu. Order passed by the Director, while in hospital, has, thus, been rightly annulled by the Government. 12. We do not see any error in learned Single Judges judgment in upholding the order impugned in the writ petition. 13. Shri Thakur tried to persuade us that the Government had treated Director, Local Bodies, as on duty on 7-7-1995. Order passed by the Director, while in hospital, has, thus, been rightly annulled by the Government. 12. We do not see any error in learned Single Judges judgment in upholding the order impugned in the writ petition. 13. Shri Thakur tried to persuade us that the Government had treated Director, Local Bodies, as on duty on 7-7-1995. The counsel referred to Government Order No.229-GAD of 1996 dated 12-3-1996, a copy whereof was made available to us during the course of hearing. We have seen this order, which does not come to the rescue of the appellant. This Government Order sanctions leave of the Director from 8-6-1995 to 18-6-1995. This Order does not, in any way, say that the Director was treated to be on duty on the date of accident. Regardless of that, treating the Director to be on duty on 7th June, 1995 by the Government which position, however, is not established, would not nullify the effect of incapacity of the Director, to function as Director on 7th June, 1995. 14. We have gone through Order dated 7-7-1995 issued by the Director, while in hospital, which is sought to be relied upon by the writ petitioner/appellant to seek its operation and consequent benefits arising therefrom. We are at a loss to appreciate as to how a person, having met with a serious accident and lodged in a hospital for his treatment, could pass such an order, despite the fact that Government had treated him to be disabled from discharging the duties of the Director and it, instead, had authorised Shri Inder Singh, Deputy Director, to discharge the duties of the office of Director, and that too without hearing the affected employee Ravi Kumar. This Order of the Director does not appear to have been issued bona fide. 15. We, thus, do not see any illegality or error in the judgment of learned Single Judge, whereby he has upheld the Government Order No.215-HUD/LSG of 1995 dated 21-7-1995, which had set at naught the Order issued by the disabled Director while in hospital on 7-7-1995. The appellant cannot derive any benefit out of such an Order, which smacks of bias in favour of petitioner and cannot be said to be in the interests of administration. 16. The appeal of the appellant is misconceived, which is, accordingly, dismissed.