JUDGMENT : 1. In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir, the petitioner, seeks the quashment of the order bearing No. CEO/A/Legal/2614-16/16 dated 31st of March, 2016, issued by the respondent No.3. 2. The facts leading to the filing of the instant petition, as stated by the petitioner, are that the Government of Jammu and Kashmir announced/ framed a ‘Social Education Scheme’ way back in the year 1965 vide Government order bearing No.754-C of 1965 dated 20th of April, 1965. In pursuance of the said scheme, the petitioner, (alongwith others) was appointed as a Teacher in terms of order No. A/SOC/565-67 dated 16th of August, 1965, issued by the respondent No.2. In compliance with the order aforesaid, the petitioner joined the respondent Department and was, temporarily, posted at Boys High School, Devalgam, Tehsil and District Anantnag, for a period of one month, till he was substantively posting at Madura, Tral. It has been stated further that during the tenure of his initial service as Social Education Teacher, the petitioner, in addition to his own duties, was assigned the additional job of an Office Clerk, which, according to the petitioner, entitled him to one month’s leave on full pay, whenever and wherever he needed it, as also 720 days’ half pay leave by working in a vacation department. It is further stated that the petitioner worked with full dedication, devotion and to the best satisfaction of his superiors, as a result of which he was conferred the status of a substantive/ confirmed employee of the Department, thereby earning a right to terminal benefits like pension, gratuity, leave salary, etc. In March, 1977, the petitioner, it is stated, proceeded to pursue higher education by joining the ‘Post Graduate Course’ in History in the University of Kashmir. After completing the said course, the petitioner, on 14th of December, 1979 (F/N) submitted his joining report, but he was not allowed to resume his duties and his request for permission/ sanction of leave of whatever kind due at his credit was not decided. The petitioner was only directed to pursue the matter in the office of the Respondent No.3. Aggrieved thereby, the petitioner made a detailed representation to the Deputy Director, School Education Department, Kashmir, Srinagar, who, in turn, forwarded the same to the respondent No.3. The petitioner was only directed to pursue the matter in the office of the Respondent No.3. Aggrieved thereby, the petitioner made a detailed representation to the Deputy Director, School Education Department, Kashmir, Srinagar, who, in turn, forwarded the same to the respondent No.3. Thereafter, the petitioner was advised to wait on the ground that his leave case has been submitted to the higher authorities for further instructions. Since no action was taken in the case of the petitioner, the petitioner was constrained to approach this Court through the medium of SWP No. 52/2000. The said writ petition was entertained by this Court and, after hearing the counsel for the parties, it was on the 8th of February, 2000, that the same was disposed of with a direction to the respondents to consider the representation of the petitioner. Despite this orders of the Court, the respondents did not take any action in the matter, compelling the petitioner to file another writ petition bearing SWP No.354/2016, which is connected with the instant petition, seeking the following reliefs: a. Mandamus commanding the respondents to settle and decide the case of the petitioner for release of pension and terminal benefits in pursuance of applicable provisions of CSR’s contained in Articles 236 to 240-A (1) to (v) and release all the due arrears in favour of the petitioner within one month. b. Certiorari for quashing the orders or decisions taken behind the back of the petitioner depriving him of his entitled service benefits and declare these as non est in the eyes of law. c. Mandamus commanding the respondents to release the arrears of leave salary, increments, GP Fund and balance in SLI Fund and deposit the same in the Registry of the High Court within one month. d. Mandamus commanding the respondents to settle the leave case of the petitioner and sanction study leave for the period for which he availed the same and decide the remaining period as leave of whatever kind due till the date of retirement on superannuation enabling him the benefits under Article 230 of CSR’s on the analogy of the cases of the similarly situated employees.” 3. On 29th of February, 2016, this Court, in SWP No.354/2016, directed the respondents to consider the representation of the petitioner and take a decision in it in terms of Articles 236 and 240-A (1) to (4) of Civil Services Rules (CSR), within a period of two weeks. In compliance of this Order passed in the aforesaid petition filed by the petitioner, the respondent No.3, in terms of an order bearing No. CEO/A/Legal/52614-16/16 dated 31st of March, 2016, i.e., considered and rejected the claim of the petitioner for terminal benefits which forced and coerced the petitioner to file another writ petition bearing No. SWP No. 1066/2017 in which he challenged the legality of the said order and implored for the grant of the following reliefs:- (A) Certiorari for quashing the Order No. CEO/A/Legal/2614-16/16 dated: 31.03.2016 issued by respondent No.3 and declared it non est in the eyes of law. (B) Mandamus commanding the respondents to settle and decide the case of the petitioner for release of pension and terminal benefits on the analogy of the similarly situated cases dealt in the Government departments under applicable provisions of J&K CSR’s contained in Articles 236 – 240-A (I) to (V). (C) Mandamus commanding the respondents to release withheld amounts of the pay and allowance, leave salary, G.P. Fund, Gratuity and arrears of pension etc and make the disbursement of the same within a period of one month from date of court order. (D) Any other writ, direction or order that this Hon’ble Court may deem fit and proper in the facts and circumstances of the case be also in favour of the petitioner and against the respondents. 4. The respondents, in their objections filed in opposition to the writ petition, have vehemently denied the pleadings of the petitioner. It has been stated that the petitioner resigned and left the department on 1st of November, 1977 and then, as contended by him, after reporting back to resume his duties on 5th of January, 1981 and coming to this Court at the age of 69 years, it cannot lie in the mouth of the petitioner that he ought to have been proceeded against under rules and the law governing the subject at that point of time. The petitioner, according to the respondents, is losing sight of an important aspect that had he been candid and sincere in his approach/ conduct and had he really come forward at any point of time in the right earnest, he would not have lost his job in the manner he has lost it. It has been further averred by the respondents that in compliance of the interim order dated 29th of February, 2016, passed by this Court in SWP No.354/2016, the case of the petitioner has been considered, which has culminated in passing of the order bearing No. CEO/A/Legal/52614-16/16 dated 31st of March, 2016, whereby and whereunder the case of the petitioner for terminal benefits has been found to be meritless. 5. Heard and considered. 6. The petitioner, in an earlier round of litigation, filed a writ petition before this Court bearing SWP No.354/2016, which is connected with the instant petition, in which the respondents were directed to accord consideration to the case of the petitioner on the representation to be filed by him and take a decision on it in terms of Articles 236 and 240-A (1) to (4) of the Civil Services Rules (CSR), within a period of two weeks from the date a copy of the order is supplied to them. The respondents accorded consideration to the claim of the petitioner and by an order dated 31st of March, 2016, rejected his claim on the following grounds: 3. Whereas, as per entries recorded in the service book the petitioner left the department out of his own volition by way of resignation on 01.11.1977.” “9. Whereas, the claim of the petitioner is considered and has been found meritless at this point of time as the petitioner has left the department out of his own volition and left the children of his school high and dry and broke the bonds of relation between the employee and the employer without serving any notice to the employer for leaving his job. By absenting himself unauthorizedly, he has lost his job in terms of Article 128 of J&K, CSRs and as such his past service is forfeited.” 7. Paragraphs Nos. 3 and 9 of the order dated 31st of March, 2016, reproduced hereinbefore, run in complete contradiction with each other. By absenting himself unauthorizedly, he has lost his job in terms of Article 128 of J&K, CSRs and as such his past service is forfeited.” 7. Paragraphs Nos. 3 and 9 of the order dated 31st of March, 2016, reproduced hereinbefore, run in complete contradiction with each other. In Paragraph No.3, the specific stand of the Chief Education Officer, who is the architect of the said order, has been that the petitioner submitted the resignation on his own will and violation, whereas paragraph 9, states that the petitioner was shown the exit because he absented himself from duty and therefore, he lost his job in terms of Article 128 of J&K CSR and as such his past service is fortified. 8. The petitioner as is stated in the order aforesaid resigned on 1.11.1977. He is born on 27.02.1948 as recorded in his service particulars. The order of his termination has been passed on 29.02.2016 without assigning any reasons as to why such a huge delay has accrued in passing such an order. What happened during the interregnum is a history and a mystery which has not been unraveled by the respondents. The petitioner during this process ran from the pillar to the post. He filed the representations but to his dismay these were rejected without any rhyme and reason. In passing the order impugned no opportunity of being heard has been given or provided to the petitioner and the action taken thereon therefore, is violative of the principles of natural justice. 9. In case the department had the belief that the petitioner voluntary absented himself, the Government was expected to pass the order immediately. The respondents have contended that the petitioner submitted the resignation on 1st of November, 1977. It has taken the government about 39 years to pass the order from which what can be inferred is that the Government did not feel at any point of time that the petitioner had absented himself and to crown it all no enquiry has been conducted in the matter against the petitioner before passing the order impugned. The Government cannot take advantage of its own in action. The Government cannot take advantage of its own in action. This aspect of the case buttressed with the application of the principles of natural justice has been dealt with appropriately by a Division Bench of this Court in the case of Mushtaq Ahmad Khan vs. State of J&K reported in 2004 (II) SLJ 445 at Para’s 9 to 12 which are reproduced herein below verbatim:- 9. Learned Advocate General submitted that where a person remains absent for a long period, he would be deemed to have abandoned the job and in such a case he cannot insist on opportunity of hearing and a full-fledged enquiry; a mere notice calling upon him to report for duty and failure of the person to do so should be considered enough to treat him as having abandoned the service. He placed reliance on Dharmaratkmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal, (1999) 7 SCC 332 and Syndicate Bank v. General Secy., Syndicate bank Staff Assn., (2000) 5 SCC 65 . 10. These cases were decided on their own facts. In the former case, the delinquent did not dispute the facts nor offered any plausible explanation when opportunity was given to her to do so. In such situation, the plea that enquiry ought to have been conducted as provided under the statutory rules was rejected by the Supreme Court observing that giving opportunity is a check and balance concept so that no one's right is taken away without giving opportunity or without enquiry where statute so requires, but this is not necessary where charges are admitted and no plausible defence is placed before the authority concerned. In the latter case, the employee was unauthorisedly absent beyond the permissible limit of ninety days. In terms of the relevant clause of the Bipartite Settlement, notice was given to him to join the work within the prescribed period of thirty days, informing him that otherwise he would be deemed to have retired in terms of the Bipartite Settlement. Notice was refused by the person. In these facts, the Supreme Court held that the Bank rightly treated the employee to have voluntarily retired from service. Such voluntary retirement/termination without holding enquiry was not violative of the principles of natural justice. 11. As is often said, rules of natural justice are not strait-jacket formulae to be applied uniformly in all cases. In these facts, the Supreme Court held that the Bank rightly treated the employee to have voluntarily retired from service. Such voluntary retirement/termination without holding enquiry was not violative of the principles of natural justice. 11. As is often said, rules of natural justice are not strait-jacket formulae to be applied uniformly in all cases. Its application varies from case to case depending upon the facts and circumstances of the particular case. In other words, what shall be the extent of requirement of rules of natural justice would depend on the facts of a particular case. While in one case mere opportunity of hearing may satisfy the requirement of the rules, in another case a full-fledged enquiry may have to be held depending on the rules, if any. It would also depend, among other things, on the response of the delinquent - the nature of defence, if any, taken by him and the nature of action proposed. No hard and fast rule can be laid down. What is of essence is that he should be given a reasonable opportunity to offer defence. The requirements of rules of natural justice are: firstly, that the employee should know the nature of charge or accusation against him; secondly, that opportunity should be given to him to state his case; and thirdly, that the employer should act in good faith, that is to say, the action of the employer should be fair and reasonable. Proceeding on the assumption that on account of absence from duty beyond the prescribed period, he would be deemed to have abandoned his job and, accordingly, treated as out of employment would amount to acting on a presumption that he has no defence to offer. There may be genuine cases in which the person remained away from duty for good reasons, such as, law and order situation; illness or incarceration. Unless an opportunity is given to him to state his case, he cannot explain his absence. In the cases cited by learned Advocate General, as seen above, opportunity was given to the delinquent. They either did not respond to the notice or did not offer any plausible defence. 12. In the above premises, we are of the view that absence from duty, howsoever long, cannot result in automatic cessation of employment. In the cases cited by learned Advocate General, as seen above, opportunity was given to the delinquent. They either did not respond to the notice or did not offer any plausible defence. 12. In the above premises, we are of the view that absence from duty, howsoever long, cannot result in automatic cessation of employment. In all such cases the person concerned has to be given an opportunity of hearing and, depending on the nature of defence taken by him, further action should be taken. 10. Absence from duty is a mis-conduct under Article 128 of the JKSR but this mis-conduct has to be established in a departmental enquiry as postulated and provided under Rule 31 of J&K CSR of 1956. It has to be followed in vigor and rigor. Section 126 (2) of the Constitution of J&K protects an employee from the arbitrary action of the state in terminating him or reducing him to the rank without serving a show cause notice. The law on the point is well settled. Absence from duty is to be enquired into and, thereafter, a show cause notice is required to be issued to the delinquent. It is well settled law that before taking resort to Article 128 of CSR an enquiry has to be held in accordance with the rules of procedure and statutory notice as envisaged under Section 126 of J&K Constitution has to be served upon the employee. The impugned order is not the outcome of an enquiry and the matter has been examined by the CEO without hearing the petitioner. No evidence has been produced, nor has any opportunity been given to the petitioner to prove the statements that he had made in the representations. 11. The impugned order has been issued against the applicable statutory provisions contained in the J&K CSR's. An employee can make a request for voluntary retirement under Article 230, which prescribes either of the two qualifications i.e. 20 years of service or 45 years of age. This connotes that twenty years qualifying service is not mandatory in case the employee has attained the age of 45 years, even though his length of service is less than 20 years. Possession of either of the two qualifications would entitle him to five additional increments. This connotes that twenty years qualifying service is not mandatory in case the employee has attained the age of 45 years, even though his length of service is less than 20 years. Possession of either of the two qualifications would entitle him to five additional increments. The petitioner having a service of 1 and 6 months was conscious of his in-eligibility under this provisions, and therefore made a request that his case may be considered in relaxation of rules. The relaxation could be either in respect of the qualifying service prescribed under this Article or in respect of age. The petitioner had attained the requisite eligibility of having attained the age of 45 years long before the issuance of the impugned order. The respondents have not touched or discussed this aspect of the matter although the same was agitated by the petitioner before the department while submitting his representations and the same plea was raised before the Court also. The impugned order does not deal with this aspect of the matter. The respondents were bound to accept the request in view of a long delay on their part in taking the decision. The court order/judgment directed the respondents to decide the representation of the petitioner in which this plea was in substance. The respondents have given a complete goby to this aspect of the matter. 12. The petitioner had all along demonstrated his entitlement under the statutory provisions and also referred to the policy of the Government to encourage voluntary retirement which will leave room for the younger generation and provide opportunities to them in various Government positions. The Government in the recent years has come up with the policy of VRS and the concept of “golden handshake” has been introduced in Government and public sector enterprises. This policy was amplified and elaborated before a Division Bench of this Hon’ble High Court in a bunch of cases relating to teachers working in State Education Department in case titled Tahira & Ors. v. State of J&K, reported in 2003 (3) JKJ 345 , wherein the Division Bench of this Court held as follows:- “……. Lastly, there may be cases where some of the petitioners have genuine apprehensions. It has time and again been held by the Supreme court that, whatever by the nature of hardships, the concerned employee should, instead of approaching the Courts, go to the competent authority. Lastly, there may be cases where some of the petitioners have genuine apprehensions. It has time and again been held by the Supreme court that, whatever by the nature of hardships, the concerned employee should, instead of approaching the Courts, go to the competent authority. We may also say that threat perception, to an extent, is more a state of mind and each individual has his own characteristic way of perceiving things, depending upon various factors. If any of the petitioners fears going back to his or her place of posting on that score, he or she would be at liberty to have a golden hand shake with the Government on the terms we provide for in this judgment. The respondents being the high functionaries of the government and custodians of rule books dealing important matters relating to the finances of the state have failed to appreciate the spirit of the rules referred to in the court order/ decision, which already contained a reference to Article 240 (AAAA) of the CSR's which provides for the grant of pension to an employee on completion of 10 years of service. A reference is contained in the relevant statute book of fixation of pension @ 50% of the last drawn salary in terms of the SRO 122 of 2001. The respondents inserted a new provision in the CSR's in the shape of Article 240 A (V) which reads as under: ".......... Article 240 A (V). Notwithstanding anything contained in Article 240 A (1) of 240 A (IV) with regard to fixation of pension and maximum limits thereof, the amount of superannuation, special, retiring, compensation and invalid pension in respect of Government servants who opt for revised scales of pay of 01.01.1996 and retire on or after 01.01.1996 shall continue to be calculated at 50% of average emoluments as at present and shall be subject to minimum of Rs. 1275/per month and a maximum of Rs. 12,500/-......... "...........provided that in case of employees retiring on or after 01.01.2004, the amount of superannuation, special, retiring, compensation and invalid pension, shall continue to be calculated at 50% of average emoluments as at present and shall be subject to minimum of Rs. 1275/ + dearness pension of Rs. 638/ per month and a maximum of Rs. 12,500/ + dearness pay (D.A equivalent to 50% of basic pay]. The highest pay in the Government is Rs. 1275/ + dearness pension of Rs. 638/ per month and a maximum of Rs. 12,500/ + dearness pay (D.A equivalent to 50% of basic pay]. The highest pay in the Government is Rs. 25000/-......" These provisions contained in the statute book leave no ambiguity or doubt about the admissibility of the pension in favour of the petitioner. The state cannot blow hot and cold in the same breath. It has to pass a legally valid and justified order which can sustain the test of judicial scrutiny. Article 230 of Jammu and Kashmir Service Rules, 1956 provides for voluntarily retirement. Clause (i) of Article 230 reads as under:- ".......... 230 (i) A Government servant including the one listed in Schedule II of these voluntarily retire from service any time after completing 20 years/40 years completed six monthly period of qualifying services or 45 years of age, provided that he shall give in this behalf a notice in writing to the appointing authority at least 3 months before the date on which he wants to retire. such an officer shall be granted five years addition to the qualifying services as may have been put in by him, on the date he wants to retire, provided that his past record of services has been clean in the opinion of the appointing authority. Where in any such cases addition in qualifying services is granted pensionary benefits will be calculated on the basis of services as he would have put in had he retired at the normal age of superannuation ( namely 55 years (should be 58 years) on the services put in including five years addition whichever may be earlier...." From a reading of the above Article of the Regulations it is seen that the services prescribed for voluntary retirement is 20 years or 40 completed six monthly periods of qualifying services or 45 years of age. There is a further a condition that the retiring official shall give a three months prior notice of his intention to the Government. The Article further provided for five years addition to the qualifying service as may have been put in by such official. There might be certain petitioners, who have not as put in the requisite years of service so as to entitle them to apply for voluntary retirement. The Article further provided for five years addition to the qualifying service as may have been put in by such official. There might be certain petitioners, who have not as put in the requisite years of service so as to entitle them to apply for voluntary retirement. As a special case and as a one time exception, whatever service the petitioner has put in, can be deemed as qualifying service. Secondly, the Article provides for granting five years addition to the as may have been put in by him. As an incentive, such addition to the deemed qualifying service put in by such petitioners can be raised from five years to ten years. The requirement of prior notice of 3 months can also be waived. Further, again as an incentive, if a petitioner does not have five years qualifying service to entitle him to the retirement gratuity the service whatever put in could be deemed as qualifying service for that purpose” 13. The respondents have not said anything in the impugned order in respect of the court directions to consider the case of the petitioner in the light of the Articles 236 to 240 (1) to (V) of the J&K CSR's which provides basis for calculation of terminal benefits like gratuity and pension after completion of ten years of service. These provisions also contain principles for granting proportionate pension for each calculated year of qualified service on a substantive capacity. The respondents have shown complete ignorance to the rules applicable to the case of the petitioner despite being directed by the Court in this regard. The order impugned being illegal on the face of it cannot sustain the test of judicial scrutiny. 14. The petitioner had completed more than ten years of service when he submitted his resignation. The service book of the petitioner has been maintained upto 13.09.1977 when the last entry has been made in it as is brought to the fore from a copy of it attached to the petition. The petitioner as is reiterated here was appointed on 20th of April 1965. He had more than 12 years of continuous service to his credit. In Syed Mohd Shafi v. Union of India and Others, reported in 2003 (1) SLJ 268, this Court while deliberating on an identical issue as raised by the petitioner herein, this petition held as follows: “6. He had more than 12 years of continuous service to his credit. In Syed Mohd Shafi v. Union of India and Others, reported in 2003 (1) SLJ 268, this Court while deliberating on an identical issue as raised by the petitioner herein, this petition held as follows: “6. Counsel appearing for the petitioner has contended that respondent No. 2 has wrongly relied on Art. 177-A of the C.S.R. This article does not govern the service conditions of the petitioner because he has not worked as work-charge employee. Article 177-A applies in case of a work-charge employee for counting his 50% of work-charge service as qualifying service for pension together with the period of service rendered on regular establishment. The limitation of 20 years applies in his case and not in case of any other employee. According to him the pension of the petitioner is regulated by Art. 236 of the C.S.R. and a government employee become eligible for pension in case he completes ten years service. He has also referred Art. 240-AAA of the J&K C.S.R. wherein the minimum qualifying period for counting the pension has been fixed as ten years and maximum is 30 years. That case of the petitioner was considered under Art. 240 AAA and under J&K C.S.R. (Classification, Control and Appeal) Rules, 1956. The Government has the power to regularize the qualifying period of service in case of a government employee for pensionary and other benefits. The Government has inherent power being the rule making authority to regularize the service conditions for its employee for their benefits………” 15. Employees similarly situated with the writ petitioner working in the length and breadth of the government departments have been accorded relaxation in service to qualify for the voluntary retirement with retrospective effect. These cases have been cited as an example by the petitioner and the whole picture was before the respondents while passing the order. In two similarly situated cases of Shri Som Lal Magotra and Shri Arshid Andrabi, (curiously the latter is the learned counsel representing the petitioner herein this case) sanction has been accorded by the Government to their voluntary retirement and addition of the remaining period of service, to the qualifying service as would have put by the officer had he retired at the normal day of superannuation. The action of the state has to be transparent. The state cannot discriminate between similarly circumstanced persons. The action of the state has to be transparent. The state cannot discriminate between similarly circumstanced persons. Ours is a welfare state which aims at the goal where everyone is/has to be as far as possible looked after. The case of the petitioner could have been considered on the same parameters and analogy as has been evolved in the case of the above named persons. The respondents have treated the case of the petitioner as a sui generis case. 16. In view of the preceding analysis, the petition of the petitioner is allowed, as a consequence of which, the order bearing No. CEO/A/Legal/52614-16/16 dated 31.03.2016 issued by the Respondent No. 3-Chief Education Officer, Anantnag is quashed. The respondents are directed to consider the release of the pension and terminal benefits of the petitioner on the same analogy as has been evolved in the case of similarly situated persons and also release the withheld amounts of the pay and allowance, leave salary, G. P. Fund, Gratuity and the arears of pension in accordance with Articles 236 and 240-A (1) to (4) of Civil Services Rules (CSR). 17. The writ petition is disposed of accordingly along with connected MP(s).