Judgement

SEN, J. :- This appeal on certificate directed against the judgment and order of the Jammu & Kashmir High Court dated September 29, 1961 raises a question as to whether the late Shri B. N. Nehru, father of the present appellants, (hereinafter referred to as the petitioner) was entitled to pension under sub-s. (3) of S. 28 of the Jammu & Kashmir Municipal Act, Samvat 1998, as amended by the Jammu & Kashmir Municipal (Amendment) Act, Samvat 2008, read with R. 5 of the Jammu & Kashmir Pension Rules. 1951.

2. The facts leading up to the appeal are as follows, On January 1, 1925 the petitioner was appointed to be the salaried President of the Municipal Committee, Srinagar. He continued to function as such till August 14. 1939 when he was abruptly removed from his office by an Order-in-Council dated August 8, 1939 on the ground of gross inefficiency. culpable negligence and deliberate evasion of responsibility. His appeal as well as the review to His Highness the Maharaja of Kashmir were withheld by Ramchandra Kak. the then Chief Secretary and he dismissed the same. In 1945 the petitioner brought Civil Suit No. 17 of Samvat 2002 in the Court of the District Judge for declaration that the termination of his service was wrongful and that he was entitled to continue in his office and to all his rights and privileges. The District Judge, Srinagar by his judgment dated January 5, 1953 substantially dismissed the suit except that he granted a decree for one months wages in lieu of notice as required under S. 28(3), on the ground that the petitioner held his office during the pleasure of the Government and therefore the Court had no jurisdiction to entertain any suit for declaration of his wrongful dismissal. Although the learned District Judge held that the Court could not grant any relief, except to the extent indicated, he adversely commented upon the arbitrary and illegal manner in which the petitioner had been removed from his post without formulation of any charges and without being afforded an opportunity of a hearing which was not warranted by the facts and the Rules. On appeal, the High Court in First Appeal No. 12 of 2010 affirmed the decree of the learned District Judge. It shared with the learned District Judge its unhappiness about the abrupt manner in which the services of the petitioner had been dispensed with the left open the question of grant of some gratuity or subsistence allowance to compensate him for the loss sustained and the hardship caused.

3. The petitioner made a representation to the Government in accordance with the directions of the learned District Judge for grant of pension but the same was rejected by the Government on September 4, 1954 on the ground that his services having been terminated on August 14, 1939 i.e. prior to September 20, 1944, the date mentioned in R. 5 of the Rules, he was not entitled to any pension or subsistance allowance. After rejection of his representation, the petitioner moved the High Court by a petition under Art. 32(2A) for the issuance of a writ in the nature of mandamus and other suitable directions or orders directing the respondents to reinstate him in service and pay him his arrears of salary from August 14, 1939 when the impugned order of termination was served on him till he reached the age of superannuation and for pension under Ss. 34(2)(c) and 34(3) of the Act read with R. 5 of :the Rules. In view of the aforementioned judgment by the High Court in the appeal, the petitioner gave up his challenge to the impugned order of termination in the writ petition at the hearing before a learned single Judge and confined his submission for pension under Ss. 34(2)(c) and 34(3) of the Act read with R. 5 of the Rules. The learned single Judge (Kilam, J.) by his judgment and order dated June 6, 1958 (reported in AIR 1959 J and K 127), allowed the writ petition holding inter alia that the impugned order was in effect an order of compulsory retirement of the petitioner inasmuch