SRINAGAR: The High Court of Jammu Kashmir and Ladakh has upheld the dismissal of a police constable accused of militant links and anti-national activities, ruling that the government was justified in invoking the extraordinary constitutional provision permitting termination without a departmental inquiry in the interest of the security of the State.
A Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar delivered the judgment in LPAW No. 268/2011, State of Jammu and Kashmir and others vs Ghulam Mohd. Tantray, allowing the appeal filed by the Union Territory administration and setting aside a 2011 judgment of a Single Judge which had quashed the dismissal order.
The judgment had been reserved on May 21, 2026, and was pronounced and uploaded on May 30, 2026.
Senior Additional Advocate General Mohsin Qadri appeared for the appellants, while Senior Advocate Syed Faisal Qadiri appeared for the respondent along with advocates Mir Adhan Zahoor and Salih Pirzada.
According to the court record, Ghulam Mohammad Tantray had joined the Jammu and Kashmir Police in 1991. In 2004, he came under investigation for alleged involvement in anti-national activities and was arrested in FIR No. 06/2004 registered at Police Station Zadibal, Srinagar, under Section 120-B RPC and Sections 7/24 of the Arms Act.
The government stated that Tantray was found to have established contact with a Pakistani militant and allegedly arranged a permanent hideout for him in the house of one Haji Mushtaq Gaji. During subsequent searches, arms and ammunition were allegedly recovered from the hideout, while two hand grenades were also recovered from Tantray’s rented accommodation.
Following the registration of the FIR, Tantray was placed under suspension, and a departmental inquiry was initiated. However, before the inquiry could proceed formally, the government invoked Section 126(2)(c) of the Constitution of Jammu and Kashmir, a provision corresponding to Article 311(2)(c) of the Constitution of India, and dismissed him from service through Government Order No. 367-GAD of 2007 dated April 2, 2007.
The government argued that holding a regular inquiry was not expedient in the interest of the security of the State because witnesses could be exposed to threats and the inquiry itself could compromise security interests.
Tantray had challenged the dismissal before the High Court through SWP No. 683/2007, arguing that he had been removed without being allowed to defend himself and without following the safeguards contained in Section 126 of the Jammu and Kashmir Constitution.
On April 29, 2011, a Single Judge of the High Court allowed the writ petition and quashed the dismissal order, observing that the government had failed to explain adequately why the already-initiated departmental inquiry was abandoned midway and why the exceptional constitutional power had been invoked.
The Single Bench had held that the government’s action lacked sufficient reasons and procedural justification.
The Division Bench, however, disagreed with the findings of the writ court and described the earlier judgment as “sketchy and seriously flawed.”
The Bench held that the writ court had failed to properly examine the contemporaneous record placed by the government, including Cabinet papers, interrogation reports and the findings of a committee headed by the Chief Secretary.
The court noted that the Home Department had prepared a detailed memorandum for the Cabinet explaining why a regular departmental inquiry was considered impracticable and inexpedient.
The memorandum stated that witnesses were unlikely to depose against the accused policeman due to fear of reprisals arising from his alleged militant connections and that even the inquiry officer could face threats to life and property.
The Division Bench observed that the Cabinet had approved the proposal and recommended action to the Governor, who thereafter exercised powers under Section 126(2)(c).
In a detailed judgment running through constitutional jurisprudence, the Bench extensively discussed the “doctrine of pleasure” under Article 310 of the Constitution of India and the safeguards available to civil servants under Article 311.
The court reiterated that while a departmental inquiry is ordinarily mandatory before dismissal from service, Article 311(2)(c) and the corresponding Section 126(2)(c) create an exception where the government is satisfied that holding such an inquiry would not be expedient in the interest of State security.
Relying upon Supreme Court judgments including Union of India vs Tulsiram Patel, AK Kaul vs Union of India, Shamsher Singh vs State of Punjab and S.R. Bommai vs Union of India, the Bench held that the Governor’s satisfaction is subject to limited judicial review but courts cannot sit in appeal over the sufficiency of material considered by the government.
The court observed that judicial review would be permissible only where the decision is mala fide, based on wholly irrelevant considerations, or unsupported by material.
The Division Bench also referred to the prevailing security situation in Jammu and Kashmir during the militancy years and observed that hostile elements had attempted to infiltrate government institutions and security agencies.
“We cannot remain oblivious to the ground situation which was then prevailing in the State of Jammu and Kashmir,” the Bench observed, adding that several government employees and even members of security and intelligence agencies had allegedly been used by “the enemy country” to further militant objectives.
The Bench described the respondent as “one such pawn in the hands of the enemy” who had allegedly acted against both his employer and the country.
Allowing the appeal filed by the government, the Division Bench set aside the 2011 Single Bench judgment and restored the dismissal order issued against Tantray.
“The writ petition is accordingly dismissed,” the court ordered.
