Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 152 (JK)

Gh. Rasool Magray v. State Of J. &K.

2005-05-26

S.K.GUPTA

body2005
1. By means of this writ petition preferred under Article 226 of the Constitution of India, read with Section 103 of the Constitution of Jammu and Kashmir, the petitioner has called in question the validity of the Government Order No.1550-GAD of 2003 dated 9th December, 2003, by which he has been compulsorily retired from service with effect from forenoon of 9th December, 2003. The order further records that the Government is of the opinion that it is in the public interest to do so.� The order further recites that the petitioner has already attained 48 years of age. Service profile of the petitioner gatherable from the petition is that he came to be appointed in Agriculture Department in the year 1973 and was promoted as Plant Protection Operator in the year 1976. The petitioner, however, continued on the post when he came to be declared as quasi permanent on 22-06-1981 in the Department with effect from 01-08-1976. The petitioner also came to be promoted as Supervisor in the Food and Supplies Department. The petitioner, thereafter, was asked to hold the charge of the post of Chief Inspector in his own pay and grade in addition to his own duty, vide Government Order No.55-FST of 1998 dated 21-05-1998. He was, however, subsequently allowed charge allowance of the post vide order No.69-FST of 1998 dated 16-06-1998 for holding the additional charge of the post of Chief Inspector, Marwah. It is further stated that during his posting as Chief Inspector, Marwah, Deputy Commissioner, Doda, recommended the sanction of grade of the Chief Inspector, the post to which he may be promoted. The case of the petitioner was also recommended to the Government by the Director, Food and Supplies, to allow him the grade of the post of Chief Inspector. The grade of Chief Inspector, however, was released to the petitioner on 24-09-2001 vide Government Order No.57-FS of 2001. By another Order No.76-SW of 2000 dated 28-03-2000, Government asked the petitioner to hold the charge of two different blocks of ICDS in addition to his own duties. His work and conduct was commended by all and one in the Department. The petitioner while holding the post of Chief Inspector, Consumer Affairs and Public Distribution Department, Kashmir, was served with the impugned order of compulsory retirement from service. 2. His work and conduct was commended by all and one in the Department. The petitioner while holding the post of Chief Inspector, Consumer Affairs and Public Distribution Department, Kashmir, was served with the impugned order of compulsory retirement from service. 2. The Order of compulsory retirement from service has been challenged by the petitioner on the grounds that it is subject to judicial review; it has been resorted to by the Government as a cover or an excuse to get rid of him; and that after having regard to the service record of the petitioner, no reasonable or prudent man could have formed a bona fide opinion to remove him from service in public interest; the order is based on consideration other than service record; that the order has not been passed in public interest; that the petitioner is a man of integrity and hard working and has risen from one position to the other and discharged his responsibilities effectively and performed the function efficiently, honestly and to the satisfaction of the supervising authority; the committee in terms of Government Order No.713-GAD of 2003 dated 10-06-2003, was instructed by the Government to consider the cases of the officials/officers on the basis of their service record in terms of Article 226(2) and Article 226(3) of the J&K Civil Service Regulations, but the committee instead had travelled beyond the service record and had extraneous considerations, and passed the impugned order; the committee had not considered the entire record including latest performance reports of the petitioner; the petitioner has neither been found guilty of misconduct nor has become found dead wood�; no adverse remarks till date have been communicated to the petitioner; the action of the Government suffers from inconsistency and lacks bona fides; the Confidential Reports and Annual Performance Reports of the petitioners are excellent� and, therefore, he is entitled to continue in the service till the date of his superannuation; it is not on the basis of the material of service record but something else that the petitioner has been chosen on selective basis in order to punish him under the cover of premature retirement; the order is not founded on valid material and, thus, arbitrary and is outcome of abuse of the authority and above all based on no material. The petitioner has, therefore, challenged the validity of the order broadly on these grounds. 3. The petitioner has, therefore, challenged the validity of the order broadly on these grounds. 3. In repudiating the claim of the petitioner in their detailed reply, the respondents have submitted that the petition raised a disputed question of fact; none of the rights of the petitioner has been violated; that the Government having taken measure for cleanness in the administration and one of such measures had been to see the officers/officials with respect to whom it will be found that it is not in the interest of administration and for the good of the public, such officers shall be prematurely retired by taking recourse to Article 226 (2) and Article (3) of the J&K Civil Service Regulations; it constituted a committee vide Government Order No.713-GAD of 2003 dated 10-06-2003 comprising of the Chief Secretary, Financial Commissioner and Commissioner/Secretary to Government, Law Department; the committee after holding a series of meetings, taking note of the principles and guidelines laid down by the various High Courts and the Apex Court in catena of cases and after scrutiny of records and studying other relevant factors of various officers/officials including the petitioner, came to the conclusion that it is in the interest of administration and public in general that the petitioner, who has already completed 22 years in the Government service, shall be prematurely retired from Government service; the petitioner was placed under suspension in the year 1995 on account of shortages in the godowns to the tune of Rs.15,39,394.00; so the order has been passed by the competent authority after duly applying its mind; petitioner has been found dead wood�; the petitioner cannot be said to be classified as excellent�. The respondents further denied that the order has been made on the basis of any mala fide considerations; the committee had considered all the relevant factors and service record thoroughly and after satisfying itself, recommended premature retirement of the petitioner; it was after due regards given to the record and other circumstances and after satisfying itself that the petitioner is a dead wood�, the order has been passed and, as such, it does not require any interference; that the premature retirement order is prima facie in public interest; the petitioner was placed under suspension twice and his retirement is in public interest. The respondents further stated to have considered the service record and other factors, which include embezzlement, for the purpose of removing the dead wood� and while doing so, the petitioner was found to be dead wood� and, accordingly, removed from service vide the impugned order; that the conclusion of the committee is based on the thorough scrutiny of the service record and other relevant factors, which led to the passing of the order of removal of the petitioner from service in public interest; that the order has been passed in accordance with the Rules after taking a detailed review of the records and other material and, thus, is not a punishment; that the competent authority has arrived at an opinion after due consideration of the record and other material; that the petitioner has neither made the members of the committee as a party to the case nor challenged their report and, therefore, the allegations of mala fides cannot be looked into; that the order has been passed on valid material by the competent authority after proper scrutiny of the records. 4. The petitioner has also filed rejoinder in which it is stated that neither service record of the petitioner was considered nor the impugned order of compulsory retirement is based on the service record; that no officer or official from Consumer Affairs and Public Distribution Department was nominated as Member, who alone would have been in a better position to speak about the work performance of the officer(s) belonging to the said Department; that the order passed by the respondents for his premature retirement contravenes the principles governing such matters, as is laid down by the High Courts and the Supreme Court; that the service record of the petitioner, which has been produced with the writ petition, does not lead to the conclusion that the petitioner has become a dead wood�; that in terms of Government Order dated 10-06-2003, the Committee was not required to consider other relevant factors�, which were not part of the service record, and, therefore, could not creep into the formation of their opinion that after the petitioner was placed under suspension vide order dated 02-01-1995, the Assistant Director was asked to inquire into the matter and submit his report within a period of one month; however, no inquiry was conducted by the Inquiry Officer and, consequently, the petitioner was reinstated on 05-07-1995. The petitioner further stated that mere suspension is neither a ground nor material relevant for formation of opinion contemplated in Article 226 of the J&K Civil Service Regulations and since no inquiry was conducted, the order of suspension was clearly unjustified; that the order of premature retirement has been passed admittedly not only on the basis of service record but on other considerations�, which is patently illegal. The Committee having considered other circumstances� clearly shows arbitrariness in the decision making process. The order being not in public interest is illegal and unconstitutional. As regards the second suspension, it is stated that the petitioner was placed under suspension on 29-03-2001 on the same basis as the first suspension order was passed and thereafter the petitioner was reinstated and the competent authority clarified the position that there is nothing serious proved against the petitioner, as the adjustment of the account has already been effected by the Accounts Branch/Chief Accounts Officer. The Committee has not taken into consideration the facts subsequent to the suspension. 5. The petitioner further submitted that he has not been found guilty of any embezzlement nor any such allegations have been proved against him and his service record, therefore, does not justify the premature retirement. The petitioner has also placed on record the photocopies of his Annual Performance Reports, which clearly depict his performance classified as excellent/very good officer�. Based on his performance reports, no reasonable man or a group of persons can form an opinion of compulsorily retiring the petitioner. That the mala fide of the Committee, according to the petitioner, is established from the fact that though he has an excellent service record, yet the Committee recommended his compulsory retirement. Satisfaction of the Committee is not, therefore, based on his service record, but on other considerations�. The Committee having not given the details of other circumstances�, considered alongwith service record of the petitioner, has virtually defeated the public interest and, thus, order impugned is without application of mind and in violation of provisions of Article 226 of the J&K Civil Service Regulations. It was further pointed out by the petitioner that first suspension and the second suspension are both based on the same grounds and after inquiry it was found that the petitioner has already rendered the accounts and there is nothing outstanding against him. It was further pointed out by the petitioner that first suspension and the second suspension are both based on the same grounds and after inquiry it was found that the petitioner has already rendered the accounts and there is nothing outstanding against him. The orders of suspension having been taken by the Committee as an isolation event for the purpose of Article 226 of the J&K CSR, is illegal and unconstitutional. Once the petitioner has been reinstated by the Department after having been satisfied that the accounts have been rendered by him, the order of suspension loses its relevance and virtually disappears having been found groundless and unjustified. The suspension of the petitioner having entered the satisfaction of the Committee being not a relevant factor, would itself vitiate the impugned order of compulsory retirement, which is not in public interest�. The performance reports placed on record by the petitioner have not been specifically denied by the respondents. The petitioner further denied to have been involved in any embezzlement, a ground taken into consideration by the respondents. No case of embezzlement has been registered against the petitioner nor has he been charge sheeted nor any enquiry to this effect was held; that the consideration of non-existent allegations of embezzlement against the petitioner by the respondents in formulating the impugned order renders it mala fide for not having been in public interest�; that the impugned order has been passed on other considerations� which are irrelevant and do not flow from the service record of the petitioner; that the action of the respondents based on other factors� is outside the purview of law seriously, requires to be judicially reviewed. In support of his contention, the petitioner has also placed on record various documents including the Annual Performance Reports pertaining to the years 1997-98, 1998-99, 1999-2000, 2001-02, 2002-03 and 2003 showing that the petitioner has been classified as excellent/very good� officer. 6. Mr. Z.A. Shah, learned counsel appearing for the petitioner, submits that various documents have been placed on record including the Annual Performance Reports relating to the years 1997-98, 1998-99, 1999-2000, 2001-02, 2002-03 and 2003, clearly showing that the petitioner has been classified as excellent/very good� officer. 6. Mr. Z.A. Shah, learned counsel appearing for the petitioner, submits that various documents have been placed on record including the Annual Performance Reports relating to the years 1997-98, 1998-99, 1999-2000, 2001-02, 2002-03 and 2003, clearly showing that the petitioner has been classified as excellent/very good� officer. His further submission is that in terms of Government Order No.55-FST of 1998 dated 21-05-1998, the petitioner has been asked to hold the charge of the post of Chief Inspector, Marwah, in his own pay and grade in addition to his own duties. Vide another Government Order No.69-FST of 1998 dated 16-06-1998, the petitioner was granted charge allowance of this post; that it was on the recommendation of the Director, Food and Supplies Department, the grade of the post of Chief Inspector, Marwah, has been released vide Government Order No.57-FS of 2001 dated 24-09-2001. The petitioner was also asked to look after the district Anantnag vide Office Order No.Dfst/Adm/G-47 dated 22-07-2002 in addition to his own duties. It was in the month of September, 2003 that the Minister for Consumer Affairs and Public Distribution, upon his tour in the area held public meetings and it was impressed upon him that the old arrangement of sending supplies to Marwah and Marwan should be restored, which arrangement was under the petitioner. It was on the recommendations of the Minister and under his instructions that vide Order dated 3rd October, 2003, the Director, Social Welfare Department, Jammu, ordered that the old arrangement as made by the Department in terms of Government Order No.76-SW of 2000 dated 28-03-2000, shall continue and petitioner shall continue to look after the work of ICDS Project Marwah and Marwan, in addition to his own duties. The petitioner™s advocate, Mr. Z.A. Shah, further submitted that in his tour note, the Minister has recorded that the people of the area have appreciated the role of the Chief Inspector, Consumer Affairs and Public Distribution in the area; that the documents placed on record by the petitioner with the petition have not been denied by the respondents. 7. The petitioner™s advocate, Mr. Z.A. Shah, further submitted that in his tour note, the Minister has recorded that the people of the area have appreciated the role of the Chief Inspector, Consumer Affairs and Public Distribution in the area; that the documents placed on record by the petitioner with the petition have not been denied by the respondents. 7. Alongwith their reply, the respondents have annexed a copy of the Government Order No.713-GAD of 2003 dated 10-06-2003 in terms of which the Committee constituted for considering the cases of officers/officials for premature retirement in terms of Article 226 of the Jammu & Kashmir Civil Service Regulations, was re-constituted; the Government Order No.887-GAD of 2003 dated 11-07-2003, in terms of which Principal Secretary and Secretary to Government, Planning and Development Department have also been nominated as members of the Committee. Another document placed on record with the reply is Order No.80/Dfsk of 1995 dated 02-01-1995, which shows that the petitioner was placed under suspension pending enquiry into the misappropriation of food grains at Marwah/Wadwan and appointment of Assistant Director, Anantnag as inquiry officer. Mr. B.S. Salathia, learned Additional Advocate General appearing for the respondents, submitted that the Committee after scrutinizing the record and other relevant factors� of various officers including the petitioner, reached the conclusion that it is in the interest of administration and public in general that the petitioner, who had already completed 22 years of service, shall be prematurely retired from Government service; that this action of the Government with the sole object to weed out dead wood� and corrupt officers from the administration. He also stated that judicial review with regard to the sufficiency or adequacy of the material considered by the Committee for passing the impugned order is not permissible; that the Court can only look into as to whether on the basis of the available record, can the Committee formulate an opinion that it is in the public interest to retire the petitioner prematurely; that the petitioner was twice placed under suspension and Committee while taking into consideration other factors� including the service record, found the petitioner dead wood� and after due application of mind found that his continuation in service was detrimental in public interest and, therefore, he should be compulsorily retired. 8. I have heard the learned counsel for the respective parties and considered their rival contentions. 8. I have heard the learned counsel for the respective parties and considered their rival contentions. It is pertinent to point out that the record produced by the Additional Advocate General, Mr. B.S. Salathia, only pertained to the General Administration Department and did not produce the record of the Department (Food and Supplies Department) in respect of the petitioner including his Annual Performance Reports. 9. Article 226 (2) of the Civil Service Regulations confers powers on the Government to retire a Government servant at any time after he has completed 22 years/44 completed six monthly periods if it is, in his opinion, in public interest. Article 226(2) reads as under: 226 (2) Notwithstanding anything contained in these Regulations Government may, if it is of the opinion that it is in the public interest to do so, require any Government other than the one working on a post which is included in Schedule II of these Rules, to retire at any time after he has completed 22 years/44 completed six monthly periods of qualifying service or on attaining 48 years of age; provided that the appropriate authority shall give in this behalf a notice (in one of the forms prescribed in annexures A and B hereto as the case may be), to the Government servant at least 3 months before the date on which he is required to retire or 3 months of pay and allowance in lieu of such notice. Such a Government servant shall be granted pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement.� 10. The object of this rule is to get rid of the Government servant, who has become dead wood�. This order is made only to do away with the service of only those employees who have lost their utility, become useless and whose further continuance in service is considered not to be in public interest. Where the order of compulsory retirement is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retired from service, if challenged, the court can, in appropriate cases, lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned Government servant. 11. The respondents in their affidavit in counter clearly made a categorical statement that the Committee after scrutinizing the record and other relevant factors� of various officers including the petitioner, came to the conclusion that in the interest of administration and public in general, the petitioner who had already completed 22 years in Government service shall be prematurely retired from Government service. In para X of the reply to grounds, it was again reiterated that for the purpose of removing dead wood�, the service record and other factors, which include embezzlements, have to be taken into consideration and while considering the same, the petitioner has been found dead wood� and the impugned order has been issued against the petitioner. 12. The petitioner alongwith his rejoinder placed on record various documents including the reports of the Chief Accounts Officer of the Food and Supplies Department, Srinagar, vide No.Dfsk/Acctt/1321-23 dated 27-06-1995, which pertained to Reconciliation/verification of Yourdoo/Batta sale centres for the period of Ghulam Rasool Magray, in which, as regards the petitioner, it has been record as under: In total Rs.10,25,976.00 is adjustable against total shortages of Rs.15,39,394.95. It can be inferred that the storekeeper has not embezzled the Government grains instead faulty maintenance of accounts and carelessness on the part of the storekeeper has amount is likely to get changed as and when reconciliation is completed. Since considerable amount stands adjusted and balance amount will get further changed when the pending treasury remittances will be got confirmed by the storekeeper from Treasury Officer Marwa/Warwan for which act storekeeper has been relieved, it is as such, proposed/recommended that the storekeeper may please be reinstated. The photostat copies of the statement/letters/remittances on which basis adjustment of Rs.10,25,976.00 have been effected are enclosed for ready reference and record�. 13. In view of the approval of the shortage committee based on the report of the Chief Accounts Officer, Food and Supplies Department, Srinagar, Director, Food and Supplies, Kashmir, vide Order No.96 DFSK 1995 dated 05-07-1995 ordered the petitioner to be reinstated with a direction to complete the pending reconciliation forthwith. 13. In view of the approval of the shortage committee based on the report of the Chief Accounts Officer, Food and Supplies Department, Srinagar, Director, Food and Supplies, Kashmir, vide Order No.96 DFSK 1995 dated 05-07-1995 ordered the petitioner to be reinstated with a direction to complete the pending reconciliation forthwith. The petitioner was, however, placed under suspension pursuant to the communication received from the Administrative Department vide Order dated 29-03-2001, but again in view of the report of the Chief Accounts Officer, food and Supplies Department, Srinagar dated 27-04-2001 and various other communications, the petitioner was reinstated vide order dated 03-05-2001 by the Director, Food and Supplies Department, which reads as under: Government of Jammu and Kashmir Directorate of Food and Supplies Srinagar ¦.. SUB :-Alleged outstanding of Rs.15.00 lacs against Shri Ghulam Rasool Magrey. REF:- i. Office order No.241 Dfsk of 2001 dt. 29.3.2K1. ii.Chief Accounts Officer™s O.M. No.Dfsk/Acctts/2136-37 dated 27.04.2001. .-. Order No : 24 Dfsk of 2001 Dated : 03-05-2001 Whereas, Shri Ghulam Rasool Magrey Incharge Chief Inspector Marwa/Wadwan was placed under suspension vide office order No.241 Dfsk of 2001 dated 29.03.2001; Whereas, perusal of various communications of Chief Accounts Officer reveal that adjustment of accounts has already been effected by the Accounts Branch/Chief Accounts Officer and directions for adjustment of some of accounts has been conveyed to Asstt. Director Anantnagh, as such nothing serious has been proved against Shri Ghulam Rasool Magrey the then Storekeeper Bata/Yardoo centres. As such he is reinstated with immediate effect. His period of suspension be treated as leave whatever kind due to him. Sd/- Director Food and Supplies Deptt. Kmr.� Mr. Z.A. Shah, learned counsel appearing for the petitioner, submitted that this order of reinstatement of petitioner after second suspension was on the basis of the reconciliation/verification of accounts of Marwah dated 27-04-2001, of the period of the petitioner which is reproduced as under: Government of Jammu and Kashmir Directorate of Food and Supplies Srinagar Kashmir O.M. No.Dfsk/Accts/2136-37 Dated : 27-04-2001 Sub :-Reconciliation/verification of accounts of Marwa/Warwan for the period of 1987-88 to 10/1992. Ref:- D.D. Adm™s letter No.Dfsk/Adm/SH/610 dated 30.10.2k. Reference is invited to letter Nos.Dfsk/Accts/2756-58 dated 31.10.1994, Dfks/Accts/1321-23 dated 27.6.1995 and Dfsk/Accts/2851-52 dated 24.07.1998 on the subject captioned above wherein details of unadjusted amounts have been indicated against the then Storekeeper Yardoo and Batta Sale centres. Ref:- D.D. Adm™s letter No.Dfsk/Adm/SH/610 dated 30.10.2k. Reference is invited to letter Nos.Dfsk/Accts/2756-58 dated 31.10.1994, Dfks/Accts/1321-23 dated 27.6.1995 and Dfsk/Accts/2851-52 dated 24.07.1998 on the subject captioned above wherein details of unadjusted amounts have been indicated against the then Storekeeper Yardoo and Batta Sale centres. Against the total outstandings of Rs.15,39,394.95 an amount of Rs.3,20,376 only remitted into Bijbehara treasury on 14.11.1994 was shown to have been adjusted in his accounts. The latest position of outstandings/unadjusted amounts as asked for is reproduced here as under:- 1. Rs. 4.52 lacs Payments shown to have been made to Markbans for carriage of foodgrains vide A.D. Anantnaghs letter No. even dated 12.06.1995. The bills are reportedly lying in ADs Office. 2. Rs. 1.61 lacs Representing the cost of 366 Qtts. of wheat/grains shown as deteriorated and same shall remain provisionally debited to S.K. till it is finally written off by the competent authority. 3. Rs. 3,20,376.00 Amount remitted into Bijbehara treasury on 14.11.1994. 4. Rs. 92,600.00 Remitted into Marwah Treasury vide TR No.5 and 21, dated 28.10.1992. 5. Rs. 31,501.80 Amount remitted into Kokernagh treasury vide TR No. 48 dated 08.04.1991 6. Rs. 59,917.00 Remitted into Office chest under receipt No. 49471/4, dated 30.10.1998 7. Rs. 1,26,000 Amount representing the less sale proceeds on account of carriage charges to headload rationees @ Rs.70/- Qtt. In terms of D.C. Dodas order No. 1635-39/S dated 21.11.1990 8. Rs. 1,79,548.00 Representing carriage bills of Rs. 1,16,863.00 1996-97 from Govran to Inshan and Inshan to various sale centres of Marwa/Warwan. The Storekeeper requests for their adjustment against his outstandings. 14. The amounts remitted into the different treasuries and the office chest have been adjusted now as per the treasury advices received from the respective Treasury Officers. 15. Similarly an amount of Rs.1,26,000 on account of less remittances because of carriage charges paid to head load rationees in terms of D.C. Doda™s order referred to above has been adjusted. 16. The carriage charges paid to Markbans can be, if approved by the Director, Food and Supplies, adjusted by the Asstt. Director concerned by contra-crediting the respective Sale centres/Storekeeper so as recover the Govt. money. Since the carriage charges to the tune of Rs.4.52 lacs have been reportedly paid on the instructions of Asstt. Director out of sale proceeds, this amount can be debited to him till such time the bills are drawn and adjustment effected. 17. Director concerned by contra-crediting the respective Sale centres/Storekeeper so as recover the Govt. money. Since the carriage charges to the tune of Rs.4.52 lacs have been reportedly paid on the instructions of Asstt. Director out of sale proceeds, this amount can be debited to him till such time the bills are drawn and adjustment effected. 17. Once the carriage bills are adjusted by the Asstt. Director concerned and the deteriorated stocks written Off there shall remain nothing outstanding against the then Storekeeper Yardoo/Batta namely Shri Gh. Rasool Magrey. Sd/- Chief Accounts Officer Food and Supplies Deptt. Sgr. Dy. Director (Adm) CC: Director, Food and Supplies Kashmir for inf. And n/a please.� 18. The order of reinstatement concludes that nothing serious has been proved against Ghulam Rasool Magray and period was suspension was directed to be treated as on leave of whatever kind due to him. Letter dated 03-12-2003 addressed by the Assistant Director to the Deputy Director, Administration, has also been placed on record, which comments upon the work of the petitioner in the areas of Marwah/ Warwan of his honesty and dedication. Mr. Z.A. Shah further referred to the work of the petitioner during militancy period and the communication No.S1/99/697-99 dated 13-05-1999 of the Deputy Commissioner, Doda, vide which he informed the Commissioner/Secretary to Government, Food and Supplies Department, in regard to the petitioner as under: OFFICE OF THE DISTRICT DEV. COMMISSIONER, DODA� The Comm./Secretary to Government, Food and Supplies Department, Jammu and Kashmir Government, Jammu. No:-S1/99/697-99 Dated :-13.05.99 Sub: Recommendations for promotion as Chief Inspector in Food and Supplies Department. ¦.. Sir, Shri Ghulam Rasool Magray who is posted at Marwah as Incharge Chief Inspector since June™94 and is still working there. 19. As you are aware that Doda District is militancy infested District particularly Marwah area is militancy prone area, Shri Magray is working as Incharge Chief Inspector at Marwah very dedicately and sincerely and during his tenure as Incharge Chief Inspector, Marway, the Administration has faced no problem on account of shortage of ration in Marwah area. Shri Magray is very loyal, dedicated and sincere person and working hard for the convenience of general public even when there are great hardships in Marwah area. Shri Magray is local of Marwah and is an asset of the F&S Department. 20. Shri Magray is very loyal, dedicated and sincere person and working hard for the convenience of general public even when there are great hardships in Marwah area. Shri Magray is local of Marwah and is an asset of the F&S Department. 20. Shri Magray is presently working as Incharge Chief Inspector whereas basically he is Supervisor, F&S department in the pay scale of Supervisor. As Shri Magray worked hard during the militancy period to the entire satisfaction of his superiors and general public, he required to be encouraged by way of promotion as Chief Inspector, Food and Supplies Department. 21. It is, therefore, recommended that the promotion case of Shri Magray may kindly be considered for promotion as Chief Inspector, Marwah, so that the morale of the employee can be encouraged. Yours faithfully, Sd/- Deputy Commissioner, Doda. ˜RCS/ Copy to the:- 1) Director, Food & Supplies Department, Srinagar.� 22. According to the petitioner™s advocate, a perusal of the material placed on record does not leave any doubt that no man of ordinary prudence can form an opinion that the petitioner had become dead wood� and/or his continuation in the Department is not in public interest. His further submission is that the order of premature retirement purportedly passed under rules which govern service condition, can be valid only if it is so passed in accordance with the rules. He further submitted that Article 226 of the J&K CSR requires that the Government should form an opinion that it is in public interest� to prematurely retire a serving officer. In that event, it is for the Government to establish by producing relevant material. It is also contended that public interest� means inefficiency and dishonesty� in the performance of the duty by a Government servant. For the purposes of forming a bona fide and genuine opinion, it is imperative that the entire record is considered by giving more preference to the recent records; that the order of premature retirement cannot be founded on mala fide or can be passed arbitrarily. The Court interference is necessitated in appropriate cases to unfold and see whether the order is founded on any misconduct of the Government servant concerned or the order has been made bona fide and not with any extraneous purposes. 23. Mr. The Court interference is necessitated in appropriate cases to unfold and see whether the order is founded on any misconduct of the Government servant concerned or the order has been made bona fide and not with any extraneous purposes. 23. Mr. Shah further contended that the material on the basis of which the order has been passed, that material has not only to be a relevant and valid, but must lead to the conclusion that continuance of the official is detrimental to public interest� or that the official has become a dead wood� and the standard of forming the opinion has to be that of a reasonable man. He also reiterated that when a reasonable person forms an opinion on the given material, he should satisfy the requirement of Article 226 of the J&K CSR. The respondents in their reply have stated in unambiguous terms that the Committee scrutinized the record and other relevant factors�, considered all the factors, considered other circumstances and material in formulating an opinion for passing the order of premature retirement against the petitioner, but without the details of these other factors/circumstances� to be spelt out in the reply; that in the absence of any disclosure having been made about the other factors and circumstances� apart from the fact that the decision making process is not demonstratively transparent, it is self-evident that the other factors and circumstances� have entered the process of consideration. That being so, according to Mr. Z.A. Shah, petitioner™s advocate, the order of premature retirement is patently illegal and unconstitutional. No reasonable person, on the basis of service record, can form an opinion contemplated in Article 226 of the J&K CSR. The situation becomes worse, without disclosure of other factors and circumstances�, apart from the fact that in terms of Government order, committee was to form an opinion only on the basis of service records. The counter filed by the respondents unfolds that some other factors and circumstances have also entered the consideration and decision making process of the committee. The order clearly suffers from malice in law. The order has been passed purportedly for some other purposes and there is nothing on record to justifying its issuance. The counter filed by the respondents unfolds that some other factors and circumstances have also entered the consideration and decision making process of the committee. The order clearly suffers from malice in law. The order has been passed purportedly for some other purposes and there is nothing on record to justifying its issuance. It was made not with the intention to weed out dead wood� for the purpose of improving the efficiency in the administration, but for getting rid of the petitioner on the basis of other factors and circumstances�. The jump of the petitioner from the post of the Storekeeper to that of Chief Inspector itself is a manifestation of his suitability to service. The order being not in public interest cannot stand the test of Article 226 of J&K CSR and is, thus, unsustainable in law. 24. It is now well settled that public interest� is the guiding factor in considering whether the power to prematurely retire should or should not be exercised. In other words, the formation of opinion of premature retirement of an employee must be based on material having reasonable nexus with the public interest�, as understood in the context of the rule relating to premature retirement. 25. On the question of compulsory retirement, the Apex Court in catena of cases has laid down the guiding principles. In State of Orissa versus Chandra Dass, AIR 1996 SC 2436, it was held as under: It is needless to reiterate that the settled legal position is that the Government is empowered and would be entitled to compulsorily retire a government servant in public interest with a view to improve efficiency of the administration to weed out the people of doubtful integrity or are corrupt but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service. But the Government, before taking such decision to retire a Government employee compulsorily from service has to consider the entire record of the government servant including the latest reports (Emphasis supplied).� 26. Again in case Anoop Jaiswal versus Government of India, (1984) 2 SCC 369, the Apex Court while dealing with the proposition of compulsory retirement observed as under: 12. But the Government, before taking such decision to retire a Government employee compulsorily from service has to consider the entire record of the government servant including the latest reports (Emphasis supplied).� 26. Again in case Anoop Jaiswal versus Government of India, (1984) 2 SCC 369, the Apex Court while dealing with the proposition of compulsory retirement observed as under: 12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.� 27. In Ram Ekbal Sharma versus State of Bihar and Another, (1990) 3 SCC 504, the Apex Court held as under: 32. On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal case. This being the position the respondent-State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide.� 28. It is advantageous to point out that the order of compulsory retirement has been passed by the Government on forming an opinion that it is in the public interest� to retire the Government servant compulsorily. The order is based on the satisfaction of the Government. However, this does not mean that judicial scrutiny is excluded altogether. While the Court would not examine the matter as an Appellate Court, but it may interfere if it is satisfied that the order is passed (a) mala fide; or (b) that it is based on no evidence; or (c) that it is arbitrary ” in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. The remedy provided by Article 226 is no less an important safeguard. Even within its well known constraints. The remedy is an effective check against mala fide, perverse or arbitrary action. 29. In Baikuntha Nath Das and Another versus Chief District Medical Officer, (1992) 2 SCC 229, the Supreme Court held that: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. (iii) Principles of nature justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. The order is passed on the subjective satisfaction of the government. (iii) Principles of nature justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary “ in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter “ of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.� Interference, thus, is permissible only in the ground mentioned in (iii) above. 30. Similarly, in Brij Mohan Singh Chopra versus State of Punjab, (1987) 2 SCC 188, the Supreme Court while considering the question of premature retirement, observed that it may be desirable to make an overall assessment of the government servant™s record, but while doing so, more value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. Stale entries should not be taken into account. Entries for a period of more than 10 years past should not be taken into account, as that would be an act of digging out past to get some material to make an order against the employee. Stale entries should not be taken into account. Entries for a period of more than 10 years past should not be taken into account, as that would be an act of digging out past to get some material to make an order against the employee. It was further observed that if the service record of the last 10 years of his service does not indicate any deficiency in his work and conduct, it would be unjust and unreasonable to retire him prematurely on the basis of entries which may have been awarded to him prior to that period. Similarly, adverse entries, if any, awarded to an employee lose their significance on or after his promotion to a higher post. 31. In the like manner, in case Baldev Raj Chaddha versus Union of India (1980) 4 SCC 321, the Supreme Court held that if an officer had earned no adverse entries at least for five years immediately before the compulsory retirement, he cannot be cashiered on the score that long years ago, his performance was poor. 32. Mr. Z.A. Shah, petitioner™s advocate, in reiterating his submission that the petitioner™s premature retirement would not be in public interest�, placed his reliance upon a case reported as H.C. Gargi versus State of Haryana, (1986) 4 SCC 158, wherein it was held that the test in such cases is public interest as laid down by this Court in Union of India v. Col. J.N. Sinha, (1970) 2 SCC 458. It does not appear that there was any material on the basis of which the State Government could have formed an opinion that it was in public interest to compulsorily retire the appellant at the age of 57 years. There was really no justification for his compulsory retirement in public interest. In that case, compulsory retirement of the government officer was ordered at the age of 57 years based on two adverse entries made on the verge of his retirement showing his performance in one year to be ˜average™ and in next year to be ˜below average™ though otherwise his service record was unifor-mally good. Adverse entries, however, did not show his doubtful integrity and test of public interest� held in the case not satisfied and, therefore, the order of compulsory retirement suffers from non-application of mind liable to be struck down being arbitrary. 33. Mr. Adverse entries, however, did not show his doubtful integrity and test of public interest� held in the case not satisfied and, therefore, the order of compulsory retirement suffers from non-application of mind liable to be struck down being arbitrary. 33. Mr. Z.A. Shah further reinforced his arguments that order of compulsory retirement was illegal, as the material relied upon by the respondents to reach a conclusion that continuation of the petitioner in service is detrimental to the public interest�, is non-existent, and placed his reliance on a judgment in case Smt. S.R. Venkataraman versus Union of India, (1979) 2 SCC 491, wherein it was observed that where the record did not reveal that the compulsory retirement of the officer was in public interest�, it was a gross abuse of legal power to use a rule to a purpose and in a manner unwarranted by it. The Apex Court further observed that the order of premature retirement was infected with an abuse of powers, as it is based on non-existing fact and, thus, observed to be struck down. 34. The spinal question that falls for consideration is that whether there was sufficient material to justify the forming of an opinion by the Committee to compulsorily retire the petitioner? As noted above, in the present case, the petitioner has placed on record the photocopies of his Annual Performance Reports relating to the years 1997-98, 1998-99, 1999-2000, 2001-02, 2002-03 and 2003 signed by the Reporting Officer, which clearly reveal that the Reporting Officer rated him excellent and very good�. It is significant to note that in none of these entries, his integrity was doubted. The petitioner also has not earned any adverse entries reflecting upon his work and conduct. The question to be considered in such circumstances is as to whether based on the aforesaid Annual Performance Reports, in which the petitioner has been rated as very good and excellent� officer without any adverse entry with regard to his integrity, the Committee could form an opinion to retire prematurely the petitioner from service. The predominant purpose and object envisaged by the rule is that the Government shall have to consider the entire record of service before taking a decision in the matter. The record to be so considered would naturally include the entries in the confidential records/character rolls both favourable and adverse. The predominant purpose and object envisaged by the rule is that the Government shall have to consider the entire record of service before taking a decision in the matter. The record to be so considered would naturally include the entries in the confidential records/character rolls both favourable and adverse. Where a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit. The Supreme Court consistently has taken the view that the entries of recent past of five to ten years should be considered in forming the requisite opinion to retire a government employee in public interest�. In the instant case, on examining the Annual Performance Reports, no adverse entries in the confidential record are found. Respondents in their reply have not refuted the Annual Performance Reports filed by the petitioner and only stated that it is a matter of record. However, no departmental record has been produced with regard to the work performance and conduct of the petitioner. 35. Incidentally, five guiding principles as laid down in Baikuntha Nath™s case (supra) by the Supreme Court stand accepted in another three-Judge Bench™s judgment in Posts and Telegraphs Board versus C.S.N. Murthy, (1992) 2 SCC 317, wherein the Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide and the Court has no jurisdiction to interfere provided it arrived at bona fide on the basis of the material available on record. It, therefore, follows that the consideration of the entire service record including the Annual Performance Reports is the mandatory requirement of the rules by the appointing authority to form its opinion that compulsory retirement of the petitioner is in public interest�. Where the officer has earned no adverse entries at least for five years immediately before compulsory retirement, it would be unjust, unreasonable and arbitrary to pass an order of compulsory retirement on the ground that he had been placed under suspension but without taking into consideration the fact that subsequently reinstated on the report of the Chief Accounts Officer, Food and Supplies, Srinagar, that the petitioner has not embezzled the Government stock and recommended for reinstatement. He also intimated that it was a case of faulty maintenance of the accounts. He also intimated that it was a case of faulty maintenance of the accounts. He also communicated that once the carriage will be adjusted by the Assistant Director concerned and the deteriorated stocks written off, there shall remain nothing against the petitioner. The promotions granted to the petitioner from time to time, appreciation he has received and the grading accorded to him by the reporting officer in the Annual Performance Reports cannot be ignored, as they constitute relevant material for formation of the opinion. No doubt, the petitioner was placed under suspension twice, but after some time he was reinstated and nothing was found against him. The order of reinstatement and non-imposition of any punishment clearly demonstrates that suspension of the petitioner was unjustified and, therefore, the Committee could not have taken into consideration only the fact of suspension and embezzlement, that has been ruled out by the Chief Accounts Officer in his two communications dated 27.06.1995 and dated 27-04-2001, but that of his reinstatement and the circumstances attenuating thereto. 36. The service record placed on the file by the petitioner, which has not been disputed and denied by the respondents, speaks of positive merit of the petitioner. No adverse entry with regard to his integrity, work and performance, was found in the annual confidential reports. His rise from Storekeeper to that of Chief Inspector clearly shows his suitability to continue in the service. Nothing adverse has been shown or brought on record on the basis of which the order could be justified the other factors and circumstances�. In the absence of disclosure of other factors and circumstances, the situation becomes worst, as in terms of the Government Order, the committee was to form its opinion only on the basis of the service record. An order of compulsory retirement has to be passed by the Government on forming the opinion that it is in public interest� to retire a government servant compulsorily. The record to be so considered would naturally include the entries in the confidential reports/character rolls both favourable and adverse. An order of compulsory retirement has to be passed by the Government on forming the opinion that it is in public interest� to retire a government servant compulsorily. The record to be so considered would naturally include the entries in the confidential reports/character rolls both favourable and adverse. When the opinion is formed by the committee based on other factors and circumstances� than the service record of the government employee for recording its subjective satisfaction as to whether it would be in the public interest to retain him in service or retire him compulsorily, would render the order wholly perverse and smack of mala fides and arbitrariness. The remedy provided under Article 226 of the J&K CSR is, undoubtedly, an effective check against such arbitrary, perverse and mala fide action. It is not in dispute that the promotions have been granted to the petitioner from time to time, appreciation he has received and grading has been accorded by the reporting officer in the annual performance reports, which cannot, undoubtedly, be ignored, as they constitute the relevant material for forming of the opinion. The petitioner, no doubt, had been placed under suspension twice, but after some time, he was reinstated and nothing was found against him adverse. The orders of reinstatement and non-imposition of any punishment clearly depict that the suspension of the petitioner was unjustified and, therefore, the committee could not have taken into consideration only the fact of suspension but that of his reinstatement and the circumstances attenuating thereto. This is more a reason that instead of making available the service record of the petitioner from his department, viz., Food and Supplies Department, the respondents have only annexed the record of the GAD, lest the truth may not come out to the harassment of the respondents; that if the same is produced, it would exhibit the positive merit of the petitioner. The rise of the petitioner from the post of Storekeeper to that of Chief Inspector is itself a manifestation of his suitability to continue in service. The respondents have, therefore, not succeeded to establish that the impugned order is in public interest, as no relevant material has been either shown or produced to exist. The order impugned by which the petitioner has been compulsorily retired, therefore, in my view, cannot be sustained. The respondents have, therefore, not succeeded to establish that the impugned order is in public interest, as no relevant material has been either shown or produced to exist. The order impugned by which the petitioner has been compulsorily retired, therefore, in my view, cannot be sustained. Under the guise of public interest� if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest� and must fail for unreasonableness, arbitrariness and disguised dismissal. The exercise of power must be bona fide and demonstrative of promoting public interest�. 37. In the premises aforesaid, I hold that the impugned order has not been made bona fide but for the collateral purposes and on extraneous consideration and not in public interest�. The impugned order is, therefore, illegal and unwarranted and so it is liable to be quashed and set aside. I, therefore, allow the writ petition and quash the impugned order. The respondents are further directed to reinstate the petitioner in service with full back wages and other service consequential benefits, admissible under rules. Petition disposed of.