Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 385 (JK)

State of J&K v. Wali Mohammad Mir

2015-08-05

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. This Letters Patent Appeal is directed against judgment rendered on 06.06.2008 in a batch of writ petitions bearing SWP Nos. 828/2005, 996/2005, 825/2005, 449/2005, 562/2005, 1969/2003, 348/2004, 1631/2004, 735/2005, 436/2005 & 411/2005, whereby and whereunder all the impugned orders therein have been quashed. Facts germane to the disposal of this Letters Patent Appeal may be noticed briefly. 2. In the year 2004, Government embarked upon a process of periodical review of the performance of officers/officials and directed the General Administration Department to take appropriate action on the basis of entries made in APRs of the officers/officials under its control. This was done with the avowed purpose of bringing efficiency in the working of the Government by weeding out deadwood from public administration. A Committee was constituted for identifying the undesirable officers/officials and for recommending their cases for appropriate action. The requisite information was to be submitted in prescribed proforma with instructions to refer cases of those who had become ineffective or had outlived their utility along with their APRs and a general assessment about their reputation. Proforma prescribed for furnishing information required APRs for five preceding years along with adverse remarks, if any, and details of works/contracts allotted by the officer which had become the subject of departmental inquiry/investigation by Vigilance Department or invited adverse comments from Audit and Inspection Department along with a brief report by concerned Administrative Secretary as to whether the officer/official had outlived his utility. Subsequently, the constitution of the Committee was partially modified and the substituted Committee was to comprise of the Chief Secretary, Financial Commissioner (Finance) and Commissioner Secretary Law Department. The Committee met on 02.07.2003 and formulated the guidelines for undertaking the task assigned to it. The Committee considered the proposals as finalized by the departments and on the basis of inputs from various departments and information in regard to general reputation of officers/officials gathered from a cross section of the people recommended premature retirement of numerous persons including the respondent herein. The Government decision stemming out of the administrative process culminated in passing of orders of premature/compulsory retirement against the identified officers/officials, who assailed such orders by filing a batch of writ petitions which were allowed by the writ Court in terms of impugned judgment dated 06.06.2008 resulting in quashing of the orders impugned therein. 3. The Government decision stemming out of the administrative process culminated in passing of orders of premature/compulsory retirement against the identified officers/officials, who assailed such orders by filing a batch of writ petitions which were allowed by the writ Court in terms of impugned judgment dated 06.06.2008 resulting in quashing of the orders impugned therein. 3. The writ Court found that there were no adverse entries in service records of the writ petitioners including the respondent herein to justify the conclusion that such officers/officials had become deadwood. On the contrary, the available record depicted respondent herein in good light in view of APRs and other material. The writ Court was of the view that the available material did not suggest that the entire service record of respondent herein had been scrutinized before recommending him for premature retirement. It was also of the view that in certain cases action visibly appears to have been initiated at the behest of certain political people. It also found that there was no specific material brought on record to substantiate the allegations of corruption against respondent herein. It also noticed that despite some departmental action initiated against some of the employees who were compulsorily retired including the respondent herein, they were promoted to the next higher cadres and placed in the higher scales virtually acknowledging that such officers/officials were fit to be retained in service. The writ Court was dismayed to notice that the record said to be substantiating the observations of appointed Committee regarding conduct and performance of the respondent herein had not been furnished to show that the respondent herein had become deadwood. It also found that no specific pleadings or materials were available from the appellants' side to rebut the plea taken by the respondent herein. After scrutinizing the cases of each compulsory retiree including the respondent herein independently, the writ Court was of the view that the impugned order of premature retirement of respondent herein suffered from the vice of non application of mind and had been passed without enough records/materials to substantiate them. The impugned orders of compulsory retirement were accordingly quashed. 4. It is seen that the impugned judgment is assailed on the ground that the Committee made the recommendations for compulsory retirement of respondent on the basis of feedback information and after examining the same in light of personal records of officers/officials. The impugned orders of compulsory retirement were accordingly quashed. 4. It is seen that the impugned judgment is assailed on the ground that the Committee made the recommendations for compulsory retirement of respondent on the basis of feedback information and after examining the same in light of personal records of officers/officials. It is contended that the recommendations were based on overall performance of respondent herein and the record produced before the writ Court clearly demonstrated that the orders of compulsory retirement were passed in a just, fair and dispassionate manner. It is further contended that the writ Court could not substitute its own opinion in place of the decision of the Government and the opinion formulated by the Government could not be questioned merely because the service record of the official was excellent or the material recorded did not justify the making of the opinion. Per contra, learned counsel for respondent submits that the impugned judgment is based on proper consideration of the pleadings of parties and material available on record and no fault can be found with the proposition of law enunciated therein. 5. We have heard learned counsel for the parties, perused the record and have given thoughtful consideration to the issues raised in this Letters Patent Appeal. 6. It is not in controversy that the provision engrafted under Article 226(2) III of the Jammu and Kashmir Civil Service Regulations sufficiently arms the Government with the power to prematurely retire a Government Servant in public interest and no officer/official retired compulsorily in terms of the aforesaid provision can claim to have suffered any punishment or stigma. It is also indisputable that order of compulsory retirement is not a punishment and the opinion of Government that it is in public interest to retire a Government servant compulsorily is based on subjective satisfaction of the Government. Law on the subject has been crystallized in Baikuntha Nath Das V. Chief District Medical Officer reported in (1992) 2 SCC 299 wherein the Hon'ble Apex Court laid down the following principles:-- "(i) "An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior. (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. It implies no stigma nor any suggestion of misbehavior. (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 natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While in 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 un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." 7. It is manifestly clear that compulsory retirement is neither punitive nor stigmatic in character. It sufficiently equips the Government with authority to weed out the deadwood, who have become a burden on exchequer on account of their inefficiency, lack of performance, lack of continued utility or lack of integrity. However, an order issued pursuant to the legally permissible mode to get rid of corrupt, inefficient and non performing Government servants can be assailed on ground of mala fide, lack of supporting material, arbitrariness and un-justifiability. 8. However, an order issued pursuant to the legally permissible mode to get rid of corrupt, inefficient and non performing Government servants can be assailed on ground of mala fide, lack of supporting material, arbitrariness and un-justifiability. 8. In the instant case, the writ Court has considered the issues raised before it in their proper perspective and arrived at the finding after appreciating the available material in each individual case that no records have been furnished to substantiate the observations of appointed Committee while recommending the premature retirement of writ petitioners including the respondent herein. On scrutiny of the material available on record the writ Court found that no adverse entries in service records of the writ petitioner had been furnished to demonstrate that the respondent herein had become deadwood or lost his utility. In absence of any material having been produced before the writ Court to rebut the entries in APRs of respondent depicting him in good light and in absence of material to suggest that the entire service record of respondent herein was examined coupled with the fact that no specific materials have been brought forth to even suggest that the respondent herein was prosecuted for having received any undue pecuniary advantage, indulged in misuse of his official position or resorted to bribery and taking into consideration the fact that despite departmental action pending against him, he was promoted to the higher cadre and placed in the higher scales of pay, such official cannot be said to be a deadwood. It is well settled that when the validity of an order under challenge depends on its being supported by public interest, the State is bound to disclose the material so as to enable the Court to arrive at a conclusion that such order is not bad for want of any sufficient material to sustain the grounds of public interest justifying compulsory retirement. In the event of such material not having been furnished to substantiate the observations of Committee empowered to recommend compulsory retirement of a Government servant, the order of premature retirement cannot be sustained. In view of the foregoing reasons, we concur with the findings recorded by the learned writ Court. The impugned judgment does not suffer from any legal infirmity or factual frailty. The appeal, being devoid of any merit, is dismissed alongwith connected CMP.