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2015 DIGILAW 401 (JK)

State of J&K v. Braham Dev

2015-08-12

B.S.WALIA, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : 1. this appeal is filed by the State against order dated 12.09.1013 made in SWP No. 653/2005 wherein respondent has challenged the order of his compulsory retirement dated 26.04.2005. The learned Single Judge allowed the writ petition and set aside the order of compulsory retirement. 2. The case of respondent before learned Single Judge was that he was engaged as Daily wager and was subsequently regularized in the year 1971. He was put as Incharge stores under the supervision of one Jai Krishan and in the year 1975-76 for shortage of rice to the extent of 200 qtls departmental proceedings were initiated, however, the same were dropped by the Government and the shortage was write off. The said Jai Krishan, even though was supervisor and was the custodian of the Stores, was considered for promotion to the higher post inspite of pendency of departmental proceedings. The respondent was continuously forced to serve as Junior Assistant. The respondent approached the appellants for his promotion but no order was passed and by order dated 26.04.2005 he was compulsorily retired from service even though he was due to retire on superannuation in 2006. 3. The order of compulsory retirement was challenged by the respondent on the ground that having served for more than 34 years without any blemish except the alleged shortage which was also condoned by the Government and the appellants having granted promotion to a person who was responsible for the stores, namely Jai Krishan, there was discriminatory treatment meted out and while passing the order of compulsory retirement the entire service record of the respondent was not taken into consideration which is mandatory condition to be taken note of by the Government before ordering compulsory retirement of a Government servant. 4. The learned Single Judge called for the entire service record of the respondent. The appellants failed to produce the service records and the only document produced was photostat copy of the record which was the basis of the impugned order. In the said record produced, it was stated that a Committee was constituted under Article 226(2) and 226(3) of the Jammu and Kashmir Civil Services Regulations to consider the pre-mature retirement cases of the officers who have become dead wood and whose performance and reputation as a whole has affected the administration and also for the public purpose. In the said record produced, it was stated that a Committee was constituted under Article 226(2) and 226(3) of the Jammu and Kashmir Civil Services Regulations to consider the pre-mature retirement cases of the officers who have become dead wood and whose performance and reputation as a whole has affected the administration and also for the public purpose. In the said Photostat copy of the document produced the learned Single Judge found that the conduct and performance of respondent was shown as satisfactory and there was no adverse entry in the APRs' of the respondent till 2005. The learned Single Judge followed the judgment of Hon'ble the Supreme Court reported in 1994 Supp (3) SCC 424 (S. Ramachandra Raju v. State of Orissa) wherein it is clearly held that the entire service record of the Government Servant has to be assessed before effecting compulsory retirement. The learned Single Judge also followed the judgment of this Court in SWP No. 1965/2003, against which LPA No. 140/2006 was dismissed on 10.08.2009 by the Division Bench and the Special Leave Petition No. 1763/2010 preferred by the State against the said judgment of the Division Bench was rejected on 26.02.2010, and held that as the performance of the respondent throughout his career was satisfactory and there was no adverse entry, hence the order of compulsory retirement was found as bad and set aside the same. 5. Even in the appeal grounds no shortfall on the part of the respondent is mentioned except stating that reputation of the respondent collected from the cross section of people was very bad and an amount of Rs. 2.50 Lac is still outstanding against the respondent towards the shortage of public distribution items. It is also stated in the grounds that merely service record of the official was excellent which the material record did not justify in making of the opinion, the Government has got power to dispense with the service of a person under compulsory retirement. The stand taken by the appellant in the grounds taken in the appeal cannot be countenanced as the order of compulsory retirement can be passed on the ground of inefficiency or on the ground that by retaining such a person in service the public interest will suffer. 6. The stand taken by the appellant in the grounds taken in the appeal cannot be countenanced as the order of compulsory retirement can be passed on the ground of inefficiency or on the ground that by retaining such a person in service the public interest will suffer. 6. Hon'ble the Supreme Court in the decision reported in (2014) 4 SCC 773 ( High Court of Judicature of Patna v. Shyam Deo Singh and ors) considered a similar issue regarding non-extension of service of a Judicial Officer up to the age of 60 years and in fact upheld the order of the High Court setting aside the order of denying the extension in service on the ground that the entire service record of the Judicial Officer was not assessed by the administrative Committee as well as the Full Court. Thus it is evident that the entire service record of the person who is to be compulsorily retired is mandatory requirement to find out the utility of the person or not. Even in respect of promotion, over all assessment of service record of the candidates by the selection committee is mandatory as held by Hon'ble the Supreme Court in the decision reported in AIR 2015 SC 141 (G. Mohanasundaram v. R. Nanthagopal and Ors). 7. The learned Single Judge has found factually that the service record of the respondent was satisfactory and there was no adverse entry recorded in his service during his entire period of 34 years. It is a well settled legal position that the entire service record of the government servant shall be perused before ordering compulsory retirement of a Government servant. Hence we concur with the findings given by the Writ Court. The appeal is dismissed. However, the appellants are not precluded to recover the loss if any ascertained by the appellants which was due to the fault of respondent and if there is any finding of fact already recorded the said amount can be recovered from the respondent. 8. Since the respondent has reached the age of superannuation in the year 2006, the benefits arising out of the order of the learned Single Judge shall be calculated and paid to the respondent within a period of two months from the date of receipt of copy of this order treating him to have retired on his normal date of superannuation. 9. No costs.