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2017 DIGILAW 59 (JK)

Bhumesh Sharma v. State of J&K

2017-02-07

ALOK ARADHE

body2017
JUDGMENT Alok Aradhe, J. 1. In this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Jammu and Kashmir State Constitution, the petitioner inter alia has assailed the validity of the order dated 30.06.2015, by which respondents in purported exercise of powers under Article 226(2) of the Jammu and Kashmir Civil Services Regulations (hereinafter referred to as 'Regulations') have compulsory retired the petitioner in public interest. The petitioner also seeks a direction to the respondents to permit the petitioner to continue in service and to accord him all consequential benefits. In order to appreciate the grievance of the petitioner, few facts need mention, which are stated infra. The petitioner was appointed in the office of the Transport Commissioner, J & K, Srinagar vide order dated 10.07.1991. The petitioner thereafter was transferred and was posted as Motor Vehicles Inspector against an available vacancy vide order dated 04.12.1994. The petitioner thereafter vide order dated 31.01.2001 was transferred as Incharge Assistant Regional Transport Officer (ARTO) Udhampur/Doda in his own pay and grade. The petitioner in addition was asked to perform the routine work of the Chief Inspector, Board of Inspections, Jammu. The State Government vide order dated 26.07.2002 sanctioned release of grade of pay scale of Assistant Regional Transport Officer in favour of the petitioner. 2. On 16.12.2005, FIR No. 20/2005 was registered by the Vigilance Organization, Jammu against the petitioner under Section 5(1)(c), read with Section 5(2) of the J & K Prevention of Corruption Act. Thereupon, the petitioner filed writ petition, namely, OWP No. 177/2006 and sought transfer of the case from Vigilance Organization to Central Bureau of Investigation. The Central Bureau of Investigation conducted the investigation and submitted its final report. The Special Judge Anticorruption, Jammu accepted the closure report vide order dated 22.03.2007. Thereafter, the case of the petitioner was considered by the selection committee for induction into Kashmir Administrative Service under the provisions of Jammu and Kashmir Administrative Service Rules, 1979 by the Committee, headed by the Chief Secretary of the State. After obtaining clearance from the Vigilance Department on 28.06.2009, the petitioner was inducted into Kashmir Administrative Service vide order dated 12.04.2010. Thereafter, the petitioner was transferred vide order dated 25.08.2011 as Deputy Director, Employment and Counselling Centre, Poonch. 3. After obtaining clearance from the Vigilance Department on 28.06.2009, the petitioner was inducted into Kashmir Administrative Service vide order dated 12.04.2010. Thereafter, the petitioner was transferred vide order dated 25.08.2011 as Deputy Director, Employment and Counselling Centre, Poonch. 3. While the petitioner had reported in the office of Commissioner/Secretary to Government, General Administration Department on 13.04.2015, awaiting order of posting, he was served with the impugned order dated 30.06.2015. In the aforesaid factual background, the petitioner has approached this Court. 4. Learned counsel for the petitioner submitted that the impugned order is a result of non application of mind inasmuch as the Annual Performance Reports of the petitioner were not considered. In this connection, learned Senior Counsel for the petitioner has invited attention of the Court to paragraph 2(f) of writ petition and has pointed out that APRs of the petitioner from 2001 to 2002 till 2013 and 2014 have been either good or outstanding. It is further submitted that in the First Information Report No. 20/2015, the Central Bureau of Investigation after investigation has filed closure report, which was duly accepted by the Court vide judgment dated 22.03.2007. It is also submitted that the petitioner was not named as accused in the second FIR No. 13/2012. It is further submitted that there is no incriminatory material against the petitioner on record to arrive at a conclusion that the petitioner is a deadwood. It is also urged that in fact the petitioner has published several articles on road safety and pollution threats to the modern civilization. It is also submitted that the name of the petitioner was recommended for gold medal for his honesty, integrity and meritorious service by the Transport Commissioner vide communication dated 11.07.2011. The impugned order is, therefore, liable to be quashed. 5. On the other hand, learned Senior Additional Advocate General for the respondents has submitted that the State Government from time to time reviews the performance of its officers/officials on completion of either 22 years of service or on completion of 48 years of age in exercise of powers under Article 226(2) of the Civil Services Regulations. It is further submitted that a Committee was constituted which has considered the case of the petitioner individually. It is further submitted that a Committee was constituted which has considered the case of the petitioner individually. It is further submitted that the case of the petitioner was considered by the Committee in its meeting held on 20.06.2015 and it was found that the petitioner does not enjoy good reputation in the public due to his consistent conduct over a period of time. The Committee also noticed that the petitioner as a incharge Board of Inspections, issued the fitness certificates without conducting physical check/inspection of vehicles as required under Rules 44 and 47 of Motor Vehicle Act and Motor Vehicle Rules. 6. It is further argued that the board of inspections did not bother to ask owners to produce the Trucks for inspection/check up and did not even inform ARTO that Truck had not being inspected. Accordingly, an FIR No. 13/20.12 was registered against the petitioner by the Vigilance Organization. The investigation of the case was concluded as proved and referred to the Transport Department on 22.07.2004. It is further submitted that name of the petitioner has also figured in FIR No. 20/2005. The report of the Commissioner of Vigilance in relation to the matter was examined and it was decided that the Transport Department shall take departmental action against the delinquent officials including the petitioner as recommended by the CBI. It is also submitted that the finding of discrete vigilance verification into allegations of serious irregularities in the selection, appointment and promotion of the petitioner conducted by the State Vigilance Organization, which was also duly considered by the Committee. It is also urged that the petitioner resorted to unbecoming conduct and conducted himself in a manner against the spirit of a Government employee. It is submitted that the petitioner was involved in various malpractice as ARTO Kathua and RTO Lakhanpur. Therefore, ACRs of the petitioner were incomplete. Taking overall view of the matter as well as service record of the petitioner, the committee recommended for compulsory retirement of the petitioner under Article 226(2) of the Regulations. It is stated that the order of compulsory retirement of the petitioner is neither punitive nor stigmatic and is based on subjective satisfaction of an employer and the scope of judicial review in such matters is very limited. 7. I have considered the submissions made by learned counsel for the parties and have perused the record. It is stated that the order of compulsory retirement of the petitioner is neither punitive nor stigmatic and is based on subjective satisfaction of an employer and the scope of judicial review in such matters is very limited. 7. I have considered the submissions made by learned counsel for the parties and have perused the record. Article 226(2) of the Regulations 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 servant 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." Government Instruction-Levels at which screening should be conducted for Non-Gazetted Employees: 1. At the Non-Gazetted level, a Screening Committee comprising of the Head of the Department and two other Senior Officers of the Department to be nominated by the concerned Administrative Department should conduct the review. The Screening Committee should screen the cases of all concerned persons and forward its recommendations to the Administrative Department for further follow-up action in terms of Art. 226(2) of J & K CSR. This review should be done regularly, preferably twice every year in the months of January and July each. The review should be conducted by the cadre controlling administrative department which controls the service to which the concerned Government Servant belongs, irrespective of where he may be working at the relevant time. However, if the employee is working in a different department, then the Screening Committee should consist of at least one Senior Officer from the department in which the Government servant is/was working at the relevant time. 2. However, if the employee is working in a different department, then the Screening Committee should consist of at least one Senior Officer from the department in which the Government servant is/was working at the relevant time. 2. The review should, normally be initiated around six months before the officer/official attains the prescribed age or completes the prescribed service. A separate register can be maintained for keeping a watch on the time schedule for such review. 3. The final decision in the matter for Non-Gazetted staff should rest with the Administrative Department, which should take a final decision based upon the report of the Screening Committee. This should be done within a period of three months of receipt of report from the Screening Committee. The gist of the final decision can be recorded in the service book of the employee. 4. The decision of the Administrative Department implies a decision by the concerned Minister of the Deptt. on file. Hence he can review his own decision in the form of considering representations made by the concerned employees against the initial decision pertaining to pre-mature retirement in the interest of natural justice." 8. Before proceeding to deal with the matter on merits, at this stage it is apposite to take notice of well settled legal principles with regard to compulsory retirement in public interest. The Supreme Court while dealing with scope of Judicial Review in such cases has held that when an order of compulsory retirement in public interest is challenged before the Court, its validity depends upon its being supported by public interest. The State must disclose the material so that the Court may be satisfied that the order is not bad for want of any material whatever which to a reasonable man may reasonably instructed in law is sufficient to sustain, the ground of public interest. The Court is confined to examination of the material merely to see whether a rational mind may conceivably be satisfied that compulsory retirement of the officer concerned is necessary in public interest. (See Baldev Raj Chadha v. Union of India & Ors., (1980) 4 SCC 321 ). The Court is confined to examination of the material merely to see whether a rational mind may conceivably be satisfied that compulsory retirement of the officer concerned is necessary in public interest. (See Baldev Raj Chadha v. Union of India & Ors., (1980) 4 SCC 321 ). In the case of Baikuntha Nath Dass and another v. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299 , it was held that opinion of the authority regarding compulsory retirement is subjective satisfaction of the authority which has to be formed on the basis of entire record of service and the order of compulsory retirement does not amount to punishment. The principles of natural justice are not required to be observed while passing an order of compulsory retirement. The order of compulsory retirement is subject to judicial review only on the ground of mala fides, arbitrariness and perversity. The Supreme Court after detailed deliberations summarized the following legal principles: "(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 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 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. 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. 9. The Supreme Court once again in the case of State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 , crystallized the legal principles as follows: (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off deal wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. 10. The Supreme Court in the case of Madhya Pradesh State Cooperative Dairy Federation Limited and another v. Rajnesh Kumar Jamindar and others, (2009) 15 SCC 221 held that law relating to compulsory retirement in public interest is no longer Res Integra. (viii) Compulsory retirement shall not be imposed as a punitive measure. 10. The Supreme Court in the case of Madhya Pradesh State Cooperative Dairy Federation Limited and another v. Rajnesh Kumar Jamindar and others, (2009) 15 SCC 221 held that law relating to compulsory retirement in public interest is no longer Res Integra. The provision has been made principally for weeding out the dead wood and an order of compulsory retirement in public interest can be made subject matter of judicial review on the grounds namely when it is based on no material, when it is arbitrary, when it suffers from the vice of non application of mind and when there is no evidence to support the case. It is well settled legal principle that verbal complaints or enquiries would constitute relevant material on the basis of which APRs indicating the integrity of the officer is doubtful can be recorded. (See Rajendra Prasad Verma and others v. Lieutenant Governor (NCT of Delhi) and others, (2011) 10 SCC 1 .) An order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and is amenable to interference if it suffers from mala fide, perversity, arbitrary. (See, Rajasthan State Road Transport Corporation and others v. Babu Lal Jangir, (2013) 10 SCC 551 ). It is equally well settled legal proposition that entire service record of an employee is required to be scrutinized for adjudging his justification of continuance in service. (See Punjab State Power Corpn. Ltd. v. Hari Kishan Verma, (2015) 13 SCC 156 ). 11. The Supreme Court in the case of State of Gujarat & Anr. v. Suryakant Chunilal Shah, (1999) 1 SCC 529 has held that services of dishonest and corrupt officers should be dispensed with in public interest. It has further been held that efficiency and honesty of an officer has to be assessed on the basis of material for which confidential reports are an important input. Mere involvement of an employee in criminal case or pendency of criminal case in itself does not sufficient to compulsory retire an employee in public interest. It has further been held that Review Committee exceeded its jurisdiction in doubting respondent's integrity on the basis of pending criminal cases when there was no indication of doubtful integrity in the confidential reports. Mere involvement of an employee in criminal case or pendency of criminal case in itself does not sufficient to compulsory retire an employee in public interest. It has further been held that Review Committee exceeded its jurisdiction in doubting respondent's integrity on the basis of pending criminal cases when there was no indication of doubtful integrity in the confidential reports. The aforesaid decision was considered and was explained by the Supreme Court in the case of Jugal Chandra Saikia v. State of Assam & Anr., (2003) 4 SCC 59 , in which it was held that in the case of Suryakant Chuni Lal Shah (supra), there was no material before the Review Committee inasmuch as there were no adverse remarks in the Character Roll entries, the integrity was not doubtful at any time and the Character Roll entries subsequent to respondents promotion to the post of Assistant Food Controller (Class-II) were not available. In the aforesaid circumstance, it was held that the compulsory retirement in the case of Suryakant Chunilal Shah (Supra) was bad. A Division Bench of this Court in State of Jammu and Kashmir and others v. Janak Singh, 2010 (4) JKJ 89 [HC] in paragraph 7 has held thus:- "7. Whether registration of an FIR, based upon specific complaint, can be made basis for formulation of an opinion for pre-mature retirement, is an issue which is no longer res integra. As already stated above, formulation of subjective opinion on the basis of the record of the respondent, will be a determinative factor to prematurely retire him. Registration of 2 FIRs is not part of the service record of the respondent on the basis of which opinion can be formulated by the Review Committee. These are merely allegations which are subject matter of investigation/trial and cannot become the basis for formulation of such an opinion, as rightly observed herein supra that the fate of these complaints has to be determined by the agency which is not a part of the Committee. We, accordingly, hold that learned Single Judge was correct in rejecting the contention of the appellants in this behalf." 12. The aforesaid decision has been followed by another Division Bench of this Court in the case of State of J & K & Anr. v. Satish Chander Khajuria, 2017 (3) JKJ 154 [HC] vide order dated 07.10.2016 passed in LPASW No. 122/2016. The aforesaid decision has been followed by another Division Bench of this Court in the case of State of J & K & Anr. v. Satish Chander Khajuria, 2017 (3) JKJ 154 [HC] vide order dated 07.10.2016 passed in LPASW No. 122/2016. Thus, from the aforesaid enunciation of law by the Division Bench of this Court, it is evident that Registration of First Information Report against an employee is not part of his service record and mere probe of certain alleged irregularities cannot be made a ground to retire a person compulsorily when his APRs entries are good and integrity is reflected in the APRs as beyond doubt. 13. On the touchstone of aforesaid well settled legal principles, the facts of the case in hand may be examined. Admittedly in the instant case from the perusal of the record as well as minutes of the committee, it is evident that the decision to compulsory retire the petitioner is based on involvement of the petitioner in the First Information Reports as well as irregularities in the selection, appointment and promotion of petitioner and the misconduct allegedly committed, which has been found in the discreet inquiry. The committee also came to conclusion that petitioner does not enjoy good reputation in the public. 14. In this regard, it is pertinent to mention here that the FIR No. 20/2005, which was registered against the petitioner was investigated by the CBI and closure report was accepted by the Court vide order dated 22.03.2007. It is also pertinent to mention here that the petitioner is not involved in FIR No. 13/2012. It is also pertinent to mentioned here that from the perusal of the APRs of the petitioner, it is evident that no departmental inquiry was pending against the petitioner. It is also pertinent to mention here that no explanation is forthcoming from the respondents as to why Vigilance Department gave the clearance to the petitioner and why the petitioner was selected to the Kashmir Administrative Service in the year, 2010, if his performance as an officer was not up to the mark. Admittedly, the APRs of the petitioner, which have been reproduced by the petitioner, have not been taken into account by the respondents. The respondents have relied on the discreet inquiry report, which pertain to the old incidents. Admittedly, the APRs of the petitioner, which have been reproduced by the petitioner, have not been taken into account by the respondents. The respondents have relied on the discreet inquiry report, which pertain to the old incidents. It is relevant to mention here that the petitioner was selected for the Kashmir Administrative Service in the year, 2010 after obtaining clearance from the Vigilance Department on 23.06.2009 and opinion with regard to integrity of the petitioner has been farmed on the basis of his involvement in FIRs that too on incorrect facts, inasmuch as, in FIR No. 20/2005 the closure report has been accepted by the Court and in the second FIR No. 13/2012, the petitioner has not been named. Thus, the committee has clearly exceeded its jurisdiction in arriving at the conclusion about the petitioner. The formation of opinion in the instant case that petitioner is a deadwood, leading to passing of impugned order is not only arbitrary but suffers from the vice of non application of mind and is based on no material. In case the respondents were of the opinion that the petitioner has done the act of misconduct, they ought to have held departmental inquiry against the petitioner. In the instant case, in the considered opinion of this Court, the order of compulsory retirement is punitive in nature as while passing the order of compulsory retirement, the respondents have taken into account the alleged misconduct on behalf of the petitioner. At the cost of repetition, it may be mentioned that the order of compulsory retirement cannot be passed as shortcut to avoid the departmental inquiry, when such course is more desirable. In the instant case, it appears that order of compulsory retirement has been passed as shortcut to avoid departmental inquiry. In view of preceding analysis, the inevitable conclusion is that the impugned order cannot be sustained in the eyes of law. It is accordingly quashed. The petitioner shall be reinstated in service with all consequential benefits within one month from today. Accordingly, the writ petition is allowed.