Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 82 (JK)

Ab. Hamid Wani v. State of J&K

2018-02-15

SANJEEV KUMAR

body2018
JUDGMENT : Sanjeev Kumar, J. 1. Petitioner in this writ petition seeks quashing of Government Order No. 907-GAD of 2015, dated 30.06.2015 with a direction to the respondents to allow him in the service till he attains the age of superannuation. 2. Consequent upon petitioner's selection in the Combined Competitive Service Examination, he is stated to have been appointed initially as Block Development Officer. Vide Order No. 1031-GAD of 2002, dated 21.06.2002 services of the petitioner were confirmed and vide order dated 24.07.2008, the petitioner was transferred as Incharge DPO Publicity in the Directorate of Rural Development, Kashmir. Petitioner was given additional hold of Project Officer, Wage Employment, Kulgam vide Order No. 34-RD of 2011, dated 12.02.2011. Thereafter vide order No. 114-DR & PR of 2013, dated 10.04.2013, the petitioner was directed to hold the charge of Project Officer, Wage Employment (Assistant Commissioner Development), Pulwama independently. Petitioner submits that in the Annual Performance Reports for the years 2010-2011, 2011-12, 2012-13 and 2013-14, the petitioner has been graded as "a very good officer and for the year 2014-15, the petitioner has been classified as "outstanding officer." Besides, integrity of the petitioner was certified by the Director Rural Development, Kashmir twice vide his No. DRDK/Estl/5824, dated 20.05.2010 and DRDK/Estt/W/9/012, dated 12.08.2013. 3. Petitioner preferred a writ petition, i.e., SWP No. 487/2013 in which vide order dated 11.09.2013 respondents were directed to consider the claim of the petitioners therein for promotion to the time scale of KAS on ad hoc basis. Petitioner submits that the Rural Development Department also certified his integrity for the purposes of promotion and sent requisite information to the General Administration Department on 27.11.2013. It is his case that though, FIR No. 18/2005 under Section 5(1)(c), 5(1)(d) r/w Section 5(2) of J&K Prevention of Corruption Act, 2006 and Section 420-A, 467, 120-B, RPC came to be registered against the petitioner and others and sanction for prosecution of the petitioner was also granted, but the challan could not be produced because production of challan was stayed by this Court. Another FIR No. 1/2007 was registered by the Vigilance Organization, Kashmir but sanction for prosecution of the petitioner was declined and instead department was directed to take departmental action. Another FIR No. 1/2007 was registered by the Vigilance Organization, Kashmir but sanction for prosecution of the petitioner was declined and instead department was directed to take departmental action. According to the petitioner, on the basis of aforesaid FIRs and for extraneous consideration, the petitioner, having attained 48 years of age was directed to retire prematurely; w.e.f. 01.07.2015 by the order impugned No. 907-GAD of 2015, dated 30.06.2015. 4. The respondent in its reply has pleaded that in terms of Government Order No. 17-GAD (Vig.) 2015, dated 20.05.2015, sanction was accorded to the constitution of a committee to consider the cases of officers/officials, who had created impediments in delivery of services to the general public in a smooth and effective manner, for premature retirement. It is submitted that the committee held its deliberation on 21.05.2015 and before recommending premature retirement, the record with respect to involvement of Government employees in corrupt practices was examined by the committee. The administrative secretaries of the concerned departments were co-opted as members with regard to the cases pertaining to their department. On 11.06.2015, the committee deliberated upon the charges against each employee and examined the available APRs of the officials/officers and it was observed that APRs were either not available or incomplete. Finally on 26.06.2015, the committee, amongst others considered the case of the petitioner also and observed that the petitioner did not enjoy good reputation in the public due to his consistent conduct over a period of time. It was also observed by the committee that the petitioner in his capacity as BDO, Dachnipora was found to have illegally released an amount of Rs. 6.70 lakh in favour of Mr. Mohammad Akram Bhat, proxy contractor of M/S. R.S. Associates, Self Help Group. FIR 18/2005 was registered against the petitioner among others with the Vigilance Organization, Kashmir and the investigation of the case was concluded as proved and sanction for prosecution was also accorded vide Government Order No. 36-GAD (Vig) of 2012, dated 05.10.2012 against which petitioner approached this Court and production of challan was stayed. It is further submitted that while he was posted in District Anantnag in the Rural Development Department he released an excess payment of Rs. 10.93 lakh and another being FIR No. 01/2007 was registered against the petitioner amongst others. It is further submitted that while he was posted in District Anantnag in the Rural Development Department he released an excess payment of Rs. 10.93 lakh and another being FIR No. 01/2007 was registered against the petitioner amongst others. The investigation of this FIR was concluded as proved but instead of granting sanction for prosecution of the petitioner, department was asked to initiate departmental action as also to recover Rs. 2,26,883/- from the delinquent officers. It is submitted that the committee after considering the material placed before it, came to the conclusion that the petitioner is generally known to have bad reputation and misappropriated/embezzled the Government money by preparing incorrect certificates and therefore, recommended compulsory retirement of the petitioner under Article 226(2) of J&K Civil Services Regulations, 1956. 5. Petitioner, who is appearing in person, submits that the order impugned whereby he has been retired compulsorily is outcome of mala fide and extraneous consideration. He further submits that the relevant material, including the APRs and other service record which was required to be considered by the Committee for considering the case of the petitioner for compulsory retirement has either not been placed before the Committee or has not been considered while coming to the conclusion that the petitioner is generally known to have bad reputation and his continuance in service may not be in the larger interest of the public. He, therefore, sought quashing of the order impugned. 6. On the other hand, learned counsel appearing for the State-respondents justified the compulsory retirement of the petitioner by submitting that in view of the involvement of the petitioner in corruption cases registered against him, his integrity has become doubtful and his continuance in service was highly pre-judicial to public interest and efficiency in administration. Learned counsel further submits that apart from his involvement in criminal cases of corruption, Committee has observed that the petitioner did not enjoy good reputation due to his consistent conduct over a period of time; therefore, his continuance in service was not in public interest. 7. Considered the submissions made by the petitioner appearing in person as also learned counsel for the respondents. 8. The issues which have been raised in the instant writ petition were considered threadbare, discussed and decided by a Division Bench of this Court in the case of 2018 (2) JKJ 203 State of J&K and Others vs. Ab. 7. Considered the submissions made by the petitioner appearing in person as also learned counsel for the respondents. 8. The issues which have been raised in the instant writ petition were considered threadbare, discussed and decided by a Division Bench of this Court in the case of 2018 (2) JKJ 203 State of J&K and Others vs. Ab. Majid Wani (LPA No. 95/2017) decided on 06.10.2017 and after considering the relevant Rules, Guidelines, Govt. Instructions and law on the subject held that an employee who is found to have indulged in corrupt practices, has to be dealt with iron hands. Such a public servant, if found guilty, has to be punished and shown the door and not compulsorily retired, allowing him to get away with all the retiral benefits. The compulsory retirement provision has been enacted to achieve a different purpose, i.e. to weed out inefficient and corrupt public servants whose continuance in service is prejudicial to public interest. This, however, has to be adjudged upon on the basis of the work and conduct of the employee during his whole service career, though attaching more importance to his work and conduct during last some years preceding his compulsory retirement. This power based on the pleasure doctrine of the sovereign should not be used for collateral purpose. 9. From a perusal of the minutes of the meeting of the Committee, which recommended compulsory retirement of the petitioner, it is abundantly clear that decision to compulsorily retire the petitioner was taken only in view of the registration of FIR Nos. 18/2005 and 01/2007 by the Vigilance Organization, Kashmir and apart from the aforesaid two FIRs no other record was either placed before the Committee or the Competent Authority. 10. As a matter of fact, APRs/ACRs of the petitioner were not considered by the Committee on the plea that these were not available. This itself speaks non-application of mind by the Establishment Committee to arrive at a conclusion without looking into the relevant record. The petitioner has placed on record copies of the APRs and the same have not been denied by the respondent in their reply affidavit. There is, however, a two-line statement in the minutes of the meeting of the Committee, upon which much stress was laid by the learned counsel for the respondent. The petitioner has placed on record copies of the APRs and the same have not been denied by the respondent in their reply affidavit. There is, however, a two-line statement in the minutes of the meeting of the Committee, upon which much stress was laid by the learned counsel for the respondent. The two line statement reads thus:- "Through his consistent conduct over a period of time, the employee does not enjoy a good reputation in the public." There was no material available with the Committee or before the competent authority to come to such a conclusion nor is there any indication in the minutes of the meeting of the Committee as to how the Committee arrived at the aforesaid opinion. 11. That being the position, it is evident that the APRs/ACRs of the petitioner as also his other service record were not placed before the Establishment Committee which arrived at the conclusion for retiring the petitioner prematurely on the basis of aforesaid two FIRs and that the reputation of the petitioner was not good. The case of the petitioner is, therefore, fully covered by the judgment in the case of Abdul Majid Wani's case (supra). Accordingly, the writ petition is allowed and the order impugned is set aside.