State Of J&K & Ors vs Through
2022 Latest Caselaw 672 j&K/2

                                                                                 1


 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                 AT SRINAGAR
                         LPASW No.148/2018
             IA No.01/2018, CM Nos.4405/2020 & 4406/2020
                                                          Reserved on:   10.05.2022
                                                       Pronounced on:    23.05.2022

State of J&K & ors.
                                               ... Appellants
                            Through:
                                  Mr. M. A. Chashoo, AAG.
                            v.
Aijaz Ahmad Kirmani
                                               ...Respondent

Through:

Mr. M. A. Qayoom, Advocate with Mr. Mian Muzaffar, Advocate.

Coram:

Hon'ble Mr. Justice Ali Mohammad Magrey, Judge Hon'ble Mr. Justice Puneet Gupta, Judge Judgment Magrey, J:

1. This Letters Patent Appeal by the State of J&K (Now Union Territory) has been filed against the judgment and order dated 25.05.2018 passed by a learned Single Judge of this Court whereby the respondent's writ petition, SWP no.257/2012, challenging his compulsory retirement order from Government service, issued by the appellants, has been allowed, quashing the order impugned therein with direction to the appellants to reinstate the respondent-writ petitioner and grant him all consequential benefits within the period specified therein. The learned Single Judge has further directed the respondents in the writ petition, i.e., the appellants herein not to evict the writ petitioner from Flat no.4 of Government Flats, Jawahar Nagar, Srinagar.

2. We have heard learned counsel for the parties and considered the matter.

3. The facts are like this: The petitioner, being a Degree holder in Civil Engineering, was appointed as Junior Engineer on 09.03.1988. He was promoted as Assistant Engineer vide Government order no.548-Works of

2001 dated 28.12.2001. Thereafter, he was promoted as Incharge Assistant Executive Engineer vide Government order no.43-PW(R&B) of 2005 dated 18.02.2005. While the petitioner was posted as I/C Assistant Executive Engineer, J&K Police Housing Corporation, Srinagar, the Government, in exercise of the powers conferred by Article 226(2) of the Jammu and Kashmir Civil Service Regulations (CSRs), issued order no.189-GAD of 2012 dated 13.02.2012 giving notice to the petitioner that he, having already rendered 22 years of service, shall retire from service w.e.f. forenoon of 13.02.2012. He was allowed three months' pay and allowances in lieu of three months' notice.

4. The petitioner challenged the aforesaid Government order through writ petition, SWP no.257/2012, inter alia, on the grounds that the order has not been issued in public interest and that it is an arbitrary order. It was stated in the petition that the service record of the petitioner all along has remained unblemished, and that, while passing the impugned order, the Government has not taken his service record into consideration. It was, however, averred in the petition that while the petitioner was posted as I/C Assistant Executive Engineer in the Right River Circular Road Division, Srinagar, on the complaint of one Mushtaq Ahmad Burza, a case was registered against him under FIR no.28/2007 at Police Station Vigilance Organization, Kashmir, and during the investigation of the case a false trap was laid against him by the Vigilance Organization. The investigation of the case culminated into filing of a challan on 04.06.2008 in the Court of Special Judge, Anticorruption, for offences under Sections 5(1)(d) and 5(2) of Prevention of Corruption Act read with Section 161 RPC. It was averred in the writ petition that the complainant tendered his evidence on 26.09.2011 and 27.09.2011 and that he turned hostile, supporting the petitioner.

5. The writ petition was contested on behalf of the Government, inter alia, on the ground that the impugned order has been issued on the basis of recommendations made by the Committee of High Level Officers headed by Chief Secretary which formed its recommendations on the basis of the inputs from various agencies, including the overall service record and performance of the petitioner; that the petitioner may have been performing at any point

of time, but at the time of consideration by the Committee of his overall service record and performance, he was found fit for premature retirement, and that after considering his case, the Committee rerecorded that the petitioner has dubious integrity and was caught red handed while accepting bribe. Thus the impugned order was issued in public interest and after due application of mind. The respondents denied that the impugned order was passed in an arbitrary or capricious manner. In para 4 of the aforesaid reply, respondent no.1 has quoted the report of the Committee in extenso. It is, inter alia, stated therein that the Annual Confidential Reports of the Officer were not available in the department and the non-availability has been duly certified by the Administrative Department, and that the Committee took special note of the fact that the officer, while holding a Gazetted rank in an important sector like Roads and Buildings was caught demanding and accepting bribe for release of payments for the execution of public works, thereby substantiating the fact hat he has outlived his utility to the public and that the officer has dubious integrity.

6. The respondent also filed Rejoinder affidavit to the reply so filed on behalf of respondent no.1.

7. The learned Single Judge has recorded a finding that the Committee has given a complete goby to Regulation 226(2) of the CSRs read with the instructions issued by the General Administration Department vide Office Memo No.GAD(Vig)19-Admn/2010 dated 25.10.2010. The learned Single Judge has also held that to say that an FIR can form the sole basis to retire a public servant compulsorily is neither in tune nor in line with the scheme and mandate of Article 226(2) of the CSRs read with the guidelines issued thereunder. The learned Single Judge, relying on various decisions of the Supreme Court, has held that the impugned order in the writ petition cannot stand the test of law and reason.

8. There is no dispute that Article 226(2) of the CSRs authorises the Government to retire a Government employee, if it is of the opinion that it is in public interest to do so, at any time after he has completed 22 years / 44 completed six monthly periods of qualifying service or 48 years of age, in

the manner prescribed therein. However, the opinion of the Government has to be driven by nothing other than public interest.

9. It is also not in dispute that the Government vide OM No.GAD(Vig)19- Adm/2010 dated 25.10.2010 issued guidelines stating that while making any recommendations for premature retirements, the entire service record of employees is required to be screened which would include the documents mentioned therein from sub-paras (a) to (j) viz. (a) APR folder of the Government employee with particular reference to the entries in the APRs for the last five years; (b) details about any promotions given in favour of the employee in the last three to five years; (c) number and nature of complaints, if any, received by the parent Department/office of the employee or the State Vigilance Organization against the official; (d) enquiries if any conducted by the State Vigilance Organization or by the Department concerned and the outcome thereof; (e) cases if any registered/investigated by the State Vigilance Organization, nature of the allegation and the outcome of the investigation; (f) adverse reports, if any, received by the CID about the reputation of the official and the gist of such reports supported by evidence; (h) gist of irregularities committed by the employee, like in the matter of appointments, etc. supported by documents;

(i) brief mention about failure, if any, in achieving the targets set out for him by the Government/Department with supportive details; and (j) warning and censures issued to the employee. The crux is that not only the entire service record of the employee is to be examined and taken into consideration, but other factors specified in the OM, mentioned above, are required to be taken into account. Vide Government order No.17- GAD(Vig)2015 dated 20.05.2015, whereby a Committee of High Level Officers has been constituted to consider the cases of officers/officials for premature retirement in terms of Articles 226(2) and 226(3) of the CSRs, an onerous duty has been cast on the Committee to screen the entire service record of the concerned Government employee with a view to forming an opinion whether or not it would be in public interest to require him/her to retire after he/she has completed the requisite number of years of qualifying service or on attaining 48 years of age. The service record to be

screened has been duly specified and spelled out inclusively in the aforesaid OM. It is seen that the first and the foremost record is the APR folder of the Government employee with particular reference to the entries in the APRs for the last five years.

10. As mentioned above, in para 4 of the reply filed on behalf of respondent no.1, the report of the Screening Committee has been quoted in extenso. Since the report of the Committee forms the sheet-anchor of the impugned order, it would be appropriate to quote the same hereunder to ascertain and understand on what basis the compulsory retirement of the respondent was ordered. The report reads thus:

"It was reported that the officer does not enjoy good reputation in public.

Based on a specific complaint a trap was laid against Sh. Aijaz Ahmad Kirmani who was posted as AEE, R&B, Srinagar and was found demanding and accepting a bribe of Rs.5000/- for releasing an outstanding payment in favour of a contractor for the public works executed by the contractor. Accordingly an FIR was registered vide No.28/2007 of P/S VOK. The officer was caught red handed by the Vigilance in the trap proceedings and the money was recovered from him. The case already stands challaned in the Court of law.

It was reported that the Annual Confidential Reports (ACRs) of the officer were not available in the department and the non-availability has been duly certified by the Administrative Department.

The Committee took special note of the fact that the officer while holding a Gazetted rank (AEE, PWD), in an important sector like Roads and Buildings (PWD) was caught demanding and accepting bribe for release of payments for the execution of public works, thereby substantiating the fact that he has outlived his utility to the public.

Since the officer has dubious integrity and was caught red handed while accepting bribe, therefore, it is recommended that Sh. Aijaz Ahmad Kirmani be retired from Government service in the public interest under Article 226(2) of J&K CSR. It is further recommended that

Sh. Aijaz Ahmad Kirmani be given three months of pay and allowances in advance, as admissible, in lieu of the notice."

A bare perusal of the aforesaid report and the opinion made by the Committee clearly indicates that the APRs of the respondent have not been considered, the reason, according to the report, being that the same were not available in the Administrative Department. Further reading of the report/opinion made by the Committee makes it manifest that the Committee has taken into account and has been influenced by the sole fact that FIR no.28/2007 had been registered against the respondent at P/S VOK on the allegation that he was caught red handed in a trap, and, therefore, no other service record of the respondent was considered. The stand of respondent no.1 taken in the reply affidavit that the overall service record and performance of the petitioner was taken into account and considered is belied by the report so made by the Committee. It is also important to note that as on the date the case of the respondent for compulsorily retiring him was being considered, the complainant in the aforesaid FIR had resiled from his allegation and he had been declared hostile by the Public Prosecutor. It be borne in mind that the order of compulsory retirement of the respondent was passed on 13.02.2012 whereas the statement of the complainant in the FIR was recorded by the court of Special Judge, Anticorruption, on 26.09.2011 and 27.09.2011 when he was declared hostile. This was a relevant factor to be taken note of, but that has not been done either by the Committee or the Government. The only inference is that no service record of the respondent, no document and no relevant factor has been taken note of or considered.

11. Going by the arguments advanced at the Bar by the learned AAG and the aforesaid fact situation, the question that arises for consideration is whether the respondent could be compulsorily retired solely on the basis of registration of an FIR?

12. We may observe that this question stands already decided by the Court and the instant case is squarely covered by the judgment passed by this Bench in LPA no.166/2018, State of J&K v Reyaz Anwar Masoodi, on 27.04.2022 as well as another decision of the Division Bench of this Court, of

which one of us (Magrey J) was a member, in LPA no.237/2017, State of J&K v Muhammad Bashir Rather, decided on 07.06.2018, which judgment has assumed finality inasmuch as the SLP (Civil) Diary No.34634/2018 filed by the State therein was dismissed by the Supreme Court by order dated 26.04.2019.

13. In State of J&K v Reyaz Anwar Masoodi, the respondent therein was allegedly involved in two FIRs, bearing no.42 of 2007, under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 2006 read with Sections 467, 471 and 120(B) RPC and FIR no.23/2011, Police Station Vigilance Organization, Kashmir (VOK). This Court found that while considering the respondent therein for premature retirement, his entire service had not been taken into consideration and determination of the case depended upon consideration of the aforesaid question concerning involvement of the respondent in two FIRs. This Court, relying upon various judgments of the Supreme Court and this Court mentioned therein, held that respondent therein could not be prematurely retired solely by reason of the fact of registration of the two FIRs in which he was one of the accused. Similarly, in State of J&K v Muhammad Bashir Rather (supra), the Committee had noticed that the respondent therein figured as an accused in FIR No. 24/2002, registered at Police Station VOK, for the commission of offences punishable under Section 5(2) of the J&K Corruption of Prevention Act, Svt., 2006 read with Section 161 RPC, and, therefore, recommended for the retirement of the respondent therein in public interest under Article 226(2) of CSRs. The Court, again, relying on the judgments of the Supreme Court mentioned therein, held that merely a case has been registered against the respondent by the Vigilance Organization cannot form the basis of retiring him compulsorily.

14. The striking aspect herein is that the respondent stands acquitted of the charges levelled against him in the criminal case he was allegedly involved in. Though that is an event post compulsory retirement of the respondent, but the foundation of the case had been removed prior to the compulsory retirement of the respondent when the complaint in his deposition before the Court of competent jurisdiction had stated that the

accused did not demand money from him and that he had himself put Rs.5,000/- in the pocket of the shirt of the accused, and when the accused had asked him what was it, he was nervous and fled from there. On this deposition before the Court, the complainant had been declared hostile by the prosecution itself. This was obviously an important factor which ought to have been taken note of by the Committee/Government, but that has not been. This is borne out by the judgment dated 13.12.2013 delivered by the Court of Special Judge, Anti-corruption, Srinagar, in case FIR no.28/2007, a copy whereof has been placed on record of the writ petition. Such being the situation, there was no material or reason for the Committee to suspect the integrity of the respondent or to categorise him as a person of dubious integrity.

15. For all that has been narrated and discussed above, we hold that respondent could not have been prematurely retired solely by reason of the fact of registration of the FIR against him. Resultantly, we do not find any irregularity or illegality committed by the learned Single Judge in passing the impugned judgment. We are of the opinion that there is no merit in the present LPA. It, therefore, deserves to be dismissed.

16. This LPA is, accordingly, dismissed and the judgment impugned is upheld, of course, for the additional reasons discussed by us in this judgment.

17. No order as to costs.

                                      (Puneet Gupta)                        (Ali Mohammad Magrey)
                                          Judge                                          Judge

     Srinagar,
     23.05.2022
     Syed Ayaz Hussain, Secy

                                      Whether approved for Reporting: Yes




SYED AYAZ HUSSAIN
2022.05.23 11:58
I attest to the accuracy and
integrity of this document