State Of J&K vs Bhumesh Sharma
2022 Latest Caselaw 1473 j&K

      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU


                                             Reserved on 06.10.2022
                                             Pronounced on 19.10.2022

                                             LPASW No.183/2017
                                             CM No.8530/2019
                                             IA No.1/2017


State of J&K                                               .....Appellant(s)


                       Through: Mr. Amit Gupta, AAG
                 Vs.

Bhumesh Sharma                                           ..... Respondent(s)

Through: Mr. Z.A. Shah, Sr. Advocate with Mr. Jagpaul Singh, Advocate

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

Tashi Rabstan - J

1. This Letters Patent Appeal is directed against the judgment and order

dated 07.02.2017 delivered by the learned Single Bench in SWP

No.2140/2015, whereby the learned Single Judge, while allowing the writ

petition, quashed the impugned order, bearing No.868-GAD of 2015 dated

30.06.2015 compulsory retiring the writ petitioner from service in public

interest with effect from 01.07.2015 in exercise of powers under Article 226(2)

of the Jammu and Kashmir Civil Services Regulations.

2. Heard learned counsel appearing for the parties, considered their rival

contentions, perused the appeal file as well as the record so produced by the

learned counsel for State.

3. The term or phrase "compulsory retirement" in service law has been

generally used in relation to cases where an employee has been directed that

his services are no longer required before he reaches the normal age of

retirement prescribed by the rules. In other words, in substance, there is a

premature end of the relationship of master and servant before the servant

reaches the prescribed age of retirement or superannuation. Premature

retirement is, therefore, a more apt expression to convey the concept with

which the petitioner has been subjected. The purpose and object of premature

retirement of a Government employee is to weed out the inefficient, the

corrupt, the dishonest or the dead-wood from Government service. In Tara

Singh and others v. State of Rajasthan and others, (1975) 4 SCC 86, their

Lordships of the Supreme Court summed up the concept of premature

retirement in following words:

"26. The right to be in public employment is a right to hold it according to rules. The right to hold is defeasible according to rules. The rules speak of compulsory retirement. There is guidance in the rules as to when such compulsory retirement is made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any charge of inefficiency or incompetency, the Government passes orders of such compulsory retirement. The government servant in such a case does not lose the benefits which a government servant has already earned. These orders of compulsory retirement are made in public interest. This is the safety valve of making such orders so that no arbitrariness or bad faith creeps in."

4. It is well settled that when an order is challenged as arbitrary or mala fide

in the petition under Article 226 of the Constitution of India, it is the

governmental duty to provide documents for inspection of court. In the matter

of State of Uttar Pradesh v. Chandra Mohan Nigam and others, AIR 1977 SC

2411, the Supreme Court has ruled out in paragraph 36 as under:

"36. ... when an order of compulsory retirement is challenged as arbitrary or mala fide by making clear and specific allegations, it will then be certainly necessary for the Government to produce all the necessary materials to rebut such pleas to satisfy the court by voluntarily producing such documents as will be a complete answer to the plea. It will be for the Government also to decide whether at that stage privilege should be claimed with regard to any particular document. Ordinarily, the service record of a Government servant in a proceeding of this nature cannot be said to be privileged document which should be shut out from inspection."

5. Not only the employer is obliged to produce the materials, but the onus of

establishing that the order was made in public interest is also on the employer.

In Baldev Raj Chadha v. Union of India and others, (1980) 4 SCC 321, the

Supreme Court has clearly held that "it is a terminal step to justify which the

onus is on the Administration, nor a matter where the victim must make out the

contrary".

6. Admittedly, a perusal of the file as well as the record clearly reveals that

compulsory retiring the writ petitioner from service was based on no material,

in as much as the writ respondent even did not conduct any departmental

inquiry with respect to the act of alleged misconduct on the part of writ

petitioner. Further, the writ respondent did not deny in the writ petition the

claim of writ petitioner that his APRs from the years 2001-2002 till 2013-2014

have either been good or outstanding, more so the learned Single Judge had

specifically opined that a perusal of the APRs of writ petitioner clearly reveals

that no departmental inquiry was pending against him; meaning thereby the

writ petitioner had a satisfactory employment record. Further, the State has

failed to explain why the Vigilance Department gave clearance to the writ

petitioner and why he was selected to the Kashmir

Administrative Service in the year 2010 when he has done the act of alleged

misconduct and his performance as an officer was not up to the mark. It seems

the APRs of writ petitioner, which were reproduced by him, have not been

taken into account by the respondents. Even the writ petitioner has specifically

claimed in the writ petition that the Transport Commissioner vide

communication dated 11.07.2011 had recommended his name for gold medal

for his honesty, integrity and meritorious service. In such a situation, the

reputation of writ petitioner cannot be termed as doubtful, as projected, nor

could his conduct be determined only on spoken words in the absence of any

material on record, which was the fundamental flaw in the order issued against

the petitioner compulsory retiring him from service. Since the State has failed

to disclose the material forming the basis for compulsory retiring the writ

petitioner from service, as such it can be said to be a case of no material or no

evidence and the same can certainly be held to be arbitrary or without

application of mind.

7. The power to retire compulsory a government servant in terms of service

rules is absolute, provided the authority concerned forms a bona fide opinion

that compulsory retirement is in public interest. Although the scope of judicial

review is limited, it has repeatedly been held by the Apex Court that when an

order of premature retirement is challenged, the authorities concerned must

disclose the materials on the basis of which the order was made. Further, the

order of compulsory retirement cannot be based on the sole basis of

recommendations of the committee which has to be considered by the

competent authority in accordance with law. Merely because the committee

has made recommendations for retirement of writ petitioner, he cannot be

compulsorily retired unless the competent authority comes to a conclusion after

forming a bona fide opinion of its own that the writ petitioner can be subjected

to compulsory retirement in the interest of the institution.

8. As regards FIR No.20/2005 dated 16.12.205 registered against the

petitioner by the Vigilance Organization, which later on transferred to the

Central Bureau of Investigation, the file reveals that the CBI after conducting

investigation submitted the closure report before the Special Judge Anti-

Corruption, which came to be accepted by the trial Court vide order dated

22.03.2007. In FIR No.13/2012 the writ petitioner had not been named as an

accused. In our view compulsory retirement cannot be sustained merely

because an FIR was lodged against the writ petitioner by the Vigilance

Organization. The practice followed by the State in directing compulsory

retirement of the writ petitioner was completely unwarranted because that

would violate the basic maxim of „innocent until proved guilty‟. Thus, via the

impugned order of compulsory retirement, the State has applied this principle

in the reverse.

9. In State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529, their

Lordships of the Supreme Court held as under:

"27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a government servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee."

10. In the said case it was also held by their Lordship that the annual

character roll of the Government Servant would give an appropriately objective

assessment of his integrity and job performance since adverse remarks on such

rolls would be warning signs of the absence of such a person‟s job integrity.

Their Lordships further held that merely being involved in a criminal case

wouldn‟t per se establish the person‟s guilt and hence, a compulsory retirement

based on such a factor wouldn‟t stand.

11. Similarly, the Supreme Court in the matter of Nand Kumar Verma v.

State of Jharkhand and others, (2012) 3 SCC 580, has held that the formation

of opinion for compulsory retirement is to be based on the subjective

satisfaction of the authority concerned but such satisfaction must be based on a

valid material and it is permissible for the courts to ascertain whether a valid

material exists or otherwise, on which the subjective satisfaction of the

administrative authority is based. It has been observed by their Lordships of

the Supreme Court in paragraphs 34 and 36 of the report as under: -

"34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.

36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely

ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service."

12. The judgments cited by the learned counsel for writ respondent have no

applicability to the facts of present case.

13. Viewed thus, we are not inclined to take a view other than the one taken

by the learned Single Judge. Accordingly, the appeal is dismissed along with

connected CM/IAs upholding the judgment and order of learned Single Judge.

14. However, as regards the allegations leveled by the writ respondent against

the writ petitioner, the State and its officers at the helm of affairs if are fair

enough and have a will, and do not intend to provide a safe passage either to

writ petitioner or the then officials/officers of Vigilance Organization, are free

to go ahead with such inquiry, if they deem fit, and complete the same in a

time bound manner without any excuse on the part of officers holding such

inquiry.

15. The record so produced by the learned counsel for appellant/writ

respondent be returned against proper receipt.

Jammu                                    (Sindhu Sharma)           (Tashi Rabstan)
19.10.2022                                        Judge                    Judge
(Anil Sanhotra)



                           Whether the order is reportable ?         Yes/No
                           Whether the order is speaking ?           Yes/No