State Of Jammu &Kashmir vs Gautam Singh
2023 Latest Caselaw 2012 j&K

      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU

                                           Reserved on 11.09.2023.
                                           Pronounced on 18.09.2022

                                                LPA No.191/2019
                                                CM No.5367/2019

State of Jammu &Kashmir,                                .....Appellant(s)
Through Principal Secretary to Govt.,
General Administration Department,
Civil Secretariat, Jammu.


                      Through: Mr. Raman Sharma, AAG
                Vs.

1.    Gautam Singh                                   ..... Respondent(s)
S/o Lt. Sh. Anant Ram
R/o Village Kuleed Tehsil Kishtwar,
District, Doda.
2.    Sh. D. K. Nargotra
Presently posted as Joint Commissioner,
Agrarian Reforms,
Civil Secretariat, Jammu.

                      Through: Mr. Jagpaul Singh, Advocate

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
       HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                               JUDGMENT

Tashi Rabstan - J

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

dated 26.12.2017 delivered by the learned Single Bench in SWP No.723/2005,

whereby the learned Single Judge, while allowing the writ petition, quashed

the impugned order, bearing No.480-GAD of 2005 dated 26.04.2005

compulsory retiring the writ petitioner from service in public interest with

effect from 26.04.2005 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, and perused the appeal file.

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 duty of

the government 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 clearly reveals that the State Government

has run roughshod over the writ petitioner by compulsory retiring the writ

petitioner from service as the decision seems to be 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 1999-2000 and 2003-2004 have been

'good', more so the learned Single Judge had specifically opined the important

aspect of considering the APRs has been given a complete goby by the

Committee while considering the writ petitioner's compulsory retirement. The

Committee, in general, ought to have considered the entire service record of

the public servant available in the shape of APRs, service book, personal file

giving the details of the complaints received against him from time to time and

so on and so forth. While retiring the public servant compulsory, his case has

to be considered on the basis of documents/ service particulars, as stated above.

It is conspicuous by its absence in the present case. If these are disregarded and

omitted in the matter of the accord of consideration to the case of the

compulsory retirement of a public servant, the whole exercise will get vitiated

under the colour of non application of mind and decision having been taken not

on just grounds. It appears the APRs of writ petitioner, which were annexed by

him with the writ petition, have not been taken into account by the

respondents. In view of absence of any adverse entry in the APRs of the writ

petitioner, 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 the allegation that the writ petitioner is responsible for

embezzlement and shortages while being posted in the Consumer Affairs and

Public Distribution Department is concerned, however any FIR/charge sheet is

conspicuously absent, which otherwise shows no case of embezzlement made

out against the writ petitioner. In our view compulsory retirement cannot be

sustained merely on allegations and on the asking of the cross section of the

people. 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 opined by the Supreme Court 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.

The Supreme Court 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. 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 upholding the judgment and order of learned Single Judge.

13. 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 to writ

petitioner, are free to go ahead with 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.

14. With the above, the appeal is dismissed.

Jammu                                   (Rajesh Sekhri)         (Tashi Rabstan)
18.09.2023.                                      Judge                  Judge
(Raj Kumar)



                          Whether the order is reportable?        Yes
                          Whether the order is speaking?          Yes