State Of J&K Through ... vs Noor Mohammad Bhat
2025 Latest Caselaw 723 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

State Of J&K Through ... vs Noor Mohammad Bhat on 13 February, 2025

Bench: Sanjeev Kumar, Puneet Gupta

     IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR

                                                Reserved on:     06.02.2025
                                              Pronounced on      13.02.2025

                           LPA No.236/2019


1.     State of J&K through Commissioner/Secretary to
       Govt. General Administration Department, Civil
       Secretariat, J&K, Srinagar/Jammu.
2.     Commissioner/Secretary to Govt. Forest
       Department, Civil Secretariat, Srinagar/ Jammu.
3.     Principal Chief Conservator of Forest, J&K,
       Srinagar/Jammu.

                                                        ...APPELLANT(S)
       Through: -   Mr. Ilyas Laway, GA.

       Vs.
       Noor Mohammad Bhat, aged: 50 years
       S/o Wali Mohammad Bhat
       R/o Wahipora, Tangmarg.
                                                  ...RESPONDENT(S)
       Through:-    Mr. Salih Pirzada, Advocate, with
                    Mr. Bhat Shafi, Advocate.

CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
             HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                             JUDGMENT

Per Sanjeev Kumar 'J'

1) This intra-court appeal by the erstwhile State of

Jammu and Kashmir (now Union Territory of Jammu and

Kashmir) is directed against the order and judgment dated

11.10.2018 passed by the learned Single Judge of this

Court ["the Writ Court"], in SWP No.277/2012 titled "Noor

Mohammad Bhat vs. State of J&K & Ors" whereby the Writ

Court has allowed the petition of the respondent and

quashed the Government Order No.186-GAD of 2012 dated

13th February, 2012 retiring the respondent prematurely

with effect from 13th February, 2012.

2) The impugned order is assailed by the appellants on

numerous grounds. However, before we advert to the

grounds of challenge urged by Mr. Ilyas Laway, learned GA,

in support of the appeal, we deem it appropriate to notice

material facts.

3) The respondent entered the services of the

Government as Forester on 11th September, 1989, on

regular basis. After undergoing KFC training in the year

1990-1991, he was promoted as Range Officer Grade-I in

the year 1995. On the basis of his merit and seniority, the

respondent came to be posted as Incharge Assistant

Conservator of Forests in the year 2007 vide Government

Order No. 344-FST of 2007 dated 27th June, 2007. He was

later on posted as Incharge Deputy Director, Forest

Protection Force, Budgam.

4) In the year 2008, when the respondent was

performing his duties as Deputy Director, Forest Protection

Force, Hardupanzoo, Budgam, he was trapped on a

complaint by the sleuths of Vigilance Organization and was

found demanding and accepting a bribe of Rs.10,000/ for

reinstating a subordinate employee who had been placed

under suspension by the Director, Forest Protection Force,

J&K. On this basis, FIR No.30/2008 was registered in the

Police Staton, Vigilance Organization, Kashmir. During the

course of investigating, the money was recovered from the

respondent and he was found involved in corrupt practices.

Investigation culminated into presentation of challan before

the court of law. The case is stated to be still pending and

has not yet been concluded.

5) In the year 2011, the Government with a view to

remove deadwood from the Government machinery,

constituted a service committee vide Government Order No.

32-GAD (Vigilance) of 2011 dated 16th May, 2011, which

was headed by the Chief Secretary of the then State of

Jammu and Kashmir. The Committee was entrusted the job

of scrutinizing the service record and activities of various

officers/officials including the respondent and recommend

appropriate cases for premature retirement in terms of

Article 226 (2) and 226 (3) of the J&K Civil Services

Regulations, 1956. The Committee undertook the exercise

in which it claims to have scrutinized the record and other

relevant factors touching upon the service career of the

respondent. The Committee was of the opinion that the

further retention of the respondent in service was not in

public interest and, therefore, recommended his premature

retirement from the Government service.

6) Acting upon the aforesaid report, the Government

passed the order of premature retirement of the respondent

in public interest, invoking its powers vested under Article

226(2) of the J&K CSR and the respondent was retired with

effect from 13th February, 2012, with three months' pay and

allowances in lieu of three months' notice provided under

the regulation.

7) It is this order of the Government dated 13th February,

2012, which was called in question by the petitioner

(respondent herein) in SWP No. 277/2012. The impugned

order was challenged by the respondent on the ground that

the same was arbitrary and without proper application of

mind by the Government. It was argued by the respondent

before the Writ Court that for the solitary incident, FIR No.

30/2008 was registered and the case is pending trial before

the competent court of law. It was thus submitted that

since the law of the land has taken its course, as such,

there was no occasion for the Government to declare the

respondent dead wood and chop it off prematurely.

8) The writ petition was resisted by the appellants

(respondents therein) by filing counter affidavit. In the

counter affidavit, it was the stand taken by the Government

that order of premature retirement of the respondent and

few others was necessitated to provide clean and affective

administration to the people of the State. It was contended

that the respondent was not enjoying good reputation and

was caught red handed by the Vigilance Organization,

Kashmir, accepting bribe from a subordinate employee in

lieu of his reinstatement in service from suspension. It was

thus submitted that the order of premature retirement of

the respondent was passed after his entire service record

and activities were scrutinized by a high-power Committee

headed by the Chief Secretary.

9) The Writ Court having considered the rival

contentions and the material on record, came to the

conclusion that the impugned order of premature

retirement of the respondent was not in consonance with

law, in that, the entire service record had not been

scrutinized by the Committee nor the satisfaction of the

Government was based on any relevant material. The Writ

Court accepted the writ petition of the respondent and

quashed the order impugned in the writ petition, vide its

judgment impugned before us.

10) Mr. Ilyas Nazir Laway, learned counsel appearing for

the appellants has reiterated the arguments which have

been duly taken of and considered by the Writ Court.

11) Having heard the learned counsel for the parties and

perused the material on record, the premature retirement

of a Government employee serving in the then State of

Jammu and Kashmir (now Union Territory of Jammu and

Kashmir) is governed by Article 226(2) of the J&K Civil

Services Regulations, 1956. Article 226 (2), which is

reproduced in the impugned judgment, is once again set

out below for ready reference:

"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.

Explanation :--A Government servant who is retired immediately after allowing him pay and allowances in lieu of notice will be entitled to pension from the date of such retirement and the pension shall not be deferred till after the expiry of the three months for which he is paid pay and allowances."

12) From reading of Article 226(2), it is evident that the

term "premature retirement" has not been defined or even

used anywhere in the Civil Service Regulations. However,

the ordinary meaning of the premature retirement as could

be culled out from Article 226(2) CSR, would mean the

retirement of a Government employee from service before

attaining the actual age of superannuation prescribed by

the rules. The object of resorting to premature retirement of

an employee from service, which, of course, is a policy

decision of the Government, is to provide clean

administration, improving efficiency and strengthening

machinery at all levels, and to weed out dead wood and all

those employees whose integrity is doubtful.

13) It is always expected by the Government that a

Government employee at whatever level, should perform his

duties with exemplary competence, efficiency and

effectiveness. The resort to weeding out the deadwood from

the Government machinery necessarily contributes towards

the maintenance of high efficiency in administration, which

obviously is desirable in public interest. Although Article

226 (2) of J&K CSR does not in so many words refers to the

material that is required to be considered by the

Government to formulate its opinion that it is in public

interest to retire a Government servant prematurely, yet

there are catena of judicial pronouncements laying down

unequivocally that the Government or the Review

Committee, if any, constituted by it must consider the

entire record of service before taking a decision in the

matter, of course attaching more importance to the record

of and performance during the later years. The entire record

of service to be scrutinized by the Government or the Review

Committee as the case may be, would include the entries in

confidential records/character rolls, both favorable and

adverse, as also the communications and the reports of his

controlling authorities reflecting upon his working, made

from time to time.

14) Apart from the Government employees who are found

to be inefficient and ineffective in service, such of the

Government servants whose integrity is doubtful, can also

be retired prematurely. While considering the competence

and efficiency of a Government servant under scrutiny, the

Government or the Review Committee as the case may,

must find out as to whether there is a sudden and steep fall

in his competence, efficiency and effectiveness in the

Government service. Not only the APRs/ACRs, but the

entire service record of the Government servant should be

considered at the time of review. His work and performance

can also be assessed by looking into the files dealt with by

him or any papers or reports prepared and submitted by

him. The actions and decisions taken by the Government

servant under scrutiny should also be gone into before

formulating an opinion that it is in public interest to retire

such public servant prematurely. To evaluate the integrity

of a Government servant, apart from the criminal case for

corruption that may have been registered against such

Government servant, the other material factors like the

complaints, if any, received against him or suspicious

property transactions made by him and the departmental

proceedings, if any, faced by him during his service career

must also be considered. The legal position has been very

aptly enunciated by the Writ Court taking note of the

judgments passed by the Supreme Court in "State of

Gujrat vs Suryakant Chunilal Shah", (1991) 1 SCC 529,

Baikunta Nath Das vs Chief District Medical Officer, AIR

1992 SC 1020 and a Division Bench judgment of this Court

in State of J&K and Others vs. Janak Singh, 2010 (4) JKJ

89 (HC). The observations of the Division Bench in Janak

Singh's case, which are reproduced in Para 20 of the

impugned judgment, are very relevant and, therefore,

reproduced hereunder:

"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 respondents, 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 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."

15) Viewed the case of the respondent in the light of the

legal position explained hereinabove, one would find that

the only reason to justify the premature retirement of the

respondent is registration of FIR No. 30/2008 and the

consequent challan produced before the court of Special

Judge, Anti-Corruption, Srinagar. The FIR was registered

on the complaint of one Siraj Din, a subordinate official who

was working under the respondent at the relevant point of

time. Apart from the aforesaid FIR and the challan, the

Review Committee has not considered any other relevant

material. As is evident from the report of the Review

Committee, the ACRs of 2000-2001, 2001-2002 and 2002-

2003 in respect of the respondent alone were available and

the same were either very good or excellent. No complaint

other than the one made by Siraj Din which led to the

registration of FIR No. 30/2008 was under the scrutiny of

the Review Committee. It is not the case of the appellants

that apart from facing trial, the respondent had been earlier

in his service career, proceeded departmentally or otherwise

for any of his acts or omissions.

16) From perusal of the record, it clearly transpires that

the entire service career of the respondent had remained

unblemished. Recruited as Forester in the year 1989, the

respondent rose to the position of Deputy Director, Forest

Protection Force, and nothing adverse was noted. There is,

of course, a criminal trial pending against him and the law

has taken its course. Mere registration of a case and

pendency of challan cannot lead to the conclusion that the

integrity of the respondent is so doubtful as would

necessitate his weeding out from service prematurely. The

Writ Court has, thus, rightly concluded that formulation of

opinion by the Government, on the basis of

recommendation of the Review Committee, is not based on

any relevant material. Mere registration of FIR in a

corruption case without there being any other adverse

material is not sufficient to formulate opinion by the

Government in terms of Article 226(2) of the CSR that

retention of Government servant under scrutiny is no

longer in public interest. The relevant parameters which

have been indicated hereinabove and which are required to

be considered for formulating such opinion have not been

kept in view. The Review Committee was completely swayed

by the fact that the respondent had been caught red handed

taking bribe from his subordinate in lieu of reinstatement

from suspension and, therefore, was a person of doubtful

integrity. Needless to say, that registration of FIR and even

presentation of challan after investigation is merely an

allegation against the respondent and is not conclusive

proof of the fact that he has actually indulged in corrupt

practice. Besides, the Government has violated the

mandate of Article 226(2) of CSR, 1956 by ignoring to

consider all the relevant material, which must form bedrock

of the Government decision to retire a public servant

prematurely in public interest.

17) For all these reasons, we do not find any legal infirmity

in the judgment impugned. The appeal is found to be

without any merit and the same is accordingly dismissed.

               (PUNEET GUPTA)             (SANJEEV KUMAR)
                   JUDGE                      JUDGE
Srinagar,
13.02.2025
"Mohammad Altaf"


               Whether the order is reportable: Yes.