M.K. Hanjura JUDGMENT
M.K. Hanjura, J.
1. The entire gamut of the controversy raised here in this petition revolves round the plea whether the Order bearing No. 480-GAD of 2005 dated 26th April 2005, issued by the Government of Jammu and Kashmir, in exercise of powers conferred by Article 226(2) of the Jammu and Kashmir Civil Services Regulations, whereby notice was given to the petitioner, namely, Gautam Singh (Junior Assistant) Sales Man, Consumer Affairs and Public Distribution Department, Ligri/Tun Tehsil Kishtwar, to the effect that he having already attained 48 years of age, shall retire from service with effect from the forenoon of the 26th of April 2005, can withstand the test of judicial scrutiny.
2. The pith and core of the petition of the petitioner is that during the entire tenure of his service, he worked with great deal of honesty and dedication at different places of posting and, at the relevant point of time, i.e. the day when the Order aforesaid was issued, he was holding the post of (Junior Assistant) Sales Man, Consumer Affairs and Public Distribution Department, Ligri/Tun, Tehsil Kishtwar. His past Service career has remained unblemished and, all along, he has been given various promotions on the basis of his suitability, merit and excellent service record. It is averred that he was initially appointed as Chowkidar in the respondent department in the year 1975 and thereafter he was promoted to the post of Junior Assistant in the year 1981. He was also granted the Time Bound Promotion vide Order No. 66-FSJ of 2000 dated 6th July 2000 and his seniority was also finalised vide Circular dated 2nd April 2004 issued by the respondent No. 2. No recovery has to be made from the petitioner and the annual physical verification of the Sale Depot conducted by Assistant Director, Consumer Affairs & Public Distribution, is up to date. No shortage of goods on the part of the petitioner either at the last place of his posting, which is Tun (Paddar) Tehsil Kishtwar, District Doda, or other places of his posting has been found. It is pleaded that the petitioner was working to the entire satisfaction of the superior officers as well as the general public of the area (Tun, Paddar) when he was served with the impugned order dated 26th April 2005, whereby the petitioner was retired from service after he having attained 48 years of age with effect from the Forenoon of 26th April 2005.
3. Further submission of the petitioner is that he was given to understand that the only reason for passing of such an order without any complaint or allegation against the petitioner, was that the petitioner was transferred to Food Store, Gulabgarh from Sale Depot, Ligri vide office order No. 07-FSJ of 2002 dated 7th February 2002 and as per this order the petitioner joined at his new place of posting on 15th February 2002 and another order dated 19th February 2002 was issued by Assistant Director, Food & Supplies, Doda, on the telephonic directions of the respondent No. 2, whereby the order of transfer of the petitioner to Food Store, Gulab Garh, was kept in abeyance. Since the petitioner stood relieved from Sale Depot, Ligri and he had joined Food Store, Gulab Garh, in terms of the order dated 7th February 2002, he was left with no other option but to challenge the same before this Court in a writ petition, diarised and registered as SWP No. 1698/2002, which was disposed of vide order dated 14th June 2002, with a direction that as order dated 7th February 2002 has been directed to be kept in abeyance, the petitioner would be permitted to join at the original place of posting. In case the petitioner reports back, he would be permitted to join and the responsibility to pay the salary after that would be on the person who fails to permit him to join the duty. The aforesaid order dated 14th June 2002, is stated to have not been implemented by the respondent No. 2, forcing the petitioner to file another writ petition, being SWP No. 2139/2002, which was disposed of vide order dated 19th August 2002, with a direction to the respondents to take notice of the anomaly pointed out by the petitioner in the said writ petition and take a decision within a period of 15 days from the date of the receipt of the said order and as a consequence thereof, the respondents would indicate the place, where the petitioner had to perform his duty and in case the order was not passed within the above stipulated period, then the responsibility to pay the salary component would be that of the officer, who would be remiss in passing the order indicating the place where the petitioner was supposed to perform his duty. The order dated 19th August 2002, according to the petitioner, irked the respondent No. 2, against whom the petitioner had also preferred a Contempt Petition, being COA(SWP) No. 90/2002. In compliance to the directions passed by this Court, the respondent No. 2 issued an office Order No. 96-FSJ of 2003 dated 21st July 2002, whereby the petitioner was attached in the office of the Tehsil Supply Officer, Kishtwar, and in the said order there was some reference of the complaint against the petitioner, though the petitioner was never served a copy of the same or asked to clear his position regarding the same. Moreover, the order itself mentions that the petitioner would continue to remain attached to the office of TSO, Kishtwar, till no objection was obtained by him from the Chief Accounts Officer, CA&PD, Jammu, for rendition of the accounts meaning thereby the petitioner had to clear all his accounts pertaining to earlier Sale Depot for future substantive posting.
4. The petitioner claims that since there was no shortage against him and even the mention of the complaints in the aforesaid order were without any basis as well as knowledge of the petitioner, the petitioner vide order No. 177-CA&PD of 2004 dated 9th January 2004, was posted as Salesman, Tun (Paddar) Tehsil Kishtwar District Doda, thereby indicating that the rider kept in the order dated 22nd July 2003, was compiled by the petitioner. The whole process of action against the petitioner, as averred by him in writ petition, was engineered by the respondent No. 2 and actuated by mala fides. An order of compulsory retirement, as maintained by the petitioner, cannot be passed on the grounds of misconduct/oblique motive or with a view to circumvent the provisions governing the disciplinary proceedings and cannot be resorted to by the Government as a cover or an excuse to get rid of a government servant, when neither the service record nor any misconduct, if any alleged, justified such an action. It is maintained that a government servant, compulsorily retired, cannot seek any other employment.
5. The Respondents have resisted and controverted the petition of the petitioner, on the grounds, inter alia, that in order to have a clean and effective administration, the Government has taken various measures and all this has been done in the public interest. One of such measures has been that officers/officials who have become deadwood and whose performance and the reputation as a whole has affected the administration and also keeping in view the public purpose, those officers/officials need to be retired prematurely by taking recourse to Article 226(2) and Article 226(3) of J&K Civil Service Regulations. A committee was set up vide Government Order No. 713-GAD of 2003 dated 10th June 2003, which comprised of senior officers headed by the Chief Secretary. The Committee, on the basis of the report from the concerned departments and various agencies as well as on the opinion of the public in general and also taking notice of the principles, laid down by this Court and the Supreme Court in various judgements on the issue of compulsory retirement, held a series of meetings and after scrutinizing the records and other relevant matters concerning various officers/officials including the petitioner came to be conclusion that it is in the interest of public and for the effective and proper administration that the petitioner who had attained 48 years of age in government service shall be prematurely retired from government service. It is insisted that the impugned order has been issued in the public interest and after due application of mind and, as such, does not suffer from any vice nor is it actuated by any mala fide considerations and due procedure as provided under law has been followed while issuing the impugned order. The petitioner has been found fit not to be retained any more in service on the basis of his overall performance. The impugned order, thus, is valid as the same has been issued in the public interest. It is also averred that the petitioner has not disclosed the source from where he has obtained his APRs, which have been attached by him to the writ petition and non-disclosure of source renders the petitioner liable for appropriate action as warranted under law.
6. In his rejoinder affidavit, the petitioner has stated that the impugned order has been passed without taking into consideration any relevant material and as a matter of fact the valid service record of the deponent including the available Annual Confidential Reports/Annual Performance Reports of the petitioner as also the Service Book, which were available with the department. He has been graded as "good" in the ACRs and these have not been taken into consideration while arriving at the necessary satisfaction required to exercise power under Article 226(2) of J&K Civil Services Regulations with respect to the compulsory retirement of the deponent. The petitioner claims that the Committee set up by the Government, consisting of the senior officers, was not provided any relevant record so as to enable the Committee to apply its mind regarding the exercise of power under Article 226(2) of the J&K Civil Services Regulations. Although the APRs/ACRs of the petitioner as also the Service Book were available, yet these have not been taken into consideration. The respondents, it is said, were under an obligation to consider the entire service record of the petitioner before forming any kind of opinion or before arriving at the satisfaction with respect to the fact that it was in public interest to retire the petitioner. The petitioner maintains that the Reply filed by the respondents portrays that the respondents have failed to produce before this Court any record to depict as to what was the material available with the respondents, which was placed before the Committee and on the basis whereof, they derived the satisfaction with respect to the compulsory retirement of the petitioner. The action of the Respondent-State in retiring the petitioner after taking resort to the provisions of Article 226(2) of the Civil Services Regulations, is arbitrary and discriminatory in nature and, therefore, the impugned order deserves to be quashed.
7. Heard and considered.
8. What requires to be stated, at the outset, is that the Government, in an attempt to cleave to the principles of chopping the deadwood in the shape of the corrupt and inefficient Government servants from service and to maintain the highest standards of efficiency, constituted a Committee headed by the Chief Secretary of the State vide Government Order bearing No. 713-GAD (Vig) 2003 dated 10th June 2003. The Committee held its deliberations on various occasions and finally recommended for compulsory retirement of several Government officers/officials, including the petitioner. The Respondents, in their Reply, have pleaded that the officers/officials, who have become deadwood and whose performance and reputation as a whole has affected the administration and taking into consideration the public purpose, those officers/officials need to be retired prematurely by taking recourse to Article 226 (2) of the Jammu and Kashmir Civil Services Regulations. The further case of the Respondents is that the Committee, while considering the case of the petitioner, came to the conclusion that in the interest of public and for the effective administration, the petitioner, who had attained 48 years of age in government service, shall be prematurely retired from the government service.
9. The State of Jammu and Kashmir has enacted a specific provision for dealing with the compulsory retirement of the public servants in the Civil Services Regulations of the State, with the ultimate aim of weeding out the deadwood, corrupt and inefficient public servants and, at the same time, to prevent its use as a weapon of a penalty. It requires the formulation of an opinion to the effect that it is in public interest to do so. The said provision, known as Article 226 (2) of the Civil Services Regulations, reads as follows:
"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 period 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."
10. It will not be impertinent to state that in the exercise of the power of compulsory retirement vested in the Government under Article 226 (2) of J&K CSR, based on reason, justice, fairness and a just analysis, the Government has issued instructions in terms of SRO 246 dated 30th June, 1999 and these have to be read in conjunction with the Regulation 226 (2) of the J&K CSR. These are as under:
"Government Instructions:- Levels at which screening should be conducted for Non-Gazetted Employees.
1. At the Non-Gazetted level, a Screening Committed comprising of the Head of the Department and two other Senior Officers of the Department to be nominated by the concerned Administrative Department should conduct the review. The Screening Committee should screen the cases of all concerned persons and forward its recommendations to the Administrative Department for further follow up action in terms of Art. 226 (2) of J&K CSR. This review should be done regularly, preferably twice every year in the months of January and July each. The review should be conducted by the cadre controlling Administrative Department which controls the service to which the concerned Government servant belongs irrespective of where he may be working at the relevant time. However, if the employee is working in a different department then the Screening Committee should consist of at least one Senior Officer from the department in which the Government servant is/was working at the relevant time.
2. The review should, normally be initiated around six months before the officer/official attains the prescribed age or completes the prescribed service. A separate register can be maintained for keeping a watch on the time schedule for such review.
3. The final decision in the matter for Non Gazetted staff should rest with Administrative Department, which should take a final decision based upon the report of the Screening Committee. This should be done within a period of three months of receipt of report from the Screening Committee. The gist of the final decision can be recorded in the service book of the employee.
4. The decision of the Administrative Department implies a decision by the concerned Minister of the Department on file. Hence, he can review his own decision in the form of considering representations made by the concerned employees against the initial decision pertaining to premature retirement in the interest of natural justice.
Norms to be followed by the Screening Committees in cases of Non-Gazetted Employees.
1. The Annual Performance Report of the Non-Gazetted Employees are not normally written very carefully nor are they fully available in a large number of cases. The Screening Committee should, therefore, consider the entire service record including all material and relevant information available on record about the employees before coming to any conclusion.
2. The Government employees whose integrity is doubtful should be retired. For the purpose of establishing that the integrity of the Government servant is doubtful, the following information/records could be considered:
* Number and nature of complaints received, if any, against the Government servant pertaining to doubtful integrity or corruption.
* Number and nature of various audit paras pending, if any, against the Government servant in which concerned Government servant is found to be involved.
* Number and nature of vigilance cases pending inquiry, if any, against the Government servant.
* Adverse entries in the APRs concerning doubtful integrity, if any.
* Number and nature of departmental inquiries/preliminary inquiries, if any, which are going on against the concerned Government servant.
* Number and nature of administrative censure/warnings/punishment pertaining to corruption/doubtful integrity against the Government servant, if any.
* General reputation of the employees."
11. By an addendum to these instructions, the Government in the General Administration Department issued an Office Memo bearing OM No. GAD (Vig)19-Admn/2010 dated 25th October, 2010. The Instructions issued by the Government in terms of SRO 246 dated 30th June, 1999, supra, as is repeated here, have to be read as a part of Article 226 (2) of CSR, in addition to the aforesaid Memo issued by the GAD. These are meant to be followed by the Screening Committee both in vigour and rigour while evaluating the cases of the officers forwarded to them for taking a decision with regard to their compulsory retirement. The norms laid down above make it succinctly clear that the Screening Committee, while analysing the cases of the employees for compulsory retirement and while considering that the integrity of a Government servant is doubtful, has to base its view on a variety of factors. These are the number and nature of complaints received, if any, against the government servant pertaining to his doubtful integrity or corruption; the number and nature of various audit reports pending, if any, against such government servant; the number and nature of vigilance cases pending enquiry, if any; adverse entries in APRs concerning doubtful integrity, if any; the number and nature of departmental enquiries, preliminary enquiries etc; the number and nature of administrative censures/warnings/punishments pertaining to corruption or doubtful integrity and, lastly, the general reputation of the employee. It is only on accord of consideration to the factors aforesaid that the Government can formulate an opinion as to whether or not, the Government servant whose case is under scrutiny before it, is or is not, a person of doubtful integrity and that his continuance in service is highly prejudicial to the smooth functioning of the administration and the public interest. The decision to compulsorily retire a Government servant has to be, as a matter of necessity, based on the strength of the above guidelines and the principles of law evolved from time to time in a catena of judicial pronouncements. In this regard, it will be profitable to quote the observations of the Supreme Court made in Paragraphs 8 and 18 of the case titled "Swaran Singh Chand v. Punjab State Electricity Board and others", reported in "MANU/SC/0942/2009 : (2009) 13 SCC 758", which read as under:
"8. It is further more well settled that when the State lays down the rule for taking any action against an employee which would cause civil or evil consequence, it is imperative on its part to scrupulously follow the same. Frankfurter, J. in Vitarelli v. Seaton [MANU/USSC/0176/1959 : 359 US 535] stated:
"An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed......This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."
"18. In a case of this nature the appellant has not alleged malice of fact. The requirements to comply with the directions contained in the said Circular Letter dated 14-8-1981 were necessary to be complied with in a case of this nature. Non-compliance wherewith would amount to malice in law (See Govt. Branch Press v. D.B Belliappa MANU/SC/0367/1978 : (1979) 1 SCC 477, S.R Venkataraman v. Union of India MANU/SC/0359/1978 : (1979) 2 SCC 491 and P. Mohanan Pillai v. State of Kerala MANU/SC/7165/2007 : (2007) 9 SCC 497). Thus, when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable."
12. The view, as propounded above, has been repeated and reiterated by the Supreme Court in the case of "Madhya Pradesh State Cooperative Dairy Federation Ltd. And another v. Rajnesh Kumar Jamidar, MANU/SC/0638/2009 : (2009) 15 SCC 221", Paragraph No. 43, of which assumes significance in the case at hand and it reads as follows:
"43. It is now a well settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature. ........."
13. It will also be relevant to refer to the observations made by the Supreme Court in the case titled "M.S. Bindra v. Union of India and others; MANU/SC/0565/1998 : (1998) 7 SCC 310", Paragraph No. 13 of which is reproduced below, verbatim:
"13. While reviewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim 'nemo firutrepenteturpissimus' (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity"."
14. In the case of "State of Gujrat v. Umedbhai M. Patel, MANU/SC/0140/2001 : (2001) 3 SCC 314", the Supreme Court, at Paragraph No. 11 of the judgment, excogitated definite principles of law relating to compulsory retirement and these are as follows:-
"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized thus:
(i) Whenever the service of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
15. The law is that the order of compulsory retirement, taken under the safety valve of public interest, could not be treated as a major punishment and that Article 311 (2) of the Constitution could not be invoked, as the employee concerned was no longer fit in the public interest to continue in service and, therefore, he can be compulsorily retired. On an analysis of the principles laid down above, the order of compulsory retirement can be subjected to judicial scrutiny, if the Court is satisfied that the order is passed (a) mala fide; or (b) that it is based on no evidence; or (c) that it is arbitrary - in the sense that no reasonable and prudent man would form such an opinion on the given material, in which case it falls under the category of an order termed to be perverse in the eyes of law. For framing an opinion to compulsorily retire a public servant, there should be some material on record to support and fortify it, as otherwise, it would amount to arbitrary or colourable exercise of power and, therefore, the order could be challenged on the grounds that the requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision.
16. Judicial review of an order of compulsory retirement, passed not by way of any punitive measure but for cleansing the administration of inefficient and corrupt public servants without attaching any stigma, has been the subject matter of adjudication in several cases before the Supreme Court as well as in this Court. It would be relevant to refer to the observations made by the Supreme Court at Paragraph No. 13 of the case titled "M.S. Bindra v. Union of India &Ors., MANU/SC/0565/1998 : (1998) 7 SCC 310", which is reproduced hereunder:
"13. While reviewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim 'nemofirutrepenteturpissimus' (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".
17. Looking at the instant case from the above perspective, an important facet which cannot be lost sight of is that the Committee has given a complete goby to the Regulation 226(2) of the J&K CSR read with the instructions (provided hereinbefore) buttressed to it in considering his compulsory retirement. These lay great emphases and spell out the need and demand to consider 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 considering the desirability of the retention or otherwise of a public servant, whose conduct has come under a smoke of cloud, his case has to be considered on the parapet and the bulwark of the chain of the documents/service particulars, as stated hereinbefore.
18. In order to attach a semblance of fairness to such an order, the entire service record of a public servant, more significantly the service record of the previous years preceding the decision, has to be assessed and evaluated. These cannot be skipped and shelved in formulating such an opinion by taking umbrage under the plea that the same were not available, as stated here in this 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 the non-application of mind and the decision having been taken not on just grounds, but for a collateral purpose, and, to cap it all, how can the conduct of a public servant be put through the wringer when there is no definite material to substantiate so. The reputation of a public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in the absence of any material on record. This is a fundamental flaw in the order issued against the petitioner, whereby he has been shown the door.
19. Viewed in the context of what has been said and done above, the impugned order bearing No. 480-GAD of 2005 dated 26th April 2005, cannot stand the test of law and reason. It is not based on any material, from which a reasonable opinion could be derived to put forth the plea that the petitioner has outlived his utility as a Government servant or that his conduct was such that his continuance in service would be prejudicial to the public interest. Merely stating that it is in the public interest and the petitioner has become deadwood cannot form the baseline of retiring him compulsorily in the absence of any material to substantiate so as a corollary to which, the impugned order bearing No. 480-GAD of 2005 dated 26th April 2005, is quashed. The Respondents are directed to reinstate the petitioner and grant him all consequential benefits, within a period of one month from the date the certified copy of this order is served on them by the petitioner.
20. Writ petition along with connected MP disposed of as above.
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