Jammu & Kashmir High Court
Janak Singh vs Chief District Medical Officer on 26 December, 2008
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1559 OF 2006 Janak Singh Petitioners State of J&K & Ors Respondent !Mr.U.K. Jalali Sr. Advocate with Mr. Parimoksh Seth & Ms. Shivani Jalali ^Mr. D.C.Raina, Advocate General Hon'ble Mr. Justice Mansoor Ahmad Mir, J. Date: 26.12.2008 : J U D G M E N T :
1. By the medium of this writ petition, petitioner has questioned Government order No. 968-GAD of 2006 dated 14-8-2006, whereby he came to be compulsorily retired from service, on the grounds taken in the petition.
2. Respondents have filed their counter and resisted the petition on the grounds taken therein.
3. The meat of the matter is whether the impugned compulsory retirement order is legal one and cannot be interfered with by this court?
4. It is beaten law of the land that compulsory retirement is not a punishment at all and cannot be questioned by way of writ petition, except as per guidelines and tests laid down by the judicial pronouncements. Apex court in case Baikuntha Nath Das & another Vs Chief District Medical Officer, AIR 1992 SC 1020 laid down the following principles:-
32. The following principles emerge from the above discussion:
i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of mis-behaviour.
ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short; if it is found to be a perverse order.
iv) The Government or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records /character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This object has been discussed in paras 29 to 31 above.
5. These tests came to be discussed by the apex court and this court (both single and Letters Patent Bench) and other High Courts in numerous cases reported as Baldev Raj Chandra V. Union of India, 1980(4) SCC 321, Baldev Raj Chandra V. Union of India, AIR 1981 SC 70, H.C. Gagri V. State of Haryana, AIR 1987 SC 65, Brij Mohan Singh Chopra Vs State of Punjab, AIR 1987 SC 948, Baidyanath Mahapatra V. State of Orissa, AIR 1989 SC 2218, Ram Ekbal Sharma V. State of Bihar, 1990(3) SCC 504, Union of India V. Dulal Dutt, 1993 (2) SCC 179, S.Ramachandra Raju Vs. State of Orissa, 1994 Supp (3) SCC 424, State of J&K V. Jia Lal Gupta, 1994 SLJ 24, Chief General Manager, SBI V. Suresh Chandra Behera, AIR 1995 SCC 1745, K. Kandaswamy Vs. Union of India, AIR 1996 SC 277, Allahabad Bank Officers Association V. Allahabad Bank, 1996(4) SCC 504, M.S. Bindra V. Union of India, 1998(7) SCC 310, M.S. Bindra v. Union of India, AIR 1998, SCC 3058, State of Gujarat V. Suryakant Chunilal Shah, 1999(1) SCC 529, State of Gujrat V. Umedbhai M. Patel, AIR 2001 SC 1109, State of U.P V. Chater Sen, 2005(9) SCC 592, Pritam Singh V. Union of India, 2005(9) SCC 748, Ashok Kumar Jain Vs. State of J&K & ors. LPA Nos. 27J and 28J of 2005 decided on 5-8-2005, Mohammad Mehraj-ud-Din Khan Vs., State of J&K & ors., 2006(3)JKJ 240(HC), Shah Latief Vs, State of J&K & ors. 2006 (1) JKJ 486 HC (DB), Rajesh Gupta vs. State of J&K & ors. 2008 (1) JKJ 573 [HC] and SWP No. 828 and other bunch of petitions titled Zareena Banoo & connected matters Vs. State and others, date of decision 6-6-2008.
6. While going through the above referred judgments, one comes to an in- escapable conclusion that the order of compulsory retirement, as discussed above, can be questioned only on the grounds enumerated in para 32 of the apex court judgement reported in AIR 1992 SC 1020 supra. Keeping in view the ratio laid down in the apex court judgements supra, and other things, the compulsory retirement order can be challenged on the grounds of mala fide or lack of evidence or being arbitrary and out come of malice. The instant case has to be examined on the touch stone of the law laid down by the apex court and by this court.
7. In order to return a finding as to whether the impugned order is liable to be interfered with on the grounds supra, as laid down in judicial pronouncements, it is profitable to notice the brief facts of the instant case.
8. Respondents have produced photostat copies of the record which according to them came to be considered while making the impugned order.
9. Perusal of the record reveals that the Government constituted a committee for considering premature retirement cases of the officers / officials under Article 226(2) and 226(3) of the Jammu and Kashmir Civil Service Regulations. The said committee consisting of the Chief Secretary, Financial Commissioner (Home), Commissioner/Secretary to Government, General Administration Department, Commissioner/Secretary to Government, Law department, Additional Deputy Inspector General of Police, CID, Commissioner of Vigilance, met on 8-8-2006 for considering the cases of four officers/officials including the petitioner and it was decided to consider the general reputation of the Government employees, launching of prosecution on the basis of investigation conducted by the Vigilance Organization or Crime Branch etc. and if a Government employee is found to have indulged in corrupt practices at different stages of his service career, he is liable for compulsory retirement. It is profitable to reproduce para 3 of the report of the Committee, so far it is relevant for the present case, and which is part of the photostat copies of the record, produced by the respondents:-
..
The Committee again took note of the principles which have crystallized through various judgements of the Honble Courts on the issue of premature retirement. These include the principle that if the general reputation of a government employee is not good, he can be compulsorily retired in public interest. The Committee has also held earlier that, among other things, where prosecution has been launched on the basis of investigation conducted by the vigilance organization or the crime branch, it shall be considered that the general reputation of the concerned officer/ official is not good. The Committee held that if a Government employees is found to have generally indulged in corrupt practices at different stages of his service career, his/her pre-mature retirement would be justified and in accordance with the objectives of Article 226(2) of the J&K CSR.
10. The record also contains what were the grounds which weighed with the committee for recommending compulsory retirement of the petitioner.
11. It appears that FIR No. 69/1999 Police Station Vigilance Organization, Jammu, came to be registered against the petitioner and other members of the State Level Purchase Committee headed by Mr. Ajit Kumar, IAS. The petitioner also figured one of the co-accused in the case. It also appears that the petitioner has allegedly certified in writing that he had verified the rates from the original manufacturers and is allegedly involved in the case relating to purchase of Digital Toe Aligner, which came to be purchased by Technical Education Department in the year 1997-1998 and FIR came to be registered and petitioner was one of the member of the Purchase Committee. In nutshell, all the allegations leveled against the petitioner, which as per record were made basis for his compulsory retirement, relate to the year 1997-1998 and he was one of the members of the Purchase Committee. What action has been drawn against other members of the Purchase Committee and the Chairman/Head, is not forthcoming from the record.
12. Petitioner has specifically averred in the writ petition that the prosecution has failed to produce challan till filing of the writ petition before the court of competent jurisdiction, relating to the two FIRs referred above. The respondents have not denied the said fact specifically. The question which calls for consideration is whether lodging of FIR(s) and allegations contained in FIR(s)can be made a ground for compulsory retirement. The answer is in negative for the following reasons:-
13. The allegations against the petitioner relates to the year 1997-98. Admittedly the petitioner came to be promoted in the year 2004, when he was placed in the selection grade, on the basis of merit-cum-seniority as specifically averred in para 14 of the writ petition. The respondents have not denied the said fact either evasively or specifically. It is apt to reproduce relevant portion of the said para herein:-
.And it was on January 24, 2004 that the petitioner was promoted to the selection grade w.e.f. October 01, 2003 and later transferred to Jammu Development Authority as Financial Advisor/Chief Accounts Officer.
14. Apex court in case, State of Gujrat & anr. Vs. Suryakant Chunilal Shah, 1999(1) SCC 529 has held that pendency of FIR or a criminal case is no ground for compulsory retirement. It is apt to reproduce para 26 of the said judgement hereunder:-
26. Applying the principles laid down above to the instant case, what comes out is that in compulsorily retiring the respondent from service, the authorities themselves were uncertain about the action which was to be taken ultimately against him. In fact, there was hardly any material on the basis of which a bona fide opinion could have been formed that it would be in public interest to retire the respondent from service compulsorily. The material which was placed before the Review Committee has already been mentioned above. To repeat, the respondent was promoted in 1981; the character roll entries for the next two years were not available on record; there were no adverse entries in the respondents character roll about his integrity; he was involved in two criminal cases, in one of which a final report was submitted while in the other, a charge-sheet was filed. Although there was no entry in his character roll that the respondents integrity was doubtful, the Review Committee on its own, probably on the basis of the FIRs lodged against the respondent, formed the opinion that the respondent was a person of doubtful integrity. The Review Committee was constituted to assess the merit of the respondent on the basis of the character roll entries and other relevant material and to recommend whether it would in public interest to compulsorily retire him from service or not. The Review Committee, after taking into consideration the character roll entries and noticing that there were no adverse entries and his integrity was, at no stage, doubted, proceeded, in excess of its jurisdiction, to form its own opinion with regard to the respondents integrity merely on the basis of the FIRs lodged against him. Whether the integrity of an employee is doubtful or not, whether he is efficient and honest, is the function of the appointing authority or the immediate superior of that employee to consider and assess. It is not the function of the Review Committee to brand, and that too, offhand, an employee as a person of doubtful integrity. Moreover, the Review Committee did not recommend compulsory retirement. It was of the opinion that the respondent had committed grave irregularity and that he must be retained in service so that he may ultimately be dealt with and punished severely. The Secretary and the Chief Secretary, who considered the recommendations of the Review Committee, had other ideas. They thought that the investigation and subsequent prosecution of the respondent would take a long time and that it would be better to immediately dispense with his services by giving him the temptation of withdrawing the criminal cases and retiring him compulsorily from service, provided he does not approach the court against the order of compulsory retirement. This proposal too was not immediately acted upon and it was thought that nobody could say whether the order of compulsory retirement would be challenged by the respondent before the court or he would merely submit to it on the temptation that the criminal cases against him would be withdrawn. It was at this stage that the order of compulsory retirement was passed.
15. It is in place to mention here that the photostat copies of the record produced by the respondents for perusal, also contain APRs of the petitioner pertaining to the years 1999-2000, 2000-2001, 2002-2003 and 2003-2004 (from June up to ending November 2003). He has been ranked as an outstanding officer and integrity beyond any doubt. The reporting officer has also ranked integrity of the petitioner as beyond any doubt and the reviewing officer has also ranked the petitioner as very good officer. In the APRs of 2003-2004, in the general assessment form which contains 10 clauses, the officer has been ranked as Excellent Officer. It is also recorded that the officer petitioner has made special efforts to re-schedule loan terms for payment of interest from 16.5% to 12.5%. It is also recorded that the petitioner is an outstanding officer with ability to work in a team and as a group for efficient corporate working and management. The reviewing officer has also ranked him A very good officer.
16. It is worthwhile to mention here that it is not coming out from record whether these APRs were taken into consideration by the committee. It is nowhere indicated in the record that the confidential reports of the petitioner were considered by the committee, though these APRs are part of the record. It is thus suggestive of the fact that the impugned order suffers from non- application of mind and is based on no material.
17. Admittedly, the petitioner came to be promoted to the selection grade in the year 2004. How the allegations of the year 1997-98 can be made basis for passing the impugned order of compulsory retirement. The apex court in AIR 1992 SC 1020, Baikuntha Nath Das case supra, while laying down the tests, has held that if an officer/employee is promoted, any adverse entry existing in his service records loses its sting. It is apt to reproduce para (iv) of the tests hereunder:-
The Government or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records /character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
18. The apex court in case titled Baidyanath Mahapatra Vs. State of Orissa, AIR 1989 SC 2218, has held that if an officer is promoted, previous allegations cannot be made basis for compulsory retirement. It is apt to reproduce relevant part of para 5 of the judgement hereunder:-
When a Government servant is promoted to a higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and those remain on record as part of past history. It would be unjust to curtail the service career of Government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion.
19. In yet another case reported as Baldev Raj Chadha v. Union of India & ors. AIR 1981 SC 70, the apex court has made detailed discussions, whether earlier entries/allegations can be made basis for compulsory retirement, though subsequently promoted and the apex court in the said judgement replied in negative. It is apt to reproduce relevant portion of para 15 of the judgement hereunder:-
One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least four five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring willfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard or the totality of material facts viewed in a holistic perspective. For these reasons, the order challenged is obviously bad and .
20. While going through the record, one comes to an in-escapable conclusion that there is no adverse entry recorded in the service record of the petitioner, except filing of two FIRs. As discussed above, lodging of FIRs cannot be made basis for compulsory retirement, coupled with the fact that there is no adverse entry in the service records of the petitioner. On the other hand, the fact of the matter is that the service record shows that the petitioner is graded as excellent officer. In the given circumstances, impugned order merits to be quashed. The apex court in a case titled State of Gujrat Vs. Umebhhai M. Patel reported in AIR 2001 SC 1109 has laid down the same principle. It is apt to reproduce para 12 of the judgement hereunder:-
In the instant case, there were absolutely no adverse entries in respondents confidential record. In the rejoinder filed in this court also, nothing has been averred that the respondents service record revealed any adverse entries. The respondent had successfully crossed the efficiency bar at the age of 50 as well 55 He was placed under suspension on 22-5-1986 pending disciplinary proceedings. The State Government had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of thee respondent. The respondent had only less than two years to retire from service. If the impugned order is viewed in the light of these facts, it could be said that the order of compulsory retirement was passed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the respondent merely on the basis of the allegations which had not been proved and in the absence of any adverse entries in his service record to support the order of compulsory retirement. We are of the view that the division Bench was right in holding that the impugned order was liable to be set aside. We find no merit in the appeal, which is dismissed accordingly..
21. The apex court in case titled Baldev Raj Chadha Vs. Union of India, (1980) 4 SCC 321, H.C.Gargi Vs. State of Haryana, AIR 1987 SC 65, M.S. Bindra Vs. Union of India, (1998) 7 SCC 310 and State of U.P. Vs. Chater Sen, (2005) 9 SCC 592, has laid down the same principle. It is apt to reproduce para 16 of the judgement reported in (1980) 4 SCC 321 hereunder:
16. The appellant was promoted only in 1961 and was regularly drawing increment for well over a decade, without let or hindrance.
What is far more significant is the further fact that the Reviewing Committee and the AG appear to have ignored entries in yearly/half yearly reports in the seventies.
The appellant states categorically:
A perusal of the extract from the confidential reports would show that there were no adverse remarks in the confidential reports of the appellant for the years 1971-72, 1972-73, 1973-74, 1974-75 and 1975- 76, till the date of his retirement from service on August 27, 1975.
22. A Division Bench of this court while dealing with a case of identical nature has also laid down the same principle in case titled State of J&K Vs. Jia Lal Gupta & ors., 1994 SLJ 24.
While going through the service record and keeping in view the discussions made hereinabove, there is no material at all which could have been made basis for the compulsory retirement of the petitioner. Thus it cannot be safely held that the impugned order came to be passed on no evidence.
23. The apex court has also laid down the same principle in case titled H.C.Gargi Vs. State if Haryana, AIR 1987 SC 65 (supra). Apex court in case titled Union of India Vs. Dulal Dutt, (1993) 2 SCC 179 fhas held that the order should be based on material and entire service record. It is apt to reproduce para 2 of the judgement delivered in H.C.Gargis case supra, hereunder:
2The test in such cases is public interest as laid down by this Court in Union of India v. J.N. Sinha, (1971) 1 SCR 791: (AIR 1971 SC 40). It does not appear that there was any material on the basis of which the State Government could have formed an opinion that it was in public interest to compulsorily retire the appellant at the age of 57 years. There was really no justification for his compulsory retirement in public interest. The impugned order of compulsory retirement of the appellant under R 3.25(d) of the Rules must therefore be struck down as being arbitrary. ..
24. Before passing the impugned order, it was mandatory for the respondents to examine the entire service record of the petitioner, more particularly, latest one which, which would form foundation for the opinion. I am fortified in my view by a judgement of the apex court reported as S. Ramachandra Raju Vs. State of Orissa, 1994 Supp (3) SCC 424, wherein it has been held that:
On total evaluation of the entire record of service if the Government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the court may not interfere with the exercise of such bona fide judicial review not as a court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the government officer compulsorily from service.
25. Same view has been taken by the apex court in case titled K. Kandaswamy Vs. Union of India and another reported in AIR 1996 SC 277. It is profitable to reproduce relevant observation of the Honble Court hereunder:-
On consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the Government officer needs to be compulsorily retired from service. Therefore, the entire record more particularly, the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government Officer.
26. The committee in the report has also stated that the general reputation of the petitioner, as gathered from a cross section of people is not good. It also appears that this ground and registration of two FIRs came to be made basis for passing the impugned order. It is not the case of the Committee or of the Government that entries recorded in the APRs are adverse, that too how it can be said when APRs are recorded in favour of the petitioner, as discussed hereinabove. It is not forthcoming from the record, what does words cross section of people would mean? From whom they have gathered the information, whether verbally or in writing. Nothing of this kind is forthcoming on the file. If it is verbal, who made such a remark and who recorded it. There is no such record. At least such remark(s) should have been reduced in writing. Nothing is forthcoming from the file / record that the CBI/CID/IB /SB agency(ies) have ever made any such report against the petitioner Had that been so, then the committee would have recorded that they have received a report from any of the above referred agencies. That is not the case. The officers under whom the petitioner has worked have ranked him good, very good and excellent and admittedly came to be promoted /placed in selection grade. How he became a bad officer and how can it be said that his integrity is doubtful, when the fact of the mater is, as discussed above that competent authority and the reviewing authority has recorded his integrity as beyond doubt. The apex court in AIR 1992 SC 1020, AIR 1995 SC 1745 and AIR 1998 SC 3058 (supra) held that in order to consider whether the petitioner is having good reputation, service record is to be considered and not otherwise. It is apt to reproduce para 6 of the judgement reported in AIR 1995 SC 1745 and para 13 of the judgement reported in AIR 1998 SC 3058 hereunder:-
6. Learned advocate for the respondent relied on a decision in the case of Baldeve Raj Chandra V. Union of India (1981) 1 SCR 430: (AIR 1981SC
70). In that case, the appellant was compulsorily retired on the basis of his poor performance many years ago. He had been allowed to cross the efficiency bar and there was nothing adverse in his service record for the past five years. This Court said that the order of compulsory retirement could not be sustained as it ignored relevant material. This judgment has no application to the facts of the present case.
13. While viewing 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 maxima Nemo Firut Repente Turpissiums (no one becomes dishonest all of a sudden) is not unexceptional but still it is salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the 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 entertain able 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
27. This point also came up for consideration before this court in a bunch of petitions lead case being SWP No. 828/2005 titled Zareena Banoo and others Vs. State and others, decided on 6-6-2008. It is apt to reproduce relevant para of the judgement hereunder:-
.. in the situation, this, one feels compelled to say that even while a long career of many Government officers was at stake, the adverse decision on their premature retirement appears to have been taken on mere guess work and hear say, without enough materials to support the same..................
The observations apply to these cases with full effect, because of the total absence of materials to supporting impugned order from records, which might not have been so had the impugned recommendations of compulsory retirement been well documented. .
28. It is also the duty of the court to lift the veil and come to the conclusion whether the order is without evidence, arbitrary and out come of malice, as held by the apex court in case titled Ram Eqbal Sharma vs. State of Bihar, 1990(3) SCC
504.
29. While going through the record and minutes of the committee, it is nowhere mentioned that the service record of the petitioner came to be considered. Why it was not considered is best known to the committee and it can be safely held that impugned order came to be passed arbitrarily and without application of mind. It is worthwhile to mention here that the petitioner has pleaded in para 26 of the writ petition that the impugned order is out come of malice. Respondents have not specifically denied para 26 in their reply. It is apt to reproduce reply to paras 26 and 27 of the reply hereunder:-
The contents of these paras are misdirected and misconceived, in that, the order impugned has been issued in the public interest and on the basis of sufficient material and with due application of mind. The answering respondents are vested with powers to take action against the officers/officials who in the opinion of the Committee and on the basis of sufficient material requires to be prematurely retired and under rules no inquiry is required to be initiated in this behalf.
30. It is also in place to mention here that the petitioner has specifically pleaded in the writ petition that the other officers who were members of the Purchase Committee including the head(s) and who are co-accused in the case registered against the petitioner, came to be reinstated. Even the respondents have not specifically or evasively denied the same. It is also positive case of the petitioner that no action disciplinary/otherwise including compulsory retirement order came to be passed against them, though they are figuring as co-accused in both the criminal cases. For the sake of repetition, the material/allegations which were made basis for passing the impugned order, virtually amounts punishing the petitioner for the said allegations contained in the FIR.
31. Having glance over the above discussion, I am of the considered view that the impugned order came to be passed without any material and is based on no evidence, without application of mind, arbitrary and out come of malice, viewed thus is liable to be quashed. This petition is accordingly allowed and the impugned order is quashed.