Jammu & Kashmir High Court
Ram Dass vs State Of on 24 September, 2010
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 530 OF 2005 Ram Dass Petitioners State & Ors. Respondent !Mr. Z.A.Shah, Sr. Advocate with Mr. Vipin Gandotra, Advocate. ^Mr. Sanjay Kakkar, G.A Hon'ble Mr. Justice Mansoor Ahmad Mir, J Date: 24.09.2010 :J U D G M E N T :
Petitioner came to be compulsorily retired in terms of Government order No. 467-GAD of 2005 dated 26th of April' 2005, which is the subject matter of this writ petition. The petitioner has questioned the same on the grounds taken in the memo of writ petition. Respondents have resisted the petition on the grounds taken in the memo of counter.
The question involved is whether the impugned compulsory retirement order is legally correct? The Apex Court and this Court in various cases reported as Baldev Raj Chandra V. Union of India, 2 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 1979 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 V. State of Orissa, 1994 Supp (3) SCC 424, State of J&K V. Jia Lal Gupta, 1994 SLJ 234, Chief General Manager, SBI V. Suresh Chandra Behera, AIR 1995 SCC 1745, K.K.Kandaswamy V. 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 SC 3058, State of Gujarat V. Suryakant Chunilal Shah, 1999(1) SCC 529, State of Gujarat 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 V. State of J&K & Ors. LPA Nos. 27J and 28J of 2005 decided on 5-8- 2005, Mohammad Mehraj-ud-Din Khan V. State of J&K & Ors., 2006 (3) JKJ 240(HC), Shah Latief V. State of J&K & Ors., 2006 (1) JKJ 486 HC (DB), Rajesh Gupta Vs. State of J&K & Ors., 2008 (1) JKH 573 [HC] and SWP No. 828 and other bunch of petitions titled 3 Zareena Banoo & connected matters V. State and others, 2008 (3) JKJ HC-106 date of decision 6-6-2008 and Janak Singh vs. State of Jammu and Kashmir reported in 2008 JKJ [HC] (1) 2009 588 have discussed the principles in order to test whether the order of compulsory retirement is legally tenable or otherwise.
It is a 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 discussions:-
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 4 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 uncommunicated 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. Keeping in view the tests laid down, it is to be determined whether the impugned order stands or merits to be quashed.
The case was heard and reserved, but the respondents have not placed on record the entire service record of the petitioner and accordingly vide order dated 13th of May' 2010, Mr. Kakkar came to be directed to produce the record. Despite that, respondents have failed to produce the entire service record of the petitioner. Mr. Kakkar, made a statement on 26th of August 2010 that the photostat copies of the record, which were already on the file, is the only record which was made basis for passing the impugned order and accordingly, his statement came to be recorded.
5A photostat copy of the said record indicates that a Committee was constituted under Article 226 (2) to consider premature retirement cases of the officersofficials. However, other photostat copies disclose that the conduct and performance of the petitioner has remained satisfactory. Annual performance report Annexure C which relate to the years 1990-2000 and 2000-2001 disclose that he has not earned adverse remarks but his performance was recorded as good. Annexure E is the communication made by the Executive Engineer to Superintending Engineer, Hydraulic Circle, Jammu, whereby recommendation came to be made allowing him to continue being a very hard worker and dedicated towards his duties. It is apt to reproduce the last para of the said communication herein:-
OFFICE OF THE EXECUTIVE ENGINEER PUBLIC HEALTH ENGINEERING DIVISION SAMBA. To The Superintending Engg.
(Hydraulic) Circle Jammu.
No./PHES/C-2 Purmandal Dated 19-12- 2003 Sub: D.O Letter No. 95/DCM/03 Dt 08-12- 2003. Honble Dy. Chief Ministre J&K State Jammu and DO Letter No. 25 Dt. 10-12-2003 Honble Minister of State Chairman SC Board J&K State Jammu.
Sir, This office has received copies of DO letter from Honble Dy Chief Minister J&K Jammu and Chairman Minister of State SC Board J&K Jammu. They have Recommended retention of Shri Ram Dass Sharma Head Asstt. Presently working in PHE Division Samba until complete Two years normal tenure in PHE Division Samba. He should not disturb for the time being till ending April 2004.
Further it is recommended if approved the H/Asstt may be allowed to continue till 6 further order as he very hard working and dedicated to words his duties, Besides is children are studying in school and it will not be possible for him to shift at his new place of posting before the close of this financial year. All these documents have not been denied by the respondents but they have said that the photostat copies of the record produced are the only documents which were taken into consideration while passing the impugned order in the year 2005. There is nothing on the file suggesting the fact that there was any adverse remarks recorded in the A.P.Rs till 2005, then what was the basis for passing the impugned order is not forthcoming.
Petitioner has specifically averred that he has performed nicely throughout his career, was adjudged best and no adverse remark is recorded in his service book. The officers have recognized his dedication, in support of which he has placed the documents which are part of the file. The respondents have not denied the said fact nor have produced the entire service record. Whether the A.P.Rs and the recommendations made by his superiors were taken into consideration is not forthcoming from the said record, which is suggestive of the fact that the impugned order came to be passed without application of mind and is based on no material. The Committee constituted has to consider the entire service record before taking any decision. The entire service record means service book, recommendations and other material, which appears not to have been done by the Committee. The petitioner stands promoted in the year 1987, came to be made Incharge Head Assistant in the year 2002, which is 7 specifically mentioned in para no. 4 & 5 of the writ petition. When an employee is promoted, how can thereafter it will lie in the mouth of the respondent- Government that the case of the petitioner is a fit case for premature retirement?
Apex Court in case titled Bayanath Mahapatra Vs. State of Orrisa, AIR 1989 SC 2218 held that if any officer is promoted, previous allegations cannot be made the basis for compulsory retirement. Respondents have failed to indicate as to what were the allegations against the petitioner. If at all, there were some allegations, same cannot be made basis for passing the impugned order for the simple reason that the petitioner admittedly came to be promoted in the year 2002. Apex Court in Baldev Raj Chadha Vs. Union of India & ors., AIR 1981 SC 70, laid down the same law.
The apex Court in cases State of Gujarat Vs. Umedbhai M. Patel, AIR 2001 SC 1109, 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 also laid down the same principle. It is apt to reproduce para 16 of the judgment reported in (1980) 4 SCC 321(supra) 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 8 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. A Division Bench of this Court while dealing with a case of an identical nature titled as State of J&K Vs. Jia Lal Gupta & Ors., 1994 SLJ 24 has also laid down the same principle.
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 would form foundation for the opinion. I am fortified in my view by a judgment of the apex court reported as S.Ramchandra Raju Vs. State of Orissa, 1994 Supp (3) SCC 424, wherein it has been held:
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. 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 9 basis for the compulsory retirement of the petitioner. As discussed hereinabove, no adverse entry was recorded in the service book/record of the petitioner. Thus, it can be safely held that the impugned order came to be passed on no evidence.
It is apt to reproduce para no 27-30 of the counter filed by the respondents herein:- That in reply to the contents of these paras, it is submitted that the Govt is well within its right to take recourse to the provisions of Article 226 (2) of the J&K CSRs in order to clean the administration from deadwood and for this purpose a committee of officers headed by Chief Secretary of the State was constituted which assessed the overall performance of the employees of the State. The Committee has considered the case of the petitioner and recommended his premature retirement on the basis of various inputs including overall performance of the petitioner. The order impugned thus does not suffer from any illegality. It is averred that the Committee has considered the case of the petitioner and recommended his premature retirement on various inputs including performance of the petitioner. It is not known what were the various inputs. Respondents have failed to explain the same and havent produced any record in order to establish that how such inputs were received by them and which were against the petitioner, which was made the basis for passing of the impugned order. The overall performance of the petitioner, as discussed hereinabove, in terms of the record, is good, then how the performance of the petitioner was considered to be so bad, which was made basis for passing the impugned order.10
Having glance of the above discussions, I am of the considered view that the impugned order came to be passed without material, based on no evidence, without application of mind and arbitrarily. Viewed thus, the impugned order merits to be quashed. Accordingly, same is quashed and the writ petition is allowed. (MANSOOR AHMAD MIR) JUDGE.
Jammu:
24-09-2010 Sanjay