Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Baba vs State Of Jk & Ors. on 8 November, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 1367/2017
MP No. 01/2017
Date of Order: 8th November, 2017.
Mushtaq Ahmad Baba
Vs.
State of JK &Ors.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr M. Y. Bhat, Advocate
For the Respondent(s): Mr M. A. Beigh, AAG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. The entire range/ gamut of the controversy raised here in this petition revolves round the plea whether the Government order bearing No. 863-GAD of 2015 dated 30th of June, 2015, 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, Shri Mushtaq Ahmad Baba, Chief Accounts Officer, Directorate of School Education, Kashmir, to the effect that he having already rendered 22 years of service, shall retire from service w.e.f. the forenoon of the 1st day of July, 2015, can withstand the test of judicial scrutiny.
SWP No 1367 of 2017 Page 1 of 2102. The sum and substance of the petition of the petitioner is that during the entire tenure of his service, he worked with great 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 Chief Accounts Officer in the Directorate of School Education. His Annual Performance Reports for the year 2014 have not been written as yet, while as his past Service carrier is unblemished and, all along, he has been rated as "Excellent" and "Very good". The Joint Director, in the Directorate of School Education, namely Abid Rashid Shah, was offered a departmental vehicle, but he refused to use the same on the pretext that since all the departmental vehicles are badly damaged because of the devastating floods that hit the Kashmir Valley in the year 2014, therefore, they are neither workable nor functional. The said officer engaged a private vehicle for his personal use and the petitioner opposed this action of the officer, but subsequently, on the approval of the Director, School Education, he continued to use the private vehicle. Besides this, the Joint Director purchased furniture on his own, without following the due procedure in terms of the financial code/ rules. The petitioner did not accord approval to the release of the payment for this purchase and requested the Joint Director to follow and adhere to the codal formalities. The said Joint Director, a young IAS Officer of 2012 batch, approached the Government under the plea that the petitioner is creating hurdles in his functioning in the office. He was very close to the then Education Minister and it was at his behest that the State Government issued the order impugned in the writ petition, whereby the retirement of the petitioner was ordered under Article 226(2) of the Jammu and Kashmir Civil Services Regulations.
SWP No 1367 of 2017 Page 2 of 2103. The Respondents have resisted and controverted the petition of the petitioner, on the grounds, inter alia, that the Government has to perform a multitude of tasks in order to implement various welfare measures of public interest, and the paramount aim is of providing clean and effective administration to the people of the State. In order to make the administration effective, a periodic review of all Officers is taken up by the Government, the aim and object being to encourage honest and efficient Government servants and, simultaneously, to weed out the inefficient and corrupt officers from the services in the public interest. Whileas, various incentives and awards are given to honest and efficient officers/officials, recourse is taken to the provisions of Article 226 (2) and (3) of the Jammu and Kashmir Civil Services Regulations, 1956, for the removal of such Government officials from the State services, who have become deadwood on account of their indulging in inefficient and corrupt practices. The order of compulsory retirement passed in the case of the petitioner is based on the object of weeding out the deadwood from the State services. Article 226 (2) of the Jammu and Kashmir Civil Services Regulations is designed to infuse the administration with initiative for better administration and for augmenting the general efficiency so as to meet the expanding horizons and cater to the new challenges faced by the State to provide sensitivity, probity, non-irritative public relation and enthusiastic creativity, which can be achieved by eliminating the deadwood. In order to consider the cases of officers/ officials, who indulged in corruption/ had bad reputation in public and created impediments in the delivery of services to the general public in a smooth and effective manner, under and in terms of Government order bearing No. 17-GAD (Vig) 2015 dated 20th of May, 2015, sanction was accorded to the constitution of a Committee to consider the cases of the Officers/ officials for premature retirement, as is clear from the perusal of the said Government order SWP No 1367 of 2017 Page 3 of 21 attached to the Reply as Annexure-R1. Perusal of this order would indicate that the order directed that the Chairman of the Committee may also co-opt a member for assisting the Committee in any particular meeting and manner. The Inspector General of Police, Vigilance Organization, was co-opted as a member of the Committee. The record regarding the involvement of Government employees in corrupt practices was placed before the Committee. The cases of trap, where employees were found demanding and accepting bribe, and the cases relating to disproportionate assets vis-à-vis the known sources of income were placed before the Committee. In addition, the cases in which FIRs were registered and the investigation was either underway or complete were also placed before the Committee. Consequent to the extensive discussion in respect of each case, the Committee decided to have further deliberations in the meeting which was scheduled to be held on 25th of May, 2015, on which date, the Administrative Secretaries of the concerned Departments were co-opted as members with regard to the cases pertaining to their respective Departments. The Committee decided the cases of each Department separately. The Committee observed that the Annual Performance Reports of the officers/ officials are also required to be scanned. The matter was posted for further discussions on 11th of June, 2015. The Committee examined the available APRs of the officers/ officials and observed that the APRs are either not available or are incomplete. The Committee also observed that, while assessing the performance of the officers/ officials, the concerned authorities have not taken cognizance of the registration of FIRs or conduct of investigation. The Committee finally met on 26th of June, 2015, when, amongst others, the case of the petitioner was considered. The Committee, on consideration of the record, observed that the petitioner does not enjoy good reputation in the public due to his consistent conduct over a period of time. The Committee also noticed that SWP No 1367 of 2017 Page 4 of 21 based on a specific complaint and in pursuance of verifications, a case FIR No. 33/2012 P/S VOK was registered against the petitioner. During the verifications, it was found that the petitioner, as per Government Order bearing No. 61-HME of 2008, was a member of the Purchase Committee and worked as Financial Advisor to the Government Dental College, Srinagar at the relevant point of time. The petitioner passed Bill No. VID-2008-09: 132 dated 28th of March, 2009, submitted by M/S Villa India, New Delhi, for an amount of Rs. 46.80 lacs on the back of which adverse entries had been made by the verification Board and Stores Officer about the rejection of a machine. Despite the rejection, the Bill was passed by the petitioner. The petitioner, being the Financial Advisor and a member of the Purchase Committee, did not make any effort to ascertain the reasonability of the rates nor did he conduct any market survey, even while the list of installations of OPGs submitted by the supplier was attached to the tender document, which proved the involvement of the petitioner in the criminal conspiracy. Besides, in FIR No. 28/2010 P/S VOK, the petitioner was found involved in a case related to the misappropriation of Government money to the tune of Rs. 48.44 lacs during the period 1 st of April, 2007 to 16th of July, 2010. The Committee, therefore, recommended for the retirement of the petitioner in public interest under Article 226 (2) of the Jammu and Kashmir Civil Services Regulations. The recommendations so made were accepted by the Competent Authority, as a consequence of which, the impugned order was issued. It has been, accordingly, pleaded by the Respondent-State that the impugned order is legal. It is in accordance with law. The writ petition, as such, is legally misconceived, untenable, without any merit, and, in sequel thereto, merits dismissal.
SWP No 1367 of 2017 Page 5 of 2104. In his rejoinder affidavit, the petitioner has stated that it is correct to say that a Committee was constituted by the State Government to consider the cases of various officers/ officials. However, the State has clearly failed to identify as to in which of the categories does the case of the petitioner fall. Vague allegations which are merely superficial and have no merit in them have been levelled against the petitioner. The petitioner was functioning as the Accounts Officer in the Government Dental College and was a member of the Purchase Committee for Health and Medical Education Department. The relevant notification dated 16th of September, 2008, which is attached to the rejoinder as Annexure-R1, clearly stipulates that the respective Heads of the Departments are the best judges to decide about the requirement of various items, their quality, urgency involved and the reasonableness of rates. The petitioner, being an expert of accounts, could not be burdened with the liability of determining the quality of complicated medical equipments/ items and the manner in which they function, which lies in the exclusive wisdom of the experts in the field. The process of release of the amount was only in pursuance of tender notice No. 2 of 2008 dated 29th of December, 2008, whereby technical bids were obtained and the expert Committee, after observing due procedure, placed the technical bids before the Purchase Committee for consideration. In total 7 tenders were received, out of which only 3 qualified. It was found that the tender bid of M/S Villa India, was the lowest, and, accordingly, the Contract for supply of Dental Machinery and Equipment was given to the said firm vide order bearing No. GDC/Pur/504-07 dated 25th of February, 2009 of the competent authority, i.e. the Principal/ Dean, Government Dental College, Srinagar. A copy of the said order was served on the petitioner with the direction to debit the payment to the concerned amount. However, since one part of the OPG machine so received was broken in transit, and, because of that reason and consequent repairs, the SWP No 1367 of 2017 Page 6 of 21 release of the Bill was delayed. With regard to the second allegation levelled against the petitioner that he is involved in FIR No. 28/2010, it is stated that it was because of his efforts that the scam of misappropriation of Government money was brought to the notice of the concerned authorities. It is evident from the copy of the FIR that it was Mr M. A. Nazki, the Cashier, who received the Hospital Development Fund, and, on the audit of the accounts, it was found that he had illegally retained the money and had not remitted it into the Government Treasury. The departmental recovery proceedings and the response of the said Cashier also state so. The conduct of the State displays arbitrariness and non- application of mind, and, therefore, the impugned order deserves to be set aside. It has also been pleaded by the petitioner in his rejoinder affidavit that even otherwise, the said FIRs are under investigation and under the settled principles of law, these could not have been considered as material for superannuating the petitioner prematurely as per the dictums of law laid down by the Apex Court in a series of judgments. The contention of the Respondents that the Committee considered and compulsorily retired only those officers/ officials who were involved in FIRs or against whom criminal investigation was going on is devised to give a legal color to the illegal orders passed by the State. Had the contention been bonafide and sincere, the State ought to have taken the same action against hundreds of other offices/ officials, who fall under the same category. A list of such officers/ officials is attached to the rejoinder as Annexure R-9. 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, being arbitrary and discriminatory in nature, therefore, the impugned order deserves to be quashed.
05. Heard and considered.
SWP No 1367 of 2017 Page 7 of 2106. At the outset, what requires to be stated is that the Government, in an attempt to cleave to the principles of chopping the deadwood in the shape of 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. 17-GAD (Vig) 2015 dated 20th of May, 2015. The Committee, in addition to the Chief Secretary, comprised of Inspector General of Police, Vigilance Organization and Administrative Secretary of the concerned Department. The Committee held its deliberations on various occasions and finally on 26th of June, 2015, recommended for compulsory retirement of several Government officers/ officials, including the petitioner. The official Respondents, in their Reply, have pleaded that the officers/ officials, whose conduct had come under a cloud, while accord of consideration to their cases by the Committee, the provisions of Article 226 (2) of the Jammu and Kashmir Civil Services Regulations and OM No. GAD (Vig) 19-Adm/2010 dated 25th of October, 2010, were invoked. The case of the Respondents further is that the Committee, while considering the case of the petitioner, came to the conclusion that the petitioner did not enjoy a good reputation and, in addition, his involvement had surfaced in two cases registered against him by the Vigilance Organization for misappropriation of Government money. It is the specific case of the Respondent-State that the Annual Performance Reports of the petitioner were not considered by the Committee in the matter of passing the order impugned. While recording the order of his premature retirement, the baseline of the order impugned is the alleged involvement of the petitioner in the two FIRs detailed hereinbefore, buttressed with his general reputation which, it is stated, was unbecoming of a Government servant.
SWP No 1367 of 2017 Page 8 of 2107. 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. In case titled "Baikuntha Nath Das v. Chief District Medical Officer", reported in "(1992) 2 SCC 299", the Apex Court evolved five fundamental principles that can form the basis for passing an order of compulsorily retirement to weed out the deadwood in order to maintain a high standard of efficiency and initiative in service. These principles, in addition, provide for the cases where judicial scrutiny is permissible and they are as under:
(I) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.
(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) malafide or (b) that it is based on no evidence or (c) 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 SWP No 1367 of 2017 Page 9 of 21 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."
08. Again, in the case of "State of Gujrat v. Umedbhai M. Patel, (2001) 3 SCC 314", the Supreme Court, in Paragraph No.11, unfolded the principles of law relating to compulsory retirement, which assume significance in this petition and the said paragraph reads as under:
"11. The law relating to compulsory retirement has now crystalized 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 in the officer.
viii. Compulsory retirement shall not be imposed as a punitive measure."SWP No 1367 of 2017 Page 10 of 21
09. 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) malafide; 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 or (d) the promotion of an Officer which fact is in favour of the officer concerned. 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 colorable 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 is was an arbitrary decision.
10. 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 corrupt and inefficient public servants and, at the same time, to ensure that it is not used 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 CSR 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 SWP No 1367 of 2017 Page 11 of 21 pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement."
11. To delve on the matter on the strength of what has been stated above, the relevant extracts of the record produced before this Court by the State, which have a bearing on the case of the petitioner, are reproduced below:
"11. The Committee finally met on 26.06.2015 and made its recommendations. The record notes of the meetings of the Committee and its recommendations are placed on C.F. (Flagged A, B & C). Based on the detailed deliberations held in the aforementioned meetings, the names of the following Government servants, who were involved in trap cases i.e., demanding and accepting bribes and were caught red handed and those against whom the investigating agencies have registered cases relating to corruption and the possession of disproportionate assets were also considered because of the fact that they are involved in serious corrupt practices leading to accumulation of wealth beyond their known source of income. In addition, the cases, in which more than two FIRs/verifications/Joint Surprise Checks/enquiries/ complaints were registered/ pending and the investigation is either underway or has been completed, came under consideration of the Committee. The Committee, threadbare discussions held in its series of meetings after going through the relevant service records, available Annual Performance Reports of the officers/ officials, finally recommended following employees for retirement under Article 226(2):
.......... .......... ..........
6. Finance 31. Mushtaq Ahmad Baba CAO, Dte.
Education
Kashmir
.......... .......... ..........
12. The recommendation of the Committee duly signed in respect of the Government servants mentioned above are placed on the cf side.SWP No 1367 of 2017 Page 12 of 21
13. We may, if approved, place the case before the HCM for consideration and approval, as recommended by the Committee."
The Committee, accordingly, recommended the premature retirement of the petitioner among others in terms of Article 226(2) of the Jammu and Kashmir Civil Services Regulations which was approached by the Government.
12. Taking an overall view of the matter, the bottomline of the order of compulsory retirement of the petitioner is his conduct and the registration of two FIRs against him, in which, it is stated, that the investigation has commenced or concluded, but the chargesheets have not been laid before the Court. Whether the compulsory retirement of the petitioner could have been directed under the facts and circumstances of the case is the moot question that requires to be determined herein this petition? The answer to this question is provided at Para No. 27 of the law laid down by the Apex Court of the country in the case of "State of Gujarat v. Suryakant Chunilal Shah", reported in "1998 (9) Supreme 150"and "(1999) 1 SCC 529", which, for the convenience of ready reference, is reproduced hereinbelow, verbatim et literatim:
"27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a government servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon SWP No 1367 of 2017 Page 13 of 21 the circumstances of each case and the nature of offence allegedly committed by the employee."
13. Applying the ratio of law laid down above to the facts of the instant case, resort to the practice which has been followed by the State in directing the compulsory retirement of the petitioner will have serious ramifications in some cases. It will lead to consequences which can be disastrous for the smooth functioning of the official machinery. To illustrate this, it needs must be said that most of the employees have to deal with the cases of the public at large and the employees cannot practically keep every Tom, Dick and Harry in good humor. That being so, if this 'Sword of Damocles' is kept hanging high on the heads of the employees, any Tom, Dick and Harry, can lodge a complaint against the public servant before the Vigilance Organization which, ultimately, will pave way to show him the exit. Not only this, such a practice cuts at the very root of the basic tenets and the elements of the age old adage and axiom of law that a person accused of an offence is presumed to be innocent unless and until his guilt has been proved. The State has applied this principle in the reverse, perhaps, labouring under the belief that the maxim of law is that every person is presumed to be guilty unless and until he proves his innocence, and to accept this principle in the reverse order will be carrying a load of crap and rubbish. It is only on the culmination of the trial that if the charges are proved against the accused and, as a consequence thereto, he is convicted and sentenced, that such an opinion can be framed. The whole exercise has been conducted on the basis of the involvement of the petitioner in two criminal cases about which an explanation appears to have been given by him in his rejoinder affidavit, which, however, may not be relevant to determine at the moment. If the contention, as propounded by the State, that the involvement of SWP No 1367 of 2017 Page 14 of 21 the petitioner came into limelight in two cases and, therefore, he was shown the door is accepted, the meaning that will flow from it is that a presumption will be drawn against each public servant facing the changes of corruption that in the ultimate analysis, he will be convicted in the offence(s) levelled against him, as a corollary to which, he will lose his service. Such hypothesis or supposition cannot be countenanced in law and had it been so, it would have formed the basic structure of the rule itself, that such acts of omission and commission will lead to the presumption that the employee has a doubtful integrity or conduct unbecoming of a public servant and, to crown it all, the Government of Jammu and Kashmir, General Administration Department, vide their communication bearing No. GAD (Vig)25-NOC/2012-Finance dated 17th of September, 2012, on the subject 'Vigilance Clearance', has stated that nothing adverse is available on the records of the State Vigilance Organization against the Officers of the Finance Department detailed therein, that included the petitioner also. This communication has been issued on 17th of September, 2012 by the General Administration Department and, going by this communication, what can be said is that the FIRs filed against the petitioner have come under a cloud.
14. Looking at the instant petition from another perspective, the decision to compulsorily retire a government servant can be taken up on the consideration of the relevant material and the principles laid down from time to time in several judicial pronouncements. In this regard, it would be profitable to refer to the observations of the Supreme Court made in Paragraph Nos. 8 and 18 of the case titled "Swaran Singh Chand v. Punjab State Electricity Board & Ors.,(2009) 13 SCC 758', which are 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 SWP No 1367 of 2017 Page 15 of 21 consequence, it is imperative on its part to scrupulously follow the same. Frankfurther, J. in Vitarelli v. Seaton [59 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 requirements that bind such agency, that procedure must be scrupolusly 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 requuirements 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 (1979) 1 SCC 477, S. R. Venkataraman v. Union of India (1979) 2 SCC 491 and P. MohananPilai v. State of Kerela (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."
15. The view, as propounded above, was repeated and reiterated by the Supreme Court in a later judgment titled "Madhya Pradesh State Cooperative Dairy Federation Ltd. & Anr. v. Rajnesh Kumar Jaminder, (2009) 15 SCC 221, Paragraph No. 43 of which is relevant to the context and it reads as under:
"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........"
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 SWP No 1367 of 2017 Page 16 of 21 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., (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 'nemo firut repente turpissimus' (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. The contention of the Respondents in this petition is that there was no material in the shape of 'Character Roll Entries' available before them and, if these were not available, the State could not have concluded that the conduct of the petitioner was unbecoming of a public servant, or that he was a man of doubtful integrity, or that he was a fit person to be retired compulsorily from service. The order of the compulsory retirement of the petitioner, in these circumstances, is punitive having been passed for the collateral purpose of his immediate removal rather than in public interest. However, the petitioner has knocked the bottom out of this contention of the Respondent-State that the 'Character Roll Entries' were not available at a time when consideration was SWP No 1367 of 2017 Page 17 of 21 accorded to the case of his compulsory retirement. This strengthens the view that the order has been passed for a collateral purpose of his immediate removal.
18. The facts are eloquent. In the supplementary affidavit filed by the petitioner, he has placed on record the details of his 'Annual Performance Reports' wherein and whereunder his achievements, from time to time, have been judged/ evaluated by his superiors and he has been rated as under:
"1. For the period ending March, 2014 to June, 2014, the petitioner has been rated as excellent by the reporting authority and his general assessment on the parameters of knowledge of work, power of acquiring general information, attention to details, consciousness, judgment, speed of disposal, initiative, control over subordinate, relation with public and integrity has been stated to be excellent.
2. The letter bearing No. DDC/GBL/2013 dated 17th of January, 2013, of the District Development Commissioner, Ganderbal, forming Annexure-R7 to the Rejoinder affidavit filed by the petitioner, states that it was not possible for him but for the support of the petitioner that he could successfully accomplish all the assigned works.
3. In the APR for the period June, 2013 to February, 2014, the petitioner has been rated as a very hard working, dedicated person and an officer well versed with his job.
4. For the period March, 2012 to May, 2013, the petitioner has been rated as an officer who is very intelligent and one of the best officers of the Funds Organization.
5. For the period November, 2010 to April, 2011, the petitioner has been rated as a composed and dedicated officer.
6. For the period April, 2009 to October, 2010, the petitioner has been rated as excellent.
7. For the period May, 2008 to March, 2009, it has been remarked that the petitioner is outstanding, obedient, honest and a very hard working officer.
8. For the period August, 2006 to March, 2007, it has been stated that the petitioner is a prudent auditor and upkeeper of the accounts with responsibility.SWP No 1367 of 2017 Page 18 of 21
9. For the period April, 2007 to April, 2008, and August, 2004 to March, 2005, the petitioner has been rated on the same scales.
10. For the period April, 2005 to July, 2006, it has been stated that if the petitioner is promoted to the next higher post, it will be a gainful decision for the State and the Jammu and Kashmir Finance Department.
11. For the period October, 2003 to August, 2004, it has been stated that the petitioner is a very hard working, competent and efficient officer."
19. The aforementioned 'Annual Performance Reports' have been shelved. These have escaped the scrutiny of the Committee. It appears to have been done with the ultimate aim of showing the petitioner the exit and, had these 'Annual Performance Reports', been considered, the shit would have hit the fan. Not only this, by the government order No. 210-F of 2013, dated 27th of September, 2013, on the subject "Promotion of Officers as Senior Scale Accounts Officers- Regularization thereof", the petitioner has, on the recommendations of the Departmental Promotion Committee, been regularized in the Pay Band-3. How could this order, which was almost proximate in time to that of the order of his compulsory retirement, come into being in case the conduct of the petitioner was not above board?
20. 'Francis Bacon' (1561 to 1626) said and I quote, "Laws are like cobwebs; wherein the small flies are caught and the bumble bees break through". To this is added the quote of 'Mr Henry Ward Beecher', which is "Law is a battery, which targets all that is behind it, but sweeps with destruction that is outside it". The quote of 'William Shenstone' (1714-63) also fits to a "T" in this petition and it is that "Laws are generally found to be nets of such a texture, as the little creep through, the great break through, and the middle-sized are alone entangled in". These quotes apply in all the fours to the instant case. Annexure-R9 attached to the Rejoinder affidavit of the petitioner, is an Unstarred CQ No. 185 of Shri Ashok SWP No 1367 of 2017 Page 19 of 21 Khajuria on the subject "Prosecution". The questions and the replies have been framed therein. The question No. (a) relates to the number and names of Government and PSU Officers/ Officials against whom the State Vigilance Organization (SVO) and Crime Branch have sought sanction for their prosecution from GAD. The question No. (b) pertains to the Officers/ Officials against whom sanction has been accorded for their prosecution and the question No. (c) specifies the Officers/ Officials against whom sanction is pending and the reason for delayed prosecution is the accord of sanction. Annexure "A1", appended to the said Unstarred CQ contains the list of 126 employees and, Annexure "A2", is the list of 13 employees. Similarly, Annexure "B", contains the list of 142 employees and, Annexure "B1", contains the list of 8 employees. Annexure "C", bears the names of 20 employees and, Annexure "C1", is the list of 5 employees. Had the intention of the Respondent-State been to weed out all the deadwood on the parameters that the Committee evolved, all the employees, figuring in the aforesaid annexures, would have been shown the door after taking resort to the provisions of Article 226(2) of the Jammu and Kashmir Civil Services Regulations. However, only a skeletal of the employees (small flies) including the petitioner were shown the exit and the bumble bees were allowed to break through. The cases of only some of the employees have been treated as the rare and unique ones. They have been discriminated invidiously and the rules of the game have not been applied equally.
21. Viewed in the context of what has been said and done above, the impugned order bearing No. 863-GAD of 2015 dated 30th of June, 2015, 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 SWP No 1367 of 2017 Page 20 of 21 continuance in service would be prejudicial to the public interest. Merely that a case or cases have been registered against the petitioner by the Vigilance Organization cannot form the basis of retiring him prematurely and, as a sequel thereof, the impugned order bearing No. 863-GAD of 2015 dated 30th of June, 2015, is quashed. The Respondents are directed to reinstate the petitioner and to 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.
22. Writ petition alongwith connected MP disposed of as above. The record relating to the case, as produced by the learned AAG, be returned back to him.
(M. K. Hanjura) Judge SRINAGAR November 8th, 2017 "TAHIR"
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