Muzaffar Ahmad Khan vs State and Others

Mansoor Ahmad Mir, J.—The Petitioner - Muzaffar Ahmad Khan came to be compulsorily retired in terms of Government order No. 469-

GAD of 2005 dated 26th of April' 2005, which is the subject matter of this writ petition. The Petitioner has challenged the same on the grounds

taken in the memo of writ petition. Respondents have filed the reply and have resisted the petition on the grounds taken therein.

The question which arises for decision is as to whether the aforementioned impugned compulsory retirement order is legally correct? The Apex

Court and this Court in various cases reported as Baldev Raj Chadha Vs. Union of India (UOI) and Others, , Baldev Raj Chadha Vs. Union of

India (UOI) and Others, , H.C. Gagri v. State of Haryana AIR 1987 SC 65, Brij Mohan Singh Chopra Vs. State of Punjab, , Baidyanath

Mahapatra v. State of Orissa AIR 1979 SC 2218, Ram Ekbal Sharma Vs. State of Bihar and another, , Union of India (UOI) and Others Vs.

Dulal Dutt, , T. Ramegowda Vs. R. Krishnamurthy and others, , State of J & K v. Jia Lal Gupta 1994 SLJ 234, Chief General Manager, SBI v.

Suresh Chandra Behera AIR 1995 SCC 1745, K. Kandaswamy Vs. Union of India, , Allahabad Bank Officers Association and another Vs.

Allahabad Bank and others, , M.S. Bindra Vs. Union of India and Others, , M.S. Bindra Vs. Union of India and Others, , State of Gujarat v.

Suryakant Chunilal Shah 1999(1) SCC 529, State of Gujarat Vs. Umedbhai M. Patel, , State of U.P v. Chater Sen 2005 (9) SCC 592, Pritam

Singh Vs. Union of India (UOI) and Others, , Ashok Kumar Jain v. State of J & K and Ors. 2005 (4) JKJ 116-HC LPA Nos. 27J and 28J of

2005 decided on 5-8-2005, Mohammad Mehraj-ud-Din Khan v. State of J & K and Ors. 2006 (3) JKJ 240(HC), Shah Latief v. State of J & K

and Ors. 2006 (1) JKJ 486 HC (DB), Rajesh Gupta Vs. State of Jammu & Kashmir and Others, and other bunch of petitions titled Zareena

Banoo & connected matters v. State and Ors. 2008 (3) JKJ HC-106 date of decision 6-6-2008; Janak Singh v. State of Jammu and Kashmir

reported in 2009 (1) JKJ 588 [HC] and SWP 530/2005 titled Ram Dass v. State and Ors. have discussed in the detail the principles in order to

test whether the order of compulsory retirement is legally tenable or otherwise.

It is the beaten law of the land that compulsory retirement is not a punishment at all and cannot be questioned by way of writ petitions, except as

per guidelines and tests laid down by the judicial pronouncements. Apex Court in case Baikuntha Nath Das and another Vs. Chief District Medical

Officer, Baripada and another, laid down the following principles:

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 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) 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.

Keeping in view the tests laid down, it is to be determined as to whether the impugned order stands or merits to be set aside.

The case was heard and reserved, but the Respondents failed to produce the entire service record of the Petitioner and accordingly vide order

dated 21.10.2009 the record produced by the Respondents were returned to them with a direction to produce the entire record. Despite that,

Respondents have failed to produce the entire record of the Petitioner. It is stated at bar by learned Counsel for the Respondents that the photostat

copies of the record, which are on the file, is the only record which was made basis for passing the impugned order. A photostat copy of the said

record indicates that a Committee was constituted under Article 226(2) and 226(3) of the Jammu & Kashmir Civil Service Regulations to consider

premature retirement cases of the officers/officials who have become dead wood and whose performance and the reputation, as a whole, has

effected the administration and also for the public purpose. However, from perusal of the other photostat copies, it reveals that the conduct and

performance of the Petitioner has remained satisfactory. Annual performance reports (See Annexures 'A' to 'G' to the writ petition), which relate to

the years 1998-1999, 1999-2000, 2000-2001, 2001-2002, 2002-2003, 2003-2004 and 2004-2005, disclose that he has not earned adverse

remarks but his performance was recorded as 'good'.

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 were any adverse remarks recorded in the AP Rs till 2005, then what was the basis for passing the impugned order is not coming forth.

Petitioner has specifically averred that he has performed satisfactorily throughout his service career, was adjudged best and no adverse remark

is recorded in his service book. The officers have recognized his dedication, devotion which fact is substantiated by the documents which are part

of the file. The Respondents have not denied the said fact nor have produced the entire service record.

It is also not known as to whether the APRs and the recommendations made by his superiors were taken into consideration by the Respondents

while passing the impugned order. Thus it is apparent that the impugned order came to be passed without application of mind and is based on no

substance. The Committee so constituted by the Government was under an obligation 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. What emerges from above argument is that it does not lie in the mouth of the Respondent-Government that the case of the Petitioner is

a fit case for premature retirement.

A Division Bench of this Court, while dealing with a case of an identical nature titled State of J & K v. Jia Lal Gupta and Ors. 1994 SLJ 24, has

also laid down the same principle. Thus it emerges that 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 v. State of Orissa 1994 Supp (3) SCC 424, which reads:

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.

It is pertinent to point out that while going through the service record and keeping in view the discussion made hereinabove, there is no material

at all which could have been made basis for the compulsory retirement of the Petitioner. More so, 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 relevant to reproduce

paragraph 3-5 of para-wise reply filed by the Respondents, which may be noticed:

In reply to paras 3, 4 & 5, it is submitted that the contents of these paras are misdirected and misconceived, in that, the impugned order has been

issued on the basis of recommendations made by the Committee of High Level Officers which has formed its recommendations on the basis of

inputs from various agencies including the overall service record and performance of the Petitioner. The contention of the Petitioner that he was

under constant threat from some corners is without any base. The impugned order is based on the satisfaction arrived at by the Committee of

Officers headed by Chief Secretary which found the Petitioner inefficient and not fit to be retained anymore in the service, thus the impugned order

does not suffer from any vice.

Above-all, I am also fortified by a view taken by this Court in a similar case titled Muhammad Mehraj-ud-din Khan v. State and Ors. 2006 (3)

JKJ 240-HC in SWP No. 1965/2003. The judgment was upheld by the Division Bench of this Court in LPA No. 140/2006 vide its judgment

dated 10.08.2009 and a SLP No. 1763/2010 preferred by the State against the judgment of the Division Bench came to be rejected in terms of

order dated 26.02.2010.

From a bare perusal of the paragraph aforementioned, one can gather that the Committee has considered the case of the Petitioner and

recommended his premature retirement on various inputs including his performance. From the record produced by the Respondents it is not known

what were the ""inputs"". Respondents have failed to explain the same and have not produced any record to substantiate this contention.

On going through the record made available to the Court by the Respondents, it is seen that the Committee in the report has stated that the

general reputation of the Petitioner as gathered from a cross section of people is not good. It is not clear from the record what do words 'cross

section of people' mean, who are the persons from whom they have gathered the information, whether verbal or in writing, are wanting? If it is

verbal, who made such a remark and who recorded it. There is nothing on the file to that effect. At least such remark should have been reduced

into writing. Nothing is supportive 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 received it from any of the aforesaid agencies but that is not the case at all. The apex Court in

Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, and M.S. Bindra Vs. Union of India and Others, held

that in order to consider whether the Petitioner is having good reputation, service record has to be considered and not otherwise. This point has

also come up for consideration before this Court in a Bunch of petitions, lead case being Zareena Bano and Connected Matters Vs. State and

Others, . It is important to reproduce the relevant paragraph of the judgment, which reads:

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.

Considering the matter as discussed in preceding paragraphs and in terms of the record made available to the Court, the overall performance

of the Petitioner emerges to be good, then how the performance of the Petitioner was considered to be so bad, which was made basis for passing

of the impugned order is not, coming forth.

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 set aside. I do so accordingly. Writ petition is

allowed. Government Order No. 469-GAD of 2005 dated 26.04.2005 is quashed.

Disposed of along with CM Ps. No order as to costs.