Ram Dass vs State and Others

Mansoor Ahmad Mir, J.—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 Chadha Vs. Union of India (UOI) and Others, , Baldev Raj Chadha Vs. Union of India (UOI) and Others, , H.C. Gargi

Vs. State of Haryana, , 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, , S. Ramachandra Raju v. State of Orissa : 1994

Supp (3) SCC 424, State of J and 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, 1 SC 1109, 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 and K and Ors. LPA Nos. 27J and 28J of 2005 decided on 5-8-2005, Mohammad Mehraj-ud-Din Khan v.

State of J and K and Ors. 2006 (3) JKJ 240 , Shah Latief v. State of J and K and Ors. 2006 (1) JKJ 486 HC , Rajesh Gupta v. State of J and K

and Ors. 2008 (1) JKH 573 [HC] and SWP No. 828 and Ors. bunch of petitions titled Zareena Banoo & connected matters v. State and Ors.

2008 (3) JKJ HC 106 date of decision 6-6-2008 and Janak Singh v. State of Jammu and Kashmir reported in 2008 JKJ (1) 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 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 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 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.

A photostat copy of the said record indicates that a Committee was constituted under Article 226(2) to consider premature retirement cases of

the officers officials. 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. Hon'ble 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 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 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 Baidyanath Mahapatra Vs. State of Orissa and Another, 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 (UOI) and Others, , laid down the same law.

The apex Court in cases State of State of Gujarat Vs. Umedbhai M. Patel, , Baldev Raj Chadha Vs. Union of India (UOI) and Others, , H.C.

Gargi Vs. State of Haryana, , M.S. Bindra Vs. Union of India and Others, and State of U.P. v. 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 Baldev Raj Chadha Vs. Union of India (UOI) and Others,

(supra) hereunder:

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.

A Division Bench of this Court while dealing with a case of an identical nature titled as State of J and K v. Jia Lal Gupta and 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 v. 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 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 haven't

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.

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.