State of J & K vs Jia Lal Gupta & Ors.

This appeal under Clause 12 of the Letters patent is directed against the order and judgment dated July 3, 1990 of a learned Single Judge

whereby he allowed writ petition No. 419 of 1987 titled Jia Lal Gupta Vs. State of

A brief reference of the Skeletal facts is a prefatory necessity.

Jia Lal Gupta, the respondent herein was appointed as an Assistant Engineer in the Electrical Department of the State Government of on June

25,1956. A Seniority list was issued by the State Government in the year 1972 in which the ranking of Jia Lal Gupta was not correctly shown. He

filed a writ petition. It was allowed and seniority list was quashed and the Government was directed to prepare a fresh seniority list in accordance

with law. In pursuance to the Govt. directions a new seniority list was prepared depicting the seniority of the respondents herein correctly. In 1983,

the respondent No. 1, herein came to know that efforts were on to change the seniority list to his determent in order to defeat his claim to

promotion to the post of Chief Engineer. It may be mentioned that at that time petitioner, (respondent No. 1; herein) had been working as a

Superintending Engineering for about 8/9 years. In order to thwart these efforts, the petitioner filed another writ petition on May 19,1983. On a

prayer made by the petitioner this court issued directions to the Govt; that in case the promotion to the post of Chief Engineer (ELECTRICAL

WING) was to be made, then the same be made on the basis of the final seniority list of year 1979 sanctioned by the Government or the post be

left unfilled till further orders.

In complete disregard of directions of the Court, the State Government vide order No. 113 FDD of 1985 dated 18th April, 1985 promoted

three juniors of the petitioner as Chief Engineers, ignoring his claim. The petitioner made a number of representations against the illegal orders of

the Government. He met the then Deputy Chief Minister of the state who promised that injustice done to him shall be redressed and the petitioner

(respondent No. 1) shall be given his due. It is pertinent to mention at this stage that before these orders promoting the petitioner's juniors were

passed, the Govt. had tried to ease him out by issuing Government order No. 228PWD of 1984 dated 20th of October, 1984 deputing him to the

National Hydro Electric Power Corporation, New Delhi for being posted as Chief Engineer. This was just a link in the chain for ousting the

petitioner and to accommodate the favorites of the power that be. This order somehow did not mature but the three juniors of the petitioner were

promoted as Chief Engineers as mentioned earlier. The petitioner was asked to receive an order dated llth of April, 1986 of the

Governmentcompulsorily retiring him from services under Article 226(2) of the Jammu and Kashmir Civil Service Regulations hereinafter referred

to as 'Regulations.'

It is contended that there was nothing to justify the passing of this order. During his long tenure of service nobody had doubted the petitioner's

integrity, technical competence, administrative ability or devotion to duty. He had never been conveyed any adverse remarks during his entire

service career. There had never been any complaint of corruption or inefficiency during whole of his career. For his extreme devotion to duty and

gallantry displayed in execution of official work, the petitioner (respondent No. 1; herein) was awarded Ashok Chakra by the President of India.

Aggrieved by the impugned order, the respondent No. 1 herein filed writ petition challenging the orders of the super session and premature

retirement.

Notices were issued to the state and other respondents. They put in an appearance but did not choose to file any objections despite grant of

number of opportunities. Thereafter, the writ petition was admitted in the presence of the learned counsel of the respondents. They were granted

three opportunities to file counters. Ultimately, learned Single Judge vide order dated January 29,1988 granted the respondents a last opportunity

to file the counters within three weeks. No counter, however, was filed within the prescribed time and even thereafter. The case was listed for

hearing a number of times, but the arguments were not concluded somehow or the other. On October 5, 1989 an application was filed by the

Additional Advocate General seeking permission to place on record counter affidavit of respondent No. 1 in the writ petition. The application was

opposed by the writ petitioner. The learned Single Judge held that the respondents were negligent throughout the proceedings. They neither filed

objections despite grant of many opportunities nor cared to submit their counters after the admission of the case. They were again given a number

of opportunities a last opportunity was granted to them to file the counter of three weeks, even then they did not come forward with their counter,

the application itself has been filed after about 11/2 years of the order closing the right to file counter. The application was therefore declined, and

the case was heard by the learned Single Judge without there being any counter on the file. The assertions made by the writ petitioner in the writ

petition went unchallenged and unrequited. In the absence of any specific denial, the averments of fact in the writ petition have to be accepted as

true and proved unless there is any intrinsic evidence in the pleadings themselves, which may warrant the taking of a different view, but there is no

such thing in the pleadings.

The learned Single Judge held that the Government, while invoking Article 226(2) ibid has to form an opinion, that premature retirement of the

Government servant is in public interest and such an opinion can be formed only by perusing the service record of the employee. Even though,

courts cannot substitute their opinion for that of the executive but they are within their rights to examine the material on the basis of which the order

for premature retirment is passed in order to find out whether a rational mind may conceivably be satisfied that compulsory retirement of the

concerned official was necessary in the public interest. For these conclusions he drew sustenance from a decisions of this court of State Vs.

Rajinder Singh Rana LPA 29/87 decided on 181988 and Baldev Raj Chada Vs. Union of India and others (AIR 1981 S.C. 70) andH.C. Gargi

Vs. State of Haryana (AIR 1987 S.C. 65).

The learned Single Judge also held that the impugned order retiring the writ petitioner prematurely from service did not contain any reasons in

support of the conclusions. It was not a speaking order. No counter was filed to explain the reasons which led to the issuance of order. The writ

petitioner in his writ petition had shown many circumstances pointing out the meritorious service rendered by him to the Department and in the light

thereof it could not be rationally held that it was in public interest to retire him prematurely. The writ petitioner had challenged actions of the state

whereby an endeavor was made to ease him out by getting him appointed Chief Engineer with the National Hydro Electric Corporation New

Delhi. If he was fit to be appointed as Chief Engineering of National Organization, there was no reason why he cook not be suitable for

appointment as a Chief Engineer in the State. He further held that the committee appointed by the Government to recommend the cases of offices

for promotion, did not give any reason for declaring the writ petitioners to be fit for promotion, neither it has been explained why the writ petitioner

has ceased to be suitable for appointment as Chief Engineer within a few months of the proposal in this behalf made in October 1984. The learned

Single Judge held that the order of compulsory retirement of the petitioner was arbitrary and was not based on any objective satisfactions, and set

aside the same. He also directed that the writ petitioner be promoted as Chief Engineer w.e.f. April, 1985 when his juniors were promoted.

Aggrieved, the state of Jammu and Kashmir came up in appeal.

Another set of facts reserves mention at this stage. The State had filed Letters Patent Appeal No. 1/1990 against the orders dated November

9, 1989 dismissing the application of the respondents seeking permission to place the counter affidavit on the file. A Division Bench of this Court

had dismissed the Letters Patent appeal on the ground that the same had become in fructuous because during the pendency of the main appeal, the

main writ petition had been decided by a learned Single Judge. The bench however, gave liberty to the appellant to challenge the orders of the

learned Single Judge in an appeal, if any to be filed against the judgment in the main writ petition.

Aggrieved, the state has come up in appeal. Before us, the learned Advocate General has raised three contentions:

(1) Order closing the right to file the counter and the order dismissing the application seeking permission to file the counter after the prescribed

1994 S.LJ. date are illegal and unjust;

(2) The material (records) placed before the learned Single Judge were sufficient to show that the committee had framed its opinion on relevant

material in public interest; and

(3) The writ petitioner had never prayed that orders of premature retirement dated 11th of April, 1986 be quashed, and the learned Single Judge

had gone beyond the pleadings in granting the relief by quashing these orders.

11, The motion bench had issued notice of motion before admitting the writ petition, a number of opportunities have been grantee to the

respondents to file their objections but to no avail. Ultimately the writ petition was admitted. Even thereafter, the respondents were given four

opportunities to file their counters. They, however did not avail of the same. Ultimately, on 29th of January, 1988 a learned Single Judge of this

court gave the respondents a last opportunity to file the counters within three wetheir conduct and did not file the counters within the time prescribed or thereafter. The case was listed for final hearing a number of times, but the

arguments could not be concluded for one reason or the other. It was part heard on 20.9.1989 when it was adjourned for further arguments. But,

on October 5,1989 the Additional Advocate General filed ari application seeking to place in the file a counter affidavit of respondents No. 1. This

application was declined on the ground that the respondents had been negligent throughout the proceedings. They did not file the objections before

the admission of the case despite many opportunities granted for it. Even after admission of the writ petition so many opportunities were granted to

them to file the reply affidavit, but they failed to do so despite having been given a last opportunity.

The application is question had been filed after 1V2 years of the passing of the orders granting final opportunity to the file the counter. The only

explanation given is that records had to be collected from various departments. The explanation is too tenuous to merit acceptance. It does lend no

credit tothe draftsman of the application when he contends that the department of the state are so inefficient that they cannot coordinate and collect

the material relating to various departments expeditiously, and it takes them 1V2 years to do so. The conclusions of the learned Single Judge that

the proceedings are unconscionable are justified despite grant of four opportunities after the admission of the writ petition, the respondents did not

care to file the counters. This conduct betrays a cynical disregard to the duties by even Senior Officers in the Government. The matter relates to the

promotion to the office of Chief Engineer and the retention in service of a Superintending Engineer. It merited a serious consideration at the hands

of the concerned authorities. It did not deserve a casual, cavalier treatment. It is a case of a self inflicted injury and for it, nobody else except the

appellant is to be blamed. The facts and circumstances of the case do not warrant any interference with the order of the learned Single Judge. We

do not find any merit in the submissions of the learned counsel for the appellants that the appellants were not granted full and adequate opportunity

to file the counters and that their application to the file counters at the belated stage has been wrongly rejected. We repel this submission.

In order to appreciate the second submission it will be appropriate to reproduce the impugned order. Annexure P/E.

Government of Jammu and Kahsmir Power Development Department

Subject: Promotion of Superintending Engineer (Elect) to the

posts of Chief Engineers. (Elect)

Ref.: Cabinet Decision No. 172 dt. 17.4.1985.

Government order No. 113PDD of 1985

Dated: 1841985.

Sanction is accorded to the :

(1) Regularisation of adhoc Promotion of Shri Maqbool Ahmed Khan and S. S waran Singh as Chief Engineers w.e.f. 1.6.1981 and regularisation

of adhoc promotion of S hri. K.L. Koul as S.E.w.e. 13.9.1974.

(2) Temporary/promotion of Shri Mohd. Aslam Khan, A.K. Nagpal, K.L. Koul andM.K. Wazir Superintending Engineers as Chief Engineer

within immediate effect.

(3) continued deputation of Shri A.K. Nagpal to National Hydroelectric Power Corporation.

(4) transfers and postings of various officers as per annexure to this order.

N.B. The inter seniority of various officers mentionedat paras 1,2, and 3 above will be subject to decisions in the cases arising out of writ petitions

filed by S/Shri M.K. Wazir and A.K. Nagpal is the Hon'ble Supreme Court and S/Shri Jia Lal Gupta and P.R. Kohli in the Hon'ble High Court of

J&K.

By order of the Government of Jammu and Kashmir.

Sd/ G.D. Nadwa

Secretary to Government

Power Development Deptt.

It is apparent from a perusal of the record that no reasons have been given therein for promoting Maqbool Ahmad Khan, A.K. Nagpal, K.L.

Kaul andM.K. Wazir as Chief Engineers in preference to the writ petitioner. It is not denied by the appellants that the respondent was senior to

these gentleman as a Superintending Engineer. There is no mention in the order that the report if any, of the Serening Committee is the basis of the

orders. The appellants have not produced any records before us relating to this aspect of the matter. We had informed the Advocate General on

5th of November 1,2, when the case was taken up for arguments that we will like to see the records of the case. The same was not produced on

that day. It was also not produced on 6th of November, 1992, even though Shri R.C. Gupta Deputy Secretary in the General Department had

remained present in the Court on both these days during the course of the arguments. Thereafter the ACRS of the petitioners from 1964 to 1973

only were produced. In these there is nothing adverse to the petitioner. The orders are silent as to the reasons for the conclusions even then, the

respondents should reveal the reasons for the super session by producing the relevant records wherein justification for the super session may be

available. That record has to be contemporaneous to the orders and not prepared later on in justification thereof. A full bench of this court in Lal

Chand Pargal Vs. Director CD and MES and others (AIR 1971 J&K 108) was observed.

Under Rule 25(2) Classification, Control and Appeal Rules, 1936 appointing authority must give reasons for making promotion when senior

employee is superseded if the authority does not give reasons contemporaneous on anterior SIC record on basis of which it applies its mind

promotion must contain grounds of promotion.

So, we are confronted with a situation in which the order of promotion does not spell out the reasons for superseding senior Officer. No

counter has been filed to indicate and explain the reasons which led to super session. The records of the case have not been produced to justify the

passing of such an order. The appellants have indeed appended to the memorandum of appeal Annexure P/1, a copy of an order constituting a

Screening Committee. P/2 the recommendations of the Committee, recommending among others, the premature retirement of the writ petitioner

along with others. P/6 (i) an officer order devising procedure for promotion to selection post. P/6 (ii) order modifying the previous order and laying

down the criteria for selection to selection grade posts. P/6 (iii) orders reconstituting the Committee and P/7 minutes of the Selection Committee

constituted by Government order dated 19.7.1964 which has recommended the super session of the writ petitioner and promotion of his juniors.

However, the learned Advocate General has not made any submissions that these documents be taken on the file of the case and read in evidence.

These are documents only lying on the file. There is nothing to indicate that they were the relevant out of those which were placed before the

appointing authority of the learned Single Judge. There is, indeed, a reference in the impugned judgement of the report of the screening Committee

regarding which the learned Single Judge has recorded a conclusion that it is a shorn of reasons but this is not part of the file and there is nothing to

show that this was considered by the Government while making promotions. There is no mention in the promotion order that the action is taken on

the recommendations of the Screening committee.

The writ petitioner has made clear submissions and assertions that his service record was good, he was a conscientious and efficient officer.

There were never any complaints of in efficiency and corruption against him. He had never been conveyed any adverse reports his work had

always been appreciated by his superiors, and in recognition of his meritorious service, he had been awarded Ashok Chakra by the President. All

these assertions have remained unanswered and gone unchallenged they have to be accepted to be true from the order of promotion, even this is

not clear that there was any comparison of the relative merit of the writ petitioner and the private respondents before passing the order of

promotion by the competent Authority. The service Rules do not envisage any screening committee of the sort which is alleged to have been

framed. Even if it was so the committee will be only a recommendatory body. After the receipt of its report, the Government had to apply its

independent mind to the case and then decide the matter. Therefore, we endorse the finding of the learned Single Judge that the order of promotion

was not sustainable in law.

Article 226(2) reads as under:

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 Annexure A&B hereto as the case may be) to the Government servant at least

three months before the date on which he is required to retire of three months of pay and allowances in lieu of such notice. Such a Government

Servant shall be guaranteed pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such

retirement.

To involve the aforementioned Article, two requirements have to be satisfied:

(a) The Officer had completed 22 years qualifying service or attained the age of 48 years; and

(b) That it is in public interest to dispense with his further services.

In Baikunth Nath Dass and anr. Vs. District Medical Officer and others 1992 (1) Supreme View and Law Reporter 63, the final Court after

considering its previous judgements has called out the principle srelating to compulsory retirement of Government servants, which are as under:

(i) An order of compulsory retirmement is not a punishment. It implies neither a stigma nor any suggestion of misbehaviour.

(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 compulsory.

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 the 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 (e) 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 court attaching more importance to reccord and performance during the late years.

Records to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Govt.

servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based on

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, the communicated

adverse remarks were taken into consideration. The circumstances by itself cannot be basis for interference.

Interference is permissible only on the grounds mentioned in (iii) above. The aspect has been discussed in paras 29 to 31....."" Principle 4

(Supra) enjoined upon the Government to consider the entire record of service for taking a decision in the matter, of course, attaching more

importance to the record and performance during latter years. The record to be considered would naturally include entires in the confidential

records, character rolls, both favourable and adverse.

In the impugned order, there is no mention as to whether the service record of the petitioner had been perused before passing the orders.

There is no reply of the state to fill in this lacuna. The only records produced in the court is the ACRs of the writ petitioner pertaining to the years

1964 to 1973. Which do not warrant the conclusion that the writ petitioner is unifit for retention in service. There is no adverse entry. The later

entries are rather good. In fact learned Advocate General has very fairly conceded that the record of the appellant is good. Even otherwise, since

the respondents have failed to produce the recent record of the writ petitioner, more particularly that pertaining to his service as a Superintending

Engineer, a presumption has to be drawn that the record, if produced would have gone against the respondents. The service record of the

appellant being good, there should have been some other relevant material to hold that the continuance of the writ petitioner was not in public

interest. The Advocate General has argued that the Government had taken three pieces of evidence into consideration for forming its opinion that it

was not in the public interest to retain the writ petitioner any further in service. There was a report of the vigilance Department indicating that the

writ petitioner had i acquired properties disproportionate to his known legal resources. A copy thereof Annexure P8 to the memorandum of appeal

purports to be copy of the report (2) the report of the screening committee and the orders of the Government superseding the writ petitioner and

promoting his juniors; and (3) the property statements submitted by the appellant.

It may be stated at the very threshold that there is nothing in the record to support the I submissions of the learned Advocate General that the

Government had taken into con side ration the aforementioned three documents for forming it's opinion. Neither the order indicates so nor there is

any other contemporaneous document which may lend support to this assertion. This plea is raised for the first time during the course of hearing.

There is intrinsic evidence in Annexure P/B that this document was not before the Government when it made up its mind to compulsorily retire the

writ petitioner. In the penultimate para of the report, it is stated:

This information has been marshaled from some records available in the Jammu wing of this organisation. However the S.P. Vigilance VCI [SIC]

may be requested to provide necessary records to the Hon'ble High Court for further necessary action.

This is signed by the Senior Prosecuting Officer of the vigilance Department. It bears no date. It has not been signed by any Investigating

Officer. It is not addressed to any senior Officer of the department. A perusal thereof only for the guidance of the State counsel after the writ

petition had been filed by the petitioner and a notice thereof had been received by the department. This fact is further borne by averments in para

'6' of the grounds of appeal and sub para '2' thereof page 13, wherein it has been mentioned.

It is also necessary to mention here that no action was initiated on the basis of the said report of the Vigilance department as the respondent No. 1

had retired prematurely in the meanwhile and keeping in view the fact of his retirement, further action was not initiated."" It is main fest from the

above averments that before this report was prepared. The writ petitioner had already retired. So, this alleged report was not in existence when the

orders of retirement were passed. So, it could not have been taken into account. Otherwise also, it is not are port which is in the personal file of

the officer. It has not been recorded by any senior officer for the purpose of evaluation of the writ petitioner. The report like EXP/8 cannot be

taken into account while assessing the public interest within the contemplation of Art. 226.

As mentioned earlier, there is nothing to indicate that the property statements submitted by the writ petitioner in due course and the alleged report

of the Screening Committee formed the basis of the opinion. This argument seems to be an after thought. It cannot be accepted.

The result is, that the order of premature retirement does not mention any material which induced the Government to form an opinion that it was

not in public interest to retain the writ petitioner in service. The contemporaneous record has not been produced to demonstrate that relevant

material was considered and, on that basis the opinion was formed. No affidavit has been filed to explain the position.

It was then contended that the very fact that the writ petitioner was superseded and was not promoted and his juniors were promoted,

establishes that he was inefficient this is too fallacious an argument of despair and does not merit serious consideration, in any case. We have not

accepted that the writ petitioner had been properly and legally superseded. Even otherwise, unless the order of promoting other officers disclosed

no reasons for the super session of the writ petitioner, it cannot be deduced that he was inefficient. The appointing authority may illegally and

arbitrarily promote some favorite without even considering the case of a senior. It will not efface show that the person superseded was inefficient.

Neither there is any material to hold that the writ petitioner was superseded because he was inefficient nor has the learned counsel been able to

refer to any binding precedent that mere super session by a Junior officer will render a person superseded, as inefficient. Furthermore an officer

may not be fit to be promoted to higher post in comparison to others in the zone of consideration. But that does not mean that such an officer who

has been superseded and not promoted to the higher post is rendered unfit to hold the post.

In the result, we find no merit in this appeal and dismiss the same with costs.