State of J & K vs Muzaffar Ahmad Khan

N. Paul Vasanthakumar, C.J. - This appeal is filed against the order dated 10.03.2011 made in SWP no. 460/2005 wherein the learned Single

Judge allowed the writ petition of the respondent and set aside the order of compulsory retirement issued against the respondent.

Brief facts necessary for disposal of this appeal are that, respondent was appointed as Junior Assistant in the year 1976 and was promoted to

the higher post and while working as Headquarter Assistant to Assistant Commissioner Development, Kupwara, he was prematurely retired,

stating that respondent was inefficient and incapable while he was in-charge Block Development Officer Wavoora. According to the respondent,

he had an unblemished record of service and he was working honestly and efficiently and while holding the post of Block Development Officer

Wavoora he received number of letters and instructions from the party leaders of the ruling party for allotment of works and the respondent having

followed the rules could not oblige the political leaders and, therefore, he was prematurely retired at the age of 48 years based on the

recommendations made by the Committee which was set up by Government Order No. 713-GAD of 2003 dated 10.06.2003.

The order of compulsory retirement having been passed without any basis i.e., without looking into service record of the respondent, the same

was challenged and the learned Single Judge allowed the writ petition holding that as per the records produced the conduct and performance of the

respondent has remained satisfactory. The annual performance reports (APRs) relating to years 1998-1999, 1999-2000, 2000-2001, 2001-

2002, 2002-2003, 2003-2004 and 2004-2005 disclose that he has not earned any adverse remarks but his performance was recorded as good.

In the decision to prematurely retire the respondent, consideration of the said record of service, namely, overall satisfactory and 7 years of good

rating was not found. It is also noted by the learned Single Judge that there were no adverse remarks in the annual performance reports till 2005,

still the respondent was prematurely retired. The learned Single Judge also held that the department is under obligation to consider the entire

service record before taking any decision which means the service record, recommendations and other materials. Even in the counter affidavit filed

before the Writ Court, no adverse entries were pointed out to sustain the order of compulsory retirement. The said order of the learned Single

Judge is challenged in this appeal with condone delay of 344 days. The condone delay application was opposed by the respondent by stating that

after the order of the learned Single Judge the appellants appointed an Enquiry Committee to go into the allegations and the Enquiry Committee,

after thread barely analysing the facts, gave a finding that none of the allegations are substantiated. In the said enquiry, which was held pursuant to

the order issued by the Government in GAD/Legal/F-126/2005 dated 15.03.2012 as well as the communication of the Director, Rural

Development Department, Kashmir dated 27.03.2012, all the allegations were enquired into by three member enquiry committee namely, ACD

Kupwara, Chief Accounts Officer, DRDA, Kupwara and BDO Wavoora, and the allegations were found baseless. Since the delay having been

explained by showing sufficient cause, the delay was condoned and the main appeal was admitted.

The learned Advocate General, while arguing the matter was directed to produce the record relating to the order of compulsory retirement of

the respondent as the order communicated to respondent contained no reasons. The record was produced wherein the reason stated for

compulsorily retiring the respondent was that, he was involved in large scale corrupt practices and had demanded gratification. The Vigilance

Organization has separately-been advised to register a case against the respondent and others and due to the said reason the Committee found that

the respondent has to be retired prematurely.

The very allegations referred to in the file maintained by the Administrative Department, which was the basis for compulsorily retiring the

respondent, were subsequently enquired by the appellants after the order of the learned Single Judge and no adverse report was drawn and, in

fact, all the allegations levelled against the respondent were found as baseless. Thus the reasons stated to arrive at a decision to prematurely retire

the respondent is found to be untrue by the appellants themselves after conducting enquiry before filing the L.P. appeal.

It is also to be noted at this juncture that the entire service record of the respondent was to be considered for arriving at a decision to retire him

prematurely in terms of Article 226 (2) of the Jammu and Kashmir Civil Services Regulations, under which the Government has prescribed the

norms to be followed by the Screening Committee in case of non-gazetted employees and the first and the foremost norm reads as follows:-

The Annual Performance Report of the Non Gazetted employees are neither normally written very carefully not are they fully available in a large

number of cases. The Screening Committee should, therefore, consider the entire service record including all material and relevant information

available on record about the employee before coming to any conclusion.

In the decision reported in AIR 1992 SC 1020 (Baikuntha Nath Das. v. Chief District Medical Officer) in paragraph 32 sub-para (iv) it is held

thus:-

(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.

In the decision reported in (1994) Supp (3) SCC 424 (S. Ramachandra Raju v. State of Orissa) it is held thus:-

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 x 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.

The Hon'ble Supreme Court in the decision reported in (2014) 4 SCC 773 (High Court of Judicature of Patna v. Shyam Deo Singh & Ors)

considered a similar issue regarding non-extension of service of a Judicial Officer up to the age of 60 years and in fact upheld the order of the High

Court setting aside the order of denying the extension in service on the ground that the entire service record of the Judicial Officer was not

assessed by the administrative Committee as well as the Full Court. Thus it is evident that the entire service record of the person who is to be

compulsorily retired is mandatory requirement to find out the utility of the person or not. Even in respect of promotion, overall assessment of

service record of the candidates by the selection committee is mandatory as held by Hon'ble the Supreme Court in the decision reported in AIR

2015 SC 141 (G. Mohanasundaram v. R. Nanthagopal & Ors).

The learned Single Judge followed the above referred decisions of Hon'ble the Supreme Court and the judgment of this Court in LPA No.

140/2006 dated 10.08.2009 (against which SLP was dismissed bearing SLP No. 1763/2010 dated 26.02.2010) and quashed the order. Similar

premature retirement order passed was considered by a Division Bench of this Court in LPA(SW) No. D-3/2015 decided on 12.08.2015 (State

and ors. v. Braham Dev), of which one of us (N. Paul Vasanthakumar-CJ was a member).

Applying the said judgments to the facts of this case and the fact that the alleged demand of bribe by the respondent alone was taken note of

while passing of the order of premature retirement and having regard to the enquiry regarding the said allegations and finding rendered by the

enquiry Committee, holding that the allegations are baseless, as stated supra, we are not inclined to upset the judgment of the earned Single Judge.

There is no merit in the appeal and the same is dismissed. The appellants are directed o implement the order of the learned Jingle Judge within a

period of four reeks from the date of receipt of copy this order. No costs.