State of J & K vs V.P.Modi

Gupta, J.

This appeal under clause 12 of the Letters patent has been preferred by the state of J&K against respondent Shri V.P. Modi, ExGeneral Manager,

J&K Forest corporation against the judgment dated June 10, 1987 passed by a learned Single Judge of this court (M.L. Bhat J) in WP No.

1205/86.

Respondent, who had filed writ petition out of which present appeal arises, was working in the Forest Department of Jammu & Kashmir Govt. and

came to be appointed as an Assistant conservator of Forest in October 1962. In July 1986, while he was serving as a General Manager in the

J&K. State Forest Corporation, (the post of General Manager in the Corporation being equivalent to that of Conservator of forest in the

Government), Govt. order No. 947GR of 1986 dated 31 July 1986 came to be passed by the Govt. of Jammu & Kashmir (General Department)

whereby, in exercise of the powers conferred upon the Government, under Article 226 (2) of the J&K. Civil Service Regulations, the petitioner

was retired compulsorily from service of the Govt. with effect from afternoon of 31st July 1986. In this order, it was also mentioned that he would

be allowed three months pay and allowances in lieu of notice of three months. This order, however, was followed on the same date by another

order bearing Govt. order No. 947 (a) GR of 1956 dated 31. 7. 1986 it self whereby for the words ""attained 48 years of age"". The words

completed 22 years/ 44 completed six monthly periods of qualifying service,"" were substituted. Respondent writ petitioner challenged these two

orders in the writ petition. Vide the impugned judgment, respondents' writ petition was allowed and by issuance of writ of Certiorari, both the

aforesaid orders were quashed by the learned single Judge as being unconstitutional and illegal with directions that the respondent would be entitled

to be reinstated to the post which he held as on the date of the passing of the impugned orders, i.e. 31st July 1986 He was also held entitled to

cost assessed at Rs. five hundred.

Mr. R. C. Gandhi, learned Addl. Advocate General submitted that the learned Single Judge committed material irregularity in allowing the writ

petition.

According to him, a Committee of three persons was constituted by the then Governor of the State and it was on the recommendation of this

Committee that the petitioner was ordered to be compulsorily retired. The Committee constituted by the Governor consisted of his two Advisors

at that time namely Shri Naresh Chandra Chairman of the Committee) and Shri J.M. Qureshi the Member. Apart from these two Advisors, the

then Chief Secretary to the Government, Sh. R. K. Takkar was the 3rd member. The report was, however, submitted by Shri B.K.. Goswami,

who it appears in the meanwhile had replaced Shri R. K. Takkar as the Chief Secretary. The relevant portion of the report of the Committee may

be reproduced as under :

The Committee appointed by the Governor under his orders dated 31.3. 1986 met on April 29, 1986. It considered the personal records of Shri

V. P. Modi, Divisional Forest Officer and recommended his retirement in terms of Article 226(2) of J&K Civil Service Regulations.

Mr. Gandhi's submission is that the opinion of the Committee was final in so far as the question of compulsory, retirement of the respondent is

concerned and the retirement was ordered on the subjective satisfaction of this Committee and that the court in the exercise of its extraordinary

writ jurisdiction cannot substitute its opinion to that of the Committee.

According to him, the service record of the respondent was such which did not warrant his retention in Govt. service and recourse to Article

226(2) of the civil service Regulations had only keeping in view the performance of the respondent as also service record.

While controverting the argument of Mr. Gandhi, Mr, T. S. Thakur, learned counsel appearing for the respondent submitted that the impugned

order dated 31st July 1986 was passed by the Govt. without any application of mind and that it suffers from such legal vices which could not

render the order valid or constitutional,

We have heard the learned counsel for the parties and perused the record.

Article 226(2) of J&K C S R may be reproduced for ready reference as under :

Notwithstanding anything contained in these regulations Govt. may if it is of the opinion that it is in public interest to do so require any Govt.

Servant .....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 appropriate authority shall give in this behalf a notice to the Govt. servant at least three months before the date which he is

required to be retired or three months of pay and allowance in lieu of such notice.

It is an established principle of law now that resort to such a provision contained in the service regulations is to be had only if it is in public interest

and not otherwise. The manner in which such a resort is to be had has now been well established by a long catena of judicial pronouncements and

is, therefore, no more res intgra. Even though learned Single Judge in the impugned judgment has made a reference to a large number of judgments

of the Supreme Court. It shall not be necessary to repeat those references any more by us in view of the latest unequivocal pronouncement by the

apex Court in the case of Baikuntha Nath Das vs. Chief District Medical Officer & Anr. reported in AIR 1992 S.C 1020, In this judgment, after

tracing the history of the development of the law on the subject and after detailed reference to various pronouncements, the law finally culled the

following emerging principles in para 32 of the judgment :

(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 Govt. on forming the opinion that it is in the public interest to retire a Govt 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 role, 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 10 be quashed by a Court merely on the showing that while passing it excommunicated 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,

If we apply the aforesaid principle especially one contained in clause(iii) above, it clearly emerges that even though the principles of natural justice

have no place in the context of order of compulsory retirement, judicial scrutiny is not excluded altogether. While the High Court would not

examine the matter as an appellate court it may still interfere in an order of compulsory retirement under Article 226(2) of the CSR, if on the basis

of the admitted record and the material placed before it, it is satisfied that the order retiring the government servant compulsorily is based either on

no evidence"" or that it is so arbitrary, that no reasonable person would form the requisite opinion on the given material. In other words, if the

courts held that having regard to the material available on record, the order is found to be perverse, it shall not agitate in interfering and declaring

such an order unconstitutional and illegal and thus quashing and setting it aside.

The above discussion naturally therefore, takes us to the consideration and examination of the service record of the respondent so as to find out as

to whether a case could in fact made out for our interference in the order of 'compulsory retirement of the respondent and as to whether there

existed the grounds by which we could exercise our extraordinary writ jurisdiction. Not only that, even the Committee constituted by the Governor

has in its report clearly relied upon the personal record of the respondent and it was on the basis of this record and a reliance thereof by the

Committee i.e.; compulsory retirement under Article 226(2) was recommended. The mere minimum therefore, it was required of us to proceed

any further in the matter or first to see the record and then to apply our mind and see if a case was made out for our interference. We are sorry to

say that we have been disbelieved in our attempt to do so for the same reason that despite our persistent efforts, the appellantState did not chose

to produce any record whatsoever before us. this appeal has been pending since 1987 and it appears that the appellant had not been taking any

steps in providing the record to the Court, On 12 Oct. 1992, a short adjournment was obtained by Mr. Gandhi from the Bench for production of

record on the ground that it was at Srinagar and because the office were moving in October itself, to Jammu, the record would be available in the

3rd week of November. When we heard the case on May 11, 1993, Mr, Gandhi was at his wits and when we asked him about the record.

Nonetheless, we, even after the arguments had been concluded, give him four more weeks to produced the record before us. Not only that, Mr.

T.S Thakur, learned counsel appearing for the respondentwrit petitioner made a statement before us at that time that if the record is produced by

the State, he would not like to examine it and that the court should pronounce the judgment en its own without giving opportunity to respondent to

examine the record even it were adverse to him. We are referring to all these events to support the Claim of the respondent projected before us by

his learned counsel that there was nothing adverse against the respondent in his entire service career which could warrant his compulsory retirement

from Govt. service. The respondent stated before us clearly and categorically that he had a outstanding and unblemished service record and had in

fact earned promotions superseding seniors and even Officers belonging to All India Central Services like the IFS. All these facts, apart from being

stated before us were clearly highlighted by the respondent in the writ petition filed by him. He had in fact accused in the writ petition the appellant

before us of exercising the power of compulsory retiring him on malafide consideration and arbitrarily.

According to respondent, there was no material whatsoever which could even remotely or indirectly warrant the compulsory retirement of the

petitioner.

Surely the respondent's accusation and allegations against the appellant could have easily been disbelieved by the appellant by letting or going

through the record to find out if there was any material which would satisfy the requirements of Article 226 (2) of CSR and the law Laid down by

the apex court.

Under the circumstances, therefore, we are left with no option, but to draw an inference and rightly so that the order of compulsory retiring the

respondent from service cannot be supported in any manner and that the learned Single Judge was wholly justified and correct in the approach that

he adopted and the finding that he gave while quashing the order impugned before him. For these reason, therefore, we see no cause or reason to

interfere in the impugned judgment and dismiss the appeal, but without any orders as to costs.