State Of Jammu & Kashmir @APPELLANT@Hash Imtiyaz Ahmad Lara

Magrey, J

The present Letters Patent Appeal is filed by the appellant State against the judgment and order dated 25th June, 2018, for short impugned judgment, passed by the writ court in a writ petition, SWP no. 51/2017, titled Imtiyaz Ahmad Lara v. State of J&K, whereby the writ petition of the petitioner/ respondent herein has been allowed and the order questioned therein has been quashed with further direction to the respondent/ appellant herein to reinstate the petitioner and grant him all the consequential benefits within a period of one month.

The challenge to the impugned judgment is made inter alia on the grounds that it is against the mandate of law for having not appreciated the stand of the respondents/ appellants herein in its right perspective; it did not consider the factual aspect of the matter in its entirety as nothing is said about the main allegation made against the respondent forming basis for his premature retirement; it is bad in law because it has not seen whether there was sufficient material/ record available with the Review Committee for framing its opinion and recommending for premature retirement of the respondent; it has traversed beyond jurisdiction by scrutinizing the minute details; it is based on the judgment titled State of Gujrat v. Suryakant Chunilal Shah reported as 1998 (9) Supreme 150 and (1999) 1 SCC 529, which had different set of facts than the case in hand; the decision of retiring the petitioner/ respondent herein prematurely was issued on the basis of material available and not arbitrarily as held in the impugned judgment; the order of premature retirement of the petitioner/ respondent was issued in public interest; the order impugned in the writ petition was issued in terms and not contrary to the guidelines contained in the Government Order No. GAD(Vig)19-Adm-2010 dated 25.01.2010; the order of compulsory retirement was issued by the Committee comprising highest level of officers of the State headed by the Chief Secretary after having detailed deliberations; the order of compulsory retirement is neither punitive nor stigmatic and is based on subjective satisfaction of an employer and the scope of judicial review in such matters is very limited; the interference with the order is permissible only on the ground of non-application of mind or if it is mala-fide, perverse, arbitrary or if there is non-compliance of statutory duty; the employer is within his rights to compulsorily retire the employee if the latter is considered to be a deadwood and of no utility to the former.

The appeal in hand was time barred and in terms of order dated 12th November, 2018, the delay of 66 days that had crept in filing the appeal was condoned.

We have heard learned counsel for the parties.

A brief re-look at the events leading to the filing of the instant appeal is desirable, thus:

The petitioner/ respondent herein, while working as I/C Assistant Executive Engineer, PMGSY, Uri, was served with a notice to the effect that he having rendered the service of 24 years, shall retire from service w.e.f. the forenoon of the 22/11/ 2016. A case FIR no. 13/2010 of Police Station VOK for the commission of offences punishable in terms of Section 5(2) of the Prevention of Corruption Act was registered on 16.4.2010 against the petitioner/ respondent herein who was later prosecuted pursuant to the sanction granted by Government on 26.11.2015. Thereafter, the petitioner/ respondent herein was placed under suspension in terms of Government Order No. 116-PW (R&B) of 2016 dated 30.03.2016. A Challan, Police Final Report, was subsequently filed before the competent court of jurisdiction, Special Judge, Anti-Corruption, Baramulla and during the pendency of the trial, the order of compulsory retirement was issued under Article 226 (2) of the Jammu and Kashmir Civil Services Regulations.

The petitioner/ respondent herein feeling constrained filed the writ petition, SWP no. 51/2017, before the Writ Court challenging the order of compulsory retirement on variety of grounds with particular reference of it being: against the principles of the policy governing the subject of compulsory retirement; without justifiable cause; in disregard of the service record of the delinquent officer; without any enquiry; discriminatory, etcetera.

The Writ Court, in terms of the impugned judgment, held the order of compulsory retirement of the petitioner/ respondent herein to be bad in law and quashed the order while directing the respondents/ appellants herein to reinstate the petitioner/ respondent herein. It is against the said judgment and order that is challenged by the present appeal on the grounds enumerated briefly hereinbefore.

Mr Javed Iqbal, learned Sr. AAG appearing for the appellants, while reiterating the grounds of the appeal, submits that the Writ Court has erred in law in holding that the decision to treat the respondent as a deadwood was based on no substantial material. He further submits that the entire past service of the petitioner/ respondent herein was taken into consideration while forming an opinion by the Committee and the decision of compulsory retirement of the petitioner/ respondent herein was based on sound reasoning and not an arbitrary action as held by the Writ Court.

Mr Javed Iqbal, learned Sr. AAG, further submits that the appellant State made a decision of compulsory retirement after taking into account that the petitioner/ respondent herein is enjoying a bad reputation among the general public having indulged in corrupt practices. He further submits that the impugned judgment is an outcome of non-application of mind as the order of compulsory retirement was not perverse, arbitrary or violative of the norms which would give jurisdiction to the Writ Court to interfere with the order issued.

He further submits that the judgment referred to and relied upon by the Writ court is distinguishable on facts, therefore, not applicable to the instant case.

Mr Z. A. Shah, learned Sr. Counsel appearing for the respondent, submits that the impugned judgment is well reasoned and needs no interference. He submits that based on the record made available before it, the Writ Court has delivered a well sustained verdict. He further submits that the appellants have absolutely no case to agitate before the appellate forum as no good ground is projected to shake the basis of the impugned judgment.

Learned sr. counsel for the respondent submits that the Writ Court has appreciated the facts of the case judiciously and returned findings accordingly. He submits that the appellants have failed to show reasonably as to how the impugned judgment is bad in law.

He further submits that the impugned order being legally valid does not warrant interference.

We gave our thoughtful consideration to the rival submissions of the learned counsel for the parties having reference to the claim and the counter claim.

The Writ Court has made elaborative emphasis on the key points involved in the matter, like the constitution of the Committee, its ambit, scope and functions. It has further extensively made reference to the relevant provisions of law to derive satisfaction as to whether the substantial compliance of the said provisions of law has been made by the respondents/ appellants herein to issue the order of compulsory retirement of the petitioner/ respondent herein. We think it appropriate to reproduce the paragraphs 6 to 10 of the impugned judgment herein, thus:

"06. What requires to be stated, at the outset, is that the Government, in an attempt to cleave to the principles of chopping the deadwood in the shape of corrupt and inefficient Government servants from service and to maintain the highest standards of efficiency, constituted a Committee headed by the Chief Secretary of the State vide Government Order bearing No. 17-GAD (Vig) 2015 dated 20th of May, 2015. The Committee, in addition to the Chief Secretary, comprised of the Principal Secretary to the Chief Minister; Principal Secretary to the Government, Home Department; Commissioner/ Secretary to the Government, General Administration Department; and Secretary to the Government, Department of Law, Justice & Parliamentary Affairs. In the aforesaid Government order, it was also ordered that the Chairman may also co-opt a member for assisting the Committee in any particular meeting, and in pursuance thereto, it has been stated, that the Inspector General of Police, Vigilance Organization, and the Administrative Secretary of the concerned Department were co-opted as members by the Committee. The Committee held its deliberations on various occasions and finally on 21st of November, 2016, recommended for compulsory retirement of several Government officers/ officials, including the petitioner. The official Respondents have, in their Reply, pleaded that the officers/ officials, whose conduct had come under a cloud, while accord of consideration to their cases by the Committee, were dealt out under the provisions of Article 226 (2) of the Jammu and Kashmir Civil Services Regulations and OM No. GAD (Vig) 19-Adm/2010 dated 25th of October, 2010. The case of the Respondents further is that the Committee, while considering the case of the petitioner, came to the conclusion that the petitioner did not enjoy a good reputation and, in addition, his involvement had surfaced in FIR No. 13/2010registered against him by the Vigilance Organization for fraudulent regularization of Daily Rated Workers. It is the specific case of the Respondent-State that the "Annual Performance Reports" of the petitioner were not considered by the Committee in the matter of passing the order impugned which makes it explicitly clear that while recording the order of the compulsory retirement of the petitioner, the baseline of the order impugned is the alleged involvement of the petitioner in the FIR detailed hereinbefore, buttressed with his general reputation which, it is stated, was unbecoming of a Government servant.

The State of Jammu and Kashmir has enacted a specific provision for dealing with the compulsory retirement of the public servants in the Civil Services Regulations of the State, with the ultimate aim of weeding out the corrupt and inefficient public servants and, at the same time, to prevent its use as a weapon of a penalty. It requires the formulation of an opinion to the effect that it is in public interest to do so. The said provision, known as Article 226 (2) of the Civil Services Regulations, reads as follows:

"226 (2): - 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 annexures A and B hereto as the case may be), to the Government servant at least 3 months before the date on which he is required to retire or 3 months of pay and allowance in lieu of such notice. Such a Government servant shall be granted pensionery benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement."

It will not be impertinent to state that, in the exercise of the power of compulsory retirement vested in the Government under Article 226 (2) of CSR based on reason, justice, fairness and a just analysis, the Government has issued instructions in terms of SRO 246 dated 30th June, 1999 and these have to be read in conjunction with the Regulation 226 (2) of the CSR. These are as under:

"Government Instructions: - Levels at which screening should be conducted for Non-Gazetted Employees.

At the Non-Gazetted level, a Screening Committed comprising of the Head of the Department and two other Senior Officers of the Department to be nominated by the concerned Administrative Department should conduct the review. The Screening Committee should screen the cases of all concerned persons and forward its recommendations to the Administrative Department for further follow up action in terms of Art. 226 (2) of J&K CSR. This review should be done regularly, preferably twice every year in the months of January and July each. The review should be conducted by the cadre controlling Administrative Department which controls the service to which the concerned Government servant belongs irrespective of where he may be working at the relevant time. However, if the employee is working in a different department then the Screening Committee should consist of at least one Senior Officer from the department in which the Government servant is/was working at the relevant time.

The review should, normally be initiated around six months before the officer/official attains the prescribed age or completes the prescribed service. A separate register can be maintained for keeping a watch on the time schedule for such review.

The final decision in the matter for Non Gazetted staff should rest with Administrative Department, which should take a final decision based upon the report of the Screening Committee. This should be done within a period of three months of receipt of report from the Screening Committee. The gist of the final decision can be recorded in the service book of the employee.

The decision of the Administrative Department implies a decision by the concerned Minister of the Department on file. Hence, he can review his own decision in the form of considering representations made by the concerned employees against the initial decision pertaining to premature retirement in the interest of natural justice.

Norms to be followed by the Screening Committees in cases of Non-Gazetted Employees.

The Annual Performance Report of the Non-Gazetted Employees are not normally written very carefully nor 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 employees before coming to any conclusion.

The Government employees whose integrity is doubtful should be retired. For the purpose of establishing that the integrity of the Government servant is doubtful, the following information/records could be considered:

* Number and nature of complaints received, if any, against the Government servant pertaining to doubtful integrity or corruption.

* Number and nature of various audit paras pending, if any, against the Government servant in which concerned Government servant is found to be involved.

* Number and nature of vigilance cases pending inquiry, if any, against the Government servant.

* Adverse entries in the APRs concerning doubtful integrity, if any.

* Number and nature of departmental inquiries/preliminary inquiries, if any, which are going on against the concerned Government servant.

* Number and nature of administrative censure/warnings/punishment pertaining to corruption/doubtful integrity against the Government servant, if any.

* General reputation of the employees."

By an addendum to these instructions, the Government in the General Administration Department issued an Office Memo bearing No. OM No. GAD (Vig)19- Admn/2010 dated 25thofOctober, 2010. The Instructions issued by the Government in terms of SRO 246 dated 30t of June, 1999, supra, as is repeated here, have to be read as a part of Article 226 (2) of CSR, in addition to the aforesaid Memo issued by the GAD. These are meant to be followed by the Screening Committee both in vigour and rigour while evaluating the cases of the officers forwarded to them for taking a decision with regard to their compulsory retirement. The norms laid down above make it succinctly clear that the Screening Committee, while analysing the cases of the employees for compulsory retirement and while considering that the integrity of a Government servant is doubtful, has to base its view on a variety of factors. These are the number and nature of complaints received, if any, against the Government servant pertaining to his doubtful integrity or corruption; the number and nature of various audit reports pending, if any, against such Government servant; the number and nature of vigilance cases pending enquiry, if any; adverse entries in APRs concerning doubtful integrity, if any; the number and nature of departmental enquiries, preliminary enquiries etc; the number and nature of administrative censures /warnings /punishments pertaining to corruption or doubtful integrity and, lastly, the general reputation of the employees. It is only on accord of consideration to the factors aforesaid that the Government can formulate an opinion as to whether or not, the Government servant, whose case is under scrutiny before it, is or is not, a person of doubtful integrity and that his continuance in service is highly prejudicial to the smooth functioning of the administration and the public interest. The decision to compulsorily retire a Government servant has to be, as a matter of necessity, based on the strength of the above guidelines and the principles of law evolved from time to time in a catena of judicial pronouncements. In this regard, it will be profitable to quote the observations of the Supreme Court of the Country made in Paragraph Nos. 8 and 18 of the case titled "Swaran Singh Chand v. Punja State Electricity Board and others", reported in "(2009) 13 SCC 758", which read as under:

"8. It is further more well settled that when the State lays down the rule for taking any action against an employee which would cause civil or evil consequence, it is imperative on its part to scrupulously follow the same. Frankfurter, J. in Vitarelli v. Seaton [359 US 535] stated:

"An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed......This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."

"18. In a case of this nature the appellant has not alleged malice of fact. The requirements to comply with the directions contained in the said Circular Letter dated 14-8-1981 were necessary to be complied with in a case of this nature. Non-compliance wherewith would amount to malice in law (See Govt. Branch Press v. D.B Belliappa (1979) 1 SCC 477, S.R Venkataraman v. Union of India (1979) 2 SCC 491 and P. Mohanan Pillai v. State of Kerala (2007) 9 SCC 497). Thus, when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable."

The view, as propounded above, has been repeated and reiterated by the Supreme Court in the case of "Madhya Pradesh State Cooperative Dairy Federation Ltd. &Anr. v. Rajnesh Kumar Jamidar", reported in "(2009) 15 SCC 221", Paragraph No. 43 of which assumes significance in the case at hand and it reads as follows:

"43. It is now a well settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature. ........." "

The Writ Court, as we see, has further reasonably made detailed analysis of how the judicial review is permissible in the cases of premature retirement. Paragraphs 15 to 17 of the impugned judgment, being relevant, are extracted for ready reference herein, thus:

Judicial review of an order of compulsory retirement, passed not by way of any punitive measure but for cleansing the administration of inefficient and corrupt public servants without attaching any stigma, has been the subject matter of adjudication in several cases before the Supreme Court as well as in this Court. It would be relevant to refer to the observations made by the Supreme Court at Paragraph No. 13 of the case titled "M.S. Bindra v. Union of India &Ors., reported in "(1998) 7 SCC 310", which is reproduced hereunder:

"13. While reviewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim 'nemofirutrepenteturpissimus' (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".

Looking at the instant case from the above perspective, an important facet which cannot be lost sight of is that the Committee has given a complete goby to the Regulation 226(2) of the CSR read with the instructions (provided hereinbefore) in considering his compulsory retirement. These lay great emphasis and spell out the need and demand to consider the entire service record of the public servant available in the shape of APRs, service book, personal file- giving the details of the complaints received against him from time to time and so on and so forth. While considering the desirability of the retention or otherwise of a public servant, whose conduct has come under a cloud, the criminal case(s) registered against him can be considered on the parapet and the bulwark of the chain of the documents/ service particulars, as stated hereinbefore. But to say that the FIR(s) can form the sole basis to retire a public servant compulsorily is neither in tune nor in line with the scheme and mandate of Article 226(2) of the CSR read with the guidelines supra and the judicial pronouncements holding the ground. Taking such a view that FIR(s) only will form the basic structure of an order of compulsory retirement of a public servant will be repugnant and averse to the very concept and object of compulsory retirement. In order to attach a semblance of fairness to such an order, the entire service record of a public servant, more significantly the service record of the previous years preceding the decision, has to be assessed and evaluated. These cannot be skipped and shelved in formulating such an opinion by taking umbrage under the plea that the same were not available, as stated here in this case. If these are disregarded and omitted in the matter of the accord of consideration to the case of the compulsory retirement of a public servant, the whole exercise will get vitiated under the colour of the non-application of mind and the decision having been taken not on just grounds, but for a collateral purpose, and, to cap it all, how can the conduct of a public servant be put through the wringer, when there is no definite material available to substantiate so. The reputation of a public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in the absence of any material on record. This is a fundamental flaw in the order issued against the petitioner, whereby he has been shown the door.

The contention of the Respondents, in this petition, is that there was no material in the shape of 'Character Roll Entries' available before them and, if these were not available, the State could not have concluded that the conduct of the petitioner was unbecoming of a public servant, or that he was a man of doubtful integrity, or that he was a fit person to be retired compulsorily from service. The order of the compulsory retirement of the petitioner, in these circumstances, is punitive having been passed for the collateral purpose of his immediate removal rather than in public interest. However, the petitioner has knocked the bottom out of this contention of the Respondent-State that the 'Character Roll Entries' were not available at a time when consideration was accorded to the case of his compulsory retirement. This strengthens the view that the order has been passed for a collateral purpose of his immediate removal."

We feel satisfied that the Writ Court has not deviated from the settled legal position on the subject, rather we believe that the applicable law is well appreciated and the findings returned by the Writ Court are based on sound legal principles.

We are, thus, not inclined to accept the submissions of learned counsel for the appellant, for, the Writ Court has taken note of the fact that the petitioner/ respondent herein has been appreciated by his superiors throughout, and his entire service career is unblemished except for him having figured in the case FIR no. 13/2010 registered by the Vigilance Organization Kashmir which resulted in his suspension and subsequent removal from service. The Writ court has very reasonably appreciated the legal position on the subject when it has said that the guidelines laid down in this behalf have not been followed by the respondents/ appellants herein in compulsorily retiring the petitioner/ respondent herein.

The Hon'ble Supreme Court in case titled M.P. State COOP. Dairy Federation Ltd. v. Rajnesh Kumar Jamindar reported as (2009) 15 SCC, 221, has held that the employer is bound by the rule of the game and it must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature.

In the very same pronouncement the Hon'ble Supreme Court has held that the power of Judicial Review of a superior court has many facets and its jurisdiction is not only limited in the cases where the administrative orders are perverse or arbitrary but also in the cases where a statutory authority has failed to perform its statutory duty in accordance with law.

The Writ Court, in our opinion, has appreciated the facts of the case very reasonably and the law applied is not in any way out of subject.

For all what has been said hereinbefore We dismiss the LPA and upheld the impugned judgment.