HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
Reserved on 06.10.2022
Pronounced on 19.10.2022
LPASW No.183/2017
CM No.8530/2019
IA No.1/2017
State of J&K …..Appellant(s)
Through: Mr. Amit Gupta, AAG
Vs.
Bhumesh Sharma .…. Respondent(s)
Through: Mr. Z.A. Shah, Sr. Advocate with Mr.
Jagpaul Singh, Advocate
Coram: HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
Tashi Rabstan – J
1. This Letters Patent Appeal is directed against the judgment and order
dated 07.02.2017 delivered by the learned Single Bench in SWP
No.2140/2015, whereby the learned Single Judge, while allowing the writ
petition, quashed the impugned order, bearing No.868-GAD of 2015 dated
30.06.2015 compulsory retiring the writ petitioner from service in public
interest with effect from 01.07.2015 in exercise of powers under Article 226(2)
of the Jammu and Kashmir Civil Services Regulations.
2. Heard learned counsel appearing for the parties, considered their rival
contentions, perused the appeal file as well as the record so produced by the
learned counsel for State.
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3. The term or phrase “compulsory retirement” in service law has been
generally used in relation to cases where an employee has been directed that
his services are no longer required before he reaches the normal age of
retirement prescribed by the rules. In other words, in substance, there is a
premature end of the relationship of master and servant before the servant
reaches the prescribed age of retirement or superannuation. Premature
retirement is, therefore, a more apt expression to convey the concept with
which the petitioner has been subjected. The purpose and object of premature
retirement of a Government employee is to weed out the inefficient, the
corrupt, the dishonest or the dead-wood from Government service. In Tara
Singh and others v. State of Rajasthan and others, (1975) 4 SCC 86, their
Lordships of the Supreme Court summed up the concept of premature
retirement in following words:
“26. The right to be in public employment is a right to hold it
according to rules. The right to hold is defeasible according to rules.
The rules speak of compulsory retirement. There is guidance in the
rules as to when such compulsory retirement is made. When persons
complete 25 years of service and the efficiency of such persons is
impaired and yet it is desirable not to bring any charge of
inefficiency or incompetency, the Government passes orders of such
compulsory retirement. The government servant in such a case does
not lose the benefits which a government servant has already earned.
These orders of compulsory retirement are made in public interest.
This is the safety valve of making such orders so that no arbitrariness
or bad faith creeps in.”
4. It is well settled that when an order is challenged as arbitrary or mala fide
in the petition under Article 226 of the Constitution of India, it is the
governmental duty to provide documents for inspection of court. In the matter
of State of Uttar Pradesh v. Chandra Mohan Nigam and others, AIR 1977 SC
2411, the Supreme Court has ruled out in paragraph 36 as under:
3 LPASW No.183/2017
“36. … when an order of compulsory retirement is challenged as
arbitrary or mala fide by making clear and specific allegations, it will
then be certainly necessary for the Government to produce all the
necessary materials to rebut such pleas to satisfy the court by
voluntarily producing such documents as will be a complete answer
to the plea. It will be for the Government also to decide whether at
that stage privilege should be claimed with regard to any particular
document. Ordinarily, the service record of a Government servant in
a proceeding of this nature cannot be said to be privileged document
which should be shut out from inspection.”
5. Not only the employer is obliged to produce the materials, but the onus of
establishing that the order was made in public interest is also on the employer.
In Baldev Raj Chadha v. Union of India and others, (1980) 4 SCC 321, the
Supreme Court has clearly held that “it is a terminal step to justify which the
onus is on the Administration, nor a matter where the victim must make out the
contrary”.
6. Admittedly, a perusal of the file as well as the record clearly reveals that
compulsory retiring the writ petitioner from service was based on no material,
in as much as the writ respondent even did not conduct any departmental
inquiry with respect to the act of alleged misconduct on the part of writ
petitioner. Further, the writ respondent did not deny in the writ petition the
claim of writ petitioner that his APRs from the years 2001-2002 till 2013-2014
have either been good or outstanding, more so the learned Single Judge had
specifically opined that a perusal of the APRs of writ petitioner clearly reveals
that no departmental inquiry was pending against him; meaning thereby the
writ petitioner had a satisfactory employment record. Further, the State has
failed to explain why the Vigilance Department gave clearance to the writ
petitioner and why he was selected to the Kashmir
Administrative Service in the year 2010 when he has done the act of alleged
misconduct and his performance as an officer was not up to the mark. It seems
4 LPASW No.183/2017
the APRs of writ petitioner, which were reproduced by him, have not been
taken into account by the respondents. Even the writ petitioner has specifically
claimed in the writ petition that the Transport Commissioner vide
communication dated 11.07.2011 had recommended his name for gold medal
for his honesty, integrity and meritorious service. In such a situation, the
reputation of writ petitioner cannot be termed as doubtful, as projected, nor
could his conduct be determined only on spoken words in the absence of any
material on record, which was the fundamental flaw in the order issued against
the petitioner compulsory retiring him from service. Since the State has failed
to disclose the material forming the basis for compulsory retiring the writ
petitioner from service, as such it can be said to be a case of no material or no
evidence and the same can certainly be held to be arbitrary or without
application of mind.
7. The power to retire compulsory a government servant in terms of service
rules is absolute, provided the authority concerned forms a bona fide opinion
that compulsory retirement is in public interest. Although the scope of judicial
review is limited, it has repeatedly been held by the Apex Court that when an
order of premature retirement is challenged, the authorities concerned must
disclose the materials on the basis of which the order was made. Further, the
order of compulsory retirement cannot be based on the sole basis of
recommendations of the committee which has to be considered by the
competent authority in accordance with law. Merely because the committee
has made recommendations for retirement of writ petitioner, he cannot be
compulsorily retired unless the competent authority comes to a conclusion after
forming a bona fide opinion of its own that the writ petitioner can be subjected
to compulsory retirement in the interest of the institution.
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8. As regards FIR No.20/2005 dated 16.12.205 registered against the
petitioner by the Vigilance Organization, which later on transferred to the
Central Bureau of Investigation, the file reveals that the CBI after conducting
investigation submitted the closure report before the Special Judge Anti-
Corruption, which came to be accepted by the trial Court vide order dated
22.03.2007. In FIR No.13/2012 the writ petitioner had not been named as an
accused. In our view compulsory retirement cannot be sustained merely
because an FIR was lodged against the writ petitioner by the Vigilance
Organization. The practice followed by the State in directing compulsory
retirement of the writ petitioner was completely unwarranted because that
would violate the basic maxim of „innocent until proved guilty‟. Thus, via the
impugned order of compulsory retirement, the State has applied this principle
in the reverse.
9. In State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529, their
Lordships of the Supreme Court held as under:
“27. The whole exercise described above would, therefore, indicate
that although there was no material on the basis of which a
reasonable opinion could be formed that the respondent had outlived
his utility as a government servant or that he had lost his efficiency
and had become a dead wood, he was compulsorily retired merely
because of his involvement in two criminal cases pertaining to the
grant of permits in favour of fake and bogus institutions. The
involvement of a person in a criminal case does not mean that he is
guilty. He is still to be tried in a court of law and the truth has to be
found out ultimately by the court where the prosecution is ultimately
conducted. But before that stage is reached, it would be highly
improper to deprive a person of his livelihood merely on the basis of
his involvement. We may, however, hasten to add that mere
involvement in a criminal case would constitute relevant material for
compulsory retirement or not would depend upon the circumstances
of each case and the nature of offence allegedly committed by the
employee.”
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10. In the said case it was also held by their Lordship that the annual
character roll of the Government Servant would give an appropriately objective
assessment of his integrity and job performance since adverse remarks on such
rolls would be warning signs of the absence of such a person‟s job integrity.
Their Lordships further held that merely being involved in a criminal case
wouldn‟t per se establish the person‟s guilt and hence, a compulsory retirement
based on such a factor wouldn‟t stand.
11. Similarly, the Supreme Court in the matter of Nand Kumar Verma v.
State of Jharkhand and others, (2012) 3 SCC 580, has held that the formation
of opinion for compulsory retirement is to be based on the subjective
satisfaction of the authority concerned but such satisfaction must be based on a
valid material and it is permissible for the courts to ascertain whether a valid
material exists or otherwise, on which the subjective satisfaction of the
administrative authority is based. It has been observed by their Lordships of
the Supreme Court in paragraphs 34 and 36 of the report as under: -
“34. It is also well settled that the formation of opinion for
compulsory retirement is based on the subjective satisfaction of the
authority concerned but such satisfaction must be based on a valid
material. It is permissible for the courts to ascertain whether a valid
material exists or otherwise, on which the subjective satisfaction of
the administrative authority is based. In the present matter, what we
see is that the High Court, while holding that the track record and
service record of the appellant was unsatisfactory, has selectively
taken into consideration the service record for certain years only
while making extracts of those contents of the ACRs. There appears
to be some discrepancy. We say so for the reason that the appellant
has produced the copies of the ACRs which were obtained by him
from the High Court under the Right to Information Act, 2005 and a
comparison of these two would positively indicate that the High
Court has not faithfully extracted the contents of the ACRs.
36. The material on which the decision of the compulsory retirement
was based, as extracted by the High Court in the impugned
judgment, and material furnished by the appellant would reflect that
totality of relevant materials were not considered or completely
7 LPASW No.183/2017
ignored by the High Court. This leads to only one conclusion that
the subjective satisfaction of the High Court was not based on the
sufficient or relevant material. In this view of the matter, we cannot
say that the service record of the appellant was unsatisfactory which
would warrant premature retirement from service. Therefore, there
was no justification to retire the appellant compulsorily from
service.”
12. The judgments cited by the learned counsel for writ respondent have no
applicability to the facts of present case.
13. Viewed thus, we are not inclined to take a view other than the one taken
by the learned Single Judge. Accordingly, the appeal is dismissed along with
connected CM/IAs upholding the judgment and order of learned Single Judge.
14. However, as regards the allegations leveled by the writ respondent against
the writ petitioner, the State and its officers at the helm of affairs if are fair
enough and have a will, and do not intend to provide a safe passage either to
writ petitioner or the then officials/officers of Vigilance Organization, are free
to go ahead with such inquiry, if they deem fit, and complete the same in a
time bound manner without any excuse on the part of officers holding such
inquiry.
15. The record so produced by the learned counsel for appellant/writ
respondent be returned against proper receipt.
Jammu (Sindhu Sharma) (Tashi Rabstan)
19.10.2022 Judge Judge
(Anil Sanhotra)
Whether the order is reportable ? Yes/No
Whether the order is speaking ? Yes/No
