Home Jammu and Kashmir High Court Service Law Merely that a Case or Cases have been Registered against an Employee by Vigilance cannot form basis of Compulsorily Retirement
Service Law - Merely that a case or cases have been registered against the petitioner by the Vigilance Organization cannot form the basis of retiring him compulsorily, as a corollary to which, the impugned order bearing No. 865-GAD of 2015 dated 30th of June, 2015, is quashed.
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Coram: Hon’ble Mr Justice M. K. Hanjura, Judge
SWP No. 1530/2015
Date of Order: 26th of March, 2018
Abdul Rashid Bhat Vs State of J&K
For the Petitioner(s): Mr Z. A. Shah, Senior Advocate with Mr I. Sofi, Advocate.
For the Respondent(s): Mr M. A. Beigh, AAG.
01. The entire gamut of the controversy raised here in this petition revolves round the plea whether the Government order bearing No. 865-GAD of 2015 dated 30th of June, 2015, issued by the Government of Jammu and Kashmir, in exercise of powers conferred by Article 226(2) of the Jammu and Kashmir Civil Services Regulations, whereby notice was given to the petitioner, namely, Shri Abdul Rashid Bhat, KAS, Joint Registrar, INDUSCO Handicraft Department, to the effect that he having already attained 48 years of age, shall retire from service w.e.f. the forenoon of the 1st day of July, 2015, can withstand the test of judicial scrutiny.
02. The pith and core of the petition of the petitioner is that during the entire tenure of his service, he worked with great deal of honesty and dedication at different places of posting and, at the relevant point of time, i.e. the day when the order aforesaid was issued, he was holding the post of Joint Registrar, INDUSCO, Handicraft Department. His past Service carrier is unblemished and, all along, he has been given various promotions on the basis of his suitability, merit and excellent service record. During the posting of the petitioner as Assistant Development Commissioner, Kupwara, a false and frivolous case came to be registered against him bearing FIR No. 24/2010 dated 17th of June, 2010, by the Vigilance Organization, Kashmir. The investigation of the case was set into motion and, accordingly, a charge sheet was filed against the petitioner in the Court of Special Judge Anti Corruption, Srinagar, which is pending in the said Court. Consequent to the registration of the said case against the petitioner, he was suspended from service vide Government order bearing No. 176 of 2010 dated 18th of June, 2010. Subsequently, the petitioner was reinstated into service vide Government order bearing No. 235-RD of 2011 dated 27th of October, 2011 and was attached in the Office of the Director, Rural Development, Kashmir, till July, 2012. Thereafter, the petitioner was transferred and posted as Joint Registrar, INDUSCOS, Handicrafts, vide Government order bearing No. 872-GAD of 2012 dated 13th of August, 2012. During this period, the Respondent Department, instead of nailing down the need to bring the investigation of the aforesaid case (i.e. the FIR No. 24/2010, Police Station VOK) registered against the petitioner to the logical conclusion, issued the order impugned in the writ petition, whereby the retirement of the petitioner was ordered under Article 226(2) of the Jammu and Kashmir Civil Services Regulations.
03. The Respondents have resisted and controverted the petition of the petitioner, on the grounds, inter alia, that the Government has to perform a multitude of tasks in order to implement various welfare measures of public interest, and the paramount aim is of providing clean and effective administration to the people of the State. In order to make the administration effective, a periodic review of all the Officers is taken up by the Government, the aim and object being to encourage honest and efficient Government servants and, simultaneously, to weed out the inefficient and corrupt Officers from the services in the public interest. Whileas, various incentives and awards are given to the honest and efficient Officers/Officials, recourse is taken to the provisions of Article 226 (2) and (3) of the Jammu and Kashmir Civil Services Regulations, 1956, for the removal of such Government officials from the State services, who have become deadwood on account of their indulging in inefficient and corrupt practices. The order of compulsory retirement passed in the case of the petitioner is based on the object of weeding out the deadwood from the State services. Article 226 (2) of the Jammu and Kashmir Civil Services Regulations is designed to infuse the administration with initiative for better administration and for augmenting the general efficiency so as to meet the expanding horizons and cater to the new challenges faced by the State to provide sensitivity, probity, non-irritative public relation and enthusiastic creativity, which can be achieved by eliminating the deadwood. In order to consider the case of the petitioner for compulsory retirement, under and in terms of the Government order bearing No. 17-GAD (Vig.) 2015 dated 20th of May, 2015, sanction was accorded to the constitution of a Committee to consider the cases of the Officers/ officials for compulsory retirement. The record regarding the involvement of the petitioner in corrupt practices was placed before the Committee. The cases, in which FIRs have been lodged and are under probe, were placed before the Committee, including the case of the petitioner bearing FIR No. 24/2010 registered by the Vigilance Organization, Kashmir. The Committee, on consideration of the available records, observed that the petitioner does not enjoy good reputation in the public due to his inconsistent conduct over a period of time and that the ‘Annual Performance Reports’ (APRs)were either not available or incomplete. The Committee also observed that a trap was laid against the petitioner, the then Project Officer, Wage and Employment (ACD), Kupwara. The petitioner was found demanding and accepting a bribe of Rs. 10,000/- from the complainant, namely, Mr Ghulam Rasool Shah, for preparing a letter for the revalidation of funds in favour of the complainant for having executed electrification work at CIC, Kupwara. Accordingly, it has been stated, that FIR bearing No. 24/2010 was registered in Police Station, VOK, for the commission of offences punishable under Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, Samvat 2006 read with Sections 161 and 120-B RPC. The petitioner was caught red handed in the trap proceedings and the tainted money was recovered from him. The investigation of the case was concluded as proved and, the competent Authority, after considering the available records and applying its mind to the facts and circumstances of the case, accorded sanction for prosecution of the petitioner vide Government order bearing No. 36-GAD (Vig.) of 2011 dated 24th of June, 2011. The Committee, therefore, recommended for the compulsory retirement of the petitioner in public interest under Article 226(2) of the Jammu and Kashmir Civil Services Regulations. The recommendations so made were accepted by the Competent Authority, as a consequence of which, the impugned order was issued. It has been, accordingly, pleaded by the Respondent-State that the impugned order is a legal one. It is in accordance with law. The writ petition, as such, is legally misconceived, untenable, without any merit, and, in sequel thereto, merits dismissal.
04. In his rejoinder affidavit, the petitioner has stated that his case does not fall within the purview of Article 226 (2) of the Civil Services Regulations or under the umbrella of the instructions and the guidelines, warranting action against him under the said provision. The State has clearly failed to identify as to in which of the categories does the case of the petitioner fall. Vague allegations which are merely superficial and have no merit in them have been levelled against the petitioner. The petitioner claims that the allegations levelled against him in the FIR bearing No.24/2010, registered at Police Station, VOK, to the effect that he was involved in demanding and accepting the bribe, are absolutely incorrect. The FIR aforesaid is under the scrutiny of the Court and, as such, no adverse inference can be drawn against the petitioner without he having been convicted by a Court of law. With regard to the second ground, considered by the Committee for recommending the compulsory retirement of the petitioner, i.e. incomplete ‘Annual Confidential Reports’, it is stated by the petitioner that the maintenance of the ‘Annual Confidential Reports’ (ACRs) is not the responsibility of a government servant. The ‘Annual Performance Reports’, it is stated, have been written at different times and with full level of awareness on all relevant issues. It has been pleaded that an FIR cannot form the basis of judging the performance of an employee, as the FIR is simply a document containing unsubstantiated allegations intended to set criminal law in motion and, under the well settled principles of law, it could not have been considered for superannuating the petitioner compulsorily. The action of the Respondent-State in retiring the petitioner after taking resort to the provisions of Article 226(2) of the Civil Services Regulations, is arbitrary and discriminatory in nature and, therefore, the impugned order deserves to be quashed.
05. Heard and considered.
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 26th of June, 2015, recommended for compulsory retirement of several Government officers/ officials, including the petitioner. The Respondent-State 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 Respondent-State 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 Nos. 24/2010, registered against him by the Vigilance Organization, Kashmir, for demanding and accepting bribe. 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. While recording the order of his compulsory retirement, 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.
07. 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 pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement.”
08. 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.
1. 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.
2. 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.
3. 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.
4. 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.
1. 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.
2. 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.”
09. 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 30th 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 vigor and rigor 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 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 analogy 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. Punjab State Electricity Board and Ors.”, 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.”
10. 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. ………”
11. In the case of “State of Gujrat v. Umedbhai M. Patel”, reported in “(2001) 3 SCC 314”, the Supreme Court, at Paragraph No.11 of the judgment, excogitated the definite principles of law relating to compulsory retirement and these are as follows: -
“11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.”
12. The law is that the order of compulsory retirement, taken under the safety valve of public interest, could not be treated as a major punishment and that Article 311 (2) of the Constitution could not be invoked, as the employee concerned was no longer fit in the public interest to continue in service and, therefore, he can be compulsorily retired. On an analysis of the principles laid down above, the order of compulsory retirement can be subjected to judicial scrutiny, if the Court is 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 and prudent man would form such an opinion on the given material, in which case it falls under the category of an order termed to be perverse in the eyes of law. For framing an opinion to compulsorily retire a public servant, there should be some material on record to support and fortify it, as otherwise, it would amount to arbitrary or colorable exercise of power and, therefore, the order could be challenged on the grounds that the requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that is was an arbitrary one.
13. Taking an overall view of the matter, the bottomline of the order of compulsory retirement of the petitioner is his conduct and the registration of FIR No. 24/2010, Police Station, VOK, against him, in which, it is stated, that the Challan has been laid against the petitioner before the Court of learned Special Judge, Anti Corruption, Srinagar and that the said case is pending before the Court. Whether the compulsory retirement of the petitioner could have been directed under the facts and circumstances of the case is the moot question that requires to be determined herein this petition? The answer to this question is provided at paragraph No. 27 of the law laid down by the Apex Court of the country in the case of “State of Gujarat v. Suryakant Chunilal Shah”, reported in “1998 (9) Supreme 150”and “(1999) 1 SCC 529”, which, for the convenience of ready reference, is reproduced hereinbelow, verbatim et literatim:
“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.”
14. Applying the ratio of the law laid down above to the facts of the instant case, resort to the practice, which has been followed by the State in directing the compulsory retirement of the petitioner, will have serious ramifications in some cases. It will lead to consequences which can be disastrous for the smooth functioning of the official machinery. Such a practice cuts at the very root of the basic tenets and the elements of the age old adage and axiom of law that a person accused of an offence is presumed to be innocent, unless and until his guilt has been proved. The State has applied this principle in the reverse, perhaps, labouring under the belief that the maxim of law is that every person is presumed to be guilty, unless and until he proves his innocence. It is only on the culmination of the trial that, if the charges are proved against the accused and, as a consequence thereto, he is convicted and sentenced, that such an opinion can be framed. The whole exercise has been conducted on the basis of the involvement of the petitioner in case bearing FIR Nos. 24/2010, registered at Police Station, VOK, wherein the Challan has been laid against the petitioner before the competent Court of law, but no final finding has been returned thereon as yet. If the contention, as propounded by the State, that the involvement of the petitioner came into limelight in the aforesaid FIR and, therefore, he was shown the door is accepted, the meaning that will flow from it is that a presumption will be drawn against each public servant facing the charges of corruption that, in the ultimate analysis, he/she will be convicted in the offence(s) levelled against him/her, as a corollary to which, he/she will lose his/her service. Such hypothesis or supposition cannot be countenanced in law and, had it been so, it would have formed the basic structure of the rule itself, that such acts of omission and commission will lead to the presumption that the employee has a doubtful integrity or conduct unbecoming of a public servant.
15. 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”.
16. 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.
17. The contention of the Respondent-State, 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.
18. The facts are eloquent. In the ‘writ petition, filed by the petitioner, he has placed on record the details of his ‘Annual Performance Reports’ wherein and whereunder his achievements, from time to time, have been judged/ evaluated by his superiors and he has been rated as under:
“1. For the year/ period ending 2012-13, the performance of the petitioner has been rated as excellent.
2. In the APR for the year/period ending 2013-2014, it has been stated that the Officer has successfully implemented all the schemes of the Department.
4. For the year/ period ending 2014-2015, the petitioner has been rated as hard working, dedicated and an asset for the Department.”
19. The aforementioned ‘Annual Performance Reports’ have been shelved. These have escaped the scrutiny of the Committee. It appears to have been done with the ultimate aim of showing the petitioner the exit and, had these ‘Annual Performance Reports’, been considered, the result would have been otherwise.
20. The argument of the learned counsel for the respondent- State that the principles of natural justice cannot be invoked by a public servant in the aid of assailing an order of compulsory retirement and that such an order does not amount to a punishment, is based on the sound principles and cannons of law, but, to say that such an order can be passed by shunning the material on the basis of which such an order can be passed in terms of the rules, regulations and the law governing the subject, is a spurious and a contrived argument. Such an argument is devoid of merit and does not have the legs to stand upon.
22. Viewed in the context of what has been said and done above, the impugned Government order bearing No. 865-GAD of 2015 dated 30th of June, 2015, cannot stand the test of law and reason. It is not based on any material from which a reasonable opinion could be derived to put forward the plea that the petitioner has outlived his utility as a Government servant or that his conduct was such that his continuance in service would be prejudicial to the public interest. Merely that a case or cases have been registered against the petitioner by the Vigilance Organization cannot form the basis of retiring him compulsorily, as a corollary to which, the impugned order bearing No. 865-GAD of 2015 dated 30th of June, 2015, is quashed. The Respondents are directed to reinstate the petitioner and grant him all the consequential benefits, within a period of one month from the date the certified copy of this order is served on them by the petitioner.
23. Writ petition disposed of as above.