1. Petitioner has challenged the Government Order No. 1268 of 2004 dated 20th of September 2004 (for short impugned order) whereby he came to be prematurely retired with effect from forenoon of 21st of September 2004 on the grounds taken in the writ petition.
2. It is averred that petitioner was appointed as a Forest Guard in the year 1974, promoted to the post of Deputy Forester in the year 1980 and as Forester in the year 1983. He has unblemished service career of over thirty years and no adverse entry in his service records for the entire period. His work was appreciated by the respondent-department, which is disclosed by the letter of commendation as contained in Annexure A, B, C, D, E, & F. His performance is adjudged as Excellent/outstanding/very-very good for the period 1995 to 2002-2003 (Annexure-G).
3. The reputation earned by the petitioner was appreciated by general public and senior officers of the department but at the same time, it generated animosity and some persons managed a news item in Bismark Evening Paper (Annexure-H). The complaint was made before the authorities, came to be found baseless and rejected (Annexure- J, K, L, M, P & Q), but despite that the impugned order came to be passed and it is prayed that it be quashed.
4. Respondents have made evasive reply. It is apt to reproduce para 6-11 of the reply filed by the respondents.
6-11. That the contents of these paras are misdirected and misconceived, in that, the impugned order has been issued in the public interest. Excellent APRs as projected by the petitioner is no ground to question the impugned order as performance at any stage of the service of an officer cannot be taken as final assessment for entire service of such an officer. The petitioner may have performed at any point of time but at the time of consideration of his overall service record and performance by the committee, he as been found fit for premature retirement. It is further submitted that the petitioner has not disclosed the source from where he has managed APRs which he has annexed with the writ petition as APRs of an employee are property of the employer and is always confidential. Silence on this point may render the petitioner liable for action under law. It is further respectfully submitted that even otherwise the contents of these paras in itself speak about the conduct of the petitioner.
5. Petitioner has also filed the rejoinder.The question involved is whether in the given circumstances, the impugned order can be interfered with?
6. The Apex Court and this Court in various cases reported as Baldev Raj Chandra V. Union of India,1980(4) SCC 321, Baldev Raj Chandra V. Union of India, AIR 1981 SC 70, H.C. Gagri V. State of Haryana, AIR 1987 SC 65, Brij Mohan Singh Chopra v. State of Punjab, AIR 1987 SC 948,Baidyanath Mahapatra V. State of Orissa, AIR 1979 SC 2218,Ram Ekbal Sharma V. State of Bihar,1990(3) SCC 504, Union of India V. Dulal Dutt, 1993 (2) SCC 179, S. Ramachandra Raju V. State of Orissa, 1994 Supp (3) SCC 424, State of J&K; V. Jia Lal Gupta, 1994 SLJ 234, Chief General Manager, SBI V. Suresh Chandra Behera, AIR 1995 SCC 1745; K.K.Kandaswamy V. Union of India, AIR 1996 SC 277; Allahabad Bank Officers Association V. Allahabad Bank, 1996 (4) SCC 504;M.S.Bindra V. Union of India, 1998(7) SCC 310; M.S.Bindra V. Union of India, AIR 1998 SC 3058,State of Gujarat V. Suryakant Chunilal Shah, 1999(1) SCC 529, State of Gujarat V. Umedbhai M. Patel, AIR 2001 SC 1109, State of U.P V. Chater Sen, 2005 (9) SCC 592, Pritam Singh V. Union of India, 2005 (9) SCC 748, State of J&K; &b; ors., v. Gh. Rasool Magray, SLP No. 3369/2010 date of decision: 16th of August 2010; Ashok Kumar Jain V. State of J&K; & Ors. LPA Nos. 27J and 28J of 2005 decided on 5-8-2005, Ghulam Rasool Magray v. State of J&K; & ors., 2005(Supp) JKJ 348 [HC]; Mohammad Mehraj-ud-Din Khan V. State of J&K; & Ors., 2006 (3) JKJ 240 (HC), Shah Latief V. State of J&K; & Ors., 2006 (1) JKJ 486 HC (DB), Rajesh Gupta v. State of J&K; & Ors., 2008 (1) JKH 573 [HC] and SWP No. 828 and other bunch of petitions titled Zareena Banoo & connected matters V. State and others, 2008 (3) JKJ HC-106 date of decision 6-6- 2008, Janak Singh vs. State of Jammu and Kashmir reported in 2008 JKJ [HC] (1) 2009 588, SWP No. 1397 titled Parshottam Singh v. State & Ors., decided on 08th of April 2010 and SWP No. 530 of 2005 titled Ram Dass v. State & Ors., date of decision 24th of September 2010 have discussed the principles in order to test whether the order of compulsory retirement is legally tenable or otherwise.
7. It is a beaten law of the land that compulsory retirement is not a punishment at all and cannot be questioned by way of writ petition, except as per guidelines and tests laid down by the judicial pronouncements. Apex Court in case Baikuntha Nath Das & another v. Chief District Medical Officer, AIR 1992 SC 1020 has laid down the following principles:-
32. The following principles emerge from the above discussions:-
i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of mis- behaviour.
ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government 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) mala fide, or (b) 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 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.
v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated 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. Virtually respondents have admitted that the petitioner is having excellent APRs but have not disclosed as to what was the material relied upon by them before passing the impugned order. Respondents were directed to produce the record, failed to do so, however, they have produced the photostat copies of the same.
The concerned department was directed to screen the available record and APRs of the officers against whom the departmental enquiries have been held earlier or complaints against whom are under enquiry. It is apt to reproduce that decision herein:-
The Committee screened the personal files and also perused the APRs of some of the officers of the Forest Department. It was however, decided that the matter shall be further considered on re-opening of offices at Srinagar. The Forest Department shall in the meantime screen all relevant records and APRs of the officers against whom
departmental enquiries have either been held earlier or complaints against whom are under enquiry. The gist of complaints, whether these were enquired into and, if so, with what results shall also be placed by the Department before the Committee in the next meeting. Adverse comments, if any, contained in the Audit report against the officer shall also be indicated in the report.
In terms of this decision, APRs of the officers were to be taken into consideration. Admittedly, respondents have not taken into consideration the APRs and the commendation letters before passing the impugned order.
The photostat copies of the record reveals that the four complaints were made against the petitioner, out of which three charges came to be thrashed out and was recorded in favour of the petitioner as discussed hereinabove, which have not been taken into consideration by the Government while passing the impugned order. The fourth allegation against the petitioner is that he was holding the charge of Dudu Range without any authority, which is not true, as he was holding the charge in terms of the order issued by the competent authority and this fact has not been denied by the respondents in the written statement filed by them. But the record to hold that petitioner was not holding good reputation, despite the fact that all pleas are in his favour, is not forthcoming.
It has been held in case titled Baikuntha Nath Das & another v. Chief District Medical Officer, AIR 1992 SC 1020 (supra) that it is mandatory to consider the entire service record before taking any decision.
Before passing the impugned order, it was mandatory for the respondents to examine the entire service record of the petitioner, more particularly, latest one, which would form foundation for the opinion. I am fortified in my view by a judgment of the apex Court reported as S.Ramchandra Raju v. State of Orissa, 1994 Supp (3) SCC 424, wherein it has been held:
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 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.
Apex Court in case titled Bayanath Mahapatra v. State of Orrisa, AIR 1989 SC 2218 held that if any officer is promoted, previous allegations cannot be made the basis for compulsory retirement.
Keeping in view the tests laid down by the Apex court and judgments of this Court (supra), it can be easily held that relevant material was not considered by the Committee and the impugned order came to be passed on no evidence.
Respondents have failed to indicate as to what were the allegations against the petitioner. If at all, there were some allegations, same cannot be made basis for passing the impugned order for the simple reason that the petitioner admittedly came to be promoted twice in the year 1980 & 1983 as Deputy Forester and Forester respectively. Apex Court in Baldev Raj Chadha v. Union of India & ors., AIR 1981 SC 70, laid down the same law.
The apex Court in cases State of Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109, Baldev Raj Chadha v. Union of India, (1980) 4 SCC 321, H.C.Gargi v. State of Haryana, AIR 1987 SC 65, M.S.Bindra v. Union of India, (1998) 7 SCC 310 and State of U.P. v. Chater Sen (2005) 9 SCC 592, has also laid down the same principle. It is apt to reproduce para 16 of the judgment reported in (1980) 4 SCC 321(supra) hereunder:-
16. The appellant was promoted only in 1961 and was regularly drawing increment for well over a decade, without let or hindrance. What is far more significant is the further fact that the Reviewing Committee and the AG appear to have ignored entries in yearly/half yearly reports in the seventies.
The appellant states categorically:-
A perusal of the extract from the confidential reports would show that there were no adverse remarks in the confidential reports of the appellant for the years 1971-72, 1972-73, 1973-74, 1974-75 and 1975-76, till the date of his retirement from service on August 27, 1975.
A Division Bench of this Court while dealing with a case of an identical nature titled as State of J&K; v. Jia Lal Gupta & Ors., 1994 SLJ 24 has also laid down the same principle.
Apex Court in case reported in Baikuntha Nath Das & another v. Chief District Medical Officer, AIR 1992 SC 1020, Chief General Manager, SBI V. Suresh Chandra Behera, AIR 1995 SCC 1745 and M.S.Bindra V. Union of India, AIR 1998 SC 3058 has held that in order to arrive at a conclusion it is mandatory to consider the entire service record of a government servant. It is apt to reproduce para 6 of the judgment reported in AIR 1995 SC 1745 and para 13 of the judgment reported in AIR 1998 SC 3058 here in:-
6. Learned advocate for the respondent relied on a decision in the case of Baldeve Raj Chandra V. Union of India (1981) 1 SCR 430 AIR 1981 SC 70). In that case, the appellant was compulsorily retired on the basis of his poor performance many years ago. He had been allowed to cross the efficiency bar and there was nothing adverse in his service record for the past five years. The Court said that the order of compulsory retirement could not be sustained as it ignored relevant material. This judgment has no application to the facts of the present case.
13. While viewing 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 material 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 maxima Nemo Firut Repente Turpissiums (no one becomes dishonest all of a sudden) is not unexceptional but still it is salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the 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. The doubt should be of such a nature as would reasonably and consciously be entertain able 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.
The Committee cannot base its report on guess work and Government cannot pass an order on such guess work. Same point came up for consideration before this Court in a case titled Zarina Bano & Ors., SWP No. 828/2005 decided on 6th of June 2008 wherein it has been held by this Court that order of premature retirement cannot be passed on mere guess work and without any material to support the same. This Court also in case titled as Janak Singh v. State of J&K; & Ors., 2009(1) JKJ 588 [HC]; Parshotttam Singh v. State of J&K; & Ors., SWP No. 1397/2006 decided on 08th of April 2010 and Ram Dass v. State of J&K; & Ors., SWP No. 530/2005 date of decision 24th of September 2010 has laid down the same principle.
It is the duty of the Court to lift the veil and record the finding whether the order of compulsory retirement is without justification, arbitrary, outcome of malice and came to be passed on no evidence. As discussed hereinabove, the impugned order has been passed arbitrarily, without application of mind and without discussing the entire service record and on no evidence. Having glance of the above discussions, I am of the considered view that petitioner has carved out a case for interference.
Viewed thus, the impugned order merits to be quashed. Accordingly, same is quashed and the writ petition is allowed. Registrar Judicial to furnish a copy of this judgment to Mr. Gagan Basotra, learned Additional Advocate General. Disposed of along with all CMPs.