In the High Court of Jammu and Kashmir at Srinagar
(Before M.K. Hanjura, J.)
Mohammad Shafi Shah
Comm. Sectt. PWD & Ors.
Case No: SWP 1379/2015
Decided on March 1, 2018
Citation: 2018 SCC OnLine J&K 138
The Order of the Court was delivered by
M.K. Hanjura, J.:— By the medium of this writ petition, the petitioner has challenged the defensibility and the legality of the order bearing No. 36 of 2015 dated 30th June, 2015, passed by the Managing Director, J&K PCC, Ltd., Srinagar, directing the retirement of the petitioner from service with effect from the forenoon of 01.07.2015 in terms of Article 226(2) of the Jammu and Kashmir Civil Service Regulations (CSR).
2. The facts, as are necessary for the disposal of this writ petition need to be enumerated and recapitulated. The petitioner initially worked as a daily rated worker in the respondent department. He was regularized as Junior Assistant in the year 1992. Thereafter, he qualified the AMIE examination and obtained a diploma certificate in Civil Engineering. It is contended in the writ petition that the petitioner made representation for his promotion before the respondents which remained under process for about 07 years and, thereafter, in the year 2000, he was promoted as Assistant Manager. In the meanwhile, on the basis of the complaints, challenging the genuineness of the degree/s of the petitioner, the matter was investigated into by a High Empowered Committee, which came to the conclusion that the degree is genuine. However, the complaints were also filed before the Vigilance Organization Kashmir (VOK), who registered an F.I.R bearing No. 07/2011 u/s 420, 467, 468 RPC against the petitioner, as a consequence of which, he was detained and sent to the custody for a period of more than 48 hours. The respondent department placed the petitioner under suspension and the same was never reviewed, compelling the petitioner to approach the Court in terms of SWP No. 270/2012, in which the respondents were directed to review the suspension of the petitioner but of no avail. The petitioner filed a contempt petition seeking compliance of the said order. The petitioner has further stated in the writ petition that, in the meantime, on 10-03-2015, another F.I.R bearing No. 18/2015 was registered by the VOK, alleging that the petitioner has assets, licit to the known sources of his income. Explaining the accusation, the petitioner submitted that the property shown to be belonging to him, does not actually belong to him. The petitioner was granted pre-arrest bail by the Court on 19-03-2015. The petitioner has further stated that the investigation initiated to probe the baseless allegations against him is not being completed and no progress has been achieved in it and to add to the misery inflicted upon the petitioner, the respondents have come up with the order dated 30-06-2015, impugned herein, compulsorily retiring the petitioner w.e.f. 01-07-2015. The petitioner has proceeded to state that the order impugned is without jurisdiction, arbitrary and has been passed on mala fide reasons. At the end the petitioner has sought the indulgence of this Court in quashing the impugned order with the direction to the respondents to allow him to continue in service till such time that he reaches the age of superannuation.
3. Counter affidavit has been filed by the respondents in which it has been pleaded that the Government, for providing clean and effective administration to the public, conducts a periodic review of all its officers with the intention of appreciating and encouraging the honest and efficient Government servants and provide clean and effective administration to the people and maintain high standards of efficiency besides weeding out the dead wood in the shape of inefficient and corrupt officers/officials. While doing so, recourse to Regulation 226(2) and (3) of the Civil Service Regulations (CSR) is being taken. The order of compulsory retirement of the petitioner is neither punitive nor stigmatic but it is based on the subjective satisfaction of the employer. It is further stated that the scope of judicial review in such matters is very limited. The petitioner is involved in F.I.R No. 07/2011, registered by the VOK u/s 420, 467, 468 RPC for obtaining undue gains on the basis of fake & forged academic and technical qualification certificates. Another F.I.R bearing No. 18/2015 is also registered against the petitioner for having assets disproportionate to his known sources of income. The order of premature retirement of the petitioner is based on the sacrosanct object of weeding out the dead wood in order to maintain a high standard of efficiency and initiative in the State services, and therefore, the writ petition deserves to be dismissed.
4. Learned counsel for the petitioner has contended that the order of compulsory retirement of the petitioner is a result of the non application of mind. It is submitted that the First Information Reports cannot form the sole basis and the bedrock of passing an order of compulsory retirement. Learned counsel for the petitioner has further argued that the genesis of the opinion, dubbing the petitioner to be an inefficient employee, is based on the fact that two First Information Reports have been registered against him. It is further submitted that there is no material on record except for the registration of the First Information Reports even to, prima facie, indicate that the efficiency or integrity of the petitioner is doubtful.
5. Per contra, learned AAG, representing the respondents, has argued that it was under the shade and cover of two F.I.Rs having been registered against the petitioner, and he having been known to be a person having bad reputation, that he was shown the door. The corporation, in which the petitioner served, in an attempt to cleave to the principles of chopping the dead wood in the shape of corrupt and inefficient servants from service, passed the order, impugned herein. The learned AAG has, however, stated that the “Annual Performance Reports” (APR) of the petitioner were not considered in the mater of passing the order impugned for the reason that these were not available.
6. Heard and considered.
7. 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.”
8. It will not be impertinent to state that in the exercise of the power of compulsory retirement vested in the Government (that is the Corporation in this case), 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 30thJune, 1999 and these have to be read in conjunction with the Article 226 (2) of the CSR. These are as under:
“Government Instructions: Levels at which screening should be conducted for Non-Gazetted Employees.
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(i) 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.
(ii) 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.”
9. 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 25th October, 2010. The Instructions issued by the Government in terms of SRO 246 dated 30th 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 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 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 made in the Paragraph NOs. 8 and 18 of the case titled “Swaran Singh Chand v. Punjab State Electricity Board”, 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. v. Rajnesh Kumar Jamidar, (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. It will also be relevant to refer to the observations made by the Supreme Court in the case titled “M.S. Bindra v. Union of India; (1998) 7 SCC 310”, Paragraph No. 13 of which is reproduced below, verbatim:
“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 ‘nemo firutrepenteturpissimus’ (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 of 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”.
12. In the case of “State of Gujrat v. Umedbhai M. Patel, (2001) 3 SCC 314”, the Supreme Court, at Paragraph No. 11 of the judgment, excogitated 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 service 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.”
13. 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) mala fide; 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 colourable 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 decision.
14. Taking an overall view of the matter, the bottom line of the order of compulsory retirement of the petitioner is the registration of FIR(s) against him. 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 here in this petition? The answer to this question is provided at Paragraph no. 27 of the judgment rendered 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 herein below, 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.”
15. The view taken by the Court in the preceding paragraphs is further fortified by a series of decisions of this Court rendered in various appeals involving similar questions of law and the facts as are involved here in this appeal. A cue can be had in this behalf from the law laid down in the case of State of Jammu and Kashmir v. Abdul Majid Wani, bearing LPASW No. 95/2017, the relevant extracts of which are detailed below:—
“21. That being so, the contention of learned Advocate General that the Government is competent to formulate an opinion with regard to compulsory retirement of a public servant solely on the basis of registration of an FIR or a criminal case, under certain set of facts and circumstances like apprehending the public servant demanding and accepting bribe red handed in a trap laid for the purpose, cannot be accepted.
22. The other contention of learned Advocate General that apart from the criminal case registered against the respondent under the Jammu and Kashmir Prevention of Corruption Act, the Screening Committee also took into consideration that the respondent did not enjoy a good reputation due to his consistent conduct over a period of time, is equally devoid of any merit. First of all, as admitted by the learned Advocate General that there was no material before the Committee to come to such a satisfaction and secondly, even if it is accepted, as contended by the learned Advocate General, that the assessment of the Committee was on the basis of spoken reputation, in that eventuality also, it was mandatory for the Committee to have spelt out the same in the minutes of meeting conducted for the purpose.
23. In response to the query put by this Court, the learned Advocate General fairly conceded that there is no such observation or finding recorded by the Committee nor is there any communication of any controlling officers of the respondent speaking about the reputation of the respondent. In the absence of such material on record and even the observations about the conduct of the respondent, it can safely be held that such observations made by the Committee were only as a matter of routine and just to lend justification to the otherwise unsustainable order of compulsory retirement of the respondent.
24. Corruption, no doubt, is a menace, eating into the vitals of our society. An employee, who is found to have indulged in such practice, has to be dealt with iron hands. Such a public servant, if found guilty, has to be punished and shown the door but not compulsorily retired allowing him to get away with all the retiral benefits. The compulsory retirement provision has been enacted to achieve a different purpose, i.e., to weed out inefficient and corrupt public servants whose continuance in service is prejudicial to public interest. This, however, has to be adjudicated upon on the basis of the work and conduct of the employee during his whole service career though attaching more importance to his work and conduct during last some years preceding his compulsory retirement. This power based on the pleasure doctrine of the sovereign should not be used for collateral purpose. The Supreme Court as well as different High Courts of the country including this Court have laid down broad principles from time to time which were summarized by the Supreme Court in the case of Umedbhai M. Patel’s case (supra).”
16. Applying the ratio of 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 is neither warranted nor justified. 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 criminal cases. If the contention, as propounded by the respondents, that the involvement of the petitioner came into limelight in a case or cases 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 will be convicted for the offence(s) levelled against him, as a corollary to which, he will lose his 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.
17. 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, (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 of 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”.
18. Looking at the instant case from the above perspective, an important facet which cannot be lost sight of, is that a complete go bye has been given to the Regulation 226(2) of the J&K CSR read with the instructions buttressed to it in considering the compulsory retirement of the petitioner. 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 or cases 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 an FIR 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 J&K CSR read with the guidelines supra and the judicial pronouncements holding the ground. Taking such a view that an FIR 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 has to be assessed and evaluated. These cannot be skipped and shelved in formulating such an opinion. 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 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 or source to justify so. This is a fundamental flaw in the order issued against the petitioner, whereby he has been shown the door.
19. What cannot be lost sight of in this petition is a report of the investigation regarding the genuineness of the service record and qualification certificates, both technical as well as academic, of the petitioner. This report is attached as annexure (D) to the petition and has been prepared by a Committee comprising of Technical Officer, Jammu & Kashmir Project Construction Corporation Ltd., (JKPCC, Ltd.), Srinagar, Accounts Officer, JKPCC, Ltd., Srinagar, and Administrative Officer, JKPCC, Ltd., Srinagar. The relevant excerpts of the report, that have a bearing on the matter in controversy, require to be delineated herein below:
“……………v) In the meanwhtie the appointee approached the Hon’ble Court of J&K at Srinagar and a compromise was arranged by the Managing Director JKPCC Srinagar under order NO. 425-55 Dt: 22.5.2001 where in 8 increments were released in the favour of in-cumbent on compassionate grounds and entries made on the Service Book. The in-cumbent withdraw the case from Hon’ble High Court vide order No. 1462 Dtd: 24.5.2001. vi) From the records available it has been observed that Mr. Mohd Shaft Shah Asstt. Manager has sought permission from Managing Director JKPCC Ltd. Jammu, to undergo degree AMIE in Civil Engineering through correspondence on his own expenses in the Institute of Engineering, India Ltd, Calcutta, while as completion of degree in-cumbent approached Works Minister, J&K/Chairman, JKPCC for promotion as Manager Civil. The Hon’ble Chairman has issued approval in favour of in-cumbent vide Chairman JKPCC order No. PS/M/4152-53 dated 20-07-2002.
The report based on the information of available records is being submitted to the Managing Director, JKPCC, Ltd., Jammu, for further necessary action in regard to establishment of the genuineness of the certificates produced by the in-cumbent.
The above mentioned facts have been verified from the records and the genuine and favorable to the incumbent. The service records be rectified accordingly.”
20. The aforesaid report has not been considered by the Committee to find out whether or not there is any substance in the allegations leveled against the petitioner in the F.I.Rs registered against him, which states that the degrees obtained by the petitioner are fake and forged.
21. The facts in the present case are eloquent. The petitioner has appended with the writ petition ‘Annual Performance Reports’ wherein and whereunder his achievements, have been judged/evaluated from time to time by his superiors. For the periods 2005/06, 2006/07 & 2007, 08, the petitioner has been rated as an official whose work has been Excellent/Good/satisfactory. Annexure (C) attached to the petition is a communication of the Deputy General Manager, JKPCC Ltd., Kashmir, addressed to the Deputy General Manager, Administration, JKPCC Ltd., Jammu, which reveals that the APRs of the petitioner, as these relate to the years 2008-09, 2009-10 and 2010-11, along with the Integrity Certificate, have been forwarded to the addressee for necessary action at his end.
22. The aforementioned Annual Performance Reports have been shelved. These have escaped the scrutiny of the Committee. It appears to have been done with an ultimate aim of showing the petitioner the exit and, had these reports been considered, the conclusion would have been otherwise. The enunciation of law, signifies that registration of FIR or pendency of criminal case(s), cannot form the edifice for retirement of an employee compulsorily when his APR entries are good and integrity is portrayed in the APRs as satisfactory not to mention as excellent. Reference in this regard may be made to S. Ramachandra Raju v. State of Orissa, 1994 Supp (3) SCC 424 : AIR 1995 SC 111; Jugal Chandra Saikia v. State of Assam, (2003) 4 SCC 59; State of J&K v. Janak Singh, 2010 (4) JKJ 89 [HC]; Rajendra Prasad Verma v. Lieutenant Governor (NCT of Delhi), (2011) 10 SCC 1; State of J&K v. Satish Chander Khajuria vide order dated 07.10.2016 passed in LPASW No. 122/2016 in which the SLP has been dismissed by the Supreme Court.
23. The argument of the learned counsel for the respondent 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 canon 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 assertion is devoid of merit and does not have the legs to stand upon.
24. Viewed in the context of all that has been said and done above, merely that cases have been registered against the petitioner by the Vigilance Organization (VOK) cannot form the basis of retiring him compulsorily, as a corollary to which the impugned order bearing No. 36/2015 dated 30-06-2015, issued by the respondent No. 3 – the Managing Director, J&K Projects Construction Corporation Ltd. Srinagar, is, quashed. Respondents are further directed to reinstate the petitioner and allow him to work on the post, which he was holding at the time of passing of the order of his compulsory retirement with all consequential service benefits.
25. Writ petition is, accordingly, disposed of along with all connected MPs & Contempt 229/2016. SWP 1005/2017 to be segregated and listed separately