Jammu, Sept 30: In LPA No.207/2018 titled State of Jammu & Kashmir, Through Commissioner/Secretary to Govt., General Administration Department & ors Vs. 1. Chamel Singh & G S Chib, Former Director, FCS & CA, Jammu after hearing a DB of HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE ordered as:-
JUDGMENT Tashi Rabstan – J 1. This Letters Patent Appeal is directed against the judgment and order dated 02.07.2018 delivered by the learned Single Bench in SWP No.2666/2016 titled ‘Chamel Singh v. State of J&K and others’, whereby the learned Single Judge, while allowing the writ petition, quashed the impugned order, bearing No.1269-GAD of 2016 dated 21.11.2016 compulsory retiring the writ petitioner from service in public interest with effect from 21.11.2016 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, and perused the appeal file.
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.
He quoted various judgement of Apex Court, which openly clarief that "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".
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 duty of the government to provide documents for inspection of court.
Supreme Court has also 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 clearly reveals that the State Government has run roughshod over the writ petitioner by compulsory retiring the writ petitioner from service as the decision seems to be based on no material, in as much as the relevant material including the APRs and other service record which was required to be considered by the Committee for considering the case of the petitioner for compulsory retirement has either not been placed before the Committee or has not been considered which coming to the conclusion that the petitioner is generally known to have bad reputation and his continuance may not be in the larger interest of the public.
We are of the view that in absence of any adverse entry in the APRs of the writ petitioner, 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.
It is abundantly clear that the decision to compulsorily retire the petitioner was taken only in view of the registration of FIR No. 75/1999 by the Vigilance Organization, Jammu and FIR No. 22/2009 registered at Crime Branch, Jammu and apart from the aforesaid two FIRs no other record was either placed before the Committee or the Competent Authority.
FIR No.75/1999, as stated above, has ended in acquittal of the petitioner and other is pending trial & the mere lodging of FIRs cannot be the made 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.
Therefore, the in the above conspectus of matter, in our view compulsory retirement cannot be sustained merely on allegations and on the asking of the cross section of the people. 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.
12. 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, if any, upholding the judgment and order of learned Single Judge.
13. 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 to writ petitioner, are free to go ahead with 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.
14. With the above, the appeal is dismissed.
|