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IN THE HIGH COURT OF JAMMU AND KASHMIR
S.S. Kang,M.L. Koul, JJ.
State Of J&K - Appellant
Versus
Jia Lal Gupta & Ors. - Respondent
LPA No. 48/1990
Decided On : 09 March, 1993
SERVICE LAW - COMPULSORY RETIREMENT - PUBLIC INTEREST - JUDICIAL REVIEW - PROMOTION - SENIORITY - SUPERSESSION - REASONS - BURDEN OF PROOF - EVIDENCE - SERVICE RECORD - CONFIDENTIAL RECORDS - CHARACTER ROLLS - ADVERSE REMARKS - VIGILANCE REPORT - PROPERTY STATEMENTS - SCREENING COMMITTEE REPORT - ORDER OF PROMOTION - ORDER OF COMPULSORY RETIREMENT - JUDICIAL SCRUTINY - MALAFIDE - NO EVIDENCE - ARBITRARY - PERVERSE ORDER - PRINCIPLES OF NATURAL JUSTICE - GOVERNMENT SERVANT - QUALIFYING SERVICE - AGE - REVIEW COMMITTEE - JUDICIAL INTERFERENCE - BURDEN OF PROOF - PRESUMPTION - ACRs - GOOD RECORD - SERVICE RULES - CLASSIFICATION, CONTROL AND APPEAL RULES, 1936 - RULE 25(2) - JAMMU AND KASHMIR CIVIL SERVICE REGULATIONS - ARTICLE 226(2).
Fact of the Case:
The petitioner, a Superintending Engineer in the Electrical Department of the State Government, challenged the orders of supersession and premature retirement. The petitioner had been superseded by his juniors for promotion to the post of Chief Engineer. He was also compulsorily retired from service under Article 226(2) of the Jammu and Kashmir Civil Service Regulations.
Finding of the Court:
The court held that the order of promotion was not sustainable in law as it did not spell out the reasons for superseding the senior officer. The court also held that the order of compulsory retirement was not valid as the Government had not formed an opinion that it was in public interest to retire the petitioner. The court further held that the Government had not considered the petitioner's entire service record before passing the order of compulsory retirement.
Issues: 1. Whether the order of promotion was sustainable in law? 2. Whether the order of compulsory retirement was valid?
Ratio Decidendi: 1. The order of promotion was not sustainable in law as it did not spell out the reasons for superseding the senior officer. The court relied on the judgment of a full bench of this court in Lal Chand Pargal Vs. Director CD and MES and others (AIR 1971 J&K 108), which held that under Rule 25(2) Classification, Control and Appeal Rules, 1936 appointing authority must give reasons for making promotion when senior employee is superseded if the authority does not give reasons contemporaneous on anterior SIC record on basis of which it applies its mind promotion must contain grounds of promotion. 2. The order of compulsory retirement was not valid as the Government had not formed an opinion that it was in public interest to retire the petitioner. The court relied on the judgment of the Supreme Court in Baikunth Nath Dass and anr. Vs. District Medical Officer and others 1992 (1) Supreme View and Law Reporter 63, which held that an order of compulsory retirement is not a punishment. It implies neither a stigma nor any suggestion of misbehaviour. 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 compulsory. The order is passed on the subjective satisfaction of the Government. 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 the Court would not examine the matter as an appellate court, they may interfere, if they are satisfied that the order is passed (a) malafide or (b) that it is based on no evidence or (e) 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.
Final Decision: The court dismissed the appeal filed by the State Government and upheld the judgment of the learned Single Judge.
2. A brief reference of the Skeletal facts is a prefactory necessity.
3. Jia Lal Gupta, the respondent herein was appointed as an Assistant Engineer in the Electrical Department of the State Government of on June 25, 1956. A Seniority list was issued by the State Government in the year 1972 in which the ranking of Jia Lal Gupta was not correctly shown. He filed a writ petition. It was allowed and seniority list was quashed and the Government was directed to prepare a fresh seniority list in accordance with law. In pursuance to the Govt. directions a new seniority list was prepared depicting the seniority of the respondents herein correctly. In 1983, the respondent No. 1, herein came to know that efforts were on to change the seniority list to his determent in order to defeat his claim to promotion to the post of Chief Engineer. It may be mentioned that at that time petitioner, (respondent No. 1; herein) had been working as a Superintending Engineering for about 8/9 years. In order to thwart these efforts, the petitioner filed another writ petition on May 19,1983. On a prayer made by the petitioner this court issued directions to the Govt; that in case the promotion to the post of Chief Engineer (ELECTRICAL WING) was to be made, then the same be made on the basis of the final seniority list of year 1979 sanctioned by the Government or the post be left unfilled till further orders.
4. In complete disregard of directions of the Court, the State Government vide order No. 113 PDD of 1985 dated 18th April, 1985 promoted three juniors of the petitioner as Chief Engineers, ignoring his claim. The petitioner made a number of representations against the illegal orders of the Government. He met the then Deputy Chief Minister of the state who promised that injustice done to him shall be redressed and the petitioner (respondent No. 1) shall be given his due. It is pertinent to mention at this stage that before these orders promoting the petitioner™s juniors were passed, the Govt. had tried to ease him out by issuing Government order No. 228-PWD of 1984 dated 20th of October, 1984 deputing him to the National Hydro Electric Power Corporation, New Delhi for being posted as Chief Engineer. This was just a link in the chain for ousting the petitioner and to accommodate the favourities of the power that be. This order somehow did not mature but the three juniors of the petitioner were promoted as Chief Engineers as mentioned earlier. The petitioner was asked to receive an order dated 11th of April, 1986 of the Government compulsorily retiring him from services under Article 226(2) of the Jammu and Kashmir Civil Service Regulations hereinafter referred to as ˜Regulations.™
5. It is contended that there was nothing to justify the passing of this order. During his long tenure of service nobody had doubted the petitioner™s integrity, technical competence, administrative ability or devotion to duty. He had never been conveyed any adverse remarks during his entire service career. There had never been any complaint of corruption or inefficiency during whole of his career. For his extreme devotion to duty and gallantry displayed in execution of official work, the petitioner (respondent No. 1; herein) was awarded Ashok Chakra by the President of India. Aggrieved by the impugned order, the respondent No. 1 herein filed writ petition challenging the orders of the supersession and premature retirement.
6. Notices were issued to the state and other respondents. They put in an appearance but did not choose to file any objections despite grant of number of opportunities. Thereafter, the writ petition was admitted in the presence of the learned counsel of the respondents. They were granted three opportunities
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