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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohd. Magrey, J.
Muhammad Yousuf Bhat – Appellant
Vs.
State of J&K & Ors. – Respondents
SWP No. 1606 of 2015
Decided On : 11-11-2016
PREMATURE RETIREMENT - GOVERNMENT SERVANT - ARTICLE 226(2) OF THE JAMMU AND KASHMIR CIVIL SERVICE REGULATIONS - MALA-FIDE - PUBLIC INTEREST - EFFICIENCY AND INTEGRITY - ADVERSE ENTRIES IN THE ACRs - FIRs - STAY ORDER - SANCTION FOR PROSECUTION - CRIMINAL PROCEEDINGS - COMPULSORY RETIREMENT - DEADWOOD. The petitioner, a Government servant, was prematurely retired from service by the Government in exercise of its powers under Article 226(2) of the Jammu and Kashmir Civil Service Regulations. The petitioner challenged the impugned order on the ground that it was mala-fide, arbitrary, and violative of the principles of natural justice. The petitioner also contended that he was not given an opportunity to defend himself against the allegations made against him. The Court held that the impugned order was mala-fide and arbitrary. The Court found that the Committee, which had recommended the petitioner's premature retirement, had not considered the entire record of the petitioner's service, including his ACRs and the commendation certificates awarded to him. The Court also found that there were no adverse entries in the petitioner's ACRs and that the Committee had made some incorrect statements in its recommendations concerning the availability of the ACRs. The Court further held that the petitioner was not given an opportunity to defend himself against the allegations made against him. The Court found that the petitioner was not given a copy of the Committee's recommendations and that he was not given an opportunity to make representations to the Government before the impugned order was passed. The Court also held that the impugned order was violative of the principles of natural justice. The Court found that the petitioner was not given a reasonable opportunity to be heard before the impugned order was passed. The Court also found that the petitioner was not given a copy of the Committee's recommendations and that he was not given an opportunity to make representations to the Government before the impugned order was passed. The Court allowed the petition and quashed the impugned order. The Court directed the respondents to treat the petitioner to have continued in service till the date he attained the actual age of superannuation. The Court also directed the respondents to pay the petitioner all the dues and service benefits for the period he had remained out of service pursuant to the impugned order till the date he actually attained his age of superannuation.
Fact of the Case:
The petitioner, a Government servant, was prematurely retired from service by the Government in exercise of its powers under Article 226(2) of the Jammu and Kashmir Civil Service Regulations. The petitioner challenged the impugned order on the ground that it was mala-fide, arbitrary, and violative of the principles of natural justice. The petitioner also contended that he was not given an opportunity to defend himself against the allegations made against him.
Finding of the Court:
The Court held that the impugned order was mala-fide and arbitrary. The Court found that the Committee, which had recommended the petitioner's premature retirement, had not considered the entire record of the petitioner's service, including his ACRs and the commendation certificates awarded to him. The Court also found that there were no adverse entries in the petitioner's ACRs and that the Committee had made some incorrect statements in its recommendations concerning the availability of the ACRs. The Court further held that the petitioner was not given an opportunity to defend himself against the allegations made against him. The Court found that the petitioner was not given a copy of the Committee's recommendations and that he was not given an opportunity to make representations to the Government before the impugned order was passed. The Court also held that the impugned order was violative of the principles of natural justice. The Court found that the petitioner was not given a reasonable opportunity to be heard before the impugned order was passed. The Court also found that the petitioner was not given a copy of the Committee's recommendations and that he was not given an opportunity to make representations to the Government before the impugned order was passed.
Issues: Whether the impugned order was mala-fide and arbitrary. Whether the petitioner was given an opportunity to defend himself against the allegations made against him. Whether the impugned order was violative of the principles of natural justice.
Ratio Decidendi: The Court held that the impugned order was mala-fide and arbitrary. The Court found that the Committee, which had recommended the petitioner's premature retirement, had not considered the entire record of the petitioner's service, including his ACRs and the commendation certificates awarded to him. The Court also found that there were no adverse entries in the petitioner's ACRs and that the Committee had made some incorrect statements in its recommendations concerning the availability of the ACRs. The Court further held that the petitioner was not given an opportunity to defend himself against the allegations made against him. The Court found that the petitioner was not given a copy of the Committee's recommendations and that he was not given an opportunity to make representations to the Government before the impugned order was passed. The Court also held that the impugned order was violative of the principles of natural justice. The Court found that the petitioner was not given a reasonable opportunity to be heard before the impugned order was passed. The Court also found that the petitioner was not given a copy of the Committee's recommendations and that he was not given an opportunity to make representations to the Government before the impugned order was passed.
Final Decision: The Court allowed the petition and quashed the impugned order. The Court directed the respondents to treat the petitioner to have continued in service till the date he attained the actual age of superannuation. The Court also directed the respondents to pay the petitioner all the dues and service benefits for the period he had remained out of service pursuant to the impugned order till the date he actually attained his age of superannuation.
Ali Mohd. Magrey, J.
1. This petition calls in question Government order No. 866-GAD of 2015 dated 30.06.2015 issued by the Government in the General Administration Department, in exercise of the powers conferred by Article 226(2) of the Jammu and Kashmir Civil Service Regulations, whereby the petitioner was given notice that he, having already rendered 22 years of service, shall retire from service with effect from forenoon of 01.07.2015, allowing him three months of pay and allowances in lieu of such notice.
2. The petitioner is stated to have been initially appointed in 1990 on a Gazetted Post in the Social Welfare Department. He was inducted into Kashmir Administrative Service (KAS) in the year 2003. He is stated to have remained posted in varied administrative capacities, such as:
(i) District Social Welfare Officer;
(ii) Programme Officer, ICDS;
(iii) Deputy Director, Social Welfare, Kashmir;
(iv) Assistant Commissioner, Development; Anantnag;
(v) Deputy Secretary, Housing and Urban Development Department;
(vi) Chief Executive Officer, Kokernag Development Authority;
(vii) Chief Executive Officer, Sonamarg Development Authority;
(viii) Additional Deputy Commissioner, Anantnag;
(ix) Chief Executive Officer, Pahalgam Development Authority;
(x) Secretary, State Commission for Women."
3. While the petitioner was posted as Secretary, State Commission for Women, the Government issued the impugned order, which is extracted below:
"Whereas the Government is of opinion that it is in the public interest to do so.
Now, therefore, in exercise of the powers conferred by article 226(2) of the Jammu and Kashmir Civil Services Regulations the Government hereby gives notice to Mohammad Yousuf Bhat, KAS, Secretary, State Commission for Women, that he having already rendered 22 years of service, shall retire from service w.e.f. forenoon of 01/07/2015.
He is allowed three months of pay and allowances in lieu of three months notice.
By order of the Government of Jammu and Kashmir."
4. The orders of premature retirement, as in the instant case, are not supposed to be speaking. However, law, as laid down by the Supreme Court from time to time, recognizes certain grounds on which a Government servant can be prematurely retired from service. These include that the government servant is inefficient or corrupt or is reputed to be so. Obviously, either of these qualities are antithesis to the concept of public services.
5. The petitioner herein, in an attempt to establish that during his service tenure he was susceptible to neither of the aforesaid discrediting and disqualifying qualities, has made detailed averments in his writ petition as to the discharge of his functions in varied capacities and the commendation certificates and/or appreciative Annual Performance Reports earned by him. On the strength of such commendation certificates, APRs/ACRs and generally his performances as a public servant in varied capacities, he has challenged the legality and constitutionality of the impugned order, approaching it by all possible facets to demonstrate that he neither has been inefficient nor corrupt. Broadly speaking, the petitioner has pleaded that the impugned order is arbitrary, having emanated from non-application of mind and based on extraneous considerations, therefore, mala-fide. Concomitant therewith, the petitioner has sought to repulse the notion that he had anything to do with the allegations culminating into registration of the FIRs, reference to which would be made later in this judgment.
6. The respondents have filed their reply affidavit. The reply so filed by them is divided into three sections viz., factual matrix, preliminary objections and para-wise reply. Since the reasons for prematurely retiring the petitioner have been explicatively mentioned in the factual matrix part of the reply affidavit, I think it appropriate to refer to the averments made therein.
7. The respondents have stated that in order to make the State administration effective,
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