Compulsory retirement of government employees must be based on substantial evidence and a thorough examination of service records; otherwise, it is deemed arbitrary.

JUDGMENT :

Tashi Rabstan, J.

1. This Letters Patent Appeal is directed against the judgment and order dated 26.12.2017 delivered by the learned Single Bench in SWP No. 723/2005, whereby the learned Single Judge, while allowing the writ petition, quashed the impugned order, bearing No. 480-GAD of 2005, dated 26.04.2005, compulsory retiring the writ petitioner from service in public interest with effect from 26.04.2005, 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. In Tara Singh & Ors. v. State of Rajasthan & Ors. , (1975) 4 SCC 86 , their Lordships of the Supreme Court summed up the concept of premature retirement in following words:-

“26. 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. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any charge of inefficiency or incompetency, the Government passes orders of such compulsory retirement. The government servant in such a case does not lose the benefits which a government servant has already earned. These orders of compulsory retirement are made in public interest. This is the safety valve of making such orders so that no arbitrariness or bad faith creeps in.”

4. 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. In the matter of State of Uttar Pradesh v. Chandra Mohan Nigam & Ors. , AIR 1977 SC 2411 , the Supreme Court has ruled out in paragraph 36 as under:-

“36. ... when an order of compulsory retirement is challenged as arbitrary or mala fide by making clear and specific allegations, it will then be certainly necessary for the Government to produce all the necessary materials to rebut such pleas to satisfy the court by voluntarily producing such documents as will be a complete answer to the plea. It will be for the Government also to decide whether at that stage privilege should be claimed with regard to any particular document. Ordinarily, the service record of a Government Servant in a proceeding of this nature cannot be said to be privileged document which should be shut out from inspection.”

5. Not only the employer is obliged to produce the materials, but the onus of establishing that the order was made in public interest is also on the employer. In Baldev Raj Chadha v. Union of India & Ors. , (1980) 4 SCC 321 ,