LPA No.236/2019 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 06.02.2025 Pronounced on 13.02.2025 LPA No.236/2019 1. State of J&K through Commissioner/Secretary to Govt. General Administration Department, Civil Secretariat, J&K, Srinagar/Jammu. 2. Commissioner/Secretary to Govt. Forest Department, Civil Secretariat, Srinagar/ Jammu. 3. Principal Chief Conservator of Forest, J&K, Srinagar/Jammu. ...APPELLANT(S) Through: - Mr. Ilyas Laway, GA. Vs. Noor Mohammad Bhat, aged: 50 years S/o Wali Mohammad Bhat R/o Wahipora, Tangmarg. …RESPONDENT(S) Through:- Mr. Salih Pirzada, Advocate, with Mr. Bhat Shafi, Advocate. CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE JUDGMENT Per Sanjeev Kumar ‘J’ 1) This intra-court appeal by the erstwhile State of Jammu and Kashmir (now Union Territory of Jammu and Kashmir) is directed against the order and judgment dated 11.10.2018 passed by the learned Single Judge of this Court [“the Writ Court”], in SWP No.277/2012 titled “Noor Mohammad Bhat vs. State of J&K & Ors” whereby the Writ LPA No.236/2019 Court has allowed the petition of the respondent and quashed the Government Order No.186-GAD of 2012 dated 13th February, 2012 retiring the respondent prematurely with effect from 13th February, 2012. 2) The impugned order is assailed by the appellants on numerous grounds. However, before we advert to the grounds of challenge urged by Mr. Ilyas Laway, learned GA, in support of the appeal, we deem it appropriate to notice material facts. 3) The respondent entered the services of the Government as Forester on 11th September, 1989, on regular basis. After undergoing KFC training in the year 1990-1991, he was promoted as Range Officer Grade-I in the year 1995. On the basis of his merit and seniority, the respondent came to be posted as Incharge Assistant Conservator of Forests in the year 2007 vide Government Order No. 344-FST of 2007 dated 27th June, 2007. He was later on posted as Incharge Deputy Director, Forest Protection Force, Budgam. 4) In the year 2008, when the respondent was performing his duties as Deputy Director, Forest Protection Force, Hardupanzoo, Budgam, he was trapped on a complaint by the sleuths of Vigilance Organization and was LPA No.236/2019 found demanding and accepting a bribe of Rs.10,000/ for reinstating a subordinate employee who had been placed under suspension by the Director, Forest Protection Force, J&K. On this basis, FIR No.30/2008 was registered in the Police Staton, Vigilance Organization, Kashmir. During the course of investigating, the money was recovered from the respondent and he was found involved in corrupt practices. Investigation culminated into presentation of challan before the court of law. The case is stated to be still pending and has not yet been concluded. 5) In the year 2011, the Government with a view to remove deadwood from the Government machinery, constituted a service committee vide Government Order No. 32-GAD (Vigilance) of 2011 dated 16th May, 2011, which was headed by the Chief Secretary of the then State of Jammu and Kashmir. The Committee was entrusted the job of scrutinizing the service record and activities of various officers/officials including the respondent and recommend appropriate cases for premature retirement in terms of Article 226 (2) and 226 (3) of the J&K Civil Services Regulations, 1956. The Committee undertook the exercise in which it claims to have scrutinized the record and other relevant factors touching upon the service career of the respondent. The Committee was of the opinion that the LPA No.236/2019 further retention of the respondent in service was not in public interest and, therefore, recommended his premature retirement from the Government service. 6) Acting upon the aforesaid report, the Government passed the order of premature retirement of the respondent in public interest, invoking its powers vested under Article 226(2) of the J&K CSR and the respondent was retired with effect from 13th February, 2012, with three months’ pay and allowances in lieu of three months’ notice provided under the regulation. 7) It is this order of the Government dated 13th February, 2012, which was called in question by the petitioner (respondent herein) in SWP No. 277/2012. The impugned order was challenged by the respondent on the ground that the same was arbitrary and without proper application of mind by the Government. It was argued by the respondent before the Writ Court that for the solitary incident, FIR No. 30/2008 was registered and the case is pending trial before the competent court of law. It was thus submitted that since the law of the land has taken its course, as such, there was no occasion for the Government to declare the respondent dead wood and chop it off prematurely. LPA No.236/2019 8) The writ petition was resisted by the appellants (respondents therein) by filing counter affidavit. In the counter affidavit, it was the stand taken by the Government that order of premature retirement of the respondent and few others was necessitated to provide clean and affective administration to the people of the State. It was contended that the respondent was not enjoying good reputation and was caught red handed by the Vigilance Organization, Kashmir, accepting bribe from a subordinate employee in lieu of his reinstatement in service from suspension. It was thus submitted that the order of premature retirement of the respondent was passed after his entire service record and activities were scrutinized by a high-power Committee headed by the Chief Secretary. 9) The Writ Court having considered the rival contentions and the material on record, came to the conclusion that the impugned order of premature retirement of the respondent was not in consonance with law, in that, the entire service record had not been scrutinized by the Committee nor the satisfaction of the Government was based on any relevant material. The Writ Court accepted the writ petition of the respondent and quashed the order impugned in the writ petition, vide its judgment impugned before us. LPA No.236/2019 10) Mr. Ilyas Nazir Laway, learned counsel appearing for the appellants has reiterated the arguments which have been duly taken of and considered by the Writ Court. 11) Having heard the learned counsel for the parties and perused the material on record, the premature retirement of a Government employee serving in the then State of Jammu and Kashmir (now Union Territory of Jammu and Kashmir) is governed by Article 226(2) of the J&K Civil Services Regulations, 1956. Article 226 (2), which is reproduced in the impugned judgment, is once again set out below for ready reference: “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 periods 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. Explanation :—A Government servant who is retired immediately after allowing him pay and allowances in lieu of notice will be entitled to pension from the date of such retirement and the pension shall not be deferred till after the expiry of the three months for which he is paid pay and allowances.” 12) From reading of Article 226(2), it is evident that the term “premature retirement” has not been defined or even used anywhere in the Civil Service Regulations. However, the ordinary meaning of the premature retirement as could LPA No.236/2019 be culled out from Article 226(2) CSR, would mean the retirement of a Government employee from service before attaining the actual age of superannuation prescribed by the rules. The object of resorting to premature retirement of an employee from service, which, of course, is a policy decision of the Government, is to provide clean administration, improving efficiency and strengthening machinery at all levels, and to weed out dead wood and all those employees whose integrity is doubtful. 13) It is always expected by the Government that a Government employee at whatever level, should perform his duties with exemplary competence, efficiency and effectiveness. The resort to weeding out the deadwood from the Government machinery necessarily contributes towards the maintenance of high efficiency in administration, which obviously is desirable in public interest. Although Article 226 (2) of J&K CSR does not in so many words refers to the material that is required to be considered by the Government to formulate its opinion that it is in public interest to retire a Government servant prematurely, yet there are catena of judicial pronouncements laying down unequivocally that the Government or the Review Committee, if any, constituted by it must consider the entire record of service before taking a decision in the LPA No.236/2019 matter, of course attaching more importance to the record of and performance during the later years. The entire record of service to be scrutinized by the Government or the Review Committee as the case may be, would include the entries in confidential records/character rolls, both favorable and adverse, as also the communications and the reports of his controlling authorities reflecting upon his working, made from time to time. 14) Apart from the Government employees who are found to be inefficient and ineffective in service, such of the Government servants whose integrity is doubtful, can also be retired prematurely. While considering the competence and efficiency of a Government servant under scrutiny, the Government or the Review Committee as the case may, must find out as to whether there is a sudden and steep fall in his competence, efficiency and effectiveness in the Government service. Not only the APRs/ACRs, but the entire service record of the Government servant should be considered at the time of review. His work and performance can also be assessed by looking into the files dealt with by him or any papers or reports prepared and submitted by him. The actions and decisions taken by the Government servant under scrutiny should also be gone into before formulating an opinion that it is in public interest to retire LPA No.236/2019 such public servant prematurely. To evaluate the integrity of a Government servant, apart from the criminal case for corruption that may have been registered against such Government servant, the other material factors like the complaints, if any, received against him or suspicious property transactions made by him and the departmental proceedings, if any, faced by him during his service career must also be considered. The legal position has been very aptly enunciated by the Writ Court taking note of the judgments passed by the Supreme Court in “State of Gujrat vs Suryakant Chunilal Shah”, (1991) 1 SCC 529, Baikunta Nath Das vs Chief District Medical Officer, AIR 1992 SC 1020 and a Division Bench judgment of this Court in State of J&K and Others vs. Janak Singh, 2010 (4) JKJ 89 (HC). The observations of the Division Bench in Janak Singh’s case, which are reproduced in Para 20 of the impugned judgment, are very relevant and, therefore, reproduced hereunder: “Whether registration of an FIR, based upon specific complaint, can be made basis for formulation of an opinion for pre-mature retirement, is an issue which is no longer res integra. As already stated above, formulation of subjective opinion on the basis of the record of the respondents, will be a determinative factor to prematurely retire him. Registration of 2 FIRs is not part of the service record of the respondent on the basis of which opinion can be formulated by the Review Committee. These are merely allegations which are subject matter of investigation/trial and cannot become the basis for formulation of such an opinion, as rightly LPA No.236/2019 observed herein supra that fate of these complaints has to be determined by the agency which is not a part of the Committee. We, accordingly, hold that learned Single Judge was correct in rejecting the contention of the appellants in this behalf.” 15) Viewed the case of the respondent in the light of the legal position explained hereinabove, one would find that the only reason to justify the premature retirement of the respondent is registration of FIR No. 30/2008 and the consequent challan produced before the court of Special Judge, Anti-Corruption, Srinagar. The FIR was registered on the complaint of one Siraj Din, a subordinate official who was working under the respondent at the relevant point of time. Apart from the aforesaid FIR and the challan, the Review Committee has not considered any other relevant material. As is evident from the report of the Review Committee, the ACRs of 2000-2001, 2001-2002 and 2002- 2003 in respect of the respondent alone were available and the same were either very good or excellent. No complaint other than the one made by Siraj Din which led to the registration of FIR No. 30/2008 was under the scrutiny of the Review Committee. It is not the case of the appellants that apart from facing trial, the respondent had been earlier in his service career, proceeded departmentally or otherwise for any of his acts or omissions. LPA No.236/2019 16) From perusal of the record, it clearly transpires that the entire service career of the respondent had remained unblemished. Recruited as Forester in the year 1989, the respondent rose to the position of Deputy Director, Forest Protection Force, and nothing adverse was noted. There is, of course, a criminal trial pending against him and the law has taken its course. Mere registration of a case and pendency of challan cannot lead to the conclusion that the integrity of the respondent is so doubtful as would necessitate his weeding out from service prematurely. The Writ Court has, thus, rightly concluded that formulation of opinion by the Government, on the basis of recommendation of the Review Committee, is not based on any relevant material. Mere registration of FIR in a corruption case without there being any other adverse material is not sufficient to formulate opinion by the Government in terms of Article 226(2) of the CSR that retention of Government servant under scrutiny is no longer in public interest. The relevant parameters which have been indicated hereinabove and which are required to be considered for formulating such opinion have not been kept in view. The Review Committee was completely swayed by the fact that the respondent had been caught red handed taking bribe from his subordinate in lieu of reinstatement LPA No.236/2019 from suspension and, therefore, was a person of doubtful integrity. Needless to say, that registration of FIR and even presentation of challan after investigation is merely an allegation against the respondent and is not conclusive proof of the fact that he has actually indulged in corrupt practice. Besides, the Government has violated the mandate of Article 226(2) of CSR, 1956 by ignoring to consider all the relevant material, which must form bedrock of the Government decision to retire a public servant prematurely in public interest. 17) For all these reasons, we do not find any legal infirmity in the judgment impugned. The appeal is found to be without any merit and the same is accordingly dismissed. (PUNEET GUPTA) (SANJEEV KUMAR) JUDGE JUDGE Srinagar, 13.02.2025 “Mohammad Altaf” Whether the order is reportable: Yes.