Civil Appeal No. …….. of 2019  @ SLP(C)NO. 29252 OF 2018 ETC. The State of Jammu and Kashmir and Ors.  vs.  Farid Ahmad Tak 1

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4563 OF 2019 (Arising out of Special Leave Petition (Civil)No.29252 of 2018)

THE STATE OF JAMMU AND KASHMIR AND ORS.    …Appellants

VERSUS FARID AHMAD TAK    …Respondent

WITH

CIVIL APPEAL NO. 4564 OF 2019 (Arising out of Special Leave Petition (Civil)No.2651 of 2019)

THE STATE OF JAMMU AND KASHMIR        …Appellant

VERSUS

GIRDHARI LAL …Respondent WITH

CIVIL APPEAL NO. 4565 OF 2019 (Arising out of Special Leave Petition (Civil)No. 11445  of 2019)

(D.No.17515 of 2018)

THE STATE OF JAMMU KASHMIR AND ANOTHER   …Appellants

VERSUS

MUMTAZ HUSSAIN BHAT       …Respondent

JUDGMENT Uday Umesh Lalit, J.

1. Leave granted.

2. These appeals arise out of three separate judgments passed by the High Court of

Jammu Kashmir at Jammu on 11.12.2017 in LPASW No.182 of 2017, LPASW No.

159 of 2017 and LPASW No.180 of 2017.

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3. The appeal arising out of decision in LPASW No. 182 of 2017 is taken as the

lead matter and the facts leading to said appeal are mentioned in detail.

4. The  Respondent  was  appointed  as  Junior  Engineer,  Power  Development

Department, Jammu and Kashmir in the year 1985 and with the passage of time stood

promoted as Assistant  Executive  Engineer.   FIR No.  30 of  2006 -VOJ (Vigilance

Organisation,  Jammu)  was  registered  against  the  Respondent  at  Police  Station

Vigilance Organisation, Jammu in respect of offences punishable under Section 5(1)

(d) read with Section 5(2) of Jammu and Kashmir Prevention of Corruption Act, 2006

and under Section 120-B of the Ranbir Penal Code.  In due course of time, sanction

for prosecution was granted by the competent authority after having found substance

in the allegations.  The prosecution in respect of said offence is still pending.  

5. On 20.5.2015 a Committee comprising of  Chief  Secretary – Government of

J&K, Principal Secretary to the Chief Minister, Principal Secretary to the Government

–  Home  Department,  Commissioner/Secretary  to  the  Government  –  General

Administration Department and Secretary to the Government – Department of Law

Justice  &  Parliamentary  Affairs  was  constituted  under  the  orders  issued  by  the

Commissioner/Secretary  to  Government,  General  Administration  Department,

Government of Jammu and Kashmir.  In terms of Article 226(2) and 226(3) of Jammu

and Kashmir Civil Services Regulations (for short ‘the Regulations’) cases of officials

for premature retirement were placed before the Committee.   The Committee held

meetings  on  21.5.2015,  11.6.2015  and  26.6.2015  and  considered  cases  of

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officers/officials including the respondent.  Insofar as the case of the respondent was

concerned, the Report of the Committee stated as under:-

“The accused officer by abusing his official position made payments against  unexecuted  works  resulting  in  huge  loss  to  the  State exchequer.  The accused officer in league with JE, recorded fraudulent measurements  and  prepared  exorbitant  bills  for  drawal,  thereby, misusing  his  official  position.   Accordingly,  FIR No.30/2006-VOJ, was registered by the Vigilance Organisation.  The investigation of the case was concluded as proved.  The Competent Authority has also accorded sanction vide Govt. Order No.34-GAD (Vig) of 2012 dated 20.09.2012.  Further, the case already stands challaned in the court of law. It  was  reported  by  the  Department  that  the  Annual  Confidential Reports (ACRs) of the officer are not available.

The Committee took note of the fact that the officer while holding a post in Power Development Department, indulged in corrupt practices and caused loss to the State exchequer by fraudulent means, thereby, substantiating the fact that he has outlived his utility to the public.

Since,  the  officer  is  generally  known  to  have  bad  reputation  and embezzled Government money by misusing and abusing his official position, and under a conspired plan, dishonestly prepared fraudulent bills on the basis of false/excessive measurements thus caused loss to the  State  exchequer,  therefore,  it  is  recommended  that  Mr.  Fareed Ahmad Tak be  retired  from the  Government  Service  in  the  public interest,  under  Article  226(2)  of  J&K  CSRs.   It  is  further recommended that Mr. Fareed Ahmad Tak be given three months pay and allowances in advance, as admissible, in lieu of the notice.”

6. On 30.6.2015 in exercise of power conferred under aforesaid Article 226(2), an

order was passed compulsorily retiring the Respondent from service.  The text of the

order was as under:-

“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  Service  Regulations,  the Government  hereby  gives  notice  to  Shri  Fareed  Ahmad  Tak,  I/c Assistant  Executive  Engineer,  Estates  Division,  Jammu,  that  he having 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

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months notice.

By order of the Government of Jammu and Kashmir.”

7. The Respondent challenged the aforesaid order dated 30.6.2015 by filing a

Writ  Petition  namely  SWP No.2405  of  2015  in  the  High  Court  of  Jammu  and

Kashmir at Jammu.  In its affidavit-in-reply, the State justified the action submitting

inter alia that the order of compulsory retirement was passed in public interest after

due consideration by a Committee which comprised of very senior officials.  The

Writ Petition was allowed by a Single Judge of the High Court by his judgment and

order  dated  22.12.2016.   It  was  held  by  the  Single  Judge  that  the  decision  to

compulsorily retire the Respondent was taken merely on the basis of registration of a

First  Information  Report  against  the  Respondent  without  taking  into  account  the

APRs of the Respondent.   Further,  the norms evolved by the State to arrive at a

decision with regard to integrity of the Respondent were also not followed and as

such, the order compulsorily retiring the Respondent was not sustainable.

8. The State being aggrieved, preferred Letters Patent Appeal being LPASW No.

182 of 2017 which was dismissed by a Division Bench of the High Court by its order

dated 11.12.2017.  On the same date, two other Letters Patent Appeals viz. LPASW

Nos.  159 of  2017 and  180 of  2017 were  also  considered and dealt  with  by the

Division Bench.  While considering the instant Letters Patent Appeal, the Division

Bench stated in paragraph 16 of the lead matter as under:-

“16.  Learned counsel  for  the appellant  urged that  the fact  that  the respondent had been booked by the vigilance organisation pursuant to

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the  lodging  of  a  complaint  and  was  caught  red  handed  while demanding and accepting bribe was a case, which would come within the ambit of paragraph 27 of Suryakant Chunilal Shah’s1 case and, therefore, in those circumstances, the order of premature retirement could not be said to be bad in law.”  

The aforesaid paragraph also appears ad verbatim in the judgment in respect of

LPASW No. 159 of 2017 as paragraph no.15 and as paragraph no. 16 in its decision

in LPASW No. 180 of 2017.

9. The State being aggrieved is presently in appeal challenging the correctness of

the decisions of the Division Bench of the High Court.

10. It was submitted by Mr. M. Shoeb Alam, learned advocate for the appellant

that  the  law  laid  down  by  this  Court  in  various  decisions,  leading  case  being

Baikuntha Nath Das and Another vs.  Chief District Medical Officer, Baripada

and Another2, is very clear and summed up in paragraph no. 34 of the decision in

Baikuntha Nath Das2 as under:-

“34. The following principles emerge from the above discussion:

(i)  An order  of  compulsory  retirement  is  not  a  punishment.  It implies no stigma nor any suggestion of misbehaviour.

(ii) 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  compulsorily.  The  order  is  passed  on  the  subjective satisfaction of the government.

(iii) 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 this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary — in the sense that no reasonable person would form

1 State of Gujarat and another  vs.  Suryakant Chunilal Shah – (1999) 1 SCC 529 2 (1992)2 SCC 299

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the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The government (or the Review Committee, as the case may be)  shall  have  to  consider  the  entire  record  of  service  before taking  a  decision  in  the  matter  —  of  course  attaching  more importance to record of and performance during the later years. The  record  to  be  so  considered  would  naturally  include  the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding  the  adverse  remarks,  such  remarks  lose  their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by  a  Court  merely  on  the  showing  that  while  passing  it uncommunicated  adverse  remarks  were  also  taken  into consideration. That circumstance by itself cannot be a basis for interference.”

It was further submitted that the High Court principally relied upon paragraph

no. 27 of the decision of this Court in Chunilal Shah’s case1.  Said paragraph no.27

was as under:-

“27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a  government  servant  or  that  he  had  lost  his  efficiency  and  had become a dead wood, he was compulsorily retired merely because of his  involvement  in  two  criminal  cases  pertaining  to  the  grant  of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis  of his  involvement.  We may, however,  hasten  to  add  that  mere  involvement  in  a  criminal  case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee.”

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11. Mr. Alam submitted that the Committee in question comprised of very high

officials/officers  under  the  Chairmanship  of  Chief  Secretary.   The  Respondent’s

involvement in the crime, as well as the fact that the competent authority had granted

sanction, were the factors which weighed with the Committee, and the decision was

taken in public interest.  The order of compulsory retirement was an innocuous order

and completely satisfied the principles as culled out in  Baikunth Nath Das2.   He

further  submitted  that  the  Division  Bench  completely  failed  to  consider  the  fact

situation in the matter.  It was never the case of the prosecution that the Vigilance

Organisation  had  caught  Respondent  red  handed while  demanding and accepting

bribe.  As a matter of fact, in none of the present three cases was there any such

allegation of the accused being caught red handed while demanding and accepting

bribe.   

12. Mr. Pramod Kumar Sharma, learned advocate who appeared for Respondents

in  all  three  matters  relied  upon  various  orders  passed  by  this  Court  dismissing

Special Leave Petitions arising from judgment and orders passed by the Division

Bench in identical situations.  He particularly relied upon the orders passed by this

Court  in Special  Leave Petition (c)  CC Nos.6027-6028 of 2017 arising from the

judgment  and order dated 07.10.2016 passed by the Division Bench of  the High

Court of Jammu and Kashmir at Jammu in LPASW Nos.103 of 2016 and 122 of 2016

and various other orders passed by this Court subsequently.

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13. The provisions under which the Committee was constituted viz. 226(2) of the

Regulations prescribes norms which are required to be followed by the Screening

Committee.  Said Article 226(2) is as under:-

“(i) The Annual Performance Report of the Non-Gazetted employees are neither normally written very carefully nor are they fully available in  a  large  number  of  cases.   The  Screening  Committee  should, therefore, consider the entire service record including all material and relevant information available on record about the employee before coming to any conclusion.

(ii) The Government employees whose integrity is doubtful should be retired.  For the purpose of establishing that the integrity of the Government  servant  is  doubtful  the  following  information/records could be considered.

 Number  and  nature  of  complaints  received,  if  any, against  the Government  servant  pertaining  to  doubtful integrity or corruption.

 Number  and nature  of  various  audit  paras  pending,  if any, against the Government Servant in which concerned govt. servant is found to be involved.

 Number and nature of vigilance cases pending inquiry, if any, against the Government servant.

 Adverse  entries  in  the  APRs  concerning  doubtful integrity, if any.

 Number  and  nature  of  departmental inquiries/preliminary inquiries, if  any, which are going on against the concerned Government servant.

 Number and nature of administrative censure/warnings/ punishment  pertaining  to  corruption/doubtful  integrity against the Government servant, if any.

 General reputation of the employees.

(iii) Government employee who is found to be ineffective should be retired.  The basic consideration in identifying such employees should be fitness/competence of the employee to continue in the post, which he is holding.  If he is not found fit to continue in his present post, and than his fitness/competence to continue in the lower post from where

Civil Appeal No. …….. of 2019  @ SLP(C)NO. 29252 OF 2018 ETC. The State of Jammu and Kashmir and Ors.  vs.  Farid Ahmad Tak 9

he had been previously promoted should be considered.

(iv) The specific norms for efficiency/effectiveness cannot be really laid  down  since  they  pertain  to  the  nature  of  the  work  in  each particular  department  would  vary  from  department  to  department. However, these norms should be similar to norms laid down in the APRs of the employees concerned relating to his  performance and efficiency/effectiveness.  Specific norms on two to three parameters should be laid down for specific jobs.  An illustrative list of norms is given below:

 For  Teachers  the  pass  percentage  achieved  by  their students.

 For Revenue staff, norms relating to revenue work, such as  mutations attested,  jamabandies  completed,  revenue pass books issued etc.

 For engineering staff,  norms relating to  timely project implementations without time and cost over-runs etc.

The concerned Administrative Department should, for each specific category  of  employees  under  its  control,  identify  two to three  key result  areas/norms against  which the  efficiency/effectiveness  of  the Government employees should be considered.  These norms should be communicated  to  the  screening  committee  by  the  Administrative Department in advance.

(v) While the entire record of the employee should be considered at the  time  of  review,  no  employee  should  ordinarily  be  retired  on grounds  of  ineffectiveness,  if  his  services  during  the  preceding  5 years, or where he has been promoted on higher post during 5 years his service in the higher post have been found satisfactory.

(vi) No  employee  should  ordinarily  be  retired  on  grounds  of ineffectiveness, if in any event he would be retiring on superannuation within a period of one year from the date of considering of his case.

(vii)This provision of Rule for premature retirement  should not be used for reduction of surplus staff or an economy measure.  Similarly, it should not be used to retire a Government servant on grounds of specific  act  of  misconduct  as  a  shortcut  to  initiating  formal disciplinary proceedings against him.  The appropriate authority shall not,  however,  be  precluded  to  take  action  against  a  Government servant to retire him prematurely at  the relevant time, even at  that time, specific act of misconduct has come to notice.

(viii)  Once a decision has been taken under the relevant service rule to retain a Government servant in service beyond the prescribed age or  beyond  the  prescribed  length  of  service,  he  shall  ordinarily

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continue in service till he attains the age of superannuation.”

14. According to Mr. Alam, the relevant criteria for engineering staff which was

stipulated in clause (iv) related to timely project implementations without time and

cost  over-runs.   It  was submitted that  not  only the prosecution that  was initiated

against the Respondent, but the order of sanction issued by the competent authority

showed that  public interest  was completely compromised,  leading to total  loss of

more than Rs.16,00,000/- as a result of acts of commission and omission on part of

the Respondent.

15. It  is  true  that  the  exercise  of  power  under  aforesaid  Article  226(2)  of  the

Regulations by the very same Committee did not meet with the approval, and the

Division Bench in certain cases did reject  the plea of the State Government, and

affirmed the orders passed by the Single Judge setting aside the orders of compulsory

retirement.   It  is  also  true  that  in  those  matters  Special  Leave  Petitions  were

dismissed summarily.  However, it is well settled that mere summary disposal of a

Special Leave Petition does not conclude the issue on merits3.   

We,  however,  need not  go into the matter  as  some striking features  which

emerge from three matters are as under:-

a) In all these three cases the concerned Respondent official was

never  caught  red  handed  while  accepting  bribe.   However,

3  M/s. Rup Diamonds and others  vs.  Union of India & Ors –  (1989) 2 SCC 356 para 8; Supreme Court Employees’ Welfare Association  vs.  Union of India and another – (1989) 4 SCC 187 para 22;  Yogendra Narayan Chowdhury and others  vs.  Union of India and others – (1996) 7 SCC 1 para 5

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observations which are identical in all three matters indicate

that  the  Division  Bench  considered  the  matters  from  that

premise.  The basic foundation was thus incorrect.

b) The  matter  from  the  perspective  of  Clause  (iv)  of  Article

226(2) of the Regulations was also not considered.  The orders

of  sanction  in  all  these  three  matters  highlight  the  acts  of

commission  and  omission  on  part  of  the  concerned

Respondents as a result of which there was wrongful loss to

the State and public interest was compromised.

16. The aforesaid two features are common in all these three matters.  The basic

premise, as indicated hereinabove, on the basis of which the matter was considered by

the Division Bench was incorrect and secondly, the matter was also not considered

from the perspective of Clause (iv) of Article 226(2) as stated above.  We, therefore,

set aside the judgments and orders under appeal passed by the Division Bench of the

High Court in LPASW Nos.182 of 2017, 159 of 2017 and 180 of 2017.  The matters

are  remitted  to  the  Division  Bench  for  fresh  consideration.   These  Letters  Patent

Appeals stand restored to the file of the High Court which may now be dealt with

afresh.

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17. The appeals are allowed to the aforesaid extent.  No costs.

     .………………….J.      (Uday Umesh Lalit)

…………………..J.            (Indu Malhotra)

New Delhi, May 02, 2019.