THE STATE OF JAMMU AND KASHMIR AND ORS.versusFARID AHMAD TAK

                           [2019] 7 S.C.R. 1                                1


       THE STATE OF JAMMU AND KASHMIR AND ORS.                              A
                                    v.
                        FARID AHMAD TAK
                 (Civil Appeal No. 4563 of 2019 etc.)
                             MAY 02, 2019
                                                                            B
     [UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
       Service Law:
       Compulsory retirement – Justifiability of – Respondent
official compulsorily retired by State in terms of Art. 226(2) of Service
Regulations – On the basis of registration of an FIR alleging demand
                                                                            C
and acceptance of bribe – Challenged by filing writ petition – Single
Judge of High Court allowed the petition, holding that the decision
to compulsorily retire the Respondent was taken merely on basis of
FIR without taking into account APRs of Respondent and further
norms for arriving at decision with regard to integrity of Respondent
were not followed – Order of Single Judge confirmed by Division             D
Bench of High Court – On appeal, held: Respondent was never
caught red-handed while accepting bribe but the Division Bench
considered the matters on that premise, which was incorrect – The
matter was also not considered from the perspective of Clause (iv)
of Art. 226(2) of Service Regulations – Therefore, matters remitted
                                                                            E
to High Court for consideration afresh – Jammu and Kashmir Civil
Services Regulations – Art. 226 (2).
       Allowing the appeal and remitting the matters to High Court,
the Court
       HELD : 1. In the present cases the concerned respondent
official was never caught red handed while accepting bribe.                 F
However, 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. The matter
from the perspective of Clause (iv) of Article 226(2) of the Jammu
and Kashmir Service Regulations was also not considered. The                G
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. [Para 15] [11-B-D]

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2            SUPREME COURT REPORTS                      [2019] 7 S.C.R.


A         2. Thus, the basic premise, on the basis of which the matter
    was considered by the Division Bench of High Court was incorrect
    and secondly, the matter was also not considered from the
    perspective of Clause (iv) of Article 226(2). Therefore, the
    judgments and orders under appeal passed by the Division Bench
    are set aside. The matters are remitted to the Division Bench
B
    for fresh consideration. [Para 16] [11-E-F]
          State of Gujarat and another v. Suryakant Chunilal Shah
          (1999) 1 SCC 529 : [1998] 3 Suppl. SCR 293 ;
          Baikuntha Nath Das and Another v. Chief District
          Medical Officer, Baripada and Another (1992) 2 SCC
C         299 : [1992] 1 SCR 836 ; M/s. Rup Diamonds and
          Others v. Union of India & Ors. (1989) 2 SCC 356 :
          [1989] 1 SCR 13 ; Supreme Court Employees’ Welfare
          Association v. Union of India and another (1989) 4
          SCC 187 : [1989] 3 SCR 488 ; Narayan Chowedhury
D         and Others v. Union of India and Others (1996) 7 SCC
          1 : 1995 [6] Suppl. SCR 178 - referred to.
                          Case Law Reference
    [1998] 3 Suppl. SCR 293        referred to             Para 8

E   [1992] 1 SCR 836               referred to             Para 10
    [1989] 1 SCR 13                referred to             Para 15
    [1989] 3 SCR 488               referred to             Para 15
    [1995] 6 Suppl. SCR 178        referred to             Para 15
F         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4563
    of 2019.
          From the Judgment and Order dated 11.12.2017 of the High Court
    of Jammu and Kashmir at Jammu in LPASW No. 182 of 2017.
          With
G
          Civil Appeal Nos. 4564 and 4565 of 2019.
          M. Shoeb Alam, Ujjwal Singh, Gautam Parbhakar, Mojahid Karim
    Khan, Advs. for the Appellants.
         Pramod Kr. Sharma, Ambhoj Kumar Sinha, Advs. for the
H   Respondent.
 THE STATE OF JAMMU AND KASHMIR AND ORS. v. FARID                           3
                   AHMAD TAK

      The Judgment of the Court was delivered by                            A
      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.
                                                                            B
       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                 C
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.      D
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     E
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            F
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
officers/officials including the respondent. Insofar as the case of the     G
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
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4            SUPREME COURT REPORTS                         [2019] 7 S.C.R.


A         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
B
          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
C         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
D         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
E         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
F   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,
G
          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.

H
    THE STATE OF JAMMU AND KASHMIR AND ORS. v. FARID                              5
            AHMAD TAK [UDAY UMESH LALIT, J.]

          He is allowed three months of pay and allowances in lieu of             A
          three 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-                B
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                  C
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               D
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                E
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       F
          pursuant to 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        G
          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.
1
    State of Gujarat and another vs. Suryakant Chunilal Shah - (1999) 1 SCC 529   H
6               SUPREME COURT REPORTS                         [2019] 7 S.C.R.


A          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
B   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.
C               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.
D
                (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
E               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 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
F               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
G
                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.
    2
H       (1992) 2 SCC 299
 THE STATE OF JAMMU AND KASHMIR AND ORS. v. FARID                             7
         AHMAD TAK [UDAY UMESH LALIT, J.]

         (v) An order of compulsory retirement is not liable to be quashed    A
         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        B
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            C
      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   D
      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              E
      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.”
       11. Mr. Alam submitted that the Committee in question                  F
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                G
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            H
8            SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A   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
B   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
C   subsequently.
           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:-
D
          “(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
E         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.
F
                 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
G
                 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
H                integrity, if any.
THE STATE OF JAMMU AND KASHMIR AND ORS. v. FARID                          9
        AHMAD TAK [UDAY UMESH LALIT, J.]

         Number and nature of departmental inquiries/preliminary          A
         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.                          B
         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   C
   present post, and than his fitness/competence to continue in the
   lower post from where 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          D
   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            E
   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            F
         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         G
   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.
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10            SUPREME COURT REPORTS                         [2019] 7 S.C.R.


A          (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.
B
           (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.
C          (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
D          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
E          prescribed age or beyond the prescribed length of service,
           he shall ordinarily 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
F    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
G    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
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    THE STATE OF JAMMU AND KASHMIR AND ORS. v. FARID                               11
            AHMAD TAK [UDAY UMESH LALIT, J.]

retirement. It is also true that in those matters Special Leave Petitions          A
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            B
             was never caught red handed while accepting bribe.
             However, 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.                                                            C
       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           D
             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              E
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.                                 F
       17. The appeals are allowed to the aforesaid extent. No costs.

Kalpana K. Tripathy                          Appeal allowed and matters remitted
                                                                 to High Court.
                                                                                   G


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                       H