High Court of Jammu and Kashmir

Gautam Singh Vs. State of J&K and Ors.

MANU/JK/0465/2017

26.12.2017

Service

Reputation of public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in absence of any material on record

The entire gamut of the controversy raised in instant petition revolves round the plea whether the Order bearing No. 480-GAD of 2005 dated 26th April 2005, issued by the Government of Jammu and Kashmir, in exercise of powers conferred by Article 226(2) of the Jammu and Kashmir Civil Services Regulations, whereby notice was given to the Petitioner, to the effect that he having already attained 48 years of age, shall retire from service with effect from the forenoon of the 26th of April 2005, can withstand the test of judicial scrutiny.

The law is that, the order of compulsory retirement, taken under the safety valve of public interest, could not be treated as a major punishment and that Article 311 (2) of the Constitution could not be invoked, as the employee concerned was no longer fit in the public interest to continue in service and, therefore, he can be compulsorily retired. On an analysis of the principles laid down above, the order of compulsory retirement can be subjected to judicial scrutiny, if the Court is 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 and prudent man would form such an opinion on the given material, in which case it falls under the category of an order termed to be perverse in the eyes of law. For framing an opinion to compulsorily retire a public servant, there should be some material on record to support and fortify it, as otherwise, it would amount to arbitrary or colourable exercise of power and, therefore, the order could be challenged on the grounds that, the requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that is was an arbitrary decision.

In order to attach a semblance of fairness to such an order, the entire service record of a public servant, more significantly the service record of the previous years preceding the decision, has to be assessed and evaluated. These cannot be skipped and shelved in formulating such an opinion by taking umbrage under the plea that the same were not available, as stated in present case. If these are disregarded and omitted in the matter of the accord of consideration to the case of the compulsory retirement of a public servant, the whole exercise will get vitiated under the colour of the non-application of mind. The reputation of a public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in the absence of any material on record. This is a fundamental flaw in the order issued against the Petitioner, whereby he has been shown the door.

The impugned order cannot stand the test of law and reason. It is not based on any material, from which a reasonable opinion could be derived to put forth the plea that the Petitioner has outlived his utility as a Government servant or that his conduct was such that his continuance in service would be prejudicial to the public interest. Merely stating that, it is in the public interest and the Petitioner has become deadwood cannot form the baseline of retiring him compulsorily in the absence of any material to substantiate. The impugned order is quashed. The Respondents are directed to reinstate the Petitioner and grant him all consequential benefits.

Tags : Notice Retirement Legality

Share :