JKLR-Part(IV)                                                SWP 578/1986                                      Back To Index

(2001) 1 J & K LAW REPORTER 447
High Court of Jammu and Kashmir
at Jammu
Before
Hon’ble Mr. Justice O.P. Sharma, Judge

M.L. DARBARI                                                                                                                  Petitioner
                                                                                versus
STATE OF J & K AND OTHERS                                                                                      Respondents

SWP 578 / 1986, decided on 22.1.2001.

            J&K Civil Service Regulations 1956 - Art. 226(2) - Compulsory retirement - Public Interest - Adverse remarks on record - Subsequent promotion - Whether can be relied upon - Held : Yes.

            J&K Civil Service Regulations 1956 - Art. 226(2) - Compulsory retirement - Adverse remarks not communicated - Whether can be relied upon for compulsory retirement - Held : Yes.

            Article 226 (2) being in para-meteria with rule 16(3) (Supra) the case of    the petitioner is squarely covered on all fours. So it is settled law that entire service record can be considered and the adverse remarks earned before promotion are not washed out, but can be looked into to decide whether it is in public interest to retire an officer. It is also finally settled that uncommunicated adverse remarks can also be taken into consideration to form basis for pre-mature retirement.        

           [Para 10]

            J&K Civil Service Regulations 1956 - Art. 226 (2) - Uncommunicated remarks admitted to be adverse - Compulsory retirement - Whether in public interest - Held : Yes.

            Since the petitioner has himself admitted that the uncommunicated remarks were adverse reports, but since these reports exist in his service record, his premature retirement was in public interest.                                                                                                                         [Para 12]

Advocates who appeared in this case :
Mr. Sunil Hali, Advocate for the petitioner
Additional Advocate General, Mr. A. Kapoor, for the respondents

Cases referred : Chronological
1. Brij Mohan Singh Chopra v. State of Punjab AIR 1987 948
2. State of J&K v. Rajinder Singh Rana 1988 JKLR 1120
3. Baikuntha Nath Das v. Chief District Medical Officer, Baripada AIR 1992 SCW 793
4. State of Punjab v. Gurdas Singh AIR 1998 SC 1661
5. Madan Mohan Choudhary v. State of Bihar AIR 1999 SC 1018

JUDGMENT AND ORDER

            The Jammu and Kashmir Civil Services Regulations, 1956 define the conditions under which salaries, leave pension etc are earned by the members holding civil posts under the State Government. These regulations also incidently prescribe the compulsory age of retirement. Article 226(1) of these regulations provides that every person holding a civil post under the Government shall retire compulsorily on his attaining the age of 58 years. However, Article 226 (2) is an exception to the above rule in terms of which the 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 the 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 period of qualifying service or on attaining 48 years of age after giving him three months notice before the date on which he is required to retire or three months pay and allowances in lieu of such notice. The rule further mandates that such government servant shall be entitled to pensionary  benefits admissible under these rules on the basis of qualifying service.

2.          In order to exercise powers vested in the Government under this rule the government has to act in public interest. What is public interest has been considered from time to time by the apex court. The law is by now settled that compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract section 126(2) of the Constitution of Jammu and Kashmir which corresponds to Article 311(2) of the Constitution of India. The court can, however, interfere if it is satisfied that the order of compulsory retirement has been 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 meterial. (See Baikuntanath Dass v. Chief District Medical Officer Baribada 1992 (2)SCC 299).

3.          The petitioner Shri M.L.Darbari was holding the post of Chief Engineer Irrigation Department, Kashmir in April 1986. By Government order No.189-GR of 1986 dated 11.4.1986 the Governor in exercise of powers conferred by Article 226(2) of Civil Services Regulations directed his retirement with effect from the afternoon of 11th April 1986. He was allowed three months pay and allowances in lieu of three months notice. This order was passed on the recommendation of a screening committee constituted by the Government under the chairmanship of Shri Naresh Chandra, Advisor to the Governor with Shri J.M.Qureshi, IPS, Advisor to the Governor and Shri R.K Thakkar, IAS, Chief Secretary as members. This committee had after considering the service record of various officers recommended pre-mature retirement of as many as 11 officers.

4.          The impugned order has been assailed on the ground  (i) that the power under article 226(2) could be exercised by the Government and not by the Governor (ii) that the recommendation of the screening committee suffers from non-application of mind (iii) that the meterial considered by the screening committee does not justify the impugned order (iv) that the order is arbitrary and product of mala-fide being a fraught on the statute.

5.          The stand of the respondent State is that the impugned order has been passed after considering the service record of the petitioner by the screening committee which recommended his premature retirement in public interest.

6.          Mr. Hali, learned counsel appearing for the petitioner argued that the impugned order has not been passed in public interest because the petitioner was neither a deadwood nor inefficient or corrupt official so as to justify his premature retirement. His submission is that there was no material before the screening committee to come to the conclusion that pre-mature retirement of the petitioner was necessary to weed him out in public interest. His further argument is that under law it is only last five years service record which has to be examined and not the whole service record. There was nothing adverse against the petitioner in his service record for the last five years. The contention of Mr. Kapoor is that petitioner has been retired in public interest after considering his whole service record. His service record reveals that from the very beginning he was found wanting in performance of his duty as is evident from the remarks earned by him in the years 1957-58,  1960-61,  1961-62,  1962-63,  1963-64  and  1982-83. According to him the Government was justified in taking into consideration the entire service record of the petitioner before coming to the conclusion that it would be in public interest to retire him.

7.          Let us first find out the performance of the petitioner between 1956 and 1982-83. The extracts of the remarks earned by him during these years as reproduced in the counter are extracted below :

“ S.No.     Year                 Remarks

     1.        1956-57             Most of the time the officer was running out of Srinagar from his headquarters.

                                      Being very unpunctual the subordinates also went slow and progress of work suffered .

                                      Has much to learn of accounts rules and procedures. The officer must learn to give whole hearted attention to the work and be punctual so as to set example to his subordinates.

                                      He is inclined to be lazy and ease-loving.

                                      He must exert hard to become a good A.E.

     2.     1960-61               However, his tendency to verbosity in expression and shirking direct responsibility in working betrays a  certain want of real engineering knowledge and experience. He must acquire  extensive theoretical and practical engineering knowledge.

     3.        1961-62             Requires general improvement by controling his staff.

                                      I am afraid this officer has not the maturity sense of responsibility and seriousness about his work which is expected of him with his length of service . He has not looked after his jurisdiction and works in his charge diligently or thoroughly. He must improve in these respects if he wants his future increments. He must also learn to be punctual in keeping appointments.

    4.         1962-63             was warned for inadequate supervision of Hatli  Protection work by CE.

                                      Has improved since the previous year but should achieve better control and technical supervision over his subordinate officers

     5.        1963-64             Sincere and hardworking. Needs further improvement  in general control and eliminating delays.

     6.        1982-83             For most part, Shri Darbari seems to harbour some injured feelings and does not seem to be involved  in his work.

8.          The petitioner has not denied that he has earned these remarks. What is stated by him in the rejoinder is that these performance reports “are stale in point of time as it is illegal and unconstitutional to base the order of pre-mature retirement on such performance reports.” These performance reports according to Mr. Hali being adverse remarks could not be taken into consideration because these were never communicated to the petitioner. He, therefore had no occasion to represent against such remarks.  Since it is mandatory under law to communicate adverse remarks those uncommunicated adverse remarks argued the learned counsel could not be considered especially when he had earned promotions from time to time to reach highest position in Engineering Department. Since these adverse reports were acted by the Government while considering him for promotion, therefore, these could not form the basis of his pre-mature retirement.

9           The argument is twofold, one that the performance report being adverse, no reliance could be placed on them after he has been promoted and two that entire service record cannot be considered to justify compulsory retirement of an officer. Both these arguments have to be rejected in view of the law laid down in State of Punjab v. Gurdas Singh AIR 1998 SC 1661 in which grounds of challenge were identical. Article 226(2) of the Regulations being in para-materia with rule 16(3) of the All India Services (Death-cum-Retirement) Rules 1958, scope of which their lordships considered, the principle will be applicable. While referring to the earlier judgement their lordships observed as under :-

“ 9. In Union of India v. M.E.Reddy (1980) 1SCR 736:(AIR 1980 SC 563), respondent was compulsorily retired from service by an order made under Rule 16(3) of the All India Services (Death-cum Retirement) Rules, 1958. This rule reads as under (Para 7 of AIR) :

‘16(3) The Central Government in consultation with the state Government, may require a member of the Service who has completed 30 years of qualifying service or who has attained the age of 55 years to retire in the public interest provided that at least three months previous notice in writing will be given to the member concerned.’

The court noted that the Rule gave an absolute right to the Government of India and not merely the discretion and, therefore, impliedly it excludes the rules of natural justice. The Court then observed as under (Para 9 of AIR) :

‘It is now well settled by a long catena of authorities of this court that compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract the provisions of Art.311(2) of the Constitution. In fact, after an employee has served for 25 to 30 years and is retired on full pensionary benefits, it cannt be said that he suffers any real prejudice. The object of the Rule is to weed out the deadwood in order to maintain a high standard of efficiency and initiative in the State service. It is not necessary that a good officer may continue to be efficient for all times to come. It may be that there may be some officers who may possess a better initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement. In such a case compulsory retirement of an officer who fulfills the conditions of Rule 16(3) is undoubtedly in public interest and is not passed by way of punishment. Similarly, there may be cases of officers who are corrupt or of doubtful integrity who may be considered fit for being compulsorily retired in public interest, since they have almost reached the fag end of their career and their retirement would not cast any aspersion nor does it entail any civil consequences. Of course it may be said that if such officers were allowed to continue they would have drawn their salary untill the usual date of retirement. But this is not an absolute right which can be claimed by an officer who has put in 30 years of service or has attained the age of 50 years. Thus the general impression which is carried by most of the employees that compulsory retirement under these conditions involves some sort of stigma must be completely removed because Rule 16(3) does nothing of the sort.’

This court also considered the argument of respondent that the order was based on meterial which was non-existed in as much as there were no adverse remarks against him and if there were any such remarks in his confidential reports, it should have been communicated to him under the Rules. The court said ( Para 17 of AIR) :

‘This argument, in our opinion, appears to be based on a serious misconception. In the first place, under the various rules on the subject it is not every adverse entry or remarks that has to be communicated to the person concerned. The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. Some of these remarks may be purely innocuos, or may be connected with general reputation of honesty or integrity that a particular officer enjoys. It will indeed be difficult if not impossible to prove by positive evidence that a particular officer is dishonest but those who has had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the reputation that he enjoys. The high court has also laid great stress on the fact that as adverse entries had not been communicated to Reddy, therefore, the order impugned is illegal. We find ourselves unable to agree with the view taken by the High Court.’

In the Brij Mohan singh Chopra v. State of Punjab (1987)2 SCR 583: ( AIR 1987 SC 948 ),  this court adopted a somewhat different approach. The judgement in the case of M.E.Reddy was not noticed. In this case the court held that would be unjust and contrary to the principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which were either not communicated to him or if communicated, representation made against those entries were not considered and disposed of. This judgement given by two Judges Bench has been expressly overruled by a three judges Bench Judgment of this court in Baikuntha Nath Das v. Chief District Medical Officer, Baripada (1992)2 SCC 299: (1992 AIR SCW 793). The question for consideration before this court in this latter case was whether it was permissible to the Government to order compulsory retirement of a Government servant on the basis of meterials which included uncommunicated adverse remarks. This court considered various judgements on the issue and laid the following principles :

‘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 the requisite opinion on the given meterial; 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.

     Interference is permissible only on the grounds mentioned in (iii) above.’

  Same view was again affirmed in another three Judges Bench Judgement of this court in Posts and Telegraphs Board vs. C.S.N Murthy, (1992) 2 SCC 317:(1992 AIR SCW 1362).”

10.         Article 226(2) being in para-meteria with rule 16(3) (Supra) the case of   the petitioner is squarely covered on all fours. So it is settled law that entire service record can be considered and the adverse remarks earned before promotion are not washed out, but can be looked into to decide whether it is in public interest to retire an officer. It is also finally settled that uncommunicated adverse remarks can also be taken into consideration to form basis for pre-mature retirement.

11.         While reiterating the principle laid down in Baikuntha Nath Das’s case their lordships observed as under :

“11. The facts in the present case are quite similar to that in Union of India v. V.P Seth (AIR 1994 SC 1261). Here also the only ground on which the order prematurely retiring Gurdas Singh was set aside was that two adverse entries after his promotion from the rank of Asstt, Sub-Inspector to Sub-Inspector were not communicated to him and earlier adverse entries could not be taken into account because even when those existed Gurdas Singh had earned his promotion. It is not necessary for us to again reiterate the principle where the court will interfere in the order of premature retirement of an employee as these have been accurately set down by various pronouncement of this court and particularly in Baikund Nath Das cases (1992 AIR SCW 793). Before the decision to retire a Government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.”

            This is the last word on the subject as observed in Madan Mohan Choudhary v. State of Bihar AIR 1999 SC 1018 Wherein their lordships held that :

“34. The question relating to uncommunicated adverse entries has been the subject matter of several decisions of this court. In Union of India vs M.E.Reddy, AIR 1980 SC 563: 1980(1) SCR 736 : (1980) 2 SCC 15, it was laid down that uncommunicated adverse remarks can be relied upon while passing an order of compulsory retirement. But in two subsequent decisions, namely, Brij Mohan Singh Chopra Vs. State of Punjab, AIR 1987 SC 948: (1987)2 SCC 188; 1987(2) SCR 583 and Baidyanath Mahapatra vs. State of Orrissa, AIR 1989 SC 2218; 1989 (3) SCR 803; (1989)4 SCC 664, it was laid down that uncommunicated adverse entries could not be legally relied upon while making an order of compulsory retirement. It was also laid down in Baidyanath’s case (Supra) that if a representation was pending against the adverse remarks, the adverse entries against which the representation is made could not be taken into consideration unless the representation itself was considered and disposed of.

35. Both these decisions were considered by a Three Judge Bench in Baikuntha Nath Das’s case (AIR 1992 SC 1020) (Supra).....

36.          This decision has since been followed in Posts and Telegraphs Board vs C.S.N Murthy, AIR 1992 SC 1368: 1992(2) SCR 338: (1992) 2 SCC 317;  Secretary to the Govt. Harijan & Tribal Welfare Department, Bhubaneswar vs. Nityananda Patl. AIR 1993 SC 383: (1993) Supp. 2 SCC 391 and Union of India v.   V.P.Sethi, AIR 1994 SC 1261 and considered by this court in M. S.Bindra vs. Union of India, (1998)  6 JT(SC) 34; 1998 (5) Scale 45; (1998) 7 SCC 310; (1998 AIR SCW 2918) and again in State of Gujarat vs. Suryakant Chunilal Shah, (1998) 8 JT(SC) 326; 1998 (6) Scale 393.

37.          The fifth principle in Baikuntha Nath Das’s case (AIR 1992 SC 1020) (Supra), which has already been extracted above, itself contemplates that the mere circumstance that uncommunicated adverse remarks were taken into consideration would not constitute a basis for inerference with an order of compulsory retirement.”

12.         Since the petitioner has himself admitted that the uncommunicated remarks were adverse reports, but since these reports exist in his service record, his premature retirement was in public interest.

13.         This also negatives the argument that there was no meterial on the basis of which screening committee could have come to the conclusion that pre-mature retirement of the petitioner was in public interest.

14. Every performance report commencing from the year 1956-57 to 1963-64 and the observation made in the year 1982-83 supports the conclusion about his premature retirement.

15.         So far as the challenge to the constitution of screening committee is concerned, a similar challenge was thrown to it by another officer who was also similarly retired vide Government order No.300-GR of 1986 dated 25.4.1986. This order was challenged by the aggrieved officer Shri Rajinder Singh Rana who was also retired while posted as chief Engineer. The writ petition filed by him titled Rajinder Singh Rana v. State of J&K  was allowed by a Single Bench of this court on 29.4.1987 and the case is reported in 1987 KLJ page 262. The State, however, challenged the judgement and the Letters Patent Bench comprising Sethi J (as his lordship then was now Judge of the Supreme Court and Kuchhai J allowed the appeal and set aside the judgement while upholding the order of premature retirement of Shri Rajnider Singh Rana (See JKLR 1988 1120). Special Leave Petition filed by Shri Rajinder Singh Rana was also dismissed by the Supreme Court. So the challenge to the constitution of the screening committee or vires of the order on the ground that the order is arbitrary is no longer res-integra. Since the order is neither based on         mala-fide nor arbitrary so ground (iii) as mentioned in the case of Baikuntha Nath Das is not attracted. The petition, therefore, is without any merit and as such is dismissed without any orders as to costs.

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