Wednesday, 27 December 2017

How to ascertain reputation of Government servant for purpose of compulsory retirement?

On Reputation
31. Counsel for the appellant urged that the recommendations of the Committee were not based only upon the fact that an FIR had been registered against the respondent but apart from that the committee took into consideration the fact that the petitioner didn't enjoy good reputation and his integrity was doubtful.
32. It was stated that with a view to get information regarding the reputation which an officer, in this case the petitioner enjoyed, the concerned secretary of the Administrative Department had been co-opted as a member of the committee whose views were given due respect and weightage while making the recommendation.
33. While the committee can always assess the integrity of a government servant and consider the reputation which he enjoys yet for assessing the same, there has to be some basis in the service records. Hearsay reputation or casual statements questioning the integrity of a person ought not to be considered for the same may be baseless or attributed for malafide purposes. Even for purposes of assessing the reputation of a government servant, the material must be cogent, the same must be in the shape of record which must then be considered in the correct perspective. Opinion regarding doubtful integrity and questionable reputation must emanate from an officer who has had an opportunity to see the work and conduct of the officer from a close quarter on a day to day basis. Relying upon opinion of a Secretary of the Administrative Department who might not have any first hand information and experience of having seen and worked with the officer concerned would be both risky and uncalled for and would give credence to the saying “give a dog a bad name and kill it”.
34. In the present case, the Committee has not discussed as to what was the source or material based upon which the petitioner was said to be not enjoying good reputation. If that be so, the order of pre mature retirement based upon any such assessment can only be said to be arbitrary and thus cannot be upheld on the legal touchstone.
In the High Court of Jammu and Kashmir at Jammu
(Before Dhiraj Singh Thakur and Sanjay Kumar Gupta, JJ.)

State of J&K & ors.v.Krishan Lal

LPASW No. 154/2017
MP No. 1/2017

Decided on December 12, 2017.
Citation: 2017 SCC OnLine J&K 731


Dhiraj Singh Thakur, J.:— The present Letters Patent Appeal has been preferred against the judgment and order dated 22.12.2016 passed by the learned Single Judge in SWP No. 2508/2015. The writ court has, by virtue of the judgment and order impugned, quashed the Government Order No. 903-GAD of 2015 dated 30.06.2015 whereby the petitioner had been prematurely retired from service.
2. The basis on which the writ court proceeded to quash the order of premature retirement and allowed the petition was the fact that the premature retirement had been ordered only on the basis of the registration of an FIR against the petitioner and without considering the service record of the petitioner.
3. However, with a view to understand the background in the light of which the present controversy has arisen, it is necessary to give a few material facts in brief:
Regulation 226(2) of the Jammu and Kashmir Civil Services Regulations authorizes the Government to retire a Government servant at any time after he has completed 22 years of service or attained the age of 48 years in public interest. This power is exercised by the Govt. to remove such government servants, who are considered as deadwood, inefficient are of doubtful integrity and considered to be corrupt.
4. For facility of reference, 226(2) of the Jammu and Kashmir Civil Service Regulations is reproduced hereunder:
“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 n 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 annexure A and B hereto as to 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 ate of such retirement…………”
5. Norms have also been prescribed by the Govt. which are required to be followed by the screening committee while exercising powers under Article 226(2) of the Jammu and Kashmir Civil Service Regulations, which are as follows:
(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 government 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 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, a 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 continue in service till he attains the age of superannuation.
6. In exercise of the powers vested in it, the Govt. with a view to weed out inefficient, the corrupt and the deadwood, constituted a Committee vide Government Order No. 17-GAD of 2015 dated 20.5.2015, which met on 21.05.2015, 11.06.2015 and 26.06.2015 The said Committee consisted of the following:
(A) Chief Secretary
(B) Principal Secretary to the Chief Minister
(C) Principal Secretary to the Govt. Home Department
(D) Commissioner/Secretary to the Govt., General Administration Department.
(E) Secretary to the Govt., Department of Law, Justice and Parliamentary affairs.
7. Besides this, they also co-opted the Secretary to the Govt., Revenue Department, who participated and deliberated in the said meeting.
Material before the Committee
8. The Committee while considering the case of the petitioner, which formed the basis of ordering his pre-mature retirement, recorded thus:
(A) Through his consistent conduct over a period of time, the employee does not enjoy a good reputation in the public.
(B) Based on a specific complaint, a trap was laid against Mr. Krishan Lal the then Patwari Halqa Tulli Bana and was found demanding and accepting bribe of Rs. 5000/- from the complainant Mr. Ghulam Hassan for releasing final payment against the work executed by him under MNERGA Scheme. Accordingly, an FIR was registered vide FIR No. 26/2010 P/S VOJ (Vigilance Organization Jammu). The official was caught red handed in the trap proceedings and the money was recovered from his possession and the challan was produced before the court.
(C) It was reported by the Department that the Annual Confidential Reports (ACRs) of the officer are not available.
(D) The Committee took note of the fact that the officer, while holding a post in Rural Development and Panchayati Raj Department was caught red handed while demanding and accepting bribe for releasing final payment against the work executed by him, thereby substantiating the fact that he has outlived his utility to the public.
(E) Since the officer is generally known to have bad reputation and was caught red handed while demanding and accepting bribe for releasing final payment against the work executed by the complainant and found involved in corrupt practices, therefore, it is recommended that Mr. Krishan Lal be retired from Government Service in the public interest under Article 226(2) of the J&K CSR. It is further recommended that Mr. Krishan Lal be given three months pay and allowances in advance as admissible in lieu of the notice.
9. Based upon the recommendations of the Committee, the Govt. passed order dated 30.6.2015 whereby the petitioner was pre-maturely retired from service w.e.f, 01.07.2015
10. The order of pre-mature retirement came to be challenged by the petitioner in writ petition bearing SWP No. 2508/2015. The basis of the challenge was that the order impugned had been passed arbitrarily without recording the requisite subjective satisfaction on the basis of the service record as was required to be done in terms of the provisions of Article 226(2) of the J&K Civil Services Regulations and the instructions appended thereto. It was also urged that the order impugned had been passed solely on the ground that there was an FIR registered against the petitioner.
11. It was asserted that the FIR, which was registered at Police Station Vigilance Organization, Jammu, was at the instance of one Ghulam Hassan, which was done only for purposes of demolishing the good reputation of the petitioner.
12. Reliance was placed upon the case of State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529.
13. The writ court after appreciating the entire controversy set aside the order impugned by placing reliance primarily on State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 and held that the order of premature retirement had been passed purely on the basis of the fact that an FIR had been registered against the petitioner and that the criteria prescribed under Article 226(2) of the J&K CSR as also the instructions appended thereto had not been followed by the Govt.
14. In the present Letters Patent Appeal, learned counsel for the appellant questions the legality of the order passed by the learned Single Judge on the ground that the court had failed to appreciate the judgment of State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 in its correct perspective.
15. It was urged that the Apex Court in Suryakant Chunilal Shah's case (supra) did envisage a situation where mere registration of an FIR may constitute relevant material for compulsory retirement that however, would depend, it was urged, on the nature of the offence allegedly committed by the employee and the circumstances of each case. It was sought to be urged that to lay down as a matter of general principle that mere registration of an FIR does not at all warrant consideration of an employee for pre-mature retirement was a statement of law, which was contrary to the spirit of the judgment in Suryakant Chunilal Shah's case.
16. Learned counsel for the appellant urged that the fact that the respondent had been booked by the vigilance organization 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's case and, therefore, in those circumstances, the order of premature retirement could not be said to be bad in law.
CONCEPT AND CONSEQUENCE OF COMPULSORY RETIREMENT
17. In Union of India v. Col. J.N Sinha, (1970) 2 SCC 458, the Apex Court held that compulsory retirement involved no civil consequences and only embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. It was further held that while a minimum service is guaranteed to the Government Servant, the Government had the power to energise its machinery and make it more efficient by compulsory retiring those, who in its opinion, should not be there in public interest. It was also held that a compulsorily retired government servant did not lose any of the benefits earned by him till the date of his retirement.
18. In Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299, the Apex Court after noticing various judgments on the issue of compulsory retirement, crystallized the following principles:
(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 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.
19. In M.S Bindra v. UOI, (1998) 7 SCC 310, the Apex Court while consideringBaikuntha Nath Das's case (supra) held as under:
“Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into.”
20. In State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529, the Apex Court held that with a view to decide as to whether the Govt. Servant had outlived his utility and was required to be compulsorily retired in public interest for maintaining an efficient administration, an objective view of his overall performance of that Govt. servant had to be taken and that was possible on the basis of his service record. What was stated by the Apex Court was as under:
“24. The performance of a Govt. servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty or integrity of a Govt. servant is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon his integrity, such a Govt. servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of “Integrity”. If this is missing the whole bundle would disperse. A Govt. servant has, therefore, to keep his belt tight.
25. Purpose of adverse entries is primarily to forewarn the Govt. servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Govt. servant’ to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.”
21. It is relevant to point out at this stage that in the case (supra), the Apex Court was considering the order of pre-mature retirement of a Govt. servant against whom there were no adverse entries in the service record, yet the Committee while considering the case of the Govt. servant for pre-mature retirement, based only upon the FIRs lodged against the said Govt. servant formed an opinion that he was a person of doubtful integrity.
22. It was in those circumstances that the Apex Court held as under:
“26…………Whether the integrity of an employee is doubtful or not, whether he is efficient and honest, is the function of the Appointing Authority or the immediate superior of that employee to consider and assess. It is not the function of the Review Committee to brand, and that too, off hand, an employee as a person of doubtful integrity…………….”
23. In Nand Kumar Verma v. State of Jharkhand(2012) 3 SCC 580, the Apex Court reiterated the principles pertaining to compulsory retirement and held as under:
“34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the concerned authority but such satisfaction must be based on a valid material. It is permissible for the Courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACR's. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACR's which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.
36. The material on which the decision of the Compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service.”
24. Similar view has again been taken by the Apex court in Rajesh Gupta v. State of Jammu and Kashmir(2013) 3 SCC 514.
25. Following the judgments (supra), even a Division Bench of this court in State of Jammu and Kashmir v. Janak Singh held in paragraphs 10 and 11 thus:
“10…………… for purposes of analyzing the general reputation of the respondent, his character roll in the shape of APRs is one of the relevant considerations, which reveals the performance of the officer over a period of time as assessed by his superior officers under whose direct supervision the officer has been working. Nothing has been brought on record to suggest that there was any adverse entry against the respondent. It is pertinent to note that respondent has earned promotion in the shape of selection grade in the year 2004. The circumstance dealing with the registration of two FIRs against the respondent dates back to the year 1997-98, which is remote in point of time and could not become the basis for his pre-mature retirement. Subsequent promotion of the respondent dilutes the allegations leveled against him.
11. The other aspect on the basis of which the opinion could have been formulated was that the reputation of the respondent in the general public was not good. This is an area where no documents of his service profile regarding his reputation have been maintained by his superiors. Otherwise also no specific material has been brought before the Court except for the fact that two criminal cases have been registered against the respondent. This is an area which is purely based on hearsay. We could not look for some specific material regarding the adverse reports on the general reputation claimed to have been gathered from cross section of people. Since the Review Committee, with its given texture, was not a fact finding or investigating machinery, it could not be expected to directly gather the reports. Nothing has been reflected, regarding the contents of the complaints received from the general public on the basis of which opinion has been formulated. On records therefore, there is no such report or even a mention thereof, in absence whereof the observations of the Committee as aforesaid, only appear to reflect certain loose impressions, attributable to hearsay which appears to have been at the back of their mind while recommending the pre-mature retirement of the respondent.
26. Since most of the arguments centered around what the Apex Court inSuryakant Chunilal Shah's judgment had stated in paragraph 27, it would be beneficial to reproduce the said paragraph in its entirely, which is 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 Govt. servant or that he had lost his efficiency and had become a deadwood, 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.”
27. On a reading of the aforementioned judgment, it thus, becomes clear that in the first part of the judgment, the Apex Court had clearly held that merely because a person is shown to have been involved in a criminal case would not per se mean that he was guilty of having committed that offence. The guilt would necessarily have to be established in the trial and before that stage is reached, it was held improper to deprive a person of his livelihood merely on the basis of his involvement.
28. However, on a reading of the latter part of the paragraph 27 of the judgment (supra), it is clear that that mere involvement in a case whether would constitute relevant material for compulsory retirement has been held to be dependent upon the circumstances of each case and nature of offence allegedly committed by the employee.
29. Learned counsel for the appellant-State in fact had tried to bring the present case within the ambit of the later part of the judgment.
30. In our opinion, looking to the fact that the case, which was being considered by the Apex court in State of Gujarat v. Suryakant Chunilal Shah was also a case where there were two FIRs registered against the Government servant under the Prevention of Corruption Act, which is similar on facts to the case at hand, no exception can, thus, be made in the present case contrary to the law as declared in the said judgment.
On Reputation
31. Counsel for the appellant urged that the recommendations of the Committee were not based only upon the fact that an FIR had been registered against the respondent but apart from that the committee took into consideration the fact that the petitioner didn't enjoy good reputation and his integrity was doubtful.
32. It was stated that with a view to get information regarding the reputation which an officer, in this case the petitioner enjoyed, the concerned secretary of the Administrative Department had been co-opted as a member of the committee whose views were given due respect and weightage while making the recommendation.
33. While the committee can always assess the integrity of a government servant and consider the reputation which he enjoys yet for assessing the same, there has to be some basis in the service records. Hearsay reputation or casual statements questioning the integrity of a person ought not to be considered for the same may be baseless or attributed for malafide purposes. Even for purposes of assessing the reputation of a government servant, the material must be cogent, the same must be in the shape of record which must then be considered in the correct perspective. Opinion regarding doubtful integrity and questionable reputation must emanate from an officer who has had an opportunity to see the work and conduct of the officer from a close quarter on a day to day basis. Relying upon opinion of a Secretary of the Administrative Department who might not have any first hand information and experience of having seen and worked with the officer concerned would be both risky and uncalled for and would give credence to the saying “give a dog a bad name and kill it”.
34. In the present case, the Committee has not discussed as to what was the source or material based upon which the petitioner was said to be not enjoying good reputation. If that be so, the order of pre mature retirement based upon any such assessment can only be said to be arbitrary and thus cannot be upheld on the legal touchstone.
35. Testing the facts of the present case on the touchstone of the law discussed hereinabove, it can be seen that the Committee constituted by the Govt. did not at all consider the relevant material and had taken a decision based only upon the fact that an FIR had been registered by the Vigilance Organization Jammu against the petitioner. In that view of the matter, there was no justification for the State to pre-maturely retire the respondent-petitioner from service.
36. Having considered the entire issue, we cannot persuade ourselves to take a view different from the one taken by the learned Single Judge. The appeal is found to be without any merit and is accordingly dismissed.

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