JAMMU, Feb 9: High Court today quashed the compulsory retirement of KAS officer Bhumesh Sharma, the then Programme Officer ICDS Project Samba and held that order of compulsory retirement cannot be passed as shortcut to avoid the departmental inquiry when such course is more desirable.
After hearing both the sides, Justice Alok Aradhe observed, “before proceeding to deal with the matter on merits, at this stage it is apposite to take notice of well settled legal principles with regard to compulsory retirement in public interest”, adding “the Supreme Court while dealing with scope of judicial review in such cases has held that when an order of compulsory retirement in public interest is challenged before the court, its validity depends upon its being supported by public interest”.
“The State must disclose the material so that the court may be satisfied that the order is not bad for want of any material. The court is confined to examination of the material merely to see whether a rationale mind may conceivably be satisfied that compulsory retirement of the officer concerned is necessary in public interest”, Justice Aradhe said while quoting various judgments of the Apex Court.
“Admittedly in the instant case from the perusal of the record as well as minutes of the committee, it is evident that the decision to compulsory retire the petitioner is based on involvement of the petitioner in the First Information Reports as well as irregularities in the selection, appointment and promotion of petitioner and the misconduct allegedly committed, which has been found in the discreet inquiry”, High Court said, adding “the committee also came to the conclusion that the petitioner does not enjoy good reputation in the public”.
Justice Aradhe further observed, “it is pertinent to mention here that the FIR No. 20/2005, which was registered against the petitioner was investigated by the CBI and closure report was accepted by the court vide order dated 22.03.2007. It is also pertinent to mention here that the petitioner is not involved in FIR No. 13/2012. From the perusal of the APRs of the petitioner, it is evident that no departmental inquiry was pending against him”.
“It is also pertinent to mention here that no explanation is forthcoming from the respondents as to why Vigilance Department gave the clearance to the petitioner and why the petitioner was selected to the Kashmir Administrative Service in the year 2010, if his performance as an officer was not up to the mark”, Justice Aradhe said, adding “admittedly, the APRs of the petitioner, which have been reproduced by the petitioner, have not been taken into account by the respondents”.
“The respondents have relied on the discreet inquiry report, which pertain to the old incidents. It is relevant to mention here that the petitioner was selected for the Kashmir Administrative Service in the year, 2010 after obtaining clearance from the Vigilance Department on 23.06.2009 and opinion with regard to integrity of the petitioner has been farmed on the basis of his involvement in FIRs that too on incorrect facts, inasmuch as, in FIR No. 20/2005 the closure report has been accepted by the court and in the second FIR No. 13/2012, the petitioner has not been named”, High Court.
Stating that committee has clearly exceeded its jurisdiction in arriving at the conclusion about the petitioner, High Court said, “the formation of opinion in the instant case that petitioner is a deadwood leading to passing of impugned order is not only arbitrary but suffers from the vice of non application of mind and is based on no material”, adding “in case the respondents were of the opinion that the petitioner has done the act of misconduct, they ought to have held departmental inquiry against the petitioner”.
Stating that order of compulsory retirement cannot be passed as shortcut to avoid the departmental inquiry when such course is more desirable, Justice Aradhe said, “in the instant case, it appears that order of compulsory retirement has been passed as shortcut to avoid departmental inquiry”, adding “impugned order cannot be sustained in the eyes of law”.
With these observations, High Court quashed the impugned order with the directions to the respondents to reinstate the petitioner with all consequential benefits within one month from today.