JAMMU, Sept 18: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Tashi Rabstan and Justice Rahul Bhart today held that the power to retire compulsory a Government servant in terms of service rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. Further, the order of compulsory retirement cannot be based on the sole basis of recommendations of the committee which has to be considered by the competent authority in accordance with law.
Accordingly, DB upheld the judgment of Writ Court whereby premature retirements of Gautam Singh and D K Nargotra was quashed.
This significant judgment has been passed in Letters Patent Appeal directed against the judgment and order dated 26.12.2017 delivered by the Single Bench in SWP No.723/2005, whereby the Single Judge quashed the impugned order, bearing No.480-GAD of 2005 dated 26.04.2005 compulsory retiring the writ petitioner from service in public interest with effect from 26.04.2005 in exercise of powers under Article 226(2) of the Jammu and Kashmir Civil Services Regulations.
“A perusal of the file clearly reveals that the Government has run roughshod over the writ petitioner by compulsory retiring the writ petitioner from service as the decision seems to be based on no material, in as
much as the writ respondent even did not conduct any departmental inquiry with respect to the act of alleged misconduct on the part of writ petitioner”, the DB said, adding “further, the writ respondent did not deny in the writ petition the claim of writ petitioner that his APRs from the years 1999-2000 and 2003-2004 have been ‘good’, more so the Single Judge had specifically opined the important aspect of considering the APRs has been given a complete goby by the committee while considering the writ petitioner’s compulsory retirement”.
“The committee, in general, ought to have considered the entire service record of the public servant available in the shape of APRs, service book, personal file giving the details of the complaints received against him from time to time and so on and so forth. While retiring the public servant compulsory, his case has to be considered on the basis of documents/ service particulars”, the DB said, adding “it is conspicuous by its absence in the 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 non application of mind and decision having been taken not on just grounds”.
“It appears the APRs of writ petitioner, which were annexed by him with the writ petition, have not been taken into account by the respondents. In view of absence of any adverse entry in the APRs of the writ petitioner, the reputation of writ petitioner cannot be termed as doubtful, as projected, nor could his conduct be determined only on spoken words in the absence of any material on record, which was the fundamental flaw in the order issued against the petitioner compulsory retiring him from service”, the DB said.
While dismissing the appeal filed by GAD, DB observed, “we are not inclined to take a view other than the one taken by the Single Judge. Accordingly, the appeal is dismissed along with connected CM upholding the judgment and order of Single Judge. However, as regards the allegations leveled by the writ respondent against the writ petitioner, the State and its officers at the helm of affairs if are fair enough and have a will, and do not intend to provide a safe passage to writ petitioner, are free to go ahead with inquiry, if they deem fit, and complete the same in a time bound manner”.