HAMMID AHMAD WANI Vs. STATE OF J&K

JUDGEMENT

(1.) The entire range of the controversy raised here in this petition revolves round the plea whether the Order bearing No. 882-GAD of 2015 dated 30th of June, 2015, 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, namely, Mr. Hammid Wani, Chief Town Planner, JDS, Jammu, to the effect that he having already rendered 22 years of service, shall retire from service w.e.f. the forenoon of the 1st day of July, 2015, can withstand the test of judicial scrutiny.

(2.) The crux of the petition of the petitioner is that during the entire tenure of his service, he worked with great deal of honesty and dedication at different places of posting and, at the relevant point of time, i.e. the day when the order aforesaid was issued, he was holding the post of the Chief Town Planner, JDA, Jammu, in the Town Planning Organization, Kashmir. The petitioner has further contended that vide Government Order No. 65-UD of 1993 dated 12th March 1993, he was appointed as an Assistant Town Planner in the Town Planning Organisation, Kashmir and on the basis of his merit and suitability, he was promoted albeit on officiating basis as Town Planner, vide Government Order No. 193-HUD of 2001 dated 17th August 2001. Vide Government order No. 231-HUD of 2006 dated 6th September 2006, the petitioner was promoted to the post of Senior Town Planner and thereafter vide Government Order No. 177- HUD of 2014 dated 23rd May 2014, he was promoted on officiating basis as Chief Town Planner, Jammu Development Authority. However, vide impugned Order No. 882-GAD of 2015 dated 30th June 2015, the petitioner has been compulsorily retired from service with effect from the forenoon 1st July 2015. It is maintained that the purpose/object underlining the Rule embodied in the Article 226(2) of the J &K Civil Service Regulations, is to weed out the worthless, inefficient, corrupt/dishonest employees, who in the considered opinion of the Government/competent authority, have become deadwood and thus, a burden on the administration and, therefore, liable to be chopped off in the public interest. Before taking recourse to the power of the compulsory retirement, the requisite opinion to be formed by the respondent State, must be portrayed to be bona fide, based on relevant material comprising of/constituting the service record of the petitioner. The records testify to the fact that contribution of the petitioner as a member of the J &K Town Planning Organisation, during his service tenure, has been significant and creditable as is clearly discernible from the Town Planning Projects undertaken by the Town Planning Organisation from time to time. It was only in the consideration of the creditable services rendered by the petitioner in different capacities as a member of the Town Planning Organisation and on an overall assessment of his merit and suitability that the petitioner was promoted on incharge basis as Senior Town Planner and thereafter as Chief Town Planner. The service records in the form of Annual Performance Records (APRs) of the petitioner maintained in the course of the service by the respondents 1 &2, furnish the clinching evidence of the fact that on an objective appraisal of the work, conduct in the context of the merit, suitability and the efficiency of the public servant has been right throughout rated as "outstanding". It is maintained that the impugned order, under the cloak of compulsory retirement is clearly and manifestly an order of premature termination of service within the mischief of the Article 311(2) of the Constitution of India, corresponding to Section 126(2) of the Constitution of Jammu and Kashmir and thus, constitutes on the face of it fraud, not only on the power and authority as by law vested in the respondent No. 1, under the Article 226(2) of the J &K Civil Service Regulations, but also on the Constitutional guarantees guaranteed to the petitioner under the Articles 14, 16 and 311(2) of the Constitution of India corresponding to Section 126(2) of the Constitution of J &K, rendering in sequel thereto the impugned order totally illegal to the extent of being non est in law and liable to be quashed.

(3.) The Respondents have strenuously resisted and controverted the petition of the petitioner, on the grounds, inter alia, that the Government has to perform a multitude of tasks in order to implement various welfare measures of public interest, and the paramount aim is of providing clean and effective administration to the people of the State. In order to make the administration effective, a periodic review of all Officers is taken up by the Government, the aim and object being to encourage honest and efficient Government servants and, simultaneously, to weed out the inefficient and corrupt officers from the services in the public interest. While as, various incentives and awards are given to honest and efficient officers/officials, recourse is taken to the provisions of Article 226 (2) and (3) of the Jammu and Kashmir Civil Services Regulations, 1956, for the removal of such Government officials from the State services, who have become deadwood on account of their indulging in inefficient and corrupt practices. The order of compulsory retirement passed in the case of the petitioner is based on the object of weeding out the deadwood from the State services. Article 226 (2) of the Jammu and Kashmir Civil Services Regulations is designed to infuse the administration with an initiative for better administration and for augmenting the general efficiency so as to meet the expanding horizons and cater to the new challenges faced by the State to provide sensitivity, probity, non-irritative public relation and enthusiastic creativity, which can be achieved by eliminating the deadwood. In order to consider the case of the petitioner for compulsory retirement, under and in terms of the Government order bearing No.17- GAD (Vig.) 2015 dated 20th May 2015, sanction was accorded to the constitution of a Committee to consider the cases of the Officers/officials for premature retirement. The Committee met on 26th June 2015 and amongst others, considered the case of the petitioner. The Committee observed that the petitioner by abusing his official position in Town Planning Organisation, Kashmir, has conferred undue benefit upon the beneficiaries by making mischievous reports regarding change of land use falling under Planning Sub-Zone A-14 of Master Plan, Pahalgam and accordingly, the FIR No. 27/2008 under Section 5(1)(d) read with Section 5(2) of the J &K Prevention of Corruption Act, Samvat, 2006, and Section 120-B, 109 RPC at Police Station Vigilance Organisation Jammu, was registered against the petitioner. The competent authority after considering the records and the evidence collected by the investigating agency and applying its mind to the facts and circumstances of the case, accorded sanction to the prosecution of the petitioner vide Government Order No. 35-GAD (Vig) of 2011 dated 10th June 2011. The charge-sheet in terms of Section 173 Cr.P.C., 1973 has been laid before the court of law. The Committee observed that the Annual Confidence Reports (ACRs) of the petitioner are not available. The Committee took note of the fact that the petitioner indulged in corrupt practices and has made several wrong reports related to the Master Plan of Pahalgam for his pecuniary benefits, thereby substantiating the fact that he has outlived his utility to the public. Having regard to the material placed before the Committee, the Committee came to the conclusion that the petitioner is generally known to have bad reputation and indulging in corrupt practices. The Committee, therefore, recommended for retirement of the petitioner under Article 226(2) of J &K CSR. The recommendations so made were accepted by the Competent Authority, as a consequence of which, the impugned order was issued. It has been, accordingly, pleaded by the Respondent-State that the impugned order is legal. It is in accordance with law. The writ petition, as such, is legally misconceived, untenable, without any merit, and, in sequel thereto, merits dismissal.