STATE Vs. RAJINDER SINGH RANA

JUDGEMENT

(1.) RESPONDENT , an Ex -Chief Engineer PWD (R and B) who was retired compulsorily under Article 226 (2) of the J & K Civil Services Regulation, filed a writ petition No. 69 of 1986 mainly on the ground that the action of the appellant -State was malafide, arbitrary, discriminatory which denied to him the equal protections of law and violated the provisions of the constitution changing his service conditions. The learned Single Judge who heard the case held that the impugned order was not in public interest and that the same was passed as a measure of punishment which could not be sustained while allowing the writ petition and quashing the impugned order No. 300 -GR of 986 dated 25 -4 -1986 it was directed by a writ of mandamus that the petitioner be treated in service and restored the office which he held on 25th April, 1986. The respondent herein was further held entitled to the payment of all the emoluments, allowances, salary etc. which were attached to the said post. The learned Single Judge held that the conclusions drawn by the Vigilance Organization of the Anticorruption seems to be unfounded. Aggrieved by the judgment of the learned Single Judge, this appeal has been preferred by assailing the judgment impugned to be ex -facie legally untenable, factually misconceived and based on surmises and conjectures containing findings which are alleged to be perverse and erroneous, not supported by any record. It is submitted that the Government has the absolute power to retire a Government Servant prematurely on consideration of the relevant record and in public interest. Such an action of the government did not amount to removal from service of the government servant nor did it tentamount to punishment or cast any stigma. It is submitted that this court in no case has the competance on jurisdiction to substitute its own opinion for the opinion of the Government. It is submitted that the learned Single Judge fell in grave error by treating the note of the Vigilance Commissioner submitted for perusal as the only material on which the order under challenge was founded and allegedly by substituting its own opinion on what was contained in the said note. It is submitted that the order of compulsory retirement was not subject to any judicial review. The learned Single Judge did not have the competence, Jurisdiction or authority to go into the sufficiency or otherwise of the material for passing the order prematurely retiring the respondent, is alleged by the appellants in their memo of appeal.. It is further submitted that the finding of the learned Single Judge to the effect that Vigilance Commissioners report had belied the story set up by the appellant State in their affidavit, was grossly misconceived, as the appellant was not to specify the material as basis on which the respondent herein was required to retire prematurely in terms of Article 226 (2) of the J & K C.S.R. The learned Single Judge was not justified in holding that the report of the Vigilance Commissioner was the only basis for passing the impugned order because the Government had considered the material against the respondent which existed prior to 25 -4 -1986, the date on which the order of premature retirement was passed. It is submitted that the learned Single Judge was not justified in holding the respondent, œefficient, honest and devoted to duty.  It is alleged that the learned Single Judge did not properly appreciate the concept of public interest and fall in grave error by holding that the respondent had been prematurely retired not in public interest but for extraneous reasons. It is prayed that the judgment of the learned Single Judge passed in writ petition No. 1169 of 1986 be set aside and the order of prematurely retiring the petitioner be upheld.

(2.) SOME of the relevant facts giving rise to the filing of this appeal are that the respondent joined Jammu and Kashmir Engineering service in the year 1954 after passing his B.A.B.Sc., Engineering (Civil and Municipal). He claimed that by virtue of his hard work, efficiency integrity and devotion to duty, be rose from rank to rank to the apex position of the Chief Engineer in the year 1977. His merit, integrity and efficiency is claimed to have all along been appreciated and recognized by the Government of Jammu and Kashmir on the basis of which he was awarded Gold Medal on 26th Jan., 1985. He claimed to have gained the highest award of public function in recognition of excellent and his meritorious service and integrity. The annual performance report of the respondent throughout his service career were claimed to be outstanding and no adverse remarks had ever been communicated to him. He claimed to have been acknowledged by the authorities as a technocrat of country wide repute. The respondent claimed distinction of being a Council Member of Indian Roads Congress besides being a Member of All India IRC, specifications and standards committee for three consecutive terms. He alleged that he was appointed as Adminis ­trator of Jammu Municipality on public demand for two different terms. On the basis of his alleged outstanding merit and brilliant record of service, the respondent is alleged to have been recommended by the State Govern ­ment for induction into Indian Administrative Service in December, 1985. Governors rule was promulgated in the State of J & K on 5 -3 -19 -6 where ­after his Excellency assumed himself all the functions of the Government of the State except the powers vested in or exercisable by the High Court of J & K. Sh./Shri Naresh Chander, IAS, and J.M. Quarashi were appointed as Advisors to the Governor for facilitating the administration of the State Government. The Governor appointed a screening committee on 31st of March, 1986 to consider the cases of officers who were to be compulsorily prematurely retired in terms of Article 226 (2) of the J & K C.S.R. on the basis of the recommendations of the aforesaid screening committee, a bunch a 11 officers was compulsorily retired. It is alleged that the assignment of the screening committee was to identify the group of officers and to punish them without following the provisions of the Constitution and of the rules applicable to the service. On 25 -4 -1986 vide the order impugned in the writ petition, the respondent was compulsorily retired. It was claimed that the impugned order in the writ petition was issued by the appellant in exercise of arbitrary authority, without application of mind, malifedely and unconsti ­tutionally contravening Article 14 and J 6 of the National Constitution and Section 126 of the State Constitution. The impugned order was alleged to have been given much publicity after levelling grave and humiliating allegations of corruption and inefficiency as a result of which the image, reputation and prestige of the respondent was allegedly damaged and tarnished inevitably resulting a stigma on his clean, unblimished and distinguished service career. The impugned order was claimed to have been passed as a result of the alleged ill -will purposeful and intentional pick and choose of the officers disliked by the State Governor for reasons not genuine and lawful. It was submitted that the impugned order was actuated by malice and vindictive motive of the Governor which was malafide, arbitrary and discriminatory depriving the petitioner of equal protection of law and being in gross -violation of Articles 14 and 16 of the National Constitution and Section 126 of the State Constitution. No material facts on record were considered by the appellant -state while passing the impugned order. It was further submitted that the considerations and the conclusions of Members of the screening Committee were wrong and based upon improper assessment and founded on the suggestions, information and reports of the extraneous agencies hostile to the respondent herein vidently because the advisors of the Governor had joined their assignments only in March, 1986 and were neither in the know nor aware of conversant with the work and performance of the respondent. The third Member Sh. R.K. Thakar in his capacity as Chief Secretary had adjudged and acknowledged him as best Engineer and technocrat with a country -wide repute which suggested that he did not introduce or sign or agree with the other two members of the screening Committee recommending the premature compulsory retirement of the respondent. The impugned order apparently stated to have been made in public interest was not actually and factually in public interest and the words used therein were only a comouflage to cover the alleged malafide action and illegal intentions of the appellant. The respondent detailed a number of circumstances in para 41 of the writ petition to prove the malafides of the Governor. As serious and grave stigma was allegedly attached to him allegedly on the ground for not succembing to the pressure to commit breach of rules and illegaties of performance of his duties, the impugned order was claimed to be a punishment within the meaning of Article 311 of the National Constitution. The respondent prayed for quashing the Government order No. 300 -GR of 1986 dated 25 -4 -1986 as being illegal, unconstitutional and violative of Articles 14 and 16 of the National Consti ­tution and Sections 124 and 126 of the State Constitution. He also prayed for the issuance of the writ of mandamus directing and commanding the respondents to restore the respondent herein the office of Chief Engineer PWD (R & B) Jammu with all rights, privileges and powers as if no order of compulsory retirement was passed. He also prayed that the recommendations initiated and processed prior to the impugned order in connection with his promotion to the Indian Administrative service be accepted and implemented.

(3.) ON 3 -11 -1986 a notice was issued to the respondents by this court to show cause regarding the admission of the writ petition. Mr. F.A. Goni GA appeared in the court for respondents 1 and 2 on 8 -12 -1986 and sought sometime to file the objections. As there was no record available regarding the service of other respondents, the writ petitioner was directed to file service affidavit. In response the writ petitioner filed a vague affidavit regarding furnishing of registered envelopes alongwith AD receipts for the service of respondents 5 to 7 only. The registry again directed the case to be listed for admission on 16 -12