STATE TIMES NEWS
JAMMU: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Ali Mohammad Magrey and Justice Puneet Gupta while dismissing a LPA filed by Govt, held that that respondent could not be prematurely retired solely by reason of fact of registration of two FIRs, in which petitioner is an accused.
This significant order has been passed in LPA by State of J&K (Now Union Territory) has been filed against judgment and order dated 23.03.2018 passed by a Single Judge whereby the respondent’s writ petition, SWP no.1453/2015, challenging his compulsory retirement order from Government service, issued by appellants, has been allowed quashing the order impugned therein with direction to the appellants to reinstate the respondent-writ petitioner and grant him all consequential benefits within the period specified therein.
DB, while upholding the judgment of Writ Court, observed that the fundamental principles are that order is passed on the subjective satisfaction of the government and that the government shall have to consider the entire record of service before taking a decision in the matter. “It hardly needs to be stated that subjective satisfaction is not to be arrived on the basis of imagination, but should be reached at on the basis of material which satisfies a rational mind. The material, as mentioned in the OM No.GAD (Vig)19-Admn/2010 dated 25.10.2010, has to be the entire service record, especially the APRs. The OM also enjoins to take into account other factors mentioned therein like details of any promotions given in favour of employee in the last three to five years; the number and nature of complaints, if any, received; enquiries, if any, conducted by the State Vigilance Organization or by the Department concerned and the outcome thereof; cases, if any registered/investigated by the State Vigilance Organization, nature of the allegation and the outcome of the investigation; adverse reports, if any, received by the CID about the reputation of the official and the gist of such reports supported by evidence; gist of irregularities committed by the employee, like in the matter of appointments; brief mention about failure, if any, in achieving the targets set out for him by the Government/Department with supportive details; warning and censures issued to the employee. If there are no complaints received, no enquiries conducted, no adverse reports received from the CID about the reputation of the official, no irregularities committed by the employee in the matter of appointments, no failures reported in achieving fixed targets, no warnings and censures earned, then these would constitute factors relevant to be taken into account along with the APRs of the employee while forming the opinion in terms of Article 226(2) of the CSRs. It is to be borne in mind that OM No.GAD (Vig)19-Adm/2010 dated 25.10.2010 was not only meant to screen the undesirable employees, but its express object was also to encourage the honest employees; meaning thereby that the above factors would and could be used positively or negatively in favour or against an employee. In that sense, these factors in favour of the respondent had to be taken into account by the Screening Committee, but that has not been. This Court has already recorded a finding that the Screening Committee has not taken into account the APRs of the respondents. It is not only the finding of the Court, but is admitted by the appellants without mincing any words. Once the Screening Committee has omitted to take into account the tangible evidence in the shape of APRs, it cannot be expected of them to have taken into account the aforesaid intangible but crucial factors. The Court has no option, therefore, available to it but to come to the conclusion that the report/opinion of the Screening Committee suffers from vice of non-application of mind and is, accordingly, rendered unreasonable and arbitrary. Consequentially, the Government order No.857-GAD of 2015 dated 30.06.2015 is equally rendered arbitrary,” the Court observed.