M.K. Hanjura, J.The entire range of the controversy raised here in this petition revolves round the plea whether the Order bearing no.189-GAD of 2012 dated 13th February 2012, 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 Aijaz Ahmad Kirmani, I/C AEE, J&K Police Housing Corporation, Srinagar, to the effect that he having already rendered 22 years of service, shall retire from service w.e.f. the forenoon of the 13 th February 2012, 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 I/C AEE, J&K Police Housing Corporation, Srinagar. The petitioner has further contended that he was appointed as Junior Engineer on 9th March 1988, and on the basis of his merit and suitability, he was promoted as Assistant Engineer vide Government Order no.548-Works of 2001 dated 28th December 2007. By Government order no.43-PW(R&B) of 2005 dated 18th February 2005, he was promoted as I/C Assistant Executive Engineer and posted in J&K Police Housing Corporation on 19th February 2010. However, vide impugned Order no.189- GAD of 2012 dated 13th February 2012, the petitioner has been compulsorily retired from service with effect from the forenoon of 13th February 2012. 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 the contribution of the petitioner as a member of the J&K Public Works (R&B) Department, during his service tenure, has been significant and creditable as is clearly discernible from the R&B Projects undertaken by the Public Works (R&B) Department 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 Public Works (R&B) Department and on an overall assessment of his merit and suitability that the petitioner was promoted as Assistant Engineer and thereafter as I/C Assistant Executive Engineer.

3. It is contended that while the petitioner was posted as the Assistant Executive Engineer in the Right Reverse Circular Road Division, Srinagar, a case was registered against him in the Police Station Vigilance Organization, Kashmir, on 30th April 2007, on a written complaint lodged by one Mushtaq Ahmad Burza, on the basis of which an FIR no.28/2007 was registered against him by the Vigilance Organization, Kashmir, Srinagar. During the course of investigation, the petitioner was falsely trapped by VOK and was taken into custody on 30th April 2007. He, however, filed a bail application before the court of competent jurisdiction, which was pleased to grant him bail on the very next day i.e. 1st May 2007. The petitioner thereafter presented a statement of facts in the shape of a memorandum dated 7th May 2007 before the Commissioner, Vigilance Organization, Kashmir and a copy whereof was also endorsed to the Governor of J&K State; the Chief Minister of the State; the Minister for PWD (R&B) J&K State; Director General of Police, J&K; Secretary to Government PWD(R&B); and the Chief Engineer, R&B, Kashmir, wherein the actual account of the episode was indicated to them.

However, on the basis of the investigation conducted by the VOK, a case was filed against the petitioner in the court of learned Special Judge, Anticorruption, Srinagar, in which the complainant tendered his evidence on 26th and 27th September 2011. He, however, turned hostile and by and large supported the case of the petitioner and the version given by him in his memorandum submitted to the concerned authorities on 7th May 2007. The aforesaid case which emanated from FIR no.28/2007, was during pendency of the instant writ petition, dismissed on merits by the learned Special Judge, Anticorruption, Kashmir, Srinagar vide its judgement dated 13th December 2013. It is maintained that the impugned order, under the cloak of the compulsory retirement is clearly and manifestly an order of premature termination of the 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 the law and liable to be quashed.

4. Petitioner also states that he is residing in Flat no.4, Government Flats, Jawahar Nagar, Srinagar and under the garb of the order dated 13th February 2012, the respondents are going to throw him as well as his family out of the said quarter which is bound to cause great prejudice to the petitioner and his family members. The petitioners wife is a government servant and she is presently posted in a school at Jawahar Nagar. The petitioners children are also reading in Mallinson Girls School, Srinagar, and because of the passing of the order impugned the family of the petitioner including his children are going to get badly affected.

5. 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 remove the deadwood from the Government machinery, a Committee was set up vide Government Order no.32-GAD (Vig) of 2011 dated 16th May 2011, comprising of the senior officers headed by the Chief Secretary to scrutinise the record/activities of such officers/officials and recommend premature retirement in terms of Article 226(2) and 226(3) of J&K Civil Service Regulations, 1956, in case of the officials who should be removed from service/premature retired. The Committee, on the basis of the reports from the concerned Departments and various agencies as well as the opinion from the public in general, held series of the meetings and after scrutinizing the records and other relevant factors of the conclusion that it is in the interest of public that the petitioner be prematurely retired from the government service. 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.

6. In his rejoinder affidavit, the petitioner has stated that it is well settled position of law that when an officer is to be prematurely retired from service, the authority concerned has to take into consideration the whole service record of the officer and the service record of the petitioner has all along remained unblemished. The report of the Committee constituted by the Government for scrutinizing the records and other relevant factors of the various officers/officials including the petitioner for recommending their premature retirement and the consequential order of premature retirement of the petitioner, is without jurisdiction. Petitioner also claims that as per the objections of the respondents, the Annual Confidential Reports (ACRs) of the petitioner were not available in the Department and non-availability was duly certified by the Administrative Department, which also shows that the Committee constituted by the Government, has not examined the ACRs of the petitioner at all and has, therefore, arbitrarily submitted a report to the Government for retiring the petitioner prematurely from the service. The Government order no.1311-GAD of 2001 dated 9th November 2001, it is next averred, clearly provides that the APRs in respect of the officers shall be maintained by the Accepting Authority and where the Accepting Authority is the Minister, it is to be maintained by the concerned Administrative Department. The APRs have to be written by the Initiating Officer, who will submit the same to the Accepting Authority through the Reviewing Authority. Every Initiating Officer has to ensure that a set containing two formats of APRs is sent to the officer(s) to be reported upon by or before 31st of March every year for causing the officer to be reported upon, to record his SelfAssessment by or before 30th April on the APRs for the preceding financial year. In case the officer fails to record his Self-Assessment within the reasonable time, the Initiating Officer shall initiate the APR after recording that the officer concerned failed to record his self-assessment.

7. His further submission is that the APRs of the officer should be written by such initiating officer under whom the officer reported upon has worked for a maximum period of the year under report. The APR has to be written in respect of every officer for each financial year. The Initiating Officer has to record his comments about the self-assessment of the officer and fill in the appraisal column on his performance for the year under report, to the Reviewing Authority on or before the end of June of the following year. The Reviewing Authority has to review and submit the report for the year to the Accepting Authority by 15th of July of the following year and the report has to be completed as far as possible by the end of July. An officer (Initiating/Reviewing) who fails to record the report on the officer within the prescribed time, has to himself come under the adverse comment by the next superior at the time of writing his/her APR. If the petitioners APR have not been written by the Initiating Officer and he has not submitted the same to the Accepting authority through the Reviewing Authority, no fault can be found with the petitioner. Instead it is the Initiating Officer who has to come under adverse comment for his failure to record the APRs of the petitioner. The petitioners Initiating Officer has all along been the concerned Executive Engineer and the Reviewing as also the Accepting Authority have been Superintending Engineer and the Chief Engineer concerned. Failure of the Executive Engineer concerned to the record the APRs of the petitioner and forwarding the same to the Accepting Officer through the Reviewing Officer, cannot be made a ground for retiring the petitioner prematurely from service.

Since the Committee constituted by the Government in its report has submitted that the APRs of the officer were not available in the Department and nonavailability has been duly certified by the Administrative Department, therefore, the Committee had no power to recommend the premature retirement of the petitioner because there was no record of service, more particularly the APRs of the petitioner available with the Committee. The petitioner maintains that the report of the Committee as also the consequential order of the Government, retiring the petitioner prematurely from service are illegal.

8. The petitioner also avers in the rejoinder that the Committee constituted by the Government has taken into account the fact that the petitioner does not enjoy the reputation in public, because based on a specific complaint a trap was laid against him when he was posted as the Assistant Executive Engineer, R&B, Srinagar and he was found demanding and accepting the bribe for releasing the outstanding payment in favour of the contractor for the public works executed by him. The committee has also stated that he was caught red handed by the Vigilance and money was recovered from him. The committee has, therefore, come to the conclusion that the petitioner be retired from the service in the public interest. The petitioner has already submitted in his writ petition that while he was posted as Assistant Executive Engineer in the Right River Circular Road Division, Srinagar, a case was registered against him in Police Station VOK on 30th April 2007, on a written complaint, on the basis of which, FIR no.28/2007 was registered against him. He has also stated that during the course of the investigation he was falsely trapped by the VOK and was taken into custody on 30th July 2007. He was bailed out by the court on the next day. A case was filed before the court of the learned Special Judge, Anticorruption, Srinagar, which has been dismissed.

9. Heard and considered.

10. What requires to be stated, at the outset, is that the Government, in an attempt to cleave to the principles of chopping the deadwood in the shape of corrupt and inefficient Government servants from service and to maintain the highest standards of efficiency, constituted a Committee headed by the Chief Secretary of the State vide Government Order bearing no.32-GAD (Vig) 2011 dated 16th May 2011. The Committee, in addition to the Chief Secretary, comprised of Principal Secretary to Government, Public Works Departments; Inspector General of Police, CID, J&K; and Inspector General of Police, VOK. The Committee held its deliberations on various occasions and finally recommended for compulsory retirement of several Government officers/officials, including the petitioner. The respondents, in their Reply, have pleaded that the officers/ officials, whose conduct had come under a cloud, while accord of consideration to their cases by the Committee, the provisions of Article 226 (2) of the J&K Civil Services Regulations were invoked. The further case of the Respondents is that the Committee, while considering the case of the petitioner, came to the conclusion that the petitioner has a dubious integrity and was caught red handed while accepting the bribe. It is the specific case of the Respondent-State that the "Annual Performance Reports" of the petitioner were not considered by the Committee in the matter of passing the order impugned. While recording the order of his compulsory retirement, the baseline of the order impugned is the alleged involvement of the petitioner in the FIR detailed hereinbefore, buttressed with his general reputation which, it is stated, was unbecoming of a Government servant.

11. The State of Jammu and Kashmir has enacted a specific provision for dealing with the compulsory retirement of the public servants in the Civil Services Regulations of the State, with the ultimate aim of weeding out the corrupt and inefficient public servants and, at the same time, to prevent its use as a weapon of a penalty. It requires the formulation of an opinion to the effect that it is in public interest to do so. The said provision, known as Article 226 (2) of the Civil Services Regulations, reads as follows:

"226 (2): - Notwithstanding anything contained in these Regulations Government may, if it is of the opinion that it is in the public interest to do so, require any Government servant other than the one working on a post which is included in Schedule II of these Rules, to retire at any time after he has completed 22 years/44 completed six monthly period of qualifying service or on attaining 48 years of age; provided that the appropriate authority shall give in this behalf a notice (in one of the forms prescribed in annexures A and B hereto as the case may be), to the Government servant at least 3 months before the date on which he is required to retire or 3 months of pay and allowance in lieu of such notice. Such a Government servant shall be granted pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement."

12. It will not be impertinent to state that in the exercise of the power of the compulsory retirement vested in the Government under Article 226 (2) of J&K CSR based on reason, justice, fairness and a just analysis, the Government has issued instructions in terms of SRO 246 dated 30th June, 1999 and these have to be read in conjunction with the Regulation 226 (2) of the J&K CSR. These are as under:

"Government Instructions: Levels at which screening should be conducted for Non-Gazetted Employees.

1. At the Non-Gazetted level, a Screening Committed comprising of the Head of the Department and two other Senior Officers of the Department to be nominated by the concerned Administrative Department should conduct the review. The Screening Committee should screen the cases of all concerned persons and forward its recommendations to the Administrative Department for further follow up action in terms of Art. 226 (2) of J&K CSR. This review should be done regularly, preferably twice every year in the months of January and July each. The review should be conducted by the cadre controlling Administrative Department which controls the service to which the concerned Government servant belongs irrespective of where he may be working at the relevant time. However, if the employee is working in a different department then the Screening Committee should consist of at least one Senior Officer from the department in which the Government servant is/was working at the relevant time.

2. The review should, normally be initiated around six months before the officer/official attains the prescribed age or completes the prescribed service. A separate register can be maintained for keeping a watch on the time schedule for such review.

3. The final decision in the matter for Non Gazetted staff should rest with Administrative Department, which should take a final decision based upon the report of the Screening Committee. This should be done within a period of three months of receipt of report from the Screening Committee. The gist of the final decision can be recorded in the service book of the employee.

4. The decision of the Administrative Department implies a decision by the concerned Minister of the Department on file. Hence, he can review his own decision in the form of considering representations made by the concerned employees against the initial decision pertaining to premature retirement in the interest of natural justice.

Norms to be followed by the Screening Committees in cases of NonGazetted Employees.

1. The Annual Performance Report of the Non-Gazetted Employees are not normally written very carefully nor are they fully available in a large number of cases. The Screening Committee should, therefore, consider the entire service record including all material and relevant information available on record about the employees before coming to any conclusion.

2. The Government employees whose integrity is doubtful should be retired. For the purpose of establishing that the integrity of the Government servant is doubtful, the following information/records could be considered:

* Number and nature of complaints received, if any, against the Government servant pertaining to doubtful integrity or corruption.

* Number and nature of various audit paras pending, if any, against the Government servant in which concerned Government servant is found to be involved. * Number and nature of vigilance cases pending inquiry, if any, against the Government servant.

* Adverse entries in the APRs concerning doubtful integrity, if any.

* Number and nature of departmental inquiries/preliminary inquiries, if any, which are going on against the concerned Government servant.

* Number and nature of administrative censure/warnings/punishment pertaining to corruption/doubtful integrity against the Government servant, if any.

* General reputation of the employees."

13. By an addendum to these instructions, the Government in the General Administration Department issued an Office Memo bearing No.OM No. GAD (Vig) 19-Admn/2010 dated 25th October, 2010. The instructions issued by the Government in terms of SRO 246 dated 30th June, 1999, , as is repeated here, have to be read as a part of the Article 226 (2) of J&K CSR, in addition to the aforesaid Memo issued by the GAD. These are meant to be followed by the Screening Committee both in vigour and rigour while evaluating the cases of the officers forwarded to them for taking a decision with regard to their compulsory retirement. The norms laid down above make it succinctly clear that the Screening Committee, while analysing the cases of the employees for compulsory retirement and while considering that the integrity of a Government servant is doubtful, has to base its view on a variety of factors.

These are the number and nature of complaints received, if any, against the government servant pertaining to his doubtful integrity or corruption; the number and nature of various audit reports pending, if any, against such government servant; the number and nature of vigilance cases pending enquiry, if any; adverse entries in APRs concerning doubtful integrity, if any; the number and nature of departmental enquiries, preliminary enquiries etc.; the number and nature of administrative censures/warnings/punishments pertaining to corruption or doubtful integrity and, lastly, the general reputation of the employee. It is only on accord of consideration to the factors aforesaid that the Government can formulate an opinion as to whether or not, the Government servant whose case is under scrutiny before it, is or is not, a person of doubtful integrity and that his continuance in service is highly prejudicial to the smooth functioning of the administration and the public interest.

The decision to compulsory retire a Government servant has to be, as a matter of necessity, based on the strength of the above guidelines and the principles of law evolved from time to time in a catena of judicial pronouncements. In this regard, it will be profitable to quote the observations of the Supreme Court made in the paragraph nos. 8 and 18 of the case titled "Swaran Singh Chand v. Punjab State Electricity Board and others, (2009) 13 SCC 758 [LQ/SC/2009/1153] ", which read as under:

"8. It is further more well settled that when the State lays down the rule for taking any action against an employee which would cause civil or evil consequence, it is imperative on its part to scrupulously follow the same. Frankfurter, J. in Vitarelli v. Seaton, 359 US 535, stated:

"An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."

"18. In a case of this nature the appellant has not alleged malice of fact. The requirements to comply with the directions contained in the said Circular Letter dated 14-8-1981 were necessary to be complied with in a case of this nature. Non-compliance wherewith would amount to malice in law (See Govt. Branch Press v. D.B Belliappa, (1979) 1 SCC 477 [LQ/SC/1978/367] , S.R Venkataraman v. Union of India, (1979) 2 SCC 491 [LQ/SC/1978/322] and P. Mohanan Pillai v. State of Kerala, (2007) 9 SCC 497 [LQ/SC/2007/240] ).

Thus, when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable."

14. The view, as propounded above, has been repeated and reiterated by the Supreme Court in the case of "Madhya Pradesh State Cooperative Dairy Federation Lrd. And another v. Rajnesh Kumar Jamidar, (2009) 15 SCC 221 [LQ/SC/2009/830] ", Paragraph No. 43, of which assumes significance in the case at hand and it reads as follows:

"43. It is now a well settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature. ... ..."

15. It will also be relevant to refer to the observations made by the Supreme Court in the case titled "M.S. Bindra v. Union of India and others, (1998) 7 SCC 310 [LQ/SC/1998/872] ", Paragraph No. 13 of which is reproduced below, verbatim:

"13. While reviewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim nemo firutrepenteturpissimus (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law.

The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity"."

16. In the case of "State of Gujrat v. Umedbhai M. Patel, (2001) 3 SCC 314 [LQ/SC/2001/586 ;] ", the Supreme Court, at Paragraph No.11 of the judgment, excogitated definite principles of law relating to compulsory retirement and these are as follows:

"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized thus:

(i) Whenever the service of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure."

17. The law is that the order of the compulsory retirement, taken under the safety valve of the public interest, could not be treated as a major punishment and that the Article 311 (2) of the Constitution could not be invoked, as the employee concerned was no longer fit in the public interest to continue in the service and, therefore, he can be compulsorily retired. On an analysis of the principles laid down above, the order of the compulsory retirement can be subjected to judicial scrutiny, if the Court is satisfied that the order is passed (a) mala fide; or (b) that it is based on no evidence; or (c) that it is arbitrary - in the sense that no reasonable and prudent man would form such an opinion on the given material, in which case it falls under the category of an order termed to be perverse in the eyes of law. For framing an opinion to compulsorily retire a public servant, there should be some material on record to support and fortify it, as otherwise, it would amount to arbitrary or colourable exercise of power and, therefore, the order could be challenged on the grounds that the requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that is was an arbitrary decision.

18. Taking an overall view of the matter, the bottom line of the order of compulsory retirement of the petitioner is his conduct and the registration of an FIR against him, in which the charge sheet was laid before the court of the learned Special Judge Anticorruption, Kashmir, Srinagar, on 4th June 2008. The learned Special Judge Anticorruption, Kashmir, Srinagar, by a verbose judgement dated 13th December 2013, has held that the prosecution has miserably failed to prove the guilt of the accused/ petitioner beyond reasonable doubt. It also held that the Challan against the petitioner miserably fails. The same is, accordingly, dismissed, as a consequence of which, the accused/ petitioner was acquitted of the charges levelled against him.

19. Whether the compulsory retirement of the petitioner could have been directed under the facts and circumstances of the case is the moot question that requires to be determined herein this petition The answer to this question is provided at Para No. 27 of the law laid down by the Apex Court of the country in the case of "State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 [LQ/SC/1998/1151] " and ", which, for the convenience of ready reference, is reproduced herein below, verbatim et literatim:

"27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a government servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee."

20. Applying the ratio of law laid down above to the facts of the instant case, resort to the practice which has been followed by the State in directing the compulsory retirement of the petitioner will have serious ramifications in some cases. It will lead to consequences which can be disastrous for the smooth functioning of the official machinery. To illustrate this, it, needs, must be said that most of the employees have to deal with the cases of the public at large and the employees cannot practically keep every Tom, Dick and Harry in good humour. That being so, if this Sword of Damocles is kept hanging high on the heads of the employees, any Tom, Dick and Harry, can lodge a complaint against the public servant before the Vigilance Organisation which, ultimately, will pave way to show him the exit as has been the case herein and the very complainant who accused the petitioner of accepting bribe from him, knocked the bottom out of the prosecution case during the course of the trial of the case. Not only this, such a practice cuts at the very root of the basic tenets and the elements of the age-old adage and axiom of law that a person accused of an offence is presumed to be innocent unless and until his guilt has been proved. The State has applied this principle in the reverse, perhaps, labouring under the belief that the maxim of law is that every person is presumed to be guilty unless and until he proves his innocence. It is only on the culmination of the trial that if the charges are proved against the accused and, as a consequence thereto, he is convicted and sentenced, that such an opinion can be framed. The whole exercise has been conducted on the basis of the involvement of the petitioner in a criminal case in which he has been acquitted. If the contention, as propounded by the State, that the involvement of the petitioner came into limelight in a case and, therefore, he was shown the door is accepted, the meaning that will flow from it is that a presumption will be drawn against each public servant facing the changes of corruption that in the ultimate analysis, he will be convicted for the offence(s) levelled against him, as a corollary to which, he will lose his service. Such hypothesis or supposition cannot be countenanced in law and, had it been so, it would have formed the basic structure of the rule itself, that such acts of omission and commission will lead to the presumption that the employee has a doubtful integrity or conduct unbecoming of a public servant.

21. Judicial review of an order of the compulsory retirement, passed not by way of any punitive measure but for cleansing the administration of the inefficient and corrupt public servants without attaching any stigma, has been the subject matter of adjudication in several cases before the Supreme Court as well as in this Court. It would be relevant to refer to the observations made by the Supreme Court at Paragraph No. 13 of the case titled "M.S. Bindra v. Union of India & Ors., (1998) 7 SCC 310 [LQ/SC/1998/872] ", which is reproduced hereunder:

"13. While reviewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim nemofirutrepenteturpissimus (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".

22. Looking at the instant case from the above perspective, an important facet, which cannot be lost sight of, is that the Committee has given a complete goby to the Regulation 226(2) of the J&K CSR read with the instructions (provided hereinbefore) buttressed to it in considering his compulsory retirement. These lay great emphases and spell out the need and demand to consider 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 considering the desirability of the retention or otherwise of a public servant, whose conduct has come under a smoke of cloud, the criminal case registered against him can be considered on the parapet and the bulwark of the chain of the documents/ service particulars, as stated hereinbefore. But to say that an FIR can form the sole basis to retire a public servant compulsorily is neither in tune nor in line with the scheme and mandate of Article 226(2) of the J&K CSR read with the guidelinesand the judicial pronouncements holding the ground. Taking such a view that an FIR only will form the basic structure of an order of compulsory retirement of a public servant will be repugnant and averse to the very concept and object of compulsory retirement. In order to attach a semblance of fairness to such an order, the entire service record of a public servant, more significantly the service record of the previous years preceding the decision, has to be assessed and evaluated. These cannot be skipped and shelved in formulating such an opinion by taking umbrage under the plea that the same were not available, as stated here in this 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 the non-application of mind and the decision having been taken not on just grounds, but for a collateral purpose, and, to cap it all, how can the conduct of a public servant be put through the wringer when there is no definite material to substantiate so. The reputation of a public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in the absence of any material on record. This is a fundamental flaw in the order issued against the petitioner, whereby he has been shown the door.

23. The enunciation of law, thus, signifies that registration of FIR or pendency of criminal case(s), cannot be made edifice for retirement of an employee compulsorily when his APR entries are good and integrity is portrayed in the APRs as beyond doubt. Reference in this regard may be made to S. Ramachandra Raju v. State of Orissa, (1995) AIR SC 111; Jugal Chandra Saikia v. State of Assam and anr, (2003) 4 SCC 59 [LQ/SC/2003/316] ; State of J&K and ors v. Janak Singh, (2010) 4 JKJ 89 [HC]; Rajendra Prasad Verma and ors v. Lieutenant Governor (NCT of Delhi) and ors, (2011) 10 SCC 1 [LQ/SC/2011/1229] ; State of J&K and anr v. Satish Chander Khajuria vide order dated 07.10.2016 passed in LPASW no.122/2016.

24. The argument of the learned counsel for the Respondent that the principles of natural justice cannot be invoked by a public servant in the aid of assailing an order of compulsory retirement and that such an order does not amount to a punishment, is based on the sound principles and cannons of law, but to say that such an order can be passed by shunning the material on the basis of which such an order can be passed in terms of the rules, regulations and the law governing the subject, is a spurious and a contrived argument. Such an argument is devoid of merit and does not have the legs to stand upon.

25. This Court, after verbose discussion decided an akin matter, being SWP no.1367/2017, titled Mushtaq Ahmad Baba v. State of J&K and others, with the following observations:

"20. Francis Bacon (1561 to 1626) said and I quote, "Laws are like cobwebs; wherein the small flies are caught and the bumble bees break through". To this is added the quote of Mr Henry Ward Beecher, which is "Law is a battery, which targets all that is behind it, but sweeps with destruction that is outside it". The quote of William Shenstone (1714-63) also fits to a "T" in this petition and it is that "Laws are generally found to be nets of such a texture, as the little creep through, the great break through, and the middle-sized are alone entangled in".

These quotes apply in all the fours to the instant case. Annexure-R9 attached to the Rejoinder affidavit of the petitioner, is an Unstarred CQ No. 185 of Shri Ashok Khajuria on the subject "Prosecution". The questions and the replies have been framed therein. The question No. (a) relates to the number and names of Government and PSU Officers/ Officials against whom the State Vigilance Organization (SVO) and Crime Branch have sought sanction for their prosecution from GAD. The question No. (b) pertains to the Officers/ Officials against whom sanction has been accorded for their prosecution and the question No. (c) specifies the Officers/ Officials against whom sanction is pending and the reason for delayed prosecution is the accord of sanction. Annexure "A1", appended to the said Unstarred CQ contains the list of 126 employees and, Annexure "A2", is the list of 13 employees. Similarly, Annexure "B", contains the list of 142 employees and, Annexure "B1", contains the list of 8 employees. Annexure "C", bears the names of 20 employees and, Annexure "C1", is the list of 5 employees. Had the intention of the Respondent-State been to weed out all the deadwood on the parameters that the Committee evolved, all the employees, figuring in the aforesaid annexures, would have been shown the door after taking resort to the provisions of Article 226(2) of the Jammu and Kashmir Civil Services Regulations. However, only a skeletal of the employees (small flies) including the petitioner were shown the exit and the bumble bees were allowed to break through. The cases of only some of the employees have been treated as the rare and unique ones. They have been discriminated invidiously and the rules of the game have not been applied equally."

26. Viewed in the context of what has been said and done above, the impugned order bearing no.189-GAD of 2012 dated 13th February 2012, cannot stand the test of law and reason. It is not based on any material from which a reasonable opinion could be derived to put forth the plea that the petitioner has outlived his utility as a Government servant or that his conduct was such that his continuance in service would be prejudicial to the public interest. Merely that a case or cases have been registered against the petitioner by the Vigilance Organization cannot form the basis of retiring him compulsorily, as a corollary to which, the impugned order bearing no.189-GAD of 2012 dated 13th February 2012, is quashed. The Respondents are directed to reinstate the petitioner and to grant him all consequential benefits, within a period of one month from the date the certified copy of this order is served on them by the petitioner. The respondents shall also not evict the petitioner from the Flat no.4, Government Flats, Jawahar Nagar, Srinagar.

27. Writ petition along with connected MP disposed of as above. The record relating to the case, as produced by the learned AAG, be returned to him.

Final Result : Disposed