PER J. P. SINGH J.

1. Aggrieved by Government Order No.1546-GAD of 2003 dated 09.12.2003, giving notice to Shah Latif that he having already attained forty years of age, shall retire from service w.e.f. Forenoon of 9th December, 2003, appellant approached Writ Court for quashing the Government Order and permitting him to discharge his duties as Director, Rural Sanitation Department, Jammu.

2. Writ Court examined the grievance of the appellant. It, however, did not find any merit in the petition, which was dismissed vide judgment dated 01.11.2004.

3. Sh. M. A. Goni, learned senior counsel appearing for appellant, submitted that the State Government had erred in directing compulsory retirement of the appellant from government service. According to Sh. Goni, sufficient material was not available on records on the basis whereof order of compulsory retirement was warranted. Learned counsel submits that the clean image of the appellant during his service career, has suffered a stigma. According to the counsel, the service of a government employee cannot be put to an end on the basis of a stigma unless he is heard in the matter and proper inquiry in this behalf is conducted under Rules. Learned counsel further emphasized that the case, on the basis whereof he has been considered for compulsory retirement, stands since dismissed by the Special Judge, Anti Corruption, and in that view of the matter no reason subsisted for directing his compulsory retirement. Sh. Goni further submitted that there was no proof of the allegations on the basis whereof, appellant has been compulsorily retired and the absence of proof would not authorize the employer to retire a person compulsorily.

4. Sh. A. H. Naik, learned Advocate General appearing for respondents, on the other hand supported the order of compulsory retirement of the appellant by submitting that the order of compulsory retirement does not amount to punishment and principles of natural justice were not required to be observed in passing an order of compulsory retirement. Sh. Naik further submitted that judicial review of such an order is permissible only on the grounds of mala fides, arbitrariness or perversity, which factors are not attracted in the present case. Sh. Naik submitted that ground of mala fides urged in the petition was withdrawn by the appellant by seeking deletion of respondents nos. 5 & 6, the Chief Minister & Minister of Finance, Law and Parliamentary Affairs, respectively. According to learned Advocate General, enough material was available on records, which material was examined by a high power committee constituted vide Government Order No.713- GAD of 2003 dated 10.06.2003, which comprised of the Chief Secretary, Financial Commissioner, Commissioner/Secretary to Law Department and Principal Secretary, Planning & Development Department. According to Sh. Naik, the action of the Government is bona fide and there was no element of mala fide in exercising jurisdiction under article 226(2) of j&k civil service Regulations.

5. We have considered the submissions of learned counsel for the parties and have examined the judgment impugned in the appeal as also the pleadings of the parties.

6. In order to deal with the submissions of learned counsel for the parties, we will notice the findings of the learned Single Judge while meeting the submissions of learned counsel for the parties submitted before him. Order impugned reads, thus:

"I have perused the record of the Government. From the perusal of the record it transpires that Screening Committee formulated the following three principles for adjudging and deciding the issue of compulsory retirement of Government Officers, including the petitioner:-

a) Order of compulsory retirement is not regarded as a punishment under Article 311 of the constitution of India;

b) An employee who has outlived his utility can be compulsorily retired in public interest;

c) If the general reputation of the officer/official is not good, he can be compulsorily retired in public interest.

The Screening committee is stated to have gathered information from a cross-section of the people about the general reputation of officers. It also consulted the Vigilance Commissioner, the Inspector General of Police, Crime & Railways, the Director Accounts and Treasuries, the Directors of Consumer Affairs and Public Distribution Systems Jammu & Srinagar. It came to decision to recommend compulsory retirement of the petitioner on the basis of the following material:- "When Shri Shah Lateef, was posted as Deputy Commissioner Kupwara there were confirmed reports from cross sections of the people that he would take money from ex-gratia relief sanctioned for the damaged infrastructure and from the ex-gratia relief sanctioned in favour of NOKs of those who got killed due to militancy.

There are also allegations that as Deputy Commissioner Kupwara,Shri Shah Lateef withdrew Rs.2.78 lakhs interest money for EAS/GRY Bank account on the pretext of repairing vehicles damaged during elections and which amount has allegedly been misappropriated by him.

As Tehsildar Mendhar he was alleged to have taken money in the matter of appointments in Fire brigade organization and a case was challaned in the court of law under file No.219/challan of the court of Special Judge Anti Corruption Jammu. Although he was acquitted by the court yet there are general complaints that he had been resorting to malpractices on the various posts he has held from time to time."

The relevant material from which the afore-mentioned allegations have emerged against the petitioner is available on the record and the same appears to have been taken note of. It is thus not a case of no evidence. The material is available. Whether the material was sufficient for drawing the inference that petitioner was not suitable for continuation in service, is the question, which cannot be gone into by this court in exercise of its power of judicial review being not a court of appeal. The service record of the petitioner has not remained completely clean. When he was Tehsildar he was prosecuted on corruption charges in the court of Special Judge Anti-corruption. He was acquitted because the witnesses of the prosecution had turned hostile. Another FIR is pending investigation. During the period of his stint as Dy.Commissioner Kupwara he is alleged to have withdrawn Rs.2.78 lacs interest money and having misappropriated the same.In this behalf communication No.Agri-PC/97-98 dated 2.6.1999 of the Addl.Secretary to Government Rural Dev.Department written to the Secretary to Government G.A.D. existing in the record is relevant which is reproduced hereunder:-

Commr/Secretary to Govt.General Administration Department may kindly refer communication No.DRDK/3779-54 dated 26.09.1998 of District Dev.Commissioner Kupwara addressed to him copy endorsed to this department. It is abundantly clear from the report received from the present District Dev.Commissioner Kupwara that withdrawal of Rs.2.78 lakhs from EAS/JRY bank account by Ex.District Dev.Commissioner Kupwara Shri Shah Latif,is a simple case of embezzlement. Copy of the letter received from District Dev.Commissioner Kupwara is enclosed. The said officer on the pretext of repairing vehicles belonging to District Dev.Commissioner has not spent the amount on the said repair and has simply pocketed it. Besides repair of vehicles belonging to District Dev.Commissioner is not a charge on EAS/JRY funds. This is a clear violation of the guidelines. It may also be added that in our administrative arrangement where wages employment programmer and self employment programmes have separated administrative set up in the form of Assistant Commissioner Development and project officer DRDA, the governing body of DRDA has absolutely no jurisdiction over the funds of EAS/JRY. Therefore, the action of the governing body is also bad in the eyes of law. In view of the circumstances stated above, it is requested to initiate disciplinary proceedings against the erring officer.

The service record of the petitioner is not such that no finger can be raised against him. Such being the position it can also not be said that no man of ordinary prudence would doubt the integrity of the petitioner. Therefore, the contention of the learned counsel for the petitioner that there was no material available against the petitioner does not merit acceptance.

The Screening Committee has objectively applied the valid principles for considering the case of the petitioner for compulsory retirement. Therefore no exception can be taken to its decision. The order impugned passed by the Government in my considered opinion merits to be upheld.

The power to compulsorily retire a Government servant being one of the facets of the doctrine of pleasure incorporated in Art.310 of the constitution and being not in the nature of a punitive action, the requirement of establishing mis-conduct during the service tenure of the Government servant sought to be compulsorily retired is not necessary. A Government servant against whom a reasonable doubt about his integrity can reasonably be entertained on the basis of the available material, he can be retired compulsorily."

7. It needs to be noticed that respondents nos. 5 & 6 i.e. the Chief Minister of J&K State and Minister of Finance, Law & Parliamentary Affairs, were arrayed as party respondents. The Writ Court, did not think it appropriate to issue notice to these respondents in the first instance. It was at the request of the writ petitioner that the writ petition was taken up for final hearing in the absence of respondents nos. 5 & 6. It appears, therefore, that respondents nos. 5 & 6 were impliedly deleted from the array of respondents.

8. Before us also, the plea of mala fides, has not been raised, though, for obvious reasons that without having been noticed in the writ petition, the plea of mala fides against these respondents, could not have succeeded in the appeal.

9. Before dealing with the submissions of learned counsel for the parties, we would refer to the law laid down by the Hon'ble Supreme Court of India in 'Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another' reported as (1992) 2 Supreme Court Cases 299, wherein it is held:

"34. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the government on forming the opining that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This dos not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are 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 person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The government shall have to consider the entire record of service before taking a decision in the matter- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on showing that, while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."

10. We would further notice a Division Bench judgment of this Court in LPA No.27- J/2005 titled 'Ashok Kumar Jain v. State of J&K and others', wherein it has been held that:

Compulsory retirement simplicitor is a well accepted measure of weeding out the inefficient, the corrupt and the dishonest from employment. Compulsory retirement does not attract the enquiry provision or the rules of natural justice. It is not a penalty. It is a condition of service and the person does not lose the benefits which he has already earned. It is true that if he had remained in service for a few years more he would have earned salary and allowances, and also proportionate pension, but if it is a condition of service, the employer may require him to retire on completing certain period of service or attaining certain age in the public interest and he cannot make grievance that he has been deprived of additional salary etc., which he would have otherwise earned. See State Of U.P v. Sri Shyam Lal Sharma, (1971) 2 SCC 514.

11. A recent judgment of Hon'ble Supreme Court of India in 'M. M.L Binjolkar v. State Of M.P.' reported as (2005) 6 SCC 224, too, reiterates the law followed in the cases aforementioned. It has been held in M. L. Binjolkar's case as under:

An order of compulsory retirement is not a punishment. The employer takes into account various factors emanating from the employee's past records and takes a view whether it would be in the interest of the employer to continue services of the employee concerned. It can certainly pass an order of compulsory retirement when the employee is considered to be dead wood and practically of no utility to the employer. The purpose and object of premature retirement of a government employee is to weed out the inefficient, the corrupt, the dishonest or the dead wood from government service.

12. We would now examine the stand of the State Government, on the basis whereof, the appellant has been ordered to be retired compulsorily, so that submission of Sh. Goni are appropriately dealt with.

13. Learned Single Judge has referred to the records as also the report of the Screening Committee, which was constituted by the Government vide Government Order No.713-GAD of 2003 dated 10.06.2003. The material referred by the learned Single Judge, on the basis of report of the Committee, may be noticed, thus:

When Shri Shah Lateef, was posted as Deputy Commissioner Kupwara there were confirmed reports from cross sections of the people that he would take money from ex-gratia relief sanctioned for the damaged infrastructure and from the ex-gratia relief sanctioned in favour of NOKs of those who got killed due to militancy. There are also allegations that as Deputy Commissioner Kupwara,Shri Shah Lateef withdrew Rs.2.78 lakhs interest money for EAS/GRY Bank account on the pretext of repairing vehicles damaged during elections and which amount has allegedly been misappropriated by him. As Tehsildar Mendhar he was alleged to have taken money in the matter of appointments in Fire brigade organization and a case was challaned in the court of law under file No.219/challan of the court of Special Judge Anti Corruption Jammu. Although he was acquitted by the court yet there are general complaints that he had been resorting to malpractices on the various posts he has held from time to time.

14. Learned Single Judge has further referred to the service record of the petitioner, which was not found by him to be completely clean. When the appellant was a Tehsildar, he was prosecuted on corruption charges in the Court of Special Judge, Anti Corruption, but was later acquitted because the witnesses of the prosecution had turned hostile. Another F.I.R., under the Prevention of Corruption Act, is pending investigation against the appellant. During his tenure as Deputy Commissioner, Kupwara, he is alleged to have withdrawn and misappropriated an amount of Rs.2.78 lacs. Learned Single Judge has further referred to a Communication dated 02.06.1999 addressed to Commissioner/Secretary, General Administration Department. This communication reads, thus:

Commr/Secretary to Govt.General Administration Department may kindly refer communication No.DRDK/3779-54 dated 26.09.1998 of District Dev.Commissioner Kupwara addressed to him copy endorsed to this department. It is abundantly clear from the report received from the present District Dev.Commissioner Kupwara that withdrawal of Rs.2.78 lakhs from EAS/JRY bank account by Ex.District Dev.Commissioner Kupwara Shri Shah Latif,is a simple case of embezzlement. Copy of the letter received from District Dev.Commissioner Kupwara is enclosed. The said officer on the pretext of repairing vehicles belonging to District Dev.Commissioner has not spent the amount on the said repair and has simply pocketed it. Besides repair of vehicles belonging to District Dev.Commissioner is not a charge on EAS/JRY funds. This is a clear violation of the guidelines. It may also be added that in our administrative arrangement where wages employment programmer and self employment programmes have separated administrative set up in the form of Assistant Commissioner Development and project officer DRDA, the governing body of DRDA has absolutely no jurisdiction over the funds of EAS/JRY. Therefore, the action of the governing body is also bad in the eyes of law. In view of the circumstances stated above, it is requested to initiate disciplinary proceedings against the erring officer.

15. In view of the material, relied upon by learned Single Judge, we cannot persuade ourselves to accept the submission of Sh. Goni that there does not exist sufficient material on records to justify an order of compulsory retirement in respect of the appellant.

16. The appellant has been shown to be an officer, who has been accused of indulging in corruption, right from the inception of his career as Tehsildar in J&K Revenue Gazetted Services. The officer does not enjoy good reputation, is the information gathered by the Government from cross-section of people. Though acquitted in one case of corruption and that too because the witnesses had turned hostile, he has been booked second time in another case of corruption, in which respect an F.I.R., under Section 5(2) of the Prevention of Corruption Act, 2006, is still pending investigation.

17. It cannot, thus, be said that the order passed by the Government directing the compulsory retirement of the appellant, is either perverse or based on 'No Evidence'. The allegations against the appellant and the material on records is so much that even a person of ordinary prudence, would doubt the integrity of the appellant.

18. The order impugned cannot, thus, be questioned by the appellant because of insufficiency of material on records justifying his compulsory retirement.

19. Submission of Sh. Goni that the appellant has not been heard in the matter and the order of compulsory retirement casts a stigma on the career of the petitioner, is untenable in view of the consistent view of Hon'ble Supreme Court of India that an order of compulsory retirement neither requires providing of an opportunity of hearing to the employee nor casts any stigma on such employee.

20. We have gone through the order impugned in the appellant's writ petition. This order does not cast any stigma on the petitioner as it is. The appellant has himself, by filing the writ petition, invited the material on the basis whereof the Government had taken decision to retire the petitioner compulsorily. Discerning of such material by the Courts from official records to satisfy itself as to whether or not the order of compulsory retirement is perverse, cannot be said to cast stigma on the service career of the petitioner.

21. article 226(2) of the j&k civil service regulations, 1956, empowers the State Government to direct compulsory retirement of a Government servant provided that the officer has completed 22 years/44 completed 6 monthly periods of qualifying service or has attained 48 years of age.

22. Compulsory retirement is, thus, a condition of service of a Government employee. An employer has the prerogative to consider exercising his jurisdiction under Article 226(2) in respect of any of its employees. This condition of service, does not require holding of any inquiry or providing an opportunity of hearing to an employee sought to be retired compulsorily under Article 226.

23. In view of the law laid down by the Hon'ble Supreme Court of India, even subjective satisfaction of the employer, satisfies the reach contemplated by Article 226(2) of J&K CSR. We have examined records, the findings of the learned single Judge as also the submissions of learned counsel for the parties.

24. We have come to the conclusion that the jurisdiction exercised by the State Government in directing compulsory retirement of the appellant is based on good reasons and sufficient material. We do not find any material on records to take a view other than the one taken by the learned Single Judge.

25. We, therefore, do not find any merit in this appeal, which is, accordingly, dismissed, without any order as to costs.