Court To Decide If Govt’s Opinion ‘Bonafide’


Srinagar—The Jammu and Kashmir High Court on Friday rejected government’s contention that its ‘bona fide’ opinion in ordering premature retirement of an employee was not open to challenge, saying it was for the court to decide it and that no divine revelation would come to confirm it.

A division bench of Chief Justice Badar Durrez Ahmed and Justice Ali Mohammad Magrey ruled it while upholding court’s single bench verdict, reinstating a medico—Dr Riyaz Ahmad Dar— who was among 63 officials sacked in 2015 by the government with the claim that there were “deadwood”.

Advocate General Jehangir Iqbal Ganai argued that in terms of the provision of Article 226(2) J&K Civil Service Regulations (CSRs), if the Government is of the opinion that it is in the public interest to do so, it has the power to require any government servant to retire at any time after he has completed 22 years and six monthly periods of qualifying service or on attaining 48 years of age subject to the conditions mentioned therein.

He submitted that once the government forms such a bona fide opinion, its correctness is not open to challenge.

“The first and the foremost question that arises is as to who will determine whether that authority has bona fide formed that opinion? Obviously, it is the Court in its writ jurisdiction. The Supreme Court does not say that writ against an order of compulsory retirement of a government servant would not lie. In fact, the jurisdiction of the Court under Article 226 cannot and is not ousted. It is natural that if the opinion to compulsorily retire a government servant is found to have been formed bona fide, that opinion cannot be challenged, but such a finding would need to be returned by an appropriate Court in an appropriate proceeding, unless the employee concerned accepts it; it would not come by way of a divine revelation,” the division bench said, adding, “Then the question that would arise is what standards would be applied to judge whether the opinion formed is bona fide or not?”

Referring to impugned judgment, the court said that its single judge has elaborately examined the recommendations made by the Committee and every allegation contained in the context of the record produced before it.

“The (single bench) has come to definite findings. This is a case where the allegations forming the sheet-anchor of the order of compulsory retirement have been found to be not only controverted but proven false. Apart from that, no ACRs had been placed before the (high level) Committee and no such material was produced either before the Single Judge or this Court. The file produced before this Court is bereft of any such record,” the division bench said, adding, “As such, this Court can, at best, say that there has been no material placed before the Committee to enable it to back the recommendations as are actually contained in the report/recommendation produced before the Court.”

The very premise and foundation of the recommendations, the court said is that Dr Riyaz’s integrity was doubtful, does not with stand the scrutiny of law.

“Consequently, the recommendation would not stand and, resultantly, the action taken thereon would equally be rendered baseless and unfounded,” the court said and upheld its single bench’s judgment.

While ordering Dr Riyaz’s premature retirement, the government had claimed he did not enjoy a good reputation in the public and that he was involved financial as well as administrative irregularities. One of the allegations against him was that he had procured 34 Kgs of ‘dog kill powder’ without any supply order on exorbitant rates.

Aggrieved of the government action, Dar had filed a petition and urged the court to quash the order (no.858-GAD of 2015) with a direction to command the government to reinstate him into service with all consequential service benefits.

“A fair exercise has not been undertaken, that too by a high level constituted committee. Act of the Committee should not have been hasty as haste makes the waste. That I may say is quite apposite to be said vis-a-vis case of (Dr Riyaz). The grounds which made base for premature retirement of (Dr Riyaz) are not supported by any material whereas (Dr Riyaz) has in categorical terms made his position clear vis-a-vis all grounds which position has not been refuted nor any material to controvert the same has been placed on record,” the single bench of court had said while quashing 30 June 2015 order regarding Dr Riyaz and had subsequently directed the government to reinstate him into service and grant him all consequential benefits.

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