IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 1118 of 2001 Date of Decision: February 20, 2009 Sat Narain ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr. H.S. Gill, Senior Advocate, with Mr. R.K. Dhiman, Advocate, for the petitioner Mr. Sanjeev Kaushik, Addl. AG, Haryana, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. Through the instant petition filed under Article 226 of the Constitution the petitioner has prayed for quashing of order dated 20.11.2000 (Annexure P-8) passed by respondent No. 2 ordering compulsory retirement of the petitioner under Rule 9.18(2) of Punjab Police Rules, 1934 (as applicable to the State of Haryana) (for brevity, 'the Rules'). Further prayer has also been made for directing the respondents to reinstate the petitioner in service from the date he C.W.P. No. 1118 of 2001 was relieved and to treat him as continuing in service as Sub Inspector of Police with all consequential benefits. 2. Brief facts of the case may first be noticed. The petitioner was enrolled as a Constable on 26.3.1970 and lateron he was promoted as Head Constable in March, 1979. He was further promoted as Assistant Sub Inspector on 25.6.1986 and was lastly promoted as Sub Inspector on 14.7.1990. On 6.11.1997 a departmental enquiry was initiated against the petitioner on the allegation that on 25.9.1997 Head Constable Balwinder Singh of Police Station, Sadar Tohana had recovered five bottles of liquor from one Chandgi Ram but the petitioner had not registered the case against Chandgi Ram. In the year 1998, the petitioner was confirmed as Sub Inspector. On 7.4.1998 the petitioner was reverted to the post of Assistant Sub Inspector by the Superintendent of Police, Fatehabad on the basis of departmental enquiry. The appeal filed by the petitioner against the above order was partly allowed by the Inspector General of Police on 14.7.1998 and the order dated 7.4.1998 passed by the Superintendent of Police, Fatehabad, reverting the petitioner, was set aside by substituting the same with the punishment of stoppage of two annual future increments. On 5.12.1998, the petitioner filed a civil suit. During the pendency of the suit, a show cause notice was issued to the petitioner on 27.1.2000 by the Director General of Police, Haryana to the petitioner under Rule 9.18(2) of the Rules to show cause as to why the petitioner should not be compulsorily retired. Petitioner filed reply to the show cause notice on 20.2.2000 and after consideration of the reply, the Director 2 C.W.P. No. 1118 of 2001 General of Police, Haryana on 20.11.2000 rejected the same and ordered compulsory retirement of the petitioner. 3. On 15.12.2000 the civil suit filed by the petitioner was decreed and orders dated 7.4.1998 and 14.7.1998 were held to be wrong and void. Against the order of the Civil Judge (Junior Division), Hisar, the State had filed an appeal before the appellate Court at Hisar which was dismissed and against the order of the appellate Court RSA No.3206 of 2001 was filed in this Court, which has been dismissed vide detailed order of today passed separately. 4. The compulsory retirement order dated 20.11.2000 (P-8) is patently based on the inquiry and reversion of the petitioner, which is subject matter of civil suit. It has already been pointed out in the preceding para that civil suit filed by the petitioner was decreed by both the Courts below and the State appeal being R.S.A. No. 3206 of 2001 has also been dismissed. A perusal of the show cause notice as well as the impugned order of pre-mature retirement of the petitioner alongwith grounds/material for compulsory retirement would show that the basic entry is from the period 15.7.1997 to 31.3.1998 and the same reads as under:- “1. Integrity Doubtful (In the departmental enquiry, the allegations having been proved, he was awarded punishment of reversion) 2. Moral character Average 3. Relations with the public and behaviour with them. Average 3 C.W.P. No. 1118 of 2001 4. Power of general control and organizational ability. Average 5. Personality & initiative Average 6. Power to command Average 7. Interest in modern methods of investigation and police methods Average 8. Knowledge of criminal law and procedure Average 9. Ability of investigation & solution Average 10 . Reliability Unreliable 11 . Ability on parade Average 12 . Shortcomings, if any and whether attention of the official drawn towards that through separate communication. 1. In a departmental enquiry against him, he tried to put influence and avoided joining in the enquiry. 2. Regarding service of summons in which last opportunity had been given by the courts, he was awarded censure for not effecting the service and receiving the summons. 13 . General Remarks This official was awarded punishment of reversion from the post of Sub Inspector to the rank of Assistant Sub Inspector in a departmental enquiry held on the allegations that during the period of prohibition, he did not register a case and the said allegation had been proved. 1. He has been awarded punishment of two future annual increments stopped with permanent effect vide 4 C.W.P. No. 1118 of 2001 No. 6478-80 dt. 17-8-1998 OB No. 195/98.” 5. The order of stoppage of increment based on the inquiry has already been set aside in the civil suit proceedings which have culminated in the dismissal of R.S.A. No. 3206 of 2001 filed by the respondent State. In other words, the effect of ACR for the period from 15.7.1997 to 31.3.1998 is substantially diluted. Therefore, to that extent the order of premature retirement would be rendered illegal. However, the only other consideration which has weighed with the departmental authorities to retire the petitioner pre-maturely is the ACR for the period 18.8.1987 to 31.3.1988, which reads thus:- “1. Capacity to expose the malpractices of subordinates. Lacking 2. Interest in modern methods of investigation and modern police methods. Does not possess 3. Ability of investigation and solution. Lacking 4. Reliability Cannot be fully trusted. 5. Special remarks Uses political influence for his transfer. Puts up excuses for not attending departmental training courses.” 6. The aforesaid entry alone cannot constitute the basis for passing order or premature retirement. In para 8 of the writ petition the petitioner has raised the issue that the adverse remarks concerning the period 18.8.1987 to 31.3.1988 (supra) do not disclose any remarks concerning integrity of the petitioner or his efficiency. It has further 5 C.W.P. No. 1118 of 2001 been asserted that the aforesaid remarks giving him average reports were recorded about 12 years before the date of passing of the premature retirement order. Thereafter the petitioner was promoted as Sub Inspector on 14.7.1990 and the aforesaid adverse remarks have completely lost their significance. The question whether a stale entry should be considered for forming opinion for compulsory retirement of a public servant has been repeatedly discussed by Hon’ble the Supreme Court. In the case of Baldev Raj Chaddha v. Union of India, (1980) 4 SCC 321, it was laid down that the basic purpose of a rule for compulsory retirement is to weed out worthless and in-efficient public servants and more weightage should be given to the latest service record rather than the entries made long years ago. The aforesaid exposition of law is discernible from para 16 of the judgment. However, more comprehensive review of the case law is available in the case of Badrinath v. Government of Tamil Nadu, (2000) 8 SCC 395. In proposition No. 5 culled out by Hon’ble the Supreme Court it has been observed that ‘if the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however, to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether’. Similar view has been taken by Hon’ble the Supreme Court in the case of Shiv Dayal Gupta v. State of Rajasthan, (2005) 13 SCC 581. The aforementioned principle when applied to the facts 6 C.W.P. No. 1118 of 2001 of the present case, it becomes evident that the adverse remarks of the year 1987-88 cannot constitute the basis for forming an opinion to retire the petitioner compulsorily, firstly because these are stale remarks and also for the reason that such remarks lose the sting because thereafter the petitioner has been promoted on 14.7.1990 on the post of Sub Inspector. It is also pertinent to notice that Rule 13.1 of the Rules deals with promotion from one rank to another which include the promotion to the post of Sub Inspector. According to Rule 13.1 efficiency and honesty are the main factors governing selection. Therefore, it has to be concluded that promotion of the petitioner on 14.7.1990 on the post of Sub Inspector was not simply based on seniority but was based on merit. Therefore, I am of the view that impugned order dated 20.11.2000 (P-8), compulsorily retiring the petitioner is not sustainable in the eyes of law. 7. For the reasons aforementioned this petition succeeds. Order dated 20.11.2000 (P-8) is set aside. The petitioner shall be held entitled to all the consequential benefits. The respondents shall calculate the benefits and pay the same to the petitioner within a period of two months from the date of receipt of a certified copy of this order. (M.M. KUMAR) February 20, 2009 JUDGE okg/Pkapoor 7