Civil Writ Petition No. 15664 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 15664 of 2010 Date of decision: 04.08.2011 Ilam Singh Chauhan ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Anmol Rattan Singh, Advocate, for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana for the State. RANJIT SINGH J. The petitioner has impugned the order passed by the respondents, compulsorily retiring him on completion of 55 years of age. The petitioner was appointed as Fire Station Officer on 11.10.1990 on ad hoc. Prior to that the petitioner had served in the Indian Air Force from 1974 to 31.08.1989. During his service with the Air Force, the petitioner had obtained degree of B.A. (Hons.) and LLB. He had also completed many fire fighting training courses. After being appointed on ad hoc basis, the services of the petitioner were regularized on 01.04.1993. As averred in the writ petition, the petitioner has more than 70% good or above good records in Annual Confidential Reports. Though he was issued a warning, no entry of doubtful Civil Writ Petition No. 15664 of 2010 integrity was ever made in his Annual Confidential Report. This is so claimed by the petitioner on the basis of his knowledge. Reference is made to the instructions (Annexure P-5) issued by the State counsel regulating the cases of compulsory retirement on completion of 50 or 55 years of age. As per these instructions, the cases of the persons are required to be sent six months prior to the due date of attainting the age. Though the petitioner had completed 55 years of age yet, on 02.06.2010, he was suddenly served with the order directing his premature retirement w.e.f. 27.05.2010. This was more than six months after he had attaining the age of 55 years. As per the petitioner, this order was passed ignoring the instructions, which regulate the cases of compulsorily retirement. He has, accordingly, filed this writ petition to impugn the order of his compulsory retirement. Notice of motion was issued in this case. Request of the petitioner for staying the compulsorily retirement order, however, was declined. The respondents have filed reply and by way of preliminary submissions/objections, it is pointed out that the terms and conditions of the petitioner's services are governed by Punjab Civil Services Rules and the instructions issued by the Government from time to time. It is asserted that order dated 27.05.2010 issued by the Government to compulsorily retire the petitioner is valid and binding. It is pleaded that the appointing authority had absolute right to retire the person on or after attaining the age of 50 or 55 years as the case may be by giving him notice in writing or three months pay in lieu of this notice. Mention is then made to the service record of the petitioner for the last 10 years when he was to complete 55 years of Civil Writ Petition No. 15664 of 2010 age. Out of these 10 reports, one is stated to be 'average', three are 'good', three are 'very good' and two reports are 'not written' and one report is stated to be 'not available'. On this basis, it is urged in the reply that the petitioner does not have 70% of the good report and, hence, his compulsory retirement was fully justified in view of the Government instructions regulating the same. It is further stated that the decision of the compulsory retirement involves no civil consequences and the petitioner, thus, had no right to approach this Court by way of present writ petition. I have heard the counsel for the parties. To order compulsory retirement of the petitioner, his Annual Confidential Reports starting from the year 1999-2000 up to 2009-10 were taken into consideration. The details of the report earned by the petitioner for all these 10 years are as under:- Financial Year Grading Classification 1999-2000 Good 2001-2002 Good 2002-2003 Average 2003-2004 Not available 2004-2005 Very Good 2005-2006 Very Good 2006-2007 Good 2007-2008 Very Good 2008-2009 Not written due to suspension 2009-2010 Not written On this basis, it is stated that out of 10 reports, the Civil Writ Petition No. 15664 of 2010 petitioner has only earned six 'good' or 'very good' reports. The requirement of having 70% good or very good report, thus, is not satisfied, as per the respondents. It can be noticed that out of these 10 reports, only one report is average. Rest of the six written reports are good and very good. To be precise, three reports are good and three are very good. Two reports had not been written whereas one report is not available. Can the respondents, under such circumstances, urge that the petitioner did not fulfill the requirement of having 70% or above good reports. The line of submissions pursued by the State Counsel in this regard certainly are misplaced and misconceived. Except for one report, all available reports are good or very good. Not available report certainly cannot be treated as adverse if it cannot be treated as good. If the report is not written due to any reason whatsoever, the same also cannot be treated as something which is not good or is adverse. Under these circumstances, the submission that only 10 years report could be considered would be neither fair nor justified in terms of instructions issued by the respondents themselves. In this regard, counsel for the petitioner has rightly referred to order, Annexure P-12, which clearly provides that in the cases of promotion, crossing of efficiency bar and retention in service beyond the age of 50/55 years certain Annual Confidential Reports are to be kept in view for deciding such cases. These instructions have been issued to avoid references and to clarify the point in those cases, where ACRs are not written for any reason like suspension, absence due to leave or illness or termination of service or for any other reason. It is noticed that the Civil Writ Petition No. 15664 of 2010 ACR for the said period is treated as blank and the cases were being examined on the basis of available record. Noticing this, it is observed that some difficulties were faced while implementing these instructions in assessing the last 10 years record for granting extension in service beyond 50/55 years in case where some reports of last 10 years are missing. In order to resolve this problem, it has been decided that in such cases one should go to the previous years and include the ACRs of previous years so that the case is examined on the basis of total 10 years available record. Instructions dated 14.05.1996 were to be treated as modified to this extent. I am unable to understand how the plea, as being raised by the respondents, could be so raised or justified in view of these clear and categoric instructions issued by the respondents. It has invariably been noticed that the Government issue instructions from time to time but in large number of cases the respondents fail to follow such instructions. It is either deliberately done or sometimes are not noticed due to lethargy to even go through the instructions issued by the Government. Once the instructions have been issued, there is no reason not to follow the same. The stand taken in the reply, therefore, apparently is misleading. The conduct of the respondents in pleading before the Court and sticking to it still could have been ignored but for the fact the respondents have failed to make amends despite opportunity and time granted to them. When this issue was so argued before this Court and after perusal of the record, the State counsel was given time to seek instructions in the light of policy, Annexure P-12 referred to above. In response, the State counsel even had pointed out before Civil Writ Petition No. 15664 of 2010 this Court that the petitioner's last two reports, which were earlier not available, were now available and in these two reports the petitioner was grading as 'very good'. There, thus, remained no reason or cause to continue with the order of compulsory retirement. That being the position, the State counsel was given further time to have instructions whether the department will itself re-consider the issue. It is rather sad and disheartening to observe that the respondent-department still has not decided to correct the obvious error. It is too bad to notice that the respondents would first pass an illegal order, which cannot be justified, that too by ignoring the instructions issued by them and when given time and chance to correct the mistake would not do so to correct the illegality. This certainly cannot be expected from the State, which is required to follow rule of law. The submission by the counsel for the State would further aggravate the situation when he says that the Secretary is not inclined to consider this factual position and pass appropriate order as per law. Once two recent reports pertaining to the years 2008-09 and 2009-10 are available and are found to be of 'very good' grading, no reason will remain for directing compulsory retirement of the petitioner on the basis of service record. The factual position as on date would be that the petitioner had eight 'good' or 'very good' reports within last 10 years, which are more then the requirement of 70% good or above reports. The petitioner has been retired only on account of non-availability of some reports for the last 10 years. This action on the part of the respondents was not only unfair but in violation of instructions issued by the State itself. If the respondents Civil Writ Petition No. 15664 of 2010 had been careful or fair and had gone through the instructions issued by them, they would have certainly gone back by 2-3 years to check the available reports of the petitioner, in view of the instructions, Annexure P-12. Counsel for the petitioner has drawn my attention to Annexure P-13, which is a summary of reports of the ACR written on the petitioner from the year 1999 onwards. Out of these reports, all are good or very good except for one for the year 1997-98, which is average. There is no adverse report or adverse comment against the petitioner in any of the reports. If the respondents had relied upon instructions and gone back to check the reports, the petitioner would have earned 70% or above as good report. The reports for the year 1998-99 and 1999-2000 are outstanding. These reports would have shown that the petitioner had 70% or above good reports, as per the criteria and, thus, the order of compulsory retirement would not have been passed. I find that the petitioner has unnecessarily and unduly been harmed. The consequences have been that the petitioner suffered the stigma of being a compulsorily retired employee. He has been made to approach this Court. He has suffered humiliation, agony and torture by virtue of his compulsory retirement order which is now found to be totally unjustified. The petitioner has been deprived of his right to serve and receive pay and allowances for a considerable period of over one year. Respondents still have not taken corrective measure to undo this harm despite opportunity. I find that the conduct and approach adopted by the respondents is highly, unfair, unreasonable, unjust, inequitable and, thus, unacceptable. Reference here can be made to the case of Baikuntha Civil Writ Petition No. 15664 of 2010 Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 S.C. 1020, where the Hon'ble Supreme Court has laid down certain principles to exercise limited role or jurisdiction by the Courts to interfere in such matters. As held in this case, principles of natural justice have no place in the context of order of compulsory retirement but this does not mean that judicial scrutiny is excluded altogether. While this Court would not examine the matter as an Appellate Court but it may interfere if it is satisfied that order passed is (a) malafide (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 i.e. if it is found to be perverse order. It is clear that the respondents have ignored the relevant material while passing the impugned order. The order of compulsory retirement has been passed only on the ground that the petitioner did not have 70% good or above record in the preceding 10 years of the date of the order. As a matter of fact, report for the 3 years out of the last 10 years, were not available. The respondents were obliged to go back and see the reports earned by the petitioner prior to last 10 years. If that had been done, order compulsorily retiring the petitioner could not have been passed in terms of the instructions. In a way, not available reports have been treated as not good reports, which would sound illegal and an arbitrary action. During the pendency of writ petition, these two reports became available, where the petitioner was assessed as outstanding officer. There was, thus, no justification or material to pass the order of compulsory retirement. The order, if allowed to stand, would certainly be a perverse and arbitrary order. Civil Writ Petition No. 15664 of 2010 The case, thus, is fully made out for interfering in exercise of writ jurisdiction even in terms of the law laid down by the Hon'ble Supreme Court in Baikuntha Nath Das's case (supra). The writ petition deserves to be allowed and it is so ordered. Since the petitioner has been made to suffer this marked agony by this unlawful and illegal action, the respondents have failed to correct themselves, the writ petition is allowed with ` 50,000/- as costs. The impugned order, Annexure P-8, is set aside. The officer, who has passed the illegal order without caring to go through the instructions, has to be held responsible for this illegality. The responsibility of the officers, who have passed this order by ignoring the instructions be ascertained and the Government may recover the costs from the said officer. August 04, 2011 (RANJIT SINGH) rts JUDGE