Regular Second Appeal No.3448 of 1985 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 16, 2010 State of Punjab & another ...Appellants VERSUS Baldev Singh H.C.(Retired) No.8 Patiala ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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? Present: Mr.Amit Chaudhary, AAG, Punjab, for the appellants. None for the respondent. ***** RANJIT SINGH, J. When this case is taken up for hearing, on a second consecutive day, the State counsel expressed his inability to make submissions on the ground that the brief of the case is not available with him. This Regular Second Appeal is pending before this court since 1985. The hearing in such cases, which reach their turn after so many years, cannot be deferred on such specious plea that the brief is not available with counsel. It is for the State to make Regular Second Appeal No.3448 of 1985 (O&M) : 2 : arrangement to equip the counsel with the relevant documents and the briefs and so also the record. Accordingly, the court would proceed ahead to decide the case without receiving any assistance from the parties. The issue involved in this case is order of pre-mature retirement of Baldev Singh, who was serving as Head Constable when this order was passed. The respondent-plaintiff filed a suit for declaration challenging the legality of this order dated 1.9.1975 passed by Senior Superintendent of Police. The suit, however, was dismissed. The first Appellate Court, however, came to his rescue and set-aside not only the judgment passed by the trial court but also set-aside the order whereby the respondent-plaintiff was prematurely retired. The facts, in brief, are that the respondent-plaintiff joined as a Constable in the Police Department on 8.7.1948. He was promoted as Head Constable on 1.9.1952 and confirmed as such on 1.9.1954. Subsequently, he was promoted as Sub Inspector w.e.f.10.10.1956. He continued to hold this post with good record till 1.4.1973. On this date, he statedly was confined to bed and thereafter remained on medical leave till 3.8.1975. The record would show that respondent-plaintiff was reverted to the post of Head Constable on account of his continued prolonged medical leave and subsequently was prematurely retired w.e.f.1.9.1975 under the Punjab Civil Services (Premature Retirement) Rules, 1975 (for short “the Rules”) by an order passed by Senior Superintendent of Police, Patiala. This fact came to his knowledge on 2.3.1979, though the order of retirement was not served upon him. He accordingly assailed Regular Second Appeal No.3448 of 1985 (O&M) : 3 : this order being malicious, arbitrary, void and illegal and in violation of principle of natural justice. Grievance is that the Senior Superintendent of Police did not pass this order on the basis of performance of the respondent- plaintiff and had prematurely retired him without seeing his record. The suit for declaration was accordingly filed. The appellant-State defended the action of Senior Superintendent of Police, Patiala. In a joint written statement filed on behalf of the State, the facts pleaded in the plaint were controverted. It was also pleaded that the civil court would have no jurisdiction to try this suit and that the suit was time barred. It was further pleaded that the respondent-plaintiff was estopped from challenging the order of his premature retirement as it was his own option to seek premature retirement. Other facts about the service detail of the respondent-plaintiff were admitted. However, the fact that the respondent-plaintiff was promoted as Assistant Sub Inspector w.e.f. 10.10.1956 was denied, but it was stated that he was so promoted w.e.f.11.8.1962. As per the reply, the respondent-plaintiff was reverted to the rank of Head Constable w.e.f.28.3.1963 and again promoted w.e.f.25.4.1966 and reverted yet again w.e.f.15.9.1969. Still, he was again promoted as Assistant Sub Inspector w.e.f.1.1.1971. It is also conceded that the respondent-plaintiff had remained on medical leave w.e.f.1.6.1973 to 31.8.1975. It is then disclosed that an application dated 14.11.1974 was received for premature retirement. When his request was still under consideration, the Punjab Civil Services (Premature Retirement) Rules, 1975 were introduced and utilising the provisions of Rule 3(1) Regular Second Appeal No.3448 of 1985 (O&M) : 4 : (b) of the said Rules, the respondent-plaintiff was prematurely retired from the service. The appellants would also contend that respondent- plaintiff apparently felt satisfied, but yet impugned this order, which was justified as correct and in accordance with law. The suit was tried on the following issues:- “1. Whether the impugned order dated 1.9.1975 is illegal, null and void etc., as alleged in the plaint? O.P.P. 2. Whether the Civil Court has no jurisdiction? O.P.D. 3. Whether the suit is within time? O.P.P. 4. Whether the suit is not maintainable in the present form? O.P.D. 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? O.P.D. 6. Whether the plaintiff is estopped from filing the present suit as alleged in para 3 of the preliminary objections of the written statement? O.P.D. 7. Relief. As already noticed, the suit was dismissed by the trial court, which finding was reversed by the first Appellate Court leading to filing of the present Regular Second Appeal. From the facts as noted above, it would be seen that the respondent-plaintiff was prematurely retired under Rule 3(1)(b) of the Rules. As per this rule, a person who completes 25 years of qualifying service or attains 50 years of age, can be retired from service provided the authorities are of the opinion that it is in the public interest to do so. The Appellate Court found that there was no mention made in the impugned order that this order of premature Regular Second Appeal No.3448 of 1985 (O&M) : 5 : retirement of the respondent-plaintiff was being passed in some public interest. It was further rightly observed by the first Appellate Court that this fact of not mentioning the same in the order would not have been fatal if from the record it could be shown that on an application of mind by the competent authority, the order of premature retirement could be justified in the public interest. In this regard, the reference was made to the case of Gurdial Singh A.S.I. Vs. State, 1976(1) S.L.R.78. As noticed by the Court, the appellants did not make any attempt to set up the case that the premature retirement of the respondent-plaintiff was in the public interest and was so ordered under the above-quoted rule. In fact, the respondent-plaintiff had specifically pleaded in sub-para (i) of para 8 of the plaint that the order passed by the Senior Superintendent of Police was devoid of public interest. This averment was vaguely denied being incorrect and no material either was placed in the reply or otherwise to show that the order in fact was passed in public interest. Even no evidence was produced by the appellants to show as to what was that public interest which prompted the Senior Superintendent of Police concerned to pass the order of premature retirement. Another reason which weighed with the first Appellate Court was that the appellants had set up contradictory pleas in the written statement. On the one hand, it was pleaded that the respondent-plaintiff was retired under Rule 3(1)(b) of the Rules, but at the same time it was also urged that he was retired on his own request on medical ground in pursuance to his application, Exh.D-1 dated 14.11.1974. This application was pending when the new rules Regular Second Appeal No.3448 of 1985 (O&M) : 6 : came into force. The finding of the trial court that this order was passed under Rule 3(2) of the Rules was differed with on the ground that this was not even the case set up in the reply and, thus, a new case was made by the court on behalf of the appellants. No substantial submissions are made before me to impugn the finding of the first Appellate Court. The observations made by the Court are justified when it says that either the application of the respondent-plaintiff should have been acted upon to retire him on medical ground or the procedure under the Rules followed to order his premature retirement. The appellants cannot be permitted to rely on both the pleas. Since concededly the order was passed under the rules to prematurely retire the respondent-plaintiff, the appellants cannot be heard that even the respondent-plaintiff had submitted his request for premature retirement on medical grounds. This application was pending but no order was passed when the rules were invoked to prematurely retire the respondent-plaintiff. In this background, only thing which would require to be examined is whether the order prematurely retiring the respondent- plaintiff can be justified in terms of the rules. Since the public interest to retire a person on completion of 50 years of age or 25 years of service is the primary consideration to be kept in view, it cannot be said that the proper consideration was given to the case while passing this order. No attempt was made to show the record of the respondent-plaintiff which could have justified the action of the appellants to prematurely retire him. Such an order may not be punitive. Basically it is only examination of record to retain a person on completion of 50 years of age or 25 years service. Such a person Regular Second Appeal No.3448 of 1985 (O&M) : 7 : could be denied retention only in case his record was such that he could be taken as a deadwood. As held in Union of India Vs. Col. J.N.Sinha, 1970 SLR 748, the correctness of the opinion formed by the Government about the retirement being in public interest cannot be challenged so long as the opinion is formed bonafide. The courts can set aside such order if it is actuated by malice as malafide strike at the root of everything or if the order is arbitrary or capricious. Bonafide to pass this order could be shown only if the record was produced to justify the order of premature retirement. The view taken by the first Appellate Court does not suffer from any legal infirmity. There is no substantial question of law formulated despite the orders of this court passed on 29.1.2009. I would, therefore, dismiss the Regular Second Appeal being without merit. February 16, 2010 ( RANJIT SINGH ) ramesh JUDGE