CIVIL WRIT PETITION NO.5683 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 15, 2011 HC Shiv Ram .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sat Narain Yadav, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has approached this Court to challenge the order directing his compulsory retirement on completion of 55 years of age. The petitioner, who had joined the Haryana Police as Constable on 1.8.1985, was promoted as Head Constable on 1.1.1999 after passing Lower School Course. Adverse remarks doubting his integrity were recorded in the annual confidential report of the petitioner for the period from 1.4.2001 to 2.10.2001 by the then CIVIL WRIT PETITION NO.5683 OF 2011 :{ 2 }: Superintendent of Police, Ambala. The petitioner represented against said remarks in the ACR on 24.8.2002 but his representation was rejected on 10.3.2003. The petitioner thereafter filed a revision petition and the Director General of Police, Haryana, who after considering all the issues expunged the adverse remarks on 2.5.2003 recorded in the report for the period from 1.4.2001 to 2.10.2001. Later, the petitioner was served a show cause notice on 30.6.2006, putting him to notice that he had been given undue benefit by expunging his adverse remarks in the ACR noted above after lapse of three years and it was accordingly recorded that he was liable to be compulsorily retired. The petitioner filed detailed response to this show cause notice and thereafter the Director General of Police, Haryana, passed an order dated 25.10.2006, ordering reconstruction of expunged adverse remarks in his ACR for the said period. Aggrieved against this action, the petitioner filed Civil Writ Petition No.17822 of 2006 before this Court. This writ petition, however, was dismissed on 2.7.2007. The petitioner has accordingly challenged this order by filing Special Leave Petition before the Hon'ble Supreme Court, in which a notice has been issued and the reply has been filed. Special Leave Petition is still pending. The petitioner has placed reliance on the orders passed in some of the writ petitions to urge that reconstruction of ACR in the manner as was done in the case of the petitioner, has not been upheld by a Division Bench of this Court. In this regard, the petitioner has placed on record an order passed by the Division Bench, which is ordered to be taken on record vide separate order of even date. Counsel accordingly contends that remarks, which were CIVIL WRIT PETITION NO.5683 OF 2011 :{ 3 }: expunged, could not be reconstructed and, thus, the only material which has been taken into consideration for compulsorily retiring the petitioner, would not be available for passing the order and hence, the order is such which is based on no material. Mr.Nehra, however, has made an allegation against the petitioner for misleading the Court while getting an interim order of stay of his compulsory retirement. When the case came up for hearing on 30.3.2011, the Court recorded the contention of counsel for the petitioner, which was to the effect that reconstruction of the ACR was quashed. This primarily appears to have weighed with the Court to stay the operation of the impugned order while issuing notice of motion. The order dated 30.3.2011 is as under:- “Contends that the only adverse entry against the petitioner was expunged but the same was reconstructed later on. The petitioner challenged the said action, and reconstruction of the ACR was quashed. Further contends that this is only ACR which is now being considered for compulsorily retiring the petitioner and there is nothing adverse against him in the entire service record. Notice of motion for 30.8.2011. In the meantime, operation of the impugned order shall remain stayed.” Mr.Nehra has referred to the averments made in the petition to urge that contention as was raised and noticed by the Court while issuing notice of motion was misleading to say the least. The counsel has drawn my attention to the averments made in Para CIVIL WRIT PETITION NO.5683 OF 2011 :{ 4 }: Nos.9 to 12 of the writ petition. In Para 10 of the petition, the petitioner himself has averred that Director General of Police, Haryana, passed an order of reconstruction of ACR of the petitioner and has placed the order in this regard with the writ petition as Annexure P-7. The petitioner has then disclosed that he had challenged the said order by filing Civil Writ Petition, which was dismissed on 2.5.2007. Against this order, the petitioner had filed a Special Leave Petition, which is yet to be finally heard. Thus, the contention that reconstructing of ACR was quashed is misleading. Whether the contention was so raised innocently despite the averments as contained in Paras 9 to 12 of the petition is not free from doubt. In any case, the contention of reconstructed ACR was quashed, as on date, is factually inaccurate if not false. The counsel for the petitioner could be expected to assist the court in a fair manner and should have sought correction of the inaccurate factual contentions raised and as noted in the order. The petition is heard on merits. The sole submission to challenge the order of compulsory retirement is on the basis of that reconstruction of ACR as ordered, is not permissible. This challenge as made by the petitioner did not find favour with this Court when he had approached the court. No doubt, this Court in L.P.A. No.389 of 2011 in Civil Writ Petition No.206 of 2007 has upheld the order passed by the Single Bench of this Court to hold that adverse remarks recorded can not be reviewed by successor in office and that such review is without jurisdiction. While taking this view, the Division Bench has made reference to the case of Sub Inspector Ravi Dutt Vs. State of Haryana and others (Civil Writ Petition CIVIL WRIT PETITION NO.5683 OF 2011 :{ 5 }: No.10675 of 2009 and other connected cases) decided on 20.1.2010. The Court in this case had in turn relied upon Ram Niwas Vs. State of Haryana (Civil Writ Petition No.8356 of 2006) decided on 26.5.2006 and another division Bench judgement of this Court in State of Haryana and others Vs. ASI Dharam Paul (LPA No.774 of 2011) decided on 3.5.2011 but it appears that contrary views taken in some cases were not placed before the Division Bench while it had considered this LPA. Mr.Nehra has placed before me another Division Bench judgement passed by this Court on 18.4.2007 ini Civil Writ Petition No.18801 of 2006 (ASI Jai Kishan Vs. State of Haryana and others), where the issue whether or not second representation is competent for expunction of adverse remarks was adjudicated on the basis of a judgement in Vinod Kumar Vs. State of Haryana, (Civil Writ Petition No.9805 of 2006) decided on 4.4.2007. It is held that second representation was not competent for expunction of adverse remarks. In any case, this issue in the present writ petition would be academic. The reliance by counsel for the petitioner on some of the judgments to say that adverse remarks, after being expunction, can not be reconstructed, would not be attracted in the present case. The challenge raised on similar grounds by the petitioner was negated by this Court, which the petitioner has challenged before the Hon'ble Supreme Court. Ultimately, it would be the final view expressed by the Hon'ble Supreme Court in this case that may have relevance. This judgement is in personam and would apply to the facts of the present case and the petitioner can not make reference CIVIL WRIT PETITION NO.5683 OF 2011 :{ 6 }: or reliance on any judgement, which otherwise may have been passed in some other cases. The line of submission as made by counsel for the petitioner otherwise is also misconceived and misplaced. In the present writ petition, the petitioner has challenged the order of his compulsory retirement, Annexure P-13. There is no challenge raised to Annexure P-7, vide which these adverse remarks were reconstructed. Obviously, the petitioner could not challenge, Annexure P-7, in view of the earlier order passed by the Division Bench of this Court, rejecting his challenge against the same order. Raising the same very argument in the present writ petition, which did not find favour by a Division Bench of this Court, may be another attempt to mislead the Court. This argument would not be available to the petitioner to raise in the present writ petition. It is not appropriate for the petitioner to so urge and he has to wait for the outcome of the SLP pending before Hon'ble Supreme Court and can say so only if the impugned report as reconstructed is ordered to be expunged. The factual position as on date is that the adverse remarks rightly or wrongly stands reconstructed and is standing in the record of the petitioner. This can be relied upon to pass an order of compulsory retirement. The submission or contention raised that challenge is pending before the Hon'ble Supreme Court or that the notice has been issued would not lead or advance the case of the petitioner to challenge the compulsory retirement. Since the interim order staying the compulsory retirement of the petitioner was obtained on this misconceived factual position, the same can not be continued. Even otherwise, I do not find any CIVIL WRIT PETITION NO.5683 OF 2011 :{ 7 }: merit in the writ petition. The petitioner may have a cause to agitate, once the SLP filed by him is decided in his favour and ultimately the Hon'ble Supreme Court decides to expunge the remarks, which have been reconstructed. The petitioner has not made any misleading averments in the writ petition and it is only the contention before this court. I am thus not imposing any cost while dismissing the writ petition. There is no merit in the writ petition and the same is accordingly dismissed. September 15, 2011 ( RANJIT SINGH ) khurmi JUDGE