9en 5 k6 lJrcoG 6J i1 7 11 04 J 7 1 4 N021197 of2008 1 1 Jnthe HighCourt ofPunjab and Haryana at r 1 Dateofdecision 27092010 1 1CWPNo21197 of2008 J 51 r 1 1 1 1 1 11 1 V 1 SlIlllt1I Petitioner 1 1 41 1 Versus 1 t 1 StateofHaryana and others r 2CWP No 476 of 2009 1 DavinderSinghASI Petitioner Il Versus j 98 1e 07 1 1 StateofHaryana and others r rl n6 i 1 CORAM1 HONBLE MR JUSTICE PERMOD KOHLI r i 1 Presentl MrAK Bura Advocatefor thepetitioners MrS Kundu AddAG Haryana for the 5 c8 e1 r 1 1 1 1 PERMOD KOHLI J 0 avwl Z 1 I l 1 1 Ll 1 These two writ petitions have been filed the I 3 1 adverse Annual Confldential Reportsfor the pcriod261142006 to 9 1 i4 4 1 r 1 31032007 vide order dated29052008 nnexure Pe3Iin CWP No21197 1 r of 2008 and the communication dated24122008 P and the 1 Se orderof retirementdated02Ol 2009 Annexure Pm61 in CWP 1 1 1 NoA76 of2009 1 r Factsleadingto thefilingofthesetwo writ petitions are briefly 1 IS t 1 1 noticedhereunder ll 1 1 1 Petitioner was appointed as a Constable on 12121978 in 1 I 4 1 1 P7 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document t ll l 400 4 1 10 CWP No 21197 of2008 2e Il DistrictBhiwani lt is statedthatin his longtenure of 29 yearsof service 1 el he hasbeen awarded as many as 31 commendationcertificatesincluding Y1 1 two certiflcatesduringthe periodadverse reportshave been recorded against him ie 26042006 to 31032007 Petitionerhas beenconveyed the 1 adversereportsrecordedin his service recordvide communication dated 51 23052007 The made a againstthe aforesaid 4 10 adverse remarks throughproper channel vide Annexure P This stands jectedvide memo dated29052008 AnnexurePa39 t 4 by a nonspeaking order which is subjectmatter of alongwith 1 0 i 2 1 the adverseentryin CWP No21197 of 2008 While this writ petition was 2 I pendingthe petitionerhas been served with a Show Cause Notice i Annexure I2 with CWP NoA76 of 200 proposing to retire 4r4 4 Z him in publicinterestunder theprovisionsofSub Rule 29ofRule 98 629 1 2 1 ofthe PunjabPolice Rules 1934 as to the StateofHaryana and 1 0 L amendedfrom time to time He was asked to submit his replywithin 15 days In responseto the aforesaid Show Cause Notice the 4 submitteda detuilcdreplythrough properchannelvide P3 witll r 4 1 CWP NoA76 of 2009 The Director Generalof Police Haryanavide his 1 order dated23122008 P with CWP NoA76 of20091 ordered retirementof the petitioner and forwardedthe same to the 1 1 Govemmentfor approval as required under Rule 918 629ofPunjabPolice Rules 1934 This order was directedto be communicatedto the petitioner vide letterdated 31122008 4nnexurePw5with CWP NoA76 of 20099 the petitionerstands retiredwith effect from 311 22008 vide a orderdated02022009 I6 with CWP N76 1 1 of 20099The Show Cause Notice andthe order of compulsory retirement 1 1 1 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 4 4 r 4e4eVe eem pm ea 3 1 f J 4 2 CWPNo1197 of2008 3m aresubject matter of in CWP N176 of2009 1 Common groundsto the adverse reportsand n 1 retirementhavebeen in thesewrit petitions It is averred that thepetitioner was posted as Incharge Railway II 1 Police Post Bhiwani in the month of November 2006 whereone Suraj P 1 Mal Head Constable Belt N0522 was workingunderhim It is alleged 1 1 that SurajMal was not workingsincerely The recorded his 1 1 absenceand for this reason he becameinimical to petitionerIt is funher 11 J statedthat the was on leave for a daywel 11 122006 to 12122006 and duringthisperiodSurajMal instigated one Jai Singhson 1 1 11 l l ofSurat SinghCasteSansito lodge a complaint againstthe On 1 1 1 the of Jai Singha First Information ReportNoA dated e 1 1 0012007 Sections344 383and 34 of theIndian Penal Code was 1 4 r E 4 2 at Police Station GRP Hisar One CIA Om Parkash 1 0 ll 4r was entrustedits Petitionersought b9ilwhich 1 I c8 S 1 was by the learnedSessionsJudgeBhiwani A petition under 1 1 1 r 4 Section 439 2 CrlO C for cancellation of the bail was 1 aw 1 i Z dismissedbythe HighCourt as withdrawn ARer the the 1 11 1 Il petitioner was not named as an accusedin the final reportsubmittedto the 1 f Courtunder Section 173 Crl nor he was summonedbythe Coun Itis 1 1 also statedthat a enquiry was orderedagallSt e 1 the petitionerOne Ranvir SinghDSPwho conducted the enquiryfound 1 4 1 i 17 thepetitioner innocent Thepetitioner statedthat the adverseremarksin his 1 i 1 ACR are incorrect and not basedon any material From the ofthe 1 e f memo dated23052007 adverseremarksagainstthe petitioner 4 it appearsthata referenceis madeto FIR NoA dated03Ol2007 which was 1 1 1 i 1 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 1 402 r 1 1 0 1 e1 41 ll CWPNo1197 of2008 4 againstthe PurthP js modc10 two initiatedagainstthe petitioner andthe has beenadvised to remove these defects Petitionersubmitteda detailed 1 f against his adverseremarkswhich stand vide memo 1 dated29052008 The order of rejectionof is totallynon b No exceptdevoid of any merit have been reason 6 01 communicated The was never made an accused in the FIR 9 against him In the charge sheet in theCoun eventhe 1 otheraccused againstwhom the chargesheetwas filed lll the Court of 1 Chief Judicial MagistrateBhiwani were vide judgmentdated l r 9 t j 1 0622008 Even in the also the was 7 t 1 exoneratedby the EnquiryOfScer The Authority 4t 5 Z with thereportof theEnquiryOfflcer issueda Show Cause Notice to the Il 1 2 proposingto award of stoppageof flve future 1 6 incrementswith effect Petitioner submittedhis replyto the Z 025 ShowCause Notice The Authorityhowever awardedthe c13 ofone 81tureincrementwith permanent effect vidc 7 Z his order dated 1702008 of the award of the 1 0m t an appealbefore No2 and on hearing the P 01 in person and considerationofthe record appealofthe 1 was and the of stoppageof one annual grade 4 1f incrementhasbeen reducedto the of Censurevide order dated 407 1672008 Pe5with CWP No21197 of2008 a 11 One of the of the petitioneragainsthis adverse lj 9 ACR is that the adverse reporthas been recorded in violation of he Governmentinstructionsdated 12121985 The retirement 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 1 Il 1 Z 0t5 1 CWPNo1197 of2008 1 5 order passedby the 1S also solelybased upon the FIR againsthim theadverseACR and the In replyto boththewrit petitions thepleais almostCOmmon While admitting thefact thatthepetitioner was not sent to trialin FIRNoA 1 dated03012007 it was concededthat the was exoneratedbythe EnquiryOftlcer lll the Enquiryinitiated againsthim i 1 However with a view to justifythe action againstthe petitionerit is 1 i alleged that the petitioner was charge sheetedin another In one case his 1 e annualincrementwas stopped with permanenteffect vide the memorandum dated09Ol2008 Referenceis also madeto anothercomplaint Sled byone 1 0 Narain Dutt son of Ganpat Ram against the petitioneraIleging that the 1 did not takeanyactionon his ofthe of ornamentsand 1 11 Z helpedthe accused to escapeand thus he has tamishedthe imageof the 1 2 Police Haryana 1 1 1 1 Adverseremarksmadeagainstthepetitioner vide Annexure P 1 I 1 1 C8 1 for theperiodoln 26A2006 to 31012006 are as underl 10 1 6l9 W7 Z 639 Moral courageandreadinessto exposethe 1 1 Qm 1 1 of subordinates Lacking i 1 49 Reputatiion for fair dealing with thepublic and to thepubliclNot proper 69l c initiative Not proper 10 PowerofcommanlLoose 1 i Il 1 Ol l Interestin modernmethodsof 11 4 andmodernpolice methods Does not possess 1 11 Il Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document nt 404 a 11 1 6 4 8 CWPNo21197 of2008 6 i 1j 121 Preventive8zdetectiveabilitylNo proper 11 ofCriminal Law and ProcedurelLaCks 14 Reliabilityl Not reliable 161 Doesofficiallofflcerremainat HQrs or not 1 aReroffice hoursl Does not 1 6199Defectsifany and whetherthosewere 1 P brought to hisnoticethroughanyletter1 was 0 i placed under due to involvementin FIR NoA dated3107 Uls 3841342134 IPC GRPS Hisar along with othersand inquiry was initiated Z vide meo No567 781A1 dated 4 912007 inquiry was initiatedvide 1 memo No5996051A1 dated 91 2007 due to 1108 non ofthe in time 1 e GeneralRemarkslUnableemployee 111 police 1 Z l1 ASI Devinder SinghNo60711GRPbe 1 ofthe abovesaid adverse j 1 remarksand beinstructedto remove these 1 1 1 defects Signature withdateofthe 1 beobtainedon thesecondcopy 1 attached herewithand the same may be sent e to thisoftlce as an 1 Il 1 1 Sdl nl 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 1 1 405 41 1 1 ll CWPNo 21197 of2008 w Director Generalof Police Railways cTechnical Services HaryanaMogiNand Panchkula 11 1 While the above adverse entries it was also mentionedin the last of the communication that theofficer be instructedto remove thesedefectsIt also appearsthat the adverseremarks t columns are primarilybased upon in vanous FIR No dated 03Ol 007andthe Enquiryinitiated againstthe petitioner 1 P 1 01 1 1 Otherwise no other materialhas beenreferredfor recording adverseentnes 4 1 1 against thepetitionerThe ofthe petitionerhasbeen rejected 1 1 bythe General ofPolice Railways Technical ServicesHaryana 1 52 bYa ond ordorThe ordorlltod29052008 1 e 4 P3l readsas underl 1 I have gone throughthe 4 1j comments submittedbythe Reporting Offlcer and 1 X 1 other relevantrecordssubmittedbyASI Davinder 1 021 1 SinghNof0071GRPagainstthe adverse remarks t 4 V7 recorded In his ACR for the duration from Z Ii 1 2642006 to 3132007 His has Om been consideredand rejectedbeingdevoid of any merit The be informed 18 1 11 4 Sdlv J KlCMishra9 1 Inspector Generalof Police Railways c Technical Services 4 4 HayanaMogiNand Panchkula 13 1 The petitioner has placed on record order dated06122008 3 1 j Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document J j WP No21197 of2008 8e J bythe learnedChiefJudicial Magistrate Bhiwani in Criminal Case No431108 flled pursuantto FIR NoA dated 03Ol 2007 in which the was initiallyinvolved The petitioner has not been arrayed as an accused Even the two personswho are arrayedas an accused have been 1 It is alsoadmittedfact that in the Enquiryas well 1 the hasbeenexoneratedThus the very basisfor adverseremarks 1 1 1 thepetitioner 1 Apartfrom the above the has also relied upon 1 instructions dated 12 12985 The relevant instructions a relating to reportlng111 respectof doubtful integrityrequiresthat the 7 Officer must clearlystate ifthe ofOceris of corruption ls 1 e J or IS believed to be corruptand this opinion should be e Z fulated by reasons which may be in of the 1 1 Officer l 1 i ko rom the adversereportsnoticed herein above it can Z 1 05 4 inferred that FIR No dated 03Ol o2007 and the rl 1 are the reasons for doubting the integrity of the em il Z petitionerIn far other aspectsrelating to his efflciency 4 etc are SO Clm concernedperhaps no interferencemay be warranted No materialhasbeerl Y referredto exceptthe FIR and the Even the 1 4 reasons for such an opinionare not recordedor disclosedin the repiy Iri J 1 41 of the outcome of the criminal and the Vlew J e V 1 1 1p Enquirynoticed above the adverse remarks integrityof the J 1 1 are not substantiatedbyany materialand thus 4 1 4 1 1 The AppellateAuthorityalso did not bother to record any 4 i 1 1 1 reasons for rejecting the which has been dealt with in a most Il 1 Il 8 Il 4 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 6 407 11r 1 5 1l 1 r4 0 1 a 1 CWPNo1197 of2008 casualmanner Even in the reply110 have been disclosed for jectingthe of the It is also noticed that while the adverseentries to the to remove 4 1 I i his defectswas This clearlyestablishesthat at no stagethe 1 was givencounseling or of his defects Thus the advise or counseling after amounts to puttingthe cart before sl IlIl the horse t 14 Thus the orderdated 2305007 Pel ie adverse 72 0 1 remarksis liable to be 111 respectto entry lIl Column No 1 1 Doubtflll It is not possiblefor this Court to interfere in the other 1 columnswherein efficiency etc of the petitioner has been commented 1 lr upon theorderdated29052008 lnnexure 30passedby 1 1 1 1 Z theInspector General of Police Railways c Technical Services Haryana i 4 1 1 2 the ofthe is alsoset aside tX 1 Now coming to the Civil Writ PetitionNoA76 of 2009 The 01 f 1 1 O has been retired vide the order dated 1 Il 1r 24122008 AnnexureP9 bytakinginto consideration theadverseremrks 1 emm t Z 41 referredto above FIR NoA dated 03012007 and the two 1 1 i Om In one Enquirythe hasbeenawarded 4 of stoppageof one incrementwith temporaryeffectwhereas 1 11 t another Enquiryhe hasbeenawarded 1 ofone incrementwith permanent effect 4 1 1 1 4 the of NarainDutt son of Ganpat Ram As regards the 1 on one 1 1 Ie secondenquiryis concerned the petitioner has placed on record an order Il A passed bytheAppellate Authorityie Inspector General 4 C TechnicalServices Haryanadated 162008 wherebythe penalty of 11 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document I 4 11 at 408 1 1 7 ll CWPNo1197 of2008 10 of one annual gradelncrement witll eff8t haO 1 reducedto thatofCensureonly the FIR NoA dated032007 1 it has already been noticed that the petitioner h not been challanedin 4 criminal case and exoneratedin the EnquiriesIt 1Sa matter 9 1 t of concern that the Director General of Police Railwaysand Technical 1 1 10 j1 1 Services Haryanarelied upon a which does not exist the e 1 1 Authorityhavingconverted the penaltyof stoppageof one 1 m 1 1 incrementwitb permanent effectto thatof CensureEither theorderof the 4 0 AppellateAuthority was not brought to his notice or he hasover400kedthe r 1 the order of In any same retirement casethe i 1 6e 6J order of compulsory retirement merely on the basis of of P i f 7 1 of one annual gradelncrement with temporaryeffect awardedin 4 1 1 1 Z 1 1 one Enquirybyno yardstick is 1 04 1 ln the case of NaikunthaNath Das Vs Chief Distt Medical 1 f 1 X 1 Offlcer 19921 2 SCC 299 Honble theSupreme Court haslaid down f 1 A 1 C for thevalidityofthe orderof 1 retiremel Ql Il Therelevantobservationsare as underl lm Z 1 16 A Bench of this Court ltl 4 1 Baikuntha Nath Das v Chief Distt Medical ll Officer laid down the followingOve principles 1 1 SCCpp3156para 3L 1 4 6 1 e i An order of retirement ls not a 1 It impliesno stigmanor any 1 01 10 ofmisbehaviour 1 iil The order has to be passedby the 1 1 1 Governmenton formingthe opinionthat it 1S 111 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document t l r 1 1 1 409 j J 1 1 ll J P CWP No21197 of2008 11 the publicinterest to retire a governmentservant The order is passedon thesubjective satisfactionofthe Government P iio Principles have no placelIl 8 4 thecontext ofan order retirement t This does not mean that judicial scrutiny 1S 1 WlolledeHigll 1 Court or this m P Court would not examine the matter as an 0 t appellate court theymay interfereif they are 1 1 C satisfiedthat the order is passed malafide or X 0 bl that it iS based on no evidence 6cl that it 1S 4 1 4 arbitrarrin the sense thatno reasonable person In Z 1 would form the tequisite opinion on the given 1n Q4 material in short if it is found to be a perverse e I order 4 c21 1 iv9 The Govemment or the Review Committeeas e the case may be9shall have to consider the entire m 1 Z 1t 1 e7 record of service before takinga decision in theI Om mattereofcourse more to record 1 1 ofand duringthe lateryears The record 1 to be so considered would naturallyinclude the 4 ee entries in the confldential recordslcharacterrolls 3 bothfavourableand adverse If a government servant 1 1 1 1S promoted to a higherpost the 1 1 4 adverseremarkssuch remarkslose theirstingmore 31 So if the promotion is basedupon merit selectionl 4 1 I l 11 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document j Il 1 410 J 11 7 j 71 1 CWPN021197 of2008 12 rl and not uponseniority V An order of retirement 1S not 1 liable to be by a court merelyon the 4 showing that while passingit uncommunicated Ii 1 r adverse remarks w6re also taken into jl 1 1 consideration That circumstancebyitself cannot l 4j e lle a f6f t l 1 j 1 4 1 l This decision hasbeenreiteratedin a numberof later decisions 1 including in the case ofStateofGuiaratand anotherVs SurvakantChunilal Shah 99991 Supreme Court Cases 529 r 4 1 4 In the presentcase the opinionhas beenformulatedon non 7 V J 4 existent rnaterialie without evidenceas 1S from the 9 Z order of compulsory retirementwherein referenceis madeto FIR NoA e r 1X 4 dated03012007 and two EnquiriesThe outcome of these1 1 1 4 1 1 hasalreadybeen noticed above Thus the very basis for two cases cll 1 compulsory retirementdoes not exist and it is a case of no materialonj record In Chunilals case supra9 Honble theSupreme Court 1 held as underl 11 Om 4 i 9 This decision was takenunderRule 161 ofthe 1 Il 1 4 BombayCivil Services Rules 1959 11 8 provides as under 1 16 l9 a Exceptas otherwiseprovided in the 44 otherclausesof thisRule the dateof 1 retirementof a govemmentservantotherthan a S ClassIV servant is the date on which he attains i theageof58 years 9Il 1 1 1 4 1 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document b0 47 P 411 IJ 1 J CWP No1197 of2008 a13 Provided i9ii9 4 Ht 4 4 1 1 1 iio He may be retainedin service afterthe dateof 4 11 I l retirement6nlywith the previous t 1 sanctionof the Governient on publicgrounds whichmust be recordedin writing 1 mm 1 6aal anythingcontained in 1C 1 1 clause a t k 1 0 An shall if he is of the 1 1 1 1 opinionthat it is in the publicinterestso to do P 1 1 have theabsoluterightto retire any government servant to whom clause bygivlllim 1 1 Z 1 1 notice of not lessthan three monthsin writingor 8 O 1 threemonthss pay and allowances in lieu of such 1 1 05 notice 1 1 1 02 1 1 Ifhe ClassI or Class II service or post 11 1S lll or W Z in anyunclassied gazetted post the of Il for the purpose of direct recruitmentto which is below 35 years on or atler the date on which he 1 1 11 attainstheageof50 yearsand 1 1 t 2 if he is in any other service or post the 1 r I limit for the purposeof direct recruitmentto which lS beIow 40 years on or after the dateon whichhe 1 i 1 1 l 1 attainstheageof 55 years I l 1 Ir iil anygovernment servant to whom clause 1 f 4 6 appliesmay by givingnotice of not less than Il 1 i Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 4 l 3n 9 1n 4i d r 9 v 71 fWP No21197 of2008 a14 1 1 1 three months in writing to the appointing retire from serviceafterhe has attained 1 the ageof 50 yearsif he is in Class I or ClassII 1 service or postorin anyunclassifted post 10 the for the purpose of recntitment to which is below 35 yearsand in another case after 1 j he hasattainedtheageof 55 years m 1 Provided that it shall be open to the appointing 11 to withhold to retire to a Il l l 1r 1 servant who is under or againstwhom are i pending or and who seeks to retlre 4 Z underthissubclause 1 1 1 1 1 1 6b9A Governmentservant 93 t 4 t e1 Z I am of the considered view that the order of 05 1 retirement is a colourableexercise of and is liable to 1 r 1 n1 Cl 1 w 1 1 1 In view of the above thesetwo wrlt petitions are accordingl 11w1 allowedwith thefollowing directions 1 Entryof a doubt811integrity 4 le communicatedvide letter dated 1 1 23052007 64nnexure Pel in CWP No1197 of 2008 alongwith order dated2C1052008 I39 the to theextent 6 it relateto the entryofdoubt811integrity are hereby 1 11 2 The retirementdated02012009 P 111 11 1 3 Ii CWP NoA76 of2009 is also n 1 1 Il 1 J 3 The petitioner is orderedto be reinstatedinto serviceforthwith The I r 1 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 413 1 of2008 15 1 shall nOt beentitledto any wages duringthe period ie from the date of retirementtill he is reinstatedthough he 1 will beallowedthenotionalbenefitsof increments any other bene8twhich 1 J have been avallable t6 h2dh8becnln 69IY19revlSlOll ofpay etc ifanyfor thepurposeoffixation ofhis salaryOn reinstatement S A copy ofthis orderbe placedon therecord 818 1Io 4 1 t5 0 e44 1 27092010 PERMOD KOHLO 4 C f BLS JUDGE 0 P 2 LJ Whetherto be referredto the YESI 9 ililip 1 jl Ij 1 1 1 1 3 c25 64 1 1 3 4 e mwl 1 1 1 Z ry r4V PV 1 ID 1 1 1 1 L 1 1 1 1I5 n1 f 2t l 1 1 01 1 Radhika 2014.03.06 16: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document