C.W.P. No.10874 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.10874 of 2010 Date of Decision: 21.09.2011 Jai Kumar ....Petitioner Versus State of Haryana and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Sourabh Goel, Advocate for the petitioner. Mr. Anjum Ahmed, Addl. A.G., Haryana for the respondent-State. Mr. Ajay Nara, Advocate for the respondent-HUDA ***** 1. Whether Reporters of Local Newspapers 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 ? ** NIRMALJIT KAUR, J. The petitioner, herein, is seeking quashing of the impugned order dated 16.04.2010 (Annexure P-1) contemplating to prematurely retire the petitioner from the service on his completion of 55 years of age. While impugning the said order, learned counsel for the petitioner submitted that the order of retirement is vindictive and arbitrary and passed on the ground that the petitioner has not passed the typing test as per his promotion letter, whereas, he has already been deprived of the annual increment due to his failure to pass the type test. Thus, the respondents could not have punish him beyond the deprival of annual increments for not qualifying the typing test. He could not have been C.W.P. No.10874 of 2010 2 pre-maturely retired just because he could not clear the departmental test. Moreover, most of the departments in the State of Haryana have waived off the type test requirement and even released the increments. The said order is without any public interest. The petitioner has already suffered adverse consequence of failure to qualify the type test. Reliance has been placed on the judgment of Hon'ble the Apex Court in the case titled as Ramdan Charan vs. Rajasthan High Court Jodhpur reported as 2009 (17) SCC 642 to argue that the employee could not be terminated from his services for not passing the required test. At the most, he could only be reverted. Reply on behalf of the respondents has been filed. As per the reply, the petitioner has, in fact, been retired in accordance with the Rules and that the decision is not mala fide. The same was made applicable on all the employees who have failed to pass the type test and whose cases were put up for considering their retention in service after completion of 50 and 55 years of age. Heard. The operative part of the impugned order reads as under :- “ He assumed the charge of the post of Clerk on 04.06.1988 and required to pass the departmental type test upto 03.06.1989, but he failed to do so after lapse of more than 21 years. His case for extension in service beyond the age of 55 years has been considered and reviewed in the light of the Government instructions/rules. It has been found that he has been lacking in `professional integrity' by not making efforts to pass the type test as per condition of his promotion letter. It implies that he has deprived the Organization of the efficient services expected of an employee as Clerk. In fact by not learning the typing skills, he has not been able to discharge his duties as Clerk in efficient manner and in public interest. C.W.P. No.10874 of 2010 3 In view of these facts, it has been found that his retention in service in the Authority beyond the age of 55 years is not in the public interest as the continuance of an employee who lacks professional integrity is nothing but a burden on the exchequer which is public money. It has, therefore, been decided to retire him as per provisions contained in Rule 3.26(d) of the Punjab Civil Services Rules by giving him three months notice. He will stand retired on completion of period of three months from the date of receipt of this notice by him.” As per the written statement, the HUDA had embarked upon an ambitious program of total computerization. Therefore, it was thought necessary that the Clerks and dealing Assistants must have knowledge of typing as they are required to work on Computers. The petitioner was granted various opportunities to clear the typing test. He did not pass the said test during a period of 22 years which adversely affects the efficiency and effectiveness of the organization. Hence, it was thought to prematurely retire the petitioner in public interest. It is further stated in the written statement that the said decision has been made applicable to all the employees who have failed to pass the type test and whose cases were put up for considering their retention in service after completion of 50 and 55 years of age. Learned counsel for the petitioner does not dispute this fact. This Court in an identical case of Kulwant Singh vs. State of Haryana and another passed in CWP No.13917 of 2010, decided on 28.04.2011, on identical facts, while relying on the judgment of Hon'ble the Apex Court in the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 Supreme Court 1020, held as under :- “As per counsel for the petitioner, the petitioner has an unblemished record of service and hence, action of respondent No.2 in declining C.W.P. No.10874 of 2010 4 extension of service is not fair and reasonable. On the other hand, counsel for the respondents would point out that the petitioner is not efficient and is almost a dead wood because he neither could efficiently learn and pass the typist test nor has any knowledge about the computer, which is now essential for an employee working in HUDA. The decision, thus, has been taken not to retain the petitioner beyond 55 years of age, which order is neither stigmatic nor punitive to call for any interference in exercise of writ jurisdiction. Once the petitioner has not been able to qualify a type test, a view is possible that he is not efficient enough for being retained in service as he would hardly be able to contribute to the service. The view, thus, is possible that he has become a dead wood for further retention in service. Here the principles laid down in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 Supreme Court 1020, may be noticed and these are as under:- “i. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. ii. The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. iii.Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) malafide or (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 C.W.P. No.10874 of 2010 5 on the given material in short, if it is found to be a perverse order. iv.The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding adverse remarks, such remarks lose their sting, moreso, if the promotion is based upon merit (selection) and not upon seniority. v. An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstances by itself cannot be a basis for interference.” Hon'ble Supreme Court has also observed that interference is permissible only on the grounds mentioned in (iii) above. Thus, order can be interfered when it is passed with malafide or it is based on no evidence or it is found to be perverse in the sense that no reasonable person would form the requisite opinion on given material. Nature of function while passing this order was held not to be quasi-judicial because the action has to be taken on subjective satisfaction of the Government. It is, thus, held that there is no room for entertaining the facet of audi alteram partem of principles of natural justice in such a case.” The facts of the present case are squarely covered by the ratio of above said judgment. On the other hand, the judgment rendered in the case of Ramdan Charan (supra) and as relied on by learned counsel for the petitioner, does not help the petitioner as the said judgment is in a situation where the services of the petitioner were terminated as he was not able to C.W.P. No.10874 of 2010 6 clear the test. In the present case, the petitioner has been prematurely retired from the services in accordance with Rule 3.26(d) of the Punjab Civil Service Rules as applicable in the facts of the present case. Similar order has been passed in the case of similarly situated employees. Accordingly, the same is neither discriminatory nor mala fide and is passed in public interest. In view of the above discussion, the present petition is dismissed being devoid of merit. (NIRMALJIT KAUR) 21.09.2011 JUDGE gurpreet