Civil Writ Petition No. 2669 of 1992 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 2669 of 1992 Date of decision: 14.9.2009 Dev Karan ...Petitioner Versus The State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Amandeep Singh, Advocate for Mr. G.S.Hooda, Advocate for the petitioner Mr. S.S.Goripuria, Deputy Advocate General, Haryana ***** S.D.ANAND, J. 1. The petitioner herein, a former police official in the employment of the State of Haryana, impugns the validity of the order dated 29.11.1991 (Annexure P-4), vide which he was ordered to be prematurely retired at the age of 55 years. 2. A recapitulation, though with brevity, to the factual aspect would be required for an appropriate analysis of the controversy. The petitioner joined the Department of Police at the lowest rung of the ladder, as a Constable, on 1.6.1956. He was promoted as a Head Constable, with effect from 4.12.1963. He was confirmed as a Head Constable on 1.3.1975. He earned promotion, as an Assistant Sub Inspector, on 4.6.1977. He was further promoted, as officiating Sub Inspector, with effect from 31.10.1980. He was confirmed, as Sub Inspector of Police, with Civil Writ Petition No. 2669 of 1992 -2- **** effect from 31.8.1985. He earned his promotion to the rank of officiating Inspector of Police on 4.9.1988 (Annexre P-3). He was ordered to be prematurely retired vide order dated 29.11.1991 (Annexure P-4). He raised a grievance, in the form of a representation, before the department on the premise that as no adverse remarks came to be communicated to him after his promotion as an Inspector of Police, there was no justification for the premature retirement of the petitioner. The plea raised thereby was that whatever adverse remarks had been recorded in his ACR prior to his promotion, stood washed away with his promotion and those pre-promotion adverse remarks could not be made basis of an order on point of premature retirement. 3. In an act of pleadings-based resistance, the respondents averred that the conduct of the petitioner had been adversely commented upon by the District Magistrate concerned in the ACR for the period 1.4.1984 to 18.7.1984 and 18.7.1984 to 30.1.1985. It was also averred that the representations filed by the petitioner against adverse observations had been rejected by the competent authority after due consideration and had thereby attained finality. There is no dispute about the dates with effect from which the petitioner earned various items of promotion at the averred points of time. It was also averred that the promotion of the petitioner, as an Inspector of Police notwithstanding, the adverse observations recorded on his work and conduct during the pre-promotion period could validly be taken into consideration while deciding upon the grant of extension (from the age of 55 years to 58 years) to the petitioner. 4. The short point which deserves to be noticed, at the very outset, for adjudication is whether the pre-promotion adverse observations could be utilised by the competent authority in ordering the premature Civil Writ Petition No. 2669 of 1992 -3- **** retirement of the official or not. Learned counsel for the petitioner has placed implicit reliance on State of Haryana etc. Vs. Shri Davender Singh, SI 2009(3) S.C.T. 315 in support of the advocated presentation that the pre-promotion adverse observations get washed away with the promotion of the concerned official. In that case, the petitioner therein had been allowed to cross efficiency bar with effect from 27.1.1976 and 12.5.1984 (with effect from 1.4.1984). The petitioner therein had also been confirmed as Sub-Inspector vide order dated 17.1.1979 (with effect from 17.1.975). However, he was ordered to be prematurely retired on the basis of adverse ACR entries recorded for the period 1962-63, 1977-78 and 1978-79. The learned Single Judge had taken a view that the adverse entries (integrity doubtful) recorded in the year 1962-63 or 1979 would loose their sting on promotion and confirmation of the petitioner therein on the higher post. That view of the learned Single Judge was affirmed by the Division Bench in Devender Singh's case (supra). 5. An identical controversy came up for adjudication before the Letters Patent Bench of this Court in Letters Patent Appeal No.504 of 2002 (State of Haryana Vs. Bhopal Singh) decided on 16.12.2008. That, too, was a case of a police official who had earned an adverse integrity entry before he came to be promoted. In that case, the Division Bench noticed the law laid down by the Apex Court in Shri Baikuntha Nath and another Vs. Chief District Medical Officer Baripada and another 1992 (2) SCT 92 which reads as under:- “(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 Civil Writ Petition No. 2669 of 1992 -4- **** years. The record to be so 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 the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.” 6. In that case, the Apex Court also observed as under:- “If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.” 7. The judgment rendered by the Apex Court in Shri Baikuntha Nath's case (supra) was noticed by a Full Bench of this Court in Punjab State and others Vs. Kulwantbir Singh 1993(2) SCT 567. The Full Bench made the following observations in the light thereof:- “…… it has been specifically laid down that the Government has to consider the entire record of service before taking a decision to retire an officer compulsorily. It has further been held that more importance has to be attached to the service record and performance rendered during the later year. If a Government servant is promoted a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merits (selection) and not upon the seniority alone. The aforementioned principle has been reiterated by the Hon’ble Full Bench of this Court in Kulwantbir Civil Writ Petition No. 2669 of 1992 -5- **** Singh’s case (supra).” 8. In the present case, the petitioner did not earn even a single adverse entry qua his integrity throughout his career. This Court requisitioned his service record for perusal. For the period 31.10.1980 to 31.3.1981, the petitioner earned a 'very good' grading. In the remarks column, the then Senior Superintendent of Police, Gurgaon, recorded the following observations:- “As SHO Sohna, has enjoyed the confidence of general public. An upright officer who does his job diligently and conscientiously. A sober officer with simple habits. Has necessary derived initiative.” 9. For the period 1.4.1981 to 31.7.1981, the petitioner earned a 'very good' grading. In the remarks column, the then Deputy Inspector General of Police recorded the following observations:- “ A sober type of Sub-Insp. Having a straight approach to his job. His reputation at Sohna ws very Good. All section of society had faith in him. A fine investigator.” 10. He again was graded as 'very good' for the period 6.11.1981 to 31.3.1982. The following relevant observations were also made by the reporting authority in the course thereof:- “15. Attitude towards Schedule Castes/Scheduled tribes. b- Sensitivity to Social justice Sensitive to Social justice c- Ability to take quick and Takes prompt action effective action to prevent and Sensitive to the problems quell atrocities and ensure justice of weaker sections to Scheduled Caste/Schedule Tribes. Civil Writ Petition No. 2669 of 1992 -6- **** d- Effectiveness in bringing about the development of Scheduled Caste Scheduled Tribes.” 17. A quiet type, unassuming, dedicated, severe police sub- inspector. Knows his job very well prompt in action. Enjoys good reputation.” 11. For the period 1.4.1982 to 31.3.1983 also, he was graded as a 'very good' officer with the following observations in the remarks column by the competent authority:- “A sober, diligent, efficient Sub-inspector. He has handled dedicate Mewat area admirably well. Enjoyed the confidence of all sections of society. Has the reputation of fair and impartial officer.” 12. He earned a good grading with a clean chit for reliability and for his being sensitive to social justice. The competent authority also observed that he had the ability to take effective action. He earned a good grading for the period 1.4.1983 to 2.8.1983, 11.8.1983 to 31.3.1984, 1.4.1984 to 18.7.1984 and 18.7.1984 to 31.3.1985.. Thereafter, he was graded very good by the Superintendent of Police concerned in the ACR for the period 1.4.1984 to 18.7.1984. However, it was only in the relevant column that the District Magistrate made the following observations, which he repeated in the ACR for the 18.7.1984 to 31.3.1985:- “The official is perhaps too, gentle and meek and would not take any action even he is expected to intervene as a police officer.” 13. Further thereafter, he earned a good grading for the period 1.4.1985 to 4.3.1986, wherein he was described by the concerned Superintendent of Police to be an honest and gentle official. The District Civil Writ Petition No. 2669 of 1992 -7- **** Magistrate concurred with the observations. 14. For the period 10.4.1988 to 27.7.1988, 7.12.1988 to 31.3.1989, 1.4.1989 to 11.8.1989, 8.12.1989 to 9.7.1990 and 1.12.1990 to 31.3.1991, the petitioner was graded as 'good' or 'very good' 15. It would, thus, be apparent from a conjunctive perusal of the judicial pronouncement quoted above that the promotion earned by the petitioner in the year 1988 took away the sting of whatever came to be observed by the District Magistrate in the ACR for the period 1.4.1984 to 18.7.1984 and 18.7.1984 to 31.3.1985. Further, nothing adverse, in character, at all appeared during the post-promotion period of the petitioner. Thus, it was thoroughly inappropriate for the competent authority to order his premature retirement from service in the year 1991 (29.11.1991). I am buttressed, in this view of mine, by the various quality ACR entries which the petitioner is found to have earned throughout his service career. At the time of arguments before this Court, it was common ground otherwise that both the entries made by the District Magistrate concerned pertained to the same occurrence for which another police official had been independently charge sheeted. The learned State Counsel was not in a position to assert that any departmental enquiry came to be initiated against the petitioner in respect of the episode indicated in that averment or that the petitioner was ever indicted on that charge. 16. In view of the Apex Court view in Bainkuntha Nath's case (supra) and a Division Bench of this Court in Davender Singh's and Bhopal Singh's cases (supra), it is obvious that the promotion granted to the petitioner( an in Inspector of Police) in the year 1988 (4.9.1988) totally took away the sting of the observations made by the District Magistrate in the Civil Writ Petition No. 2669 of 1992 -8- **** ACR for the period 1.4.1984 to 18.7.1984 and 18.7.1984 to 31.3.1985. Any view to the contrary would be violative of the law of the land and patently unsustainable. This view is buttressed by the quality remarks earned by the petitioner in the various ACRs, a part whereof has also been quoted in an earlier part of this judgment. 17. Even otherwise, the representation made by the petitioner against the impugned order came to be rejected by the Competent Authority by a cryptic order which did not even notice, much less deal with, the points raised by the petitioner. The Competent Authority could not have wished away the validity of the ACR-based representation made by the petitioner. 18. In the light of foregoing discussion, this petition shall stand allowed. The impugned order dated 29.11.1991 (Annexure P-4) shall stand invalidated. The petitioner shall be entitled to the consequential benefits thereof. The exercise, in its totality, shall be concluded within one month from today. It is will be for the learned State Counsel to communicate the order to the authorities concerned. September 14, 2009 (S.D.Anand) Pka Judge Civil Writ Petition No. 2669 of 1992 -9- ****