IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.317 of 2008 Date of Decision: 21.10.2008 Mohan Lal .... Appellant versus State of Haryana and others .... Respondents Coram: Hon'ble Mr. Justice Rajive Bhalla. Present: Mr. Kishan Lal Goel, Advocate for the appellant. Mr. Ajay Chaudhary, Deputy Advocate General, Haryana. Rajive Bhalla, J (Oral) The appellant challenges the judgment and decree dated 28th August, 2007, passed by the Additional District Judge, Chandigarh, accepting the appeal filed by the State of Haryana, reversing the judgment and decree passed by the Civil Judge (Senior Division), Chandigarh, dated 27th September, 2005, and as a result dismissing the suit. Vide order dated 17th June, 2003, the appellant was informed that w.e.f. 12th October, 2003, he would not be retained in service after attaining the age of 55 years, in public interest. The appellant filed a representation before the Financial Commissioner and Principal Secretary, Government of Haryana, Printing and Stationery Department. This representation was rejected on 28th August, 2003. Aggrieved by these orders, the plaintiff filed a suit challenging their correctness. The respondents opposed the suit by asserting that the appellant had only 60% good or above average reports whereas according to the Government instructions out of the Annual Confidential Reports for the last ten years RSA No.317 of 2008 -2- 70% shall be in the category of good or better than good. The punishing authority, therefore, arrived at a considered conclusion that his service could not be extended beyond the age of 55 years. On the basis of the pleadings, the learned trial court framed the following issues :- 1. Whether the plaintiff is entitled to declaration as prayed for? OPP. 2. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether this court has no jurisdiction to entertain any try the present case? OPD. 5. Whether there is no cause of action? OPD. 6. Whether the plaintiff has no locus standi to file the present suit? OPD. 7. Relief. Vide judgment and decree dated 27th September, 2005, the learned trial court decreed the suit, set aside the order of compulsory retirement and the order passed by the Financial Commissioner rejecting his representation holding that the average report for the year 1996-97 would have to be treated as good. Aggrieved by this order, the respondents filed an appeal. The first appellate court accepted the appeal and set aside the judgment and decree passed by the trial court and as a result dismissed the suit. Counsel for the appellant submits that for a period of four RSA No.317 of 2008 -3- years preceding the order of compulsory retirement, the appellant earned three good and one very good report. As the appellant had improved his work and conduct, the average and below average reports, should, have been disregarded or considered as good. The trial court, rightly disregarded these reports but the first appellate court on a perverse and illegal consideration of the reports, reversed this finding and accepted the appeal. It is submitted that there was no material before the appointing authority to form an opinion that the appellant was dead wood or was of no further use to the department. It is, therefore, prayed that the appeal be allowed and the judgment passed by the first appellate court be set aside and that of the trial court be restored. Counsel for the respondent asserts that as per Government instructions, an employee who has less than 70% good reports cannot be retained in service beyond the age of 55 years. The appellant admittedly has 60% good reports. The appointing authority, after an appraisal of the above material, arrived at a decision that the appellant could not be retained in service beyond 55 years. It is submitted that the first appellate court did not commit any error in accepting the appeal, setting aside the judgment and decree passed by the trial court and dismissing the suit. I have heard counsel for the parties and perused the impugned judgment and decree. The principles that govern the exercise of power of compulsory retirement, have been set out by the Hon'ble Supreme Court in Baikunth Nath Das and another vs. Chief District Medical Officer, Baripada and another 1992 (2) SLR 2 and State of Orissa and others vs. Ram Chandra Das 1996 (4) SLR 456, State of Gujarat vs. Umedbhai M. Patel, (2001) 3 SCC 314. In Baikunth Nath Das and another's case (supra) the RSA No.317 of 2008 -4- principles, governing an order of compulsory retirement, were enumerated by the Hon'ble Supreme Court 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) mala fide 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 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 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 RSA No.317 of 2008 -5- seniority. (v)An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.” In State of Orissa and others' case (supra), the Hon'ble Supreme Court held that adverse remarks continue to form a part of the service record and the character role. Even a minor penalty continues to remain a part of the record and, therefore, it is not for the Court to examine whether the decision to compulsorily retire a government servant is justified or not. If the Government has taken a proper decision, then merely because an old adverse entry has been considered or promotion granted thereafter would not be a ground to set aside the order. In State of Gujarat's case (supra), the Hon'ble Supreme Court, after taking into consideration Baikunth Nath's case (supra), elucidated the law and carved out the principles, that govern compulsory retirement, as follows :- (i) Whenever the services of a public servant are no longer useful to the general administration, he can be compulsorily retired for the sake of public interest. (ii)Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (ii)For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed RSA No.317 of 2008 -6- after having due regard to the entire service record of the officer. (iii)Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (iv)Even uncommunicated entries in the confidential record can also be taken into consideration. (v)The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vi)If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (vii)Compulsory retirement shall not be imposed as a punitive measure.” The aforementioned judgments leave no manner of doubt that while passing an order of compulsory retirement or an order refusing to extend service beyond 55 years the appointing authority is required to make a subjective assessment of the service record and thereafter record its subjective satisfaction for or against the retention of an employee. The paramount object that underlines such a consideration is public interest. The conclusion so recorded would be final subject however, to judicial review, if invoked. Interference by courts is confined to situations where the opinion so recorded is mala fide or is not based upon any material or is so arbitrary or unreasonable as to require interference. In the facts and circumstances of the present case, the material on record as held RSA No.317 of 2008 -7- by the first appellate court, clearly establishes that the appellant did not fulfil the criteria as laid down in the Government instructions i.e., did not earn 70% good reports. The Annual Confidential Reports for the preceding ten years are as under :- Sr. No. Year of ACR Categories/Remark 1 1993-94 Below Average 2 1994-95 Good 3 1995-96 Below Average 4 1996-97 Average 5 1997-98 Good 6 1998-99 Below Average 7 1999-2000 Good 8 2000-01 Good 9 2001-02 Good 10 2002-03 Very Good These reports were conveyed to the appellant. The appointing authority considered these reports and arrived at a considered decision that the appellant could not be retained in service beyond 55 years. The subjective satisfaction of the appointing authority is in no manner mala fide, arbitrary or perverse as to require interference. As a result, I have no option but to hold that the first appellate court rightly accepted the appeal filed by the State of Haryana and dismissed the suit filed by the respondent. The impugned judgment does not suffer from any error of jurisdiction or of law and as no question of law much-less a substantial question of law arises for consideration, the appeal is dismissed. 21.10.2008 (Rajive Bhalla) sk Judge