CIVIL WRIT PETITION NO.4680 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 02 ,2010 E/SI Anand Kishore .....Petitioner VERSUS State of Haryana & 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. S. N. Yadav, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has impugned a notice dated 23.12.2009 issued to him seeking his compulsory retirement with effect from 31.3.2010. Having failed in his representation, the petitioner has filed the present writ petition The petitioner joined the service in Haryana Police as Constable on 29.10.1977. He was promoted as Head Constable on 11.11.1988 and as ASI on 12.9.2003. The petitioner claims that his entire service record is good and there is no major punishment CIVIL WRIT PETITION NO.4680 OF 2010 :{ 2 }: awarded to him. The petitioner has made reference to the instructions issued by Director General of Police, Haryana, regulating the retention of employees on completion of 55 years of age. As per these instructions issued on 14.3.2006, a person who has earned 70% or above good reports and whose integrity is not doubted during the last 10 years reports is fit to be retained in service on completion of 55 years of age. The cases of those whose integrity is doubted in any of the reports in the last 10 years are to be placed before the Head of the Department for decision as per the instructions dated 11.4.2005. Having made mention to the instructions, the petitioner has disclosed that he was awarded penalty of stoppage of two increments with temporary effect on 31.1.2008 and some adverse remarks were recorded on that basis in his Annual Confidential Report for the period from 1.4.2007 to 31.3.2008. The petitioner had appealed against the punishment awarded to him and the punishment was reduced to just censure. Besides, the petitioner had also represented against the adverse remarks and thereupon, remarks endorsed in Column No. 17 of the report were expunged. Remarks in Column No. 17 of the Annual Confidential report were to the effect that two increments of the petitioner were stopped on 31.1.2008 in an enquiry held concerning the allegation of taking wrong travel allowance carelessly for which, he was found guilty. The remarks, thus, were for the same incident for which the petitioner was punished. Despite this, subsequently, the petitioner was CIVIL WRIT PETITION NO.4680 OF 2010 :{ 3 }: promoted as Sub Inspector on 13.1.2009. Still, the petitioner was served the impugned notice for retiring him compulsorily on 23.12.2009, which the petitioner has now accordingly challenged. Notice of motion was issued on 17.3.2010 and by way of an interim measure, it was directed that the petitioner shall not be retired pursuant to the impugned order. He, however, was not to be paid any salary till the matter was considered by the Court. Respondents have filed reply stating that after careful consideration of the service record of the petitioner, the competent authority has decided that the services of the petitioner were no longer required. The respondents would submit that it is the prerogative of the competent authority to retire any public servant on completion of 55 years of age by serving him a notice in this regard and this right is absolute with the authorities. It is stated that only person with meritorious record are allowed beyond 55 years of age and that too in public interest. As per the respondents, it is settled that a person with average report is to be treated as adverse and such a person could be retired compulsorily with the basic idea to chop of dead wood and retain an honest and efficient officer. Reference is also made to the adverse remarks recorded in the ACR for the period from 1.4.2007 to 31.3.2008 where the petitioner is described as an irresponsible type of police officer and assessed as average in the report. Reference is then made to the enquiry held against the petitioner and the award of censure for an offence which reflects on the integrity of the petitioner. A criminal case is also statedly pending against the petitioner and so the respondents as CIVIL WRIT PETITION NO.4680 OF 2010 :{ 4 }: such would justify the action in compulsorily retiring the petitioner. The petitioner has filed replication to contest the legal as well as factual position. It is stated that average report cannot be taken as adverse. The petitioner has pointed out that the dates of claim of T.A., which was said to be reflecting on the integrity of the petitioner, was on account of clerical mistake. It was only because of this that penalty of stoppage of two increments was reduced to censure only. In the order passed by the Inspector General of Police on an appeal filed by the petitioner, it is recorded that entries and dates of claim of T.A. vary on account of clerical mistake and the plea of the petitioner has some merit. The punishment was stated to be on the higher side and was so reduced. I have heard the counsel for the parties. The petitioner urges that except for censure awarded to him and an average report containing adverse remarks for the period from 1.4.2007 to 31.3.2008, referred to above, there is no material available on record, for which the petitioner could be compulsorily retired. The petitioner, thus, pleads that the order of compulsory retirement due to minor punishment of censure is neither justified in law nor would it be reasonable, fair and just. The petitioner would also plead that the average report or the adverse remarks contained therein would loose its sting due to the promotion earned by him subsequent to the date of recording of such remarks. Plea also is that 70% of the reports of the last 10 years are good or above and hence, there is no justification for compulsorily retiring the petitioner. Counsel for the petitioner would say that there is no CIVIL WRIT PETITION NO.4680 OF 2010 :{ 5 }: justification in law or as per the instructions to compulsorily retire the petitioner on the material referred to and relied upon by the respondents. On the other hand, State counsel would submit that the allegation for which the petitioner was awarded punishment would reflect on the integrity of the petitioner and hence, he could be compulsorily retired in terms of the policy instructions annexed with the petition as Annexure P-1. In this regard, Mr. Nehra has referred to the part of instructions which provide that an official who has been awarded punishment on the basis of charges, which reflect on the integrity of employee, should not be permitted to serve beyond the age of 55 years. The counsel for the petitioner is justified in submitted that the allegations for which the petitioner was awarded punishment would not reflect on the integrity of the petitioner, especially so in view of the observations made by the Appellate Authority that the T.A. dates as claimed were on account of clerical error. No doubt, the order of compulsorily retirement is not a punishment but still it has to be passed on fair, just and reasonable grounds. It cannot be said with much conviction and justification that the punishment was awarded to the petitioner for something which would reflect on his integrity, especially in view of what has been recorded by the Appellate Authority while reducing the punishment imposed on him. In the instructions itself, it is otherwise provided that the minor punishments like warning/censure should be avoided and cases of charge sheet having been issued under Rule 7 of the Punishment and Appeal Rules, which are pending, reflecting on the integrity CIVIL WRIT PETITION NO.4680 OF 2010 :{ 6 }: should be referred to the office of Director General of Police. The plea that average report can be taken as an adverse is apparently against settled proposition of law. In any event for compulsorily retiring a person, 10 years reports are required to be considered in terms of instructions, Annexure P-1 and only those employees are to be allowed to continue, who have earned 70% or above good reports and whose integrity is not doubted. Concededly, the petitioner has to his credit 70% or above good reports with no remarks reflecting on his integrity being doubtful. The action of the respondents, therefore, cannot be held justified. The Hon’ble Supreme Court has laid down certain principles in Baikuntha Nath Das Vs. Chief District Medical Officer, Baripada , 1992(2) SCT 92 (SC), which would normally govern the order of compulsory retirement. One of the principles, as laid down by the Court, relates to the scope of interference by the High Court to examine the issue of compulsory retirement of an individual. As is held in this case , the Judicial scrutiny of an order of compulsory retirement is not excluded altogether. Though the Courts can not examine the matter as an appellate Court but can certainly interfere if they are satisfied that the order passed is malafide; that it is based on no evidence or 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 perverse order. The petitioner has not made any allegation of malafides in this case. However, it is urged that the order is based on no evidence or that the material which has formed basis of directing CIVIL WRIT PETITION NO.4680 OF 2010 :{ 7 }: compulsory retirement is not sufficient to justify the order as per the instructions or the law. In that sense, it is pleaded that the order is arbitrary as no reasonable person can form a requisite opinion on this given material. The main plea, thus, is that the order, as is made, is a perverse order and so, cannot be sustained. The material, which concededly has been considered by the respondents, cannot be said to be such, which would satisfy any reasonable person to form an opinion to compulsory retire the petitioner and so, the impugned orders can be termed as perverse. It is seen that the case of the petitioner has not received proper attention. It is not disputed that subsequent to the report and the punishment, the petitioner was considered and promoted to the rank of Sub Inspector. Because of this, the vigor or sting of the adverse entry would in a way stand wiped out. In this regard, reference can be made to Full Bench decision of this Court in Punjab State and others Vs. Kulwantbir Singh, 1993(2) SCT 567, where it is observed that adverse remarks prior to promotion to a higher post, particularly where it is based on merit and not seniority alone, would loose their significance and such promotion would take away the sting of the adverse remarks against the Government servant concerned. Even in Baikuntha Nath Das’s case (supra), the Hon’ble Supreme Court has so held that such adverse remarks would loose their sting if an employee is promoted on the basis of merit, selection and not seniority. This aspect apparently has escaped the notice of the respondents altogether. The impugned orders are not justified and, CIVIL WRIT PETITION NO.4680 OF 2010 :{ 8 }: therefore, can not be sustained and are set-aside. The writ petition is accordingly allowed. December 02,2010 (RANJIT SINGH ) khurmi JUDGE