Letters Patent Appeal No.677 of 2010 Against judgment and order dated 8.3.2010, passed by a learned single Judge of this Court in CWJC No. 2449 of 2010. P.K.SAHAY, S/o Satyadeo Sahay, R/o Shiv Niketan, D Block, Nala Road, PO & PS Kadamkuan, District – Patna ..........Writ petitioner -Appellant Versus 1. THE UNION OF INDIA through Secretary, MHA, Govt. of India, North Block, New Delhi 2. The Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 3. The Deputy Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 4. The Director General, CISF, CGO Complex, Lodhi Road, New Delhi 5. The Inspector General, CISF, Eastern Zone, New P P Colony, Patna -13 6. The Assistant Inspector General, East, Director General, CISF, MHA, Block no.13, Lodhi Road, New Delhi 7. The Deputy Inspector General, CISF, Eastern Zone, New P P Colony, Patna -13 8. The Senior Commandant, CISF UNIT KHSTPP, Kahalgaon, Bhagalpur......... Respondents- Respondents ****************** For the Appellant : Mr. Sanjay Kumar Giri Advocate For the Respondents : Mr. Umesh Narain Dubey Central Government Counsel P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S K KATRIAR, J. This appeal under clause 10 of the Letters Patent of the High Court of Judicature of Patna has been preferred by the petitioner of CWJC No. 2449 of 2010, and raises a grievance with respect to the order dated 8.3.2010, whereby the writ petition has been dismissed, and the impugned order dated 22.12.2009, for compulsory retirement of the writ petitioner, has been upheld. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. The appellant was appointed as a Constable on 24.12.80, in the Central Industrial Security Force (CISF, for short). He was promoted to the next higher post of 2 Assistant Sub-Inspector on 27.1.84, to the post of Sub-Inspector on 15.7.85, and finally as Inspector on 26.2.2000. He was visited with the order dt. 30.4.2009, of compulsory retirement in terms of rule 56(j) of the Fundamental Rules. The petitioner challenged the same by preferring the previous writ petition bearing CWJC no. 14004 of 2009, which was disposed of by a learned single Judge of this Court, whereby the competent authority was directed to consider the petitioner’s representation in accordance with law and observations made in the order. The appellant’s representation has since been considered by the competent authority leading to the impugned order dated 22.12.2009, whereby the representation has been rejected and the order for compulsory retirement has been passed with reasons recorded therein. The appellant challenged the same by preferring the present CWJC No.2449 of 2010, which has been dismissed by the learned single Judge. Hence this appeal. 3. While assailing the validity of the impugned order and that of the learned single Judge, learned counsel for the appellant submits that the impugned order of compulsory retirement is in violation of the spirit of rule 56(j) of the Fundamental Rules read with the Office Memorandum dated 5.1.1978, which has provided the guidelines to the authorities for exercise of the power under rule 56(j). He next submits that the authorities are entitled to consider the past records of five years immediately preceding the order of compulsory retirement. However, in his submission, the authorities in the present case have considered the entire record and have taken into account stale orders of punishment which were inflicted on the appellant from January 1986 to 1999, and the two advisory memos of 2002 and 2007. He next submits that rule 56(j) provides that notice for a minimum period of three months as per the aforesaid office memorandum has to be served 3 on the employee before the order of compulsory retirement will take effect, which has not been followed in the present case. He submits that the bright aspects of the appellant’s career have been completely overlooked by the authorities. He submits that orders of promotion wiped off the stigma of punishments inflicted on him. He lastly submits that the impugned order amounts to double jeopardy. Learned counsel has relied on the judgment of the Supreme Court in J D Shrivastava vs. State of Madhya Pradesh (AIR 1984 SC 630). 4. Learned counsel for the respondents has supported the impugned action. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. We reproduce hereinbelow rule 56(j) of the Fundamental Rules: “56(j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in the public interest to do so have the absolute right to retire any Government servant by giving him notice of not less than three months in writing of three months pay and allowances in lieu of such notice. (i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years. (ii) In any other case after he has attained the age of fifty-five years. Provided that nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before 23rd July 1966 and to a Government servant referred to in clause (f).” It is thus evident that an order of compulsory retirement can be passed against an employee if the competent authority is of the opinion that it is not in public interest to allow the employee to continue in service. This has been the subject matter of a large number of authoritative pronouncements of the Supreme Court that employer is the sole judge of the efficacy and continuance of the employee in government service in public interest. The courts 4 are consistently applying the yard-stick that the materials should be borne by the service records of the employee. Law is well settled that adequacy of materials cannot normally be examined by the courts in exercise of powers of judicial review. Law is equally well settled that the competent authority is entitled to examine the entire service records of an employee to pass an order for compulsory retirement. We reject the appellant’s contention that it has to be confined to only five years immediately preceding the order of compulsory retirement. 6. It appears to us from a perusal of the materials on record, and duly noticed by the learned single Judge, that one major penalty and six minor penalties have been inflicted on the appellant, as well as two advisory memos. A summary of the same is reproduced hereinbelow: Sl.No. Date Offence Punishment Awarded 1. 8.1.1986 Found copying from hand written notes during written examination of elementary Fire Fighting Paper. Withholding of increment for a period of three years with cumulative effect. 2. 29.4.1992 Misbehaved with Naik A K Chalak while he was posted at SAC Ahmedabad. Reduction of pay by one stage. 3. While functioning as Mess Secretary of Jawan Mess, he used LPG Cylinder for personal use. Reduction of pay by one stage. 4. 1.9.92 to 11.9.92 He obtained medical rest on false grounds. Pay fine not to exceed two days. 5. 1995 He used filthy language and abused the senior officers of the Unit. Withholding of next increment. 6. 1994 Absented from game and roll call without permission of competent authority while he was posted at SAC Ahmedabad. One day pay fine. 7. 21.6.1994 Made false GD entry regarding misbehaviour of Mr. Saurabh Yadav with L/Const. Balvinder Kaur. Three day pay fine. 8. 1993 Submitted false LTC claim. Increment for one year. 5 9. 24.4.2002 Made false complaint against subordinate. Advisory memo 10. 24.5.2006 Submitted false written complaint against supervisory officer as well as his colleagues. Advisory memo The learned single Judge has rightly observed that these orders of punishment attained finality. The aforementioned list of punishments presents the appellant in dim light, and we are clearly of the view that the competent authority has rightly taken the decision to discontinue him from service. 7. Learned counsel for the appellant has argued with considerable emphasis that notice for minimum period of three months has not been served on him. The contention is stated only to be rejected. Law is well settled that in all such cases where notice for the prescribed period has to be served, it is open to the employer to make payment of salary for the notice period which has indeed been done in the present case. In fact, rule 56(j) itself provides for alternatives to the employer. 8. Learned counsel for the appellant has also submitted that the bright aspect of the career of the appellant has not been taken into consideration. Furthermore, in his submission, the orders of promotion have wiped off the stigma of punishments inflicted upon him. We are of the view that it is basically and essentially an executive function whether or not, in view of the totality of the service record of the employee, his continuance in service is in public interest. In view of the over-whelming list of punishments inflicted on the appellant over a fairly long period, followed by two advisory memos of 2002 and 2006, are more than adequate grounds justifying his compulsory retirement. 9. In its judgment in J D Shrivastava vs State of MP (supra), the Supreme Court quoted with approval the 6 observations made by the Supreme Court in an earlier judgment in D Ramaswami vs. State of Tamil Nadu [1982 (3) SCR 75: AIR 1982 SC 793], and is reproduced hereinbelow:- “ In the case of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of inaptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a Government servant should be completely ignored, once he is promoted. Sometimes past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past.” It is thus evident that the Supreme Court observed that previous history of a Government servant may not be ignored once he is promoted. Sometimes past events may help to assess the present conduct. 10. Learned counsel for the appellant has also submitted that the impugned order of compulsory retirement amounts to double jeopardy. The contention is stated only to be rejected. Law is well settled that an order of compulsory retirement is not punitive in nature, pre-eminently for the reason that the employee is not deprived of the benefits of his past service. He is entitled to his full pensionary benefits. 11. In the result, we agree with the order of the learned single Judge. The impugned order of punishment compulsory retirement dt. 22.12.2009, is hereby upheld. This appeal is dismissed. In the facts and circumstances of the case, there will be no order as to costs. ( S K Katriar, J.) S P Singh, J. I agree. ( S P Singh, J.) Patna High Court, Patna The 8th of April 2011 AFR/ mrl 7