CIVIL WRIT PETITION NO. 20321 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO. 20321 of 2010 DATE OF DECISION: DECEMBER 16, 2010 ASI, Bir Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH PRESENT: Mr. R.K. Malik, Sr. Advocate, with Mr. Kohal Sharma, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Being born on 5.10.1955, the petitioner, who is serving as ASI, is due to superannuate on 30.10.2013. The petitioner was enrolled as a Constable on 22.1.1974. He was promoted as Exempted Head Constable on 3.8.2003 and is presently serving as Exempted ASI since September, 2005. The petitioner has now been served with an order conveying that he would stand retired compulsorily w.e.f. 19.12.2010. The petitioner has, accordingly, filed this writ petition to impugn the said order by pleading that there is no material on the basis of which the petitioner can be so compulsorily retired in terms of instructions issued by the CIVIL WRIT PETITION NO. 20321 of 2010 -2- Government regulating the compulsorily retirement of employees. The respondents, however, would dispute the prayer made in the writ petition and would urge that even the writ petition is not maintainable. Reference is made to the promotion, which the petitioner had earned as has been referred to in the petition. It is conceded that the petitioner has earned 33 good entries and 1 bad entry with punishment of censure on 16.7.2007. It is also conceded in the reply that in none of the reports in his entire service record, integrity of the petitioner has ever been doubted. The case of the petitioner was statedly considered for retiring beyond the age of 55 years by the competent authority and decision was taken not to permit him to serve beyond 55 years in view of his chequered record and a departmental inquiry and criminal case that was pending against him. Copy of memo for which the departmental inquiry is pending against him, is annexed as Annexure P-5. It is also stated that regular departmental inquiry is pending against the petitioner. The main allegation against the petitioner is that he misbehaved with Savita and Brijesh, which amounted to dereliction of duty. The issue whether the police personnel can be compulsorily retired on account of pendency of departmental inquiry or due to pendency of a criminal case, thus, would arise in this cases. Mr. Malik in this regard has made reference to the decision in the case of ESI Rajbir Singh Versuse State of Haryana & others, (C.W.P. No.15848 of 2010), where this identical issue was considered and decided by this Court recently on 9.11.2010. It is not CIVIL WRIT PETITION NO. 20321 of 2010 -3- in serious dispute that the incident and factum of registration of criminal case has been taken into consideration while deciding not to retain the petitioner in service beyond 55 years of age as was the case of ESI Rajbir Singh(supra). In the present case, reference is made to chequered record and criminal case pending against the petitioner. There is no record of 'entry doubtful', which is standing against the petitioner. The petitioner has 33 entries of good record and thus, it cannot be said that he does not satisfy the requirement of good record . The petitioner has 70% good reports in the last 10 years as is the requirement under the instructions issued by the Government. Mr. Malik has placed reliance on the case of State of Gujarat and another Versus Surya Kant Chunilal Shah, JT 1998(8) SC 326 and Baikuntha Nath Dass & another Versus Chief District Medical Officer, Baripada & another, JT 1992(2) SC 1, which were referred to and relied upon the case of ESI Rajbir Singh (supra) also. On the basis of these judgments, the principle that could be taken into consideration was to see if the Government servant has outlived his utility and thus, is to be compulsorily retired in public interest for maintaining an efficient administration. It is observed as under in ESI Rajbir Singh's case (supra):- “It is noticed that an objective view of over all performance of the Government servant has to be taken before deciding either to retain him further in service or to dispense with his services in public interest by giving him three months notice or pay in lieu thereof, after he has attained the age of 50 years. As is well understood that the performance of the Government servant is reflected in the ACR CIVIL WRIT PETITION NO. 20321 of 2010 -4- entries and one method of discerning the honesty or integrity of the petitioner, is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsorily retirement is taken. As is noticed, purpose of adverse entry is primarily to reflect the performance of the Government servant and this is a reason why such entries are required to be communicated to the Government servant concerned. It can be noticed that virtually there is no adverse entry in the character roll of the petitioner, which could have prompted the Government to take a decision in regard to his performance and to see if he was fit to be retained further in service or his service was to be dispensed with.” As held in this case, the pendency of disciplinary proceedings could not be validly taken into consideration for compulsorily retiring the petitioner. Reference can also be made to the case of R.K. Panjeta Versus Haryana Vidyut Prasaran Nigam Ltd. & another , Civil Appeal No.3048 of 2000 , decided on 25.4.2000, where the Hon'ble Supreme Court has observed that where the allegations pertained to issuance of a charge-sheet or the involvement of the person in criminal case, the order of compulsorily retirement would be rendered stigmatic in character. The issue emerging in this case apparently was considered by this Court in the case of ESI Rajbir Singh (supra). This fact is not in much serious dispute. Accordingly, the writ petition is allowed. The impugned show cause notice and the resultant compulsorily retirement, which is to take effect w.e.f. 19.12.2010, cannot be sustained and the same is set aside. It is further CIVIL WRIT PETITION NO. 20321 of 2010 -5- mentioned that outcome of the criminal case, which is pending, and the inquiry i.e. pending against the petitioner, would be allowed to continue and would be brought to finality and the action thereon would be considered independently of instant order, which is being passed in the present petition. December 16, 2010 ( RANJIT SINGH ) monika JUDGE