IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 2008 of 2011(O&M) Date of Decision: 3.11.2011. State of Haryana & others --Appellants Versus Mohinder Singh --Respondent CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present:- Mr. R.K.S. Brar, Addl. A.G., Haryana. Mr. R.K. Malik, Sr. Advocate with Mr. Vishal Malik, Advocate for the respondent. *** PERMOD KOHLI.J (ORAL) C.M. No. 5370 of 2011 Application is allowed. Delay of 191 days in filing the appeal is condoned. LPA No. 2008 of 2011 Notice of motion. Mr. Vishal Malik, Advocate accepts notice on behalf of respondent. Judgement dated 23.2.2011 passed by learned Single Judge in CWP No. 15594 of 2009 filed by the respondent herein and allowed by the learned Single Judge against the order of compulsory retirement has been subjected to challenge in the present appeal. Facts relevant for the purposes of the present appeal are being noticed hereinafter:- LPA No. 2008 of 2011(O&M) -2- Respondent no.1 was recruited as a constable in the Haryana Police in the year 1976. He earned promotions up to the rank of A.S.I, last promotion being on 4.4.2003. Under the Govt. Instructions respondent was required to be considered for retention in service beyond the age of 55 years. Respondent attained the age of 55 years as on 23.8.2009. Superintendent of Police, Panipat served a notice of three months bearing No.37205 dated 21.5.2009 upon the respondent for his premature retirement by declining retention in service beyond 55 years in terms of Rule 9.18 (2) of the Punjab Police Rules and Rule 3.26 (d) of the Punjab Civil Service Rules Vol. I Part I as applicable to the State of Haryana. Respondent no.1 responded to the aforesaid notice, however, the competent authority i.e the Inspector General of Police, Rohtak Range, Rohtak vide communication dated 25.2.2009 passed the order of premature retirement of the respondent by refusing to retain him in service beyond the age of 55 years. Relevant extract of the order is reproduced hereunder:- “ No.3956/A-1 dated 25.2.2009 Subject:- Retention in service beyond the age of 55 years case of ASI Mohinder Singh No.91/PPT. Memo. Please refer to your office memo No.2162/SPL dated 21.1.09 and 4158/SPL dated 13.2.09, on the subject noted above. The case of ASI Mahender Singh No.91/PPT for retention in service beyond the age of 55 years has been examined on the basis of his service record as well as Govt. instructions. He is not allowed to serve beyond the age of 55 years as is evident during the last 10 years his record for the year 1999, 2006, 2007 and 2008 is not good.” LPA No. 2008 of 2011(O&M) -3- Aggrieved of the aforesaid order, respondent filed the writ petition, referred to herein above, which has been decided by the impugned judgement. Learned Single Judge allowed the writ petition and set aside the order of premature retirement. It has been observed by the learned Single Judge that on examination of the entire service record of the respondent no.1, no adverse entry or report reflecting on the integrity is found, though, he has been awarded minor punishments. It has also been held that the retirement of the respondent no.1 is not in public interest and is outcome of arbitrary exercise of power which has the effect of depriving an employee for the remaining tenure of service without any proper application of mind. We have heard Mr. R.K.S. Brar, learned Addl. A.G., Haryana and Mr. R.K. Malik, learned Senior Advocate appearing for the caveator- respondent at length. It may be useful to refer to some of the important and relevant factors to examine the validity of the judgement under appeal. It is admitted case of the parties that respondent suffered minor punishments of censure and two minor punishments of stoppage of increments without permanent effect. Apart from two reports which can be said to be adverse in the year 1985 with the following remarks:- (1) Carelessness while on duty. (2) For consuming liquor on patrolling duty. Respondent was promoted as A.S.I on 4.4.2003. This promotion was by selection and not a routine promotion. The impugned order of compulsory retirement has been passed in the year 2009. LPA No. 2008 of 2011(O&M) -4- Govt. has issued instructions from time to time to deal with the case of premature retirement. First instruction No. C.S.H. No.5663-4GSI- 73/26498 was issued on 24.10.1973. These instruction provide for consideration of entire service record of the employee and in particular for the last 10 years for his retention beyond the age of 55 years. It is further stipulated that a Govt. employee whose integrity is suspected at any stage of his career should not be retained in service beyond 55 years of age. These instructions were further modified vide instructions dated 30.6.1975 and 9.8.1975 which inter alia require 50% A.C.Rs of the official to be “Good” for retention in service beyond the age of 50/55 years. These instructions were further modified vide instructions dated 16.8.1983 making 70% of the A.C.Rs “Good” or above essential during the last 10 years of service for retention of a Govt. official beyond 55 years of age. The relevant extract of these instructions reads as under:- “2. Now after reconsidering matter the Govt. has decided that services of officials/officers be extended beyond 55 years if they have passed 70% or above good or very good reports during the last 10 years of service. Accordingly the amended performa is attached.” Apart from the above Govt. Instructions the statutory Rule 13.8 of the Punjab Police Rules deals with the disqualification for admission to or retention in lists A, B or C. This rule is reproduced hereunder:- “ 13.8 (A) Disqualification for admission to or retention in Lists A, B or C-(1). The infliction of any major punishment shall be a bar to admission to or retention in lists A, B or C, provided that (a) for special reasons to be recorded by the Superintendent in each case, and subject to confirmation by the Deputy Inspector General, this disqualification may be waived and (b) after six months continuous good conduct in the case of censure or confinement to quarters or on expiry of the period of reduction for a specified period, a constable may be re-admitted at the discretion of LPA No. 2008 of 2011(O&M) -5- the Superintendent.” A conjoint reading of the Govt. Instructions in vogue at the time of passing of the order of premature retirement and Rule 13.8, it is evident that for retention of a police official (1) he should earn at least 70% of the “Good” and above A.C.Rs in last ten years. (2) The entire service record is to be taken into consideration. (3) Even a single doubtful integrity entry is sufficient to deny retention in service. (4) A major punishment awarded to an employee can be a bar for retention in lists A, B or C. Its natural corollary is that minor punishment is not a bar for retention in lists A, B or C. It has further been noticed that even in case of major penalty which is a disqualification for retention can be waived off by the Superintendent of Police by recording special reasons and subject to confirmation by the Deputy Inspector General of Police. Indisputedly, respondent suffered only minor punishment of censure and stoppage of one increment without cumulative effect on two occasions. Respondent has reproduced his A.C.Rs for the period of 10 years preceding the passing of order of premature retirement. He has earned Good remarks for all the 10 years and there is no adverse reflection on his integrity in the entire service record. While passing the impugned order of premature retirement the competent authority has referred to A.C.Rs of four years i.e. 1999, 2006, 2007 and 2008, which are said to be not good. Documents produced by the respondent before the Writ Court relating to his A.C.Rs preceding 10 years have not been disputed by the State-appellant either before the Writ Court or before us. Mr. Brar has not been able to show that the respondent had less than good entries in his A.C.Rs preceding the 10 years of the passing of the impugned order. Thus, very basis for LPA No. 2008 of 2011(O&M) -6- passing the impugned order does not exist. It is also admitted position on record that the respondent earned promotion on 4.4.2003 by selection. Hon'ble Supreme Court in case of Baikuntha Nath Das v. Chief District Medical Officer reported as 1992 (2) SCC 299 laid down various principles governing the question of premature retirement and held 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 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 seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it LPA No. 2008 of 2011(O&M) -7- uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.” Dictum of the above judgement has been reiterated in case of Posts and Telegraphs Board v. C.S.N. Murthy reported as 1992 (2) SCC 317 and is being consistently followed thereafter. Mr. Brar has heavily relied upon a Division Bench judgement of this Court dated 7.9.2011 passed in L.P.A. No. 1124 of 2011. In this case the allegations against the police official were retaining a case file being investigated by him even after his transfer for which he was awarded a censure. He was also accused of not tracing 15 criminal cases while posted at Rohtak and awarded punishment of stoppage of two annual increments with permanent effect (major penalty). He was also placed under suspension and awarded punishment of stoppage of two annual increments with temporary effect and again awarded censure for negligence in conducting investigation in other criminal cases and a departmental inquiry for conducting improper investigation in another F.I.R was pending against him. Hon'ble Division Bench considering these factors upheld the order of compulsory retirement. The facts of the present case are totally distinct. Firstly the employee had suffered major penalty and secondly without saying anything about the integrity the conduct of the employee in the case before the Hon'ble Division Bench did carry a reflection on his integrity. It has not been revealed from the judgement whether the employee had all the good reports preceding 10 years of service. In the case before us no major penalty has been awarded to the respondent and all the minor penalties are over. He was promoted by selection in the year 2003. Govt. Instruction, referred to above regulating the premature retirement clearly support the LPA No. 2008 of 2011(O&M) -8- case of the respondent and his retirement cannot be said to be in public interest as the same is in violation of the Govt. Instructions and even the statutory Rule 13.8. The Hon'ble Supreme Court in case of State of U.P. And another v. Lalsa Ram reported as 2001 (3) SCC 389 considered the question whether grant of promotion amounts to loosing the sting of the adverse confidential reports prior to the promotion. It has been observed that where the promotion is by seniority simpliciter it does not loose the sting of the adverse entries. Relevant observations are as under:- “ Admittedly, the law being well settled on this score that in the event of there being a promotion by the Departmental Promotion Committee upon assessment of the service career and annual confidential reports the adverse entries lose their sting-in the event, however, the promotion is offered only on the ground of seniority without any assessment of the entire career situation, question of adverse entries losing their sting does not and can arise.” In the present scenario there are two important factors (i) There is absolutely no adverse entry regarding the integrity of the respondent in his entire service record. (ii) Respondent has all good entries in preceding ten years from the passing of the impugned order of retirement. It is relevant to notice that while passing the impugned order of compulsory retirement, reference is made to alleged adverse entries for the years 1999, 2006, 2007 and 2008, which is contrary to the admitted record. This depicts total non-application of mind on the part of the competent authority. We are of the considered view that the order of learned Single Judge does not suffer from any factual or legal infirmity warranting interference. This appeal is without any merit and is dismissed. (PERMOD KOHLI) JUDGE (TEJINDER SINGH DHINDSA) JUDGE 3.11.2011. lucky Whether to be reported? Yes.