CIVIL WRIT PETITION NO.13917 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 28, 2011 Kulwant Singh .....Petitioner VERSUS State of Haryana and another ....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. Sourabh Goel, Advocate, for the petitioner. Ms. Shruti Jain, AAG, Haryana, for respondent No.1. Mr. Ajay Nara, Advocate, for respondent No.2. **** RANJIT SINGH, J. The petitioner has filed this petition to challenge the order through which he has been compulsorily retired on completion of 55 years of age. The petitioner initially was appointed as a Peon on adhoc basis on 26.12.1977. He was promoted as Clerk on 8.4.1993. In the promotion order, it was mentioned that the petitioner would have to CIVIL WRIT PETITION NO.13917 OF 2010 :{ 2 }: pass the type test in Hindi or English at the speed of 25-30 words per minute. Though the petitioner has rendered this long service but he could not pass the type test. On this ground, the petitioner was not allowed increments, which was as per the terms and conditions of his promotion order. Though the petitioner has completed the probation period, but still he failed to pass the typing test. As per the counsel, passing of typing test, as a condition stipulated in the promotion order, has been held to be redundant in a judgement passed by this court. It is stated that requirement of passing a typing test has been waived off in some of the Departments. Despite this, the petitioner was served a notice on 23.7.2010 that he would not be retained beyond 55 years of age in public interest and it has been decided to retire him as per the provisions contained in Rule 3.26(d) of Punjab Civil Service Rules. The petitioner accordingly has challenged this order through the present writ petition. While issuing notice of motion, this Court stayed the operation of the impugned order with a condition that the petitioner shall not be entitled to salary beyond the proposed date of retirement till final adjudication of the matter. Now reply has been filed. It is stated that the impugned order is neither punitive nor stigmatic. An employee can not claim extension in service beyond the age of 55 years as a matter of right. Reference is made to Rule 3.26(d) of the Punjab Civil Service Rules, Volume 1, Part 1, which gives a wide discretion to the appointing authority to retire any Class IV Government employee by giving him notice less then three months, if the authority is of the opinion that it CIVIL WRIT PETITION NO.13917 OF 2010 :{ 3 }: is in public interest to retire him. To justify the action of the respondents in declining to grant extension, respondent No.1 would point out that the petitioner was required to pass the departmental type test within one year but failed to do so. It is disclosed that respondent-HUDA has embarked upon an ambitious program of total computerization, which is complete in all Urban Estates. The Clerks working in HUDA, therefore, are required to have knowledge of typing, in addition to knowledge about the computer. Despite opportunities, the petitioner even could not pass the typing test. In this background, the case of the petitioner was considered for retention beyond 55 years of age and it was found that he is not fit to be retained as he is not even efficient enough to pass a type test. I have heard the counsel for the parties. As per counsel for the petitioner, the petitioner has an unblemished record of service and hence, action of respondent No.2 in declining extension of service is not fair and reasonable. On the other hand, counsel for the respondents would point out that the petitioner is not efficient and is almost a dead wood because he neither could efficiently learn and pass the typist test nor has any knowledge about the computer, which is now essential for an employee working in HUDA. The decision, thus, has been taken not to retain the petitioner beyond 55 years of age, which order is neither stigmatic nor punitive to call for any interference in exercise of writ jurisdiction. Once the petitioner has not been able to qualify a type test, a view is possible that he is not efficient enough for being CIVIL WRIT PETITION NO.13917 OF 2010 :{ 4 }: retained in service as he would hardly be able to contribute to the service. The view, thus, is possible that he has become a dead wood for further retention in service. Here the principles laid down in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 Supreme Court 1020, may be noticed and these are 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) malafide 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 CIVIL WRIT PETITION NO.13917 OF 2010 :{ 5 }: attaching more importance to record of and performance during the later years. The record to be 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 adverse remarks, such remarks lose their sting, moreso, 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 un-communicated adverse remarks were also taken into consideration. That circumstances by itself cannot be a basis for interference.” Hon'ble Supreme Court has also observed that interference is permissible only on the grounds mentioned in (iii) above. Thus, order can be interfered when it is passed with malafide or it is based on no evidence or it is found to be perverse in the sense that no reasonable person would form the requisite opinion on given material. Nature of function while passing this order was held not to be quasi-judicial because the action has to be taken on subjective satisfaction of the Government. It is, thus, held that there is no room for entertaining the facet of audi alteram partem of principles of natural justice in such a case. There is no indication to show that this order is malafide or is passed without material or is such, which no reasonable person can or could have passed. Accordingly, no case for interference in CIVIL WRIT PETITION NO.13917 OF 2010 :{ 6 }: exercise of writ jurisdiction is made out. The writ petition is accordingly dismissed. April 28, 2011 ( RANJIT SINGH ) khurmi JUDGE