IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 1176 of 2011 (O&M) Date of Decision: August 11, 2011 State of Haryana and others …Appellants Versus Anand Kishore …Respondent CORAM: CORAM: CORAM: CORAM: HON'BLE M HON'BLE M HON'BLE M HON'BLE MR. JUSTICE M.M. . JUSTICE M.M. . JUSTICE M.M. . JUSTICE M.M. KUMAR KUMAR KUMAR KUMAR HON'BLE M HON'BLE M HON'BLE M HON'BLE MR. JUSTICE . JUSTICE . JUSTICE . JUSTICE GURD GURD GURD GURDEV SINGH EV SINGH EV SINGH EV SINGH Present: Mr. Aman Chaudhary, Addl. AG, Haryana, for the appellants. Mr. S.N. Yadav, Advocate, for the caveator-respondent. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR M.M. KUMAR M.M. KUMAR M.M. KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against the judgment dated 2.12.2010 rendered by the learned Single Judge quashing the order of compulsory retirement in respect of the writ petitioner- respondent from the post of Exemptee Sub-Inspector w.e.f. 31.3.2010. The learned Single Judge has found that the writ petitioner-respondent was promoted as an Exemptee Sub- Inspector on 13.1.2009 and having been promoted, the offensive element of the average report for the year 2007-2008 has been completely blunted. Referring to the average report for the period from 1.4.2007 to 31.3.2008 when he was working on a LPA No. 1176 of 2011 (O&M) 2 lower post of Assistant Sub-Inspector, it has been observed that it merely stated that the writ petitioner-respondent was a callous type of officer. The petitioner-respondent earned promotion as Exemptee Sub-Inspector on 13.1.2009. Apart from the aforesaid report there was nothing on the record to suggest that the writ petitioner-respondent could have been retired compulsorily or that it was in the larger public interest. The effort of the appellant State to paint him black before the learned Single Judge did not bear any fruit when their argument was rejected holding that the punishment of censure given on 31.1.2008 could not be relied upon to support the order of compulsory retirement. 2. It is appropriate to mention that the writ petitioner- respondent was appointed as a Constable on 29.10.1977 and was thereafter promoted as Head Constable on 11.11.1988. He earned further promotion as Assistant Sub-Inspector on 12.9.2003. He was promoted as an Exemptee Sub Inspector on 13.1.2009 and was sought to be retired compulsorily by issuing three months notice in December 2009. After consideration of his representation an order of compulsory retirement was passed on 8.3.2010 compulsorily retiring him w.e.f. 31.3.2010 (P-8). 3. We have heard learned Additional Advocate General, Haryana as well as learned counsel for the caveator-respondent and have also minutely perused the original confidential personal file of the writ petitioner-respondent. It is true that the writ petitioner-respondent has one report which was average for the year 2007-08. But the report for the year 2008-09 has been ‘Good’. Not only this, he was awarded with promotion as Sub- LPA No. 1176 of 2011 (O&M) 3 Inspector (Exemptee) w.e.f. 13.1.2009. The aforesaid promotion was ordered on the basis of Director General’s Standing Order No. 127/2008. According to the opening para of the Standing Order, the objective of the Standing Order was to remove the stagnation in promotion in various ranks as a welfare measure in respect of those officials who have served the department, inter alia, for 30 years and had ‘clean service record’. On the basis of clean service record, as the expression used in the Standing Order, the writ petitioner-respondent has been promoted as Sub- Inspector (Exemptee) on 13.1.2009 and on the other hand he was served with a three months notice after more than one year in December 2009 and he was eventually retired compulsorily w.e.f. 31.3.2010. 4. The principle laid down by Hon’ble the Supreme Court in the case of Baikuntha Nath Das Baikuntha Nath Das Baikuntha Nath Das Baikuntha Nath Das v. v. v. v. Chief District Medical Officer, Chief District Medical Officer, Chief District Medical Officer, Chief District Medical Officer, Baripada Baripada Baripada Baripada, (1992) 2 SCC 299 , (1992) 2 SCC 299 , (1992) 2 SCC 299 , (1992) 2 SCC 299, have been correctly applied by the learned Single Judge and it is rightly concluded that the order of compulsory retirement is perverse and arbitrary because no reasonable person would form an opinion on the basis of material available on the record that the writ petitioner-respondent had become dead-wood or it is in the larger public interest to get rid of him. One of the principles laid down in the case of Baikuntha Baikuntha Baikuntha Baikuntha Nath Das Nath Das Nath Das Nath Das (supra) (supra) (supra) (supra) is that if the promotion is based on merit and not seniority alone then the earlier remarks would completely lose their sting and would stand wiped out. In the present case, the promotion given to the writ petitioner-respondent is on the basis of ‘clean service record’ as per the term used in the LPA No. 1176 of 2011 (O&M) 4 Standing Order No. 127/2008. Therefore, there was no possibility of placing reliance on the average report pertaining to the year 2007-08. 5. In view of the above, we find no merit in the instant appeal. It does not warrant admission. Accordingly, the same is dismissed. (M.M. KUMAR) (M.M. KUMAR) (M.M. KUMAR) (M.M. KUMAR) JUDGE JUDGE JUDGE JUDGE (GURDEV SINGH GURDEV SINGH GURDEV SINGH GURDEV SINGH) August August August August 11, , , , 2011 2011 2011 2011 JUDGE JUDGE JUDGE JUDGE PKapoor