CIVIL WRIT PETITION NO.6376 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 01, 2010 Mohamid Hanief Khan .....Petitioner VERSUS The State of Haryana and others ....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. P. L. Verma, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. ASI Mohamid Hanief Khan has approached this Court for quashing the notice issued to him for his compulsory retirement by pleading that in his entire service career he has earned good and above reports and had performed well but still he is being compulsorily retired, which is illegal and arbitrary. The petitioner was initially recruited as Constable on CIVIL WRIT PETITION NO.6376 OF 2010 :{ 2 }: 20.3.1979 and was promoted to the rank of ASI. On 10.7.2009, the petitioner was performing traffic duty at Toll Plaza, Kherki Daula. He had performed such duties nearly for a year and his day to day conduct and performance was regularly sent to S.P., Traffic, Headquarters Karnal. As per the petitioner, he had performed well, but still some remarks were conveyed to him in his annual confidential report for the period from 20.10.2008 to 31.3.2009, where he was assessed as `average'. In this background, the petitioner was served a notice for compulsory retirement under Rule 3.26 of Civil Service Rules read with Rule 9.19 of Punjab Police Rules on 8.1.2010 that his services were not required beyond 55 years of age in public interest. The petitioner claims to have earned good or above reports and has 23 certificates of best performance. As per the petitioner, except for this ACR, which is average, there is no infirmity in the service record of the petitioner. The petitioner accordingly term this action of the respondents to be arbitrary and discriminatory. While issuing notice of motion, the Court directed that the petitioner shall not be retired pursuant to the impugned notice but he was not to be paid any salary till the matter was considered by the Court. The respondents have filed reply and would justify the notice issued to the petitioner on the ground that he has been awarded various punishments, which are listed as under:- “I. Awarded 15 days punishment of drill while under going refresher course, he found absence from Prade on CIVIL WRIT PETITION NO.6376 OF 2010 :{ 3 }: 27.1.1984. II. Awarded a punishment of stoppage of three annual increments with permanent effect for leaving the arms unsafe while posted in PP Gadpuri vide OB No.304-05 dated 16.11.1987. III.Awarded a punishment of stoppage of one future increment with permanent effect for preparing concocted complaint against S.I. Amrit Lal, Drill Instruction at Police Training School Madhuban while he was deputed in Lower School Course Training vide order dated 31.7.1994. On having been accepted his appeal against these orders, his punishment were reduced to the punishment of censure vide DIG/Gurgaon Range, Gurgaon vide order dated 4356/A-2 dated 2.5.1996. IV.Awarded a punishment of censure for not reporting at his place of posting in time vide OB No.689/98. V.Awarded a punishment of stoppage of one future increment with Temporary effect for not taking legal action regarding an accident which took place between a dumper and a qualis, vide order No.270-74 dated 7.4.2006. VI.Awarded punishment of stoppage of two future increments with temporary effect vide order dated 8.3.2008 for nakabandi was not being conducted effectively while posted in P.S.City Gurgaon 26.2.2008.” CIVIL WRIT PETITION NO.6376 OF 2010 :{ 4 }: Reference is also made to the adverse annual confidential report for the period from 20.10.2008 to 31.3.2009 and it is stated that after examining his record carefully and finding it to be unsatisfactory, the impugned notice has been issued to him. It is also pointed out that the petitioner has not made any allegation of malafide or arbitrariness and it is claimed that the respondents have absolute right and authority to retire a person compulsorily, keeping in view the service record and on the basis of subjective satisfaction of the competent authority. As per the respondents, compulsory retirement is not a punishment and it neither implies any stigma nor suggests misbehaviour. The order of compulsory retirement has to be passed by the Government on forming an opinion that it is in the public interest to retire a Government servant compulsorily. No doubt, the order is passed on the subjective satisfaction of the Government and the Courts have limited role or jurisdiction to interfere in such matters. The reasons for which the Court can interfere are well listed in the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 S.C. 1020. The court has laid down the following five principles in this regard:- “(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior. (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 CIVIL WRIT PETITION NO.6376 OF 2010 :{ 5 }: 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 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 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 uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis of interference." CIVIL WRIT PETITION NO.6376 OF 2010 :{ 6 }: Thus, the Court can interfere if it is satisfied that the order passed is malafide or it is based on no evidence or that it is arbitrary in the sense that no reasonable person would form the requisite opinion on given material i.e. the order is perverse. The petitioner apparently would contend that the order passed is based on no material and accordingly is perverse. The respondents have relied upon some of the punishments, which were awarded to the petitioner and one report, which is stated to be an average in nature. Can this material be said to be valid material for passing the order of compulsory retirement of the petitioner, thus would be question? To an extent, the parameters on the basis of which a police official can compulsorily be retired is regulated by the instructions issued by Director General of Police in the form of letter No.638-88/E(III)-II dated 14.3.2006. These instructions are meant to be strictly followed. As per these instructions, a Government employee is to be allowed to continue in service beyond the age of 55 years, if he has earned 70% or above good reports and whose integrity is not doubted during the last 10 years. Those cases where service record is fit to be retained but his integrity is of doubtful nature, then the case of such employee is required to be decided by head of the department. So far as punishments are concerned, the nature of charge is to be seen and if this reflects on the integrity of the employee, then he may not be permitted to serve beyond 55 years of age. As per these instructions, minor punishments like CIVIL WRIT PETITION NO.6376 OF 2010 :{ 7 }: warning/censure should be avoided and those cases where charge sheet is issued under Rule 7 and where court case is pending, where the charges are of the nature of aspersion on integrity, then those are to be referred to the office of Director General. These being the parameters, it may be now seen whether the petitioner could be issued this show cause notice for compulsory retirement. Concededly, the petitioner has more than 70% as good reports and has only one report where he has been assessed as `average'. There is no remark about his integrity being doubtful. The petitioner, thus, fulfills the criteria on the basis of the report and can not validly be compulsorily retired even in terms of the instructions issued by the respondents on the basis of his confidential reports. The punishments awarded to the petitioner varies from 15 days drill to stoppage of increment with permanent or temporary effect or censure etc. These punishments concededly are minor punishments except one punishment. One punishment for stoppage of increment was for leaving the arms unsafe in the year 1987. Then there is another punishment of stoppage of one future increment for preparing a complaint, which was in the year 1994, which was later on reduced to censure. None of punishments, thus, would reflect on the integrity of the petitioner. The petitioner may have committed some minor misconducts during the course of his long service career, for which he was punished invariably with minor punishments. The order of compulsory retirement is not to be passed as a punishment and so taking these punishments to be the reasons for compulsorily retiring the petitioner may make the order look stigmatic. Concededly, CIVIL WRIT PETITION NO.6376 OF 2010 :{ 8 }: such order is not to be passed as punishment and it implies no stigma nor any suggestion of misbehaviour. Another important aspect to be considered is that the petitioner had been promoted to a higher post notwithstanding some of punishments imposed on him. The view, thus, is possible that the material, which has been taken into consideration, is not a valid or legally permissible material which can be considered to form an opinion that the petitioner is required to be compulsorily retired. Since the view is formed on the basis of material which is not valid, it can be said that the order appears to be perverse in that sense. The show cause notice on the basis of which the petitioner was directed to compulsorily retired, can not be sustained and the same is accordingly set-aside. The writ petition is allowed in the above terms. There shall be no order as to costs. November 01, 2010 ( RANJIT SINGH ) khurmi JUDGE