R.S.A. No.2458 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2458 of 1987 Date of Decision:30.7.2010 The Haryana State through Secretary and another .....Appellants Vs. Bansi Lal .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. K.C. Bhatia, Additional Advocate General, Haryana for the appellants. Mr. Nilesh Bhardwaj, Advocate for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 4.4.1987 passed by the Court of learned Additional District Judge (I), Gurgaon whereby he accepted the appeal preferred against the judgment/ decree dated 21.2.1985 rendered by the Court of learned Sub Judge Ist Class, Gurgaon and decreed the suit of the plaintiff directing the defendants to treat the plaintiff Bansi Lal to be in service, till he attained the age of 58 years and to pay him the entire arrears of salary etc. and to refix his pension etc. treating him to have retired with effect from 15.9.1985 i.e., on attaining the age of 58 years. On 7.10.1949, the plaintiff was initially appointed as a Clerk R.S.A. No.2458 of 1987 -2- and posted in Tehsil Palwal and confirmed on 1.3.1961 on the same post. His confirmation was approved by the Deputy Commissioner, Gurgaon vide order dated 27.1.1981. He was transferred to Gurgaon and continued to be posted in various branches in the office of Deputy Commissioner, Gurgaon under the control of the latter, who served a notice dated 4.6.1982 on the plaintiff intimating him, his opinion to retire him from the post of Clerk on attaining the age of 55 years as per Rule 5.32(c) of Punjab Civil Services Rules, Volume II and Rule 3.26(d) of Punjab Civil Services Rules, Volume I, Part I, in the public interest and he shall stand retired from the service with effect from 15.9.1982 or the expiry of the period of three months from the date of receipt of the said notice by the plaintiff, whichever occurs later. The plaintiff received the said notice on 4.6.1982 and as such, his retirement would take effect from 15.9.1982. He made a representation dated 12.7.1982 against the said notice/ order dated 4.6.1982 praying that the impugned order be reviewed and withdrawn and he be allowed to continue in service upto the age of 58 years but it went unresponded. The order impugned is illegal, void, ultravires etc. On these allegations, the suit has been filed for declaration to the effect that the order dated 4.6.1982 being illegal, void etc. is not binding upon the rights of the plaintiff and he is entitled to continue to serve as a Clerk upto the age of 58 years as prescribed in Rule 3.26 of Punjab Civil Services Rules, Volume I, Part I and in case, the defendants do not permit him to serve, he is entitled to full arrears of salary, which he would have earned upto the age of 58 years with consequential relief of permanent injunction restraining the defendants from retiring him prior to the completion of 58 years of age. The defendants in R.S.A. No.2458 of 1987 -3- their joint written statement, controverting the allegations embodied in the plaint, have inter-alia pleaded that the impugned order dated 4.6.1982 was passed by the Deputy Commissioner (defendant No.2) in the public interest in accordance with the provisions of Rule 3.26(d) of Punjab Civil Services Rules, Volume I Part I and Rule 5.32(c) of Punjab Civil Services Rules, Volume II as applicable to the State of Haryana and accordingly, the plaintiff shall stand retired from service with effect from 15.9.1982 on attaining the age of 55 years. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the orders passed by defendant No.2 on 4.6.82 are illegal, void, ultravires and contrary to rules and regulations, as alleged in para No.4 of the plaint? OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiff has no cause of action to file the suit?OPD 4. Whether the civil court has no jurisdiction to try the suit?OPD 5. Relief. After examining and hearing the learned counsel for the parties, the learned trial Court decided Issue No.1 against the plaintiff holding that the impugned order was perfectly legal and in accordance with law. Issue No.2 was decided in favour of the defendants, holding that the suit was not maintainable in the present form. Issue No.3 was also decided against the R.S.A. No.2458 of 1987 -4- plaintiff, holding that the plaintiff had no locus standi to file the present suit. Issue No.4 was decided against the defendants, being not pressed. In the result, the learned trial court, vide judgment and decree dated 21.2.1985, dismissed the suit of the plaintiff. Feeling aggrieved therewith, the plaintiff went up in appeal, which was allowed in the terms as noticed at the outset. The defendants being dissatisfied therewith, have filed this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. K.C. Bhatia, learned Additional Advocate General, Haryana has strenuously urged that the appellate court below has gravely erred in holding that the order dated 4.6.1982 is illegal, void and ultravires ignoring the fact that tenure of the government servant after attaining the age of 55 years is subject to the pleasure of the appointing authority and further, it has not been taken into consideration, that the order of the compulsory retirement containing no stigma cannot be considered as punishment. Besides this, the government has absolute right to retire the government employee. The learned First Appellate Court has also not considered the settled law that the crossing of efficiency bar does not constitute the total criteria for compulsory retirement for which reasons may not be recorded, as it is the subjective satisfaction of the appointing authority whether or not to retain a government employee in service beyond the age of 55 years. It is further pressed into service that the learned appellate court below went awry in relying upon the instructions dated 30.6.1975 and 9.8.1975. In response, Mr. Nitesh Bhardwaj, Advocate on behalf of the R.S.A. No.2458 of 1987 -5- plaintiff- respondent maintained that during the last ten years of service rendered by the plaintiff prior to the passing of the impugned order, he had secured 80% good/ better remarks in his Annual Confidential Reports. It is not the case of the defendants that any inquiry has been held against him and he has been found guilty and thus, in view of the instructions relied upon by the learned lower appellate Court, no case was made out for compulsory retirement of the plaintiff. I have given a deep and thoughtful consideration to the rival contentions. The substantial question of law which arises for determination is as to whether the defendants- appellants have adduced any evidence on the record leading to the conclusion that the retention of the plaintiff- respondent in the government service was not in the public interest. Vide Ex.PW1/1, the copy of the order dated 6.9.1979, the plaintiff was promoted as Assistant though on temporary basis, but on the ground that his record was good. As would be apparent on the face of Ex.PW1/6, the copy of the order dated 12.8.1981, he was allowed selection grade as Clerk with effect from 1.4.1979. Further as revealed by Ex.PW1/5, the copy of the office noting, he was allowed to cross the efficiency bar as Clerk with effect from 12.10.1967. In this regard, Ex.PW1/4, the order dated 3.10.1967 was passed by the Deputy Commissioner, Gurgaon. As is being evidenced by Ex.P27, the copy of the order dated 2.3.1982, his salary was fixed as Assistant with effect from 10.9.1979. Ex.P.30 is the copy of the instructions dated 16.8.1983, with regards to the manner in which a government employee could be retired at the age of 50/55 years. In this document, a reference has also been made to the previous instructions dated 30.6.1975 R.S.A. No.2458 of 1987 -6- and 9.8.1975. In Ex.P.30, it has been mentioned that as per the instructions dated 30.6.1975, it was to be considered whether Annual Confidential Reports of an employee were good to the extent of 50% and that now the matter has been reconsidered by the government and it has been decided that the government employee could be retired at the age of 55 years only if at least 70% of the Annual Confidential Reports for the last ten years were not good or better. It is apt to be borne in mind that the impugned order having been passed well before 16.8.1983, the instructions issued prior thereto, i.e., 30.6.1975, would be applicable to the case of the plaintiff. These instructions being not inconsistent or contrary to a statute or statutory rules framed, if any, by the State Government would carry the flavour of law. Thus to say the least of it, the plaintiff being government by these instructions, his matter has to be viewed in their light. To be determined herein, is as to whether the plaintiff Bansi Lal had secured good or better in at least 50% of the Annual Confidential Reports during the period of ten years preceding 4.6.1982 on which the order impugned was issued. Ex.P.15 to Ex.P.25 are his Annual Confidential Reports for the period from 1971-72 to 1980-81. The perusal whereof would reveal that for the years 1972-73, 1974-75 and 1976-77, his performance was rated as `Very Good' though the same for the years 1971-72, 1973-74, 1975-76, 1978-79 and 1979-80 was graded as `Good'. It was only for the years 1977-78 and 1980-81 that he was given the remarks as `Average'. It is thus deducible that he had secured three `Very Good' , five `Good' and only two `Average' remarks during the last ten years prior to the passing of impugned order. On calculating, the percentage of his afore-mentioned reports on the dint of the relevant R.S.A. No.2458 of 1987 -7- instructions, his performance works out to 80% `Good' or `Better'. Thus, by no process of reasoning, the case for his compulsory retirement at the age of 55 years was made out. The impugned order is absolutely silent about any other reason for holding that the retention of the plaintiff- respondent beyond the age of 55 years would not be in the public interest. Under the stress of re-examination, PW1 V.P. Kapoor, Establishment Assistant Clerk, Office of Deputy Commissioner, Gurgaon has admitted that there was no adverse entry in the Annual Confidential Reports of the plaintiff from 1964- 65 upto date. However, in his cross-examination, he has testified that “It is correct that in the ACR for the period 1963-64, the integrity of the plaintiff was found as `Doubtful' on account of complaints against his integrity.” But in his re-examination, he has deposed that “the file does not contain any letter which may show that the entries of ACR of 1963-64 were communicated to the plaintiff or not, however, there is a writing in blue pencil on ACR “Communicated vide No.5541/EB dated 1/8”. There is no initial on this writing.” If this adverse entry had been conveyed to the plaintiff positively, the letter vide which it was communicated to the plaintiff would have been available in the record. Thus, under the circumstances, an adverse inference has to be drawn to the effect that there was no such adverse entry against him and if the same was there for its having not been conveyed to the plaintiff- respondent, it cannot be taken into consideration. To crown it all, in view of the State Government Instructions enshrined in Ex.P30, the case of the plaintiff does not fall within the category of compulsory retirement in public interest. As ruled in Baikuntha Nath Das and another v. Chief District Medical Officer, R.S.A. No.2458 of 1987 -8- Baripada and another, (1992) 2 Supreme Court Cases 299, “Opinion of the authority regarding compulsory retirement is his subjective satisfaction which has to be formed on the basis of entire record of service.” In the instant one, there is nothing on the record as would justify the compulsory retirement of the plaintiff- respondent in public interest. In Madhya Pradesh State Cooperative Dairy Federation Limited and another v. Rajnesh Kumar Jamindar and others, (2009) 15 Supreme Court Cases 221, it has been held as under:- “In this case, neither the Scrutiny Committee, nor the Review Committee took into consideration the relevant factors germane for the purpose of passing such an order and in fact had taken into consideration irrelevant factors which were not germane therefor. An authority discharging a public function must act fairly. It, for the aforementioned purpose, cannot take into consideration an irrelevant or extraneous matter which is not germane for the purpose for which the power is sought to be exercised. The Scrutiny Committee as also the Review Committee was required to pose unto themselves a correct question of law so as to enable them to find out a correct answer. It was, therefore, imperative that the criteria laid down in the circulars issued by the State of Madhya Pradesh should have been scrupulously followed. The submission that the High Court should not have interfered with the order of compulsory retirement keeping in view the fact that no mala fides has been alleged in the Scrutiny R.S.A. No.2458 of 1987 -9- Committee nor any case of discrimination has been made out, cannot be accepted. It is one thing to say that a yardstick has been fixed for the purpose of taking recourse to the power of compulsory retirement, but such yardstick must be based on relevant criteria. If the relevant criteria, as has been laid down by the State, which has been adopted by the Federation, had not been acted upon, the order must be held to have been suffering from jurisdictional error. The Federation therefore, having regard to the fact that there was no material to show that the respondent employees had become dead wood, inefficient or corrupt, must be held to have abused its power.” In the case at hand, the Annual Confidential Report, in which the integrity of the plaintiff has been mentioned to be doubtful relates to the year 1963-64. Obviously, it pertains to a distant past and that being so, it has to be excluded from consideration in view of Swaran Singh Chand v. Punjab State Electricity Board and others, (2009) 13 Supreme Court Cases 758, wherein it has been held by Hon'ble the Supreme Court as under:- “The impugned order was passed although not strictly within a period of one year preceding the date of superannuation but near about the same. Spirit of Clause (ii) of the guidelines issued in this regard by order dated 14.8.1981 should have also been taken into consideration. So far as Clause (iii) of the said guidelines is concerned, there is a change of post as the R.S.A. No.2458 of 1987 -10- appellant had been promoted to a higher post after the adverse entry in confidential report. As he had been promoted despite recording of the adverse remarks, the said fact also should have been taken into consideration. If adverse report on integrity relates to a distant past or more than ten years old, yet again it should not have been considered.” To conclude finally, the Deputy Commissioner, Gurgaon has passed the impugned order in derogation of the State Government Instructions Ex.P30. As already noticed, there is no other evidence to justify the subjective satisfaction of the punishing authority in passing the impugned order. Sequelly, this order cannot be sustained and hence, the substantial question of law stands answered against the defendants- appellants and in favour of the plaintiff- respondent. The findings returned by the learned appellate court below calls for no interference and resultantly, the same are affirmed. In the result, this appeal fails and is dismissed. Of course, in view of the peculiar circumstances of the case, the parties are directed to bear their own costs. July 30, 2010 ( HARBANS LAL ) renu JUDGE