Bhagwan Dass vs State of Haryana

V.S. Aggarwal, J.—Bhagwan Dass, petitioner is a Sub-Inspector in the Haryana Police. By virtue of the present writ petition filed under Articles 226/227 of the Constitution of India, the petitioner seeks quashing of the order dated 23.8.1999 by virtue of which he has been retired compulsorily and further to direct the respondents to allow the petitioner to continue till the age of superannuation.

The facts alleged are that the petitioner had joined the police department on 15.5.1983. He earned his due promotions. He was entitled to by brought on list ''D'' for further promotion of Sub-Inspector w.e.f. 11.12.1989. In this regard, his representations were rejected. The petitioner filed a Civil Writ Petition No. 12331 of 1998 seeking promotion as Sub-Inspector. When notice of motion was issued by this Court, the respondents promoted the petitioner as Sub-Inspector on 10.12.1998 with effect from 1991. The grievance of the petitioner is that within a short span of 10 months he had been served with three months notice for retiring him compulsorily at the age of 55 years and three months.

It is contended that the order retiring him compulsorily is illegal because before issuing such an order, now show cause notice or opportunity of being heard had been given to the petitioner. He further asserted that once He has been promoted, the earlier confidential reports which are adverse would be washed away and cannot be taken into consideration. Lastly, according to the petitioner, he could only be retired by the Director General of Police with the previous ap- proval of the State Government and that has not been done and, therefore, the order is illegal. Hence, the present petition.

In the written statement filed, the petition as such has been contested. It is not in dispute that the petitioner earlier filed a writ petition, referred to above. While reply to the said writ petition was being prepared and examined, he was promoted as officiating Sub-Inspector w.e.f. 9.8.1991. Subsequently, he was not found fit for retention in government service. He had earned adverse reports from 22.4.1994 to 7.11.1994. The integrity of the petitioner was reported to be doubtful. Therefore, he was retired cpmpul-sorily. The reason is that at the time of his earlier promotion, record only upto the year 1990 was considered and, therefore, he was promoted. It is denied that Only the Director General of Police with the approval of the State Government could retire the petitioner. According to the respondents, the petitioner had 25 years qualifying service and, therefore, he could be retired.

Learned counsel for the petitioner had argued that the order so passed whereby he was earlier promoted was of the year 1998. Within one year he had compul-sorily been retired. Even if there adverse entries, the same lost all the significance and importance.

Before proceeding further and reverting back to the facts of the case, we deem it necessary to refer to the Full Bench decision of this court in the case of Punjab State and others v. Kulwantbir Singh 1993(2) SCT 567 (P&H) : 1993(2) RSJ 307. The Full Bench was considering Punjab Civil Service (Pre-mature Retirement) Rules, 1975. After scanning through the various provisions, the Full Bench returned the following findings :-

"The principles that thus emerge are :-

(i) As different consequences flow from crossing of the efficiency bar, retention in service or premature retirement after the requisite qualifying period and promotion, considerations applicable for their decision have inevitably to be relevant in their context, thus separate and distinct;

(ii) The previous history of a Government servant, or to put it in different words, his past adverse remarks are not to be completely ignored once he is allowed to cross the efficiency bar or to continue in service after the requisite qualifying service.

(iii) If, there are some unfavourable remarks pertaining to such Government servant after the crossing of the efficiency bar, his continuance in service after the qualifying period or promotion, as the case may be, past events may be looked into to assess his present conduct;

(iv) On the other hand, the adverse remarks prior to promotion to a higher post particularly where it is based upon merit and not seniority alone would lose their significance and such promotion would take away the sting of the adverse remarks against the Government servant concerned;

(v) The entire period of service of the Government servant concerned, with greater emphasis and importance being given to his record during the later years, must be taken into consideration while deciding the matter pertaining to his retention in service or premature retirement after the requisite qualifying service;

(vi) The adverse entries against the Government servant prior to the crossing of the efficiency bar and indeed the crossing of the efficiency bar itself would form part on the record of service which must be considered in dealing with retention in service or premature retirement as the case may be."

In other words, it was held that the confidential dossier before promotion would lose its significance if the concerned person is promoted. The decision is based on the judgment of the Supreme Court the case of Shri Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another 1992(2) RSJ 308. The Supreme Court in this regard had given the following findings :-

"The following principles emerge from the above discussion :

(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 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 foninter-ference. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above." In other words, what the Supreme Court held was that if the 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.

A Division Bench of this Court in the case of State of Haryana and others v. Thakar Doss 1998(2) SCT 197 (P&H) : 1998(1) Recent Services Judgments 73 had also considered this controversy. It held that in case a person is promoted on officiating basis, it shall not have any effect retiring him compulsorily because at the time of the promotion only few years record is seen, while at the time of compulsorily retiring a person the entire record can be seen. The findings of the Division Bench are as under :-

"These adverse report could legitimately be taken into consideration for forming an opinion that the petitioner was not fit to be retained in service or that his retention was not in public interest/interests of service. His officiating promotion on 11.2.1980 as Sub-Inspector cannot have the effect of washing out the adverse reports because the assessment of the record of an employee at the 5 stage of promotion is substantially different from the assessment made for his retention in service after attaining a particular age or specified length of service. In the former case record of a limited period is considered but in the latter case over all record of service is required to be taken into account with greater emphasis on the record of previous 10 years. Moreover, factors whjch weigh in the mind of the competent authority while granting officiating promotion are not the same which have to be kept in view while deciding the issue relating to premature retirement. In this case sufficient material was available with the competent authority to form an opinion that the retention of the respondent No. 1 in service was not in public interest and in view of the principles of law laid down in Sh. Baikuntha Nath Das and another v. Chief District Medical Officers, Bari-pada and another 1992(2) SLR 2 we do not find any legal justification to hold that the premature retirement of the petitioner is arbitrary or otherwise unjustified."

It is abundantly clear from the aforesaid that mere promotion by itself will not wash away the adverse entries. As one looks at the present controversy, the petitioner cannot take advantage of the said argument. This is for the reason that he was promoted as Sub-Inspector w.e.f. 1991. Therefore, his confidential dossier for the earlier period was seen. His integrity was found to be doubtful in the subsequent years. Therefore, it is the subsequent entry which would prevail when the order in question is to be seen and the fact that he was promoted loses its sting and significance. Herein, copies of adverse entries against the petitioner have been appended as Annexure P-4 and Annexure P-5. The relevant portion of Annexure P-4 reads as under :-

"1. Integrity

Doubtful

Moral character

Not good

Moral courage to expose the malpractices of subordinate

In collusion and lack of courage

Reputation for fair dealing with the public and cooperation with them

Not proper behaviour

S. Communal impartiality

Not impartial

Loyalty to the Government without political and factionist leanings.

Faction ridden

Attitude towards subordinate and dealing with fellow officers

General

General power of control and organising ability.

General

Personality and initiative.

General, sickly type

Power of command

Loose command

Interest in modern methods of investigation.

No interest

Preventive and detective ability

Normal

Working experience of criminal law and procedure

Normal

Reliability

Not reliable

15 to 18 xx xx

XX XX XX"

Annexure P-5 also records the following adverse entries :-

3, Moral courage to expose the malpractices of subordinate

Not good

Reputation for fair dealing with the public and cooperation with them.

Not good

General power of control and organising ability

Not efficient

Power of command

Not correct

Working experience of criminal law and procedure

Not correct

Defect, if any, and his attention has been invited of the concerned officer vide another letter.

Employee was censured for not investigating the case.

Keeping in view the aforesaid, indeed, the petitioner cannot claim that because he was prompted w.e.f. 1991, he could not be retired compulsorily in the year 1999.

The only other argument advanced was that the petitioner could only be retired by the Registrar General with the prior approved of the State Government. Reference in this connection was made to Rule 9.18 of the Punjab Police Rules, 1984, as applicable to Hary-ana (for short "The Rules"). The relevant portion of the said Rule reads as under :-

"9.18 (1) Notwithstanding anything contained in these rules, a retiring pension is granted to an officer :-

(a) who is permitted to retire from service after completing qualifying service for twenty-five years or such lesser period of (service) as may, for any class of officers be prescribed; or

(b) who is compulsorily retired under sub-rule (2) after completing twenty- five years qualifying serv- ice; or

(c) who is retired by the appointing authority on or after he attains the age of 55 years, by giving him not less than three months'' notice; or

(d) who retires on or after attaining the age of 55 years , by giving not less than three months notice of his intention to retire to the appointing authority :

Provided that where the notice is given before the age of fifty-five years so attained, it shall be given effect to from a date not earlier than the date on which the age of fifty-five years is attained.

Note :- Appointing Authority retains an absolute right to retire any Government servant on or after he has attained the age of 55 years without assigning any reasons. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years.

(2) The Inspector-General of Police may, with the previous approval of the State Government, com-pulsorily retire any Police Officer, other than an officer belonging to Indian Police Service, or Haryana State Police Service who has completed twenty-five years'' qualifying service, without giving any reasons. An officer who is so compul-sorily retired will be entitled to claim any special compensation for his retirement.

xx xx xx xx xx"

Reliance is being placed on Rule 9.18(2) of the Rules which certainly prescribes that if a person had completed 25 years of service, the Inspector General of Police, with the previous approval of the State Government can compulsorily retire a police officer. But Rule 9.18(1)(d) of the Rules is independent of it. If a police officer has attained the age of 55 years, he can be retired and the procedure of Rue 9.18(2) of the Rules need not be adhered to. Exactly is the position herein and consequently there is no ground to interfere.

No other plea has been raised during the course of arguments and, therefore, we deem it unnecessary to go into any other controversy.

For these reasons, the writ petition being without merit must fail and is accordingly dismissed.

Petition dismissed.