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Judgment
Pradeep Nandrajog, J.—Exercising power under Rule 56(j) of the Fundamental Rules read with Rule 48(1)(b) of CCS (Pension) Rules 1972, upon completion of 30 years service by the petitioner, the Commandant CISF Unit Korba has passed the impugned order dated 16.8.2011 retiring the petitioner prematurely with immediate effect directing that sum equivalent to pay for 3 months shall be paid.
Relevant record concerning the impugned decision has been produced at the first hearing today itself inasmuch as the Rules of this Court require an advance copy of a writ petition to be served upon the respondents who have to appear in court at the first hearing and we are happy to note that the respondents have been rendering utmost cooperation to the Court by producing the relevant record on the date of the first hearing. Since record is produced today and the only issue which needs to be decided is whether the service record of the petitioner justifies impugned order being passed, learned counsel concede that the matter may be disposed of after considering the record.
We note the service profile of the petitioner as tabulated in the record produced, which record was considered by the competent Authority when decision was taken to retire the petitioner upon completing 30 years? service in exercise of power under FR 56(j). But before that we note that the petitioner joined service in CISF in the year 1981. During this period 9 penalties were inflicted upon the petitioner as under:-
DETAILS OF PUNISHMENT INFLICTED UPON THE PETITIONER
S. No.
Year
Brief of Charge
Punishment awarded
01
1986
Overstayed from joining time for 22 days
�Censure� Awarded on 31.12.1986
U/R-36-02
U/R-37-07
02
1990
OSL for 17 days
�Censure� Awarded on 07.09.1990
03
1992
Quarreling man handling with C/W personnel while on duty U/R-36
�Reduction of pay by two stages for one year� awarded on 06.05.1992
04
1993
Illegal gratification from transporter while on duty U/R-36
�Reduction of pay by minimum stage in pay scale for three years� awarded by DIG/NZ on 10.09.1993
05
1995
Absent from duty
�Censure� Awarded on 04.04.1995
06
1998
Absent from duty
�01 day pay 30.10.1998 fine� Awarded on
07
1999
Absent from duty fallen
�01 day pay 03.02.1999 fine� Awarded on
08
2005
Sleeping on duty
�04 day pay 21.03.2005 fine� Awarded on
09
2008
Overstayed from joining time for 02 days
�02 day pay 17.05.2008 fine� Awarded on
The ACR grading of the petitioner is as under:-
ACR GRADINGS OF THE PETITIONER
FROM
TO
GRADING
01.01.1982
31.12.1982
SATISFACTORY
01.01.1983
31.12.1983
AVERAGE
01.01.1984
31.12.1984
AVERAGE
01.01.1985
31.12.1985
SATISFACTORY
01.01.1986
31.12.1986
SATISFACTORY
01.01.1987
31.12.1987
GOOD
01.01.1988
31.12.1988
AVERAGE
01.01.1989
31.12.1989
AVG./GOOD
01.01.1990
31.12.1990
GOOD
01.01.1991
31.12.1991
GOOD
01.01.1992
31.12.1992
BELOW AVG.
01.01.1993
31.12.1993
AVERAGE
01.01.1994
31.12.1994
GOOD
01.01.1995
31.12.1995
GOOD
01.01.1996
31.12.1996
V.GOOD
01.01.1997
31.12.1997
AVG./GOOD
01.01.1998
31.12.1998
GOOD
01.01.1999
31.12.1999
GOOD
01.01.2000
31.12.2000
AVERAGE
01.01. 200
31.12.200
V.GOOD
01.01.200
31.12.200
GOOD
01.01.200
31.12.200
GOOD
01.01.200
31.12.200
GOOD/VG
01.01.200
31.12.200
GOOD
01.01.200
31.12.200
GOOD
01.01.200
31.12.200
GOOD
01.01.200
31.12.200
VG/GOOD
01.01.200
31.12.200
V.GOOD
01.01.2010
31.12.2010
AVERAGE
Premature retirement under Rule 56(j) of the Fundamental Rules relates to the branch of law which deals with the weeding out of "dead wood" from the system by testing the integrity, utility and efficacy of the concerned Government employee on the anvil of public interest. This flows out of the language of FR 56(j) which says that on issues of integrity, utility and efficacy the requirement to continue with the employment or not have to be considered. The dictionary meaning of "dead wood" is "one that is burdensome or superfluous". The public interest to be kept in mind is that it serves the public if efficient persons discharge duties as public servants and if somebody is found to be a dead wood, he better be replaced by an efficient person. Law guarantees to a public servant a minimum pensionable service and beyond that he must earn the right to serve by dint of hard work by proving his worth.
It was settled by a Constitution Bench of the Supreme Court, in the decision reported as Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), , that compulsory retirement or premature retirement is not a punishment and no stigma is attached as there is no element of charge or imputation. This is the reason why, even with respect to un-communicated adverse entries in the ACRs of a civil servant, it has been held that it is permissible to take them into account while considering the service record of a Government servant as per the decision reported as Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, which decision also recognizes that although the entire service record has to be kept in view, but primacy has to be accorded to the service profile preceding up to last 5 years for the reason it may happen that a person may be Average in the beginning but with passage of time would become Very Good and vice-versa.
We have for our guidance the decision of the Supreme Court reported as 1992 SCR (2) 338 P&T Board & Ors. vs. CSN Murthy, wherein for the last 5 years CSN Murthy had 3 "Goods" and 2 "Average" ACRs, with the 2 "Average" ACRs being in the last 2 years and the Supreme Court observed:-"In our opinion, there was material which showed that the efficiency of the petitioner was slackening in the last 2 years of the period under review and it is, therefore, not possible for us to fault the conclusion of the department as being mala-fide, perverse, arbitrary or unreasonable....... It is true that the earlier record of the respondent was good but if the record showed that the standard of work of respondent had declined and was not satisfactory, that was certainly material enabling the department to come to a conclusion under FR 56(j)".
Tested on the anvil aforesaid it assumes importance to note that the petitioner was promoted as a Head Constable on 14.6.2000 and thus penalties imposed prior to the year 2000 have to be ignored while determining petitioner''s suitability to be retained in service. 2 penalties of sleeping on duty and overstaying leave by 2 days were inflicted in the year 2005 and 2008 and we note that they are minor penalties. The ACR grading of the petitioner which have to be considered with greater focus are the 5 year preceding ACRs. We are conscious that we have to consider even the prior ACRs. Since the year 1990 till the year 2009 the ACRs of the petitioner were either "Good" or "Very Good". The ACR grading "Average" for the year 2010 has not been conveyed to the petitioner, in violation of the law that being adverse it needed to be communicated to the petitioner. The ACR grading of the petitioner, do not justify the decision to treat the petitioner as a dead wood.
We allow the writ petition and quash the impugned order dated 16.8.2011. The petitioner is reinstated in service with all consequential benefits.
No costs.