Mohinder Singh vs State of Haryana and another

Paramjeet Singh, J.—Present writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for quashing of order dated 30.06.1994 (Annexure P/4) passed by respondent No. 2 - Collector, District Jind, whereby the petitioner has been compulsorily retired from service and further directions to the respondents to allow the petitioner to continue in service till his attaining the age of 58 years. Brief facts of the case are that the petitioner joined the service of Department of Revenue, Punjab (now Haryana) on 20.09.1961 as Patwari at Charkhi Dadri, District Bhiwani. Thereafter, the petitioner was promoted as Field Kanoongo on 22.08.1985, thereafter, further promoted as Office Kanoongo vide order dated 01.03.1993. It is averred in writ petition that the petitioner has served for 34 long years while discharging his duty with zeal and integrity. Through a communication dated 30.06.1994 (Annexure P/4), the petitioner was sought to be retired from service on attaining the age of 55 years by giving him three months'' prior notice. The retirement was based on the ground of public interest. As a consequence of the aforesaid order, the petitioner was relieved from his duty. Hence, this writ petition.

On notice, the respondents appeared and filed joint written statement denying the averments made in the writ petition and submitted that the petitioner has been compulsorily retired after giving three months'' notice and the case of the petitioner was considered by the Officers Committee of the Chief Secretary to Government of Haryana. The Committee had recommended that the petitioner may be retired from service in the public interest after giving him three months'' notice. The information was received vide letter dated 10.6.1994 (Annexure R-1). It is further submitted that the petitioner has been retired in public interest.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner contended that there was no material whatsoever to justify the action of the respondents in prematurely retiring the petitioner vide impugned order dated 30.06.1994 (Annexure P/4). It is further contended by the counsel for the petitioner that for a period of 34 years preceding the passing of the impugned order, no adverse Annual Confidential Report was ever communicated to the petitioner. The only allegation against the petitioner is by the S.D.O. (Civil) Narwana on the official work and conduct of the petitioner. The learned counsel for the petitioner has referred to letter dated 29.09.1994 (Annexure P/3) whereby the Collector has written to the Commissioner that no complaint has ever been received in connection with the integrity of Sh. Mohinder Singh, Kanoongo (petitioner). No enquiry of any sort was initiated against the employee in the year 1992-93. No adverse report has ever been received against the petitioner except the adverse entry made by the SDO (C) Narwana.

In para no. 3 of the written statement, it has been admitted that the petitioner has obtained Annual Confidential Reports with remarks "Good" all through his service. Learned counsel for the respondents in order to justify the passing of the impugned order dated 30.06.1994 (Annexure P/4) has submitted that the case of the petitioner was considered by the Officers Committee and the writ petition deserves to be dismissed on this ground.

On the specific query by this Court whether any adverse Annual Confidential Report had been recorded against the petitioner for the last 34 years preceding his premature retirement, the learned counsel for the respondents clearly acknowledged that there was not even a single report adversely commenting upon the work and conduct of the petitioner for the last 34 years except the Annual Confidential Report for the year 1992-93 in which an adverse entry was made by the then SDO (Civil) Narwana regarding which an appeal was pending before the Financial Commissioner.

Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case titled Daya Nand Dalal Vs. State of Haryana and Others, , wherein this Court has held as under:-

The propositions, which emerge from the above analysis of the Rules, the instructions and the various judicial precedents referred to hereinabove, are:-

(a) The employer is not required to comply with the principles of natural justice before an order of premature retirement of an employee is passed because such an order is not punitive and it does not cast any stigma on the employee. However, where the order of retirement is passed as a measure of punishment, the employer has to make an inquiry in accordance with the rules and the principles of natural justice.

(b) The decision to retire an employee is to be on forming the opinion that it is in public interest to retire a government servant compulsorily.

(c) Though the satisfaction of the government about the utility and fitness of the employee to be retained in service is subjective, the same has to be formed on an objective consideration of the relevant factors.

(d) The Government or the Committee, who is entrusted with the task of making an evaluation of the record of the employee, must consider the entire record of service before taking a decision in the matter, but greater importance should be attached to the record of the employee and his performance during the later years. The record to be so considered would only include the entries in the confidential reports (bad as well as good) and the punishment, if any, imposed.

(e) If the government servant is promoted to higher post after consideration of the adverse reports, if any, then such reports will lose their sting. This principle will apply with greater rigour where promotion is based purely on merit.

(f) Where the rule empowering the government/appropriate authority to prematurely retire a servant is silent, the government can issue administrative instructions laying down guidelines for exercising of power of premature retirement. Such guidelines are to be kept in view while considering the case of the employee for premature retirement/compulsory retirement but they cannot be read as controlling the discretion of the government/appropriate authority.

(g) If the record of the employee in relation to earlier years contains average and not so good entries but, in the later years his performance shows positive improvement, then there must exist some cogent reasons for exercise of the power of pre-mature retirement.

(h) The Court will ordinarily not interfere with the bona fide exercise of power by making an evaluation of the service record of the employees as an appellate authority but where the exercise of power by the government or the appropriate authority is vitiated by violation of the statutory provisions governing the exercise of such power or where the appropriate authority fails to apply its mind to the record of the employee in an objective manner or where the appropriate authority forms opinion about the utility of the employee by relying on extraneous factors, then the Court not only has power but duty to exercise the power of judicial review to invalidate order of retirement.

The learned counsel for the petitioner has further relied upon a Single Bench judgment of this Court in the case of Hari Singh v. State of Haryana and another 2004 (6) SLR 740 : 2004 (4) S.C.T. 673, which followed the Division Bench judgment in Daya Nand Dalal''s case (supra). Learned counsel for the petitioner further contends that there was no material whatsoever to justify premature retirement of the petitioner vide impugned order dated 30.06.1994 (Annexure P/4). The said order has been passed allegedly on the basis of public interest without any material on record to justify the same.

The learned State counsel is fair enough to say that no adverse entry is available against the petitioner on record except the sole remarks by the SDO (Civil) for the last 34 years of his service career. His service career always remained good. This fact has also been admitted by the respondents in their written statement. In view of above, I am of the definite view that it is wholly unjustified on the part of the respondents to prematurely retire the petitioner whose work and conduct is good and satisfactory.

By applying the ratio of the decisions referred to hereinabove and keeping in view the facts mentioned above, the instant writ petition is allowed. Impugned order dated 30.06.1994 (Annexure P/4) of premature retirement is held to be wholly arbitrary and based on wholly extraneous considerations, so, the said order is hereby set aside. Now, the petitioner is not in service. He would have normally retired on 30.06.1997 from service on superannuation having attained the age of 58 years had he continued in service. Since, I have set aside the impugned order of compulsory retirement, the petitioner shall be deemed to be on duty from the date of compulsory retirement till the date of superannuation i.e. 30.06.1997. The petitioner is held entitled to all the consequential, monetary and other retiral benefits, which shall be calculated and paid to the petitioner within three months from today. No costs.