Ompal vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—The petitioner who is serving as a Head Constable in the Haryana Police has questioned the validity of a notice dated 9.11.2012, Annexure P6, served upon him as regards his compulsory retirement upon attaining the age of 55 years as also the order dated 12.11.2012, Annexure P7, passed by the Superintendent of Police, Jhajjar whereby the petitioner would stand compulsorily retired w.e.f. 31.1.2013. Still further, challenge has also been raised to memo dated 15.10.2012 whereby his representation against the adverse remarks conveyed to him for the period 26.12.2008 to 31.3.2009 and 1.4.2009 to 31.3.2010 has been rejected. The petitioner was initially appointed as a Constable on 4.10.1979 and having passed the lower school course was promoted as Head Constable on 17.1.1991. The petitioner was confirmed as Head Constable in the year 1997 and it has been pleaded that he had even qualified the intermediate course which would render him eligible for promotion to the post of Assistant Sub Inspector of Police. He was conveyed adverse remarks for the period 14.4.2000 to 31.3.2001. The petitioner is stated to have filed a civil suit challenging such adverse remarks but such suit was dismissed by the trial Court and an appeal is stated to be pending adjudication before the first Appellate Court. Thereafter, two adverse reports were conveyed to the petitioner for the period 26.12.2008 to 31.3.2009 and 1.4.2009 to 31.3.2010.

Learned counsel for the petitioner has vehemently argued that the impugned notice at Annexure P6 as regards compulsory retirement as also the order at Annexure P7 ordering the compulsory retirement of the petitioner w.e.f. 31.1.2013 suffer from the vice of non-application of mind. Learned counsel would argue that a false case had been registered against the petitioner under Sections 323, 324 and 353 of the Indian Penal Code read with Sections 7, 13 and 88 of the Prevention of Corruption Act at Police Station Bahadurgarh on 19.3.2009. However, in terms of decision dated 28.9.2011 passed by the Sub Judge, Jhajjar, Annexure P2, the petitioner stands acquitted of the charges levelled against him. It has been argued that the petitioner immediately thereafter had submitted a detailed representation seeking expunging of the adverse remarks pertaining to the period 26.12.2008 to 31.3.2009 and 1.4.2009 to 31.3.2010, but the same had been rejected in the light of a cryptic non-speaking order dated 15.10.2012, Annexure P4. It has also been contended that on the whole, the petitioner possesses a good service record and the action of the respondent-authorities in taking a decision to compulsorily retire him is without any basis and material on record.

Learned counsel for the petitioner has been heard at length and the pleadings on record have been perused.

The nature of an order of compulsory retirement, its effect as also the scope of judicial scrutiny in such matters has come up for consideration before the Hon''ble Supreme Court in a catena of judgments. In the case of Baikunatha Nath Das and another v. Chief District Medical Officer, Baripada and another, 1992 (2) SCT 92, their Lordships had held as follows:-

The following principles emerge from the above discussion:-

(i) An order of compulsory retirement is not a punishment. In 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 an 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 for interference.

Further, in the case of M.P. State Co-op. Dairy Fedn. Ltd. and Another Vs. Rajnesh Kumar Jamindar and Others, , the Hon''ble Apex Court had culled out the principles governing judicial review in respect of an order of compulsory retirement and had held as follows:-

The law relating to compulsory retirement in public interest is no longer res integra. The provisions had been made principally for weeding out dead wood. An order of compulsory retirement being not penal in nature can be subject to judicial review inter alia:-

(i) When it is based on no material;

(ii) When it is arbitrary;

(iii) When it is without application of mind; and

(iv) When there is no evidence in support of the case.

Reverting back to the facts in the present case, there is no dispute that the petitioner had been conveyed adverse remarks for the period 2000-2001. Even a civil suit challenging such remarks stands dismissed. At Annexure P1 appended along with the petition, adverse remarks for the period 26.12.2008 to 31.3.2009 and 1.4.2009 to 31.3.2010 had been conveyed to the petitioner whereby his integrity had been doubted. Even though the petitioner stands acquitted in case FIR No. 85 dated 19.3.2009 which finds a mention in the adverse remarks, yet his representation seeking expunging of such remarks has been rejected vide order dated 15.10.2012, Annexure P4. This Court in exercise of its extra-ordinary writ jurisdiction u/s 226 of the Constitution of India will not embark upon an exercise of re-appreciation of the service record of the petitioner. It has been held by the Hon''ble Apex Court in the State of Gujarat Vs. Umedbhai M. Patel, that with the objective of better administration, it is necessary to chop off the dead wood and any adverse entry made in the confidential record shall be taken note of. It was even held to the extent that uncommunicated entries in the confidential record can also be taken into consideration while forming an opinion to compulsorily retire an employee.

I do not find that in the present case, the impugned notice qua compulsory retirement dated 9.11.2012, Annexure P6, as also the order dated 12.11.2002, Annexure P7, has been passed without there being any material on record. It is not even the case set up on behalf of the petitioner that the impugned order of compulsory retirement is vitiated by malafides or is based on any other oblique motive. I find no basis that would warrant interference in the impugned order of compulsory retirement passed against the petitioner.

At this stage, learned counsel for the petitioner would refer to Rule 3.26(d) of the Punjab Civil Services Rules, Vol. I (as applicable to the State of Haryana) which reads in the following terms:-

(d) The appointing authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government employee other than Class IV Government employee by giving him notice of not less than three months in writing or three months'' pay and allowances in lieu of such notices.

In terms of referring to such provision, learned counsel would submit that the mandate of the Rule is for the State Government to have given the petitioner a notice of not less than three months in writing or three months'' pay and allowances in lieu of such notice prior to issuance of an order of compulsory retirement. Learned counsel would urge that the notice in the present case served upon the petitioner was dated 9.11.2012 and the order compulsorily retiring the petitioner was passed on 12.11.2012, Annexure P7, and on this count alone, the impugned order cannot sustain as the requisite notice period of three months stands violated.

While declining to interfere with the impugned order of compulsory retirement and dismissing the present writ petition, it is directed that the order of compulsory retirement of the petitioner shall take effect on the expiry of three months from the date of issuance of the notice dated 9.11.2012, Annexure P6.

Liberty is, however, granted to the petitioner to file a petition afresh as regards the rejection of his representation vide memo dated 15.10.2012 against the adverse remarks for the period 26.12.2008 to 31.3.2009 and 1.4.2009 to 31.3.2010 by raising all such grounds available to him strictly in accordance with law. Petition dismissed in the aforesaid terms.