Rajinder Parkash Seth vs The State of Haryana

K.C. Gupta, J.—This Civil Writ Petition under Articles 226/227 of the Constitution of India has been directed by the petitioner, Rajinder Parkash Seth, against retirement notice dated 12.8.1985 whereby he was proposed to be retired compulsorily and he had prayed that the said notice be quashed.

Briefly stated, the facts are that the petitioner, after passing the matriculation examination, joined the Police Force as a Selection Grade Constable at Faridkot in the State of Pepsu on 2.1.1951. He passed the Lower School Course in August 1954. He was promoted as Head Constable on 1.6.1957. On account of his excellent record of service, he was brought on promotion list ''D'' on 11.4.1960. He was promoted as officiating A.S.I. on 1.12.1961 by the D.I.G. of Police, Patiala Range. On 31.3.1962, he was sent to Intermediate Course at Police Training School, Phillaur and he successfully completed it in March 1963.

It is next averred that for his promotion as Sub Inspector, after bringing him on list ''E'', the petitioner filed Civil Writ Petition No. 2782 of 1969. It was allowed by this Court on 29.1.1970. He was allowed to cross the efficiency bar in 1974 and was confirmed as ASI with effect from 17.1.1975 vide order dated 17.3.1975 by D.I.G., Gurgaon Range. His name was brought on promotion list ''E'' with effect from 1.11.1974 vide order dated 5.2.1975 and he was actually promoted as Sub Inspector in 1974 and confirmed as such from 10.5.1980 vide order dated 1.8.1983 of the D.I.G. Police, Gurgaon Range.

It was further averred that he had a large number of commendation certificate and cash rewards to his credit for doing good work.

It was next averred that he made representation for grant of due seniority and further promotion as his juniors were promoted, which was rejected and instead of giving his seniority, he received a notice, Annexure P-2, dated 10.2.1983 for compulsorily retiring him under Punjab Police Rule 9.18 (2) as applicable to the State of Haryana. He submitted representation against it but suddenly on 12.8.1985, he was given three months notice of his retirement vide Annexure P-3.

It was further averred that his pre-mature retirement was illegal as it was not in public interest and was inconsistent with the grant of efficiency bar; that adverse entires prior to his promotion as Sub Inspector in 1974 stood washed off as per law and thereafter, he earned number of commendation certificates and appreciation letters and that the impugned action was arbitrary, discriminatory and violative of Article 14 and 16 of the Constitution of India.

With these allegations, the present writ petition for quashing the impugned notice, Annexure P-3, was filed.

Respondent Nos. 1 to 4 filed written statement through respondent No. 4 i.e. Superintendent of Police, Gurgaon. They denied the allegations of the petitioner and stated that the petitioner had no locus-standi to invoke the jurisdiction of this Court. They further stated that the adverse reports speak volume of truth against the petitioner and suggest that he was not a fit person to be retained in police force. They next stated that the petitioner earned as many as four adverse reports for integrity and in all, 9 adverse reports were conveyed to him since his promotion as Sub Inspector in 1974. They further stated that the record of the petitioner not only before 1974 was considered but his subsequent record was also consider. His (sic) was found constantly chequered and as such, the petitioner was rightly served with notice of compulsory retirement.

I have heard Shri N.S. Pawar, counsel for the petitioner, Shri Sudhir Nehra, AAG, Haryana, for the respondents and carefully gone through the record.

It is an admitted fact that the name of the petitioner was brought on promotion list ''E'' with effect from 1.11.1974 vide order dated 5.2.1975 passed by D.I.G. of Police, Ambala Range. He was promoted as Sub Inspector in 1974 and was confirmed as such with effect from 10.5.1980 vide order dated 1.8.1983 passed by DIG Police, Gurgaon Range. He was served three months notice, Annexure P-3, on 12.8.1985 for retiring him compulsorily. It has been observed by the Hon''ble Supreme Court in State of Gujarat v. Umedbhai, 2001 (2) RSJ 87 as under:-

(1) Compulsory retirement - Crystalized principles summarised thus:

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entry made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entires in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entires made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure.

Therefore, according to the said findings, compulsory retirement is not to be imposed as a punitive measure and a public servant can be compulsorily retired for better administration in the public interest if it is necessary to chop off dead-wood but due regard has to be given to the entire service record of the officer. Even uncommunicated entires in the confidential record can be taken into consideration in passing the order and even single adverse entry made in the confidential record can be taken note of and be given due weightage in passing such order. The petitioner admittedly was promoted as Sub Inspector in the year 1974 vide order dated 5.2.1975 and then he was confirmed as Sub Inspector vide order dated 1.8.1983 with effect from 10.5.1980. A perusal of the confidential reports of the petitioner show that his integrity had been recorded as doubtful for the years 1976, 1977 and 1983. Even for the period 1984 and 1985, his work was mentioned to be below average and further mentioned to be a cleaver type of person who used his knowledge on the wrong side and was stated to be not reliable. Therefore, even for certain reasons his confidential record for the years 1976 and 1977 is not taken into consideration on the plea that he has confirmed with effect from 10.5.1980 as Sub Inspector while taking into consideration his record. Then the confidential entry for the period from September 1983 to 31.3.1984 shows his integrity to be doubtful and having average capability and courage. Again for the period from 1.4.1984 to 13.3.1985, his ability had been shown to be below average and he was mentioned to be clever type of person who misused the position on the wrong side. Therefore, certainly, he is a dead-wood who was to be chopped off and cannot be kept it service. The appreciation letters or the commendation certificates got by him have got no effect as far as his confidential reports are concerned. For the purpose of promotion, his only confidential reports are to be seen. If his confidential reports had been good, then those commendation certificates could be considered alongwith that.

Counsel for the petitioner contended that since he was promoted in the year 1974 and subsequently confirmed in the year 1980, so, the adverse reports prior to that cannot be considered. For this contention, he placed reliance upon the authority of Hon''ble Apex court i.e. Narasingh Patnaik v. State of Orissa, 1996 (2) services Law Reports 615, which supported the above contention of the learned counsel. It is true that since he had been promoted in the year 1974 as Sub Inspector and subsequently confirmed in the year 1980, then the adverse remarks prior to it cannot be considered but the competent authority is to take into consideration the entire record at the time of compulsory retiring a public servant. If the entire record of the petitioner, inclusive positive as well as negative side are considered, then certainly, he deserves to be retired compulsorily. In Tara Chand H.C. No. 157, Police Station City, Rohtak v. Director General of Police, Haryana, Chandigarh, 1992 (2) R S J 652, it has been held by this Court that power under Rule 9.18 has to be exercised in public interest. The authority charged with the duty of final order has to see as to whether or not an officer''s value is clearly'' incommensurate with the pay which he draws. It is the cumulative effect of the positive and negative aspects that has to be taken into consideration while deciding the matter.

Therefore, the writ petition, qua quashing the retirement notice, Annexure P-3, is dismissed.

Counsel for the petitioner next contended that he was not allowed six months leave encashment on the plea that he was compulsorily retired but the Division Bench of this Court had allowed six months leave encashment, although a person was compulsorily retired. For this contention, he placed reliance upon two unreported cases of this court i.e. Civil Writ Petition No. 3562 of 1986 (Gajinder Singh, Sub Inspector of Police v. State of Haryana and Ors. ) decided on 16.1.1987 and Civil Writ Petition No. 6735 of 1987 (Rup Lal Verma v. State of Haryana and Ors. ) decided on 6.1.2003. In Gajinder Singh''s case (Supra), the Division Bench of this Court had held that the petitioner was entitled to six months leave encashment. In Rup Lal Verma''s Case (Supra), it was further held that whatever amount was due to the petitioner on account of leave encashment, he is entitled to get the same with interest @ 19% per annum from the date when the leave encashment was due to him till the date of passing of this order. It has also been held by this Court in Amar Singh Superintendent (retired) Printing and Stationary Department, Punjab at Chandigarh v. The Chief Secretary to Government, Punjab and Ors., 1986 (1) SLR 686 that there cannot be any discrimination in grant of cash payment for un-utilised earned leave between the Government employees who are pre-maturely/compulsorily retired under Rule 3(i)(a) and those who retired on attaining the age of superannuation because in the matter of concession, the citizens have the right to be tried equally. No authority adverse to the abovesaid authorities has been produced by the State counsel. In such circumstances, I hold that the petitioner is entitled to six months leave encashment if it due to him and the same be paid to him with interest @ 9% per annum from the date when the leave encashment is due to him till the date of (sic).

In view of the above discussion, the writ petition is partly allowed as stated above.