S.I. Angrej Singh vs State of Haryana

Swatanter Kumar, J.—Sub-Inspector Angrez Singh, petitioner herein, was not allowed to serve beyond the age of 55 years and was given 90 days notice on the expiry of which he was deemed to have retired in accordance with the order dated 29.7.1991. The petitioner challenges this order in the present writ petition.

The petitioner had been recruited as a Head Constable on 1.3.1975. After considerable period of service the petitioner was promoted as Assistant Sub Inspector on 31.1.1985 and as Sub Inspector in the Hary- ana Police on 15.7.1990. Certain adverse entries were recorded in the confidential reports of the petitioner from 1.8.1981 to 31.3.1986. According to the petitioner the respondents could not have compulosorily retired and decline him extension for service beyond 55 years keeping in view his service record and particularly the fact that he was promoted as Sub-Inspector only on 15.7.1990 and more than 70 per cent of his reports were good in the last 10 years. Resultantly, even in accordance with the Government instructions, the impugned order is totally arbitrary and is unsustainable in law.

Upon notice the respondents filed reply and justified the impugned order. It was specifically stated that respondents have looked into the entire service record of the petitioner and keeping in view the adverse entries in the confidential reports of the petitioner and his over-all performance, the impugned order was passed in public interest. The confidential report of the petitioner for the year 1981-82 was average, for the year 1983-84 it was below average, for the year 1984-85 there was adverse report and integrity of the petitioner was found to be doubtful, for the year 1985-86 he was again adjudged as average. On the basis of this service record, the respondents have passed the impugned order. It is also stated that representations made by the petitioner against the said entries were also rejected by the Inspector General of Police, Gurgaon on 17.5.1987. On 20.12.1987 the mercy appeal preferred by the petitioner in that behalf was also rejected. The petitioner had never challenged those entries in any proceedings earlier. The order in regard to compulsory retirement of the petitioner was served upon him on 29.7.1991 and the representation against the said order was also dismissed by the concerned D.I.G. vide order dated 30.10.1991, which was also communicated to the petitioner vide letter dated 11.11.1991 of the department.

The sole emphasis of the submission of the learned counsel for the petitioner while relying upon the judgment in the case of Baidyanath Mahapatra v. State of Orissa and another 1989(4) S.L.R. 220, is that once the petitioner was promoted, all previous adverse or unfavourable entries of the petitioner would stand wiped out and there was no justification before the respondents to retire him in the year 1991, having promoted him in the year 1990 to the post of Sub-Inspector. The above contention of learned counsel for the petitioner is based upon misreading of the law governing the subject. It is a settled principle of law now that previous promotion, per se, cannot completely wipe out the effect of earlier adverse or non-favourable entries of the Government servant, in consideration of his entire service record. The authorities concerned while deciding whether an employee should be permitted to serve beyond the age of 55 years or not, have to lake a conscious decision that further retention of such an employee would be useful to the department and would be in public interest. This positive aspect of the decision cannot be frsutrated by creating a fictional bar for the authorities concerned that they cannot took into entries in the service record of the government servant, prior to the last promotion. Objectivity with subjective satisfaction, based upon consideration of complete service record and its cumulative effect upon the mind of the authorities concerned is the underlying principle in such decisions.

Along with the writ petition, the petitioner himself has annexed copies of his confidential reports which were communicated to the petitioner for the aforementioned years and the contents thereof are not in dispute. It is also conceded before me that representations against the said reverse (adverse ?) entries had also been dismissed. Besides the entries being betow average in the confidential report for the year 1984-85, the concerned authority had given remark of ''integrity doubtful'' to the petitioner and also recorded the following general remarks against the officer :-

"He is non-gazetted officer of lowest level and below humanity. He was posted at town Badshahpur. After the death of Pime Minister Smt. Indira Gandhi, despite his presence at Badshahpur six Sikhs were burnt and he did not reach police post nor he tried to control the crowd. He is inhuman in dress. This officer deserves to be ousted from the Department. Even after the happenings many complaints regard ing misbehaviour with the public against him have been received.

This employee is warned to remove these defects. The spare copy may be sent to this office for record after getting signatures of the concerned officer."

Despite such warning the petitioner failed to improve. Such adverse assessment by the competent authority as well as by the reviewing authority could hardly be ignored by the authorities concerned while considering the retention of the employee beyond the age of 55 years merely on the ground that he had been promoted in routine for the year 1990. Promotion is a benefit which may accrue to an employee on satisfying the conditions stipulated in the relevant rules. The concept of grant or denial of promotion cannot be misconstrued to say that the service record of an employee stands altered from adverse to good. In given circumstances the criteria of promotion may be totally different than the one which the authority concerned is expected to adopt while considering the question of retention beyond 55 years, in service.

At this stage it may be appropriate to referto some judgments passed by Ihe Hon''ble Apex Court. In the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, , the Supreme Court held that the principle of audi alteram partem and its facets had no application to the orders of the present kind. The jurisdiction of the Courts to interfere in such orders falls in a very narrow compass. The Court further held as under :-

"The order of compulsory retirement has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant cqmpulsprily. The order is passed on the subjective satisfaction of the Government. The Government or the Review Committee 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 sling, more so, if the promotion is based upon merit (selection) and not upon seniority."

In the case of State of Orissa and others Vs. Ram Chandra Das, , the Hon''ble Apex Court while clearly enunciating the law in this regard held as under :-

"Though minor penally may be imposed on given facts and circumstances to act of misconduct, nevertheless remains part of the record for overall consideration to retire a Government servant compulsorily. The object always is public interest. The material question is : whether the entire record of service was considered or not ? Tt is not for the Court/Tribunal to see whether the decision of the Government to compulsorily retire the Government servant isjustified or not. It is for the Government to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Government is required to consider the entire record of service. Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the Government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that self-same material after promotion may not be taken into consideration only to deny him further promotion, if any, but that material undoubtedly would be available to the Government toconsider the overall expediency or necessity to continue the Government servant in service after he attained the required length of service or qualified period of service for pension."

In a recent case titled as State of Punjab v. Gurdas Singh 199S(4)S.C.C. 92 : 1998(2) SCT 165 (SC), the Hon''ble Supreme Court reiterated the principles enunciated in the cases of Union of India Vs. V.P. Seth and another, with definite emphasis, wherein it was held as under :-

"(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 uncommunicaled adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

"It is not necessary for us to again reiterate the principles where the Court will interfere in the order of premature retirement of an employee as these nave been accurately set down by various pronouncements of this Court and particularly in Baikuntha Nath Das case. Before the decision to retire a government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well."

The case of Baidyanath Mahapatra (supra) relied upon by the petitioner has no application to the facts of the present case. However, the law subsequent thereto as settled by the larger Benches of Supreme Court of India have taken a contrary view. Obviously, the judgement of larger Bench of the Supreme Court normally would take precedence. In that case the representations of the employee against the adverse remarks were pending before the authorities concerned and while taking into consideration such entries the employee was ordered to be compulsorily retired. While in the present case the representation of the petilioner has already been rejected by the competent authority as back as in the year 1985-86, to which the petitioner made no challenge for all these years. Even in the present writ petition there is no prayer for quashment of these adverse entries. Obvious result thereof is that the petitioner had accepted the finality of the adverse entries as recorded by the higher authorities.

For the reasons afore-stated I am unable to see any error in the order Annexure P/5 which could justify interference by this Court in exercise of its extrordinary jurisdiction under Article 226 of the Constitution of India. Resultantly, the writ petition is dismissed without any order as to costs.

Petition dismissed.