Sushil Sharma vs Union of India (UOI) and Others

Pradeep Nandrajog, J.—The Petitioner had been enrolled in the Central Industrial Security Force (hereinafter referred to as CISF) as an Assistant Sub-Inspector on 28.06.1982. He served CISF for a duration of 28 years and had earned 2 promotions during this period, firstly to the post of Sub-Inspector on 29.03.1990 and then ascending to the post of Inspector on 19.09.2003. On attaining the age of 50 years, Petitioner''s case was placed for assessment by an Internal Screening Committee under Rule 56(j) of the Fundamental Rules. The said Committee declared Petitioner ''Unfit'' for retention in service, which view was accepted by the Review Committee of CISF resulting in an order being passed on 06.06.2010 by the Competent Authority prematurely retiring the Petitioner.

The Petitioner submitted a representation dated 21.06.2010 before the Representation Committee against the afore-mentioned order. After due deliberations, the Committee found no merit in the representation and rejected the same.

Needless to state the Internal Screening Committee as also the Review Committee and the Representation Committee considered the service record of the Petitioner which contained the gradings earned by the Petitioner as recorded in the AC Rs and further information pertaining to the penalties, if any, inflicted upon the Petitioner and the commendations earned.

4 Thus, we may note the ACR gradings earned by the Petitioner. The same are as follows:

Period

Grading

28.06.1982 -17.04.1983

B. Trg

18.04. 1983 -31.12.1983

Average

1984

Average

01.01. 1985 � 14.07. 1985

Average

15.07. 1985 � 31.12. 1985

Average

1986

Average

1987

Average

01.01. 1988 -13.06. 1988

Good

14.06. 1988 � 31.12. 1988

Good

1989

Good

1990

V. Good

1991

Good

01.01. 1992 � 19.12. 1992

V. Good

21.12. 1992 � 31.12. 1992

NIC

1993

Good

01.01. 1994 -31.08. 1994

Good

01.09. 1994 � 31.12. 1994

NIC

01.01. 1995 � 19.07. 1995

Average

20.07. 1995 � 31.12. 1995

Average

01.01. 1996 � 28.02. 1996

NIC

01.03. 1996 � 31.12. 1996

Good

1997

Average

01.01. 1998 � 13.09. 1998

Good

14.09. 1998 � 03.12. 1998

NIC

1999

Average

01.01.2000 � 30.09.2000

V. Good

01.10.2000 -31.12.2000

NIC

2001

V. Good

2002

V. Good

01.01.2003 � 08.09. 2003

V. Good

09.09. 2003 � 31.12. 2003

V. Good

2004

Average

2005

V. Good

2006

Good

2007

Good

01.01. 2008 � 31.03. 2008

Good

01.04. 2008 � 31.12. 2008

Average

01.01. 2009 � 31.12. 2009

Average

The record shows that during his service spanning 28 years Petitioner earned 1 major and 9 minor penalties.

Ignoring the penalties inflicted upon the Petitioner prior to his promotion firstly as a Sub-Inspector and then as an Inspector, for the reason, law compels us to so do. As per law penalties inflicted which do not come in the way of a person earning promotion, whether on account of they being stale or trivial, have to be ignored while determining the suitability of an employee to be retained in service while considering the applicability of FR 56(j), we would highlight that after he was last promoted as an Inspector on 19.9.2003 Petitioner was inflicted with only 1 minor penalty i.e. that of ''censure'' for the misdemeanour of giving a false reason to obtain leave. Though not to be treated as penalties, on 4 occasions Petitioner had been warned for being negligent in discharge of duties and in particular for not submitting weekly diary. Twice he had been issued advisory for lethargic attitude.

Against this backdrop of facts, we are required to consider the Petitioner''s case that the Respondents have acted arbitrarily and without any basis. The argument advanced was that no adverse remark ever being communicated to the Petitioner an inference had to be drawn that nothing adverse was found with respect to the working of the Petitioner and thus he could not be prematurely retired.

Before going into the nitty-gritty of the Petitioner''s arguments, it would be circumspect to go into the varied facets of the law in considering a case of premature retirement under Rule 56(j) of the Fundamental Rules. This branch of law deals primarily with the requirement of weeding out the ''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 subserves 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 AC Rs 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.

In the instant case, we note that the Petitioner''s graph of AC Rs (Annual Confidential Reports) rose with a series of "Average" ratings earned at the commencement of his career from 1983-87, followed by ratings of "Good" and "Very Good" till 1994. During this promising period, he had earned his first promotion in 1990. The career graph took a series of dents in the years 1995, 1997 and 1999 because of the rating "Average". Thereafter, the AC Rs improved to "Very Good" from 2000-2003 thus earning him his second promotion in 2003. Scrutinizing the last 5 years of the Petitioner''s service, i.e 2004-2009, we find that the ratings earned are "Average" for 2004, 01.04.08-31.12.08 and 01.01.09-31.12.09, "Very Good" in 2005 and "Good" for 2006, 2007 and 01.01.08-31.03.08.

In the last 5 years, there is a steady decline in the AC Rs of the Petitioner ending with 2 "Average" ratings in the last two years. In other words, the position would be that in the year 2004-05 Petitioner was ''Average'' and became ''Very Good'' the next year, the next 2 years he was ''Good'' and then he became ''Average'' for the next 2 years. It also assumes importance to note that after his last promotion in the year 2003, the Petitioner was inflicted 1 minor penalty of ''censure'' and on 4 occasions was warned for being negligent in discharge of duties and not submitting weekly diary and twice had been issued advisory for lethargic attitude.

Is it possible to argue that it is a borderline case? If yes, on which side of the line would the Petitioner fall.

We have for our guidance the decision of the Supreme Court reported as 1992 SCR (2) 338 P&T Board and Ors. v. CSN Murthy, wherein for the last 5 years CSN Murthy had 3 ''Goods'' and 2 ''Average'' AC Rs, with the 2 ''Average'' AC Rs 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)

As we understand, the law would be that where a case is on the borderline, it is the decision of the employer which has to be accepted for the reason unless it could be shown that the employer has acted with unreasonableness of the kind which equals perversity, under judicial review it would not be permissible to quash a decision taken by the Executive i.e. the Administration. After all, unreasonableness as a ground to quash an administrative decision must be tested on the principle of ''Wednesbury'' unreasonableness.

We dismiss the writ petition but without any orders as to costs.