Punjab-Haryana High Court
A.K.Raghava vs Punjab & Haryana High Court on 22 October, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
CWP No.23041 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 22.10.2013
CWP No.23041 of 2011
A.K.Raghava ...Petitioner
Versus
Punjab & Haryana High Court, Chandigarh & another ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Sanjiv Bansal, Advocate,
for the petitioner.
Mr. Naresh Kumar Joshi, Advocate,
for respondent No.1.
Mr. Pardeep Singh Poonia, Addl. AG, Haryana,
for respondent No.2.
HEMANT GUPTA, J.
Challenge in the present writ petition is to the communication dated 21.12.2009 (Annexure P-9) sent by the High Court to the State Government recommending premature retirement of the petitioner and consequent decision of the State Government dated 08.01.2010 (Annexure P-
10) retiring the petitioner in terms of Rule 3.26(d) Vol.-I and Rule 5.32 A(1) Vol.-II of the Punjab Civil Services Rules (for short 'the Rules').
The petitioner joined judicial services as Sub Judge -cum- Kumar Vimal Judicial Magistrate on 11.05.1984 and was promoted to Haryana Superior 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 2 Judicial Services on 27.07.1997. In the Annual Confidential Report (ACR) for the year 2006-07, the petitioner was graded 'Integrity Doubtful', a copy of which has been attached as Annexure P-3. In the note, which is part of the ACR (Annexure P-3), the reference is made to the reports submitted by the District & Sessions Judge (Vigilance), Punjab on 09.01.2007 & 05.03.2007. The representation submitted by the petitioner against the adverse remarks was declined vide communication dated 25.03.2009. The second representation dated 14.04.2009 also did not find favour with the High Court. The petitioner has, thus, invoked the writ jurisdiction of this Court to seek quashing of the adverse remarks and the communication made to the State Government for the pre-mature retirement of the petitioner.
In the reply filed on behalf of the High Court, it is inter alia asserted that the petitioner was graded 'C (Below Average)' in the ACR for the year 1981-82 as well as 'C-Integrity Doubtful' in the year 1988-89, though the same were upgraded to 'B Satisfactory' by the Administrative Committee. Even in the remarks for the year 1993-94, there was a remark that he was partial towards a member of Bar and otherwise too quite approachable. It was observed that he should be watched carefully. In the year 1997-98 again, certain advisory remarks were recorded. In proceedings arising out another complaint submitted by Mr. Rajiv Yadav, a penalty of stoppage of three annual increments without cumulative effect was imposed vide order dated 19.02.2003. It is also pointed out that the representation against the ACR for the year 2006-07 was considered by the Committee constituted for the purpose on 03.02.2009 in the light of observation recorded by the District & Sessions Judge, Faridabad; two reports of the District & Sessions Judge (Vigilance), Punjab dated 09.01.2007 and 05.03.2007 and the Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 3 remarks recorded by the Hon'ble Administrative Judge. The representation for expunction of adverse remarks was rejected. The Full Court considered the representation and the recommendation of the Committee and the remarks were finalized as 'C Below Average Integrity Doubtful' for the year 2006-07, whereas the same were finalized as 'B Average' for the year 2007-08 as per the report of the Administrative Judge. It is further pointed out that the service record of the petitioner was considered in the Full Court meeting held on 17.12.2009 and the recommendation was made for premature retirement of the petitioner under Rule 3.26(d) Vol.-I and Rule 5.32-A Vol.-II of the Rules.
Learned counsel for the petitioner has vehemently argued that the petitioner has already completed 55 years of age on 21.04.1999 (date of birth being 22.04.1954), therefore, respondent No.1 could not recommend premature retirement of the petitioner in December, 2009. The petitioner could be considered for premature retirement only at the time of attaining the age of 58 years.
It is argued that though the order of premature retirement is innocuously worded, but if the veil is removed, the order is stigmatic in nature. The reports of the District & Sessions Judge (Vigilance), which have been made basis of premature retirement, were not supplied to the petitioner. Since the material, which has been taken into consideration, was not supplied to the petitioner, it violates the principles of natural justice. It is also argued that since an order of premature retirement is based upon the adverse reports submitted after conducting the discreet enquiry conducted by the District & Sessions Judge (Vigilance), it is basis of the order of premature retirement and, therefore, such order based upon adverse material, could be subject matter of a regular departmental enquiry. Therefore, the impugned order is Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 4 not only stigmatic, but is also an order of punishment without conducting any regular departmental enquiry.
Mr. Bansal referred to Chandra Prakash Shahi Vs. State of U.P. & others (2000) 5 SCC 152 wherein in respect of dispensing of the services of a probationer, it has been held that termination founded on misconduct is punitive. Such order could not be passed without conducting an enquiry. Reliance is also placed upon the Supreme Court order passed in High Court of Punjab & Haryana Vs. Ishwar Chand Jain & another (1999) 4 SCC 579, wherein the order of premature retirement passed against a Judicial Officer was found to be untenable. Relying upon Swaran Singh Chand Vs. Punjab State Electricity Board & others (2009) 13 SCC 758, it is argued that since the order is stigmatic and punitive, it could not be passed without conducting a regular enquiry.
On the other hand, Mr. Joshi has relied upon Supreme Court judgments in Rajendra Singh Verma (Dead) through LRs & others Vs. Lieutenant Governor (NCT of Delhi) & others (2011) 10 SCC 1 and Registrar General, Patna High Court Vs. Pandey Gajendra Prasad & others AIR 2012 SCW 3383 as well as on Division Bench judgment of this Court in Randhir Singh Vs. Hon'ble High Court of Punjab & Haryana & another (CWP No.395 of 2006 decided on 27.07.2012).
Having heard learned counsel for the parties at length, we do not find any merit in the present writ petition.
Rule 3.26(d) Vol.-I and Rule 5.32-A Vol.-II of the Rules, as applicable to Haryana, empowers the State to premature retire a Judicial Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 5 Officer in public interest and also payment of pension. The relevant Rules i.e. 3.26(d) and 5.32A read as under:
Rule 3.26 Vol. I Part-I "3.26. xxx xxx xxx
(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:-
(i) If he is in Class I and Class II service or post and had entered Government service, before attaining the age of thirty-five years, after he has attained the age of fifty years; and
(ii) (a) If he is in class I or class II service or post, or
(b) If he is Class I or Class II service or post and entered Government service after attaining the age of thirty-five years; after he has attained the age of fifty-five years.
Provided that in the case of a member of the Judicial Service, if he had entered Government service before or after attaining the age of thirty-five years, his case for retention in service beyond the age of fifty-eight years, shall be considered before he attains such age. Provided that in the case of a member of the Judicial Service, he shall have the option to retire at the age of fifty-eight years, which should be exercised by him in writing before he attains the age of fifty-seven years. A member who does not exercise such option before he attains the age of fifty seven years, would be deemed to have opted for continuing in service till the superannuation age of sixty years with the liability to compulsory retirement at the age of fifty-eight years;
The Government employee would stand retired immediately on payment three months pay and allowance in lieu of the notice period and will not be in service thereafter."
Rule 5.32-A Vol.II Kumar Vimal "5.32 A. The rule for the grant of retiring pension is as follows:- 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 6
xxx xxx xxx
(c) A retiring pension is also granted to a Government employee other than a class IV Government employee -
(1) Who is retired by the appointing authority by giving him a notice of not less than three months in writing.
(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty-five years, after he has attained the age of fifty years; and
(ii) (a) If he is in Class III service or post; or
(b) If he is in Class I or Class II service or post and entered Government service after attaining the age of thirty-five years, after he has attained the age of fifty-five years; Provided that in the case of a member of the judicial services, a retiring pension shall be granted if he is required to retire at the age of fifty-eight years irrespective of age at the time of entry into Government service subject to ten year qualifying service;
Such Rule has been interpreted by the Courts from time to time. Even this Bench has also examined similar question of premature retirement in Chaman Lal Mohal Vs. High Court of Punjab & Haryana Chandigarh & another (CWP No.13720 of 2013 decided on 12.07.2013), wherein the judgments in Ishwar Chand Jain and Rajendra Singh Verma cases (supra) have been considered as well as many other judgments.
The argument that the petitioner has already completed 55 years of age on 21.04.1999, therefore, his services could not be recommended for premature retirement in December, 2009 is not tenable. Firstly, there is no decision of the Court to allow the petitioner to continue up till the age of 58 years after crossing the bar of 55 years. It is not necessary that the decision of premature retirement has to be taken on or before the Officer attains the age Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 7 of 50, 55 & 58 years as the case may be. The adverse remarks recorded were of the year 2006-07, but the same were confirmed by the Full Court in the year 2009. The decision to premature retire the petitioner has been taken within a reasonable period thereafter. Therefore, no right of the petitioner has been violated only for the reason that decision not to extend the services has been taken not only on attaining the age of 55 years, but 8 months later. Still further, there was no positive decision taken to extend the tenure of the Petitioner on or before the attaining the age of 55 years by High Court. Similar argument has been considered in Rajendra Singh Verma's case (supra). It was held as under:
"60. ...There is nothing in the Delhi Judicial Service Rules or the Delhi Higher Judicial Service Rules or the Indian Administrative Service Rules laying down a prohibition that if the case of an officer for compulsory retirement is considered at the age of 50 years, his case cannot be reconsidered till he attains the age of 55 years. As held by this Court in Government of T.N. Vs. P.A.Manickam (1996) 8 SCC 519, 50 years is only the starting point and not the end point which means that after 50 years at any time case of an officer can be considered for compulsory retirement.
xxx xxx xxx
73. In Government of T.N. Vs. P.A.Manickam (1996) 8 SCC 519, what is ruled by this Court is that the rule permits the appropriate authority to retire any government servant after he has attained the age of 50 years or after he has completed 25 years of qualifying service and the rule prescribes a starting point, which is the attaining of the age of 50 years or the completion of 25 years of service, but it does not prescribed a terminus ad quem and it is, therefore, open to the appropriate authority under the rule to consider the case of a government servant for premature retirement at any time after the aforementioned starting points......"
In view of the aforesaid judgment, we do not find any merit in the argument that the petitioner cannot be considered for premature retirement after he crosses the age of 55 years.
Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 8
In R.C.Chandel Vs. High Court of M.P. (2012) 8 SCC 58, the Supreme Court has culled down the importance of integrity of the Judicial Officers, when it observed to the following effect:
"26. ......The criterion for promotion or grant of increment or higher scale is different from an exercise which is undertaken by the High Court to assess a judicial officer's continued utility to the judicial system. In assessing potential for continued useful service of a judicial officer in the system, the High Court is required to take into account the entire service record. Overall profile of a judicial officer is the guiding factor. Those of doubtful integrity, questionable reputation and wanting in utility are not entitled to benefit of service after attaining the requisite length of service or age.
xxx xxx xxx "29. Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty".
The Supreme Court in Rajendra Singh Verma's case (supra), held that where the Full Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the Judges of the High Court, who go into the question and it is possible that in Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 9 all cases evidence would not be forthcoming about integrity doubtful of a judicial officer. The Court held as under:
"192. Normally, the adverse entry reflecting on the integrity would be based on formulations of impressions which would be the result of multiple factors simultaneously playing in the mind. Though the perceptions may differ, in the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in the confidential rolls to judicial review. Sometimes, if the general reputation of an employee is not good though there may not be any tangible material against him, he may be compulsorily retired in public interest. The duty conferred on the appropriate authority to consider the question of continuance of a judicial officer beyond a particular age is an absolute one. If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ court under Article 226 or this Court under Article 32 would not interfere with the order."
The arguments raised by the learned counsel for the petitioner are required to be examined keeping in view the parameters for exercise of writ jurisdiction against an order of premature retirement.
The judgment in Chandra Prakash Shahi's case (supra), was a case of dispensing with the services of the appellant during the probation period. It was held that the termination was punitive which is based upon an incident in respect of which an enquiry was held. It was observed that if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the services is passed on the basis of that inquiry, the order would be punitive in nature.
Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 10
The reliance of learned counsel for the petitioner on the said judgment is not tenable. An order of termination of services of a probationer amounts to cessation of service, whereas the order of premature retirement of a government servant is not a punishment, but the officer draws pensionary benefits. In Gian Singh Mann Vs. High Court of Punjab & Haryana & another (1980) 4 SCC 266, it has been held that no element of punishment is involved in premature retirement and it is not possible to say that Article 311 is attracted. Similar is the view in State of Gujarat Vs. Umedbhai M. Patel (2001) 3 SCC 314. In the said case, the Supreme Court crystallized the principles relating to compulsory retirement, an expression used as synonymous with the words 'premature retirement'. It was held as under:
"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized 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 entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries 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.Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 11
(vii) If the officer was given a promotion despite adverse entries 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."
The said judgment has been relied upon by Supreme Court in another judgment reported as Swaran Singh Chand's case (supra). In Rajendra Singh Verma's case (supra), the Supreme Court has again reiterated that order of compulsory retirement is not an order of punishment. It was held to the following effect:
"143. Compulsory retirement from service is not considered to be a punishment. Under the relevant rules, an order of dismissal is a punishment laid on a government servant when it is found that he has been guilty of misconduct or the like. It is penal in character because it involves loss of pension which under the rules has accrued in respect of the service already put in. An order of removal also stands on the same footing as an order of dismissal and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for reappointment, one who is removed is. A compulsory retirement is neither dismissal nor removal and differs from both of them, in that it is not a form of punishment prescribed by the rules and involves no penal consequences, inasmuch as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit."
In Ishwar Chand Jain's case (supra), the Supreme Court has found that the adverse remarks recorded in the ACR for the year 1991-92 have to be kept aside for the purposes of consideration the premature retirement of the petitioner. Apart from the said adverse remarks, the service record was found to be not of such a nature so as to premature retire the petitioner therein. Therefore, we find that the principles laid down for the purposes of considering dispensing with the services of a probationer are not applicable to the cases of premature retirement as the order of premature Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 12 retirement passed after considering the entire service record is not an order of punishment.
In view of the distinction between dispensing with the services during probation period and the compulsory/premature retirement, the argument raised by the learned counsel for the petitioner is not tenable. The purpose of order of premature retirement is to chop off dead wood and when the services of a public servant are no longer useful to the general administration of justice and in public interest.
The argument that consideration of discreet enquiries conducted by the District & Sessions Judge (Vigilance) at the time of recording of adverse remarks and also before premature retirement violates the principle of natural justice is again not tenable. Considering the similar argument, the Supreme Court in Rajendra Singh Verma's case (supra), has held to the following effect:
"189. The argument that material was not supplied on the basis of which "C-Integrity Doubtful" was awarded to the appellants and, therefore, the order of compulsory retirement is liable to be set aside has no substance. Normally and contextually the word "material" means substance, matter, stuff, something, materiality, medium, data, facts, information, figures, notes, etc. When this Court is examining as to whether there was any "material" before the High Court on the basis of which adverse remarks were recorded in the confidential reports of the appellants, this "material"
relates to substance, matter, data, information, etc. While considering the case of a judicial officer it is not necessary to limit the "material" only to written complaints or "tangible" evidence pointing finger at the integrity of the judicial officer. Such an evidence may not be forthcoming in such cases.
xxx xxx xxx
193. ..... When even verbal repeated complaints are received against a judicial officer or on enquiries, discreet or otherwise, the general impression created in the minds of those making inquiries or the Full Court is that judicial officer concerned does not carry good reputation, such discreet inquiry and/or repeated verbal complaints would constitute material on the Kumar Vimal 2013.10.31 15:07 I attest to the accuracy and integrity of this document Chandigarh CWP No.23041 of 2011 13 basis of which ACR indicating that the integrity of the officer is doubtful can be recorded. While undertaking judicial review, the Court in an appropriate case may still quash the decision of the Full Court on administrative side if it is found that there is no basis or material on which the ACR of the judicial officer was recorded, but while undertaking this exercise of judicial review and trying to find out whether there is any material on record or not, it is the duty of the Court to keep in mind the nature of function being discharged by the judicial officer, the delicate nature of the exercise to be performed by the High Court on administrative side while recording the ACR and the mechanism/system adopted in recording such ACR."
In the aforesaid judgment, the Supreme Court upheld the recording of adverse remarks in the ACR and also the order of premature retirement on the basis of discreet enquiries. The purpose of such enquiries is not to initiate disciplinary proceedings against an official, but to reassess the performance of an Officer for the purpose of retention in service beyond 55 years. The representation against the adverse remarks was considered by the Committee constituted for the purpose and later by the Full Court. In the collective wisdom of the Committee and later of the Full Court, the entire service record of the petitioner was considered appropriate to premature retire him. Such consideration cannot be said to be vitiated in any manner, warranting interference by this Court in exercise of writ jurisdiction.
Consequently, the present writ petition is dismissed.
(HEMANT GUPTA)
JUDGE
22.10.2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.10.31 15:07
I attest to the accuracy and
integrity of this document
Chandigarh