Punjab-Haryana High Court
State Of Haryana And Others vs Bhopal Singh on 16 December, 2008
Author: Jora Singh
Bench: Jora Singh
L.P.A.No. 504 of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
L.P.A.No. 504 of 2002.
Date of Decision : 16.12.2008.
State of Haryana and others
Appellants.
VERSUS
Bhopal Singh
Respondent.
CORAM : HON'BLE MR. JUSTICE M.M.KUMAR.
HON'BLE MR. JUSTICE JORA SINGH.
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Present:- Ms. Palika Monga, Assistant Advocate
General, Haryana, for the appellants.
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1.Whether Reporters of Local Newspapers 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?
M.M.KUMAR,J.
The State of Haryana has filed this appeal under Clause X of the Letters Patent against the judgment and order dated 27.8.2001 passed by learned Single Judge, quashing order dated 27.11.1985 compulsorily retiring the petitioner-respondent from the post of Sub Inspector at the age of 55 years.
Facts, in brief, necessary for disposal of the controversy raised in the appeal are that the petitioner was enrolled as a Constable on 29.11.1952. He was promoted as Assistant Sub Inspector on 16.11.1970 and then promoted as L.P.A.No. 504 of 2002 2 Sub Inspector with effect from 19.6.1984. He was awarded entries doubting his integrity in the year 1972-73 and 1973-
74. Accordingly, the appellant-State of Haryana had retired him compulsorily on attaining the age of 55 years on 27.11.1985. The learned Single Judge accepted the argument of the petitioner-respondent that the adverse remarks including the remarks regarding his integrity before his promotion as Sub Inspector could not be taken into consideration. The learned Single Judge has also found merit in the contention that the remarks with regard doubtful integrity earned for the year 1972-73 and 1973-74 were completely watered down once the petitioner was allowed to continue in service after rendering 25 years of qualifying service when he could be pre-maturely retired in the year 1977. He was further promoted as Sub Inspector in the year 1984. Therefore, the learned Single Judge held that the sting of the adverse remarks doubting his integrity has completely wiped out by virtue of promotion given to the petitioner on 19.6.1984 as Sub Inspector and his continuation on completion of 25 years of service in the year 1977.
The short issue which has been raised by the learned State counsel in the instant appeal is 'whether the entries concerning doubtful integrity would loose its significance after allowing the Officer to continue when he has completed 25 years of service especially after he has been given further promotion to the higher post'. The answer L.P.A.No. 504 of 2002 3 to the aforementioned question is available in the ratio of the judgment given by the Hon'ble Supreme Court in the case of Shri Baikuntha Nath and Anr v. Chief District Medical Officer, Baripada and Anr 1992 (2) SCC 299. The Supreme Court after considering a catena of judgments has laid down the following preposition:-
" 34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) & (iii) xxx xxx xxx
(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) xxx xxx xxx
L.P.A.No. 504 of 2002 4
The aforementioned judgment of the Supreme
Court was considered in some details by a Full Bench Judgment of this Court in the case of Punjab State and others v. Kulwantbir Singh, 1993 (2) Recent Services Judgment 307. The IVth legal proposition laid down by the Supreme Court in Shri Baikuntha Nath's case (supra)., it has been specifically laid down that the Government has to consider the entire record of service before taking a decision to retire an officer compulsorily. It has further been held that more importance has to be attached to the service record and performance rendered during the later year. 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 merits (selection) and not upon the seniority alone. The aforementioned principle has been re- iterated by the Hon'ble Full Bench of this Court in Kulwantbir Singh's case (supra).
When the aforementioned principles are applied to the facts of the present case, it becomes evident that integrity of the petitioner was doubtful for a short period from 2.12.1972 to 31.3.1973 (Annexure R-3) and in the 'Column of Honesty', the remarks recorded were that 'his reputation for honesty is bad in the illaqa'. Likewise, for the whole year from 1.4.1973 to 31.3.1974, his honesty has been assessed as doubtful (Annexure R-4). We have also perused the original record of the officer which include confidential report file and Character Rolls. The original record shows that subsequent L.P.A.No. 504 of 2002 5 to the year 1973-74, the performance of the Officer has been recorded as good or very good. There is no adverse entry in his subsequent record or any entry doubting his integrity. It is true that a Government Officer/servant can be compulsorily retired when he has completed 25 years of service or on attaining the age of 55 years. The petitioner who had joined service in the year 1952 completed 25 years service in the year 1977. He had earned two entries of doubtful integrity for the year 1972-73 and 1973-74, yet in 1977, he was not compulsorily retired. The matter does not end there, the writ- petitioner was given promotion with effect from 9.6.1984 as Sub Inspector. Therefore, applying the IVth legal propositions laid down in the judgment rendered in Shri Baikuntha Nath's case (supra), we are of the view that the learned Single Judge did not commit any error in law while quashing the order of compulsorily retirement dated 27.11.1985. A perusal of his service record after 1974-75 would show that he has earned good or very good reports.
It is appropriate to consider the service rule concerning the promotion of the petitioner-respondent. His promotion is regulated by Rule 13.1 of the Haryana Police Rules,1934, which reads as under:-
"13.1. Promotion from one rank to another:-
(1) Promotion from one rank to another and from one grade to another in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the L.P.A.No. 504 of 2002 6 main factors governing selection. Specific qualifications, whether in the nature of training courses passed or practical experience, shall be carefully considered in each case. When the qualifications of two officers are otherwise equal, the senior shall be promoted. This rule does not affect increments within a time-scale."
A perusal of the Rule shows that promotion from one rank to another and from one grade to another in the same rank is required to be made by selection tempered by seniority. It further points out that efficiency and honesty are the material factors to be considered for selection and promotion to the higher post. According to Rule 13.1, List E of Assistant Sub Inspector approved by the Deputy Inspector General is kept ready for promotion by Deputy Inspector General of Police. Therefore, it cannot be said that promotion given to the petitioner on the post of Sub Inspector on 19.6.1984 was not based on merit because it involves element of selection and the promotion is not on the basis of seniority alone. Moreover, the rule specifically required to keep efficiency and honesty of the official in view.
The question with regard to weakening of remarks concerning doubtful integrity after promotion was again considered by the Supreme Court in the case of Badrinath v Government of Tamil Nadu (2000) 8 SCC 395. After a detailed examination of a catena of judgments the Supreme L.P.A.No. 504 of 2002 7 Court laid various propositions. The proposition No.5 laid down in para 5 which is relevant to the controversy in hand reads thus:-
"If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether." (emphasis added) It is true that remarks with regard to doubtful integrity may not entirely loose their sting yet in the present case the rule dealing with promotion of the petitioner has provided that efficiency and honesty have to be main factors governing selection from one rank to another and the petitioner was given promotion on the post of Sub Inspector, it would, therefore, be difficult to accept that remarks with regard to integrity did not loose their sting. The Supreme Court in the case of Baldev Raj Chadha v. Union of India (1980) 4 SCC 321 has laid down that if an officer has rendered 14 years of service with some adverse remarks in the initial year of service then he could not be compulsorily retired if during the preceding 5 years, his service record was graded as good or very good. In other words more importance has to be attached to the record and Annual Confidential Report of the preceding five years of the date of retirement instead of the entries which were recorded long L.P.A.No. 504 of 2002 8 years ago. This consideration appears to have prevailed with the Promotion Committee in the year 1984, therefore, the adverse remarks doubting his integrity for the year 1972-73 and 1973-74 have been rightly ignored as a very weak material. Once the aforementioned position is kept in mind then no doubt is left that the learned Single Judge has committed no error in law by allowing the petition of the petitioner-respondent.
As a sequel to the above discussion, we find no merit in the Appeal filed by the State of Haryana and the same is dismissed.
(M.M.KUMAR )
JUDGE
16.12.2008 ( JORA SINGH)
Anoop JUDGE