Rajasthan High Court - Jodhpur
State & Anr vs Roop Singh & Anr on 26 February, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2670 / 2016
1. State of Rajasthan through the Principal Secretary, Home
Department, Government of Rajasthan, Jaipur.
2. Superintendent of Police, Jalore (Raj.)
----Petitioner
Versus
1. Roop Singh S/o Late Shri Chaman Singh (since deceased)
through his Legal Representatives:
1/1. Smt. Ugam Kanwar Wd/o Late Shri Roop Singh, aged
about 55 years resident of Solankiyo Ka Bas, Siwana, District
Barmer (Raj.)
1/2. Mahendra Singh S/o Late Shri Roop Singh, aged about
33 years, resident of Solankiyo Ka Bas, Siwana, District
Barmer (Raj.)
1/3. Smt. Rasal Kanwar W/o Shri Mahendra Singh &
Daughter of Late Shri Roop singh, aged about 40 years,
resident of Balwada, District Jalore.
1/4. Smt. Abu Kanwar, W/o Shri Hathe Singh & Daughter of
Late Shri Roop Singh, Aged about 35 years, resident of
Valiyana, District Jalore.
1/5. Smt. Gulab Kanwar-daughter-in-law of Late Shri Roop
Singh, aged about 45 years,
1/6. Santosh Kanwar grand daughter of Late Shri Roop
Singh, aged 19 years.
1/7. Chhota Kanwar-grand daughter of Late Shri Roop Singh,
aged about 18 years.
1/8. Uma Kanwar- grand daughter of Late Shri Roop Singh,
aged about 17 years.
1/9. Bhagu Kanwar-grand daughter of Late Shri Roop Singh,
aged 12 years.
1/10. Panchavahan Singh- grand son of Late Shri Roop
Singh, aged about 19 years,
Nos. 5 to 10 all resident of Solankiyo Ka Bas, Siwana, District
Barmer.
2. Rajasthan Civil Services Appellate Tribunal, Jaipur, Circuit
Bench, Jodhpur through its Registrar.
----Respondent
(2 of 11)
[CW-2670/2016]
_____________________________________________________
For Petitioner(s) : Mr. Anil Bissa, AGC
For Respondent(s) : Mr. Moti Singh
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 26/02/2018
1. The petitioners have preferred this writ petition claiming the following reliefs:
"i. The impugned order dated 02.06.2015 passed by the learned Tribunal in Appeal No.80/2005 Roop Singh Vs. S.P. Jalore may kindly be quashed and set aside and the appeal filed by the respondent/appellant may kindly be dismissed throughout with costs; ii. During the pendency of the writ petition the effect and operation of the impugned order dated
02.06.2015 (An.3) passed by the learned Tribunal/respondent No.2 may kindly be stayed. iii. Any other appropriate relief(s) which this Hon'ble Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners"
2. The respondent was serving with the petitioner and received promotion of Head Constable on 01.07.1979 and thereafter on the post of Assistant Sub Inspector on 04.06.1996.
The respondent was given punishment of censure on 30.09.1977 on account of disobeying the higher authorities. Again the punishment of censure was given on 15.12.1982 for improper entries in the diary. The third punishment of censure was given on 21.12.1983, the necessary information regarding the Anti Corruption case being not furnished by the respondent. The fourth punishment censure was given on 25.07.1989 on account of the petitioner not entering the section of offence while holding the (3 of 11) [CW-2670/2016] post of Head Constable at P.S. Jaswantpura. The fifth punishment of censure was given on 03.09.2002 for not completing the investigation in time and the sixth punishment of censure was given on 19.09.2002 for not filling the details in the weekly dairy as required. The order of compulsory retirement was passed on 20.07.2005, which was challenged by the respondent and the leaned Tribunal passed an order in favour of the respondent on 02.06.2015 in Appeal No.80/2005 whereby, the order of compulsory retirement was quashed. The respondent has challenged the order of the learned Tribunal on the ground that the respondent had suffered a FIR No.328/2003 dated 24.12.2003 under Section 7, 13 (1)(d)(2) of PC Act, 1988 and trial was pending against him.
3. Learned counsel for the petitioner has also pointed out another case against the respondent registered vide FIR No.02/83 under Section 161 of IPC along with Section 5(1) of PC Act, 1988 at Sirohi.
4. Learned counsel for the petitioner has pointed out that the service record was examined and after due consideration, a lawful order of compulsory retirement has been passed. Learned counsel for the petitioner has assailed the impugned order passed by the Tribunal on the ground that the pendency of the Anti Corruption cases have not been appropriately considered by the Tribunal while quashing the order of compulsory retirement.
5. Learned counsel for the respondent has pointed out the compulsory retirement order dated 20.07.2005 and has stated that it is mechanically passed order without application of mind (4 of 11) [CW-2670/2016] and does not contain any reason as to why the Section 53 (1) of the Rajasthan Civil Services (Pension) Rules, 1996 was required to be invoked.
6. Learned counsel for the respondent has further drawn attention of this Court to the circular on record dated 20.07.2001, in which, the State Government has laid down the parameters of compulsory retirement.
7. Learned counsel for the respondent has pointed out that as per the circular, the respondents were not required to take the minor charges and adverse remarks not having any serious beaing in consideration.
8. Learned counsel for the respondent has stated that the pending departmental enquiries and criminal proceedings were also not to be taken in to account as the same may have gone in favour of the respondent.
9. Learned counsel for the respondent has shown from the impugned order that the learned Tribunal had observed that first four censures were more than 15 years prior to the date of compulsory retirement and the last two censures were of year 2002 in which allegations were of very trivial nature.
10. Learned counsel for the respondent has also pointed out that the respondent was given promotion on 01.07.1979 and thereafter on 04.06.1996 and hence, the previous censures stood watered down in light of the promotion given to the respondent.
11. Learned counsel for the respondent has also stated that the respondent has expired and his wife is contesting the present (5 of 11) [CW-2670/2016] writ petition as a legal representative.
12. Learned counsel for the respondent has relied upon the precedent law laid down by the Hon'ble Apex Court in Baikuntha Nath Das and Anr. Vs. Chief District Medical Officer reported in 1992 AIR 1020. The relevant portion of the judgment reads as under:
"32. 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) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(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 (6 of 11) [CW-2670/2016] 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 uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above."
13. Learned counsel for the respondent has relied upon the precedent law laid down by this Hon'ble Court in State of Raj. & Anr. Vs. Tej Singh Shekhawat reported in 2008(4) WLC 135. The relevant portion of the judgment reads as under:
"4. Having heard the earned Counsel for the parties and perused the impugned order and also the other material forming part of the record, we find that though there were three adversities against the respondents in the shape of minor penalties, one of withholding of one grade increment vide order dated 3.12.1988 and second and third, both of censure, by two different orders passed on the same date i.e. 31.10.1991, even then the petitioner was promoted within two years of date of last two penalty orders dated 2.9.1993, against the vacancies of the year 1993-94, though of course, subject to review or revision. This promotion of the respondent was later on confirmed by order dated 14.2.1995. While therefore the adversities referred to supra, were very much on record, the respondent was granted promoted within two years thereof. He has thereafter served the appellants till 12.6.1998 when the order of compulsory retirement has been passed. Nothing has been brought on record that after promotion of the respondent in the year 1993, any adverse remark or any order of penalty, whether major or minor, was ever passed/imposed against the respondent. In other words, the respondent served the appellants from (7 of 11) [CW-2670/2016] the date of promotion i.e. 2.9.1993 till he was ordered to be compulsorily retired i.e. 12.6.1998 and he had been having unblemished service record during all that period. The Supreme Court in Baikuntha Nath Das, supra has clearly held that 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. It was held that 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. Here in the present case, the respondent in later years of service starting from the date of promotion till he has retired compulsorily, he does not have any single adversity against him. The argument that the promotion was seniority based and not merit based and therefore the competent authority was justified in arriving at the satisfaction that the respondent had become a dead wood to be chopped off, cannot be appreciated because even if the promotion is made merely on the basis of seniority, the fact remains that if the respondent having gained the promotion, served the appellants for more than 5 years thereafter and not a single adversity was reported against him, that is certainly a factor which should weigh in his favour. The Supreme Court therefore clearly held in Baikuntha Nath Das, supra, that while considering the entire service record, more importance has to be attached to the record and performance of the government servant during the later years. While analyzing entire major previous case law on the subject, the Hon'ble Supreme Court in Baikuntha Nath, supra held that there is no reason to presume that the competent authority who retires a Government servant will not act bona fide or will not consider the entire record dispassionately but such authority should form its opinion on the totality of consideration of the entire record, of course, attaching more importance to later period of his (8 of 11) [CW-2670/2016] service. The Supreme Court in the said case formulated five principles of law and one of them is that the principles of natural justice have no place in the context of an order of compulsory retirement. This does not however mean that the judicial scrutiny is excluded altogether. While the High Court or the Supreme Court would not examine the matter as an appellate Court, they may nevertheless interfere with such order, however if they are satisfied that the order passed is (a) malafide or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material. In other words, if it is found to be a perverse order."
14. Learned counsel for the respondent has further relied upon the precedent law laid down by this Hon'ble Court in Laxmi Lal Maheshwari Vs. State & Ors. reported in 2014 (3) WLC (Raj.) 89. The relevant portion of the judgment reads as under:
"17. The findings of the criminal court clearly show that figure 9 was added by somebody else in the Treasury Office, where the Bill was taken by peon Man Singh and after passing of the Bill, even money was paid to one Shri Rajendra Kumar Sharma and not the petitioner as was given in the statement of the Bank Official P.W.10 -Karan Singh examined by the Court. The Bank Official would have very well known the present petitioner, who was working as a Cashier cum UDC in the respondent Department and on several occasions was expected to go to the Bank for having transactions of the said respondent Department, therefore, said Bank Official would not have stated before the Court that the payment in question was not made to the petitioner but to some Rajendra Kumar Sharma. Therefore, in the absence of the any cogent material against the petitioner and in view of the complete exoneration and acquittal of the petitioner from the said offence, this Court is of the considered opinion that the punishment of compulsory retirement was absolutely harsh and uncalled for and the appellate authority miserably (9 of 11) [CW-2670/2016] failed in appreciating the developments in judicial court in the case of the petitioner, even though the appellate authority passed the order on 1/7/1997, and the judgment of the criminal court acquitting the petitioner on 17/4/1996 was very much available and placed before him and referred in the impugned order dated 1/7/1997. Therefore, the said order reiterating the order of disciplinary authority in a parrot like manner shows total non-application of mind on the part of appellate authority."
15. Learned counsel for the respondent has further relied upon the precedent law laid down by this Hon'ble Court in Laxman Singh Rana & 3 Ors. Vs. The State of Rajasthan & Ors. reported in 2011(2) WLC 417. The relevant portion of the judgment reads as under:
"27. Moreover, in present case, none of petitioners had any order of penalty against them during entire service career nor were they communicated any adverse remarks. There was no other adverse material against them. They were both granted benefit of selection scales on completion of 18 and 27 years of service, respectively, for which concerned government servant should have satisfactory service record. When both the petitioners had such a clean and unblemished service record for last almost three decades and especially when two impugned penalty orders passed against each of them have been found to be unsustainable in law, it cannot be said that there was any adverse material against them. The order of compulsory retirement passed in the case of petitioners must be held to have been passed in colourable exercise of power in most arbitrary and capricious manner in as much as no reasonable person on such material could have arrived at a decision to compulsory retire the petitioners because on such material it could not be concluded that petitioners had otherwise become deadwood to be chopped off or had become liability to service."
16. Learned counsel for the respondent has also relied (10 of 11) [CW-2670/2016] upon the precedent law laid down by this Hon'ble Court in Mangi Lal Vs. State of Rajasthan & Ors. reported in 2010(4) WLC (Raj.) 196. The relevant portion of the judgment reads as under:
"18. It is true that employee cannot object to compulsory retirement if his service record is bad but, here, in this case, although 18 minor punishments were inflicted against the petitioner right from the year 1980 to 1996 for 18 times; but, it is also one of the important facts that in the total service tenure the petitioner was promoted twice, lastly on 05.10.1995; and, thereafter, in subsequent five years, his ACRs were outstanding, satisfactory, good and, for one year, assessment of his service was unsatisfactory for the year 1999-2000. All these aspects of the matter were required to be considered at the time of taking final decision because statutory body i.e., the D.P.C. found the petitioner entitled to be promoted to the post of Assistant Sub Inspector in the year 1995; and, thereafter for 4 years his service record was found outstanding, good and satisfactory and only for one year his work was not found satisfactory. This aspect of the matter was not considered while passing the impugned order."
17. After hearing learned counsel for the parties and perusing the record of the case as well as the precedent law cited, this Court is of the opinion that the order passed by the Tribunal is well reasoned and justified as four out of six punishments under consideration are censures passed more than 15 years before the impugned order of compulsory retirement was passed and rest two are very trivial nature. Moreover, learned Tribunal has taken into account the promotion given to the respondent on the post of Assistant Sub Inspector on 04.06.1996.
18. This Court also perused the circular dated 20.07.2001 of the State of Rajasthan, which requires following the precedent (11 of 11) [CW-2670/2016] law of Baikunth Nath Das (supra), relevant portion of which has already been reproduced and which calls that the competent authorities should not form its opinion on the basis of pending cases and charges or adverse remarks ought to be of serious in nature. In the present case, the anti corruption cases were pending and could not be read against the respondents and the other entries were not sufficient to carry through the burden of the impugned order of compulsorily retirement. On the face of it, there is no illegality in the impugned order passed by the learned Tribunal and the present petition does not call for any interference.
19. Consequently, the present petition is dismissed. However, it is made clear that the respondent shall be entitled for notional benefits of her late husband for the period when he has not rendered his services.
(DR. PUSHPENDRA SINGH BHATI)J. zeeshan/