Ram Dhari v. State Of Haryana And ORS
LPA No. 1890 of 2018 (O&M) 1
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$" ! Ram Dhari ..Appellant
Versus
State of Haryana and others ..Respondents &* +&
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. Present :
Mr. R.N.Lohan, Advocate, for the appellant.
**** - ,& & . ,% ' This intra court appeal under Clause X of the Letters Patent is directed against the judgment and order of the learned Single Judge dated 27.08.2018 dismissing the writ petition filed by the appellant herein challenging the order dated 02.10.2015 passed by respondent No.41 Superintendent of Police, District Jind. Further relief sought in the writ petition was to quash the adverse entry in the Annual Confidential Report for the period w.e.f. 01.04.2006 to 31.03.2017 as also the order dated 28.01.2009 passed by respondent No.21Director General of Police, Police Head Quarter, Panchkula, Haryana, rejecting the representation made against the adverse entry recorded in the Annual Confidential Report.
LPA No. 1890 of 2018 (O&M) 2 2.
The issue arising for consideration is whether the order compulsory retiring the petitioner is in violation of Rule 9.18(2) of the Punjab Police Rules, Volume11, (adopted and made applicable in State of Haryana).
3.
The issue for consideration noticed hereinabove arises in the backdrop of the following facts:1 The appellant1petitioner was recruited in the Haryana Police as a Constable on 07.12.1986 and was promoted upto the rank of the Sub Inspector. He was communicated regarding adverse entry of 'honesty being doubtful' recorded in his ACR for the period 01.04.2006 to 31.03.2007 vide letter dated 27.08.2007. A representation dated 28.09.2007 was made by the appellant1petitioner before respondent No.31Inspector General of Police, Hisar Range, Hisar, which was rejected vide order dated 28.05.2008. Another representation was made before respondent No.2, Director General of Police, Police Head Quarter, Panchkula, Haryana, which also came to be rejected vide order dated 28.01.2009. The appellant made yet another representation dated 17.03.
2009 before respondent No.11Financial Commissioner and Principal Secretary to Government of Haryana, Home Department, which according to him remains undecided. Subsequently he was served with a three months notice dated 16.07.2015 for retirement from service and finally vide the impugned order dated 02.10.2015 he was retired from service.
4.
The learned Single Judge vide order impugned in this intra court appeal dismissed the writ petition holding that since the appellant1 petitioner has retired on attaining the age of 55 years, as such the sanction from the State Government was not required and there was no violation of
LPA No. 1890 of 2018 (O&M) 3 the Punjab Police Rules and the subsequent representation dated 17.03.2009 since was not statutorily provided, hence it was not required to be decided. 5.
Learned counsel for the appellant contends that the learned Single Judge has erred in law in holding that no previous sanction of the State Government was required before compulsorily retiring the appellant and the conclusion arrived at is based on misinterpretation of Rule 9.18 of the Punjab Police Rules. It is further submitted that the action of the respondents in retiring the appellant1petitioner pre1maturily merely on the basis of adverse entry in the ACR is arbitrary, discriminatory, illegal, unconstitutional and in violation of the Punjab Police Rules. It is next submitted that the order of pre1mature retirement during the pendency of the representation of the appellant1petitioner before respondent No.1 against the adverse entry in the ACR could not have been passed till final disposal of the representation.
6.
We have considered the arguments advanced by learned counsel for the appellant and perused the record. 7.
For an effective adjudication of the issue raised before us, it may be relevant to reproduce the provisions of Rule 9.18 of the Punjab Police Rules, which reads as under:1 "Rule 9.18 reads as follows:- [9.18. Retiring pension. (1) Notwithstanding anything contained in these rules, a retiring pension is granted to an officer (a) who is permitted to retire from service after completing qualifying service of twenty-five years or such lesser period of as may, for any class of officers, be prescribed; or (b) who is compulsorily retired under sub-rule (2) after completing twenty-five years' qualifying service; or (c) who is retired by the appointing authority on or after he attains the age of 55 years, by giving him not less than three months' notice; or (d) who retires on or after attaining the age of 55 years by giving not less than three months' notice of his intention to retire to the appointing authority.
LPA No. 1890 of 2018 (O&M) 4 Provided that where the notice is given before the age of fifty-five years so attained, it shall be given effect to from a date not earlier than the date on which the age of fifty five years is attained. Note:- Appointing authority retains an absolute right to retire any Government servant on or after he has attained the age of 55 years without assigning any reason. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years.
(2)The Inspector-General of Police may, with the precious approval of the State Government, compulsorily retire any Police Officer, other than an officer belonging to Indian Police Service or Haryana State Police Service who has completed twenty-five years' qualifying service, without giving any reasons. An officer who is so compulsorily retired will not be entitled to claim any special compensation for his retirement. Note:- The right to retire compulsorily shall not be exercised when it is in the public interest to dispense with the further services of an officer on grounds such as inefficiency, dishonesty, corruption or infamous conduct.
Thus the rule is intended for use- (i) against an officer whose efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient i.e., when as officer's value is clearly incommensurate with the pay which the draws but not to such a degree as to warrant his retirement on a compassionate allowance. It is not the intention to use the provisions of this rule as a financial weapon that is to say the provisions should be used in only the case of an officer who is considered unfit for retention on personal as opposed to financial grounds.
(ii) (ii) in case where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific instance is likely to be proved.
Note 2:- The officer shall be given an adequate opportunity of making any representation that he may desire to make against the proposed action and such representation shall be taken into consideration before his compulsory retirement is ordered. In all cases of compulsorily retirement of enrolled police officers, the Inspector-General of police shall effect such retirement only with the previous approval of the State Government in accordance with the instructions, if any, issued by the Government on the subject from time to time.
Note 3:- The officer whose duty it would be to fill the post if vacant, shall record his orders on the application to retire, which, if in vernacular, should be accompanied by a translation in English. If the officer who applies
LPA No. 1890 of 2018 (O&M) 5 for pension is permitted to retire, the application shall be forwarded with the pension papers."
8.
A bare perusal of Rule 9.18 quoted hereinabove goes to show that it makes a provision for payment of pension to a retiring employee in three contingencies:1 i) An employee who is permitted to retire from service after completing qualifying service for 25 years or such lesser period as may, for any class of officer be prescribed; or ii) who is compulsorily retired under sub1rule (2) after completing 25 years of qualifying service; or iii) who is retired by the Appointing Authority on or after he attains the age of 55 years by giving him not less than three months' notice.
Likewise a police official can also seek retirement after attaining the age of 55 years by giving notice of three months of his intention to retire. The note appended to the Rule 1 makes it abundantly clear that the Appointing Authority has an absolute right to retire any police official on or after he attains the age of 55 years without assigning any reason. The corresponding right is available to the police official to seek retirement on or after he attains the age of 55 years. Thus Rule 9.18 of the Rules itself carves out a distinction between retirement of a police officer at the age of 55 years and compulsory retirement on completion of 25 years of qualifying service, the first being postulated in Sub Rule 1(C ) and second in Sub Rule 2.
9.
It is only in case of compulsory retirement under Sub Rule (2) the previous approval of the State Government is required. Different procedure envisaged in the contingency of retirement of a police official on
LPA No. 1890 of 2018 (O&M) 6 attaining the age of 55 years or at any time thereafter and retirement of a police official on completion of 25 years of qualifying service admits no ambiguity.
10.
Note appended to Sub Rule 1 makes it abundantly clear that for retiring a police official on or after he attains the age of 55 years, whosoever may be the Appointing Authority, has an absolute right of retiring him without assigning any reason. Any previous sanction from the Government is not stipulated in this contingency. However, if the police official is to be retired on completion of 25 years of service, then sub rule (2) comes into operation which empowers the Inspector General of Police to compulsory retire the police official only after seeking previous sanction of the State Government.
11.
In the case in hand it is undisputed that the appellant1petitioner had attained the age of 55 years and the impugned three months notice dated 16.07.2015 for retirement was issued to him in exercise of the powers conferred by Rule 9.18(1)(C) of the Punjab Police Rules, Volume11. 12.
The irresistible conclusion in the facts and analysis of Rule 9.18 is that there was no requirement of any previous sanction from the Government and notice was validly issued and the impugned order 02.10.2015 retiring the appellant1petitioner from service is not visited with any illegality for want of any previous sanction from the State Government. Thus the first argument advanced by learned counsel for the appellant does not merit any consideration.
13.
In so far as the submission advanced with respect to retirement on the basis of only one adverse entry in ACR being bad in law and illegal is also without any substance. A perusal of the adverse remarks recorded in the ACR of the appellant1petitioner for the period from 01.04.2006 to
LPA No. 1890 of 2018 (O&M) 7 31.03.2007 specifically shows that his integrity during the period is doubtful. It is well settled that if integriry of an employee is in doubt even once, then such employee is a dead wood needing to be chopped off, in larger public interest. The proposition stands well settled by the pronouncement of the Hon'ble Apex Court in the case of
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The Hon'ble Apex Court after reviewing the earlier case laws on the subject carved out the following five propositions in paragraph 34 of the reports.
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LPA No. 1890 of 2018 (O&M) 8 14.
The issue of compulsory retirement of an employee after he attains the age of 55 years by giving three months' notice without assigning any reason has again been the subject matter of consideration before the Hon'ble Apex Court in ! "# $ % %
&& ' " () In the said case the consideration was being made of Regulation 12 of the Indian Airlines Employees Service Regulations which is almost para1materia to Rule 9.18(C) of the Punjab Police Rules. It may be relevant to extract Regulation 12 of the Indian Airlines Employees Service Regulations which reads as under:1
Analyzing the aforesaid Rule, the Hon'ble Apex Court observed as under:1
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LPA No. 1890 of 2018 (O&M) 9 "
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The third argument advanced by learned counsel for the appellant that the order of compulsory retirement could not have been passed during pendency of the representation made against the adverse entry in the ACR has also no legs to stand. It is undisputed that the representation made by the appellant1petitioner against the adverse remarks was rejected by respondent No.31Inspector General of Police vide order dated 28.09.2007. The instructions dated 22.03.1971 issued by the State Government in respect of making representation against an adverse ACR provide only one opportunity of making a representation and the decision thereof has not only been attributed finality but the second representation against the adverse remarks has specifically been barred. It may be apt to reproduce the relevant instructions:1 $ *
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Even though the decision on the first representation was final, still another representation dated 27.06.2008 made by the appellant1 petitioner was entertained and rejected by the Director General of Police,
LPA No. 1890 of 2018 (O&M) 11 Haryana, an authority superior to respondent No.31Inspector General of Police. The third representation made by the appellant1petitioner is not statutorily provided and an unsolicited and non1statutory representation cannot be made the basis for postponing the decision in respect of the compulsory retirement nor pendency of any such representation would vitiate any decision taken by the employer in this regard. 17.
The challenge made to adverse entry and the orders rejecting the representation must also fail for the simple reason that it has been made after inordinate delay of almost more than 10 years and thus the same is barred by delay and latches.
18.
The impugned order compulsory retiring the appellant1 petitioner on attaining the age of 55 years when tested on the touch stone of the test and principles discussed hereinabove carved out from various pronouncements of the Hon'ble Apex Court as also the Rule itself, the inescapable conclusion is that it is valid and not open to challenge. 19.
Thus there exists no infirmity or illegality in the impugned judgment passed by the learned Single Judge in dismissing the writ petition which may require any interference.
The appeal accordingly fails and stands dismissed. (KRISHNA MURARI) CHIEF JUSTICE (ARUN PALLI) JUDGE 22.01.2019 Whether speaking/reasoned √Yes/No Whether reportable √Yes/No