Om Prakash - (1.) SRI Syed Amjad Ali, an A.S.I. (M) in the Uttar Pradesh Police was retired compulsorily by the order dated 19-3-1976, (Annexure 3 to the petition) by the Superintendent of Police, Etah (S.P) respondent no. 4 which is sought to be quashed by the former in this petition. The petitioner was retired compulsorily when he completed the age of 51 years on the ground of his poor performance which was inferred by the respondent no. 4 from the facts : (1) that the petitioner was visited with petty punishments for the years 1951, 1958 and 1959 ; (2) that his character roll entries for the years 1960, 1961, 1969 to 1972 and 1975 were not satisfactory ; (3) that proceedings under section 7 of the Police Act were initiated against him for the years 1969, 1971 and 1972 for having remained absent from duty unauthorisedly ; and (4) that this over all performance was unsatisfactory and showed misconduct.
(2.) BEFORE the U. P. Public Service Tribunal, the petitioner made submissions that all the adverse entries were not communicated to him ; that whatever entries were communicated to him, representations had been made against them by the petitioner but they were not considered and remained undisposed of; that the Tribunal was not right in having relied on such adverse entries ; that whatever adverse entries were there upto October, 1974 they lost the character of adversity and were rendered ineffective, inasmuch as the recommendation made by the S.P. for his compulsory retirement, was disapproved by the Deputy Inspector General of Police (D.I.G.) by the order dated 31-10-74 ; and that as the recommendation of the S.P. for retiring the petitioner compulsorily was not accepted by the D.I.G on 31-10-1974, the same material could not have been pressed into service by the S.P. in October, 1975 recommending his compulsory retirement again to the Senior Superintendent of Police (S.S.P.), who eventually accepted the recommendation giving rise to the compulsory retirement of the petitioner on 19th March, 1976. The Tribunal considered these submissions of the petitioner and concluded that all the adverse entries had been communicated to the petitioner ; that no representation made by the petitioner against adverse entries remained undisposed of; that the petitioner deserved compulsory retirement on account of his misconduct and inefficiency as reflected in the character roll entries relating to the consecutive years 1969, 1970, 1971 and 1972 coupled with the factors that the petitioner had been visited with petty punishments for the years 1951, 1958 and 1959 and that proceedings under section 7 of the Police Act had been initiated against him for the years 1969, 1971 and 1972 for having remained absent unauthorisedly. The Tribunal nowever, accepted that the adverse entry relating to the year 1975 which was awarded subsequently on 23-6-1976 could not have been made the basis of compulsory retirement and, therefore, the Tribunal read the remaining materials for compulsory retirement. The Tribunal held that the disapproval dated 31-10-1974 by the D.T.G. of the S.P's recommendation for compulsorily retiring the petitioner was of no consequence, as he was neither an appointing authority of the petitioner nor a member of the screening committee which found the petitioner fit for compulsory retirement on account of inefficiency and misconduct. The petitioner aggrieved of the Tribunal's order seeks quashing thereof. At the very out-set, Sri V. B. Singh learned counsel for the petitioner urged that the impugned order deserved to be quashed as that was passed by the S.P. Etah, respondent no. 4, who was not the appointing authority of the petitioner. The petioner was Assistant Sub-Inspector of Police on ministerial duties (for short, the A.S.I. (M)). His duties were confined to the office work and thus he was not equated with the Assistant Sub-Inspector of Police who discharged regular police duties maintaining law and order. No clear provision was shown by learned counsel for the petitioner that the appointing authority of the petitioner was D.I.G. as he is in the case of Sub-Inspectors of Police, when the impugned order was passed. Learned counsel for the petitioner, however, relied on a circular dated 17-4-1986, para 2 of which states that controversy relating to the appointing authority of A.S.I, (M) arose before the Public Service Tribunal in two petitions and then the Tribunal by the orders dated 27-3-1981 and 22-5-1981 decided that the D.I.G. would be the appointing authority of the A.S.I. (M) as he is in the case of the Sub-Inspectors of Police. It is worth noticing that the Public Service Tribunal rendered decisions on much subsequent dates and the Police Department issued the circular on the basis of those decisions on 17-4-86. Ordinarily such circular will operate only prospectively. There is nothing on record to show that similar position obtained on 19-3-1976, when the petitioner was compulsorily retired. It is, however, clear from the circular itself that the D.I.G. was not the appointing authority of the A.S.I. (M) 19-3-1976 as he was in the case of the Sub-Inspectors of Police. If he were so, than there would have been no need to issue such circular and to raise such controversy before the Public Service Tribunal. Therefore, the petitioner's contention in this behalf is wholly unsustainable.
(3.) RAITERATING the view expressed in Union of India v. J. N. Sinha, AIR 1971 SC 40, the Supreme Court held in C. D. Allahabad v. Union of India, AIR 1990 SC 1001, that order of compulsory retirement can be challenged on the grounds :- (1) that requisite opinion has not been formed ; (2) that the decision is bad on collateral grounds ; and (3) that the decision is arbitrary It is seen from the order of the Tribunal that the respondent no, 4 who is appointing authority of the petitioner, formed requisite opinion for compulsorily retiring the petitioner on the basis of adverse entries for the years, 1969, 1970, 1971 and 1972 and the proceedings havings been initiated under section 7 of the Police Act for the years 1969, 1971 and 1972. Besides these materials, the Tribunal also adverted to petty punishments awarded to the petitioner for the years 1951, 1958 and 1959. Adverting to several authorities, the Supreme Court enunciated in Brij Mohan Singh Chopra v. State of Punjab AIR 1987 SC 948, that old and stale entries should not be taken into account while considering the question of premature retirement instead the entries of recent post of 5 to 10 years should be considered in forming the requisite opinion to retire a Government employee in public interest It will be unreasonable and unjust to consider adverse entries of remote past and to ignore the good entries of recent past. The respondent no. 4 having recommended the compulsory retirement of the petitioner on 31-10-1974 to the D.I.G consecutive adverse entries relating to the years 1969 to 1972 and the proceedings initiated under section 7 of the Police Act for the years 1969, 1971 and 1972 all falling within 10 years could have been legitimately considered by the respondent no. 4 to form the requisite opinion regarding inefficiency and misconduct of the petitioner. The law is settled by now that a Government servant can be retired compulsorily if he is proved to be a dead wood on account of inefficiency, misconduct, dishonesty or corruption, What is to be seen is whether from the materials having been considered by the Tribunal, requisite opinion could have been formed by the respondent no. 4 to retire the petitioner compulsorily. Surely, the Tribunal was not right in considering the petty punishments awarded to the petitioner for the years 1951, 1958 and 1959. But then the question will remain whether shorn of these petty punishments, the respondent no. 4 could have formed bonafide opinion regarding the inefficiency and misconduct of the petitioner to retire him compulsorily from service. The Tribunal itself excluded from consideration the adverse entry relating to the year 1975 which was considered by the screening committee to come to the conclusion that the petitioner deserved compulsory retirement, as that was communicated to the petitioner on 23rd June, 1976, that is, after he was compulsorily retired on 19th March, 1976. Adverse entries relating to the years 1969, 1970, 1971 and 1972 and the proceedings under section 7 of the Police Act initiated for the years 1969, 1971 and 1972 falling within ten years will constiture a good basis to form requisite opinion if they really established inefficiency or misconduct of the petitioner. The Tribunal extensively reproduced the -aforesaid adverse character roll entries in its order and found that they had been duly communicated to the petitioner. The record shows that the petitioner was severely warned for having overstayed leave twice in the year 1969. Besides that it is stated by the Tribunal that the date of birth of Bansi Dhar Constable was altered with a view to make him eligible for the test to the post of Head Constable. At the material time, the petitioner and J. P. Kulsrestha, another A.S I. (M) were Character-roll Keepers and both of them handled the character rolls of the police personnels, ft is stated that though manipulation was very obvious but none of them pointed out. Therefore, the authorities had reason to believe that the failure to point out the discrepancy in the record was deliberate and. therefore, the petitioner was severely warned for such misconduct. The respondent no. 4 while making the character roll entry for the year 1969 clearly stated that the petitioner was awarded three misconduct entries, two for over-staying leave period and one for not detecting an interpolation in the character roll,;