- (1.) TARUN Agarwala, J. The petitioner was appointed as an Assistant Sub Inspector on 12thjanuary, 1974 and, in January, 1984, was promoted as a Sub Inspector. In December, 1990, the petitioner was promoted as an Inspector (Executive ). By an order dated 3/4th June, 2002, the Inspector General, Central Industrial Security Force, North Sector, New Delhi issued an order under Rule 56 (j) of the Fundamental Rules compulsorily retiring the petitioner from the service. The petitioner, being aggrieved by the said order, has filed the present writ petition.
(2.) HEARD Shri Ashok Khare, the learned Senior Counsel, assisted by Shri Siddharth Khare for the petitioner and Shri Ashok Singh, the learned Counsel appearing for the respondents. The learned Counsel for the petitioner submitted that the order was arbi-trary and that no reasonable person could form an opinion for compulsorily retire-ment on the basis of the materia? available on the service record of the petitioner. It was also alleged that the petitioner had been awarded a minor punishment, which was of a temporary nature and had lost its efficacy with the passage of time. Further, such penalties which was awarded, could not be taken into consid-eration while considering the matter under Rule 56 (j) of the Fundamental Rules. In support of his submissions, the learned Counsel placed reliance upon a catena of decisions, viz. , M. S. Bindra v. Union of India, (1978) 7 SCC 310; Hans Raj v. State of Punjab, (1985) SCC 134; H. C. Garg/v. State of Haryana, (1986)4scc 158; Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299; B. D. Arora v. Secretary, Central Board of Direct Taxes, 1998 Supp. (2) SCC 98; High Court of Punjab, Haryana v. Ishwar Chand Ja/n, (1999) 4 SCC 579; Bhoop Narain Tiwariv. Uptron India Ltd. , (2001) 4 AWC 2480; and Tritokinath Maim v. State of U. P. , 2002 (5) ESC 307; and M. L Binjolkar v. State of U. P. , Madhya Pradesh, 2005 (5) ESC 164. The respondents have filed a counter affidavit stating that the petitioner's over all service record, including gradings of annual confidential report was taken into account for consideration of his suitability and the same was found unsatis-factory and was not found fit for further retention in service in public interest. Further, the respondents submitted that the order prematurely retiring the peti tioner was based on the materia? found in the service record of the petitioner. The respondents contended that seven entries were found in his service record, viz. , (1) Censure in the year 1979 for negligence of duty; (2) Censure in the year 1980 for misconduct, indiscipline and disobedience; (3) Censure in the year 1983 for gross indiscipline and misconduct; (4) Major penalty of reduction in pay for indis cipline, disobedience of lawful orders and absenting from duty, wcte fina? order dated 3. 9. 1996; (5) Recorded warning for breaking lock of Guest House, wcte order dated 20. 7. 1997; (6) Two days pay fine for overstay wcte order dated 25. 5. 2000; and (7) Withholding of incrementfora period of one year withoutcu-mulative effect for submission of a complaint directly to the DG/cisf making false allegation about genera? administration and CISF staff, wcte fina? order dated 15. 12. 1999. Consequently, the learned Counsel for the respondents submitted that there was sufficient materia? available which was considered by the authorities and itwasfound that the petitionerwas notfitforfurtherretention in service in public interest. The order of premature retirement was passed after considering the over all service record of the petitioner.
(3.) THE learned Counsel for the petitioner in rejoinder affidavit submitted that the censure entries made in the years 1979,1980 and 1983 were nevercommu-nicated to the petitioner, and that in any case, the censure entries lost its sting, mor? so, after the petitioner was promoted in the years 1984 and 1990. Further, the other penalties imposed in the years 1996, 1999 and 2000 was for a limited period, which came to an end upon the expiry of its period, and therefore, the adverse entries recorded in the service record could not be taken into consider-ation. Assuming without admitting that the said entries could be taken into con-sideration, the learned Counsel submitted that the entries were such that no reasonable person could form an opinion holding that the petitioner was not fit for further retention in service in public interest, and therefore, the said order of pre mature retirement was arbitrary and was liable to be set aside. In Baikuntha Nath Das (supra ). the Supreme Court laid down the prin-ciples with regard to premature retirement of a Government employee. The Su preme Court in paragraph 34 held : "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) ma?a 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 reguisite opinion on the given materia?; 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 mor? importance to record of and perfor-mance 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 notwith-standing the adverse remarks, such remarks lose their sting, mor? 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 can-not be a basis for interference. ";