Nathoo Singh Rathore v. District Development officer
1991-05-17
B.M.LAL
body1991
DigiLaw.ai
JUDGMENT B.M. Lal, J. - This petition is directed against the order dated 31-2-1989 (Annexure 1 to the petition) communicated to the petitioner on 6-1-1990 whereby the petitioner was forced to retire prematurely. In short, the case of the petitioner is that he was appointed as a Gram Sewak by the order dated 22-10-1962 passed by the respondent and since then he is discharging his duties efficiently and his work was also commended from time to time by his superior officers and on 1-7-1982, he was granted Selection and Super Selection Grade. This shows that till 1-7-1982, the petitioner's integrity has neither been withheld nor been doubted in any manner. However, by issuing the order contained in Annexure 1 as stated above, retiring the petitioner prematurely under Fundamental Rule 56, it is said that his integrity was not up to the mark in the year 1983-84. 2. In the counter-affidavit filed by the respondents it is only averred that the petitioner was confirmed on 30th August, 1977. However, the averments made in paragraphs 8 to 12 of the petition, have not been specifically denied. 3. The short point which arises for consideration in this petition is whether the petitioner having been granted Selection and Super Selection Grade on 1-7-1982, the period prior to granting Selection and Super Selection Grade could be taken into consideration against the petitioner for the purposes of retiring him prematurely. 4. No doubt the entries of recent past 5 to 10 years may be taken into consideration in forming the opinion to retire a Government servant in public interest. Here, it may be noted that public interest means purely in public interest and not in political interest or otherwise. 5. Since this fact is not disputed that the petitioner was granted Selection and Super Selection Grade, this leads to the irresistible conclusion that the State has condoned misconduct, if any, which would have justified taking disciplinary action against the petitioner. But after awarding Selection and Super Selection Grade to the petitioner, that is, after condoning the misconduct of the petitioner by the respondent, the State who is in a master's position, cannot go back upon its election to condone and claim a right to take disciplinary action against him and in exercise of Fundamental Rule 56, retire him prematurely. The reason is obvious that doctrine of condonation comes into operation.
The reason is obvious that doctrine of condonation comes into operation. This is so because a Government servant even though misconducts Himself, has a right to seek other employment and it is always proper and just that a Government servant should be given earliest opportunity of seeking such fresh employment. As time goes by, he grows older, his chances of obtaining employment grow less and less. Therefore, the rule is that disciplinary action against a Government servant be taken always expeditiously and once a chance of serving is given, the earlier misconduct deems to have been waived and subsequently the same cannot be taken into consideration for awarding punishment etc. 6. Apart from the above rule, the order impugned in Annexure 1 further suffers from a legal infirmity that the adverse entries said to have been made against the petitioner have not been communicated to him at any point of time, and, therefore, the same cannot be taken into consideration under the garb of Fundamental rules for making forced retirement. 7. The apex court of the land in Brij Mohan Singh v. State of Punjab, AIR 1987 SC 948 referring to the earlier catena of decisions in the cases of J.D. Srivastava v. State of M.P., AIR 1987 SC 630; Baldev Raj Chadha v. Union of India, AIR 1981 SC 70 ; Brij Behari Lal Agarwal v. High Court of M.P., AIR 1981 SC 594 and Amar Kant Choudhary v. State of Bihar, AIR 1984 SC 531 ruled that while considering the question of premature retirement, it may be desirable to make an overall assessment of the Government servant's record, but while doing that, more value should he attached to the confidential reports pertaining to the order immediately preceding such consideration and old and stale entries should not be taken into consideration while considering the question of premature retirement, Applying this principle in the instant case, the State Government having awarded the petitioner Selection and Super Selection Grade in the year 1985, committed an error in reaching to the conclusion that the petitioners' integrity was doubtful in the year 1983-84. Had it been so, the petitioner would not have been promoted to the aforesaid Grade.
Had it been so, the petitioner would not have been promoted to the aforesaid Grade. This being so, applying the dictum of Amar Kant Choudhary v. State of Bihar (supra), since the adverse entries have not been communicated to him at any point of time, therefore, the same cannot be taken into consideration. Thus, in view of the foregoing discussions, this petition is allowed with costs (counsel's fee Rs. 1,000/- if certified). The order impugned dated 31-12-1989, Annexure 1 to the writ petition, is quashed. The petitioner is entitled to all his service benefits.