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Rajasthan High Court · body

2001 DIGILAW 977 (RAJ)

Ram Baransingh v. Union of India

2001-05-31

J.C.VERMA

body2001
Honble VERMA, J.–Initially the petitioner was appointed as Constable Driver in the year 1965. He was promoted to the post of Lance Naik Driver and then Naik Driver after passing List `B and List `C promotional test. As a driver, it is stated that he had worked efficiently and there was no compliant what-so-ever. He has been retired pre-maturely on 19.12.1990 (Annexure-1) when he had completed 25 years of service. He was paid three months notice pay. He is challenging the order Annexure-1 on the ground that he was promoted to the post of Head Constable in the month of May 1988 itself and after such promotion there was nothing against him so as to deprive him the full service time superannuation and the order of pre-mature retirement is violative of Rule 56(j) of the fundamental rules and Rule 43(c)(i) of the CRPF Rules. (2). Administrative Review Committee of Northern Sector, CRPF, New Delhi was constituted to review the cases of the employees. The Committee had found that the petitioner is not fit for further retention in service and retired him in public interest. (3). The petitioner is governed by the Central Reserve Police Force Rules, 1955 and Rule 43 relates to superannuation; the appointing authority has absolute right to retire any member of the Force who has attained the age of 50 years or put in 25 years of qualifying service by giving him notice of not less than three months in writing or three months pay. Rule 43(a)(c)(i) reads as under:- ``43. Superannuation.-(a) Retirement of a member of the Force shall take effect from the afternoon of the last day of the month in which such member attains the age of 55 years. In case, the date of birth of a member of the Force falls on the first day of a month, his retirement shall take effect from the after-noon of the last day of the month preceeding the month in which the member of Force attains the age of 55 years. In case, the date of birth of a member of the Force falls on the first day of a month, his retirement shall take effect from the after-noon of the last day of the month preceeding the month in which the member of Force attains the age of 55 years. (c) Notwithstanding anything contained in this rule:- (i) the appointing authority shall, if it is of opinion that is in the public interest to do so, have absolute right to retire any members of the Force who has attained the age of 50 years or put in 25 years of qualifying service, by giving him notice of not less than three months in writing on three months pay and allowance in lieu of such notice. (4). Similar is the provision provided in Rule 56(j) of the CRPF Rules. (5). The Government had issued instructions regarding pre-mature retirement of the Central Government employees and had laid down the procedure that their cases should be reviewed six months before they attain the age of 50 years by a committee. It provided that the committee shall be constituted and the cases shall be referred to the committee for recommendation to the effect whether the officer concerned should be retired from service in public interest or whether he should be retained. The criteria has also been provided that:- (i) the Government employee whose integrity is doubtful will be retired; (ii) The Government employees, who are found to be ineffective will also be retired; (iii) The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he is holding; (iv) If he is not found fit to continue in his present post, his fitness/competence to continue in the lower post, from where he had been previously promoted, should be considered; (v) Entire service record of an officer should be considered at the time of review; (vi) No employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years, or where he has been promoted to a higher post during that 5 years period, his service in the highest post, has been found satisfactory. (vii) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retired on superannuation within a period of one year from the date of consideration of his case. (6). (vii) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retired on superannuation within a period of one year from the date of consideration of his case. (6). It was further provided that the pre-mature retirement should not be used to retire a government servant on grounds of specific acts of misconduct or as a short cut to initiating formal disciplinary proceeding; or for reduction of surplus staff or as a measure of effecting general economy without following the rules and instructions relating to retrenchment. (7). Reliance is placed on the judgment of Apex Court in Senior Superintendent of Post Offices, Allahabad & Ors. vs. Izhar Hussain (1), and Union of India and others vs. Shaik Ali (2). (8). In the case of Senior Superintendent of Post Offices (supra) the compulsory retirement was setaside on the ground that Rule 2(2) of the Pension Rules giving absolute powers to the authority to retire a person when he completed 30 years of service was held to be bad. Rule 2(2) of F.R. 56(j) read as under:- ``F.R. 56(j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that is in the public interest to do so, have the absolute right to retire any government servant after he has attained the age of fifty-five year by giving him notice of not less than three months in writing: Provided that nothing in this clause shall apply to a government servant referred to in clause (ee) or clause (f). Rule 2(2). An officer may retire from service any time after completing 30 years qualifying service provided that he shall give in this behalf a notice in writing to the appropriate authority at least three months before the date on which he wishes to retire. Government may also require an officer to retire, any time after he has completed 30 years qualifying service provided that the appropriate authority shall give, in this behalf a notice in writing to the officer at least three months before the date on which he is required to retire, or three months pay and allowances in lieu of such notice. (9). (9). In the case of Union of India vs. Shaik Ali (supra), where an employee was retired under the rules, on the same analogy, it was observed by the Honble Supreme Court that the employee had secured promotions in due course. He was promoted as Assistant Yard Master in August 1984 and again promoted to the higher post on January 1986 and then retired in April 1986. The order was held to be punitive and not in public interest. (10). In the case of State of Gujarat vs. Umedbhai M. Patel (3), the principles for compulsory retirement have been enumerated by the Honble Supreme Court as under:- `The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus: (i) When the services of a public servant are no longer useful to the general administration, the office can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer is given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. (11). Even though a written statement has been filed, but it has not been mentioned in the written statement as to why the employee was retired. He was promoted to the post of Head Constable Driver in the year 1988, but within two years he has compulsorily retired. The record has not been produced, nor any one has appeared on behalf of the respondent to assist the court. If at all any employee is to be retired compulsorily under the provisions of Rule 43(c), it can not be used penal purposes, but on over all record only. The record has not been produced, nor any one has appeared on behalf of the respondent to assist the court. If at all any employee is to be retired compulsorily under the provisions of Rule 43(c), it can not be used penal purposes, but on over all record only. It is nodoubt true that the rule if not properly made application and used is likely to be misused and for that very purpose, to avoid such a situation, the Union of India has issued instructions in the year 1978 laying down certain guidelines as discussed above. (12). In the present case, the petitioner was promoted and within a short period of his promotion he has been pre-maturely retired. Even otherwise nothing has been brought on record to show that there was any compliant against the said person or he was departmentally proceeded with or was punished or as to how he was ineffective in service and as to why he could not be reverted back to his owner rank of Naik instead of pre-maturely retiring him and thus the guidelines as provided by the Union of India seems to have been violated. (13). For the reasons, mentioned above, the writ petition is allowed. The impugned order Annexure-1 dated 27.9.1990 retiring the petitioner w.e.f. 19.12.1990 is quashed. The petitioner shall be entitled to all consequential benefits.