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2009 DIGILAW 1698 (RAJ)

Mangi Lal v. State of Rajasthan

2009-07-27

GOPAL KRISHAN VYAS

body2009
JUDGMENT Hon'ble VYAS, J.—In this writ petition, the petitioner has prayed for quashing the order impugned dated 19.4.2002 Annexure-4 passed by Rajasthan Civil Services Appellate Tribunal and the impugned compulsory retirement order dated 28.11.2000 Annexure-3, which is upheld by the learned Tribunal. 2. Brief facts of the case are that an appeal was preferred by the petitioner against the compulsory retirement order dated 28.11.2000 passed by the Superintendent of Police, Pali. In appeal, it is stated that initially, the petitioner was appointed as Constable w.e.f. 19.8.1969 at Pali Police Line. Thereafter, he was promoted to the post of Head Constable w.e.f. 28.4.1976. The petitioner was detailed for Promotion Cadre Course in the post of Head Constable and he has successfully completed the said course w.e.f. 22.2.1978 to 31.5.1978. As per the petitioner in his total service period, his performance was appreciated like anything and in between the period commencing from 1979 to 1999, he was awarded cash prize in 47 times. It is also stated that 75 appreciation letters were given to him for his satisfactory performance. 3. In the appeal, it was brought to the notice of the Tribunal by the petitioner that in his total tenure of service, some punishments after holding enquiry under Section 17 of the CCA Rules were inflicted but after taking into account all the punishments he was promoted twice in his service period; first, he was promoted from the post of Constable to the post of Head Constable and secondly, from the post of Head Constable to the post of Assistant Sub-Inspector and his case was considered by the Departmental Promotion Committee in the year 1995 and he was found eligible for promotion on the post of Assistant Sub-Inspector and as per the recommendation of Departmental Promotion Committee, the Dy. Inspector General of Police, Police Range, Jodhpur vide its order dated 4.10.1995, promoted the petitioner on the post of Assistant Sub-Inspector. Meaning thereby, the punishment and adverse entries, which were in existence prior to 1995, lost its sanctity because those entries were considered by the D.P.C. and he was promoted on the post of Asstt. Sub-Inspector, that too, after due recommendation by the D.P.C. by the Dy. Inspector General of Police, Jodhpur Range, Jodhpur. 4. The contention of the petitioner before the Tribunal was that after his promotion on the post of Asstt. Sub-Inspector, his appointing authority was Dy. Sub-Inspector, that too, after due recommendation by the D.P.C. by the Dy. Inspector General of Police, Jodhpur Range, Jodhpur. 4. The contention of the petitioner before the Tribunal was that after his promotion on the post of Asstt. Sub-Inspector, his appointing authority was Dy. Inspector General of Police, Jodhpur, therefore, he was only competent authority having jurisdiction to exercise powers to give compulsory retirement under Rule 53 (1) of the Rajasthan Civil Services (Pension) Rules, 1996 but it is very strange that Superintendent of Police passed an order on 28.11.2000 whereby the petitioner was given compulsory retirement who was not competent authority to pass an order for compulsory retirement because for the post of Asstt. Sub-Inspector, the appointing authority is Dy. Inspector General of Police, Jodhpur Range, Jodhpur, therefore, the order of compulsory retirement was totally without jurisdiction. 5. The petitioner while challenging the impugned order before the Rajasthan Civil Services Appellate Tribunal took various grounds to challenge the order of compulsory retirement dated 28.11.2000 but learned Tribunal dismissed the appeal filed by the petitioner against the compulsory retirement order vide impugned judgment dated 19.4.2000. 6. The case of the petitioner is that a specific ground was taken by the petitioner that during his service tenure commencing from 1979 to 1999, he was awarded number of appreciation letters and his work was found to be satisfactory and, therefore, in the year 1999, he was promoted to the post of Asstt. Sub-Inspector after due recommendation of the D.P.C., therefore, on one hand, the respondents themselves assessed the suitability of the petitioner for promotion on the post of Asstt. Sub-Inspector and granted promotion and on the other hand while taking into account the entire service record right from his appointment passed the impugned order, which is not permissible under the law because it is not a decision after due application of mind. Further, it is argued that the service record of so many other Asstt. Sub-Inspectors namely Shri Kheeya Ram, Shri Than Singh, Shri Kishan Singh, Shri Narpat Singh, Shri Kanhay Lal, Shri Narpat Singh Udawat, Shri roop Dan and Shri Chela Ram is more bad then the petitioner but they are still in service whereas only the case of the petitioner was picked up and order of compulsory retirement was passed, which is violative of Articles 14 and 16 of the Constitution of India. On this ground also, the order of compulsory retirement deserves to be quashed. One of the contentions of the petitioner before the Tribunal was that he was not paid three months salary in lieu of notice under Rule 53(1) of the Rajasthan Civil Services (Pension) Rules, 1996 which is against the spirit of rules. Further, the respondents have wrongly declared the petitioner as dead wood because the work of the petitioner was found satisfactory and he was awarded cash rewards so also number of appreciation letters. In this view of the matter, it is submitted before the Tribunal that the order of compulsory retirement is totally without application of mind. In para-g of the appeal filed before the tribunal, which is placed on record in this writ petition as Annexure-11, it is specifically stated that the respondent No.3, Superintendent of Police, Pali, is not appointing authority of the petitioner because promotion order was passed by the Dy. Inspector General of Police, Jodhpur Range, Jodhpur, which was communicated by the respondents. Therefore, the order of compulsory retirement, which is to be passed by the appointing authority has not been passed by the appointing authority but has been passed by the lower authority than the appointing authority, therefore, a prayer was made by the petitioner before the tribunal that the appeal may be accepted and the order impugned dated 28.11.2000 whereby the petitioner was given compulsory retirement from the post of Asstt. Sub-Inspector may be set aside. 7. In reply to the appeal filed by the petitioner before the Tribunal, the respondents refuted all the allegation and it is pointed out that the order of compulsory retirement was passed in public interest because after considering the entire service record of the petitioner, the Government has formed an opinion that the petitioner's integrity is doubtful and the petitioner has lost his utility due to inefficiency in due performance of his official duties. Therefore, the order of compulsory retirement was passed by the Government after due application of mind, that too, by the appointing authority, which does not require any interference because as per Rule 53 (1), any government employee who had completed 15 years of qualifying service and attained the age of 50 years can be given compulsory retirement by the appointing authority on the ground that the concerned govt. servant has on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties has lost his utility, therefore, no interference is required in this case. 8. Further, in reply to the grounds to the appeal, following assertions were made : “(a) to (g) That contents of these para are not sustainable in the eye of law, they are incorrect, hence denied the action of answering respondent neither contrary to the rule of 1996, nor in violation of article 14, 16 of the constitution of India. In the case of compulsory retirement the employee has no right to be heard and therefore, the principle of natural justice are not applicable to the case of compulsory retirement, the impugned order dt. 28.11.2000 has been passed in accordance with the procedure laid down in the rule of 1996, therefore, the impugned order is legal, proper and justified.” 9. The learned Tribunal after hearing both the parties finally adjudicated the appeal and dismissed the appeal vide impugned order dated 19.4.2002 (Annexure-4). The learned Tribunal while dismissing the appeal filed by the petitioner considered all the rewards and punishments given to the petitioner. 10. Learned counsel for the petitioner while arguing this writ petition vehemently submitted that finding of learned Tribunal with regard to upholding the compulsory retirement order is perverse and not in accordance with law. Further, it is argued that it is admitted position of the case that the petitioner was promoted on the post of Asstt. Sub-Inspector in the year 1995, before that he was promoted to the post of Head Constable from the post of Constable, therefore, it can be said that the petitioner was found eligible for promotion by the competent authorities of the Department but all of sudden after promotion on the post of Asstt. Sub-Inspector in the year 1995, though in the year 1995-96, his ACR was excellent and in the year 1996-97 and 1997-98, his work was satisfactory and in the year 1998-99, his work was found good but in the year 1999-00, just before passing the impugned order of compulsory retirement, his ACR was found unsatisfactory. Meaning thereby, after promotion on the post of Asstt. Sub-Inspector for four years, there was nothing adverse against him. Meaning thereby, after promotion on the post of Asstt. Sub-Inspector for four years, there was nothing adverse against him. More so, his work was found satisfactory by the competent authority of the Department, then how, the finding given by the committee constituted by the department for assessing the service record of the petitioner is tenable. It is very strange that along with the reply before the tribunal, a chart was produced in which a finding was given that the petitioner was punished several times and in the year 1991, the Addl. Superintendent of Police, gave adverse remark against him, therefore, it is recommended that the petitioner may be given compulsory retirement. As per learned counsel for the petitioner, the whole assessment made by the Committee constituted by the Department is illegal and have no foundation to stand before eye of law because twice the petitioner was promoted and after his last promotion on the post of Asstt. Sub-Inspector in the year 1995 for four years, his work was found satisfactory and remark of excellent, very good and good was given for four years but only for last year in which the petitioner was given compulsory retirement, unsatisfactory entry was recorded by the Department. In this view of the matter, it is obvious that the Committee which has recommended the case of the petitioner for compulsory retirement has completely ignored the entire service record of the petitioner, therefore, it is not a case in which the order of compulsory retirement was to be passed by the respondents. Further, it is argued that the order of compulsory retirement has been passed by the Superintendent of Police whereas the promotion on the post of Asstt. Sub-Inspector was made by the DIG, Jodhpur Range Jodhpur, therefore, being appointing authority only Dy. Inspector General of Police, Range Jodhpur, Jodhpur was competent to pass an order of compulsory retirement in accordance with Rule 53(1) of the Rules of 1996. 11. Sub-Inspector was made by the DIG, Jodhpur Range Jodhpur, therefore, being appointing authority only Dy. Inspector General of Police, Range Jodhpur, Jodhpur was competent to pass an order of compulsory retirement in accordance with Rule 53(1) of the Rules of 1996. 11. Learned counsel for the petitioner vehemently argued that no specific reply whatsoever was given by the respondents before the Tribunal to meet the ground of petitioner with regard to jurisdiction for passing the impugned order of compulsory retirement by the Superintendent of Police, Pali, therefore, the finding arrived at by the Tribunal, which is based on presumption, is illegal and case of the petitioner was wrongly recommended by the Committee so constituted by the Department for compulsory retirement. More so, as per assessment of the service record of the petitioner, he was promoted twice and all the punishments awarded to him were considered at the time of promotion and after his last promotion on 05.10.1995, there was nothing adverse against the petitioner, for which, such an order of compulsory retirement was to be passed. The order of compulsory retirement is totally without application of mind and, that too, passed by the authority other than the appointing authority. 12. Per contra, learned counsel for the State vehemently argued that the case of the petitioner was considered properly within the four corners of law by the Rajasthan Civil Services Appellate Tribunal and, on the basis of assessment of over-all service record, the learned Tribunal has rightly dismissed the appeal filed by the petitioner against his compulsory retirement order dated 28.11.2000. 13. Learned counsel for the State pointed out that in the total service tenure of the petitioner, 18 times the petitioner was penalized by the department and screening committee, at the time of considering his case, came to the conclusion that he has become dead-wood, therefore, recommended his case for compulsory retirement under Rule 53(1) of the Pension Rules, 1996. The compulsory retirement is not punishment but it is on the basis of overall assessment of service tenure of an employee, therefore, in view of the adjudication made by the Hon'ble Supreme Court in various pronouncements, the learned Tribunal has rightly rejected the appeal filed by the petitioner. Therefore, no interference under Article 227 of the Constitution of India is required in this matter. 14. Therefore, no interference under Article 227 of the Constitution of India is required in this matter. 14. With regard to the contention of the petitioner that order of compulsory retirement has been passed by the Superintendent of Police, Pali without any jurisdiction, it is submitted that the learned Tribunal has taken note of the fact that compulsory retirement order which is impugned in the appeal has been passed by the Superintendent of Police, Pali but, while giving cogent reasons, rightly came to the conclusion that there is no illegality in the order. The learned Tribunal rejected the plea taken by the petitioner in the appeal with regard to exercise of jurisdiction by the Superintendent of Police who has issued the order of compulsory retirement, therefore, there is no force in the contention of the learned counsel for the petitioner that the order has been passed by an incompetent authority because he was promoted by the Dy. Inspector General of Police, Jodhpur Range, Jodhpur on the post of Assistant Sub Inspector, the post on which he was working at the time of compulsory retirement, therefore, the order of compulsory retirement was to be passed by the Dy. Inspector General of Police, Jodhpur Range, Jodhpur and not by the Superintendent of Police, Pali. In that view of the matter, this writ petition may be dismissed. 15. I have considered the rival submissions made by the parties and perused the judgment passed by the Service Appellate Tribunal dated 19.04.2002, whereby, the appeal filed by the petitioner against the order of compulsory retirement was dismissed. 16. It is true that the employer has every right to dispense with services of an employee who has become dead-wood. It is also within the domain of the employer that if unsatisfactory service of the employee which may include any persistent misconduct or inefficiency and there was background for taking decision that the employee has become a dead-wood, then, he should be retired compulsorily. Although such compulsory retirement is different and distinct from imposition of punishment of compulsory retirement for misconduct where the misconduct is the basis for punishment, but, for taking decision of compulsory retirement other than punishment, the service record is required to be seen but it should be made by the competent authority. 17. Although such compulsory retirement is different and distinct from imposition of punishment of compulsory retirement for misconduct where the misconduct is the basis for punishment, but, for taking decision of compulsory retirement other than punishment, the service record is required to be seen but it should be made by the competent authority. 17. Here, in this case, although the fact came on record that in total service tenure of the petitioner, he was promoted twice – first, from the post of Constable to Head Constable; and, then from the post of Head Constable to Assistant Sub Inspector and clear assertion was made by the petitioner in appeal before the Tribunal that he was lastly promoted on the post of Assistant Sub Inspector on 04.10.1995 by the Dy. Inspector General of Police, Range Jodhpur, Jodhpur who is the competent/appointing authority and, after his promotion on the post of Assistant Sub Inspector, his service assessment for the years 1995-96, 1996-97, 1997-98, 1998-99 and 1999-2000 was found to be outstanding, satisfactory, satisfactory, good and unsatisfactory respectively. The service record of the petitioner was perused by the Tribunal at the time of adjudicating the appeal which is apparent from para 3 at page 3 of the judgment rendered by the Tribunal; but, at the time of adjudication of the appeal only recommendations made by the screening committee were considered by the Superintendent of Police, Pali for taking decision of compulsory retirement. 18. It is true that employee cannot object to compulsory retirement if his service record is bad but, here, in this case, although 18 minor punishments were inflicted against the petitioner right from the year 1980 to 1996 for 18 times; but, it is also one of the important facts that in the total service tenure the petitioner was promoted twice, lastly on 05.10.1995; and, thereafter, in subsequent five years, his ACRs were outstanding, satisfactory, good and, for one year, assessment of his service was unsatisfactory for the year 1999-2000. All these aspects of the matter were required to be considered at the time of taking final decision because statutory body i.e., the D.P.C. found the petitioner entitled to be promoted to the post of Assistant Sub Inspector in the year 1995; and, thereafter for 4 years his service record was found outstanding, good and satisfactory and only for one year his work was not found satisfactory. This aspect of the matter was not considered while passing the impugned order. 19. Now, the question arises that who is competent authority to pass the compulsory retirement order. In the appeal filed before the Tribunal, petitioner has specifically averred in ground (G) that his appointing authority on the promotion post which is A.S.I. is the Dy. Inspector General of Police, Range Jodhpur, Jodhpur who has passed the order for promotion on the post of A.S.I.; meaning thereby, a specific assertion has been made that as per Rule 53(1), the order of compulsory retirement can be passed by the appointing authority and obviously, as per assertion made by the petitioner in the appeal, he was promoted by the Dy. Inspector General of Police. No specific reply was given before the Tribunal by the department to this assertion. It is very strange that this important aspect of the matter which was required to be adjudicated upon by the Tribunal was not decided in accordance with law. In this regard, the finding of the Tribunal upon the question of jurisdiction to pass the compulsory retirement order is as follows : ^^vihykFkhZ us ;g tks vk/kkj fy;k gS fd mudks miegkfujh{kd us inksUur fd;k Fkk ysfdu vfuok;Z lsokfuo`Ùk ftyk iqfyl v/kh{kd rd fd;k gSA bl lEcU/k esa vihykFkhZ us lgk;d mifujh{kd ds inksUufr ds vkns'kdh izr is'k ugha dh gS ysfdu ;fn ;g eku Hkh fy;k tkosfd ,sls vkns'k esa miegkfujh{kd ds vkns'k dk lanHkZ gS tks mlds fy, fLFkfr bl izdkj dh gksuk izrhr gks jgh gS fd mä lanHkZ dk rkRi;Z ;g jgk gksxk fd inksUufr ds lEcU/k esa miegkfujh{kd dk vuqeksnu ysuk vko';d gksxk vkSj ,slk vuqeksnu ysus ds dkj.k gh miegkfujh{kd ds vkns'k dk lanHkZ fn;k gksxkA ysfdu inksUufr dk vkns'k ftyk iqfyl v/kh{kd us gh ikfjr fd;k gksxkA bl izdkj inksUufr dk vkns'k nsus okys vf/kdkjh vkSj vk{ksfir vkns'k ikfjr djus okys vf/kdkjh ,d gh in /kkjd gS vkSj bl vk/kkj ds lEcU/k esa tks vkifÙk vihykFkhZ us yh gS] og lgh ugha gSA** 20. The above finding given by the learned Tribunal is based totally upon presumption. Such type of finding with regard to important question relating to exercise of jurisdiction by the authority passing compulsory retirement order is required to be adjudicated with proper application of mind and after perusal of the relevant rules. The above finding given by the learned Tribunal is based totally upon presumption. Such type of finding with regard to important question relating to exercise of jurisdiction by the authority passing compulsory retirement order is required to be adjudicated with proper application of mind and after perusal of the relevant rules. The purpose of establishing the Tribunal for the State Government employees is that disputes with regard to service matters should be adjudicated after due application of mind by the Judicial Member as well as Administrative Member. Both are under obligation to follow the rules and regulations and no casual adjudication can be countenanced because it is the duty of the Service Appellate Tribunal to hear and decide the service disputes after taking into consideration the relevant provisions of law. The Tribunal cannot be permitted to adjudicate matters on presumption which has been done in this case. Important ground of passing impugned order by the competent authority was to be adjudicated after perusing the relevant service rules; but, here, in this case, admittedly the order of compulsory retirement has been passed by the Superintendent of Police, Pali for an employee who is working on the post of Assistant Sub Inspector. As per the ground taken by the petitioner in the appeal, for appointment to the post of Assistant Sub Inspector in the Police Department the Dy. Inspector General of Police is the appointing authority. However, no specific reply was filed by the State nor relevant rules were produced before the Tribunal nor the learned Tribunal cared to peruse the relevant rules to ascertain that who is the appointing authority in respect of the post of Assistant Sub Inspect and in a very casual manner the ground taken by the petitioner with regard to competence for passing the impugned order has been rejected. Likewise, the Tribunal has taken note of the recommendation made by the Committee but has not applied its mind towards the fact that after promotion on the post of Assistant Sub Inspector on 05.10.1995, in the service record, 4 ACRs were outstanding, good, good and satisfactory and, only for one year it was unsatisfactory. There is no adjudication on this aspect of the matter. Therefore, in my opinion, the Tribunal has committed error while not adjudicating the appeal in accordance with law. 21. Consequently, this writ petition is partly allowed. There is no adjudication on this aspect of the matter. Therefore, in my opinion, the Tribunal has committed error while not adjudicating the appeal in accordance with law. 21. Consequently, this writ petition is partly allowed. Impugned order dated 19.02.2002 passed by the Rajasthan Civil Services Appellate Tribunal is hereby set aside and the matter is remitted to the Tribunal for deciding the appeal afresh and while deciding the matter afresh it is expected of the Tribunal that the Tribunal will decide the grounds taken by the petitioner with regard to competence of the authority passing order of compulsory retirement for the post of Assistant Sub Inspector. So also, the Tribunal will assess and give finding upon the fact that after promotion on the post of Assistant Sub Inspector with effect from 05.10.1995, ACRs of the petitioner for four years were outstanding, good, good and satisfactory and, only for one year, it was unsatisfactory. The Tribunal shall decide the matter within a period of three months from the date of receiving certified copy of this order. 22. It is, however, made clear that till the adjudication to be made afresh by the Tribunal, the respondents are not required to reinstate the petitioner and, after decision, the respondents will be at liberty to act in accordance with law. No order as to costs.