Entire Service Record is to be taken into Consideration while dealing with Premature Retirement: SC

The Entire Service Record is to be taken into Consideration while dealing with Premature Retirement Cases: SC

Cause Title: Central Industrial Security Force Vs HC (GD) Om Prakash

Case Number: Civil Appeal No. 5428/ 2012

Quorum: Justice Hemant Gupta and Justice V. Ramasubramanian

Judgment Date: 04/02/2022

Author: Pragash B, Advocate, Madurai Bench of Madras High Court

Background of the Case

The Respondent, Head Constable Om Prakash was prematurely retired on 16.08.2011 in exercise of the powers conferred under Rule 56(j) of the Fundamental Rules read with Rule 48(1)(b) of CCS (Pension) Rules, 1972 after completion of 30 years of service. The order is to effect that the Superannuation Review Committee under Rule 48(1)(b) of the Rules found the respondent not fit to continue in service beyond 30 years of qualifying service with immediate effect.

The Respondent/ Writ Petitioner has filed a writ petition before the Division Bench of the Honourable Delhi High Court challenging the said order. The High Court had set aside the order of the premature retirement passed against the respondent through an order dated 14.10.2011 on the ground that the respondent was promoted as Head Constable on 14.06.2000 and thus penalties imposed prior to the year 2000 have to be ignored while determining the suitability of the respondent to be retained in service.

The Honourable Delhi High Court observed that the two penalties of sleeping on duty and overstaying leave by two days were inflicted in the year 2005 and 2008 respectively which were minor penalties. The Annual Confidential Reports grading of the respondent in the preceding five years have to considered with greater focus while noticing the fact that even earlier ACRs had to be taken into consideration. The ACR’s from 1990 till the year 2009 were either good or very good. The ACR for the year 2010 was graded average but the same was not conveyed to the respondent. Therefore, such ACR could not be taken into consideration while arriving at an opinion that the respondent is a dead wood.

Findings of the Court

The Honourable Apex Court opined that the High Court has completely misdirected itself while setting aside the order of premature retirement of the writ petitioner. The respondent has been awarded number of punishments prior to his promotion including receiving illegal gratification from a transporter while on duty in the year 1993. There are also allegations of absence from duty and overstaying of leave. After promotion, a punishment of four days fine was imposed for overstayed from joining time. Apart from the said punishments, the writ petitioner has a mixed bag of ACRs such as average, below average, satisfactory good and very good. In the last 5 years, he has been graded average for the period 01.01.2010 to 31.12.2010 (Para 5). The Honourable Court while deciding this case, has also considered the “washed-off theory” i.e., the remarks would be wiped off on account of such record being of remote past and the Court has cited the relevant excerpts from Pyare Mohan Lal Case (Para 12).

The Honourable Court has compared the orders of premature retirement of judicial officers with other services and stated that

“There are numerous other judgments upholding the orders of premature retirement of judicial officers inter alia on the ground that the judicial service is not akin to other services. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as discharge of a pious duty….” (Para 13)

The Honourable Supreme Court of India observed that the High Court has not only misread the judgment of the Apex Court in Baikuntha Nath Das but wrongly applied the principles laid down therein. The adverse remarks can be taken into consideration as mentioned in the number of judgments. There is also a factual error in the order of the High Court that there are no adverse remarks and that the ACRs for the year 1990 till the year 2009 were either good or very good. In fact, the summary of ACRs as reproduced by the High Court itself shows average, satisfactory and in fact below average reports as well. (Para 14)

The entire service record is to be taken into consideration which would include the ACRs of the period prior to the promotion. The order of premature retirement is required to be passed on the basis of entire service records, though the recent reports would carry their own weight. (Para 15)

In view of the said fact, we find that the order of the High Court setting aside the order of premature retirement is clearly unsustainable and is set aside. The appeal is allowed. The writ petition thus stands dismissed.

To View/ Download Judgment: Central Industrial Security Force Vs HC (GD) Om Prakash

Cases Referred

1. Baikuntha Nath Das and Another v. Chief District Medical Officer, Baripada and Another, (1992) 2 SCC 299.

2. Union of India v. M. E. Reddy and Another, (1980) 2 SCC 15.

3. Posts and Telegraphs Board and Others v. C.S.N. Murthy, (1992) 2 SCC 317.

4. Union of India v. Dulal Dutt, (1993) 2 SCC 179.

5. Secretary to the Government and Another v. Nityananda Pati, (1993) Supp 2 SCC 391.

6. Union of India v. V.P. Seth and Another, (1994) SCC (L&S) 1052.

7. State of Punjab v. Gurdas Singh, (1998) 4 SCC 92.

8. State of U.P. and Others v. Raj Kishore Goeal, (2001) 10 SCC 183.

9. Rajasthan State Road Transport Corporation and Others v. Babu Lal Jangir, (2013) 10 SCC 551.

10. Pyare Mohan Lal v. State of Jharkhand and Others, (1987) 2 SCC 188.

11. Ram Murti Yadav v. State of Uttar Pradesh and Another, (2020) 1 SCC 801.