Bhim Singh v. Union of India and Ors

PRADEEP NANDRAJOG, J. (Oral)

¶1Heard learned counsel for the parties.

¶2The petitioner joined service as a Constable (Driver) with CISF in the year 1981. Annexure R-3 would reveal the service profile of the petitioner in relation to the Annual Confidential Rolls as under:-

ACR Year Grade 1981 Satisfactory 1982 Satisfactory 1983 Satisfactory 1984 Satisfactory 1985 Satisfactory 1986 Good 1987 Average 1988 Good 1989 Average 1990 Average 1991 Good 1992 Good

1993 Good 1994 V. Good 1995 V. Good 1996 Good 1997 Good 1998 Average 1999 Good 2000 VG/Ave 2001 Good 2002 Good 2003 Good 2004 Good 2005 V. Good 2006 V. Good 2007 Good 2008 Good/NIC 2009 Good

¶3It also reveals that during his career till the year 2009, commencing from the year 1981, i.e. 28 years, the petitioner was fined once for having remained absent on August 27, 1981, had been censured on June 07, 1982; had suffered a fine of one day pay cut in October, 1984 for being absent from unit line and creating nuisance in public place under the influence of liquor; a withholding of one stage in pay for a period of one year on August 8, 1990 for having unauthorisedly driven a truck for 65 kms; and finally pay being deducted for 5 days on account of an act of indiscipline committed on June 08, 1993.

¶4We highlight that the five penalties are stale as of the year 2009 inasmuch as the last was with respect to an indiscipline committed on June 08, 1993.

¶5The respondents have exercised power under Rule 56(j) of the Fundamental Rules and have compulsorily retired the petitioner as per order dated January 04, 2011 against which appeal filed stands rejected vide order

dated February 02, 2012. Needless to state the service profile of the petitioner which was considered by the Screening Committee took into account the five afore noted penalties and the ACR grading from the year 1981 till the year 2009.

¶6Pertaining to writs of certiorari where a discretion is exercised by the executive, the law with respect to judicial interference is clear. Whereas it cannot be disputed that when the existence of an objective fact is laid down as a condition precedent to the exercise of powers, there is no question whatsoever of the exercise of any discretion by the authority, which has to be satisfied about the existence of that objective fact, before the power is exercised. Thereafter, as long as the exercise of discretion does not suffer from unreasonableness, the Court cannot go into the exercise of said discretion.

¶7On the subject of the power to compulsorily retire a civil servant, Rule 56(j) of the Fundamental Rules is the statutory provision. This branch of law deals primarily with the requirement of weeding out the 'dead wood' from the system by testing the integrity, utility and efficacy of the concerned Government employee, on the anvil of public interest. The public interest to be kept in mind is that it subserves the public if efficient persons discharge duties as public servants and if somebody is found to be a dead wood, he better be replaced by an inefficient person. Law guarantees to a civil servant a minimum pensionable service and beyond that he must earn the right to serve.

¶8Now, it is settled law that on the subject of compulsorily retirement, the entire service profile has to be kept in view by the decision making authority, but emphasis has to be laid on the immediately preceding 5 years record. Further, penalties which are stale and further, those which were inflicted after which a civil servant has obtained promotions, have to be

ignored.

¶9We have already highlighted hereinabove that the petitioner had earned five minor penalties. The ACR record of the petitioner would reveal that since 1999, except for part year 2000, where he earned the ACR grading 'Average', the consistent ACR grading of the petitioner has been either 'Good' or 'Very Good'. Even pertaining to the year 2000 we find that for part year he has been graded 'Very Good' and for a part of the year as 'Average'.

¶10Objectively looked, we see no scope for any subjective satisfaction to conclude that the petitioner is a dead wood. It would be extremely unreasonable to hold a person obtaining ACR grading 'Good' or 'Very Good' to be a dead wood. Those obtaining ACR grading 'Average' and below alone would be dead wood.

¶11Accordingly, we allow the writ petition and quash the impugned order dated January 04, 2011 as also the appellate order dated February 02, 2012. Petitioner is directed to be reinstated in service with full consequential benefits of pay and allowances, increments as well.

¶12Arrears would be paid to the petitioner within 12 weeks and needless to state the pension and 3 months pay and allowances if at all paid in terms of the order dated January 04, 2011 shall be adjusted.

¶13No costs.

(PRADEEP NANDRAJOG)

JUDGE

(MANMOHAN SINGH)

JUDGE OCTOBER 08, 2012 skb

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: October 08, 2012 + W.P.(C) No.3935/2012 BHIM SINGH ..... Petitioner Represented by: Mrs.Rekha Palli, Advocate with Ms.Punam Singh & Ms.Amrita Prakash, Advocates versus UNION OF INDIA AND ORS ..... Respondents Represented by: Mr.Himanshu Bajaj, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MANMOHAN SINGH