Delhi High Court
Sushil Sharma vs Uoi & Ors. on 12 August, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 12th July, 2011
Judgment Delivered On:12th August, 2011
+ W.P.(C) 307/2011
SUSHIL SHARMA ..... Petitioner
Through: Mr.Keshav Kaushik, Advocate
versus
UOI & ORS. .....Respondents
Through: Ms.Barkha Babbar, Advocate
with Mr.Asit Tiwari, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. The petitioner had been enrolled in the Central
Industrial Security Force (hereinafter referred to as CISF) as
an Assistant Sub-Inspector on 28.06.1982. He served CISF
for a duration of 28 years and had earned 2 promotions
during this period, firstly to the post of Sub-Inspector on
29.03.1990 and then ascending to the post of Inspector on
19.09.2003. On attaining the age of 50 years, petitioner‟s
case was placed for assessment by an Internal Screening
Committee under Rule 56(j) of the Fundamental Rules. The
said Committee declared petitioner „Unfit‟ for retention in
service, which view was accepted by the Review Committee
of CISF resulting in an order being passed on 06.06.2010 by
the Competent Authority prematurely retiring the petitioner.
2. The petitioner submitted a representation dated
21.06.2010 before the Representation Committee against
the afore-mentioned order. After due deliberations, the
Committee found no merit in the representation and
rejected the same.
3. Needless to state the Internal Screening Committee as
also the Review Committee and the Representation
Committee considered the service record of the petitioner
which contained the gradings earned by the petitioner as
recorded in the ACRs and further information pertaining to
the penalties, if any, inflicted upon the petitioner and the
commendations earned.
4. Thus, we may note the ACR gradings earned by the
petitioner. The same are as follows:-
Period Grading
28.06.1982 - 17.04.1983 B.Trg
18.04. 1983 - 31.12.1983 Average
1984 Average
01.01. 1985 - 14.07. 1985 Average
15.07. 1985 - 31.12. 1985 Average
1986 Average
1987 Average
Period Grading
01.01. 1988 - 13.06. 1988 Good
14.06. 1988 - 31.12. 1988 Good
1989 Good
1990 V.Good
1991 Good
01.01. 1992 - 19.12. 1992 V.Good
21.12. 1992 - 31.12. 1992 NIC
1993 Good
01.01. 1994 - 31.08. 1994 Good
01.09. 1994 - 31.12. 1994 NIC
01.01. 1995 - 19.07. 1995 Average
20.07. 1995 - 31.12. 1995 Average
01.01. 1996 - 28.02. 1996 NIC
01.03. 1996 - 31.12. 1996 Good
1997 Average
01.01. 1998 - 13.09. 1998 Good
14.09. 1998 - 03.12. 1998 NIC
1999 Average
01.01.2000 - 30.09.2000 V.Good
01.10.2000 - 31.12.2000 NIC
2001 V.Good
2002 V.Good
Period Grading
01.01.2003 - 08.09. 2003 V.Good
09.09. 2003 - 31.12. 2003 V.Good
2004 Average
2005 V.Good
2006 Good
2007 Good
01.01. 2008 - 31.03. 2008 Good
01.04. 2008 - 31.12. 2008 Average
01.01. 2009 - 31.12. 2009 Average
5. The record shows that during his service spanning 28
years petitioner earned 1 major and 9 minor penalties.
6. Ignoring the penalties inflicted upon the petitioner
prior to his promotion firstly as a Sub-Inspector and then as
an Inspector, for the reason, law compels us to so do. As
per law penalties inflicted which do not come in the way of a
person earning promotion, whether on account of they
being stale or trivial, have to be ignored while determining
the suitability of an employee to be retained in service while
considering the applicability of FR 56(j), we would highlight
that after he was last promoted as an Inspector on
19.9.2003 petitioner was inflicted with only 1 minor penalty
i.e. that of „censure‟ for the misdemeanour of giving a false
reason to obtain leave. Though not to be treated as
penalties, on 4 occasions petitioner had been warned for
being negligent in discharge of duties and in particular for
not submitting weekly diary. Twice he had been issued
advisory for lethargic attitude.
7. Against this backdrop of facts, we are required to
consider the petitioner‟s case that the respondents have
acted arbitrarily and without any basis. The argument
advanced was that no adverse remark ever being
communicated to the petitioner an inference had to be
drawn that nothing adverse was found with respect to the
working of the petitioner and thus he could not be
prematurely retired.
8. Before going into the nitty-gritty of the petitioner‟s
arguments, it would be circumspect to go into the varied
facets of the law in considering a case of premature
retirement under Rule 56(j) of the Fundamental Rules. 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. This flows out of
the language of FR 56(j) which says that on issues of
integrity, utility and efficacy the requirement to continue
with the employment or not have to be considered. The
dictionary meaning of „dead wood‟ is „one that is
burdensome or superfluous‟. 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
efficient person. Law guarantees to a public servant a
minimum pensionable service and beyond that he must
earn the right to serve by dint of hard work by proving his
worth.
9. It was settled by a Constitution Bench of the Supreme
Court, in the decision reported as 1955 (1) SCR 26 Shyam
Lal vs. State of UP, that compulsory retirement or premature
retirement is not a punishment and no stigma is attached as
there is no element of charge or imputation. This is the
reason why, even with respect to un-communicated adverse
entries in the ACRs of a civil servant, it has been held that it
is permissible to take them into account while considering
the service record of a Government servant as per the
decision reported as AIR 1992 (SC)1020 Baikuntha Nath Das
And Anr vs Chief Distt. Medical Officer,Baripada & Anr.
which decision also recognizes that although the entire
service record has to be kept in view, but primacy has to be
accorded to the service profile preceding up to last 5 years
for the reason it may happen that a person may be Average
in the beginning but with passage of time would become
Very Good and vice-versa.
10. In the instant case, we note that the petitioner‟s graph
of ACRs (Annual Confidential Reports) rose with a series of
"Average" ratings earned at the commencement of his
career from 1983-87, followed by ratings of "Good" and
"Very Good" till 1994. During this promising period, he had
earned his first promotion in 1990. The career graph took a
series of dents in the years 1995, 1997 and 1999 because of
the rating "Average". Thereafter, the ACRs improved to
"Very Good" from 2000-2003 thus earning him his second
promotion in 2003. Scrutinizing the last 5 years of the
petitioner‟s service, i.e 2004-2009, we find that the ratings
earned are "Average" for 2004, 01.04.08-31.12.08 and
01.01.09-31.12.09, "Very Good" in 2005 and "Good" for
2006, 2007 and 01.01.08-31.03.08.
11. In the last 5 years, there is a steady decline in the
ACRs of the petitioner ending with 2 "Average" ratings in
the last two years. In other words, the position would be
that in the year 2004-05 petitioner was „Average‟ and
became „Very Good‟ the next year, the next 2 years he was
„Good‟ and then he became „Average‟ for the next 2 years.
It also assumes importance to note that after his last
promotion in the year 2003, the petitioner was inflicted 1
minor penalty of „censure‟ and on 4 occasions was warned
for being negligent in discharge of duties and not submitting
weekly diary and twice had been issued advisory for
lethargic attitude.
12. Is it possible to argue that it is a borderline case? If
yes, on which side of the line would the petitioner fall.
13. We have for our guidance the decision of the Supreme
Court reported as 1992 SCR (2) 338 P&T Board & Ors. vs.
CSN Murthy, wherein for the last 5 years CSN Murthy had 3
„Goods‟ and 2 „Average‟ ACRs, with the 2 „Average‟ ACRs
being in the last 2 years and the Supreme Court observed:-
"In our opinion, there was material which showed that the
efficiency of the petitioner was slackening in the last 2 years
of the period under review and it is, therefore, not possible
for us to fault the conclusion of the department as being
mala-fide, perverse, arbitrary or unreasonable....... It is true
that the earlier record of the respondent was good but if the
record showed that the standard of work of respondent had
declined and was not satisfactory, that was certainly
material enabling the department to come to a conclusion
under FR 56(j)".
14. As we understand, the law would be that where a case
is on the borderline, it is the decision of the employer which
has to be accepted for the reason unless it could be shown
that the employer has acted with unreasonableness of the
kind which equals perversity, under judicial review it would
not be permissible to quash a decision taken by the
Executive i.e. the Administration. After all,
unreasonableness as a ground to quash an administrative
decision must be tested on the principle of „Wednesbury‟
unreasonableness.
15. We dismiss the writ petition but without any orders as
to costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
AUGUST 12, 2011
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