Delhi High Court
Bhim Singh vs Union Of India And Ors on 8 October, 2012
Author: Pradeep Nandrajog
* 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
PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties.
2. The 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
3. It 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.
4. We 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.
5. The 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.
6. Pertaining 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.
7. On 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.
8. Now, 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.
9. We 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'.
10. Objectively 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.
11. Accordingly, 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.
12. Arrears 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.
13. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(MANMOHAN SINGH)
JUDGE
OCTOBER 08, 2012
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