Manipur High Court
Shri Chandra Prakash Dubey Aged ... vs The Union Of India on 18 January, 2022
1
JOHN
TELEN KOM
Digitally signed by
JOHN TELEN KOM IN THE HIGH COURT OF MANIPUR
Date: 2022.01.21 AT IMPHAL
12:40:25 +05'30'
WP(C)No.79 of 2019
Shri Chandra Prakash Dubey aged about 56 years s/o Ram Harsh
Dubey, Home Address : Shivaji Nagar Sector-II, PO - Bargo,
Shivpuri New Colony Rostampur, P.S.- Khorabar, District Gorakhpur
(U.P), Pin No.273016 presently residing at Marwari Dharamsala,
Thangal Bazar, Imphal-795001;
....... Petitioner
- Versus -
1. The Union of India, represented by the Secretary, Ministry of Home
Affairs, Government of India, North Block, New Delhi-1.
2. The Director General of Assam Rifles, Shillong-793011;
3. The Commandant, 24th Assam Rifles, C/o 99 APO, Pin-932024.
.... Respondents
WP(C)No.79 of 2019 Page 1
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner : Mr.A. Mohendro, Adv.
For the Respondents : Mr.S. Samarjeet, CGC
Date of reserved : 07.12.2021
Date of Judgment & Order : 18.01.2022.
JUDGMENT & ORDER
(CAV)
[1] This writ petition has been filed by the petitioner to quash the
impugned result of Service Board and the orders dated 18.11.2014 and
16.11.2018 and to direct the respondents to take back the petitioner into service
with effect from 1.6.2015 with all the consequential benefits entitled to him. The
petitioner also prays for a direction on the respondents to award interest on the
arrears accrued for GPF, Pension etc. along with adequate costs of litigation.
[2] Brief facts are that the petitioner was initially appointed as L.Naik
Writer on regular basis in the Directorate of Assam Rifles on 25.5.1985 and
thereafter, he was promoted to Naib Subedar Clerk on 18.9.2006. A service
WP(C)No.79 of 2019 Page 2
review of the petitioner was conducted upon completion of 30 years of service
under the provision of Rule 48(1)(b) of Central Civil Service (Pension) Rules, 1972
and FR-56 and, vide result of Service Review Board dated 31.10.2014, the
petitioner was not granted further retention in service on the ground that he has
not meted out the ACR criteria. Thereafter, the office of the Directorate General
of Assam Rifles, Shilling-II issued an order dated 18.11.2014 stating that the
petitioner, on completing 30 years of qualifying service for pension on 25.5.2015,
shall retire from service on the forenoon of 1.6.2015.
[3] Aggrieved by the order dated 18.11.2014, the petitioner has filed
W.P.(C) No.357 of 2015 and by an order dated 27.8.2018, this Court disposed of
the writ petition with direction to the petitioner to file a statutory appeal.
Accordingly, the petitioner has preferred the appeal on 2.9.2018 before the
second respondent. However, the second respondent issued the impugned order
dated 16.11.2018 disposing of the appeal filed by the petitioner contrary to the
direction issued in W.P.(C) No.357 of 2015. Challenging the same, the petitioner
has filed the writ petition.
WP(C)No.79 of 2019 Page 3
[4] Respondents filed affidavit-in-opposition stating that the petitioner
has served in various formations/units of Assam Rifles during his 30 years of
service and his discipline and professional competence was not found up to the
required standard and he was awarded various punishments for acts of omission
on his part during his entire service. In fact, he was administered verbal warnings
and counselling on a number of occasions by the unit authorities in writing. A per
Rule 48(1)(b) of the CCS (Pension) Rules, 1972 and FR-56(j), the case of all
Government servants completing 30 years of service or 55 years of age,
whichever is earlier, is subject to review to ascertain whether the Government
servant is fit for retention in service or unfit for further retention in service in public
interest.
[5] It is stated that the petitioner's case was examined for service review
on completing 30 years of qualifying service on 25.5.2015 and being Junior
Commissioned Officer (JCO), the Service Review Board of the petitioner was held
at the Records Branch, Directorate General Assam Rifles on 31.10.2014 to
ascertain whether he was fit for further retention in service beyond 30 years'
service or otherwise. After examination, the petitioner was not recommended for
further retention beyond 30 years' service by the Service Review Board and on
WP(C)No.79 of 2019 Page 4
18.11.2014 the petitioner was issued notice to retire from service on retiring
pension, thereby fixing the date of retirement on 1.6.2015. Challenging the order
dated 18.11.2014, the petitioner has preferred W.P.(C) No.357 of 2015 and the
same was disposed of on 27.8.2018. Pursuant to the direction given in the said
writ petition, the petitioner submitted an appeal and the same was considered and
rejected vide order dated 16.11.2018 as the petitioner was graded "below
average" in the ACRs for the year 2008-2009 and 2012-2013. Aggrieved by the
rejection of the appeal, the petitioner has filed the writ petition.
[6] It is also stated that the petitioner be deemed to have retired from
service on retiring pension with effect from 1.6.2015 and be directed to submit his
pension documents duly signed for further needful action of the respondent
authorities with regard to grant of pension and other consequential benefits to him.
The department has not been able to disburse pension and other pensionary
benefits including GPF to the petitioner as he has not submitted pension
documents and banker's details to the department since 1.6.2015. Since the
petitioner was found incapable of performing his duties properly which he was
supposed to perform, he was graded below average by his superior officers.
Hence, the Service Review Board found the petitioner unfit for further retention in
WP(C)No.79 of 2019 Page 5
service. There is no arbitrariness in issuing the impugned orders and thus prayed
for dismissal of the writ petition.
[7] Assailing the impugned orders, Mr.A. Mohendro, learned counsel for
the petitioner submitted that the petitioner was never warned by any officer
regarding his sincerity and hard work and he was never awarded any kind of
punishment under Assam Rifles Act before posting at 24 Assam Rifles. He would
submit that the petitioner was never afforded any kind of opportunity before
entering any adverse remarks in his ACRs.
[8] Learned counsel for the petitioner further submitted that when the
petitioner's MACP-II came up for first time, the ACR was noted "poor" and
thereafter, HQ23 Sector Deputy Inspector General Assam Rifles asked for
document from the Tashil Sadar Gaurakpur and upon that the Deputy Inspector
General Assam Rifles HQ 23 Sector AR made recommendation to the Record
Branch Adm-IV and thereafter the name of the petitioner was mentioned to record
branch and grade pay was granted with effect from 1.8.2009 and the subsequent
MACPs were confirmed.
WP(C)No.79 of 2019 Page 6
[9] Learned counsel for the petitioner then submitted that the petitioner
was awarded Governor Gold Medal Certificate in the year 2012 for his excellence
service and since service as Assam Rifles personnel while posting at HQ 23-
Section, Shillong and was ordered that his excellence shall be entered in his
Service Book and the petitioner was also given letter of appreciation on 31.1.2012
by the Director General Assam Rifles.
[10] Learned counsel for the petitioner further submitted that the
petitioner is fit and well qualified as per the established rules to be retained in
service till his retirement on superannuation and had not committed any illegality
or any act detrimental to the unit. As such, learned counsel for the petitioner
prayed for setting aside the impugned orders and direction to the respondent
authorities to retain the petitioner in service till his retirement on superannuation.
[11] Per contra, Mr. Salam Samarjeet, learned Central Government
Counsel appearing for the respondents submitted that the Service Review Board
found the petitioner unfit for further retention in service due to lacking in the Annual
Confidential Reports criteria as he was "not recommended" for promotion in the
ACRs for the years 2008-2009 and 2012-2013 and was also graded "below
WP(C)No.79 of 2019 Page 7
average" by his reviewing officers. He would submit that the petitioner was found
incapable of performing his duties properly which he was supposed to perform
diligently and efficiently. Hence, for his incompetency, the petitioner was graded
"below average".
[12] Learned Central Government Counsel further submitted that in
pursuance of the order dated 27.8.2018 passed in W.P.(C) No.357 of 2015, the
petitioner has submitted the appeal dated 2.9.2018 and the same was considered
by the competent authority in compliance with the order dated 27.8.2018 and also
in the light of the rules and policies. In the appeal, the competent authority found
that the duly constituted Service Review Board, after considering the entire
service records of the petitioner, had rightly not recommended his retention
beyond 30 years service as there does not exist any provision to allow the unfit
and incompetent employee to continue in service upto to the age of
superannuation. Having examined the whole records, the competent authority
found that the appeal of the petitioner was lacking of any merit and the same was
rejected on 16.11.2018 and, thus, there is no infirmity in the impugned orders.
WP(C)No.79 of 2019 Page 8
[13] Learned Central Government Counsel then submitted that it is true
that the petitioner was awarded with Governor's Gold Medal in the year 2012 for
his dedication and hard work pout in by him during the year 2011 at HQ 23 Sector
Assam Rifles. However, his performance during the assessment years 2008-2009
and 2012-2013 were to found upto the standard at 19 Assam Rifles and 24 Assam
Rifles respectively. In fact, during the assessment years 2008-2009 and 2012-
2013, the petitioner was found to be incompetent in carrying out his duties and
was graded "average" and was not recommended for promotion to his ACRs.
Therefore, due to downfall in his performance, the petitioner was not
recommended for further retention in service beyond 30 years qualifying service
by the Service Review Board.
[14] According to learned Central Government Advocate, the respondent
authorities have followed all due procedure issued by the Government of India in
letter and spirit for carrying out service review which they are bound to do. The
retirement notice dated 18.11.2014 was issued to the petitioner as he was not
found ineligible for further retention beyond 30 years service due to lacking in
ACRs criteria as he was found to be incompetent and unfit. Since the petitioner
WP(C)No.79 of 2019 Page 9
has not submitted pension documents and banker's details to the department, he
is not entitled for any interest on his pension and GPF beyond his retirement date.
[15] This Court considered the submissions raised by learned counsel
appearing on either side and also perused the materials available on record.
[16] The grievance of the petitioner is that he had not committed any
illegality or any act detrimental to the unit and, therefore, he should be retained till
his retirement on superannuation. In fact, the respondent authorities have wrongly
termed the discipline and professional competency of the petitioner as not found
up to the required standard without any basis and without following due procedure
of law, as the ACR other than the last five years are being taken into account only
to invalidate the petitioner for further retention in service.
[17] On the other hand, the respondents contend that the Service Review
Board duly considered the case of the petitioner and found unfit for further
retention in service due to lacking in ACRs criteria and was not recommended for
promotion in the ACRs for the years 2008-2009 and 2012- 2013 and was also
graded "below average" by the reviewing officers. According to the respondents,
WP(C)No.79 of 2019 Page 10
the competent authority has considered the appeal of the petitioner in the light of
the directions given by this Court in W.P.(C) No.357 of 2015 and as per the
applicable rules and rejected the same.
[18] As could be seen from the facts stated in the writ petition, the
petitioner was initially appointed as Naik Writer on regular basis on 25.5.1985 and
after having served in that capacity for many years, he was promoted to the rank
of Naik Subedar Clerk. In January, 2012, the petitioner was awarded Gold Medal.
After having served at different places and in the month of August, 2012, the
petitioner was transferred and posted at 24 Assam Rifles. While he was being
posted at 24 Assam Rifles, he was detailed for duty at A-Branch, the nature of
duty which included maintaining the stationery and computer materials. As
regards the purchase of stationery materials pursuant to the instruction of the
higher officials, there was an allegation against the petitioner and an enquiry was
held, whereby, the petitioner was issued a show cause notice. While the petitioner
was being posted at A-Branch of 24 Assam Rifles, he was detailed at Medical
Branch and the petitioner was issued two warning letters. Due to the adverse entry
in the ACRs being recorded by the then Commandant, the Service Review Board
issued the result dated 31.10.2014, thereby the service of the petitioner was not
WP(C)No.79 of 2019 Page 11
extended and issued an order dated 18.11.2014 informing the petitioner that he
should retire from service on the forenoon of 1.6.2015. Challenging the result of
the Service Review Board and the order not extending the service of the petitioner
dated 18.11.2014,
the petitioner has filed W.P.(C) No.357 of 2015 before this Court.
[19] By the order dated 27.8.2018, this Court disposed of the writ
petition, with the following direction:
"8. For the reasons stated hereinabove, the instant writ petition is
disposed of with the direction that the petitioner shall prefer a
statutory appeal before the appropriate authority in terms of Rule 28
within a week from the date of receipt of a copy of this judgment and
order and in the event of such an appeal being preferred by the
petitioner, the appropriate authority shall consider it and dispose it of
within a month there from by issuing a speaking order. It is open to
the petitioner to approach this court against in case he is aggrieved
by any order issuing by the appropriate authority while disposing of
the said appeal."
[20] Pursuant to the direction issued in the said writ petition, the petitioner
has submitted an appeal dated 2.9.2018 seeking to quash the letter dated
WP(C)No.79 of 2019 Page 12
31.10.2014 and the order dated 18.11.2014 whereby the petitioner was not
recommended for further retention in service and thereby compulsorily retired the
petitioner from service on the forenoon of 1.6.2015.
[21] The second respondent, who is the competent authority, has
rejected the appeal of the petitioner dated 2.9.2018. In paragraphs 6 and 7, the
competent authority held as under:
"6. NOW THEREFORE, keeping in view the above facts in mind, the
Competent Authority is of the considered opinion that the duly
constituted Service Review Board after considering entire service
records of JC 361352M Ex Naib Subedar (Clerk) Chandra Prakash
Dubey of 24 Assam Rifles has rightly not recommended retention of
the petitioner beyond 30 years of service as there does not exist any
provision to allow unfit and incompetent employees to continue in
service upto the age of superannuation. Allowing such unfit and
incompetent employees in service beyond 30 years qualifying
service would be prejudicial to Assam Rifles and will be against the
national interest. Therefore, the petitioner was appropriately found
ineligible for retention beyond 30 years service by the Service
Review Board based on the rules and policy instructions on the
subject. Hence, the appeal dated 02 September 2018 submitted by
No.JC 361352M Ex JC-361352M Bain Subedar (Clerk) Chandra
WP(C)No.79 of 2019 Page 13
Prakash Dubey of 24 Assam Rifles has been found to be devoid of
any merit and the same is hereby rejected.
7. This order disposed off the appeal dated 02 September 2018
submitted by No.JC 361352M Ex Naib Subedar (Clerk) Chandra
Prakash Dubey of 24 Assam Rifles."
[22] A perusal of the records of the petitioner would show that on
3.3.1998, he was awarded reprimand under Section 63 of the Army Act for the act
prejudicial to good order and military discipline. On 11.2.2013, the petitioner was
awarded severe reprimand under Section 49 of the Assam Rifles Act for the act
prejudicial to good order and discipline of the Force and on 16.12.2013, he was
awarded severe reprimand under Sections 44(d), 26(a) and 26(b) of Assam Rifles
Act for making false declaration, absenting himself without leave and overstaying
leave granted to him. Apart from the above punishments, the petitioner was also
warned two times on 11.12.2013 and 22.5.2014 by the 24 Assam Rifles. The
petitioner was also assessed to be "below average".
[23] The petitioner was screened by the Service Review Board and found
unfit for further retention in service for not fulfilling the mandatory ACR criteria as
he was found to have been graded "low average" with remarks "not recommended
WP(C)No.79 of 2019 Page 14
for promotion" in the ACR for the period from 1.4.2008 to 31.3.2009 and from
1.4.2012 to 31.3.2013. When that being the position of the petitioner, the
argument of learned counsel for the petitioner that the petitioner was awarded
Governor Gold Medal in the year 2012 for his excellence and sincere service while
posting at HQ 23 Sector Shillong and therefore the second respondent ought not
to have stopped the service of the petitioner with effect from 1.6.2015 and that the
respondent authorities should take back the petitioner into service with effect from
1.6.2015, cannot be countenanced.
[24] By placing reliance upon the decision of the Hon'ble Supreme Court
in the case of Sukhdev Singh v. Union of Indian and others, (2013) 9 SCC 566,
learned counsel for the petitioner submitted that every entry in ACR whether poor,
fair, average, good, very good or outstanding, should be communicated to the
employee concerned within a reasonable period. In the case of the petitioner, the
respondent authorities failed to communicate the entry of the ACR to the
petitioner. Therefore, the non-communicated ACR cannot be taken into account
to deny the retention.
WP(C)No.79 of 2019 Page 15
[25] In the appeal dated 2.9.2018, the petitioner has not taken a ground
that he was not communicated the entry of the ACRs. In the grounds, the petitioner
has stated that upon a purported ACR entry of the year 2012-2013, he was not
recommended for further retention in service. Nothing has been produced by the
petitioner to show that he was not communicated the ACRs in question to him and
he was not aware of the entries made therein. In the absence of proof that he was
not communicated the entry in ACRs, mere oral argument in that regard cannot
be taken note of. Therefore, the decision relied upon by learned counsel for the
petitioner in the case of Sukhdev Singh (supra) is not applicable to the case of the
petitioner.
[26] It is well settled that even uncommunicated entries in the confidential
records can also be taken into consideration. Therefore, the petitioner cannot
contend that the uncommunicated entry in the ACR would affect the impugned
orders.
[27] It appears that the Service Review Board of the petitioner was held
on 31.10.2014. The Governor Gold Medal canvassed by the petitioner is of the
year 2012. Thus, while examining the matter, the Service Review Board took into
WP(C)No.79 of 2019 Page 16
consideration the award of Governor Gold Medal earned by the petitioner.
However, the Service Review Board found that the petitioner was found to have
been graded "below average" in two ACRs for the year 2009 and 2013 out of his
last five ACRs with remarks "not recommended for promotion". In fact, the
petitioner had earned two ACRs at two different establishments and had been
assessed by two different reporting officers.
[28] As per the Record Officer Instruction No.1 of 2004 and the
instructions issued by the DGAR (Record Branch) dated 21.8.2015, a Naib
Subedar should have the following ACR criteria for retention beyond 30 years'
service:
(i) Out of last five ACRs, minimum three report should be "high
average".
(ii) Rest two reports should not be below "average".
(iii) Should be recommended for promotion in all five reports.
[29] As stated supra, the petitioner was found to have been graded
"below average" in two ACRs out of his last five ACRs with remarks "not
recommended for promotion". The fact remains that the petitioner was awarded
Governor's Gold Medal for his meritorious service rendered during 2012.
WP(C)No.79 of 2019 Page 17
Therefore, getting award of Governor's Gold Medal during 2012 does not make
the petitioner qualified for retention beyond 30 years service and, in fact, retention
depends upon maintaining the required mandatory qualitative requirement. In the
case on hand, as rightly argued by learned Central Government Counsel, the
mandatory qualitative requirement of the petitioner is not upto to the required
standard.
[30] Employees identified to be unfit and incompetent are made to retire
under Rule 48 of CCS (Pension) Rules, 1972 on completion of 30 years' service
or 55 years of age, as the case may be. All service records, including the ACRs
of last five years of the employees, are scrutinized and taken into account by the
department while carrying out their service review in order to ascertain their fitness
and competent for further retention in service.
[31] Rule 48 of CCS (Pension) Rules, 1972 reads thus:
"(1) At any time after a Government servant has completed 30 years
qualifying service;
(a) He may retire from service, or
WP(C)No.79 of 2019 Page 18
(b) He may be required by the Appointing Authority to retire in the
public interest, and in the case of such retirement, the Government
servant shall be entitled to a retiring pension:
Provided that;
(a) A Government servant shall give a notice in writing to the
appointing authority at least three months before the date on which
he wishes to retire; and
(b) The appointing authority may also give a notice to a Government
servant at least three months before the date on which he is required
to retire in public interest or three months pay and allowances in lieu
of such notice."
[32] On a perusal of the impugned order dated 18.11.2014, it seen that
the same has been issued by the DGAR and the DGAR is of the firm opinion that
the said order is issued in the public interest. Accordingly, in exercise of powers
conferred by 56(j) of Fundamental Rules and Rule 48(1)(b) of the CCS (Pension)
Rules, 1972, the DGAR gave notice to the petitioner that on completing 30 years
of qualifying service for pension on 25.5.2015, he shall retire from service on the
forenoon of 1.6.2015. Admittedly, the said decision of the DGAR was issued
pursuant to the result of the Service Review Board dated 31.10.2014, whereby,
the Service Review Board classified the JCO into Appendix-A and Appendix-B.
WP(C)No.79 of 2019 Page 19
Approval of the competent authority was accorded for retention in service beyond
30 yearsof qualifying service or 55 years of age, whichever is earlier to the JCOs
has been mentioned in Appendix-A and the JCOs mentioned in Appendix-B were
not granted further retention being not eligible due to the reason mentioned
against the JCO and they will retire from service on due date after issuing
necessary order as per Rule 48(1)(b) of CCS (Pension) Rules, 1972. On a perusal
of the Appendix-B, the name of the petitioner appeared at Serial No.1 and the
reason for not eligible for further retention has been stated as under:
"The JCO is not meeting ACR Criteria, hence not recommended for further
retention in service."
[33] Admittedly, these two orders i.e. the result dated 31.10.2014 and the
order dated 18.11.2014 have been challenged by the petitioner in W.P.(C) No.357
of 2015 and as stated supra, this Court, while disposing of the writ petition,
directed the petitioner to file the statutory appeal before the appropriate authority
in terms of Rule 28 of the Assam Rifles Rules, 2008. Accordingly, the petitioner
has also preferred the appeal and by the impugned order dated 16.11.2018, the
appeal was rejected. Since the result of Service Review Board and the order dated
18.11.2014 have already been under challenge in W.P.(C) No.357 of 2015, once
WP(C)No.79 of 2019 Page 20
again the challenge made to the said orders in the instant writ petition, is
unacceptable.
[34] As far as challenge made to the impugned order dated 16.11.2018
is concerned, the competent authority found that the petitioner was ineligible for
retention beyond 30 years' service due to lacking in ACR criteria and the petitioner
was also not fulfilled the ACR criteria i.e. "two reports should not be below
'average'; and should be recommended for promotion in all five reports".
[35] As stated supra, the two ACRs for the year 2009 and 2013, the
petitioner was graded "below average" and not recommended for promotion. The
petitioner was also given clear three months advance notice in terms of Rule
48(1)(b) of the CCS (Pension) Rules, 1972, thereby fixing his retirement dated
1.6.2015 FN under the order dated 18.11.2014. Therefore, the order dated
18.11.2014 cannot be faulted by the petitioner as the same was issued pursuant
to the result of the Service Review Board. The respondent authorities have also,
while carrying out the exercise of service review, examined the case of the
petitioner in proper perspective and only after finding that the service record of the
petitioner is not up to the required standard of the Force, have not recommended
WP(C)No.79 of 2019 Page 21
for retention and accordingly, found ineligible for retention beyond 30 years'
service. That apart, the retention of an employee beyond 30 years or 55 years of
age is the policy decision of the department and the Court cannot interfere in it,
unless it is shown that the decision of the department is arbitrary, mala fide and
against the provisions of applicable law. In the instant case, the petitioner has
failed to prove the arbitrariness and mala fide. In the absence of any proof, the
petitioner cannot contend that the impugned order dated 16.11.2018 was issued
in arbitrary manner.
[36] It is trite law that an order of compulsory retirement is not an order or
punishment. It is actually a prerogative of the Government but it should be based
on material and has to be passed on the subjective satisfaction of the
Government.
[37] Law relating to compulsory retirement has also been crystallized by
the Hon'ble Supreme Court in the case of State of Gujaraj v. Umedbhai M.Patel,
(2001) 3 SCC 314. In the said judgment, the Hon'ble Supreme Court crystallized
into definite principles in paragraph 11 and the same is extracted herein below:
WP(C)No.79 of 2019 Page 22
"11. The law relating to compulsory retirement has no crystallized
into definite principles, which could be broadly summarized thus:
(i) Whenever the services of a public service are not
longer useful to the general administration, the officer can be
compulsorily retired for the sake of public.
(ii) Ordinarily, the order of compulsory retirement is not to be treated
as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood,
but the order of compulsory retirement can be passed after having
due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be
taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also
be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short
cut to avoid departmental enquiry when such course is more
desirable.
(vii) If the officer was given a promotion despite adverse entries made
in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive
measure."
[38] In the present case, as stated supra, the impugned result dated
31.10.2014 and the order dated 18.11.2014 were passed as per Rule 48(1)(b) of
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the CCS (Pension) Rules, 1972 that the petitioner is required to retire in the public
interest as he earned adverse remarks and therefore, incompetent to continue his
job. An employee having adverse remarks in the service record, cannot compel
or force the employer to retain him beyond 30 years of service of 55 years of age.
The petitioner having adverse remarks as stated supra, cannot compel the
respondent authorities to retain him beyond 30 years of service or 55 years of
age.
[39] Considering the facts and circumstances of the case and on scrutiny
of the materials produced by both sides, this Court finds that there is no infirmity
in the order impugned dated 16.11.2018 and the plea of the petitioner that his
whole service record has not been considered by the competent authority is
unfounded. In fact, the plea of the petitioner is misleading as his whole service
record, including last five ACRs, were considered by the Service Review Board
and the petitioner was found lacking for further retention beyond 30 years' service
due to his adverse ACR for the years 2009 and 2013. There is also no plea of
violation of principles of natural justice from the side of the petitioner. Thus, only
after affording reasonable opportunity, the respondent authorities have issued the
impugned orders. Therefore, this Court is of the view that the respondent
WP(C)No.79 of 2019 Page 24
authorities are right in issuing the impugned orders. There is no merit in the writ
petition.
[40] Accordingly, the writ petition is dismissed. No costs.
JUDGE
FR/NFR
John Kom
WP(C)No.79 of 2019 Page 25
