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ASI SAJJAN SINGH NO.215 GRP versus STATE OF HARYANA & ORS.

High Court of Punjab and Haryana, Chandigarh

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ASI Sajjan Singh No.215 GRP v. State of Haryana & Ors. - CWP-6191-2004 [2006] RD-P&H 253 (23 January 2006)

CWP No. 6191 of 2004 Page numbers

In the High Court of Punjab and Haryana, Chandigarh.

CWP No. 6191 of 2004

Date of decision: 7.2.2006

ASI Sajjan Singh No.215 GRP

....Petitioner

Versus

State of Haryana and others.

....Respondents.

Coram:- Hon'ble Mr.Justice J.S. Khehar.

Hon'ble Mr. Justice S.N. Aggarwal

Present: Mr. Sunil Chaudhary, Advocate

for the petitioner.

Mr. Harish Rathee, Sr. DAG, Haryana

for the respondents.

...

J.S. Khehar, J. (Oral).

The petitioner was recruited into the police service of the State government as a Constable on 2.4.1973. He was promoted as Head Constable in 1978 and confirmed as such w.e.f. 31.8.1986. The Superintendent of Police, Railways, Haryana, exercising the powers vested in him under Rule 9.18 (ii) of the Punjab Police Rules (hereinafter referred CWP No. 6191 of 2004 Page numbers

to as the Police Rules) issued a notice dated 2.3.2004 (Annexure P-4) to the petitioner informing him, that he would stand retired from service on the expiry of three months from the date of receipt of the notice by him. The acknowledged factual position is, that the notice dated 2.3.2004 was received by the petitioner on 5.3.2004, and as such, in terms of the order dated 2.3.2004, the petitioner would stand retired w.e.f. 4.6.2004.

Despite the order dated 2.3.2004 (Annexure P-4), the Superintendent of Police, Railways, Haryana, passed another order dated 11.3.2004 (Annexure P-5), retiring the petitioner with immediate effect. Be that as it may, the order dated 11.3.2004 was withdrawn by a superseding order dated 15.3.2004 (Annexure P-6) by expressly noticing, that the petitioner had already been issued a notice dated 2.3.2004 retiring him from service.

It is at this stage, that the petitioner filed the instant writ petition, wherein notice of motion was issued on 20.4.2004. During the pendency of the instant writ petition, C.M. No.8362 of 2004 was filed by the petitioner, enclosing therewith an order dated 4.5.2004 (Annexure P-7) vide which the Superintendent of Police, Railways, Haryana, again ordered the retirement of the petitioner with immediate effect. Through the instant CWP No. 6191 of 2004 Page numbers

writ petition, the orders dated 2.3.2004 (Annexure P-4) and 4.5.2004 (Annexure P-7) have been impugned by the petitioner.

We shall, first of all, deal with the order dated 4.5.2004 retiring the petitioner with immediate effect. It is apparent, and not a matter of dispute between the parties, that the rule governing the retirement of the petitioner before attaining the age of superannuation is, Rule 9.18 of the Police Rules. Rule 9.18 of the Police Rules, is being extracted hereunder in its entirety:

"Rule 9.18. (1) Notwithstanding anything contained in these rules, a retiring pension is granted to an officer:- (a) who is permitted to retire from service after completing qualifying service for twenty-five years or such lesser period of as may, for any class of officer be prescribed; or

(b)who is compulsorily retired under sub-rule (2) after completing twenty-five years' qualifying service; or (c) who is retired by the appointing authority on or after he attains the age of 55 years, by giving him not less than three month's notice; or

CWP No. 6191 of 2004 Page numbers

(d)who retires on or after attaining the age of 55 years by giving not less than three months' notice of his intention to retire to the appointing authority.

Provided that where the notice is given before the age of fifty- five years so attained, it shall be given effect to from a date not earlier than the date on which the age of fifty-five years is attained.

NOTE:- Appointing authority retains an absolute right to retire any Government servant on or after he has attained the age of 55 years without assigning any reason. A corresponding right is also available to such a Government servants to retire on or after he has attained the age of 55 years.

(2) The Inspector-General of Police may, with the previous approval of the State Government, compulsorily retire any Police Officer, other than an officer belonging to Indian Police Service or Haryana state Police Service who has completed twenty-five years' qualifying service, without giving any reasons. An officer who is so compulsorily retired will not be entitled to claim any special compensation for his retirement.

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NOTE:- The right to retire compulsorily shall not be exercise when it is in the public interest to dispense with the further services of an officer on grounds such as inefficiency, dishonesty, corruption or infamous conduct. Thus the rule is intended for use:-

(1) against an officer who efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient i.e., when an officer's value is clearly incommensurate with the pay which he draws but not to such a degree as to warrant his retirement on a compassionate allowance. It is not the intention to use the provisions of this rule as a financial weapon that is to say the provisions should be used in only the case of an officer who is considered unfit for retention on personal as opposed to financial grounds.

(ii) in cases where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific instance is likely to be proved.

CWP No. 6191 of 2004 Page numbers

NOTE 2:- The officer shall be given an adequate opportunity of making any representation that he may desire to make against the proposed action and such representation shall be taken into consideration before his compulsory retirement is ordered. In all cases of compulsory retirement of enrolled police officers, the Inspector-General of Police shall effect such retirement only with the previous approval of the State Government in accordance with the instructions, if any, issued by the Government on the subject from time to time.

NOTE 3:- The officer whose duty it would be to fill the post if vacant, shall record orders on the application to retire, which, if in vernacular, should be accompanied by a translation in English. If the officer who applies for pension is permitted to retire, the application shall be forwarded with the pension papers."

It is also the case of the parties, that the petitioner came to be retired on attaining the age of 55 years. It is, therefore apparent, that the rule invoked to retire the petitioner was Rule 9.18(1)(c) of the Police Rules. The aforesaid rule could have been invoked only after giving the petitioner a CWP No. 6191 of 2004 Page numbers

notice of a period not less than three months. Since the order dated 4.5.2004 (Annexure P-7) was passed retiring the petitioner with immediate effect, it is obvious, that no notice was given to the petitioner while retiring him by the impugned order dated 4.5.2004. The aforesaid order is, therefore, clearly violative of Rule 9.18(1)(c) of the Police Rules. The same is, accordingly, set aside.

We shall now examine the validity of the impugned order dated 2.3.2004 (Annexure P-4). A perusal of the same would reveal, that the instant order was passed by the Superintendent of Police, Railways, Haryana, undoubtedly the appointing authority of the petitioner. It is, therefore clear, that the authority which issued the notice dated 2.3.2004 to the petitioner, was the one, which actually and factually had the jurisdiction to issue the same. Rule 12.1 of the Police Rules, vests the functions of the appointing authority with the Superintendent of Police. We are, therefore satisfied, that the Superintendent of Police, Railways, Haryana, was fully competent to issue the order dated 2.3.2004.

It would be unfair on our part not to notice the vehement contention of the learned counsel for the petitioner to the effect, that the competent authority was the Inspector General of Police, and further, that CWP No. 6191 of 2004 Page numbers

the Inspector General of Police could not also have passed the impugned order, except with the previous approval of the State government. In order to substantiate the aforesaid contention, learned counsel for the petitioner has expressly placed reliance on Note 2 under Rule 9.18 (2) of the Police Rules. Having examined Rule 9.18 of the Police Rules in its entirety, we are satisfied, that Note 2 under Rule 9.18 (2) of the Police Rules, is a clarification/explanation limited to the interpretation of Rule 9.18(2) of the Police Rules, and is irrelevant in so far as Rule 9.18 (1) (c) of the Police Rules is concerned. In view of the above, we find no merit in the contention of the learned counsel for the petitioner, that the jurisdiction, in so far as the present controversy is concerned, was vested with the Inspector General of Police, and that too, with the previous approval of the State government.

Since we have already arrived at the conclusion, that an order under Rule 9.18(1)(c) could be passed by the Superintendent of Police, the only other requirement of the rule is, that the said order could have been passed by giving the petitioner a notice of three months. The impugned order reveals, that a notice of three months with effect from the date of receipt of a copy of the order dated 2.3.2004 was issued to the petitioner.

CWP No. 6191 of 2004 Page numbers

That being so, it is obvious and apparent, that all the requirements of Rule 9.18(1)(c) of the Police Rules were complied with while passing the order dated 2.3.2004 (Annexure P-4). Since there is no infirmity in the impugned order dated 2.3.2004, and since the petitioner was served with the aforesaid order on 5.3.2004, the retirement of the petitioner w.e.f. 4.6.2004 is fully justified and valid in law.

Writ petition stands dismissed.

( J.S. Khehar )

Judge.

(S.N. Aggarwal)

Judge.

07.02.2006

sk.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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