Bhagwan Dass V/S State Of Haryana

Factors which weigh in the mind of the competent authority while granting officiating promotion are not the same which have to be kept in view while deciding the issue relating to premature retirement

Case name: Bhagwan Dass V/S State Of Haryana
Citation: JT 1996 {1} 483
Court: The Supreme Court Of India
Bench: JUSTICE NANAVATI, JUSTICE RAY, G.N
Decided on: JANUARY 16, 1996
Relevant Act/Sections: Section 125 of the Code of Criminal Procedure, Section 302 read with section 34 I.P.C.

• BRIEF FACTS AND PROCEDURAL HISTORY:
• The alleged are that the petitioner had joined the police department on 15.5.1983. He earned his due promotions. He was entitled to by brought on list ””D”” for further promotion of Sub-Inspector w.e.f. 11.12.1989. In this regard, his representations were rejected. The petitioner filed a Civil Writ Petition No. 12331 of 1998 seeking promotion as Sub-Inspector. 
• When notice of motion was issued by this Court, the respondents promoted the petitioner as Sub-Inspector on 10.12.1998 with effect from 1991. The grievance of the petitioner is that within a short span of 10 months he had been served with three months notice for retiring him compulsorily at the age of 55 years and three months.
• It is contended that the order retiring him compulsorily is illegal because before issuing such an order, now show cause notice or opportunity of being heard had been given to the petitioner. He further asserted that once He has been promoted, the earlier confidential reports which are adverse would be washed away and cannot be taken into consideration.
• Lastly, according to the petitioner, he could only be retired by the Director General of Police with the previous approval of the State Government and that has not been done and, therefore, the order is illegal. Hence, the present petition.

• PROCEDURAL HISTORY:
• In the written statement filed, the petition as such has been contested. It is not in dispute that the petitioner earlier filed a writ petition, referred to above. While reply to the said writ petition was being prepared and examined, he was promoted as officiating Sub-Inspector i.e. 9.8.1991. Subsequently, he was not found fit for retention in government service. 
• He had earned adverse reports from 22.4.1994 to 7.11.1994. The integrity of the petitioner was reported to be doubtful. Therefore, he was retired compulsorily. The reason is that at the time of his earlier promotion, record only up to the year 1990 was considered and, therefore, he was promoted.
• It is denied that only the Director General of Police with the approval of the State Government could retire the petitioner. According to the respondents, the petitioner had 25 years qualifying service and, therefore, he could be retired.

• ISSUE BEFORE THE COURT:
• Whether the writ petition is maintainable?

• RATIO OF THE COURT:
• The court held that this adverse report could legitimately be taken into consideration for forming an opinion that the petitioner was not fit to be retained in service or that his retention was not in public interest/interests of service. His officiating promotion on 11.2.1980 as Sub-Inspector cannot have the effect of washing out the adverse reports because the assessment of the record of an employee at the 5 stage of promotion is substantially different from the assessment made for his retention in service after attaining a particular age or specified length of service. In the former case record of a limited period is considered but in the latter case overall record of service is required to be taken into account with greater emphasis on the record of previous 10 years. 
• The court also held that Moreover, factors which weigh in the mind of the competent authority while granting officiating promotion are not the same which have to be kept in view while deciding the issue relating to premature retirement.
• The court held that in this case sufficient material was available with the competent authority to form an opinion that the retention of the respondent No. 1 in service was not in public interest and in view of the principles of law laid down in Sh. Baikuntha Nath Das and another v. Chief District Medical Officers, Bari-pada and another 1992(2) SLR 2 we do not find any legal justification to hold that the premature retirement of the petitioner is arbitrary or otherwise unjustified.
• The court held that it is abundantly clear from the aforesaid that mere promotion by itself will not wash away the adverse entries. As one looks at the present controversy, the petitioner cannot take advantage of the said argument. This is for the reason that he was promoted as Sub-Inspector w.e.f. 1991.
• Hence, the court held that therefore, his confidential dossier for the earlier period was seen. His integrity was found to be doubtful in the subsequent years. Therefore, it is the subsequent entry which would prevail when the order in question is to be seen and the fact that he was promoted loses its sting and significance. Herein, copies of adverse entries against the petitioner have been appended as Annexure P-4 and Annexure P-5. 

• DECISION HELD BY COURT:
• In this case the judgement was given by JUSTICE NAVATI that the allegation was that at the instigation of the parents and with the help of his brother Rajinder, the appellant had caused the death of his wife.
• The court stated that the opinion that the High Court committed a grave error in coming to the conclusion on the basis of such insufficient evidence that it was the appellant and appellant alone who caused the death of Shanno Devi.  
• The court allowed this appeal, set aside his conviction under Section 302 I.P.C. and acquit him.  Then appellant is on bail and, therefore, his bail bonds re-discharged.