Ex.
Capt. R.S. Dhull Vs. State of Haryana & Ors [1988] INSC 114 (21 April 1988)
A.S.
Anand, S. Rajendra Babu
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
The
appellant is an Ex-Serviceman. He was accepted as a Tehsildar candidate w.e.f. September 13, 1974 and allowed the benefit of military
service for the purposes of seniority and was assigned the deemed date of May 27, 1973.
It
appears that certain adverse remarks came to be recorded in his Annual
Confidential Reports for the years 1978-79, 1981-82, 1982-83 and 1984-85. The
appellant questioned the adverse remarks and sought their expunction by filing
a writ petition in the High Court in 1987. The High Court on 2nd May, 1990 directed the expunction of the
adverse entries in the Annual Confidential Report of the appellant. The High
Court also set aside the orders passed by the competent authorities against
refusal to expunge the adverse entries.
The
respondents were directed to grant consequential relief to the appellant. As a
consequence of the judgment of the High Court dated 2nd May, 1990, the
appellant was promoted as a District Revenue Officer on September 29, 1991 w.e.f.
March 15, 1982. The appellant, however, was not satisfied with the orders made
pursuant to the judgment of the High Court and he, therefore, filed a special
leave petition in this Court being S.L.P.(C) No. 104/92 (C.A. No. 4249/92). A
Bench of this Court granted leave and by an order dated 12.10.92 directed
consideration of the appellant's name for promotion to H.C.S. (Executive Branch)
without taking into account the expunged adverse remarks. After the judgment by
this Court rendered in Civil Appeal No.4249/92 on 12th october, 1992 the case
of the appellant was taken up for consideration by the State Government and
vide communication dated 28th December, 1992 from the Chief Secretary,
Government of Haryana, Chandigarh to the appellant, he was informed that the
matter had been placed before the selection committee constituted under Rule
7(1) of the Punjab Civil Service (Executive Branch) Rules, 1930 for considering
his name for recruitment to the H.C.S. (Executive Branch) from Register A-1 for
the vacancies which occurred in the year 1980 and 1982 as also for the special
recruitment to the H.C.S. (Executive Branch) held in 1983, without taking into
account the adverse expunged remarks.
The
appellant was informed that the Selection Committee had considered his name for
inclusion in the list of persons considered suitable for appointment to the H.C.s.
(Executive Branch) against the vacancies for the said years but that "The
Selection Committee in its meeting held on 16-12-1992 has found the record of
other persons whose names had been included in the lists, already prepared on
13- 12-1982, 17-3-1987 and 24-2-1988, better than yours and has decided not to
include your name in the said lists. Since your name has not been included in
the list of persons considered suitable for appointment to the HCS(Executive
Branch), you can not be considered for appointment to the HCS (Executive
Branch) against the vacancies of Registrar A-1 for the years 1980, 1982 and
special recruitment for the year 1983." The appellant thereafter filed
Civil Writ Petition No. 6977/93 in the High Court of Punjab and Haryana
alleging that his name had been wrongly "excluded from consideration for
appointment to the Haryana Civil Service for the years 1980, 1982 and
1983." Various grounds were taken in support of the writ petition. The
learned Single Judge of the High Court vide judgment dated 25th July, 1984 dismissed the writ petition. In the
course of the judgment the learned Single Judge referred to Rule 7 of the
Punjab Civil Service (Executive Branch) Rules, 1930 as amended and applied to
the State of Haryana as well as to a comparative chart of the service record of
the appellant and those who were selected to the Haryana Civil Service
(Executive Branch) in the years 1980, 1982 and 1983. The learned Single Judge
observed:
"Learned
counsel for the petitioner could not refer to any material on the record to
show that the service record of the petitioner was better than that of the
persons who hadbeen included in the list prepared by the committee and sent to
the commission for Recommending in order of merit, Case of the petitioner was
considered in terms of the Rules ibid but his service record was not found
better than that of the candidates recommended to the Commission for selection.
It is not the case of the petitioner that names of all the eligible candidates
were to be sent to the commission for selection. Rule 7 of the Rules
specifically provides that the Committee shall prepare a list of eligible
candidates equal to twice the number of vacancies available and this is
precisely that was done by the Committee.
The
lists prepared by the Committee were sent to be Commission for recommending in
order of merit and equal to the number of vacancies the most suitable
candidates entered in the list of being selected as candidates for entry into
Register A-1.
Petitioner
had only a right of Consideration and his name was duly considered by the
Committee. He was not considered suitable by the Committee and thus his name
could not be (sent to the Commission. The Government placed the record before
this Court to know that the case of the petitioner was duly considered against
the vacancies that occurred during the years 1980, 1982 and 1983 and that his
name could not be included in the list prepared by the Committee."
(Emphasis ours) A Letters Patent Appeal filed against the judgment of the
learned single Judge was dismissed on 7th September, 1984. The Division Bench agreed with the
learned Single judge and recorded a finding that consequent upon the expunction
of the adverse remarks, the Selection Committee had considered the case of the
appellant for inclusion of his name in the list prepared for the vacancies
relating to the relevant years 1980, 1982 and 1983 and after due consideration
he was not found suitable. The Bench rightly held that the appellant had only a
right of consideration and since his name was duly considered by the High
Powered Committee and he was not found suitable, he could not make any
grievance against his non-selection. Aggrieved by the judgment of the Division
Bench, the present special leave petition has been filed.
The
appellant had filed the special leave petition in- person. We, however, found
that the questions requiring consideration in the special leave petition were
such which required assistance from a lawyer and, accordingly, we directed the
Supreme Court Legal Services Committee to provide assistance to the appellant.
Mr. Raju Ramachandran, learned senior advocate agreed to assist the Court and
has appeared during the proceedings in this case.
While
this appeal was pending in this Court learned counsel for the State informed
the Court that the petitioner had been retired compulsorily in 1993 vide order
dated 29th September, 1993 and, therefore, his appeal had been rendered infructuous.
The appellant, however, submitted that he had filed a writ petition in the high
Court challenging the order of compulsory retirement (C.W.P. No. 7214/93) and
vide judgment dated 17-10-95 a learned Single judge of the High Court had
allowed the writ petition and set aside the order of compulsory retirement. It
transpires that a Letters Patent Appeal filed against that judgment of the
learned Single Judge by the State was dismissed on 23rd of July, 1997. The
State, thereafter, decided not to file any special leave petition against the
order of the Division Bench dismissing Letters Patent Appeal on 23rd of July,
1997. As a consequence, the order of compulsory retirement made on 29.9.93 did
not survive.
Mr. Raju
Ramachandran, learned senior advocate, submitted that not only was the
appellant entitled to be treated in service from the date when the order of his
compulsory retirement was made i.e. on 29th September, 1993 till the date he attained the age
of superannuation on 29th
February, 1996, but he
was also entitled to receive G.P. Fund and the other retiral benefits. It was
submitted that even pension of the appellant had not been fixed and he had not
been paid any pension and the State had no justification to withhold the retiral
benefits. On 15-10-97 we made the following order:
"During
the course of hearing of this special leave petition, it has been submitted by
learned counsel for the State that the State Government has decided not to file
any special leave petition against the order of the Division Bench dismissing
Letters Patent Appeal on 23.7.1997. It, therefore, shows that the order of
compulsory retirement made on 29.9.1993 does not survive, as the writ petition
against that order was allowed and the Letters Patent Appeal has been
dismissed.
Mr. Raju
Ramcachandran, learned senior counsel appearing for the petitioner submits that
though the petitioner has superannuated on 29.2.1996, the G.P. Fund was not
released to him till the High Court had to intervene in the LPA filed by the
State. It is stated that on 22.5.1997, during the pendency of the LPA, the High
Court directed the State to release the G.P. Fund of the petitioner and
consequent thereupon, it has been released. It is, however, submitted that the
pension of the petitioner has not been fixed and he has not been parts any
pension at all from the date he superannuated. Withholding of pension is a
serious matter. We view it with concern. Learned counsel for the State assures
us that he will have the matter examined at priority basis. We, therefore,
direct:
1) The
State shall, on the basis of the service record available with them, fix the
provisional pension of the petitioner and intimate the same to him within ten
days by registered post. In case any formality is required to be completed by
the petitioner for receiving pension, intimation shall be given to him in the
same communication within ten days. Within fifteen days from the date of
receipt of the communication from the State, the petitioner shall furnish the
required information, if any, as also his response insofar as the fixation of
the provisional pension is concerned.
2) The
State shall also, on the basis of the provisional pension, work out the arrears
of the pension and communicate the same to the petitioner. The amount of
arrears so calculated shall be paid to the petitioner on the basis of the
provisional pension within six weeks from today. This shall, however, be
without prejudice to the rights of the parties." The provisional pension,
we are informed has since been fixed and is being paid to the appellant.
We
have heard learned counsel for the parties on the main grievance of the
appellant i.e. that his name was wrongly excluded from consideration for
appointment to the Haryana Civil Service for the years 1980, 1982 and 1983. We
have examined the record also. The appellant had only a right to be considered
and we agree both with the learned Single Judge and the Division bench of the
High Court that his case was properly considered ignoring the expunged adverse
entries made in his Annual Confidential Reports by a High Powered Committees
but the appellant was not found suitable by that Committee to be recommenced to
the Commission. It is, therefore, futile to contend that there was any lack of
consideration of his case or that the consideration of his case was based on
any irrelevant or inadmissible grounds. The record reveals that his case was considered
alongwith the service record of the other eligible candidates who had been
brought on the select list and we are not pursuaded to hold that the
consideration of his case suffered from any infirmity. The plea that the High
Powered Committee was influenced by the adverse entries is not correct and
deserves a notice only to be rejected. We, therefore, do not find any reason to
interfere with the orders of the learned Single Judge and the Division Bench in
that regard. However, there is one other aspect of the matter which requires
our consideration.
Mr. Raju
Ramachandran, learned senior advocate submitted that in spite of the orders of
this Court dated 15-10-97 (supra) all the retiral benefits
have not so far been paid to the appellant. He submitted that while provisional
pension has been fixed, but other benefits like G.P. Fund dues, Gratuity etc.
have not so far been paid to him. He rightly argued that the respondents were
not justified to withhold the G.P. Fund and the Gratuity more particularly in view
of the directions given by us on 15-10- 97. We, therefore, direct that while
the case of fixation of proper pension of the appellant shall be decided by the
respondents within three months from the date of this order, the G.P. Fund,
Gratuity and other retiral benefits (which remain unpaid) shall also be paid to
the appellant within the aforesaid period of three months. The appellant shall
also be entitled to interest at the rate of 12% per annum on the withheld G.P.
Fund and Gratuity etc. from the date the same became payable to him on his
attaining the age of superannuation till the date the payment is made to him.
The
appeal is thus disposed of in above terms. No costs. We wish to place on record
our deep appreciation for the valuable assistance rendered by Mr. Raju Ramachandran,
learned senior advocate to the Court.
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