Mr. Permod Kohli, J.: (Oral) - C.M. No. 5370 of 2011

Application is allowed.

Delay of 191 days in filing the appeal is condoned.

LPA No. 2008 of 2011

2. Notice of motion.

3. Mr. Vishal Malik, Advocate accepts notice on behalf of respondent.

4. Judgement dated 23.2.2011 passed by learned Single Judge in CWP No. 15594 of 2009 filed by the respondent herein and allowed by the learned Single Judge against the order of compulsory retirement has been subjected to challenge in the present appeal.

5. Facts relevant for the purposes of the present appeal are being noticed hereinafter:-

6. Respondent no.1 was recruited as a constable in the Haryana Police in the year 1976. He earned promotions up to the rank of A.S.I, last promotion being on 4.4.2003. Under the Govt. Instructions respondent was required to be considered for retention in service beyond the age of 55 years. Respondent attained the age of 55 years as on 23.8.2009. Superintendent of Police, Panipat served a notice of three months bearing No.37205 dated 21.5.2009 upon the respondent for his premature retirement by declining retention in service beyond 55 years in terms of Rule 9.18 (2) of the Punjab Police Rules and Rule 3.26 (d) of the Punjab Civil Service Rules Vol. I Part I as applicable to the State of Haryana. Respondent no.1 responded to the aforesaid notice, however, the competent authority i.e the Inspector General of Police, Rohtak Range, Rohtak vide communication dated 25.2.2009 passed the order of premature retirement of the respondent by refusing to retain him in service beyond the age of 55 years. Relevant extract of the order is reproduced hereunder:-

“ No.3956/A-1 dated 25.2.2009

Subject:- Retention in service beyond the age of 55 years case of ASI Mohinder Singh No.91/PPT.

Memo.

Please refer to your office memo No.2162/SPL dated 21.1.09 and 4158/SPL dated 13.2.09, on the subject noted above.

The case of ASI Mahender Singh No.91/PPT for retention in service beyond the age of 55 years has been examined on the basis of his service record as well as Govt. instructions. He is not allowed to serve beyond the age of 55 years as is evident during the last 10 years his record for the year 1999, 2006, 2007 and 2008 is not good.”

7. Aggrieved of the aforesaid order, respondent filed the writ petition, referred to herein above, which has been decided by the impugned judgement.

8. Learned Single Judge allowed the writ petition and set aside the order of premature retirement. It has been observed by the learned Single Judge that on examination of the entire service record of the respondent no.1, no adverse entry or report reflecting on the integrity is found, though, he has been awarded minor punishments. It has also been held that the retirement of the respondent no.1 is not in public interest and is outcome of arbitrary exercise of power which has the effect of depriving an employee for the remaining tenure of service without any proper application of mind.

9. We have heard Mr. R.K.S. Brar, learned Addl. A.G., Haryana and Mr. R.K. Malik, learned Senior Advocate appearing for the caveator-respondent at length.

10. It may be useful to refer to some of the important and relevant factors to examine the validity of the judgement under appeal. It is admitted case of the parties that respondent suffered minor punishments of censure and two minor punishments of stoppage of increments without permanent effect. Apart from two reports which can be said to be adverse in the year 1985 with the following remarks:-

(1) Carelessness while on duty.

(2) For consuming liquor on patrolling duty.

11. Respondent was promoted as A.S.I on 4.4.2003. This promotion was by selection and not a routine promotion. The impugned order of compulsory retirement has been passed in the year 2009.

12. Govt. has issued instructions from time to time to deal with the case of premature retirement. First instruction No. C.S.H. No.5663-4GSI- 73/26498 was issued on 24.10.1973. These instruction provid