IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-7015-2003 (O&M) JUDGMENTS RESERVED ON :25.04.2025 JUDGMENTS PRONOUNCED ON : 13.05.2025 V K TEHRI ......Petitioner VERSUS STATE OF HARYANA AND ANOTHER .......Respondents CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ ***** Present: - Mr. Anurag Goyal, Advocate for the petitioner. Mr. Rahul Dev, Addl. A.G. Haryana. ***** VINOD S. BHARDWAJ, J. The petitioner has preferred the present Civil Writ Petition under Articles 226 and 227 of the Constitution of India, praying for the issuance of an appropriate writ, order or direction in the nature of certiorari, for quashing the impugned order dated 31.01.2003 (Annexure P/6), whereby the petitioner has been ordered to be retired from service in public interest on attaining the age of 55years, by issuance of a three months' notice. It is the specific case of the petitioner that the said order is absolutely illegal, arbitrary, violative of the principles of natural justice, and has been passed without affording any opportunity of hearing or issuance of any show cause notice. 2. As per the pleaded case, the petitioner was serving as a District VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -2- Employment Officer under the respondent department and had been discharging his duties with sincerity, dedication and discipline and as per his Annual Confidential Reports (ACRs), the majority of the entries were graded as “Good”, with only a few exceptions being marked “Average”. The year-wise ACR gradings were as under :- Year Grading 1992–93 Good 1993–94 Good 1994–95 Good 1995–96 Good 1996–97 Average 1997–98 Good 1998–99 Good 1999–2000 Average 2000–2001 Average 2001–2002 Average 2002–2003 Under process at the time 3. It is submitted that the above record clearly showed that his ACRs were mostly “Good”. With regard to the ACR for the year 1996–97, the petitioner had been advised to remain in discipline and was awarded an “Average” grading. Thereafter, for the year 1999–2000, the petitioner had been communicated the remarks vide letter dated 15.11.2000 to the effect that he had committed financial irregularities in shifting the office buildings, and hence, his integrity could not be certified as good, and he was awarded an “Average” grading. 4. With respect to the ACRs for the years 2000–2001 and 2001– 2002, the remarks were communicated to the petitioner vide letters dated 30.09.2002 and 28.08.2002 respectively. It was pointed out that the ACR for the year 2000–2001 was communicated to the petitioner only on VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -3- 30.09.2002, after an inordinate delay of more than 19 months. 5. The petitioner also placed reliance on the instructions issued by the Government of Haryana vide notification dated 16.08.1983, which laid down the criteria for extension of service beyond the age of 55 years. As per the said instructions, an employee is eligible for extension in service only if at least 70% of his ACRs in the last ten years were graded as “Good” or above. 6. It is submitted by the Counsel that if the case of the petitioner had been properly considered in the light of the aforesaid instructions, he would have been found to fulfill the eligibility criteria for extension in service. However, respondent No. 1 passed the impugned order dated 31.01.2003, which was served upon the petitioner on 09.02.2003, compulsorily retiring him from service on completion of the three-month notice period from the date of receipt. 7. It is also stated that prior to the issuance of the impugned order, the petitioner had been served with a charge sheet dated 18.09.2001 in relation to the same allegations concerning financial irregularities during the year 1999–2000 in the context of shifting the office building. It was pointed out that the said charge sheet was based on the same facts which had led to the adverse ACR for the year 1999– 2000. The disciplinary proceedings in pursuance of the said charge sheet were still pending at the relevant time. However, the adverse remarks concerning the petitioner’s integrity had been ordered to be expunged vide communication endorsed on 02.05.2003. 8. Counsel for the petitioner contends that the instructions dated 16.08.1983 issued by the Government of Haryana, prescribed that for VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -4- deciding whether an employee was to be retained in service after attaining the age of 55 years, the criteria would be that such employee must have secured at least 70% ‘Good’ or above gradings in the Annual Confidential Reports (ACRs) over the last ten years. The petitioner submitted that the said policy was in absolute contravention of Rule 3.26 of the Punjab Civil Services Rules. Furthermore, the validity of these very instructions had already been considered and adjudicated upon by this Hon’ble Court in the case of K.K. Vaid vs. State of Haryana, 1990 (1) SLR 91, wherein the instructions were quashed for being violative of the rules governing the service conditions of State Government employees. Therefore, the application of the said instructions in the case of the petitioner was wholly impermissible, illegal, and without jurisdiction. The petitioner submitted that any reliance placed upon the said instructions to hold that he did not meet the 70% threshold of ‘Good’ ACRs in the last 10 years, thereby warranting his retirement in public interest w.e.f. 08.05.2003, was untenable in law. 9. It was further submitted that a comparative evaluation of the ACRs of the petitioner, as detailed in the writ petition, clearly indicated that except for a few entries graded as ‘Average,’ the petitioner had consistently received positive appraisals. In particular, it was stated that although the ACR for the year 1999–2000 had been graded as ‘Average’ which was on the ground of the alleged financial irregularity while shifting of building and weighed with the authority at the time of passing the impugned order dated 31.01.2003. The said adverse remarks pertaining to integrity had subsequently been expunged by the competent authority, vide order dated 02.05.2003. The ACR was thus required to be upgraded. VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -5- 10. With respect to the ACRs for the years 2000–2001 and 2001– 2002, which were also graded as ‘Average,’ the petitioner submitted that representations against those entries had already been submitted and were pending consideration with the respondent-authorities. The impugned order dated 31.01.2003 was passed without awaiting the outcome of the said representations. Moreover, it was submitted that the remarks for the year 2000–2001 had been conveyed to the petitioner only on 30.09.2002, i.e., after an inordinate delay of 19 months. The petitioner argued that such delayed communication deprived him of the opportunity to make an effective representation in a timely manner or to take corrective measures. It was well-settled law, as laid down by this Hon’ble Court and the Hon’ble Supreme Court, that when a representation against an adverse or average ACR entry was pending, any decision affecting the employee’s career, including compulsory retirement, ought not to be taken. In this regard, reliance was placed on Surmukh Singh v. Haryana State Electricity Board, 1989 (6) SLR 149; Brij Mohan Chopra v. State of Punjab, AIR 1987 SC 949; and Atma Ram Gaurv State of Haryana, 1992 (2) SLR 385. Hence, the petitioner contended that the impugned order was liable to be set aside on this ground as well. 11. The petitioner further submitted that the classification of ‘Average’ entries in the ACRs as adverse had been disapproved by the Division Bench of this Hon’ble Court in K.K. Vaid’s case (supra), where it was categorically held by Hon’ble Mr. Justice I.S. Tiwana and Hon’ble Mr. Justice Amarjit Chaudhary that an ‘Average’ entry could not be treated as adverse for the purpose of assessing an employee’s suitability for continued VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -6- service. The Division Bench had struck down the instructions of the State Government which sought to disregard all ACR entries that were not ‘Good’ or ‘Very Good,’ and had held that ‘Average’ reports were to be treated as neutral or satisfactory, and not adverse. Applying the said ratio to the facts of the present case, the petitioner submitted that even if the 70% rule were assumed to be valid (which was not conceded), the inclusion of ‘Average’ entries as neutral or satisfactory would lead to a conclusion favourable to the petitioner, making him eligible for continuation in service. 12. It was also submitted that the impugned order had been passed by respondent No. 1 without affording any opportunity of hearing to the petitioner. This was a grave violation of the principles of natural justice. The petitioner was a regular and permanent employee, and it was settled law that no adverse decision affecting an employee’s career could be passed without first giving such employee an opportunity of hearing. This requirement was inherent in Article14 of the Constitution of India. Hence, on the ground of violation of the principles of natural justice alone, the impugned order dated 31.01.2003 was liable to be quashed. 13. Lastly, the petitioner submitted that the ACR for the year 2000– 2001, which had been communicated belatedly on 30.09.2002 (i.e., after 19 months), ought not to have been considered at all while taking the decision to retire the petitioner. The delay in communication of the said report had prejudiced the petitioner’s right to make a timely and effective representation, and also deprived him of the opportunity to improve his performance. No such opportunity had been extended to him by the respondent-authorities. Therefore, reliance upon the said ACR was VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -7- unwarranted, and the impugned order, being partly based on this consideration, was liable to be struck down. 14. Per contra, the learned counsel for the respondents has strongly opposed the submissions advanced on behalf of the petitioner. It has been argued that the petitioner was appointed as Assistant Employment Officer in the Department of Employment, Haryana with effect from 18.02.1977 and upon attaining the age of 55 years on 17.10.2002, his case for retention in service beyond that age was considered by the competent authority, in accordance with the instructions issued by the Government of Haryana vide No. 32/179/89-4GSI dated 21.02.1990 (Annexure R-1). 15. It is submitted that as per these instructions, a Government employee is required to have earned at least 70% Annual Confidential Reports (ACRs) of ‘Good’ or above during the last ten years in order to be considered fit for retention in service beyond the age of 55. In the case of the petitioner, it was pointed out that during the ten-year period from 1992-93 to 2001-02, he earned only six ‘Good’ ACRs and four ‘Average’ ACRs, thus failing to meet the prescribed benchmark. In addition, it is contended that his service record prior to1992 was also adverse. 16. The learned counsel further contends that apart from the sub-par ACRs, the petitioner was also subjected to disciplinary action. He was charge-sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 for serious omissions and commissions during his posting at Rural Employment Exchange, Uchana. The charge sheet contained 21 allegations, of which the Enquiry Officer found the petitioner VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -8- guilty on 13 counts. The punishing authority concurred with these findings and, after issuing a second show-cause notice to which the petitioner failed to respond, imposed a penalty of withholding two annual increments without cumulative effect vide order dated 04.07.2001. 17. It is also submitted that the petitioner was again charge-sheeted under Rule 7 for misconduct during his posting at Town Employment Exchange, Narwana, where he allegedly shifted the office premises to a new building without the approval of the competent authority or proper assessment from the PWD. This action, it is argued, led to an unnecessary financial burden of ₹45,180/- per annum to the State exchequer. It is stated that the enquiry report in respect of this charge is pending final decision. 18. With regard to the ACR for the year 2001-2002, it is submitted that the same was graded as ‘Average’ and included adverse remarks such as “does not reply to letters even after reminders.” The petitioner submitted his representation against these remarks only on 31.01.2003, i.e., after the prescribed time limit of 45 days.As such, following the Government instructions (Annexure R-I), the said representation was not considered on merits and was filed being time-barred. 19. In response to the reliance placed by the petitioner on the judgment in K.K.Vaid v. State of Haryana, the respondents argue that the said decision was subsequently diluted by the judgment of the Full Bench in Daya Nand v. State of Haryana and another, 1995(1) SLR 57, wherein it was held that Government instructions stipulating minimum performance thresholds for retention after the age of 55 were not per se violative of service rules. VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -9- 20. The learned counsel for the respondents has also placed reliance on the judgment of the Hon'ble Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SLR 2, wherein it was laid down that compulsory retirement is not a punishment, does not cast any stigma, and is passed solely on the subjective satisfaction of the competent authority that it is in public interest to do so. The Supreme Court, in that case, also held that principles of natural justice are not attracted in matters of compulsory retirement, though the decision is subject to limited judicial review on grounds of mala fides, arbitrariness, or absence of relevant material. 21. Reliance is also placed on State of Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109, wherein the Hon'ble Apex Court summarised the law governing compulsory retirement and emphasized that such orders could be passed in public interest to maintain efficiency in administration, provided they are based on entire service record and are not punitive in nature. 22. The respondents have also strongly relied upon the past service record of the petitioner to contend that his continued retention in Government service beyond the age of 55 years was not in the public interest. It was argued that the petitioner's Annual Confidential Reports (ACRs) spanning over several years consistently reflect adverse remarks relating to his conduct, attitude, and administrative inefficiency. Beginning as early as 1977–78, he was noted to behave angrily with seniors and was found lacking in procedural knowledge. In subsequent years, his performance continued to draw criticism—he was repeatedly described as VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -10- indisciplined, irregular, non-cooperative, and lacking both punctuality and supervisory skills. Specific remarks included that he did not reply to official correspondence even after reminders, was unreliable, caused harm to both applicants and employers, and indulged in irregular practices. In several years, he was graded as “Average” or “Below Average,” and in the year 1999–2000, adverse remarks regarding financial irregularities were also recorded, though only the remarks concerning his integrity were later expunged. Moreover, his failure to improve despite prior punishments— such as stoppage of increments and censure—was emphasized. The respondents submitted that such a record not only falls short of the benchmark laid down by Government instructions for extension beyond 55 years but also indicates a persistent and cumulative pattern of indiscipline and inefficiency, warranting his compulsory retirement in public interest. 23. It is thus contended that in the present case, the petitioner’s overall service record, including sub-standard ACRs, prior disciplinary proceedings, and misconduct during service, were duly considered by the competent authority. The impugned order of compulsory retirement dated 29.01.2003 (Annexure P/6) was issued in accordance with Rule 5.32-A(c) read with Rule 3.26(d) of the Punjab Civil Services Rules, Volume I, Part I, as applicable to the State of Haryana. The action taken is therefore lawful, based on material on record, and in furtherance of public interest. Accordingly, the respondents submit that the writ petition is devoid of merit and deserves to be dismissed. 24. No other argument raised nor judgments cited by the parties. 25. I have heard the learned counsel appearing for the parties and VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -11- have gone through the documents appended with the present petition with their able assistance. 26. At the very outset, it would be relevant to extract Rule 3.26 of the Punjab Civil Services Rules, 1975. “Rule 3.26(a) and (d) of the Punjab Civil Service Rules Volume I, as applicable in the State of Haryana reads as under:—“3.26. Compulsory Retirement. (a) Except as otherwise provided in other clauses of this rule, every Government employee shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty- eight years. He must not be retained in service after the age of compulsory retirement, except in exceptional circumstances with the sanction of the competent authority in public interest, which must be recorded in writing. Xx xx xx xxx xxx xxxx xxx xxx xxx “(d) The appointing authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government employee, other than Class IV Government employee by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice:— (i) If he is in class I or class II Service or post and had entered Government service, before attaining the age of thirty-five years, after he has attained the age of fifty-years; and VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -12- (ii)(a) If he is in class III service or post, or (b) If he is class I or class II Service or post and entered Government service after attaining the age of thirty-five years; after he has attained the age of fifty-five years. The Government employee would stand retired immediately on payment of three month's pay and allowances in lieu of the notice period and will not be service thereafter. (e) A Government employee, other than a class IV Government employee, may by giving a notice of not less than three months in writing to the appointing authority, retire from service:— (i) if he is class I or II service or post and had entered Government service before attaining the age of thirty-five years after he has attained the age of fifty years; and (ii)(a) if he is in class III service post; or (b) if he is in class I or class II service or post and entered Government service after attaining the age of fifty-five years: Provided that it shall be open to the appointing authority to withhold permission to a Government employee under suspension who seeks to retire under this clause.” 27. The Petitioner has sought to draw sustenance from Rule 3.26(a), (d), and (e) of the Punjab Civil Services Rules, Volume I, Part I, as applicable to the State of Haryana, in an effort to assail the legality of the impugned order of compulsory retirement. VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -13- 28. Undisputedly, the petitioner was compulsorily retired on attaining the age of 55 years on noticing that he did not fulfill the minimum requirement of 70% good ACRs. It is further not in dispute that of the last 10 years, the petitioner had 6 “Good” ACRs and 4 “Average” ACRs. 29. Counsel for the petitioner has laid much emphasis on the “Average” ACR recorded for the year 1999-2000. The overall grading of the petitioner was reported as “Average” making a specific remark that a complaint of financial irregularity had been received against the petitioner. 30. The said financial irregularity was in relation to the shifting to new office building. Undisputedly, the said adverse foundation did not subsist any further after the charge. A perusal of the ACR shows that the Divisional Employment Officer has recorded the ACR as “Good”. The said remarks and recording of the reporting officer are extracted as under: 1) Period under Report: 1.4.1999 to 31.3.2000 2) Name of officer and Designation : Sh. Virender Kumar Tehri, District Employment Officer, Kaithal 3) Place of Posting: Town Employment Exchange, Kaithal. 4) Designation District Employment Officer 1- Is the officer able, intelligent, honest and laborious, if not and his capability qua these? Good 2- Is he able to supervise the work of his subordinate or not and has he having satisfactory relations with them. Yes. 3- Is he punctual and disciplined Yes. 4- His integrity Good VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -14- 5- Has he satisfactorily performed his official duties towards office Yes 6- Does the officer present at the Headquarter after close of the office and during holidays. Yes 7- Special aptitude (Knowledge about procedure, behaviour towards applicants/employers) Good 8- Do you agree with the self- appraisal (attached), if not, reasons for disagreement Yes 9- Relations with employers and applicants Good. 10- Evaluation about ESSUY Scheme and Self-Employment work. Good. 11- Evaluation regarding Computer Work (if the work has been assigned to the Officer) Not applicable. 12- Achievement in the field of employment assistance in Private Sector Good 13- Relations with other castes and communities Good 14- Defects, if any Good 15- Gradation (Outstanding, Very Good, Good, Average and Below Average) Good Sd/- Divisional Employment Officer Ambala Signature and Designation of the Officer initiating the report. I agree with the above. Sd/- Divisional Employment Officer Rohtak. Comments by the senior officer: He has committed financial irregularities in shifting the office building. Hence, his integrity cannot be certified as Good. “Average” (Only adverse remarks about his integrity have been expunged). Sd/- Joint Director Employment, Haryana, Chandigarh VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -15- 31. The Reviewing Authority downgraded the ACR solely on account of the alleged financial irregularity. Once the foundation of the downgrading of the ACR ceases to exist, it necessitates that the ACR be reconstructed. Needless to say that once the adverse remark is expunged, it is deemed to have never existed in the record and as a necessary outcome, any negative grading or downgrading linked to that remark should logically be revised. The ACR and its final grading should thus be re-assessed in light of the rest of the report - depending on the original inputs. It was held so in the matter of Union of India VersusE.G. Nambudiri reported as AIR 991 SC 1216. 32. The record reflects that the Divisional Employment Officer had initially graded the petitioner as “Good” in the column pertaining to integrity. However, the Joint Director of Employment subsequently altered this specific assessment to “average”. It is pertinent to note that this modification was confined solely to the integrity column, namely column No.4 of the ACR, and no express observation or modification was made with respect to the overall grading, which is recorded in column No.15. Consequently, the petitioner’s overall grading remained unaffected and was not downgraded to “average”. The Department, therefore, fell into manifest error in construing the ACR as indicative of an “Average” overall grading. Upon, expunction of the adverse remarks pertaining solely to integrity, it logically follows that the original grading assigned by the Divisional Employment Officer must be restored and deemed to constitute the original record. 33. Once the said ACR is treated as ‘Good’, the petitioner fulfills VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document CWP-7015-2003 (O&M) -16- the criteria of 70% ‘Good’ ACRs and no integrity doubtful report and hence the order of compulsory retirement would lose its foundation. 34. The reference to the remaining service record and punishment would be irrelevant since dismissal was not on account of any punitive measure but solely on account of failing to meet the benchmark parameters as laid down in instructions dated 21.02.1990 read with the instructions dated 16.08.1983. 35. There being no other reason given, the same cannot be read into the order. 36. However, as the petitioner has not worked for the period, the actual benefits are denied and benefits are ordered to be released notionally. 37. The writ petition is consequently allowed. The impugned order of compulsory retirement dated 31.01.2003 (Annexure P/6) is set aside. The petitioner is held entitled to the extension in service till the age of superannuation i.e. 58 years. The respondents are directed to notionally recalculate the benefits other than salary and allowance for the said period and to release the same to the petitioner within four months of receipt of certified copy of this order, failing which the petitioner shall be entitled to interest @ 6% per annum from the date of judgment till disbursement. (VINOD S. BHARDWAJ) MAY 13, 2025 JUDGE Vishal Sharma Whether speaking/reasoned : Yes/No Whether Reportable : Yes/No VISHAL SHARMA 2025.05.22 19:29 I attest to the accuracy and integrity of this document