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PETITIONER: EX. CAPT. R.S. DHULL

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS.

DATE OF JUDGMENT21/04/1988

BENCH: A.S. ANAND, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                          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.

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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

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    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

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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.

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         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.