Civil Writ Petition No.8445 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 28.2.2011 Amar Singh, U.D.C., office of the Assistant Executive Engineer ...Petitioner Versus Haryana State Electricity Board and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Roopak Bansal, Advocate for the petitioner. Mr.Ravi Sodhi, Advocate for the respondents. M ehinder S ingh S ullar , J. The contour of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that the petitioner was employed as Upper Division Clerk at the relevant time in the office of the Assistant Executive Engineer at Sub Station, Rewari of the Haryana State Electricity Board (respondent No.1) (for brevity “respondent-Board”). Petitioner claimed that although he was due to cross the efficiency bar with effect from 1.5.1985 in the pay scale of ` 500-900 at the stage of ` 700/-, but the same was declined to him by the competent authority (Chief Engineer (Operation)) (respondent No.2), despite the recommendation made by the Field Officer, by virtue of impugned order dated 15.7.1986 (Annexure P1). 2. The case set up by the petitioner, in brief in so far as relevant, was that the representations, including the representation (Annexure P2) made by him were forwarded by the SDO, by way of letters (Annexures P3 to P5) to the XEN, who forwarded the same to the competent authority. It was alleged that although the petitioner explained that no adverse report was communicated to him, but still the illegal impugned order dated 8.11.1988 (Annexure P6) was passed, stopping his Civil Writ Petition No.8445 of 1991 2 efficiency bar on account of un-satisfactory record of service in terms of Board's instruction No.100575/666 dated 10.7.1974 and proposed to be reviewed on receipt of his subsequent reports. Respondent No.2 was stated to have conveyed the adverse reports to the petitioner for the period from September 1978 to March 1979; September 1979 to March 1980 and 1981-82, by virtue of letter dated 12.7.1989 (Annexure P7). 3. The case of the petitioner further proceeds that on receipt of communication of adverse reports, vide letter (Annexure P7), he again made representation dated 10.11.1989 contesting the basis of adverse remarks and delayed communication, vide request (Annexure P8). The adverse remarks regarding integrity were stated to have been expunged from his confidential report for the year 1981-82, by way of order dated 19.7.1990 (Annexure P9), but no decision was taken by respondent No.2 with regard to the remaining reports. Finally, respondent No.2 was stated to have allowed the petitioner to cross the efficiency bar with effect from 1.5.1990, by way of impugned order dated 19.12.1990 (Annexure P10). The impugned orders were stated to be illegal and without jurisdiction. 4. The second grievance of the petitioner was that although the pay scales of the employees of the Board were revised with effect from 1.1.1986 and every employee was required to give his option of the date from which he wanted to be placed in the revised pay scale, but his option dated 19.8.1987 (Annexure P13) in the new revised pay scale with effect from 1.5.1986 was not accepted by the respondents. 5. The petitioner did not feel satisfied and preferred the instant writ petition, challenging the impugned order/letters (Annexues P1, P6 and P10), invoking the provisions of Articles 226 and 227 of the Constitution of India. 6. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that although he was eligible to cross the Civil Writ Petition No.8445 of 1991 3 efficiency bar and resultant benefits w.e.f. 1.5.1985, but he was only allowed to cross the efficiency bar w.e.f. 1.5.1990, in view of his un-communicated adverse reports and that his option in the new pay scales was not considered. On the basis of aforesaid allegations, the petitioner sought the quashment of the impugned orders of respondent No.2, in the manner indicated hereinabove. 7. The respondent-Board contested the claim of the petitioner and filed its written statement pleading therein that his request to cross the efficiency bar was kept in abeyance for further review, subject to the receiving of his two good reports by the competent authority. The adverse remarks, pertaining to the period from 1.9.1979 to 31.3.1980, were conveyed to the petitioner, by means of communication bearing Memo No.QR-Clerical/A-67 dated 4.8.1981 (Annexure R1), which he had received by acknowledgment dated 24.8.1981 (Annexure R2). Sequelly, the ACRs for the period from 23.9.1978 to 31.3.1979 were sent to him, vide letter bearing Memo No.447/A-67/QR dated 17.3.1980 (Annexure R3). On his denial of having received the communication of adverse remarks sent through letter (Annexure R3), the relevant adverse remarks were again conveyed to the petitioner, by way of office letter bearing Memo No.Ch63/UDC-1443/Rewari dated 12.7.1980 (Annexure R4). 8. According to the respondent-Board that the competent authority has rightly stopped the crossing of efficiency bar of the petitioner, keeping in view his highly un-satisfactory adverse remarks for the relevant period, in which, his integrity was doubted on various occasions. The petitioner was permitted to cross the efficiency bar, vide impugned order dated 19.12.1990 (Annexure P10) w.e.f. 1.5.1985 and was allowed the arrears of pay w.e.f. 1.5.1990, as per instructions of the State Government, by virtue of letter bearing No.5474-3-73/2078 dated 29.1.1974 adopted by the respondent-Board, by means of Memo No.100575/666/NGE/G-579 dated 10.7.1974 and subsequent instructions bearing No.1331-35-74/26263 dated 4.11.1974 adopted by it on 4.12.1974. Civil Writ Petition No.8445 of 1991 4 9. As regards, the second grievance of the petitioner of exercising the option to continue in the old pay scales was concerned, the respondent-Board claimed that since the petitioner did not exercise his option within the stipulated period, so, it was declined to him as per the instructions of revision of pay scales. Accordingly, his pay was fixed w.e.f. 1.1.1986. The clarification issued by the respondent-Board about the crossing of efficiency bar was not applicable to the case of the petitioner as he was due to cross the efficiency bar w.e.f. 1.5.1985 i.e. much before the date of introduction of the new scale. The instructions about crossing of the efficiency bar were only applicable to those employees whose efficiency bar falls due on or after 1.1.1986 and thus the respondent-Board has rightly denied the claim of the petitioner in this connection. It will not be out of place to mention here that the respondent-Board has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 10. Controverting the allegations contained in the written statement and reiterating his claim in the writ petition, the petitioner filed the replication. 11. Assailing the impugned orders, the learned counsel contended with some amount of vehemence that the competent authority illegally withheld the crossing of efficiency bar of the petitioner, on the basis of his un-communicated adverse remarks, which cannot be used against him. The argument further proceeds that exercising his option of adoption of the scales was wrongly declined to him and his pay was not fixed as per his option. Thus, he prayed for quashment of the impugned orders. 12. On the contrary, hailing the impugned orders, the learned counsel for the respondents urged that the adverse remarks for the period from September 1979 to 31.3.1980 and from 23.9.1978 to 31.3.1979 were duly conveyed to him. The argument is that since the ACRs of the petitioner were adverse and below average, in which, his integrity was doubted on many occasions, so, the competent authority has rightly passed the impugned orders. In support of the contention, the Civil Writ Petition No.8445 of 1991 5 learned counsel has placed reliance on the judgment of a Division Bench of this Court in case Pritam Singh Gill v. The State of Punjab and another 1979 (1) SLR 858. 13. Having heard the learned counsel for the parties, having gone through the record and relevant law with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petition in this context. 14. As is evident from the record, that the adverse annual confidential reports for the period 1.9.1979 to 31.3.1980 were conveyed to the petitioner, vide communication (Annexure R1), which he had received, vide acknowledgment dated 24.8.1981 (Annexure R2). Similar adverse remarks for the period from 23.9.1978 to 31.3.1979 were sent to the petitioner, by virtue of letter dated 17.3.1980 (Annexure R3). Again, on his denial, the ACRs for the period from September 1978 to March 1979, September 1979 to March 1980 and 1981-82 were again communicated to the petitioner, vide letter dated 12.7.1980 (Annexure R4). Moreover, the ACRs of the petitioner w.e.f. 1975 to 1985 were tabulated in the table (Annexures R3 & R5). 15. That means, it stands proved on record that adverse remarks were duly conveyed to the petitioner. Since his service record was 'Below Average' and his integrity was doubted on several occasions, so, the competent authority has rightly stopped the crossing of efficiency bar of the petitioner for the time being and proposed to be reviewed after two goods reports upto 1986-87, vide impugned order (Annexure P1), which reads as under:- “The Service book of Sh.Amar Singh, UDC is sent herewith with the remarks that the case of Efficiency Bar above 700/- in the scale of Rs.525/900 will be reviewed by this office after two No.good Q.Rs are received upto 1986-87. Kindly acknowledge the receipt.” 16. Thereafter, his representation was considered and adverse remarks Civil Writ Petition No.8445 of 1991 6 contained in the ACRs for the year 1981-82 were expunged by the competent authority, by means of letter (Annexure P9). Subsequently, vide impugned order (Annexure P10), the petitioner was allowed to cross the efficiency bar at the stage of ` 700/- in the pay scale of ` 525-900 thereby raising his pay from ` 700 to 750 per month w.e.f. 1.5.1990, on the date on which his service record was found upto the mark as per instructions of the respondent-Board. It has been clarified by it (respondent-Board) in para 9 of its written statement that the petitioner was permitted to cross the efficiency bar, vide impugned order (Annexure P10) w.e.f. 1.5.1985, but was allowed the arrears of pay w.e.f. 1.5.1990 in accordance with the instructions dated 29.1.1974 and 4.11.1974 of the State Government duly adopted by the Board, which postulate that the efficiency bar of the Government servant should be permitted after a period of 10 years when the integrity of the official has been found doubtful and the crossing of the efficiency bar was further dependent upon the 50% good or better performance during the preceding years. Therefore, the competent authority carefully considered the case of the petitioner and found him suitable for crossing of efficiency bar after his improvement and satisfactory service record. 17. An identical question arose before a Division Bench of this Court in Pritam Singh Gill's case (supra), wherein it was inter-alia ruled (para 4) as under:- “One cannot cross the efficiency bar as a matter of right. It is the discretion of the authority concerned to allow a Government servant to cross the efficiency bar or not. This discretion, however, is not to be arbitrarily exercised. If the authority after the subjective satisfaction on the assessment of the over all service record of the officer in regard to his efficiency, integrity, intelligence etc. forms an opinion that the officer does not deserve to be put across the line drawn in the grade at the stage of the efficiency bar, then the matter cannot be agitated by the adversely affected officer against the authority's decision.” 18. Meaning thereby, keeping in view the adverse service record of the petitioner, the competent authority has rightly allowed him to cross the efficiency bar and fixed his pay w.e.f. 1.5.1990 in consonance with the government Civil Writ Petition No.8445 of 1991 7 instructions. The ratio of law laid down in the aforesaid judgment “mutatis mutandis” is applicable to the instant controversy and is the complete answer to the problem in hand. 19. In so far as exercising the option to continue in the old pay scales is concerned, the respondent-Board claimed that since the petitioner did not exercise his option within the stipulated period, so, it was rightly declined to him as per the instructions of revision of pay scales. The instructions of revision of pay scales posit that if a government employee failed to exercise his option in time, then he is automatically switched over to the new pay scales from the date of its introduction. As the petitioner has neither exercised his option within a stipulated period nor approached the higher authorities for the grant of revised pay scales, therefore, he was not entitled to any relief at this belated stage in these respects. Thus, seen from any angle, the competent authority has rightly passed the impugned orders after considering the adverse ACRs of the petitioner and no interference is warranted in this relevant connection. 20. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 21. In the light of the aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. (Mehinder Singh Sullar) Judge 28.2.2011 AS Whether to be referred to reporter?Yes/No