In the High Court of Punjab and Haryana at Chandigarh C.W.P. No. 11600 of 1990 Date of decision: May 03, 2011 Gagan Singh Verma .. Petitioner Vs. State of Haryana and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Raj Mohan Singh, Advocate for the petitioner. Mr. Rajiv Malhotra, Addl. A.G. Haryana for respondent. A.N. Jindal, J This petition refers the following crucial question to be resolved : “Whether the adverse entries in the Annual Confidential Report recorded in the previous service could be used against the employee during the period of fresh employment?” The petitioner Gagan Singh Verma has sought quashing of the order Annexure P-2 and P-8 and has sought mandamus directing the respondents to implement the order granting benefits of the military service to the petitioner in re- fixing the seniority. The petitioner was appointed as Conductor in the Department of Haryana Roadways in the year 1961 and subsequently his services were approved by the Staff Selection Board in the year 1962. However, he resigned from the post of conductor and joined the Indian Army on 20.2.1963. Ultimately he was discharged from the military service on 9.12.1968 and re-employed as conductor on 8.3.1969. He was given adverse remarks in the year 1972. However, having qualified as Clerk he was appointed as such by the Subordinate Services Selection Board being fresh appointee on 6.6.1973. However, the adverse remarks given to him during his period of service as conductor, were conveyed to him in the year 1977. Though, he was appointed as Clerk directly, but in his service book it was recorded as promoted. During the period of his service he was given the benefit of military service in terms of Punjab Government National Emergency (Concession) Rules, 1965 after fixing deemed date of service as C.W.P. No. 11600 of 1990 -2- *** 16.7.1968 and his seniority was fixed accordingly with the arrears of increment vide order dated 6.7.1977 passed by the State Transport Tribunal, Haryana. The first efficiency bar at the time when his salary reached at `130/- was ordered to be stopped on the ground that he was conveyed some adverse remarks in his annual confidential report. The petitioner was entitled for crossing the efficiency bar w.e.f. 4.5.1975. The petitioner challenged the validity of the order dated 6.7.1977 by way of appeal but failed therein. Since the petitioner was not conveyed the said adverse entry during the concerned year, therefore, the same could not be used against him. On deliberating over the arguments, it is observed that the order dated 11.9.1981 (Annexure P-2) passed in continuation of the order dated 6.7.1977 were continued for year to year basis. The order dated 27.11.1987 passed in continuation of the order dated 11.9.1981 Annexure P-2 and the orders dated 18.12.1981, 19.3.1982, 29.10.1982, 4.10.1983 and 18.7.1986, (Annexure P-4 to P-8) were also challenged. It was further averred that the benefit arising out of the Annexure P-1 (grant of military service benefit) has been done away by subsequent order passed on the basis of un- conveyed adverse entry. The petitioner moved representation dated 3.5.1986 before the respondent No.2, but he did not receive any intimation regarding the outcome of his claim. Thus, the petitioner has sought following reliefs :- (1)writ in the nature of certiorari be issued quashing the orders Annexure P-2 to P-8; (2)writ of mandamus be issued directing the respondents to implement the orders Annexure P-1 granting benefit of military service in toto. (3)The petitioner is also entitled for all the consequent as consequence of quashing of the orders Annexure P-2 to P-8. Reply to the petition has been filed wherein it was admitted that the petitioner was appointed on 19.1.1961 as conductor and his service was approved by the Subordinate Service Selection Board vide letter No.7957- C.W.P. No. 11600 of 1990 -3- *** 60-A4-NA-3 dated 30.8.1962 and the petitioner resigned from the said service and joined army on 20.2.1963. Ultimately he was discharged from the Army on 9.12.1968. It was further admitted that the petitioner was appointed as Clerk through Subordinate Service Selection Board on 2.6.1973 and he joined as such on 6.6.1973 and it was his appointment through selection. It was further admitted that the petitioner was given military benefits vide order of Transport Commissioner dated 9.12.1985 (Annexure R1) and his assumed appointment was fixed w.e.f. 16.7.1968 and his seniority was fixed accordingly with the arrears of increment. The petitioner's efficiency bar was to be crossed on 1.5.1976, however, vide order dated 6.7.1977 his efficiency bar was stopped because as per service book, his record was not found to be good to the extent of 50%. It is further indicated from the service book that the integrity of the petitioner for the year 1972-73 was doubtful. The petitioner received the adverse remarks on 15.4.1977. As such, he was not found fit to cross the efficiency bar. The reports for the year 1970-71 to 1975-76 were considered which was also found to be average. He was stopped at the first efficiency bar vide order dated 6.7.1977. The case of the petitioner was considered every year but he was not found fit to cross the efficiency bar up to 16.7.1985. It was further explained by the State that the option giving the benefit of the military service to the petitioner in the pay fixation from the assumed date of appointment as Clerk was 1.7.1968, his pay was fixed as per Annexure P-9, the efficiency bar was due to cross at the scale of Rs.110-4-130/5-160/5-225 w.e.f. 16.7.1974 raising his pay from Rs.130/- to Rs.135/-. As per summary of Annual Confidential Reports for the years 1973-74 to 1990-91 (Annexure R-III), the petitioner is not eligible to cross the efficiency bar w.e.f. 16.7.1974. The reports for the years 1977-78 and 1984-85 were conveyed to the petitioner. The report for the year 1978-79 was not written. He remained absent from duty from 21.4.1978 to 2.5.1979. His one increment was stopped vide order dated 29.7.1981 with cumulative effect and the period of his absence was treated as leave without pay vide order dated 22.10.1981, therefore, the report for the year 1978-79 also could not be treated as good. C.W.P. No. 11600 of 1990 -4- *** As per instructions, the efficiency bar of the Government Employee was to be considered either on the basis of the last preceding five Annual Confidential Reports or all years preceding to the date on which the crossing of the efficiency bar became due, shall be given special importance. Thus, on consideration of the reports of the petitioner w.e.f. 1970-71 to 1990-91, the entire record of 20 years, the efficiency bar of the petitioner could not be cleared up to the year 1982-83. and he became eligible for efficiency bar w.e.f. 1990-91 and was allowed this benefit w.e.f. the year 1990-91 and under these circumstances this writ petition become infructuous and is liable to be dismissed on this ground alone. Consequently, he prayed for dismissal of the writ petition. Arguments heard. Record perused. The petitioner joined the service of Clerk through Selection having been appointed by the Subordinate Service Selection Board in the year 1973 and after awarding him benefit of military service, his deemed date of promotion was considered as 16.7.1968. No doubt, his previous service as Conductor could not be considered and the adverse remarks conveyed to him during the period when he was working as Conductor have no effect on the subsequent service, yet, his service record as Clerk was also not good entitling him to clear the efficiency bar till the year 1982-83. His Annual Confidential Reports are reproduced as under :- Summary of A.C.Rs of Shri Gagan Singh, Clerk now Assistant Haryana Roadways, Sirsa Sr. No. Year Over all assessment Integrity 1 1970-71 Average Doubtful 2 1971-72 Satisfactory Satisfactory 3 1972-73 Not indicated Doubtful 4 1973-74 An average worker Average 5 1974-75 -B- Honest 6 1975-76 Average No complaint 7 1976-77 Good Good 8 1977-78 Below average No complaint (conveyed) 9 1978-79 3.4.78 to 31.3.79 absent from duty 10 1979-80 Good Honest 11 1980-81 Good Honest C.W.P. No. 11600 of 1990 -5- *** Sr. No. Year Over all assessment Integrity 12 1981-82 Average No complaint 13 1982-83 Good -do- 14 1983-84 V. Good Honest 15 1984-85 Average Honest (conveyed) 16 1985-86 Good Honest 17 1986-87 Good Good 18 1987-88 Good Honest 19 1988-89 Good No complaint 20 1989-90 Not available Not available 21 1990-91 Good Honest As such, on examination of the entire service record and as per instructions, his efficiency bar was not rightly cleared up to the year 1982- 83 and he became eligible for the same in the year 1990-91. Resultantly, the order awarding him benefit w.e.f. the year 1990-91 is quite valid. As such, finding no merit in the petition, the same is dismissed. May 03, 2011 (A.N. Jindal) deepak Judge