Regular Second Appeal No. 1848 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1848 of 1987 Date of decision: 20.04.2010 Gopi Ram ...Appellant Versus The Registrar, Cooperative Societies, Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Sunil Panwar, Advocate for the appellant. Mr. Sunil Nehra, Sr. DAG, Haryana for the State. RANJIT SINGH J. The appellant was employed as Sub Inspector in the Cooperative Society . On 01.04.1979, he was stopped from crossing the efficiency bar in the pay scale of Rs. 480-15-600-EB-20-700-50- 760 at the stage of Rs. 600/-. The order primarily was made on the basis of instructions issued by the Government regulating the cases of the employees who were considered for crossing the efficiency bar. In the instructions, it is provided that for an employee to cross the efficiency bar he has to have 50% of good Annual Confidential Reports for the last 10 years. The appellant did not fulfill this requirement as he did not have the requisite number of good reports. Concededly most of the reports earned by the appellant were average and one report was poor. This report was communicated to him. The other reports which were mostly of average grading, however, had not been communication to the appellant. Reference is Regular Second Appeal No. 1848 of 1987 2 made to the instructions issued in the year 1983 to provide that the average report is to be communicated to the employee. Though subsequently, the appellant was allowed the crossing the efficiency bar but his chances of promotion were affected. The appellant, accordingly challenged the order stopping him from crossing the efficiency bar and also claimed promotion as Senior Auditor Co- operative from the date his juniors were promoted. His suit was dismissed by the trial Court as well as by the First Appellate Court. Accordingly, the appellant had filed this Regular Second Appeal. After admission when the appeal was taken up for hearing on 22.03.1990, the learned Single Judge of this Court was of the view that the facts pleaded in this case would give rise to some substantial question of law. The Judge formulated the following questions of law:- (1) Whether the order stopping employee from crossing the efficiency bar was merely administrative order and the rules of natural justice were not applicable i.e. no notice is required to be given to him before passing such an order? (2) Whether the order under remarks in the Annual Confidential Reports which were mostly average and were not communicated to the employee, could be taken into consideration while considering his case for stopping from crossing the efficiency bar? Learned Single Judge after making reference to case of Haryana Khadi and Village Industries Board Chandigarh through its Secretary Vs. Shri Kishan Gopal Taneja and others, 1985 (2) Regular Second Appeal No. 1848 of 1987 3 SLR 121 observed that this Court has already held that withholding of an efficiency bar was not a punishment under Rule 4 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and such order is merely administrative in nature. The Court in this case has also taken a view that the order being administrative in nature, rules of natural justice were not required to be observed before passing of order, withholding an employee at the efficiency bar. The view of another learned Single Judge expressed in Rishi Parkash versus The State of Haryana and others 1989 (1) SLR 436 was noticed where it was observed that the Annual Confidential Report form the basis of the service record of a Government servant and future promotion, confirmation, grant of selection grade, crossing of efficiency bar are all dependent on the service record. It was further observed that if the adverse remarks are recklessly recorded and allowed to be retained on the service record of the government employee, they continue to haunt him throughout his future career and seriously prejudice the prospects of his further promotions resulting in supersession of the government servant by his juniors. Noticing this view, it was observed by the referring Court that though the observation did not relate to the case of crossing of efficiency bar but reference thereto had indeed been made while deciding the case. Further reference was made to the case of Brij Mohan Chopra v. State of Punjab, 1987 (2) SLR 54, where it is observed that adverse entries prior to promotion could not be taken into consideration and that the adverse entries which were not communicated or against which the representations were pending Regular Second Appeal No. 1848 of 1987 4 could not be considered, the case was accordingly placed before the Acting Chief Justice for constituting a larger Bench for deciding the questions referred to above. The matter accordingly was placed before the Division Bench of this Court and through their order dated 05.09.1992, the Division Bench ultimately held that the order stopping an employee at the efficiency bar prejudicially affects him and that before passing the order, he must be given opportunity to explain his position. The questions as posed were accordingly answered. While answering the reference Division Bench has placed reliance on M. Gopala Krishna Naidu v. State of Madhya Pradesh (1968) 1 S.C.R. 355 and O.P. Gupta Vs. Union of India and others 1987 (5) S.L.R. 288. The present Regular Second Appeal was accordingly directed to be placed before the Single Judge for deciding the questions involved in this case. In this background, the Regular Second Appeal has now come up for hearing before this Court today. Though the question of law has been so answered by the Division Bench of this Court but much water has since flown on the issue. The Division Bench while deciding the case had followed the law laid down in O.P.Gupta's case (supra) and accordingly had over-ruled the view expressed by the Learned Single Judge of this Court in Haryana Khadi and Village Industries Board's case (supra). The view expressed in the case of Rishi Parkash's case (supra) was upheld. Subsequently, however, this issue has directly been dealt with by the Hon'ble Supreme Court in the case of Haryana Warehousing Corporation versus Ram Avtar and another (1996) Regular Second Appeal No. 1848 of 1987 5 2 Supreme Court Cases 98. The Hon'ble Supreme Court in this case has taken a somewhat different view than what was taken by the Division Bench of this Court while answering the reference. The Supreme Court has held that the decision to stop an employee at crossing the efficiency bar need not be proceeded by affording an opportunity. Haryana Warehousing Corporation's case (supra) also arose from the decision of this Court. The Supreme Court in the above noted case has held that Rule 4.8 of the Punjab Civil Service Rules does not contemplate any hearing being granted to an employee before a decision is taken with regard to permitting or not permitting an employee to cross the efficiency bar. It is observed that the stoppage of an employee at the efficiency bar is not by way of punishment and does not cause any stigma on an employee. Further it was noticed that when an efficiency bar is inserted in a time scale, it only means that at that stage annual increment is not as of right but the bar will be removed and further increments allowed, if the authority concerned comes to the conclusion that such an employee is not inefficient. The Court went on to observe that the opinion to this effect has necessarily to be subjective one though it must be based on relevant facts. Even requirement of passing a speaking order in this regard was held not to mean that before authority concerned comes to a conclusion of stopping the person at the efficiency bar stage an opportunity of hearing must be given to him. In this view of the categoric position of law as held by the Hon'ble Supreme Court, the view expressed by the Division Bench of this Court in response to reference would have to make way for Regular Second Appeal No. 1848 of 1987 6 position as enunciated by the Hon'ble Supreme Court. The position as it would emerge accordingly is that there was no requirement of affording opportunity of hearing to the appellant while denying him to cross the efficiency bar. This limb of submission and the substantial question of law accordingly was rightly answered and would not require any further examination. The counsel for the appellant would submit that the second aspect which was also referred to by the learned Single Judge would also arise for consideration in this case. The counsel submits that Annual Confidential Report, which were of average grading and have now adversely affected the career prospect of the appellant, were necessary required to be communicated to him before these were put to use. The counsel would substantiate this limb of submission on the ground that this would also be the requirement in view of the instructions issued in the year 1983 though it may not have been so at the time when the average reports were written on the appellant. No doubt this Court had taken a view that average report if taken into consideration for prematurely retiring a person would adversely affect the employee and thus has to be taken as adverse report but the question here is to be examined from the angle whether the average report can be treated as adverse for the purpose of consideration of the case for crossing the efficiency bar as well. Concededly it is not a case of adverse entry having been made in the Annual Confidential Report. The question here is to see how an average report is to be treated. No doubt an adverse entry, if made in the Annual Confidential Report then the same would have to Regular Second Appeal No. 1848 of 1987 7 be communicated and if not done so, it may have to be ignored on that ground. It is well settled that authorities can provide benchmark for advancement in service. It is also well understood that different benchmarks are provided for different level of promotions. It is usual to see a person not getting promotion when he does not fulfill the benchmarks. In such cases, his reports cannot be termed as adverse where the benchmark is very good or person with 'Good' reports would not make a cut for promotion. Such good reports can not become adverse. Similarly for grant of crossing efficiency bar a benchmark is laid down. If benchmark is not achieved due to nature of reports, then such reports, though average, can not be termed adverse. The instructions regulating the stoppage at the efficiency bar on the basis of work and conduct of a Government employee has to be distinguished from the stoppage at the efficiency bar, which may be imposed as punishment for the purpose of punishment and appeals rules. Even as per the government instructions, when an government employee is stopped at the efficiency bar under the provisions of CSR no formal opportunity to show cause is required to be given as already noticed. In case such an order is to be made as a way of punishment, then necessary opportunity to government employee is to be given. In the instructions issued by the Government, it is clarified that under the provisions of CSR, no orders stopping an employee at efficiency bar for any particular period can be passed and the employee is just stopped at the efficiency. Note 3 below Rule 4.8 of CSR Vol. 1 Part I provides that the case must be reviewed Regular Second Appeal No. 1848 of 1987 8 after a period of one year and therefore it is clear that the initial order cannot be effective for a period more than one year. The record and conduct of the Government employee for crossing the efficiency bar is to be taken into consideration. It is further provided in these instructions that Head of the Departments are required to exercise their judgment and discretion in each case. As per the instructions, for the purpose of crossing the efficiency bar, the Government employee would broadly fall into three categories as given below:- (a) Good – Are those who consistently earn good reports and who should in ordinary course be permitted by the competent authority to cross the efficiency bars. (b) Fair – Are those who secure at least 50% good reports. They should not be permitted to cross the bar unless the Head of Department is satisfied, on a careful study of the record, that they merit promotion and give promise of satisfactorily filing the heavier charges in the grade. (c ) Poor – Are the remainder, and they should not be permitted to cross the bar. The instructions also provide that Head of Departments while considering each case on the basis of above classification may take into account the severity or leniency of the officer whose reports are under consideration and the nature of the work on which the Government servant was employed. These instructions have been uniformly made applicable to all employees. The average report earned by the appellant in view Regular Second Appeal No. 1848 of 1987 9 of the instructions can neither be treated as good nor poor. To be adjudged 'fair' atleast 50% good reports are required. Even 'fair' category is not entitled or permitted to cross the efficiency bar unless the Head of the Department is satisfied on the careful study of the record that he merits promotion. It is not a case where the average reports are being treated as adverse. The reports have been considered in the light of the instructions issued and assessed on that basis. The requirement of communicating the average report would not arise either in view of the instructions or on account of any general principle of law relating to the principle of natural justice. The average report may not be good but that certainly cannot be treated as adverse for the purpose of crossing the efficiency bar. Even 50% good reports would not result in order of crossing efficiency bar and thus may become adverse if the submissions of the appellant's counsel are accepted. Accordingly the requirement of communicating such a reports before taking into consideration cannot be insisted upon either under law or in view of any instructions. There is thus no merit in the appeal and the same is accordingly dismissed. April 20, 2010 ( RANJIT SINGH ) rts JUDGE