Regular Second Appeal No. 2442 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2442 of 1987 Date of decision: 24.04.2010 Punjab State and others ...Appellants Versus Harbans Singh ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Ambika Luthra, AAG, Punjab for the State. None for the respondent. RANJIT SINGH J. Aggrieved against the order withholding crossing of efficiency bar for one year, the respondent-plaintiff had filed the present suit. The order in this regard was passed by Deputy Inspector General of Police on 06.06.1978. The respondent-plaintiff was working as Sub Inspector of Police Station, Dhariwal. Annual Confidential Report upto 31.03.1978 was initiated by Deputy Inspector General of Police. It is alleged that he did not examine the entire service record while passing the order dated 29.06.1982, withholding the crossing of efficiency bar. The appeal filed against this order was rejected by Inspector General of Police on 16.06.1983. After serving a notice under Section 80 CPC, the respondent-plaintiff filed the suit. The suit was contested by the appellant-State. It was pleaded that the suit was barred by time. It was also pleaded that the civil Court has no jurisdiction to try the suit. Regular Second Appeal No. 2442 of 1987 2 Following issues were framed by the trial Court:- 1. Whether the suit is time barred? OPD. 2. Whether the civil Court has got jurisdiction to try the suit? OPD. 3. Whether the order dated 29.6.1982 passed by the D.I.G. Police, Jalandhar Range, and appellate order dated 16.6.83 are illegal, null and void etc. as alleged in the head note of the plaint? OPP. 4. Relief? The suit was held to be filed within time. However, the trial Court held that the civil Court has no jurisdiction to try the suit on the ground that the order was administrative order. In view of this finding, issue No. 3 was not decided on merit. The suit was accordingly dismissed. The respondent-plaintiff filed an appeal against the same and the First Appellate Court has reversed the finding given by the trial Court. By referring to the finding given by the trial Court and the judgment, which was relied in this regard to hold that the order being administrative could not be challenged, the First Appellate Court came to take a view that the civil Court would have jurisdiction to try the suit. In the judgment relied upon by the trial Court, it was only observed that the order withholding crossing of efficiency bar was not a punishment and so the question of issuance of show cause would not arise. The reference was made to judgment in the case of Union of India versus Kundan Lal Anand, 1976 (2) Service Law Reporter 300, where this specific question of maintainability of the suit was Regular Second Appeal No. 2442 of 1987 3 decided. In this case, it was clearly held that civil Court had the jurisdiction to try the suit. Relevant observation of the Court is as under:- “No provision of law was cited to show that such a suit was barred from the jurisdiction of the civil court. Where there exists an illegal order or an unjustifiable order, or the order proceeds on grounds of malafide action, the civil court is not barred from entertaining such suits and deciding it. A question may arise in cases where a suit is expressly barred. There the considerations would be different. Unless it can be shown that the order passed in such a case amounts to an order beyond the competence of the authority passing such order, it cannot be challenged in a Civil suit. The position in this case is different. There is no provision under which the jurisdiction of the civil court is barred. There is no remedy under the rules either. The question here is one relating to the right to an offence. Such a suit is of a civil nature. It could be entertained.” The First Appellate Court thus rightly decided the issue and it cannot be said that suit would not be maintainable to challenge the order declining the crossing of efficiency bar. This primarily was the reason for which this Regular Second Appeal was admitted. Thereafter, the First Appellate Court went on to decide issue No. 3 to see if the impugned order was illegal, null and void. While reversing the finding of the trial Court, the First Appellate Court had found that representation had been filed against Regular Second Appeal No. 2442 of 1987 4 the adverse remark (Ex.P-12). It is also noticed that the respondent- plaintiff was acquitted of the criminal charge, which had prompted the initiating officer to record this Annual Confidential Report. It was noticed that when the very basis of recording the adverse remark was washed away then these adverse remarks could also be quashed and could not be taken into consideration. In this background, the prayer of the respondent-plaintiff to allow him to cross the efficiency bar and rejecting his appeal was found to be non-speaking order. Another factor which cannot be ignored is that the representation against these adverse remarks had been filed by the respondent-plaintiff and was pending when the same was taken into consideration to deny the crossing of efficiency bar by the respondent-plaintiff. Reference can here be made to Gurdayal Singh Fiji versus State of Punjab, 1977 Services Law Weekly Reporter 57, where it is held that if a representation against an adverse entry is pending and is not decided then such an entry cannot obviously be utilized for passing any order. The substantial question of law, “Whether an entry against which a representation is still under consideration could be used for passing an order or not,” thus would arise in this case. The impugned order declining the crossing of efficiency bar by the respondent-plaintiff thus was not passed on a valid consideration. The order apparently was passed by taking into consideration a report which could not have been validly considered and was indeed taken into consideration. The impugned order thus would suffer from the above legal infirmity. The First Appellate had rightly directed that this question of crossing of efficiency bar be Regular Second Appeal No. 2442 of 1987 5 decided afresh. At this belated stage, there is no reason to interfere in the impugned order. It appears that by now the respondent-plaintiff would have retired and his case for either grant or for denial of crossing of efficiency bar must have subsequently been considered and passed. The order impugned in the present Regular Second Appeal was where he was denied the crossing of efficiency bar for a period of one year alone. No case for interference in the Regular Second Appeal thus is made out and the same is accordingly dismissed. April 24, 2010 ( RANJIT SINGH ) rts JUDGE