In the High Court of Punjab and Haryana at Chandigarh LPA No. 240 of 2007 Date of decision: April 17, 2009 Subhash Chander ... Appellant Vs. State of Haryana and others ... Respondents Coram: Hon'ble Mr. Justice Uma Nath Singh Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sanjiv Gupta, Advocate for the appellant Ms. Ritu Bahri, DAG, Haryana. A.N. Jindal, J This L.P.A. is directed against the judgment dated 19.9.2007 passed by the learned Single Judge, whereby the writ petition directing the respondents-State of Haryana, P.W.D. Health Department, for quashing the adverse confidential reports Annexures P-1 to P-4 and P-6; for quashing the orders Annexures P-13, P-15 to P-20 and also for directing the respondents to cross his efficiency bar and consider the appellant for promotion, was dismissed. At the very outset, it may be mentioned that the petitioner- appellant (herein referred as 'the appellant') had joined as Clerk on 30.10.1968 and now he has retired on 30.7.2007. It has been alleged by the appellant that he was posted as Sub Divisional Clerk in the office of Public Health, WBP, Sub Division No.1 at Hisar. He was promoted as Sub Division Clerk by the Superintending Engineer, P.W.D. Public Health Circle Rohtak vide office order No.22961-64/E dated 31.12.1971 in the pay LPA No. 240 of 2007 -2- *** scale of Rs.110-4-130/5-160/5-225 plus Rs.25/- special pay and joined this post on 5.1.1972. The appellant was given adverse remarks in the ACR for the year 1972-73, 1975-76, 1976-77, 1977-78, 1981-82. The relevant extract of the report is reproduced as under :- Period Over all assessment Remarks 1972-73 (1.5.72 to 31.3.1973) (as S.D.C.) Average Adverse remarks conveyed vide S.E.P.H. Circle, Bhiwani Memo No.17436 dated 25.9.1973) 1975-76 (As SDC) Average Adverse remarks conveyed vide S.E.P.H. Circle, Bhiwani Memo No.9622 dated 3.6.76. 1976-77 (As SDC) Below average. Integrity not good. Adverse remarks conveyed vide S.E.P.H. Circle, Bhiwani Memo No.7470 dated 8.5.77) 1977-78 (As SDC) Not recommended for promotion at all. Adverse remarks conveyed vide S.E.P.H. Circle, Hisar Memo No. 1507 dated 11.2.88. 1981-82 (29.7.81 to 10.11.81) (As SDC) Adverse integrity doubtful Adverse remarks conveyed vide S.E.P.H. Circle, Hisar No.;9309 dated 19.6.82. It has been further averred that the office had directed the appellant not to enter into any correspondence with the office regarding adverse remarks contained in Annexure P-1. Thus, he could not file any representation because of the specific prohibition made by the officers. He was conveyed adverse remarks in his ACRs for the year 1975-76 vide letter dated 3.6.1976 Annexure P-2. Annexure P-2 also reveals that the appellant did not improve the deficiency conveyed to him. On receipt of the letter Annexure P-2, he filed a representation against the adverse remarks on 19.8.1976. Superintending Engineer again conveyed him the adverse remarks for the year 1976-77, vide letter dated 9.5.1977 Annexure P-3. Against this report, the appellant made representation on 14.6.1977. He was LPA No. 240 of 2007 -3- *** again conveyed adverse remarks for the year 1977-78 vide letter dated 11.2.1988 (Annexure P-4) and he filed representation on 18.2.1988, (Annexure P-5). He was again conveyed adverse remarks for the period 19.7.1981 to 10.11.1981, vide letter dated 19.6.1992 (Annexure P-6), against which he again filed representation vide annexure P-7. The representations filed by the appellant were not considered. However, a letter annexure P-8 was written to him advising him to file fresh representation against the adverse remarks contained in the ACRs for the years 1972-73, 1975-76 and 1976-77. Thereafter, he filed fresh representation dated 17.4.1986 (Annexure P-11)regarding the adverse remarks contained in the ACR for the year 1972-73 (Annexure P10). Despite the representation made by him, nothing was heard from the respondents, then he filed a writ petition over which an order was passed on 31.7.1991 which reads as under :- “Present: Mr. O.P. Sharma, Advocate, for the appellant. The counsel contends that appellant's representations copies of which are Annexure P/17 to P/19 filed against the adverse entries have not been decided so far and the appellant would be content, if a direction is issued to to the respondents to decide his representations expeditiously. No order accordingly. The representation be decided expeditiously preferably within three months after the receipt of a copy of this order, by passing a speaking order. The writ petition stands disposed of. LPA No. 240 of 2007 -4- *** Sd/- Amarjeet Chaudhary, Judge Sd/- N.K. Sodhi Judge July 31, 1991.” Now the appellant has challenged that the order on the representations was passed without application of mind. Ultimately, he has sought for expunging the aforesaid ACRs and he be allowed to cross the efficiency bar. Reply by the respondents No.1 to 3 was filed, wherein, the State controverted all the allegations and further added that the ACRs were recorded while keeping in view the work and conduct of the appellant and the same were conveyed to him from time to time. ACR for the year 1972- 73 was conveyed to him vide letter dated 25.9.1973 (Annexure P-1). Adverse remarks of the ACRs for the years 1975-76 and 1976-77 were conveyed to him vide letter dated 3.6.1976 (Annexure P-2) and 9.5.1977 (Annexure P-3) respectively. The representations dated 19.8.1976 and 14.6.1977 are against the adverse remarks of the ACRs for the year 1975-76 and 1976-77. Adverse remarks of the ACRs for the year 1977-78 and 1981- 82 ( 29.7.1981 to 10.11.1981) were conveyed to the appellant vide letters dated 11.2.1988 (Annexure P-4) and 19.6.1982 (Annexure P-6). The appellant made representations on 18.2.1988 (Annexure P-5) and 15.7.1988 (Annexure P-7) respectively against the adverse remarks of the ACRS for the years 1977-78 and 1981-82 (29.7.1981 to 10.11.1981). While admitting that the appellant was due for crossing the efficiency bar w.e.f. 2.9.1972 and was to be allowed the pay hike from 130 to 135 in the pay scale of Rs.110-4-130/5-160-5-225. His case was considered by the Superintending LPA No. 240 of 2007 -5- *** Engineer, P.W.D. Public Health Circle Rohtak with a view to cross his efficiency bar as on 2.9.1972 but on the basis of the record he was not found to be fit for efficiency bar on 2.9.1972. On the basis of the performance after 2.9.72 and 2.9.73, he was also not found fit for crossing the efficiency bar, as such the efficiency bar was withheld up to 2.9.74, vide order dated 14.6.1976 (Annexure P-15). Though the efficiency bar of the appellant was withheld up to 2.9.1974 vide order dated 14.9.1976, yet it was reviewed yearly taking into consideration his subsequent reports for the years 1973- 74 and 1974-75 which were not found against the Rule 4.8 of Civil Services Rules Vol.1 Part 1. Further the case of the appellant regarding crossing of efficiency bar was reviewed yearly as on 2.9.1975, 2.9.1976, 2.9.1977, 2.9.1978, 2.9.1979, 2.9.1980, 2.9.1981 and 2.9.1982 after taking into consideration all his ACRs for the subsequent years. His work performance was not found improved and he was not allowed to cross efficiency bar up to 2.9.1982. It was further denied if reports of the appellant for the years 1968-69, 1970-71 and 1971-72 were considered to be good. Although the appellant was due for crossing his efficiency bar on 2.9.1972 and he was not allowed to cross his efficiency bar on 2.9.1972 as majority of his ACRs were average and it is not correct to say that the appellant was required to have more than 40% good reports before he could be promoted to cross efficiency bar under the provisions of of instructions dated 5.7.1948 (Annexure P-21). These instructions transpire that the person who consistently earned good reports was to be permitted by competent authority to cross the efficiency bar. Under Clause 2 (b) of the said instructions, the person who earned at least 50% good reports was not required to be allowed LPA No. 240 of 2007 -6- *** to cross efficiency bar, unless the head of the department is satisfied on a careful study of the record that the person merit promotions. Learned Single Judge after examining the whole service record of the appellant refused to expunge his reports. The appellant was well within his knowledge that he had earned adverse reports upto the year 1971- 72 as such was not allowed to cross the efficiency bar on 2.9.1972 and it also cannot be said that his work and conduct was not annually reviewed as the State has specifically mentioned that the work and conduct of the appellant as well as ACRs were being reviewed yearly as per Rule 4.8 of the Civil Services Rules, Vol. 1 Part 1 on 2.9.1975, 2.9.1976, 2.9.1977, 2.9.1978, 2.9.1979, 2.9.1980, 2.9.1981 and 2.9.1982. The appellant has been suffering for want of crossing of efficiency bar and has continuously been earning adverse remarks in the years 1972-73, 1975-76, 1976-77, 1977-78 and 1981-82, but he filed writ petition only in the year 1992 i.e. after 15-20 years of the cause of action, which accrued to him, therefore, the petition suffers from delay and laches. It also does not lie in the mouth of the appellant that his representations were not considered as it speaks to the volumes that the appellant had been filing the representations, on those basis the reports were being reviewed and he was not allowed to cross the efficiency bar which also amounts to rejection of his representation. The learned Single Judge has rightly taken the view that honesty and integrity of the appellant was found to be doubtful for various years. The ACRs are recorded by the competent authority after reviewing his work and conduct and the courts should be hesitant in interfering in the subjective satisfaction of the recording authority. In the absence of any bias, malice, prejudice or LPA No. 240 of 2007 -7- *** personal grudge of the recording officer, ACRs need not be disturbed by the Court. It appears that the appellant had been consistently dishonest to his duties, as such while not interfering in the impugned judgment, we need to get evaluated the property earned by the appellant during his service career through police agency. As such, while dismissing the appeal, the matter is referred to the Director General of Police, Haryana to appoint appropriate officer to assess the value of assets earned by the appellant during his service career and to make out if the same are disproportionate to the known sources of income, then to proceed in accordance with law. (Uma Nath Singh) (A.N. Jindal) Judge Judge April 17, 2009 deepak