Regular Second Appeal No. 1242 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1242 of 1987 Date of decision: 07.04.2010 Hari Ram ...Appellant Versus Haryana State and another ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. C.B. Goel, Advocate and Mr. Naveen Daryal, Advocate for the appellant. Mr. Sunil Nehra, Sr.DAG, Haryana for the State. RANJIT SINGH J. Hari Ram, appellant-plaintiff, filed this suit making a grievance that he was not allowed to cross efficiency bar on the due date i.e. 01.11.1976. The suit was instituted on 09.04.1984. In the meanwhile, the appellant was allowed to cross the efficiency bar w.e.f. 01.11.1981 This order was passed on 14.12.1982. As per the averment in the plaint, the appellant was appointed as Turner Instructor in the scale of Rs. 120-8-200 w.e.f. 01.11.1965. He was posted in the Industrial Training Institute, Kaithal. The pay scale was revised w.e.f. 01.02.1969 to Rs. 160-10- 200-EB-10-300. This scale was subsequently revised to Rs. 160-400 (160-10-280-EB-15-400), amended yet again to the scale of Rs. 225- 16-360-EB-20-500. The appellant-plaintiff accordingly would plead that his pay scale should have been fixed in the revised pay scale from the date the scale came into force and as such would plead that w.e.f. 01.04.1979 his pay should have been fixed in the scale of Rs. Regular Second Appeal No. 1242 of 1987 2 525-1050. He had reached the stage of crossing the efficiency bar on 01.11.1976 but the same was not allowed till 01.11.1980 on the ground that his service record had not been found upto the mark for the purpose of allowing him to cross the efficiency bar. This order allowing the appellant to cross efficiency bar was endorsed on 14.12.1982 by the Director, Industrial Training, Haryana. It was viewed that the appellant was not entitled to cross the efficiency bar due to unsatisfactory record of service. The appellant had accordingly challenged this order to be illegal, void, arbitrary and against the principle of natural justice. Plea was that no one should be allowed to suffer on account of the inaction of the the respondents and since the case of the appellant was not considered for crossing the efficiency bar ever since from due date i.e. 01.11.1976 till the case was considered and appellant granted the benefit, he has suffered a serious prejudice. On being put to notice, the respondents filed a written statement and contested the suit. It was pleaded that the suit is barred by time and was also not properly valued for the purpose of court fee and jurisdiction. On merit, it was conceded that the appellant was due for crossing the efficiency bar on 01.11.1976, it is then stated that his record of service was not found up to the mark and accordingly, he was not allowed to cross the efficiency bar w.e.f. 01.11.1976, 01.11.1977, 01.11.1981, 1.11.1979 and 01.11.1980. This was again reviewed on 01.11.1981 and he was allowed to cross the efficiency bar with effect from the said date on the basis of service record and his pay was raised from Rs. 360/- to Rs. 480/-. All Regular Second Appeal No. 1242 of 1987 3 other contentions as raised in the plaint were denied being wrong. The trial Court on the basis of pleadings framed the following issues:- 1. Whether the order dated 14.12.1982 endorsed on 24.12.1982 passed by the Director Industrial Training Haryana by which the plaintiff was stopped to cross his efficiency bar on the ground of unsatisfactory record is illegal, against the rules of natural justice, mala fide and also against the provisions contained in punishment and appeal rules, 1952 and article 311 (2)? OPP. 2. Whether the suit is not maintainable in the present form?OPD. 3. Whether the suit is time barred? OPD. 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? 5. Whether the valid notice under Section 80 C.P.C. is given to the defendant? OPD. 6. Relief. On the basis of evidence, the trial Court decreed the suit. The State accordingly filed an appeal against the same and the appeal was allowed. The appellant, therefore, has filed this Regular Second Appeal. Learned counsel for the appellant would submit that the case of the appellant for crossing the efficiency bar was considered for the first time in the year 1982 and thus he was denied valid consideration for crossing the efficiency bar w.e.f. 01.11.1976. The counsel would also contend that the appellant had satisfactory record to show for the purpose of crossing the efficiency bar and thus the Regular Second Appeal No. 1242 of 1987 4 order declining him to cross the efficiency bar prior to 01.11.1982 was not justified. The First Appellate Court has considered the instructions issued by the State regulating the crossing of efficiency bar or stoppage of crossing efficiency bar through their letter No. 5474-3-S- 73/2078 dated 29.01.1974. These instructions were referred to and relied upon by the First Appellate Court. It is not disputed before me that the cases of crossing of efficiency bar would be regulated by the instructions as referred above. It has been noticed in these instructions that the stoppage at efficiency bar on the basis of work and conduct of a Government employee under the provisions of CSR has to be distinguished from the stoppage at efficiency bar under the Punishment and Appeal Rules. It has also been observed that when an Government employee is stopped at efficiency bar under the provisions of CSR no formal opportunity to show cause is required to be given to him, while in latter case, it is necessary to give such opportunity to the Government employee. It is observed that it would not be necessary before it is decided by the Government to stop the Government employee at an efficiency bar to inform him in writing, the grounds on which it is proposed to take such action. After providing so, 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 just stopped at the efficiency. Note 3 below Rule 4.8 of CSR Vol. 1 Part I provides that the case must be reviewed 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 Regular Second Appeal No. 1242 of 1987 5 conduct of the Government employee after 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 3 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 service was employed. On the basis of these instructions, the reports of the appellant were analysed. Perusal of the Annual Confidential Report for number of years would see that the reports are only satisfactory. The reports for the year 1965-66, 1966-67, 1967-68, 1968-69, 1969- Regular Second Appeal No. 1242 of 1987 6 70 and 1971-72 are found satisfactory. The reports for the year 1969-70, 1972-73 were assessed as average. It is only 1973-74 that the appellant had earned a very good report. In the reports for the year 1972-73 and 1974-75, the appellant was described as a slow worker and was directed to take remedial step to remove the same. 1975-76 report was again average. Taking the nature of the reports to be satisfactory, the First Appellate Court found that the appellant would fall in the category of fair, as per the instructions referred to above. For terming the employee as fair, he must atleast secure 50% of the good records. Once an employee is termed as fair on the basis of report, he 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 and give promise of satisfactorily filling the heavier charges in the grade. Without going into this aspect whether the appellant was rightly assessed as fair, it would be safe to say that he certainly could not be graded as good as per the instructions. Even if the record of the Annual Confidential Report of the appellant was fair still he could be considered and denied the crossing of efficiency bar unless the Head of Department was satisfied that he would merit promotion. Since there is no allegation made that the Head of the Department was in any manner biased against the appellant or that he was not fair in assessing the appellant, it would not be possible to say that the decision not to allow the appellant to cross the efficiency bar before the year 1982 suffers from infirmity. Learned counsel for the appellant has drawn my Regular Second Appeal No. 1242 of 1987 7 attention to the evidence of DW1 to urge that the appellant was considered for crossing the efficiency bar only in the year 1981. Even if this argument is accepted, what all the appellant would be entitled to would be a consideration for crossing the efficiency bar w.e.f. 01.11.1976 onwards. The record would show that when the case of the appellant was considered for crossing the efficiency bar, he was allowed to so cross the efficiency bar on 01.11.1982. His case w.e.f. 01.11.1976 indeed was so considered. The nature of the report would justify the denial of crossing the efficiency bar with effect from any date prior to 01.11.1982. Either no substantial question of law is arising for consideration or if any substantial question of law is arising there, the same apparently has been rightly decided by the First Appellate Court. No case for interference thus is made out. The Regular Second Appeal is accordingly dismissed. April 07, 2010 ( RANJIT SINGH ) rts JUDGE