JUDGMENT
S. Ravindra Bhat, J.
1. By this petition under Article 226 of the Constitution, an appropriate direction has been sought with regard to fixation of pay scale of the petitioner after crossing efficiency bar (‘EB’) w.e.f. 01.12.1984.
2. The petitioner joined services of the erstwhile Delhi Electrical Supply Undertaking (‘DESU’) as Inspector on 27.09.1974. He was, thereafter appointed to the post of Assistant Engineer on 31.12.1977. The pay scale in respect of that post, at the relevant time was Rs.1000-40-1200-EB-200-1400-60-1700-75-1850 As per the Pay Rules applicable to DESU (which after re-organization has been succeeded by M/s BSES Rajdhani Power Limited, hereafter called BSES), the case of the petitioner for crossing Efficiency Bar was to be considered w.e.f. 01.12.1984. In February 1985, a duly constituted Departmental Promotion Committee (DPC) consisting of Additional General Manager (Admn.), Additional General Manager (Tech.) and Chief Engineer examined the cases. The petitioner’s record was also seen and he was declared fit or crossing EB w.e.f. 01.12.1984. Consequently, the petitioner started drawing the higher pay w.e.f. 01.12.1984. As per the petitioner, even Income Tax was assessed on the basis that he had crossed Efficiency Bar. Sometime from April 1987, the respondents started deducting amounts from the petitioner’s basic pay. His basic pay too was reduced to Rs.1200/- per month.
3. The petitioner represented against the action taken by the respondent. However, those representations were not heeded. He, therefore, caused a legal notice to be issued on 11.11.1988 and later moved the Court through the present petition in February 1989.
4. The petitioner has averred that though his case for crossing Efficiency Bar was cleared by DPC in February 1985, that decision was apparently withheld by a newly appointed Additional General Manager (Admn.) eventually leading to reduction of his pay and recovery of amounts already paid to him from April 1987. The amount actually recovered was Rs.12, 029.60/-.
5. The respondent entered appearance and filed its counter affidavit on 06.09.1989. It has not denied that the Departmental Promotion Committee, at the relevant time found the petitioner fit to cross the Efficiency Bar. The respondent has also averred that the basic pay of the petitioner was thereafter raised to Rs.1400/- per month. According to the respondent, however, after the release of pay scales, the administrative officer pointed out that the approval of the competent authority, namely, General Manager was required. Under the circumstances, the case was referred back to the Administrative Officer. The affidavit further states that after receipt of the file, the new AGM (A) disagreed with the observations of the DPC and sent the file to the General Manager with his comments. According to him, the petitioner was an average officer and, therefore, unfit to cross the Efficiency Bar. He opined that there ought to be another DPC. The counter affidavit further states that another DPC was held in February 1987 which considered the CR’s for the year 1985-86 and the said AGM (A) again did not consider the petitioner fit to cross the Efficiency Bar w.e.f. 01.12.1985. Subsequently another DPC was held which considered the CR’s for 1986-87. This DPC eclared the petitioner fit to cross EB w.e.f. 01.12.1986. These circumstances have been relied upon to justify the action of the respondent in refixing the pay scale to Rs.1200/- in April 1987 and also effecting recoveries from the emoluments of the petitioner.
6. The respondent, namely, BSES, [arrayed as a party during course of the proceedings] produced the relevant records for consideration by the Court pursuant to the order-dated 01.10.2004
7. Mr.S.C.Jindal, appearing for the petitioner contends that once DPC found the employee fit to cross the Efficiency Bar and that decision was acted upon, it was not open to the respondent to resile from the decision and start effecting recoveries from the salary of the employee. The counsel submits that there was no occasion for the new AGM (A) to assess the decision of a duly constituted DPC; his comments about the unsuitability of the petitioner, which led to non-confirmation of the Minutes of the DC held in February 1985, were unwarranted. Counsel has also relied on the admission of the respondents that the petitioner’s pay was fixed as a consequence of the DPC’s determination and that he continued to enjoy a higher pay till April 1987. Counselor the petitioner, therefore, submits that the decision to recover amounts from his salary and withdraw the benefit of higher stage of pay scale was arbitrary and unfair. He also submits that there is no rule, guideline or regulation authorizing review of the decision taken by a DPC, by a single individual.
8. Mr.Ajay Jha, learned counsel for the respondent submits that as per procedure, the decisions of the DPC had to be confirmed by the Competent Authority, which in the present case was the General Manager. In the absence of his approval, no rights accrued in favor of the petitioner. When the matter was actually put up to him sometime during end of 1985, the then AGM (A) observed that the petitioner did not deserve to cross the Efficiency Bar – which was concurred with by the Competent Authority. The petitioner’s case was subsequently considered on three separate occasions with subsequent ACR’s; in two of them, the DPC did not find him fit to cross EB. Eventually, this benefit was permitted sometime in May 1987 when the petitioner was allowed to cros EB w.e.f. 01.12.1986.
9. The learned counsel for the respondent has relied upon the decisions of the Supreme Court reported as Haryana Warehousing Corpn. v. Ram Avtar1 and State of Punjab v. Gurdas Singh2 to the effect that no employee has a right to claim Efficiency Bar and that its denial cannot be termed as punitive so as to warrant adherence to principles of natural justice.
10. It has transpired that during pendency of the proceedings in Court, the petitioner was posted as Executive Engineer on 06.07.1990. Subsequently, his promotion was approved on 21.01.1992. The records produced by the respondent disclose that the petitioner eventually sought voluntary retirement and he superannuated on 30.06.2003. At that point of time, he was holding the post of Executive Engineer.
11. The concerned records show that the first DPC which recommended the case of the petitioner for crossing the Efficiency Bar clearly found him fit. The Minutes of meeting of that DPC are dated 28.02.1985. Indisputably that decision was acted upon and the petitioner’s pay was stepped up to Rs.1400/- per month w.e.f. 01.12.1984. Thereafter, the file discloses that there was no action for about 9 months when eventually on 22.11.1985, a note was put up reminding that the decision of the DPC had to be approved by the Competent Authority. By this time, it appears that the new AGM (A) had been appointed. He noted that the records of the petitioner were average and that instead of approving the decision of the DPC, it would be better to await the ACR’s fo 1984-85. The respondent has not been able to show as to how such a note could be put up once a duly constituted DPC consisting of three high officials had recommended the petitioner’s case. This note was merely concurred by the General Manager. There is nothing on record to indicate that he actually saw the ACR’s of the petitioner, which had been considered by the DPC earlier, and formed the basis of its recommendation.
12. The nothings made right up to 25.05.1987 on the file do bear out the respondents version, in the counter affidavit about fresh consideration of the petitioner’s case by other DPC’s and their decision not to permit crossing of EB for any period prior to 01.12.1986.
13. There is some substance in the contention of the respondent that the withholding of efficiency bar in respect of a public servant does not ipso facto result in evil consequences. The observations in Haryana Warehousing Corpn. v. Ram Avtar( supra), re lied upon in that regard, do lend support to such a contention. The decision in State of Punjab v. Gurdas Singh ( supra), however is in respect of a case where the issue was validity of an order of compulsory retirement. There, the court observed that th entire record of a public servant, including one directing stoppage of increments at the stage of efficiency bar, are relevant, and have to be considered by the concerned authorities.
14. In these proceedings, however, the court is not concerned with an abstract proposition of law; what is in issue is whether the respondents acted fairly and in a non-arbitrary manner. The petitioner’s grievance is not that he should have been given a prior hearing; or that the order in question is punitive. His complaint is that after finding him fit to cross efficiency bar, granting him the pay scale, deducting income tax on the basis of the higher emoluments, the respondent could not have virtually eviewed the decision, in April 1987, and deducted all amounts from his salary, as well as fixed him in the lower stage of pay.
15. In Padam Singh Jhina v. Union of India3, the Supreme Court held as follows:
Our attention has not been invited to any service rule governing the crossing of efficiency bar and requiring that an order in that behalf must precede the date on which the public servant is to cross the efficiency bar. In fairness to a public servant, it is true, the order preventing him from crossing the efficiency bar should be passed either before the appointed date, or shortly thereafter.
In O.P. Gupta v. Union of India4, the Supreme Court was concerned with the case of a government servant whose increments were stopped. He had faced suspension at the relevant time, and an enquiry; eventually he superannuated from service. The order of st ppage was passed at that stage. The court held:
There is therefore the insistence upon the requirement of a fair hearing. In the light of these settled principles, we have no doubt whatever that the government acted in flagrant breach of the rules of natural justice or fair play in passing the impuned order. We do not see way the principles enunciated by the Court in M. Gopala Krishna Naidu v. State of Madhya Pradesh4 should not apply with equal vigour to a case like the present. There was no reason why the power of the government to direct the stoppage of increments at the efficiency bar on the ground of unfitness or otherwise after his retirement which prejudicially affects him should not be subject to the same limitation as engrafted by this Court in M. Gopala Krishna Naidu v. State of Madhya Pradesh.
It was subsequently held that:
We find it difficult to subscribe to the doctrine evolved by the Division Bench that if the competent authority declines to sanction the crossing of the efficiency bar of a government servant under FR 25, the court has no jurisdiction to grant any relie No doubt, there has to be a specified order in terms of FR 25 by the competent authority before the government servant can get the benefit of increments above the stage of efficiency bar. The stoppage of such increments at the efficiency bar during the pendency of a departmental proceeding is not by way of punishment and therefore the government servant facing a departmental inquiry is not entitled to a hearing. Ordinarily, therefore, the court does not come into the picture at that stage. But in a case like the present where despite the fact that the departmental inquiry against the appellant had been quashed, and it had been held by the High Court that his suspension was wholly without justification, there was no occasion for the competent authority of enforce the bar against him under FR 25, particularly after his retirement, unless it was by way of punishment. That being so, the order passed by the competent authority under FR 25 being prejudicial to the interests of the appellant in such circumstances must be subject to the power of judicial review.
Similarly, in State of Maharashtra v. Uttamrao Rayala Nikam5,the Supreme Court reiterated and emphasized the need to pass timely orders in respect of stoppage of increments of public servants, at the stage of efficiency bar.
16. The principles deducible from the above decisions are:
(1)An order directing stoppage of increments at Efficiency Bar is not punitive; it need not be preceded by opportunity to the employee;
(2)Any decision on the case of an employee in respect of his entitlement to cross the Efficiency Bar has to be taken with dispatch and promptitude;
(3)In certain cases, the employee who may be visited with an order preventing him from crossing Efficiency Bar may have to be an appropriate hearing.
17. Here, the facts show that the petitioner’s case was considered by a duly constituted DPC, in February, 1985. After examining the relevant records, he was found fit to cross the efficiency bar with effect from 1-12-1885. His pay was accordingly stepped up to Rs. 1400 from that date, and the amounts were paid to him. Income tax too, was assessed on the basis of that salary. As per decisions of the Supreme Court, the order of approval of that decision had to be passed at the earliest; yet the matter was kept pending for nine months. During this time, one official, i.e. AGM (A) changed. He reviewed the file, and recommended that the increment at EB ought not to be given. There is nothing to show how one officer, ( admittedly not even the competent auth rity) could disagree with the findings of a duly constituted DPC. The competent authority, for inexplicable reasons, merely concurred with the comments of the AGM. The files nowhere disclose that all the records (considered by the DPC) relating to the Peitioner were placed before the competent authority for his approval. It was necessary that such authority at least satisfied himself in regard to the comments of the AGM before taking a decision not to approve the determination of the DPC. In the absence of such a course of action, the decision of the competent authority was uninformed. Fairplay and principles of non-arbitrariness required that the competent authority ought to have considered all relevant factors, including the records relating to the peitioner, and the fact that the decision of the DPC stood implemented.
18. The records for the subsequent period reveal the same saga. It appears that as long as the concerned AGM (A) was in position, he took the stand that the petitioner ought not to be allowed to cross efficiency bar. The reason cited was that his ACRs were average. Eventually, the decision to allow the petitioner to cross Efficiency Bar was taken in May 1987, but with effect from 1-12-1986. This DPC nowhere records that the ACRs of the petitioner had improved, and reflected that his performance was no merely average, but better.
19. There is another aspect of the matter. Admittedly, the DPC, which recommended the petitioner’s case, considered all relevant factors. It also kept in mind the standard applicable for considering cases of Efficiency Bar, while making recommendations. If that standard permitted recommendations in respect of employees with average ACRs, apparently also after considering other parameters, there was no reason why the petitioner’s case alone had to receive a different treatment. This seems to have happene, because his case had not received attention by the competent authority for 9 months. Hence, the intervening delay by the authorities ought not to have resulted in the application of another standard. It is significant to note that the competent authority did not disapprove the recommendations; he merely concurred with the comments of the new AGM (A) about awaiting ACRS for the current year. Nothing was brought to my notice that when the recommendation was eventually made, and accepted, the ACRs of the etitioner ceased to be average.
20. I am of the view that the circumstances outlined above disclose that the respondent acted in an arbitrary and unfair manner in withdrawing the benefit of Efficiency Bar granted to the petitioner with effect from 1-12-1984. Even if it were to be assumed that amounts were released due to some mistake, the minimum requirements of fairplay posited grant of an opportunity to the petitioner,who had even paid income tax on the higher emoluments received by him. The decision withdrawing the benefit of increments w.e.f.April, 1987 was not even communicated to the petitioner. I am not persuaded to hold that the petitioner was not permitted to cross the Efficiency Bar. Once the DPC cleared his name, and he received the benefit of higher emoluments for over 2 years, it was not open to the respondents to review his case, without any notice, hearing, or order. The petitioner cannot be penalized for the inaction of the competent authority; or the entirely avoidable circumstance of the comments by the new AGM (A) – whose role has not been justified at any stage- to the effect that he ought not to be granted the increment, after crossing EB. I am therefore of the view, that the present case is closely similar to O.P. Gupta’s case, where the decision of the authorities had been quashed, and the employee was directed to be given the benefit, as claimed.
21. In the light of the foregoing discussion, the petitioner is entitled to succeed. The writ petition is therefore allowed.
The following directions are issued:
a) the respondent shall reimburse the sum of Rs.12,029.60/- ( Rupees twelve thousand and twenty nine and paise sixty only) with interest @ 7 per cent per annum from 1 March, 1989 until date, within six weeks from today. In case of non compliance, the respondent shall be liable to pay higher interest at 10% from the date of expiry of the said period;
b) the respondent shall carry out re-fixation of petitioner’s salary and emoluments on the basis of his having crossed the efficiency bar and earned the basic pay of Rs. 1400/- with effect from 1-12-1984, and release such consequential amounts as the petitioner may become entitled to, for the subsequent period or periods, till the date of his superannuation in 2003, within a period of six weeks from today. Rule made absolute in the above terms. The petitioner is entitled to costs quantified at Rs. 3,000/- which shall be paid within six weeks.