JUDGMENT
R.C. Lahoti, J.
1. Defendant/State through the Secretary, Education Department (Collegiate Education) has come up in second appeal feeling aggrieved by the judgment and decree of the lower appellate court directing a suit for declaration and consequential reliefs relating to service matter filed by the plaintiff/respondent to be decreed in reversal of the decree of the trial court which had dismissed the suit.
2. The plaintiff was serving as an Assistant Professor in the Education Department of the Government of Madhya Pradesh. He was at one time posted at Pichhore and thereafter transferred to Sheopur-Kalan. The efficiency bar in his pay scale had fallen due for release on 1-7-1977. However the entries in his confidential reports were adverse for the years 1975-76, 1977-78 and 1978-79 which resulted in denying release of efficiency bar. The plaintiff sought for a declaration that adverse entries in confidential reports for the years 1975-76, 1977-78 and 1978-79 were null and void as having been made contrary to rules and without communication to the plaintiff, for declaration that the act of the defendant/appellant in not releasing the efficiency bar on the appointed date was also null and void. The suit was filed on 7-7-1983. It was contested by the defendant/appellant pleading that confidential reports were as per rules, legally valid and bind- ing on the plaintiff. Plea of the suit being barred by limitation was also taken.
3. This Court admitted the appeal for hearing parties on the following substantial question of law :
“Whether the suit for the two reliefs mentioned therein was barred by limitation on the plaint averments and also on the plaintiffs evidence.”
In addition the learned counsel for the parties have addressed the Court with its leave on the following additional questions:
(i) Whether a suit of the nature filed by the plaintiff is maintainable in law ?
(ii) Whether the Civil Court can sit in review over the adverse entries in confidential records and decision of the competent authority in not releasing the efficiency bar ?
4. Explanation II to Rule 10 of M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 provides that stoppage of a Government servant at the efficiency bar in the time scale of apy on ground of his unfitness to cross the bar shall not amount to a penalty. In Ram Manoharlal Shrivastava v. Chief Conservator of Forests, M. P. and Ors., 1977 JLJ 151, a Division Bench of this Court has held by reference to Fundamental Rules, Rule 25 :
“It is beyond doubt that unless there is specific satisfaction of the authority, the efficiency bar cannot be removed and removal of the efficiency bar depends on the satisfaction of the competent authority. This being the position, it cannot be said that any right of the petitioner is violated.”
5. Fundamental Rule 25 itself states removal of an efficiency bar prescribed in time scale needs specific sanction of the competent authority, meaning thereby that the release is not as a matter of rule unless and until specifically sanctioned.
6. Learned counsel for the plaintiff/respondent submitted placing reliance on Gurudayal v. State of Punjab, AIR 1979 SC 1622 and R. S. Parashar v. State of M. P., 1986 MPLJ 386 = 1986 JL.J 331, taking the view that uncommunicated ACR could not be acted upon for withholding the promotion of a Government servant. There is no quarrel with the proposition. The law relating to entries in confidential reports and the scope of judicial review came up for consideration of a Division Bench of this Court in Mohindersingh v. Union of India and Anr., 1991 MPLJ 725 = 1991-1 MPJR 18, this Court held :
“The well recognised and accepted practice of making annual entries in the confidential reports of subordinate officials by superior ones has a public policy and purposive office procedure be- hind. It is one of recognised and time-tested modes of exercising administrative and disciplinary control by a superior official over his subordinates. It casts an obligation on the superior officer to keep a continuous watch and vigil over the performance of his subordinates and continue to make an assessment of quality and quantity in performance and of progress of the employee round the year and then to make a record in objective manner of assessment impression formulated. The entry is not to work as a teaching cane. The. superior officer has also to act as a guide and philosopher of his subordinate. The entry in the confidential rolls cannot be a reflection of personal whims, fancy or prejudices, likes or dislikes of the superior. The entry is supposed to reflect a note of objective assessment coupled with an effort at guiding the employee assessed with an idea of securing an improvement in his performance where need be; to admonish him with an idea of shortcomings found being removed; and appreciating him with anidea of toning up and maintaining his imitable qualities, by patting on his back.”
x x x x
“It is now well settled that even the Administrative actions of the State and statutory authorities are not immune from judicial review and arbitrariness in the State action would lead Article 14 of the Constitution spring in action, striking out State action, if, vulnerable. Every State acting has to stand by reason and be subject to rule of law. Still the scope of judicial review is limited. This Court would not substitute its opinion for the decision reached by the competent authority by a fair procedure. Judicial review is not concerned with the decision, but with the decision making process. Unless this restriction on the power of the Court is observed the Court would under the guise of preventing the abuse of power, be itself guilty of usurping power which does not belong to it.”
7. The lower appellate court relied on a departmental circular laying down the time schedule to be observed while making entries in confidential reports and their communication and then proceeded to hold the entries in question liable to be excluded from consideration for failure on the part of the State Government in communicating the same within time. The lower appellate court did not consider whether time schedule laid down in the departmental circular was mandatory or advisory. In the absence of the time schedule being mandatory merely because it was not strictly observed it would not render the entries bad by themselves sheerly for breach of observing the schedule. The lower appellate court proceeded to brand the entries ‘vitiated by mala fides’ though there was no adequate material for holding so. It is noteworthy that there adverse entries in the confidential reports of the plaintiff were made by different officers. The lower appellate court also omitted to notice that though the entries were communicated a little belatedly the remedy of the plaintiff lay in making a representation to an authority superior to one who had made the entries and not by filing the suit.
8. The plaintiff/respondent alleged malice against Shri M. L. Singhal, the then Principal of the College, who had written adverse reports for the years 1975-76 and 1978-79. He has stated on oath that he had recorded the entries on consideration of merits .and demerits of the plaintiff and not by being actuated by malice. Nothing has been brought out in the cross-examination to suggest that witness was telling a lie. It is noteworthy that the authority and jurisdiction of Shri Singhal as an authority competent to write confidential reports was not challenged. When the law vests authority in a high official for doing an act, it is to be presumed that the authority would discharge its powers bona fide unless contrary is proved.
9. As held in Mohindarsingh’s case (supra) neither the Court could have substituted its opinion for the decision of the authority making the entries in confidential report nor could it have interfered with the entries unless it was satisfied that there was a flaw in the decision making process which had vitiated the decision i.e. the entries. The lower appellate court has not recorded that finding.
10. It is also unfortunate that the lower appellate court overlooked the law laid down by the Division Bench in Ram Manohar Lal Shrivastava’s case (supra) though it was available in the law reports.
11. The plaintiff has admitted in his statement vide para 11 that as against the A.C.Rs. he had made representations. He admitted that representation made against the A.C.R. for the year 1975-76 was rejected and the rejection order was communicated to him. Though he stated that he had made representations against the A.CRs. for the years 1977-78 and 1978-79, but he placed nothing on record to hold his having made any such representation. If he had chosen to stand by these two A.C.Rs. without making any representation then that was the end of the matter. It is clear that there was no fault to be found with the decision making process and the A.CRs. were not open to judicial review. It is admitted by the plaintiff that the efficiency bar was released to him in the year 1982 during the pendency of the suit.
12. It has already been noticed that the A.CRs. were communicated to the plaintiff and as against one the plaintiff made representation, but made no representation against the other two. Assuming it for a moment that the A.C.Rs. were not communicated or that there was some delay in making the communication even that would not have vitiated postponing of the release of efficiency bar. In Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., AIR 1992 SC 1020, a case of compulsory retirement came for judicial scrutiny of their Lordships of the Supreme Court. The order was passed on certain adverse remarks which were not communicated. Their Lordships held that compulsory retirement was not a punishment, implying no stigma on the Government servant and hence the rules of natural justice were not attracted, the decision was to be taken by a subjective satisfaction arrived at on an overall consideration of the service record of the incumbent and even uncommunicated adverse remarks could be taken into consideration. The principle laid down in Baikuntha Nath Das’s case (supra) can be read with advantage for the purpose of the present case also. Withholding the release of efficiency bar is not a punishment. Rules of natural justice are not attracted thereto. The decision has to be taken on an overall consideration of the available service record. If adverse remarks were available, they could not be left out of consideration merely because they were yet to be communicated.
13. No other point was urged.
14. For the foregoing reasons it is held that the suit filed by the plaintiff was wholly devoid of any merit. On the averments made in the plaint no relief could have been allowed by the Civil Court to the plaintiff.
15. In the result, the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial court are directed to be restored. In the facts of the case the parties are left to. bear costs as incurred throughout.