JUDGMENT
Amar Bir Singh Gill, J.
1. The petitioner assails order dated 16.10.1998, Annexure P-5, stopping him from crossing the efficiency bar and the order dated 16.10.1998, Annexure P-6 denying him the benefit of 1st and IInd higher standard pay scales effective from 1.1.1994 in accordance with the Government instructions dated 8.2.1994.
2. The petitioner was initially appointed as J.B.T. Teacher and subsequently promoted as Master in the month of May, 1968. He was allowed to cross the efficiency bar w.e.f. 1.4.1978 and the next efficiency bar was due to be crossed w.e.f. 1.4.1992. However, the same was not allowed taking into account his service record. Thereafter, his case was considered subsequently also and ultimately impugned order dated 16.10.1998, Annexure P-5, was passed which reads as under :-
“Order No. E-1/98/7352-55 Dt: 16.10.1998.
Shri Sube Singh S.S. Master, Government S.S.S. Dighana (Jind) who was due to cross the efficiency bar at the stage of Rs. 2300/- in the grade ofRs. 1400/2600 w.e.f. 1.4,1991 was stopped the E/Bar vide this office No. E-1198/6682-83 dated 9.7.1998. Now the case for the crossing of E/Bar was reviewed again on the basis of service record for the year 1991 -92,92-93,93-94,94-95,95-96. After taking into account the service record upto the year 1995-96 every time he is not found fit for the E/Bar. Accordingly he is again stopped at the E/Bar.”
3. The Government of Haryana issued instructions dated 8.2.1994, Annexure P-1, vide which all the employees of Group ‘C’ and ‘D’ were to be granted higher standard pay scales on completion often years or more and twenty years or more of regular satisfactory service. The case of the petitioner is that according to the Government instructions, Annexure P-2, the crossing of efficiency bar can be allowed if the employee has 50% good reports in the last 10 years of service earlier to the due date of crossing of efficiency bar. It is also the case of the petitioner that vide Government instructions dated 9.5.1985, a government employee who has 70% or more of good record is entitled to be considered for promotion. The petitioner retired from service on 30.11.1 996 and subsequent thereto his juniors have been promoted as Headmasters, Middle School and Head Masters, High School but the case of the petitioner was never considered. He filed representation in the month of July 1998. He claims that according to his service record, he has 6 good reports and one average and 3 reports were not available and his claim has been ignored solely on the ground that he did not have good reports in the last 10 years. Consequently, the petitioner has also been denied the benefit of 1st and 2nd higher standard pay scales on the basis of denial of crossing of his efficiency bar.: The petitioner claims that when he had completed 55 years of service, the respondents considered his continuation in service beyond that age and ultimately he was allowed to continue in service on the basis of the same record and as per Government instructions, Annexure P-8, the continuation of an employee after the age of 55 years can only be if he has 70% good reports in the last 10 years. The petitioner claims that the action of the respondents is not warranted under the law. He seeks quashing of the impugned orders Annexures P-5 and P-6.
4. The stand taken by the respondents in the written statement is that the record in the last 10 years of the petitioner was thoroughly considered at the time of crossing the efficiency bar w.e.f. 1.4:1992 and only 2 ACRs out of 10 ACRs were found satisfactory whereas 50% record/assessment was required to be satisfactory for crossing the efficiency bar. Thereafter, again upto 1995-96 the over-all assessment of the ACRs of the petitioner was not found satisfactory for crossing of efficiency bar on the basis of the instructions dated 1.2.1994, Annexure R-l ,and on the same consideration, the petitioner was denied the higher standard pay scale on the completion of 10/20 years of service. It is also claimed that the petitioner earned adverse remarks during his service and the petitioner himself admits that two of the adverse remarks were conveyed to him and as such he was not found fit to cross the efficiency bar at the stage of Rs. 2300/- in the grade of Rs. 1400-2600 w.e.f. 1.4.1991 and was stopped to cross the efficiency bar vide order dated 9.7.1998. His case was further reviewed but the same was also rejected. It is claimed that the ACRs for the years 1985-89 were not available.
5. In a separate written statement, respondent No. 3 detailed the gradation/assessment in the ACRs of the petitioner during his service career.
Heard learned Counsel for the parties.
6. It is not denied that for the purpose of crossing the efficiency 5ar, 10 years record earlier to the relevant date is to be taken into consideration and if an employee has 50% or above good record, he can be allowed to cross the efficiency bar. It is also not disputed that vide instructions, Annexure P-8 dated 19.11.1991, the service record of an employee as and when he attains the age of 55 years, is to be considered for the purpose of allowing him to continue till the date of superannuation i.e. 58 years and for the same purpose the assessment of the record is made on the same very criteria. It is also not disputed that the petitioner was allowed to continue in service after attaining the age of 55 years and he retired in the year 1996 on attaining the age of superannuation i.e. 58 years. In the written statement filed by respondent No. 3, the service record of petitioner i.e. gradation/assessment re-, corded in the A.C.Rs. have been detailed as follows :-
S.No.
Academic year
Gradation/Assessment record in
the ACR without up- grading on the basis of on the examination results
Remarks significance
1.
1981-82
+B
Good
2.
1982-83
+B
Good
3.
1983-84
+B
Good
4.
1984-85
+B
Good
5.
1985-86
Not available NAC under the
signature of the petitioner.
6.
1986-87
+B
Average
7.
1987-88
+B
Good
8.
1988-89
Not available NAC under the
signature of the petitioner.
9.
1989-90
+B
Good
10.
1990-91
+B
Good
11.
1991-92
A V.Good
12.
1992-93
Not available NAC.
13.
1993-94
B
Average
14.
1994-95
B
Average
15.
1995-96
B
Average
7. Admittedly, the ACRs for the years 1985-86 and 1988-86 were not available and, thus, cannot be considered adverse to the petitioner. It is also not disputed that under the Government instructions an assessment of average is not to be taken as adverse. The petitioner during service upto 1991 earned seven ‘+B-Good’ reports and one ‘B-average’ report and the ACRs for other two years i.e. 1985-86 and 1988-89 being not available, the record of the petitioner for these ten years on the basis of written statement filed by respondent No. 3 cannot be considered in any manner adverse for denying the crossing of efficiency bar to the petitioner. Even for the subsequent years i.e. upto 1995-96, the petitioner earned two ‘+B-Good’ reports, one ‘A-Very Good’ and three ‘B-Average’ reports besides one ACR for the year 1992-93 was not available. Irrespective of the adverse comments which are mentioned in the ACRs, it is the over-all assessment as ‘good’, ‘satisfactory’ or ‘average’ which is taken to be the annual assessment of an employee. It is also contended that, vide subsequent instructions, the annual assessment/gradation recorded in the ACRs were down graded keeping in view the pass percentage of the classes taught by the teachers including the present petitioner and the chart has been shown as under:-
S.No.
Academic year
Existing gradation Examination
result
Mechanical down gradation on
the basis of result.
Plus
Minus
1.
1981-82
+B
3
1
+B Good
2.
1982-83
+B
3
1
+B Good
3.
1983-84
+B
1
2
B Average
4.
1984-85
+B
3
2
+B Good
5.
1985-86
NAC
2
0
+B Good
6.
1986-87
B
1
2
C Below
average
7.
1987-88
+B
2
2
+B Good
8.
1988-89
NAC
0
1
C Below
Average
9.
1989-90
+B
0
1
C Below
Average
10.
1990-91
+B
1
0
+B Good
11.
1991-92
A
2
2
A V. Good
12.
1992-93
NAC
0
4
C below average
13.
1993-94
B
1
4
B Average
14.
1994-95
B
1
2
B Average
15.
1995-96
B
1
2
B Average
8. However, it is not shown if before down grading the annual assessment of the petitioner, he was informed and as such the down grading of the annual assessment reports without any notice or show cause notice to the petitioner being violative of principles of natural justice cannot be accepted as legally correct and cannot be used as material against the petitioner/ for refusing to allow his crossing of efficiency bar. The down grading chart, otherwise also, does not support the action of the respondents. Admittedly, the ACRs of the petitioner for the years 1985-86, 1988-89 and 1992-93 were not available as shown in the earlier chart and these could not have been down graded even in the absence of availability. These have been sho,wn to be ‘C-below average’ without any reason and is not justifiable. These reports being not available cannot be used against the petitioner. Leaving aside these three ACRs, the rest of the ACRs would indicate that more than 70% of the reports are in favour of the petitioner being ‘good’, ‘very good’ and ‘average’. Taking from any angle i.e. both the charts that the actual grading shown earlier and the ACR with down grading on presumption of certain instructions, on the basis of service tecord of the petitioner, he could not have been denied his crossing of efficiency bar.
9. In the circumstances, the action of the respondents in passing the impugned order, Annexure P-5, is not justified keeping in view the service record of the petitioner. Moreso, on the basis of same record, the petitioner was allowed to continue in service upto superannuation beyond 55 years of age. The very fact that’ the petitioner was permitted so, it impliedly proves that the record of the petitioner was good to the extent ofL50% or 70% for the purpose of his continuation in service beyond the age of 55 years.
10. Admittedly, the respondent-State in order to remove the stagnation of its employee of Group ‘C’ and ‘D’ categories in the matter of pay as a measure of relief decided to grant higher standard pay scales on completion of 10 years or more and 20 years or more of regular satisfactory service as per Government order, Annexure P-l. The petitioner, vide impugned order, Annexure P-6, was denied the benefit of higher standard pay scales considering his service record and on the basis of that he was denied from crossing the efficiency bar. Since the impugned order, Annexure P-5, denying the crossing of efficiency bar of the petitioner is against his service record, the consequential order, Annexure P-6, on the basis of order, Annexure P-5, can also not stand in the way of the petitioner to the grant of benefit of higher standard pay scale.
11. In the light of discussion made above, this petition is allowed. The impugned orders, Annexures P-5 and P-6, dated 16.10.1998 are quashed. The respondents shall re-consider the case of the petitioner for the purpose of crossing of his efficiency bar in accordance with the observations made above and shall extend the consequential benefits available to him under the law. However, payment of arrears, if any, shall be confined to three years and two months immediately prior to the filing of the writ petition. Needful shall be done within three months of the receipt of a certified copy of this order.
12. Petition allowed.