JUDGMENT
A. Banerji, J.
1. This is a defendant’s appeal, Kundan Lal Anand the respondent was in the service of the appellant in the office of the Controller of Defence Accounts, Western Command, Meerut, as a permanent upper division clerk. He joined service of the defendant department in 1948 as a lower division clerk and was promoted at an upper division clerk in December, 1954 and was working in the grade of Rs. 130-5-60-8-200-EB-8-256-EB-280-300. When he was drawing the salary of Rs. 200 per month and was entitled to cross the efficiency bar, the defendant without any valid reason stopped him from crossing the efficiency bar. The plaintiff’s case further was that the action of the sanctioning authority in stopping the plaintiff from crossing the efficiency bar was invalid, illegal and discriminatory. He, therefore, filed the present suit after serving a notice under Section 80 C.P.C., for a declaration that he was entitled to cross the efficiency bar with effect from the 23rd July, 1964. He also prayed for the amount of increment with effect from the aforesaid date till such date as the defendant actually starts paying him regular increments. The defence in the suit was that the question of the grant of increment across the efficiency bar was justifiable matter. Further, that the authorities were justified in witholding his increment as he did not have the pre-requisites to cross the efficiency bar. The suit was also pleaded to be barred by limitation and the notice under Section 80 C.P.C. was pleaded to be invalid.
2. The trial Court decreed the suit and declared that he was entitled to cross the efficiency bar at Rs. 200 with effect from July 23, 1964 and he was entitled to get the arrears of increments computing his salary on the basis as if he was allowed to cross the efficiency bar with effect from the 23rd July, 1964. The trial Court held that the authorities were not justified in withholding the increment of the plaintiff at the stage of Rs. 200 and the civil Court was fully competent to adjudicate upon the matter in the suit. The suit was held to be within time and the notice under Section 80 C.P.C., was also found to be valid. The Union of India filed an appeal and the very same questions were reagitated. The lower appellate Court dismissed the appeal holding that the stoppage of increment at the stage of efficiency bar in the case of the plaintiff to be mala fide and amounted to colourable exercise of power and was against the rules governing the service conditions. It was held that stoppage of the increment at the stage of crossing of the efficiency bar was illegal and was unjustifiably withheld by the defendant. It farther held that the suit of the plaintiff was justifiable and maintainable in the civil Court. Thirdly, it was held that the decree for accounting did not suffer from any error or illegality.
3. learned Counsel urged two points. Firstly, the suit was not maintainable in the civil Court, the order withholding increments was in the nature of an administrative order and it could not be challenged by way of a suit, and secondly, the Court below was not right in holding that the increment was withheld illegally or unjustifiably by the defendant. There was no mala fides on the part of the defendant in withholding the increment.
4. On the question of maintanability of the suit and the cause being justiciable, the Court below has considered the matter and arrived at a decision which, in my opinion, is perfectly justified. No provision of law was cited to show that such a suit was barred from the jurisdiction of the civil Court. Where there exists an illegal order or an unjustifiable order, or the order proceeds on grounds of mala fide action, the civil Court is not barred from entertaining such suits and deciding it. A question may arise in cases where a suit is expressly barred. There the considerations would be different. Unless it can be shown that the order passed in such a case amounts to an order beyond the competence of the authority passing such order, it cannot be challenged in a civil suit. The position in this case is different. There is no provision wider which the jurisdiction of the civil Court is barred. There is no remedy under the Rules either. The question here is one relating to the right to an office. Such a suit is of a civil nature. It could be entertained.
5. The confidential report of the year 1963, is on the record. A perusal thereof shows that the plaintiff got commendable entries in respect of the pre-requisites, except the concluding remark of his immediate superior officer. The remark of the officer has been quoted in the judgment of the Court below. Even there it has been remarked that the plaintiff is classified as “a good clerk”. The only thing against him was his “quarrelsome nature and temper”. But what is significant in that confidential report is while certifying that he was fit for drawing the next increment, in respect of the certificate of fitness for crossing the next efficiency bar the officer had entered a remark “not applicable”. It is rather strange that while the officer was certifying that the plaintiff was fit to draw the next increment, he was entering “not applicable” as regards his passing the next efficiency bar. It is also evident from the aforesaid confidental report that the plaintiff was drawing a salary of Rs. 200 per month at that time. He could not get any increment in his salary unless he crossed the efficiency bar. While the officer was certifying that he was fit enough to be given an increment he was withholding it by saying “not applicable” in the matter of certifying his fitness in respect of crossing the efficiency bar. There was no basis for such an entry. It was unjustifiable and a colourable exercise of power. I have, therefore, no doubt in my mind that the lower appellate Court was right in drawing the conclusions it did on the two questions above, in the context of the evidence on the record of this case the conclusions drawn by the Courts below were justified and no exceptions can be taken to thorn.
6. In the result, therefore, the appeal fails and is dismissed with costs. The interim stay order passed in this case is vacated.
