V. K. Mehrotra, J. - (1.) HARI Om Prakash Agarwal, the petitioner in this writ petition under Article 226 of the Constitution, has challenged the order passed by the Assistant Collector (Head quarters) Central Excise, Allahabad and affirmed by the Central Board of Excise and Customs, New Delhi to the effect that the petitioner be permitted to cross the efficiency bar at the stage of Rs. 380/- per month with effect from May 1, 1978 and not with effect from the due date, namely, May 1, 1974.
(2.) THE petitioner was appointed as Lower Division Clerk in the Customs and Central Excise Department in the Allahabad Collectorate and was subsequently promoted as Stenographer. According to him, he was entitled to cross the efficiency bar after reaching the stage in the time scale of pay at Rs 380/-per month at the rate of Rs. 12/- per month. Hb case should have been considered for being permitted to cross the efficiency bar prior to May 1, 1974 but the respondents did not do so. On February 4, 1975 the petitioner was charge sheeted for an alleged breach of the Central Civil Services 'Conduct) Rules, 1964, inasmuch as he made a wrong statement before the Superintendent (Vigilance\ Central Excise, Allahabad that he had not written two post-cards, dated 30-6-72 and 26-7-1972 addressed to one B N. Saran, UDC C/O Assistant Collector, Central Excise, Barailly. After inquiry it was found that the petitioner had actually written those letters. By way of punishment for this lapse two increments of the petitioner were stopped with cumulative effect but this punishment was modified by the board in an appeal by the petitioner to that of the stoppage of two increments without cumulative effect. THE order of the Board was communicated to the petitioner by the Assistant Collector Head quarters Central Excise, Allahabad, by communication dated April 4, 1977 Annexure 2 to the writ petition. The grievance of the petitioner is that the respondents were in error in directing that the petitioner would be able to cross the efficiency bar with effect from May 1, 1978, firstly because it would have the effect of stoppage of his increments with cumulative effect for a period of four years which was contrary to the order passed by the Board and, secondly, that the respondents were in error in taking the view that it was not possible to direct the crossing of efficiency bar by the petitioner with retrospective effect A counter affidavit has been filed in the writ petition by the Assistant Collector (Head quarters) Central Excise, Allahabad. It has been stated therein that the petitioner's case for crossing the efficiency bar was placed before the Departmental Promotion Committee on November 2, 1977 after the disciplinary proceedings against the petitioner were finally decided on May 11, 1976 and the Departmental Promotion Committee found the petitioner not yet fit for being permitted to cross to efficiency bar. The petitioner's case was again put up before the Departmental Promotion Committee in June, 1978 which found him fit and allowed the petitioner to cross the efficiency bar with effect from May 1, 1978. It has also been pleaded that it was not possible to allow the petitioner to cross the efficiency bar with retrospective effect from the due date as the petitioner had not been completely exonerated in the disciplinary proceedings and reliance upon the decision of the Government of India made upderFundamental Rule 25 has been placed in this respect.
(3.) WE have heard the learned counsel for the parties and we are of opinion that the view taken by the respondents is not tenable in law. The Fundamental Rules framed by the Government of India provide in Fundamental Rule 24 that an increment should ordinarily be drawn as a matter of course by a Government servant unless it is withheld. Fundamental Rule 25 lays down that where an efficiency bar is prescribed in a time scale, the increment next above the bar shall not be given to a Government servant without the specific sanction of the authority, empowered to withhold increments under Rule 24. Some decisions have been taken by the Government of India which have been complied in the form of notes under various Fundamental Rules. One such decision i Note 8 under Fundamental Rule 25 as extracted in Swamy's Compilation of the Fundamental Rules, 1977 Edn.) is to the effect that a Government servant against whom departmental proceedings are pending but who is due to cross the efficiency bar prescribed in his time scale of pay, may not be allowed to cross the bar until after the conclusion of the proceedings. It has also been mentioned that if after the conclusion of the proceedings, the Government servant is completely exonerated, he may be allowed to cross the efficiency bar with effect from the due date retrospectively, unless the competent authority decides otherwise. But, if the Government servant is not completely exonerated, his case for crossing the efficiency bar cannot be considered with retrospective effect from the due date but can be considered only with effect from a date following the conclusion of the disciplinary/vigilance case, taking into account the outcome of such case. The petitioner has appended a copy of letter no. 290/14/1/76 Establishment (A) dated October 18, 1976 of the Department of P & A R. O. P. as Annexure-1 to the writ petition which relates to the question of consideration of cases for crossing of the efficiency bar. In this letter it has been mentioned that the cases of Government servants eligible for crossing efficiency bar should be considered by a Departmental Promotion Committee on the basis of records of performance upto date available at the time of such consideration. The letter also mentions that with a view to avoid procedural delays it has been decided that screening of efficiency bar cases should be made according to the time schedule mentioned in the letter in a tabular form. In this table it has been mentioned that cases in which the due date for crossing efficiency bar falls within the months January to March should be examined by January by the Committee and likewise where the dates fall within the months April to July, August to October and November and December consideration should be made in the months April, July and October respectively.;