Hon'ble Manoj Misra, J.
1. This writ petition is directed against the order dated 29.4.2003 passed by the Joint Director (Prosecution), Gorakhpur Region, Gorakhpur by which he has cancelled the order dated 14.8.1997 allowing the petitioner to cross efficiency bar w.e.f. 1.1.1992 and consequently directed re-fixation of petitioner's salary and the realisation of the excess amount paid to the petitioner.
2. The petitioner was appointed as Assistant Prosecution Officer in the Directorate of Prosecution, Government of UP. In the year 1990 he was posted in District Deoria. By the order dated 14.8.1997 the Joint Director (Prosecution), Gorakhpur Region, Gorakhpur allowed him to cross efficiency bar with fixation of basic pay at Rs. 2300/- in the pay scale of Rs. 2000-60-2300-Da Ra-75-3200 w.e.f. 1.1.1992. The order was passed on the recommendation of the Senior Prosecuting Officer, Deoria dated 5.8.1997. The Joint Director by his subsequent letter dated 27.9.1997 issued a clarification that the benefit of pay in pursuance to crossing the efficiency bar and consequent fixing of Rs. 2300 as basic pay w.e.f. 1.1.1992 be recorded in his service book.
3. By the impugned order dated 29.4.2003 without giving any notice or opportunity of hearing to the petitioner the order dated 14.8.1997 allowing the petitioner to cross the efficiency bar w.e.f. 1.1.1992 was cancelled. On the review of the annual confidential records it was found that in the years 1990, 1992-93 and 1993-94 the petitioner was awarded adverse entries and thus in view of the Government Order dated 18.7.1972 he was not eligible to be allowed to cross the efficiency bar.
4. We have heard Shri Manvendra Singh, learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents.
5. It is submitted by learned counsel appearing for the petitioner that by Government Order dated 28.7.1972 the State Government had clarified the procedure for allowing a government servant to cross efficiency bar. In para-2 (3) of the order it was provided that service records of the concerned employees should be seen prior to making the order, to allow him to cross the efficiency bar and in which five previous entries should be seen. It was noticed that in some cases a criteria is adopted that at least three out of five entries should be satisfactory and in some cases, there is insistence that there should be three continuous satisfactory entries. The competent authority should ensure that the officer satisfies the tests of eligibility of crossing the efficiency bar, in that his entire work and conduct should be taken into consideration. With regard to pendency of the enquiries, the Government Order clarified in para-2 (2) that care should be taken that where a charge sheet has been given or the departmental enquiry has been initiated in which the employee has been suspended, the decision should be taken only after looking into the result after conclusion of the enquiry. If any preliminary enquiry or enquiry by vigilance department, or CBI is pending, the same shall not come in the way of crossing efficiency bar. If an employee is subjected to disciplinary enquiry after the order allowing him to cross efficiency bar, it will not affect the benefit given to him.
6. Shri Manvendra Singh submits that the emphasis in allowing a government servant to cross efficiency bar is his overall performance. The Government Order has clarified that there should be no rigidity in examining his efficiency bar, only on the ground of satisfactory entries. The petitioner was allowed to cross efficiency bar on his performance assessed by the Senior Prosecuting Officer, Deoria, who had recommended in his favour by letter dated 5.8.1997. The entries on service record were available even prior to the making of the recommendation. The order allowing him to cross efficiency bar and in any case the entries of the year 1990 was much beyond the period of five years in making the assessment. He further submits that though the order, which does not allow a government servant to cross efficiency bar, may not be punitive to invite the principle of natural justice, when an order allowing a government servant to cross efficiency bar is cancelled and has an effect of withdrawing the financial benefits, it becomes punitive in nature. Such an order cannot be passed unless such government servant is given a show cause notice and a minimal opportunity of hearing. In the present case, no such opportunity was given to the petitioner before passing the order dated 29.4.2003, cancelling the order dated 14.8.1997, after a period of six years, within which the petitioner was drawing the salary with the benefit of the increments after crossing the efficiency bar.
7. Learned Standing Counsel has relied upon paragraphs 5 to 11 of the counter affidavit of Shri Jagdish Singh, Senior Prosecuting Officer, District Deoria, in which it is stated that the petitioner was awarded adverse entries in his confidential report in the year 1990. His representation was rejected by the Director of Prosecution. He was again awarded adverse entry for the year 1992-93, for which his representation was also rejected. The petitioner's further representation to the State Government was also rejected. The petitioner was awarded adverse entry for the year 2002-03 also, in between the period from 2.7.2002 to 31.3.2003.
8. It is stated in paragraph-11 of the counter affidavit, that the petitioner was allowed to cross efficiency bar from 1.1.1992 in the pay scale of Rs. 2000-3200 and at that stage his basic pay was fixed at Rs. 2300/-. On account of the adverse entries in the character roll in the years 1990 and 1992-93, he could not have been allowed to cross the efficiency bar. He was also awarded adverse entry in the year 1993-94 and in this way his confidential reports for last five years were not satisfactory. The period of the review was between 1992 to 1999. The regular order of crossing efficiency bar was cancelled and consequently the salary was revised.
9. We find considerable substance in the contention of learned counsel appearing for the petitioner, that where as the order, by which a government servant is not allowed to cross efficiency bar on account of adverse entry, is not punitive, where an order is passed on the review of the work, conduct and performance, and on the recommendation of his immediate superior officer, the withdrawal of the benefit of crossing efficiency bar after a period of six years is punitive in nature, which will attract the principle of natural justice. In such case a show cause notice must be given to the person allowing him to represent his case.
10. The efficiency bar involves an evaluation process. In Bhawani Shanker Sharma vs. Union of India AIR 1972 SC 2595 it was held that an employee, who successfully meets the evaluation criteria, is said to cross the efficiency bar and becomes entitled to the increment, which is specified in the scale as dependent upon crossing the efficiency bar. In the evaluation process the matters, which are generally considered for evaluation, are service records and the opinion formed by the superiors. Just like increments, the crossing of efficiency bar is also generally provided in the statutory rules. It is not automatic and is dependent upon necessary satisfaction of the Government. A special order is required to cross the efficiency bar. Unless the rules provide, there is no deeming provision to allow a government servant to cross the efficiency bar. It is not obligatory on the part of the Government to inform the employee of the reasons for holding that he was inefficient and the plea, that in the absence of said reason he was unable to make a proper representation cannot be sustained.
11. In O.P. Gupta vs. Union of India (1987) 4 SCC 328 the Supreme Court held that before stoppage of increment above the stage of efficiency bar under F.R. 25, with retrospective effect, after retirement the Government servant is entitled to hearing. The order must be made consistent with the principles of natural justice. Before passing an order, by which the employee is stopped from crossing the efficiency bar, he must be given an opportunity to explain his position. In para 19 of the report at page 343, it was observed:-
"19. It must follow that when a prejudicial order is made in terms of FR 25, to deprive a government servant like the appellant of his increments above the stage of efficiency bar retrospectively after his retirement, the government has a duty to hear the concerned government servant before any order is made against him. There has to be as laid down in M. Gopala Krishna Naidu case (AIR 1968 SC 240) an objective consideration of all the relevant facts and circumstances."
12. In the present case, the petitioner was allowed to cross the efficiency bar after assessment of his service records and the recommendations made by his immediate superior. In the circumstances, the subsequent order cancelling the order allowing the petitioner to cross efficiency bar and by which the financial benefits given to the petitioner were withdrawn, is punitive in nature, which could not be made in violation of principles of natural justice. The respondents were enjoined to give a show cause notice and allow the petitioner a chance to explain as to why the order allowing him to cross efficiency bar must be withdrawn.
13. The writ petition is allowed. The order dated 29.4.2003 passed by the Joint Director (Prosecution) Gorakhpur Region, Gorakhpur is set aside. There was an interim order operative during the pendency of the writ petition. It will be open to the respondents to pass a fresh order after giving opportunity of hearing to the petitioner.
Dt.23.3.2012 RKP/