JUDGMENT Sudhir Agarwal, J.
1. Sri H.N. Singh, learned Counsel for the petitioner does not propose to file rejoinder affidavit. Both the learned Counsel for the parties agree for final disposal of the matter, therefore, this Court has proceeded to hear and decide this matter finally under the Rules of the Court.
2. This writ petition under Article 226 of the Constitution of India has been preferred by Sri Kedar Nath Singh, Inspector, working in U.P. Police Force against the orders dated 26.4.97 passed by Dy Inspector of Police, Agra Range, Agra (Annexure 4 to the writ petition) withholding crossing of efficiency bar in the pay scale of Rs. 2000-60-Eb 75-3200, at the stage of Rs. 2300/- with effect from 1.1.1992 and onwards and dated 1.2.2000 (Annexure-5 to the writ petition ) passed by Inspector General of Police, Kanpur Zone, Kanpur, rejecting his appeal.
3. The brief facts relevant for the purpose of the writ petition are that the petitioner was working as Inspector in U.P. Police force and was posted in PAC in the year 1991-92. Efficiency bar in the pay scale at the stage of Rs. 2300/-fell due on 1.1.92, but after issuing a show cause notice dated 30.6.92 to the petitioner, the same was withheld vide order dated 28.3.93 passed by Deputy Inspector General of Police, PAC (Eastern Sector), Varansi on the ground that an adverse entry was awarded to the petitioner in the year 1991. The petitioner preferred an appeal against the aforesaid order but the same was rejected by the Inspector General of Police, PAC, Eastern Zone, Lucknow on 16.1.96. In the meantime another adverse entry was awarded in the year 1994 but no order for withholding of Efficiency Bar on and after 1.1.93 was passed. Thereafter, the petitioner was posted in Civil Police at Agra where Deputy Inspector General of Police, Agra Range, Agra allowed him crossing of efficiency bar at the stage of Rs. 2300/- vide order dated 26.4.97 with effect from 1.1.1997. The petitioner claiming crossing of efficiency bar w.e.f. 1.1.1992 filed an appeal against the aforesaid order before Inspector General of Police, Kanpur Zone, Kanpur, but vide order dated 1.2.2000, he has rejected the same upholding order dated 26.4.97 of the Deputy Inspector General of Police, Agra, on the ground that petitioner's service was transferable and transmission of service book took some time, therefore, the delay in crossing of efficiency bar is not unjustified and he was rightly allowed it to be crossed w.e.f. 1.1.97.
4. The petitioner has preferred this writ petition challenging the orders dated 26.4.97 and 1.2.2000 whereby he has been allowed efficiency bar at the stage of Rs. 2300/- w.e.f. 1.1.97. It is contended by learned Counsel for the petitioner that the delay in any case was not permissible under law and therefore, the respondents are not justified in allowing the crossing of efficiency bar only w.e.f. 1.1.97. He stressed that he is entitled to cross efficiency bar w.e.f. 1.1.92.
5. Respondents have filed counter affidavit stating that crossing of efficiency bar is a discretion of the respondent-authorities and an employee is not entitled, as a matter of right to claim crossing of efficiency bar on due date, i.e. 1.1.92 or thereafter, as in the case in hand. It is also stated that the petitioner was awarded censure entry in the year 1994, therefore, the respondent-authorities in exercise of its discretionary power could have withheld crossing of efficiency bar w.e.f. 1.1.1992 and thereafter and it cannot be said to be illegal, since it is within the jurisdiction of the respondent-authorities.
6. Heard learned Counsel for the parties and perused the record.
7. Before proceeding further it would be appropriate to mention that the learned Counsel for the petitioner admits that he has not challenged the earlier orders dated 28.3.1993 passed by the Deputy Inspector General of Police, P.A.C. Varanasi withholding his efficiency bar w.e.f. 1.1.92 and dated 16.1.1996 passed by the Inspector General of Police, P.A.C, Estem Zone, Lucknow rejecting his appeal, Therefore, orders withholding of efficiency bar for one year have attained finality and it cannot be said that the petitioner is entitled to cross efficiency bar w.e.f. 1.1.92. His claim to this extent, thus, is rejected. However, the question required to be considered here is whether non consideration of his case for crossing of efficiency bar after expiry of one year i.e. 1.1.93 and onwards is justified in the facts and circumstances of the case and in view of the legal provisions applicable.
8. In Time Scale Pay, there are two types of increments permissible, namely annual increment and efficiency bar. Annual increment is available to an employee in due course of time automatically after rendering a prescribed length of service unless a positive order withholding increment is passed which is normally punitive in nature. However efficiency bar in time scale is not a matter of right but is a stage where the employer is empowered to assess the efficiency of the employee on the basis of his performance and thereafter allow him crossing of that bar. The efficiency bar is a stage where the employee is stopped of regular annual increment, and further increment depends upon certification of his work and performance by the employer by passing an order to cross that stage. It is not unworthy and it would be useful to place on record the definition of "time scale of pay" as contained in Rule 9 (3) of the Fundamental Rule, which is reproduced as under-
(31)(a) time-scale pay means pay which, subject to any conditions prescribed in these Rules, rises by periodical increments from a minimum to maximum. It includes the class of pay formerly known as progressive.
(b) Time-scales are said to be identical if the minimum, the maximum, the period of increment and the rate of increment of the time-scale are identical.
(c) A post is said to be on the same time-scale as another post on a time-scale if the two time-scales are identical and the posts fall within a cadre, or a class in a cadre, such cadre or class having been created in order to fill all posts involving duties of approximately the same character or degree of responsibility, in a service or establishment or group of establishments; so that the pay of the holder of any particular post is determined by his position in the cadre or class and not by the fact that he holds that post.
The normal increment in time scale of pay is allowed periodically unless withheld by the order of the competent authority as provided vide under Rules 24 but vide Rule 25, at the level of efficiency bar, the Government servant is not allowed to cross unless competent authority passes an order for withholding the same. The aforesaid Rules 24 and 25 are reproduced as under-
24- An increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a government servant by the Government, or by any authority to whom the Governor may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments.
25-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.
The orders issued by the Governor in respect of Rule 25 is quoted in the Fundamental Rules which reads as under-
The cases of all persons held up at the efficiency bar should be reviewed annually by the withholding authorities with a view to determine whether the quality of their work has improved, and generally whether the defects for which they were stopped at the bar have been remedied to an extent sufficient to warrant the removal of the bar.
Thus the Government order itself provides that the cases of withholding of efficiency bar of a Government servant shall be reviewed annually by the competent authority and any deliberate non observance of the same would result in denial of right of the employee of annual review of his held up efficiency bar and he would be entitled to seek a remedy directing the competent authority to rectify such error and observe statute in words and spirit. The Apex Court in State of U.P. and Ors. v. K.U. Ansari and Ors. observed-
Crossing of efficiency bar is a well recognized means of monitoring the efficiency of the employee which helps him to make progress in his service career. In the expression 'efficiency' are included all relevant matters necessary for discharging his duties efficiently and satisfactorily.
Thus the competent authority has to consider the work and performance of an employee after he reaches the stage of his efficiency bar, on the basis of service record, and, on being satisfied, has to pass an order allowing efficiency bar. In this sense, it cannot be said that crossing of efficiency bar is a matter of right of an employee but simultaneously it also cannot be said to be a sole discretion of the competent authority. It is a power coupled with a duty vested in the competent authority to be exercised in an objective manner and not arbitrarily. Since the efficiency bar, when allowed to be crossed, permits increment in time scale of pay and therefore, affects the civil rights of the employee in case he is not allowed to cross the same. This leads to the conclusion that the competent authority has a statutory obligation and duty to consider the work and performance of the employee at the appropriate stage objectively and not whimsically, capriciously and arbitrarily. It is also coupled with the fact that such obligation must be discharged at an appropriate stage, that is within a reasonable time and without there being any undue and unjust delay not attributable to the employee concerned. The discretion which may subsequently affect or have the consequence of denying certain benefit to the employee, if exercised whimsically or capriciously, cannot be sustained and the Court will have to extend its arms as and when such a situation arises .
9. The learned Standing counsel is right in saying that the petitioner was not entitled to cross efficiency bar as a matter of right but I do not agree with his further contention that crossing of efficiency bar is the sole discretion of competent authority. Since the denial of such right to an employee is likely to affect him adversely, the obligation to consider crossing of efficiency bar by the competent authority, objectively at appropriate time is obligatory and mandatory. It has to be exercised on valid consideration of material available on record and not on whims and in arbitrary manner. The discretion, if any, is co-related with a civil right of an employee. The competent authority is bound to exercise discretion within well recognized principles of law.
10. In the case in hand, the efficiency bar fell due to the petitioner w.e.f. 1.1.92. His work and performance was assessed by the D.I.G. PAC, Varanasi and after taking into account adverse entry awarded to him in the year 1991, he passed an order withholding his efficiency bar for a period of one year. Thereafter the competent authority after expiry of one year, should have considered efficiency bar w.e.f. 1.1.93 or atleast must have considered the entitlement of the petitioner to cross efficiency bar w.e.f. 1.1.93 and onwards. There is nothing on record to show that the petitioner's claim for crossing of efficiency bar w.e.f. 1.1.93 was considered by the competent authority. It is not disputed that the adverse entry was awarded to the petitioner in the year 1994 i.e. on and after 1.1.94, therefore, the petitioner's right of consideration for crossing of efficiency bar w.e.f. 1.1.93 remained unattended which caused serious prejudice in the matter of salary etc.. The D.I.G, Agra passed order only on 26.4.97 allowing him crossing of efficiency bar w.e.f. 1.1.97 but there is nothing on record to show that the petitioner's case for crossing of efficiency bar w.e.f. 1.1.93 and onwards was considered at all by the competent authority. This non consideration is vitiated in law and cannot be sustained. Even if there was some delay in considering his matter, that would not have resulted in total denial of his claim to cross efficiency bar w.e.f. 1.1.93 for all times to come, but as and when, the competent authority would have considered the matter, it was incumbent upon him to review entitlement of the petitioner's to cross efficiency bar w.e.f. 1.1.93 and to pass an appropriate order accordingly. In case it finds that the petitioner can not be allowed to cross efficiency bar w.e.f. 1.1.93 on the basis of material as available till that date when it was due, the same thereafter should have been considered in the next year and so on. The respondents have failed to exercise statutory power vested in them in the manner as stated above. Therefore the order of D.I.G. Agra allowing the petitioner crossing of efficiency bar w.e.f. 1.1.97 cannot be sustained and is liable to be set aside.
11. The petitioner's appeal preferred against the order dated 26.4.97 has been rejected by the Inspector General of Police, Kanpur Zone, Kanpur vide order dated 1.2.2000 only on the ground that the petitioner's service was transferable and since transmission of service book has taken sufficient time, therefore, allowing of crossing of efficiency bar w.e.f. 1.1.1997 is justified. The reason assigned by the appellate authority justifying delay in crossing of efficiency bar in my view is palpably erroneous and shows a total non application of mind on his part. Transmission of service book of the petitioner or any other similar kind of delay can never result in denying benefit to an employee. It is not the case of the respondents that the petitioner was responsible for delay in transmission of his own service book. Department is custodian of service book of its employees and if it acts callously, has no business to blame an employee to deny service benefit to which they are entitled as per rules. This Court strongly deprecates this approach of the appellate authority for justifying delay in crossing of efficiency bar to the petitioner.
12. In the counter-affidavit the respondents however have attempted to justify non consideration of crossing of efficiency bar on the ground of adverse entry awarded to the petitioner in 1994 but in my view this averment is baseless as the said adverse entry could not have been considered while assessing the work and performance of the petitioner to cross efficiency bar w.e.f. 1.1.93 and 1.1.94. Admittedly on the basis of adverse entry awarded in 1991, efficiency bar of the petitioner was withheld for one year only and not beyond that. After expiry of the aforesaid period the petitioner was entitled in law to be considered to cross efficiency bar on the basis of the record as it was available on due date i.e. 1.1.93 and 1.1.94.
13. In view of the aforesaid discussion, the impugned orders cannot be sustained and therefore, the orders dated 1.2.2000 passed by the appellate authority and dated 26.4.97 passed by the D.I.G., Agra Range, Agra are quashed. The writ petition accordingly succeeds and is allowed. Respondent No. 2, in view of the observations made here in above, is directed to reconsider the entitlement of the petitioner for crossing of efficiency bar at the stage of Rs. 2300/- in pay scale of Rs. 2000-60-Eb 75-3200 w.e.f. 1.1.93 on the basis of the material as available on record till then and to pass a reasoned and speaking order expeditiously, preferably within six weeks from the date of production of a certified copy of this order. In case the petitioner is found to be entitled for crossing of efficiency bar w.e.f. 1.1.93, he shall be paid all consequential benefits without any further delay. It is also made clear that in case the petitioner is found not entitled to cross efficiency bar w.e.f. 1.1.93, in the same manner it would further be considered w.e.f. 1.1.94 and onwards. There shall be no order as to costs.