Full Judgment Text
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PETITIONER:
O.P. GUPTA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT03/09/1987
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1987 AIR 2257 1988 SCR (1) 27
1987 SCC (4) 328 JT 1987 (3) 532
1987 SCALE (2)457
ACT:
Central Civil Services (Classification, Control and
Appeal) Rules, 1965, Rule 12-Departmental proceedings
against Civil Servant-Not to be protracted unnecessarily-
Necessity for concluding with reasonable diligence.
Civil Services: Fundamental Rules.-FRs 25 and 54: Civil
Servant-Placed under suspension-Necessity for departmental
proceedings being concluded within reasonable period-
Crossing of efficiency bar-To be considered at appropriate
time-Rules of natural justice applicable.
Constitution of India, 1950: Article 309-Service rules
have to be reasonable and fair and not grossly unjust.
Words & Phrases: ’Ordinary’-Meaning of.
HEADNOTE:
Fundamental Rule 54 requires that when a Government
servant who had been dismissed, removed or suspended is
reinstated, the authority competent to order reinstatement
has to make a specific order (a) regarding the pay and
allowances to be paid to the Government servant for the
period of his absence from duty, and (b) directing whether
or not the period of suspension shall be treated as a period
spent on duty. Fundamental Rule 25 lays down that the
increment next above the efficiency bar in a time scale
shall not be given to a Government servant without the
specific sanction of the authority empowered to withhold
increment under R.24. The Government of India, Ministry of
Finance’s decision dated September 21, 1967, as clarified by
Ministry of Home Affairs, Department of Personnel &
Administrative Reforms Memorandum dated April 6, 1979,
stated that if after the conclusion of the disciplinary
proceedings, the Government servant is completely
28
exonerated, he may be allowed to cross the efficiency
bar with effect from the due date retrospectively, unless
the competent authority decides otherwise. Rule 2.636 of the
C.P.W.D. Manual, Vol.I, 1956 edn., laid down that Divisional
and Sub-Divisional Officers who fail to pass the
departmental examination should not ordinarily be considered
either for promotion or for crossing the efficiency bar.
The appellant, an Assistant Engineer in the Central
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Public Works Department was placed under suspension on
September 3, 1959 pending a departmental enquiry. That order
was revoked by the Chief Engineer on May 8, 1970, and he was
reinstated in service on May 25, 1970 but the departmental
proceedings were kept alive. Immediately thereafter, the
appellant made a representation to the department to pass an
order under FR. 54 for payment of full pay and allowances
for the period of suspension, which was rejected on the
ground that the departmental enquiry was still pending.
Thereafter, the appellant was compulsorily retired by an
order of the Chief Engineer dated April 25, 1972 under FR.
56(j).
In the writ petition filed by the appellant under
Article 226 of the Constitution challenging the validity of
the order of compulsory retirement, and seeking directions
in terms of FR 54 for payment of full pay and allowances for
the period of suspension and also for payment of all
increments to which he was entitled, a Single Judge of the
High Court found the order of compulsory retirement bad in
law, quashed it, and held that the appellant shall be deemed
to have continued in service till March 31, 1978, the date
when he attained the normal age of superannuation. It was
further held that the suspension of the appellant was not
justified, and the period of suspension must be regarded as
spent on duty and therefore the appellant under FR 54(2) was
entitled to full pay and allowances and the increments for
that period, and that r.9(2)(b) of the Central Civil
Services (Pension) Rules, 1972 was not attracted, and
accordingly quashed the departmental proceedings. The
Division Bench declined to interfere.
Thereafter the Director General of Works on September
17, 1982 passed an order on the recommendation of the
departmental promotion board declaring the appellant unfit
to cross the efficiency bar at the stage of Rs.590 in the
grade Rs.350-900 with effect from October 5, 1966.
In the contempt proceedings taken by the appellant, the
government stated that there were two conditions for an
Assistant Engineer to
29
cross efficiency bar namely, (i) that he should have passed
the departmental examination in Accounts, and (ii) he should
have obtained good reports for the preceding five years. The
Single Judge declined to interfere with the governmental
order. The Division Bench dismissed the appeal and
reiterated that a writ petition should be filed.
The appellant thereupon filed the present writ petition
on July 10, 1985 under Article 226 of the Constitution to
enforce his right to increments after crossing of the
efficiency bar and also for grant of interest on delayed
payment of pension. The High Court held that the crossing of
the efficiency bar depends on the satisfaction of the
competent authority under FR 25 and also on the passing of
the departmental examination under r. 2.636 of the C.P.W.D.
Manual, Vol. 1, 1956 edn. and that if the authority
concerned had chosen not to give the sanction under FR 25,
the Court had no jurisdiction to interfere particularly as
the appellant was not actually in office for such a long
period of time.
In this appeal by special leave, on the questions: (i)
was the Union of India justified in passing the oder in
terms of FR 25 declaring the appellant unfit to cross the
efficiency bar, and (ii) was the appellant entitled to
interest on the delayed payment of his pension?
Allowing the appeal,
^
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HELD: 1.1 The order passed by the competent authority
under FR 25, prejudicial to the interest of the appellant
must be subject to the power of judicial review. [44AB]
1.2 The stoppage of increment at the efficiency bar
during the pendency of a departmental proceeding is not by
way of punishment, and therefore the government servant
facing a departmental inquiry is not entitled to a hearing.
The court does not come into the picture at that stage. But
where despite the fact that the departmental inquiry against
the government officer had been quashed, and it had been
held by the High Court that the suspension was wholly
without justification, there was no occasion for the
competent authority to enforce the bar against him under FR
25, particularly after his retirement, unless it was by way
of punishment. [43G-44A]
1.3 It is a fundamental rule of law that no decision
must be taken which will affect the rights of any person
without first giving him an opportunity of putting forward
his case. Strict adherence to this rule is mandatory where a
public authority or body has to deal with rights.
30
There is always the duty to act judicially in such cases.
There is, therefore, the insistence upon the requirement of
a fair hearing. There is no reason why the power of the
Government under FR 25 should not be subject to the same
limitations. [41G, 42B,C]
1.4 The note beneath Government of India, Ministry of
Finance Memorandum dated April 23, 1962, as amended from
time to time enjoins that the cases of government servants
for crossing of the efficiency bar in the time-scale of pay
should be considered at the appropriate time and in case the
decision is to enforce the bar against the government
servant, he should be informed of the decision. In enforcing
the bar under FR 25 against the appellant the competent
authority acted in flagrant breach of these instructions.
[44FG]
1.5 There was no question of the appellant having
adverse record for five years preceding his compulsory
retirement since for three years he was under suspension and
for the next two years there was nothing blameworthy against
him. Furthermore, he having compulsorily retired on July 28,
1972 and also having reached his normal age of
superannuation on March 31, 1978, his failure to pass the
departmental examination under r. 2.636 could not be treated
as a ground for denying him the benefit of crossing the
efficiency bar under FR 25. The word ’ordinary’ in r. 2.636
must be given its plain meaning as in normal circumstances.
[44CE]
2.1 Suspension where there is no question of inflicting
any departmental punishment prima facie tantamounts to
imposition of penalty which is manifestly repugnant to the
principles of natural justice and fairplay in action. The
conditions of service are within the executive power of the
State or its legislative power under the proviso to Art. 309
of the Constitution, but even so such rules have to be
reasonable and fair and not grossly unjust. It is a clear
principle of natural justice that the delinquent officer
when placed under suspension is entitled to represent that
the departmental proceedings should be concluded with
reasonable diligence and within a reasonable period of time.
If such a principle were not recognised, it would imply that
the executive is being vested with a totally arbitrary and
unfettered power of placing its officers under disability
and distress for an indefinite duration. [41DF]
2.2 There is no presumption that the Government always
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acts in a manner which is just and fair. In the instant
ease, there was no occasion whatever to protract the
departmental inquiry for a period of 20 years
31
and keeping the appellant under suspension for a period of
11 years unless it was actuated with the mala fide intention
of subjecting him to harassment. [40F]
2.3 The public interest in maintaining the efficiency
of the services requires that civil servants should not be
unfairly dealt with. The Government must view with concern
that a departmental inquiry against the civil servant should
have been kept alive for so long as 20 years or more and
that he should have been placed under suspension without any
lawful justification for as many as 11 years, without any
progress being made in the departmental inquiry. It should
also view with concern that a decision should have been
taken by the competent authority to enforce the bar under FR
25 against the civil servant long after his retirement
without affording him an opportunity of a hearing with a
view to cause him financial loss. [45AB]
3. The Court, as a settled practice has been making
direction for payment of interest at 12% on delayed payment
of pension. There is no reason for it to depart from that
practice in the facts of the present case. [45E]
4. The Director General of Works is directed to make an
order in terms of FR 25 allowing the appellant to cross the
efficiency bar according to the decision of the Government
of India, Ministry of Finance dated September 21, 1967 as
later clarified by the Ministry of Home Affairs Memorandum
dated April 6, 1979 and to re-fix his pension accordingly.
The appellant would be entitled to interest at 12% per annum
on the difference in salary as well as in pension. [45G-46A]
Ridge v. Baldwin, LR [1964] AC40; M. Gopala Krishna
Naidu v. State of Madhya Pradesh, [1968] 1 SCR 355; B.D.
Gupta v. State of Haryana, [1973] 2 SCR 323; Khem Chand v.
Union of India, [1958] SCR 1080 and Board of Trustees of the
Port of Bombay v Dilip Kumar Raghavendranath Nadkarni &
Ors., [1983] 1 SCR 328, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3582 of
1986.
From the Judgment and Order dated 24.7.1985 of the
Delhi High Court in Civil W.P. No. 435 of 1985.
S. Rangarajan and Ms. Asha Rani Jain for the Appellant.
V.C. Mahajan, Ms. C.K. Sucharita and C.V. Subba Rao for
the Respondents.
32
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave directed against
the judgment and order of the High Court of Delhi dated July
24, 1985 raises two questions, namely: (1) Was the Union of
India justified in passing an order dated September 17, 1982
in terms of FR 25 declaring the appellant to be unfit to
cross the efficiency bar as Assistant Engineer, Central
Public Works Department at the stage of Rs.590 in the
prerevised scale of pay of Rs.350-590-EB-900 as from October
5, 1966? And (2) Is the appellant entitled to interest on
the delayed payment of his pension?
This litigation has had a chequered career. The
appellant who was as Assistant Engineer in the Central
Public Works Department was placed under suspension pending
a departmental enquiry under r.12(2) of the Central Civil
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Services (Classification, Control & Appeal) Rules, 1965 on
September 3, 1959. He remained on suspension till May 25,
1970 when on repeated representations the Chief Engineer,
Central Public Works Department revoked the order of
suspension and he was reinstated in service. During the
aforesaid period of suspension, adverse remarks in his
confidential reports for the period between April 1, 1957
and August 31, 1957 and between April 1, 1958 and March 31,
1959 were communicated to him on December 16, 1959. After a
period of nearly five years, the departmental proceedings
culminated in an order of dismissal from service dated March
12, 1964 but the same on appeal by him, was set aside by the
President of India by order dated October 4, 1966 with a
direction for the holding of a fresh departmental inquiry
under r. 29(1)(c) of the Rules, with a further direction
that he shall continue to remain under suspension. The order
of suspension was revoked by the Chief F Engineer on May 8,
1970 but the departmental proceedings were kept alive. As a
result of this, the appellant was reinstated in service on
May 25, 1970. Immediately thereafter, he made representation
to the Department to pass an order under FR 54 for payment
of full pay and allowances for the period of suspension i.e.
the period between September 3, 1959 and May 25, 1970 but
the same was rejected on the G ground that departmental
inquiry was still pending.
There was little or no progress in the departmental
inquiry. on April 25, 1972 the Chief Engineer passed an
order of compulsory retirement of the appellant under FR
56(j). The appellanrmade representations to various
authorities, including the President of India, H against his
compulsory retirement but the same was rejected Eventu-
33
ally, on July 20, 1972 the appellant filed a petition under
Art. 226 of the Constitution in the High Court challenging
the validity of the order of compulsory retirement and
prayed for a direction in terms of FR 54 for payment of full
pay and allowances for the period of suspension and also for
payment of all increments to which he was entitled. He also
prayed for quashing of the departmental proceedings.
A learned Single Judge (Wad, J.) by his judgment and
order dated January 5, 1981 held that the order of
compulsory retirement of the appellant was bad in law, not
being relatable to FR 56(j) inasmuch as the action was not
based on an overall assessment of the appellant’s record of
service and was in breach of the instructions issued by the
Government of India, Ministry of Home Affairs dated June 23,
1969 laying down the procedure to be followed under FR
56(j). He further held that the action to compulsorily
retire the appellant in 1972 under FR 56(j) could not
obviously be taken on the basis of adverse remarks for the
years 1950-51 when he was an Overseer, nor on the adverse
remarks for the years 1957-59 communicated to him on
December 16, 1959, after a lapse of 20 years and 13 years
respectively. Further he observed that the adverse remarks
of 1957-59 were not serious enough to cut short the career
of the appellant as a Government servant, particularly in
view of the fact that the general confidential reports for
two years immediately preceding his retirement on July 28,
1972 did not reveal anything blameworthy against him. He
accordingly quashed the order of compulsory retirement of
the appellant and held that he shall be deemed to have
continued in service till March 31, 1978, the date when he
attained the normal age of superannuation.
During the course of his judgment, the learned Judge
also adversely commented on the failure of the Department to
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pass an order in terms of FR 54 consequent upon the
reinstatement of the appellant on May 25, 1970 within a
reasonable time. He observed that ordinarily he would have
left it to the Department to pass an order under FR 54 as to
whether the suspension of the appellant for the period from
September 3, 1959 to May 25, 1970 was justified or not but
due to the inactivity or refusal on the part of the
Government to pass an order under FR 54, the Court was left
with no other option but to deal with the question. After
referring to the various stages of the departmental
proceedings, the learned Judge held that the suspension of
the appellant was not justified and the period of suspension
must be regarded as spent on duty and therefore the
appellant under FR 54(2) was entitled to full pay and
allowances and the increments for that period. He further
held that r. 9(2)(b) of the Central Civil Services
34
(Pension) Rules, 1972 was not attracted and accordingly
quashed the departmental proceedings. The operative part of
the judgment of the learned Judge reads as follows:
"The petition, for the reasons stated above,
succeeds. The order of compulsory retirement dated
25.4.1972 is set aside. The petitioner would be
entitled to continuation in service upto March 31,
1978 (the date when he reached his normal age of
superannuation) and consequential benefits. The
continuation of suspension of the petitioner was
without any justification. The petitioner would be
entitled to full pay and allowances from 3.9.1959
to 24.5.1970 with increments and other service
benefits according to Rules. The pending
departmental proceedings are quashed."
Aggrieved, the Union of India went up in appeal but a
Division Bench by its judgment dated March 24, 1982 declined
to interfere. The appellant had in the meanwhile submitted
his bill of arrears and the respondents having failed to
comply with the direction of the learned Single Judge, he
moved the High Court for contempt. In response to the notice
issued by the High Court, respondent no. 4 Director General
of Works entered appearance on September 6, 1982 and
tendered a written apology, upon which the High Court
dropped the proceedings. It appears that the Department paid
the appellant about Rs.86,000 in compliance with the
judgment of the learned Single Judge.
Although there is a healthy trend and the Government of
India has set up an independent Ministry-Ministry of
Personnel, Public Grievances & Pension-for settlement of
claims in regard to pension, this case is an instance where
a civil servant had been subjected to endless harassment for
no fault of his own. While it is true that the charge
levelled against the appellant was serious enough to merit
the imposition of a major punishment, there was little or no
progress for keeping the departmental proceedings pending
for over 20 years. There was persistent effort on behalf of
the Department to visit the appellant with civil
consequences, first by placing him under suspension under r.
12(2) of the Rules for a period of 11 years and secondly by
directing his compulsory retirement when it was realised
that the charge levelled could not be substantiated. Under
FR 54 when a Government servant who had been dismissed,
removed or suspended is reinstated, the authority competent
to order reinstatement has to make a specific order (a)
regarding the pay and allowances to be paid
35
to the Government servant for the period of his absence from
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duty, and (b) directing whether or not the period of
suspension shall be treated as a period spent on duty.
Despite repeated representations made by the appellant, the
Government failed in its duty to pass an order in terms of
FR 54 within a reasonable time. The Government also failed
to comply with the judgment of the learned Single Judge and
pay to the appellant the arrears of pay and allowances
amounting to about Rs.86,000 till the High Court issued a
notice for contempt. It is regrettable that respondent no. 4
Director General of Works had to enter personal appearance
and tender a written apology. The payment of Rs.86,000 to
the appellant was therefore under threat of contempt and
does not redound to the credit of the Government.
The miseries of the appellant did not end with this.
The Department apparently never forgave the appellant for
having dragged the Government to litigation and compel the
personal appearance of the Head of the Department. It was
expected that the Government would act with good grace but
just within a fortnight of the termination of the contempt
proceedings, the Director General rejected the appellant’s
case for crossing of the efficiency bar at the stage of
Rs.590 w.e.f. October 5, 1966 as indicated hereinafter.
In the counter-affidavit to the contempt proceedings,
the Government stated that there were two conditions for an
Assistant Engineer to cross the efficiency bar, namely: (1)
that he should have passed the departmental examination in
Accounts prescribed for Assistant Engineers, and (2) he
should have obtained good reports over the last five years.
The increments above the stage of efficiency bar are to be
allowed in accordance with the provisions contained in FR 25
and the Government of India’s decisions thereunder. The
appellant’s case for crossing of efficiency bar at the stage
of Rs.590 w.e.f. October 5, 1966 was said to have been
considered by the Departmental Promotion Committee on the
basis of his performance reports. Evidently, the
Departmental Promotion Committee recommended on the basis of
such reports that he was not fit to cross the efficiency bar
at the stage of Rs.590 from October 5, 1966 or on any
subsequent date upto October 5, 1971. The report of the
Departmental Promotion Committee was accepted by the
competent authority. Accordingly, the Director General of
Works on September 17, 1982 passed an order to the following
effect:
"No.32/426/66.EC.III New Delhi, dated 17.9.82
36
OFFICE MEMORANDUM
Sub: Crossing of Efficiency Bar by Shri O.P.
Gupta, Assistant Engineer (Civil), Retired.
The Executive Engineer, Central Stores
Division No. 1, C.P.W.D. New Delhi is informed
that the case of crossing of efficiency bar by
Shri O.P. Gupta, Assistant Engineer (Retired) at
the stage of Rs.590 in the pre-revised scale of
pay of Rs.350-25-500-30-590-EB-30-800-EB-30-830-
35-900 has been considered by the competent
authority, who has found him unfit to cross the
efficiency bar w.e.f.5. 10.1966 or from any
subsequent date upto 5. 10.1971."
The impugned order is not as innocuous as it looks.
Just as suspension of a government servant pending a
departmental inquiry is not by way of punishment, so also
the withholding of increments at the efficiency bar pending
such inquiry. But when the High Court quashed the
departmental proceedings which were pending for over 20
years with little or no progress as being wholly invalid and
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unfair, there was no occasion for the Department to have
passed an order under FR 24 for withholding increments to
the appellant at the stage of Rs.590 w.e.f. October 5, 1966
unless it was with a view to penalise him financially. As
already stated, the authority competent to order
reinstatement failed to make an order in terms of FR 54
after the appellant had been reinstated in service on May
25, 1970 within a reasonable time. Looking to the long lapse
of time, the High Court was entitled to go into the question
as to whether the appellant upon his reinstatement was
entitled to the full pay and allowances to which he would
have been entitled had he not been suspended. Undoubtedly,
the High Court gave a direction in terms in FR 54(2) that
the appellant would be entitled to his full pay and
allowances as also to his increments etc. but this would be
the normal increment prior to the crossing of the efficiency
bar for purposes of FR 54(2). There has to be a specific
order in terms of FR 25 before a government servant can be
allowed to draw his increments above the efficiency bar. The
Government was justified in withholding increments under FR
25 pending the departmental inquiry but after the High Court
had quashed the departmental inquiry, the question whether
the appellant could be deprived of his increments under FR
25 was a live issue till the controversy was settled by the
Government of India, Ministry of Finance decision dated
September 21, 1967. We shall first reproduce FR 25 and it is
in the following terms:
37
"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 increment under Rule 24 or the relevant
disciplinary rules applicable to the Government
servant or of any other authority whom the
President may,by general or special order,
authorise in this behalf."
The Government of India, Ministry of Finance’s decision
dated September 21, 1967 as clarified by Ministry of Home
Affairs, Department of Personnel & Administrative Reforms
Memorandum dated April 6, 1979, insofar as relevant is
reproduced below:
"(7) Procedure for consideration of cases-(a) When
disciplinary proceedings are pending-A Government
servant against whom 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. A question was raised as to the date
from which a Government servant whose case for
crossing the efficiency bar has not been
considered on account of the pendency of a
disciplinary/vigilance case against him, should be
considered for being allowed to cross the
efficiency bar, after the enquiry is over. It has
been decided, in consultation with the Ministry of
Home Affairs, 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. If however, the Government
servant is not completely exonerated, his case for
crossing the efficiency bar cannot be considered
with retrospective effect from the due date. Such
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cases can be considered only with effect from a
date following the conclusion of the
disciplinary/vigilance case, taking into account
the outcome of the disciplinary/vigilance case.
(b) When conduct is under investigation-Same
procedure as at (a) may be followed after the
conclusion of the investigation and where the
competent authority on consideration of the
results of the investigation, has formed the
opinion that a charge-sheet may be issued to the
Government servant concerned on specific
imputations where
38
departmental action is contemplated or that
sanction for prosecution may be accorded where
prosecution is proposed. Otherwise, the normal
procedure should be followed.
..... The sealed cover should be opened after
conclusion of the proceedings. If he is fully
exonerated, the recommendations in the sealed
cover may be considered by the competent authority
who may lift the bar retrospectively from the date
recommended by the D.P.C. In that case, the
Government servant will be entitled to the arrears
of the increment(s). In case, however, the
proceedings do not result in complete exoneration
of the Government servant, he cannot be allowed to
cross the bar with retrospective effect."
The relevant provision in r. 2.636 of the C.P.W.D.
Manual, Vol. 1, 1956 edn. at p. 53 is in the following
terms:
"2.636. The Government of India have decided-
(a) that a departmental examination shall be
held by the Chief Engineer twice a year and as far
as possible in the months of January and July
every year, for all Divisional and Sub-Divisional
Officers in the Central Public Works Department;
(f) Divisional and Sub-Divisional Officers
who fail to pass the departmental examination
should not ordinarily be considered either for
promotion or for crossing the efficiency bar."
It is somewhat strange that when the appellant applied
to the learned Judge (Wad, J.) for review, he by his order
dated February 2, 1983 declined to interfere saying that
there was no ground for review inasmuch as the appellant had
not been allowed to cross the efficiency G bar under FR 25
for two valid reasons, namely: (1) his failure to pass the
departmental examination, and (2) his confidential reports
for the preceding five years were not satisfactory. As to
the question of the appellant being afforded an opportunity
before an order under FR 54(2) adverse to him was passed by
the disciplinary authority, the learned Judge observed that
’the matter was at large when the petition H for contempt
was filed’ and further that ’all pros and cons of the matter
39
had been gone into through the affidavits filed by the
parties and at the hearing in the Court’ and added:
"I do not think that it is necessary to give any
further opportunity to the petitioner for this
purpose, particularly when he has admitted that he
has not passed the examination."
The learned Judge failed to appreciate that no prejudicial
order under FR 25 could be made without giving the appellant
an opportunity of a hearing as it visited him with civil
consequences. The appellant was thus constrained to move
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another application for review. This time the learned Judge
by his order dated November 30, 1983 dismissed the
application observing that no ground for review had been
made out and that the earlier order declining to review had
been passed after fully hearing the parties and no further
relief could be granted. But he added a rider that if the
appellant was not satisfied with the Government decision,
his remedy was to file a separate writ petition.
Thereupon, the appellant went up in appeal but a
Division Bench by its order dated April 30, 1984 dismissed
the same and reiterated that he should file a writ petition.
The appellant accordingly filed a petition under Art. 226 of
the Constitution to enforce his right to increments after
the crossing of the efficiency bar under FR 25. Again, a
Division Bench by its order dated October 30, 1984 declined
to interfere saying that the appellant should make a
representation to the competent authority with the direction
that the same should be considered sympathetically. In
accordance therewith, on December 10, 1984 the appellant
made a representation to the Director General of Works,
Central Public Works Department. He thereafter addressed
several communications to the authorities on the subject.
Eventually, the Deputy Director of Administration by her
letter dated April 9, 1985 informed the appellant that his
representation had been rejected. She further intimated the
appellant the following order with respect to his crossing
of the efficiency bar under FR 25.
"I am further to inform you that your case for
crossing the E.B. at the stage of Rs.590 w.e.f.
5.10.1972 in the prerevised scale of Rs.350-25-
500-30-590-EB-30-800-EB-30-830-35-900 and also at
the stage of Rs.810 in the revised scale of
Rs.650-30-740-35-810-EB-35-880-40-1000-EB-40-1200,
w.e.f. 5-10.1973 or from any subsequent date upto
the date of your superannuation viz. 31.3.1978 has
also
40
been considered carefully by the competent
authority. It is regretted that you have not been
found fit to cross the E.B. w.e.f. 5.10.1972 at
the stage of Rs.590 in the pre-revised scale of
Rs.350-25-500-30-590-EB-30-800-EB-30-830-35-900,
as also at the stage of Rs.810 in the revised
scale of Rs.650-30-740-35-810-EB-35-880-40-1000-
EB-40-1200, w.e.f. 5.10.1973 or from any
subsequent date upto the date of your
superannuation viz. 31.3.1978."
On July 10, 1985 the appellant filed the present
petition under Art. 226 of the Constitution for redressal of
his grievance as regards the crossing of the efficiency bar
at the stages indicated in the impugned order and also for
grant of interest on delayed payment of pension. A Division
Bench (D.K.Kapur and Mahinder Narain, JJ.) by its order
dated July 24, 1985 dismissed the writ petition. It held
that the crossing of the efficiency bar depends on
satisfaction of the competent authority under FR 25 and also
on the passing of the departmental examination under r.
2.636 of the C.P.W.D. Manual, Vol. 1, 1956 edn. at p. 53. It
further observed that the sanction of the authority
competent under FR 25 was not forthcoming and that ’if the
authority concerned had chosen not to give the sanction, the
Court had no jurisdiction to interfere particularly as the
appellant was not actually in office for such a long period
of time’. Curiously enough, the Division Bench also added
that it felt, considering the harassment to which the
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appellant had been subjected during the long years of
suspension, it was a fit case in which the authority
concerned should have granted the requisite sanction.
We have set out the facts in sufficient detail to show
that there is no presumption that the Government always acts
in a manner which is just and fair. There was no occasion
whatever to protract the departmental inquiry for a period
of 20 years and keeping the appellant under suspension for a
period of nearly 11 years unless it was actuated with the
mala fide intention of subjecting him to harassment. The
charge framed against the appellant was serious enough to
merit his dismissal from service. Apparently, the
departmental authorities were not in a position to
substantiate the charge. But that was no reason for keeping
the departmental proceedings alive for a period of 20 years
and not to have revoked the order of suspension for over 11
years. An order of suspension of a government servant does
not put an end to his service under the Government. He
continues to be a member of the service in spite of the
order of suspension. The real effect of the order of
suspension as explained by this Court in Khem Chand v. Union
of
41
India, [1958] SCR 1080 is that he continues to be a member
of the government service but is not permitted to work and
further during the period of suspension he is paid only some
allowance-generally called subsistence allowance-which is
normally less than the salary instead of the pay and
allowances he would have been entitled to if he had not been
suspended. There is no doubt that an order of suspension
unless the departmental inquiry is concluded within a
reasonable time, affects a government servant injuriously.
The very expression ’subsistence allowance’ has an
undeniable penal significance. The dictionary meaning of the
word ’Subsist’ as given in Shorter Oxford English
Dictionary, Vol. II at p. 2171 is "to remain alive as on
food; to continue to exist". "Subsistence" means-means of
supporting life, especially a minimum livelihood. Although
suspension is not one of the punishments specified in r. 11
of the rules, an order of suspension is not to be lightly
passed against the government servant. In the case of Board
of Trustees of the Port of Bombay v. Dilip Kumar
Raghavendranath Nadkarni & Ors., [1983] 1 SCR 828 the Court
held that the expression ’life’ does not merely connote
animal existence or a continued drudgery through life. The
expression ’life’ has a much wider meaning. Suspension in a
case like the present where there was no question of
inflicting any departmental punishment prima facie
tantamounts to imposition of penalty which is manifestly
repugnant to the principles of natural justice and fairplay
in action. The conditions of service are within the
executive power of the State or its legislative power under
the proviso to Art. 309 of the Constitution, but even so
such rules have to be reasonable and fair and not grossly
unjust. It is a clear principle of natural justice that the
delinquent officer when placed under suspension is entitled
to represent that the departmental proceedings should be
concluded with reasonable diligence and within a reasonable
period of time. If such a principle were not to be
recognised, it would imply that the Executive is being
vested with a totally arbitrary and unfettered power of
placing its officers under disability and distress for an
indefinite duration.
It is a fundamental rule of law that no decision must
be taken which will affect the rights of any person without
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first giving him an opportunity of putting forward his case.
Both the Privy Council as well as this Court have in a
series of cases required strict adherence to the rules of
natural justice where a public authority or body has to deal
with rights. There has ever since the judgment of Lord Reid
in Ridge v. Baldwin LR [1964] AC 40 been considerable
fluctuation of judicial opinion in England as to the degree
of strictness with which the rules of natural justice should
be extended, and there is growing awareness
42
of the problems created by the extended application of
principles of natural justice, or the duty to act fairly,
which tends to sacrifice the administrative efficiency and
despatch, or frustrates the object of the law in question.
Since this Court has held that Lord Reid’s judgment in Ridge
v. Baldwin should be of assistance in deciding questions
relating to natural justice, there is always ’the duty to
act judicially’ whenever the rules of natural justice are
applicable. There is therefore the insistence upon the
requirement of a ’fair hearing’. In the light of these
settled principles, we have no doubt whatever that the
Government acted in flagrant breach of the rules of natural
justice or fairplay in passing the impugned order. We do not
see why the principles enunciated by the Court in M. Gopala
Krishna Naidu v. State of Madhya Pradesh, [1968] 1 SCR 355
should not apply with equal vigour to a case like the
present. There is no reason why the power of the Government
to direct the stoppage of increments at the efficiency bar
on the ground of unfitness or otherwise after his retirement
which prejudicially affects him should not be subject to the
same limitations as engrafted by this Court in M. Gopala
Krishna Naidu while dealing with the power of the Government
in making a prejudicial order under FR 54, namely, the duty
to hear the government servant concerned after giving him
full opportunity to make out his case.
Under FR 54 when a government servant who had been
dismissed, removed or suspended is reinstated, the authority
competent to order the reinstatement shall make a specific
order (a) regarding the pay and allowances to be paid to the
government servant for the period of his absence from duty,
and (b) directing whether or not the said period shall be
treated as a period spent on duty. In the present case, the
Government failed in its duty to pass an order in terms of
FR 54 despite repeated representations made by the appellant
in that behalf. The learned Single Judge was therefore
justified in dealing with the question whether or not the
period of suspension should be treated as a period spent on
duty and to make a direction regarding payment of the full
pay and allowances as also to increments to which he would
have been entitled to but for the disciplinary proceedings.
In M. Gopala Krishna Naidu’s case the civil servant
concerned had been exonerated of the charges framed against
him in a departmental inquiry. The Government however held
that the appellant’s suspension in that case and the
departmental inquiry instituted against him ’were not wholly
unjustified’ and tried to support its action in this Court
on the ground that the making of an order under FR 54 was a
consequential order. This Court repelled the contention and
held that an order passed under FR 54 is not always a
consequential order or a mere
43
continuation of the departmental proceedings against the
delinquent civil servant. Inasmuch as consideration under FR
54 depends on facts and circumstances in their entirety, and
since the order may result in pecuniary loss to the
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government servant, consideration under the rule ’must be
held to be an objective rather than a subjective
consideration’. Shelat, J. who delivered the judgment of the
Court went on to observe:
"The very nature of the function implies the duty
to act judicially. In such a case if an
opportunity to show cause against the action
proposed is not afforded, as admittedly it was not
done in the present case, the order is liable to
be struck down as invalid on the ground that it is
one in breach of the principles of natural
justice."
There is thus a duty to hear the concerned Government
servant under FR 54 before any prejudicial order is made
against him. The same principle was reiterated in B.D. Gupta
v. State of Haryana, [1973] 2 SCR 323.
It must follow that when a prejudicial order is made in
terms of FR 25 to deprive the government servant like the
appellant of his increments above the stage of efficiency
bar retrospectively after his retirement, the Government has
the 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’s case an objective consideration
and assessment of all the relevant facts and circumstances.
We find it difficult to subscribe to the doctrine
evolved by the Division Bench that if the competent
authority declines to sanction the crossing of the
efficiency bar of a government servant under FR 25, the
Court has no jurisdiction to grant any relief. No doubt,
there has to be a specific order in terms of FR 25 by the
competent authority before the government servant can get
the benefit of increments above the stage of efficiency bar.
The stoppage of such increments at the efficiency bar during
the pendency of a departmental proceeding is not by way of
punishment and therefore the government servant facing a
departmental inquiry is not entitled to a hearing.
Ordinarily, therefore, the Court does not come into the
picture at that stage. But in a case like the present where
despite the fact that the departmental inquiry against the
appellant had been quashed, and it has been held by the High
Court that his suspension was wholly without justification.
44
there was no occasion for the competent authority to enforce
the bar against him under FR 25, particularly after his
retirement, unless it was by way of punishment. That being
so, the order passed by the competent authority under FR 25
prejudicial to the interests of the appellant in such
circumstances must be subject to the power of judicial
review.
The reasoning of the learned Single Judge that the
authority competent was justified in refusing to allow the
crossing of the efficiency bar under FR 25 in the case of
the appellant on the ground that (1) the appellant did not
have good record of service over the last five years
preceding his compulsory retirement, and (2) he had not
passed the departmental examination in Accounts prescribed
for Assistant Engineers, does not bear scrutiny. In the
first place, there was no question of the appellant having
an adverse record for five years preceding his compulsory
retirement since for three years he was under suspension
and, according to the learned Judge himself, for the next
two years there was nothing blameworthy against him.
Secondly, the failure to pass a departmental examination
under r. 2.636 obviously could not stand in the way of the
appellant since he had already been compulsorily retired.
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The appellant having compulsorily retired on July 28, 1972
and also having reached his normal age of superannuation on
March 31, 1978, his failure to pass the departmental
examination under r. 2.636 could not be treated as a ground
for denying him the benefit of crossing the efficiency bar
under FR 25. The word ’ordinarily’ in r. 2.636 must be given
its plain meaning as ’in normal circumstances’.
It is extremely doubtful whether in a case like the
present the Director General of Works, Central Public Works
Department, as the competent authority, could at all have
taken a decision to enforce the bar under FR 25 against the
appellant after his retirement. That apart, the competent
authority acted in flagrant breach of the instructions
contained in the Note beneath Government of India, Ministry
of Finance Memorandum dated April 23, 1962, as amended from
time to time. It enjoins that the cases of government
servants for crossing of the efficiency bar in the time-
scale of pay should be considered at the appropriate time
and in case the decision is to enforce the bar against the
government servant, he should be informed of the decision.
This clearly implies that the competent authority must
conform to the rules of natural justice. It would be a
denial of justice to remit back the matter to the competent
authority to reach a decision afresh under FR 25, in the
facts and circumstances of the present case.
45
The public interest in maintaining the efficiency of
the services requires that civil servants should not be
unfairly dealt with. The Government must view with concern
that a departmental inquiry against the civil servant should
have been kept alive for so long as 20 years or more and
that he should have been placed under suspension without any
lawful justification for as many as 11 years, without any
progress being made in the departmental inquiry. It should
also view with concern that a decision should have been
taken by the competent authority to enforce the bar under FR
25 against the civil servant long after his retirement with
a view to cause him financial loss. Such a course not only
demoralises the services but virtually ruins the career of
the delinquent officer as a government servant apart from
subjecting him to untold hardship and humiliation. We hope
and trust that the Government in future would ensure that
departmental proceedings are concluded with reasonable
diligence and not allowed to be protracted unnecessarily.
The Government should also view with concern that there
should be an attempt on the part of the competent authority
to enforce the bar against a civil servant under FR 25 long
after his retirement without affording him an opportunity of
a hearing. It comes of ill-grace from the Government to have
defeated the just claim of the appellant on technical pleas.
Normally, this Court, as a settled practice, has been
making direction for payment of interest at 12% on delayed
payment of pension. There is no reason for us to depart from
that practice in the facts of the present case.
The result therefore is that the appeal succeeds and is
allowed with costs. The judgment and order passed by the
High Court are set aside and the writ petition is allowed.
The impugned orders passed by the Director General of Works,
Central Public Works Department dated September 17, 1982 and
April 9, 1985 declining to permit the appellant to cross the
efficiency bar at the stage of Rs.590 in the pre-revised
scale of Rs.350-900 w.e.f. October 5, 1966 as also from
October 5, 1972, and also at the stage of Rs.810 in the
revised scale of Rs.650-1200 w.e.f. October 5, 1973 or from
any subsequent date upto March 31, 1978, the date of his
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superannuation, are quashed. We direct the Director General
of Works to make an order in terms of FR 25 allowing the
appellant to cross the efficiency bar at the stage of Rs.590
w.e.f. October 5, 1966 and at the stage of Rs.810 w.e.f.
October 5, 1973 and subsequent dates, according to the
decision of the Government of India, Ministry of Finance
dated September 21, 1967
46
as later clarified by the Ministry of Home Affairs
Memorandum dated April 6, 1979 and to re-fix his salary upon
that basis and pay the difference, as also re-fix his
pension accordingly. The appellant would be entitled to
interest at 12% per annum on the difference in salary as
well as in pension. We further direct that the Government of
India will make the payment to the appellant within four
months from today.
P.S.S. Appeal allowed.
47