# Director, Indian Institute of Technology, Kanpur Nagar & Anr v. Radha Krishna Tiwari

- **Citation:** (2020) 8 ILRA 12
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-29
- **Case number:** Special Appeal No. 206 of 2014
- **Bench:** Bala Krishna Narayana, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/director-indian-institute-of-technology-kanpur-nagar-anr-v-radha-krishna-tiwari-45946
- **Pages:** 11

## Headnote

A. Service Law - Time Pay Scale - Financial
Hand Book: Fundamental Rules 24, 25
'Annual Confidential Report' is required to be
recorded in the service book of the employee
once in every year. The service book was neither
upto date nor entries made therein were duly
authenticated till 1994. On completion of 14
years of continuous service, the respondent was
entitled for 'time pay scale' subject to crossing
of 'Efficiency Bar' under his Service Rules w.e.f.
01.02.1977. 'Efficiency Bar is required to be
assessed on the basis of 'Annual Confidential
Report'. In light of absence of any entry in the
service
book
or
any
other
disciplinary
proceeding taken against the respondent, there
8 All. Director, Indian Institute of Technology, Kanpur Nagar & Anr. Vs. Radha Krishna Tiwari 13
would not have been any material before the
appropriate authority to assess work and
conduct of the respondent. Thus, the order
withholding
the
'Efficiency
Bar'
of
the
respondent was not based upon any relevant
material and hence bad in law. (Para 26, 27)
The appellate court did not find latches in filling
the
instant
special
appeal
as
the
petitioner/respondent was communicated the
decision of Efficiency Bar Committee withholding
his 'Efficiency Bar' on 14.01.1987. Thereafter,
several representations was filed before the
appellant/respondent no. 2 followed by constant
reminders which was finally rejected by the
appellant/respondent no. 2 by order dated
19.04.1995 whereupon he had filed writ petition
giving rise to special appeal. (Para 19)
Special Appeal rejected. (E-10)
List of cases cited: -

## Text

12 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In the instant case, the writ
petitioner having been granted another
opportunity by providing for a medical
examination
by
the
Medical
Board
constituted in terms of directions of this
Court, and having again been found to be
medically unfit thereby reaffirming the view
taken by the District Medical Board and the
Appellate Medical Board, set up by the
recruiting agency, no further indulgence is
required to be granted to him in this regard.
This is, more so, since it is not the case of the
petitioner that the decision of the Medical
Board was arbitrary, capricious or not in
accordance with the procedure under the
relevant statutory recruitment rules.

12. No material has been placed on
record, or otherwise referred, to suggest
that the opinion of the Medical Board or
the Appellate Medical Board could in any
manner be said to be casual, inchoate,
perfunctory or vague. We are therefore of
the view that the Medical Board being an
expert body, its opinion is entitled to be
given due weight, credence and value.

13. A similar view has been taken in a
recent judgment of this Court in Vivek
Kumar Vs. State of U.P. and others1
wherein it was held that matters relating to
medical evaluation of candidates in a
recruitment
process
involve
expert
determination and it may not be desirable
to supplant the procedure prescribed
therefor as laid down under the relevant
recruitment rules and taking any other view
may have the effect of derailing the
recruitment process.

14. In an Intra-Court Special Appeal,
no interference is usually warranted unless
palpable infirmities or perversities are
noticed on a plain reading of the impugned
judgment and order.

15. In the facts and circumstances of
the instant case, on a plain reading of the
impugned judgment and order, we do not
notice any such palpable infirmity or
perversity. As such, we are not inclined to
interfere with the impugned judgment and
order dated 30.09.2019.

16. For reasons stated above, the
Special Appeal is liable to be dismissed and
stands, accordingly, dismissed.
----------
(2020)08ILR A12
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2020

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Special Appeal No. 206 of 2014

Director, Indian Institute of Technology,
Kanpur Nagar & Anr. ...Appellants
Versus
Radha Krishna Tiwari ...Respondent

Counsel for the Appellants:
Sri Rohan Gupta, Sri Navin Sinha

Counsel for the Respondent:
Sri I.P. Singh

A. Service Law - Time Pay Scale - Financial
Hand Book: Fundamental Rules 24, 25
'Annual Confidential Report' is required to be
recorded in the service book of the employee
once in every year. The service book was neither
upto date nor entries made therein were duly
authenticated till 1994. On completion of 14
years of continuous service, the respondent was
entitled for 'time pay scale' subject to crossing
of 'Efficiency Bar' under his Service Rules w.e.f.
01.02.1977. 'Efficiency Bar is required to be
assessed on the basis of 'Annual Confidential
Report'. In light of absence of any entry in the
service
book
or
any
other
disciplinary
proceeding taken against the respondent, there
8 All. Director, Indian Institute of Technology, Kanpur Nagar & Anr. Vs. Radha Krishna Tiwari 13
would not have been any material before the
appropriate authority to assess work and
conduct of the respondent. Thus, the order
withholding
the
'Efficiency
Bar'
of
the
respondent was not based upon any relevant
material and hence bad in law. (Para 26, 27)
The appellate court did not find latches in filling
the
instant
special
appeal
as
the
petitioner/respondent was communicated the
decision of Efficiency Bar Committee withholding
his 'Efficiency Bar' on 14.01.1987. Thereafter,
several representations was filed before the
appellant/respondent no. 2 followed by constant
reminders which was finally rejected by the
appellant/respondent no. 2 by order dated
19.04.1995 whereupon he had filed writ petition
giving rise to special appeal. (Para 19)
Special Appeal rejected. (E-10)
List of cases cited: -

1. St. of T.N. Vs Seshachalam (2007) 10 SCC
137 (distinguished)

2. U.O.I. Vs M.K. Sarkar (2010) 2 SCC 59
(distinguished)

3.
Haryana
Warehousing
Corporation
Vs
Ramavtar (1996) 2 SCC 98

4. O.P. Gupta Vs U.O.I. AIR 1987 SC 2257

5. M. Gopala Krishna Naidu Vs St. of M.P. AIR
1968 SC 240

6. St. of U.P. Vs Dr. K.U. Ansari AIR 2002 SC
208

(Delivered by Hon'ble Bala Krishna
Narayana, J.)

1. Heard Sri Navin Sinha, Senior
Advocate assisted by Sri Rohan Gupta,
learned counsel for the appellants and Sri
I.P.
Singh,
learned
counsel
for
the
respondent.

2. This special appeal has been filed
by the Indian Institute of Technology,
Kanpur
challenging
the
legality
and
validity of the order dated 24.01.2014
passed by learned Single Judge of this
Court by which he has allowed WRIT - A
No. 15535 of 1995 preferred by the
petitioner/respondent Radha Krishna Tiwari
before this Court.

3. Briefly stated the facts of this case
are that the petitioner/respondent was
appointed on the post of 'Draftsman' in
Indian Institute of Technology, Kanpur
(hereinafter referred to as "I.I.T. Kanpur")
on 05.02.1963 and was confirmed on his
post on 11.02.1964. I.I.T. Kanpur was
established by the Society registered under
Societies Registration Act, 1860. After
coming into force of Indian Institute of
Technology Act, 1961, it was incorporated
in it. On completion of 14 years continuous
service,
the
petitioner/respondent
had
become entitled for grant of 'time pay scale'
subject to crossing of the 'Efficiency Bar'.

4. Deputy Registrar (Admin) of I.I.T.
Kanpur, by his letter dated 14.01.1987,
informed the petitioner/respondent that he
was not allowed to cross the 'Efficiency
Bar'
w.e.f.
01.02.1977.
The
petitioner/respondent represented before
Deputy Registrar (Admin) upon receiving
the aforesaid letter which remained pending
before him. The petitioner/respondent sent
reminders on 24.01.1994, 08.02.1994 and
14.11.1994
to
the
Deputy
Registrar
(Admin) for deciding his representation.
Eventually
the
petitioner/respondent's
representation
was
rejected
by
appellant/respondent no. 2 by order dated
19.04.1995. The letter dated 19.04.1995
contained a recital that upon examination
of his case file, it was found that his work
was poor with no work output and hence, it
was decided to hold his 'Efficiency Bar'
right from 1977.
14 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Challenging the aforesaid letter
dated
19.04.1995
issued
by
the
appellant/respondent
no.
2,
the
petitioner/respondent filed WRIT - A No.
15535 of 1995 before this Court.

6. Before the writ court, it was
contended by the learned counsel for the
petitioner/respondent
that
'Annual
Confidential Report' of each employee is
required to be recorded in his service book
once in every year. On completion of 14
years
of
continuous
service,
the
petitioner/respondent had become entitled
to 'time pay scale' subject to his crossing of
'Efficiency Bar' under the Service Rules.
'Efficiency Bar' was assessed on the basis
of 'Annual Confidential Report' and since
admittedly, no entries were recorded in the
service book of the petitioner/respondent
upto 1994, there was no material before the
appellant/respondent no. 2 to assess the
work
and
conduct
of
the
petitioner/respondent.
It
is
further
contended that the petitioner/respondent
had been taking an active role in the
Worker's Union and had also held posts
from time to time and due to the aforesaid
reason, he was not able to cross the
'Efficiency Bar'. It was further contended
that Fundamental Rules provided that when
the 'Time Pay Scale' becomes due, the
competent authority is required to assess
the efficiency of the employee for the
purpose of his being allowed to cross the
'Efficiency Bar' which is a condition
precedent for grant of 'time pay scale' and if
the competent authority decides to withhold
'Efficiency Bar', in that case competent
authority is required to communicate its
decision
to
the
concerned
employee
immediately and the competent authority is
required to assess the 'Efficiency Bar' of the
concerned employee in every year or
subsequent to the year in which the
'Efficiency Bar' is withheld. The competent
authority in the instant case did not assess
the
work
and
conduct
of
the
petitioner/respondent either in the year
1977 or in the subsequent years thereafter,
while letter dated 14.01.1987 was issued
informing the petitioner/respondent that he
was not allowed to cross the 'Efficiency
Bar' w.e.f. 01.02.1977 although his service
book was totally blank. It was lastly
contended before the writ court that there
was absolutely no material before the
competent authority to assess the work and
conduct of the petitioner/respondent for the
purpose for the purpose of forming his
opinion whether the petitioner/respondent
was entitled to cross the 'Efficiency Bar' or
not nor any actual order withholding the
'Efficiency Bar' was passed in the year
1977.

7.

The
stand
of
the
appellant/respondent no. 2 before the writ
court was that the petition which had been
filed after an inordinate delay was liable to
be dismissed on the ground of latches itself
as the decision for withholding the
'Efficiency Bar' was communicated to the
petitioner/respondent through letter dated
14.01.1987 while the writ petition was filed
on 30.05.1995 and by making repeated
representations,
limitation
cannot
be
enlarged as held by Supreme Court in State
of Tamil Nadu Vs. Seshachalam reported
in (2007) 10 SCC 137 and Union of India
Vs. M.K. Sarkar reported in (2010) 2 SCC
59.

8. It was also contended that no
opportunity of hearing is required to be
given by the competent authority to the
employee with regard to whom it takes a
decision to withheld 'Efficiency Bar' as
held by the Supreme Court in Haryana
Warehousing Corporation Vs. Ramavtar
8 All. Director, Indian Institute of Technology, Kanpur Nagar & Anr. Vs. Radha Krishna Tiwari 15
reported in (1996) 2 SCC 98. The work of
the petitioner/respondent was found to be
unsatisfactory. As such, the competent
authority rightly withheld the 'Efficiency
Bar' of the petitioner/respondent and the
decision taken by the competent authority
withholding the 'Efficiency Bar' is not
subject to judicial review by the Court and
its exercise of its jurisdiction and the writ
petition was liable to be dismissed.

9. Learned Single Judge, after
considering the submissions advanced
before him by the learned counsel for the
parties and scrutinizing the material on
record, allowed the writ petition by the
impugned order and after quashing the
orders dated 14.01.1987 and 19.04.1995
withholding
the
'Efficiency
Bar'
of
petitioner/respondent
w.e.f.
01.02.1977,
rejected his representation and directed the
respondents to release the 'Efficiency Bar'
and grant the other consequential benefits
to
the
petitioner/respondent
w.e.f.
01.02.1977 within a period of three months
from the date of filing of certified copy of
this order before the concerned authority.

10. The order passed by the learned
Single Judge has been challenged by Sri
Navin Sinha, learned counsel for the
appellants on the following grounds :-

(1) The writ petition filed by the
petitioner/respondent
challenging
the
orders refusing to allow the grant of
'Efficiency
Bar'
and
rejecting
his
representation
was
passed
after
an
inordinate delay and hence, it was liable to
be dismissed on the ground of latches
alone.

(2) The petitioner/respondent was
not allowed to cross the 'Efficiency Bar' by
the competent authority as upon assessment
of his entire service record, his work and
conduct was not found satisfactory and it is
absolutely incorrect to allege that on the
date on which the decision was taken by
the competent authority not to allow the
petitioner/respondent
to
cross
the
'Efficiency Bar', his ACR was blank and
there was no material before the competent
authority for taking decision of disallowing
the petitioner/respondent to cross the
'Efficiency Bar'.

11. Per contra, Sri I.P. Singh, learned
counsel appearing for the respondent made
his submissions in support of the impugned
order and submitted that it is evident from
the own document of the appellant that the
service book was filled up in the year 1995
and thereafter he was given information
thereof and as far as arguments advanced
by the learned counsel for the appellants
that the writ petition is barred by latches is
concerned, the same was rightly decided by
the learned Single Judge against them by
holding that before 19.04.1995 which is the
date
on
which
the
petitioner's
representation was rejected, he had no
cause of action to file the writ petition.

12. We heard learned counsel for the
parties and perused the material brought on
record.

13. The first ground on which Sri
Navin Sinha, learned counsel for the
appellants has assailed the order passed by
the learned Single Judge is that the writ
petition filed by the petitioner/respondent
was barred by latches as there was an
inordinate delay on his part in challenging
the letter dated 14.01.1987 by which he
was communicated the decision of the
appellant/respondent no. 2 to withhold
'Efficiency Bar' and the learned Single
Judge manifestly erred in taking a view to
the contrary.
16 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In support of his aforesaid
contention,
learned
counsel
for
the
appellants has placed reliance upon the
judgement of the Apex Court rendered in
the case of Seshachalam (supra). In the
paragraph nos. 2, 3, 4 and 5 of the aforesaid
case, the Apex Court has held as hereunder
:-

2. Respondents herein have been
working
in
the
Secretariat
of
the
Government of Tamil Nadu. Each and every
department in the Government Secretariat
prior to 1961 had a separate unit for
appointment, promotion etc. The State had,
however, amended the Special Rules in the
year 1961 whereby all the departments in
the Secretariat were made the "one unit"
for the purpose of appointment and
promotion. Appointments in the Secretariat
at all entry level posts, i.e., Junior
Assistants (subsequently re-designated as
Assistants), Assistants (subsequently redesignated as Assistant Section Officers),
Typist/Personal Clerks were to be made
from the common list of candidates selected
by
the
Tamil
Nadu
Public
Service
Commission. Promotion to different higher
posts in different departments was also
being made from amongst those employees.
The Government of Tamil Nadu, however,
by
issuing
G.O.Ms.
No.1290
dated
05.06.1970 excluded the Finance and Law
Departments from the "one unit" system. As
a result whereof while the posts in the
cadre of Assistants, Assistant Section
Officers, Typists/Personal Clerks continued
to be filled up from the common list of
candidates, but in Finance and Law
Departments, further promotions were
effected from amongst the employees
allotted thereto only. Appointments to
Finance Department, however, were made
at random and probably in terms of the
option
exercised
by
any
particular
candidate. Many persons, who have, thus,
been ranking higher were employed in "one
unit" departments whereas some of the
candidates ranking lower were employed
under fortuitous circumstances in the
Finance
Department.
The
employees
working in the Finance Department,
therefore, obtained promotions much ahead
of their peers or even seniors who were
discharging
their
duties
in
other
departments coming within the "one unit".

3.
G.O.Ms. No.3288
(Public
Services Department) was thereafter issued
on 29.10.1971 specifying Finance and Law
Departments as separate units from the
level of Superintendent (Section Officer)
and above. Admittedly, however, Rule 4 of
the Special Rules of the Tamil Nadu
Secretariat Service was amended in that
behalf. The said policy, however, is said to
have been implemented. Two employees, S.
Kalaiselvan and S. Sivasubramanian, filed
an Original Application before the Tamil
Nadu Administrative Tribunal in the year
1990 claiming promotion and scale of pay
at par with those who were working in the
Finance Department and who were said to
be juniors to them but had been promoted
to higher posts in Finance Department. The
said Original Application was allowed by
the Tribunal by an order dated 16.4.1993
opining that there existed no guidelines to
allot
any
employee
to
the
Finance
Department, vis-`-vis, other departments
and, thus, the employees working in other
departments could not have been deprived
of the benefit of promotion. It was
furthermore pointed out that even Rule 4 of
the Special Rules for the Tamil Nadu
Secretariat Service had not been amended
by
the
said
GOMs
No.1290
dated
05.06.1970.

4. The Government of Tamil Nadu
thereafter amended the Service Rules with
retrospective effect from 05.06.1970 by
8 All. Director, Indian Institute of Technology, Kanpur Nagar & Anr. Vs. Radha Krishna Tiwari 17
issuing G.O.Ms. No.30 Personnel and
Administrative Reforms (D) Department
dated 28.1.1994. Upon issuance of the said
Government Order, an application for
review was filed but the same was
dismissed by the Tribunal by an order
dated 30.1.1995. The Government was
thereafter advised to implement the order of
the Tribunal by giving promotion to the
concerned employees with retrospective
effect from the date on which their juniors
had been promoted as Assistant Section
Officers in the Finance Department.
Sanction was also accorded for creation of
two supernumerary posts, namely, posts of
Assistant Section Officers in the respective
departments.
Several
representations
thereafter were made by persons said to be
similarly situated claiming promotion and
parity in the scale of pay as compared to
their
counterparts
in
the
Finance
Department. A large number of Original
Applications were also filed before the
Tamil Nadu Administrative Tribunal. Upon
consideration of various pros and cons, the
Government of Tamil Nadu issued a GOM
bearing No.126 dated 29.5.1998, relevant
paragraphs whereof read as under :

"10. The Government accordingly
direct that :-

(i) the pay of the seniors in One
Unit who have been recruited to the Tamil
Nadu Secretariat Service on or before
28.1.1994, shall be stepped up on par with
their juniors in the Finance unit by
upgrading the posts held by them to the
Scale of pay applicable to the juniors with
immediate effect.

(ii) The stepping up of their pay
on par with the juniors in the Finance Unit
by upgrading the posts held by them to the
scale of pay applicable to the junior
ordered in sub-para (1) above is purely a
person-oriented upgradation and no new
posts will be created for this purpose.

(iii) The upgradation sanctioned
for the seniors will lapse in the event of the
retirement of the individuals concerned or
their promotion to the upgraded post in
their normal turn.

(iv) The pay of the other seniors
in the One Unit in the same cadre will be
stepped up on par with immediate juniors
in the Finance Unit, with effect from the
date of issue of this order.

(v)
In
respect
of
the
Typists/Personal
Clerks/Personal
Assistants, in One Unit who have not
relinquished their right for promotion as
Assistant Section Officer, and are still
awaiting their turn for promotion as
Assistant Section Officer, their pay shall be
upgraded to Assistant Section Officer scale
on par with their immediate junior in the
Finance Unit who got his promotion as
Assistant Section Officer.

11. The benefits of upgradation of
pay of the seniors on par with their juniors
as per Commission's Seniority list ordered
in sub-paras

(i) to (iv) of Para 10 above, shall
also be extended to those seniors in the
Finance Unit who were recruited before
28.1.1994 and or drawing less pay than
their juniors in One Unit.

12. The upgradation ordered
above is subject to the following terms and
conditions :

(1) The upgradation ordered will
involve only stepping up of pay of the
senior on par with his junior in the
upgraded scale of pay.

(2) It does not entitle him to any
claim for arrears of pay.

XXX XXX XXX These orders shall
come into force with effect from the date of
issue of the orders.

13 ...

14.
The
Departments
of
Secretariat concerned shall issue necessary
18 INDIAN LAW REPORTS ALLAHABAD SERIES
orders for upgradation of posts and for
stepping-up of the pay of the Seniors in
One Unit in the upgraded scales ordered in
para 10 above, after obtaining necessary
individual undertaking in the format
enclosed from the seniors concerned to the
effect that they accept the terms and
conditions of this order."

15. In the aforesaid case, the
respondents in the civil appeal made
representations before the State of Tamil
Nadu demanding fixation of their pay at par
with
their
juniors
in
the
Finance
Department. Since the said request was not
acceded to, a large number of original
applications were filed before the Tamil
Nadu Administrative
Tribunal.
By
a
common
judgment
pronounced
on
20.1.2004, the Tribunal dismissed the said
applications opining that the same were
barred by limitation. It was held that the
applicants having retired long back and
having filed applications between 1998 to
2003 and the promoters having retired as
Under Secretaries, Deputy Secretaries and
Joint Secretaries and in some cases as
Additional Secretaries, they should have
raised the dispute long back when their
juniors had been given promotions in the
Finance Department and as the original
applications were filed after 20 years, the
same could not be entertained.

16. However, the High Court in the
writ petition filed before it against the order
of the Tribunal by its judgement dated
21.04.2006 held that the cause of action for
filing the original application arose only
upon issuance of GOMS No. 126 dated
29.05.1998 and in that view of the matter, it
cannot be said that the original applications
filed by the respondents suffered from
delay and latches and/or otherwise barred
by limitations as GOMS No. 126 applied
also in respect of those who had retired
before 29.05.1998. It was also opined that
the respondents who had not been in
service on or before 28.01.1994 came
within the scope and ambit of the said
GOMs.

17. The order passed by the High
Court was challenged by the State of Tamil
Nadu before the Apex Court by filing Civil
Appeal No. 1938 of 2007 which was
allowed by the Apex Court holding that the
view taken by the High Court that the
original applications preferred by the
respondents therein was not barred by
latches, was erroneous.

18. In the case of Seshachalam
(supra), the Apex Court had taken note of
the fact that the respondents in the Civil
Appeal had retired much before the
issuance
of
GOMS
No.
126
dated
29.05.1998.

19. The aforesaid case is of no help to
the petitioner/respondent. In the instant
case, firstly the petitioner/respondent was
communicated
the
decision
of
the
Efficiency Bar Committee withholding his
'Efficiency
Bar'
w.e.f
01.02.1977
on
14.01.1987. The petitioner/respondent had
filed
a
representation
before
the
appellant/respondent no. 2 promptly which
was
followed
by
reminders
dated
24.01.1994, 08.02.1994 and 14.11.1994
and his representation was finally rejected
by the appellant/respondent no. 2 by order
dated 19.04.1995 whereupon he had filed
the writ petition giving rise to special
appeal. Hence, we do not find that
petitioner/respondent was guilty of any
latches.

20. The second case M.K. Sarkar
(supra) relied upon by the learned counsel
8 All. Director, Indian Institute of Technology, Kanpur Nagar & Anr. Vs. Radha Krishna Tiwari 19
for the appellants is also not applicable to
the facts and circumstances of the present
case inasmuch as in the case of M.K.
Sarkar (supra), the respondent/petitioner
had
joined
the
Railway
service
on
10.02.1947 and was a subscriber to
Contributory Provident Fund Scheme.
Railways introduced the pension scheme
vide
Railway
Board's
letter
dated
16.11.1957. Under the said scheme, those
who entered Railway service on or after
16.11.1957, were automatically governed
by the pension scheme. Those employees
who were in service as on 1.4.1957 and
those who joined between 1.4.1957 and
16.11.1957 were given an option to switch
over
to
pension
scheme
instead
of
continuing
under
the
Contributory
Provident Fund Scheme. Those who did not
opt for the pension scheme were given
further opportunities to exercise options to
switch over to the pension scheme,
whenever
the
pension
scheme
was
liberalized or made more beneficial, vide
Notifications dated 17.9.1960, 26.10.1962,
17.1.1964, 3.3.1966, 13.9.1968, 15.7.1972,
and 23.7.1974. The validity period of the
Eighth Option under Notification dated
23.7.1974, which was from 1.1.1973 to
22.1.1975, was extended from time to time
upto 31.12.1978. The respondent though
aware of the introduction of the pension
scheme and the options given on eight
occasions between the years 1957 to 1974,
consciously did not opt for the pension
scheme
and
continued
with
the
Contributory Provident Fund Scheme and
even after taking voluntary retirement
while serving as Controller of Stores with
effect from 15.10.1976, did not opt for the
pension
scheme
but
received
the
Contributory Provident Fund dues on his
retirement and more than 22 years after his
retirement, he made a representation dated
8.10.1998, requesting that he may be
extended the benefit of the pension scheme.
He stated that he was willing to refund the
amount received under the Provident Fund
Scheme (by way of adjustment against the
arrears of pension that would become
payable to him on acceptance of his request
for switch over to the pension scheme). The
said request was not accepted. The
respondent
therefore
approached
the
Central Administrative Tribunal, in OA No.
657 of 1999, seeking a direction to the
Railway Administration to permit him to
exercise an option to switch over to pension
scheme. The Tribunal by order dated
11.2.2004 disposed of the application by
directing the appellants to take a decision
on the representation of the respondent by a
reasoned order. The Chairman, Railway
Board rejected the respondent's claim by
passing a reasoned order dated 15.05.2004
as untenable. The order dated 15.05.2004
was challenged before the Tribunal by
filing a second application which was
allowed on the ground that similarly placed
railway employees had been given option
to switch over to the pension scheme even
after the extended time for opting had
expired and directed the appellant to permit
respondent to opt for pension scheme. The
order of the Tribunal was challenged by the
Union of India before the Apex Court in
WP (CT) No. 467/2005 which was
dismissed by the High Court by order dated
25.01.2006. The Union of India challenged
the orders of the Tribunal and the High
Court before the Hon'ble Supreme Court
and the Hon'ble Supreme Court set-aside
the orders passed by the Tribunal and High
Court and held that a claim on the basis of
guarantee of equality, by reference to
someone similarly placed, is permissible
only when the person similarly placed has
been lawfully granted a relief and the
person claiming relief is also lawfully
entitled for the same but where a benefit
20 INDIAN LAW REPORTS ALLAHABAD SERIES
was illegally or irregularly extended to
someone else, a person who is not extended
a similar illegal benefit cannot approach a
court for extension of a similar illegal
benefit.

21. The aforesaid case is also of no
assistance to the petitioner/respondent in
view
of
the
fact
that
the
petitioner/respondent in this case has
neither claimed any illegal benefit awarded
to any similarly placed person nor it can be
said that there was any inordinate and
unexplained
delay
on
his
part
in
approaching this Court.

22. We do not find any merit in the
aforesaid submission. The learned Single
Judge
rightly
held
that
since
the
petitioner/respondent was communicated
the decision of withholding the 'Efficiency
Bar' by letter dated 14.01.1987 against
which he had made representation on
21.01.1987 and thereafter sent reminders
and since his representations were decided
as late on 19.04.1995 and the writ petition
was filed on 30.05.1995, before the
communication
of
decision
of
the
appellant/respondent
no.
2
on
the
petitioner/respondent's representation, he
had no cause of action for filing writ
petition and hence, there were no latches.

23. In order to appreciate the second
ground on which the learned counsel for
the appellants has challenged the order
passed by the learned Single Judge, it
would be useful to extract Fundamental
Rules 24 and 25 of the Financial Hand
Book :-

"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 Government 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."

24. There is no dispute about the fact
that on completion of 14 years continuous
service, the petitioner/respondent became
entitled for time pay scale subject to his
crossing of the 'Efficiency Bar' under the
service rules governing his service w.e.f
01.02.1977 and next time pay scale was
due on 01.02.1987. There is also no dispute
about the fact that 'Efficiency Bar' is
required to be assessed on the basis of
'Annual Confidential Report' and in the
absence of any entry in the service book or
any other disciplinary proceeding taken
against the employee, it cannot be said that
there
was
any
material
before
the
appropriate authority to assess the work
and conduct of the employee.

25.

Record
shows
that
the
petitioner/respondent was not allowed to
cross the 'Efficiency Bar' by the competent
authority as upon assessment of his entire
service record, his work and conduct was
not found satisfactory. The arguments of Sri
Navin Sinha has been repelled on the
ground by Sri I.P. Singh, learned counsel
for the respondent by arguing that it is
proved from the own documents of
petitioner/respondent that the competent
8 All. Director, Indian Institute of Technology, Kanpur Nagar & Anr. Vs. Radha Krishna Tiwari 21
authority in the petitioner/respondent's case
had not assessed the work and conduct of
the petitioner/respondent either in the year
1977 or in the subsequent years while letter
dated 14.01.1987 was issued informing the
petitioner/respondent that he was not
allowed to cross the 'Efficiency Bar' w.e.f.
01.02.1977 although his service book was
totally blank. In this regard, it would be
relevant to refer to letter dated 19.04.1995
issued under the signature of one V.
Narasimhan, Registrar in paragraph no. 2
whereof that the service book of the
petitioner/respondent has been brought
upto date and entries are duly authenticated
and he is advised to sign the service book
as required. Copy of the letter dated
19.04.1995 has been brought on record as
Annexure No. 9 to the writ petition.

26. Upon perusal of the letter dated
19.04.1995, it is crystal clear that before
the year 1995 and issuance of the aforesaid
letter,
the
service
book
of
the
petitioner/respondent was neither upto date
nor entries made therein were duly
authenticated.

27. Thus, service book of the
petitioner/respondent was not filled up in
1977 and remained blank till 1994. 'Annual
Confidential Report' is required to be
recorded in the service book of the
employee
once
in
every
year.
On
completion of 14 years continuous service,
the petitioner/respondent was entitled for
'time pay scale' subject to crossing of
'Efficiency Bar' under his Service Rules
w.e.f 01.02.1977 and next time pay scale
was due on 01.02.1987. 'Efficiency Bar' is
required to be assessed on the basis of
'Annual
Confidential
Report'.
In
the
absence of any entry in the service book or
any other disciplinary proceeding taken
against the petitioner/respondent, there
would not have been any material before
the appropriate authority to assess work
and conduct of the petitioner/respondent.
The order withholding 'Efficiency Bar' of
the petitioner/respondent was not based
upon any relevant material. In paragraph15, 16 and 17 of the counter affidavit bald
statements have been made that Efficiency
Bar Committee reviewed the efficiency of
the petitioner/respondent from time to time
and recommended to withhold it which has
been accepted by the Director. Neither
recommendation
of
Efficiency
Bar
Committee nor decision of Director has
been placed on record.

28. Fundamental Rule 25 requires that
in case, the employee is not able to cross
'Efficiency Bar' in the year in which time
pay scale is due then in every subsequent
year 'Efficiency Bar' is required to be
examined. But in this case nothing has been
done. Supreme Court in O.P. Gupta Vs.
Union of India, AIR 1987 SC 2257, held
that it must follow that when a prejudicial
order is made in terms of Fundamental
Rule 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.

29. Supreme Court in M. Gopala
Krishna Naidu Vs. State of M.P., AIR 1968
SC 240 and State of U.P. Vs. Dr. K.U. Ansari,
AIR 2002 SC 208, held that an objective
consideration and assessment of all the relevant
facts and circumstances is required before any
order withholding 'Efficiency Bar'. Character
role in Service Book is the primary material. In
this case, the character role was blank till 1994.
Thus there was no primary material to withhold
the 'Efficiency Bar'.
22 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The principles laid down by the
Apex Court in the case of Haryana
Warehousing Corporation (supra) upon
which reliance has been placed by the
learned counsel for the appellants has no
application to the facts and circumstances
of the present case inasmuch as the
petitioner/respondent does not challenge
the order impugned by him before the
Single Judge on the ground of denial of
personal hearing by the appellants.

31. Learned Single Judge while
coming to the conclusion that the order
withholding
'Efficiency
Bar'
of
the
petitioner/respondent was not based on any
relevant material, has referred to paragraph
nos. 15, 16 and 17 of the counter affidavit
in which it was averred that Efficiency Bar
Committee reviewed the efficiency of the
petitioner/respondent from time to time and
recommended to withhold the 'Efficiency
Bar' which was accepted by the Director.
Learned Single Judge has further observed
that
neither
any
recommendation
of
Efficiency Bar Committee nor decision of
Director were brought on the record.

32. Thus, the second ground on which
Sri Navin Sinha, learned counsel for the
appellants has challenged the order passed
by the learned Single Judge is also without
any merit.

33. In view of the foregoing
discussion, we find that the order passed by
the learned Single Judge does not suffer
from any illegality or legal infirmity
requiring any interference by this Court.

34. This appeal lacks merit and is
accordingly dismissed.
----------
(2020)08ILR A22
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE RAVI NATH TILHARI, J.

Writ A No. 1525 of 2020

Jitendra Kumar Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Indra Raj Singh, Sri Adarsh Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Uttar Pradesh Constable and
Head Constable Service Rules, 2017:
15(3)(gha) - Rule 15(3)(D)- Service -
Appointment/Selection
-
Provides
for
conducting Physical Standard Test, in case the
candidate who has been unsuccessful for the
first time, raises objection and as the petitioners
in the present case raised grievance/objection,
they have right for their Physical Standard Test
being conducted, once again. Since, the
authorities did not pay any attention to their
objection, they have failed to discharge their
statutory duty infringing the petitioners' legal
right to re-measurement of their chest/Physical
Standard Test. (Para 17, 18, 21)

B. Constitution of India- Art. 226 - Article
226 is couched in a comprehensive phraseology
and ex-facie confers a wide power on the High
Court to reach injustice wherever it is found.
(Para 24)

Writ petition allowed with directions for
petitioner nos.1,2,3,4,5,7 and 8.

Writ petition dismissed for petitioner no.
6. (E-4)

Precedent followed:

1. Prateek Kumar & 3 ors. Vs St. of U.P. & 3
ors., Writ-A No. 1364 of 2020 decided on
25.02.2020 (Para 9)