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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