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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: S.V.G. IYENGAR

DATE OF JUDGMENT: 01/09/1969

BENCH:

ACT: Mysore Civil Service Rules, 1958, r. 52-Officer stopped from crossing  efficiency  bar-Disciplinary  proceedings  dropped later and allowed to retire -Whether officer deemed to  have automatically  crossed  the efficiency  bar-Whether  special order necessary.

HEADNOTE: The  respondent was working as an Executive Engineer in  the Hyderabad  State.   In 1955, the Public  Service  Commission recommended  that:  he should be stopped from  crossing  the efficiency bar with effect from February 9, 1952; and (2)  a sum of Rs. 23,371  should  be  recovered from his salary  on account of loss caused to the Government by his  negligence. On November 1, 1956 the States  Reorganisation Act came into force  ,red  the respondent was allotted to  the  appellant- State.   Even after the respondent completed the age  of  55 years in 1960, he was continued in service by the appellant- State,  but  under  suspension pending  completion  of  the; disciplinary  proceedings against him, but in 1961,  he  was permitted  10  retire and all the  disciplinary  proceedings pending  against  him were dropped  altogether.   After  his retirement, he filed a writ petition for a declaration  that he was stopped from crossing the efficiency bar only because the  Government  wanted  to reimburse itself  for  the  loss caused by the respondent, that consequent upon the  dropping ,of the  proceedings against him, he should be deemed not to have  caused  any loss to the Government, and  so,  to  have crossed  the  efficiency  bar  on  February  9,  1952.   and therefore,  the increments withheld should be  restored  and the increased salary should be taken into ’account in fixing his pension.  The High Court allowed the petition. In appeal to this Court,       HELD:  Merely  because  the  disciplinary  proceedings against  him  were dropped for certain reasons  it  did  not automatically  follow  that the respondent  was  allowed  to cross the efficiency bar.  Under the Civil Service Rules  in Hyderabad and in Mysore, an express order of the appropriate authority  is  necessary before an officer  was  allowed  to cross the efficiency bar and no such order was passed in the present case. [161 D--F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1312 of 1966.       Appeal  by special leave from the judgment and  order, dated  October  1,  1962 of the Mysore High  Court  in  Writ Petition No. 1280 of 1961.

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     Niren  De,  Attorney-General,  S.S.  Javali  and  S.P. Nayar, for the appellant. B.R.L. Iyengar and A. G. Ratnaparkhi, for the respondent.       The Judgment of the Court was delivered by       Ramaswami, J.  This appeal is brought by special leave from the judgment of the Mysore High Court dated October  1, 1962 in 160 Writ  Petition No. 1280’ of 1961 directing the appellant  to determine the salary payable to the respondent on the  basis that  he had been permitted to cross the efficiency  bar  in time  scale of pay of Rs. 900-50-1200-EB-75-1500 in  Osmania Sikka  rupees.   The High Court *also directed by  the  same judgment  that  the increments above the efficiency  bar  be withheld by the appellant should now be paid to him and  the salary  so  determined  should be  taken  into  account  for determining the amount of pension payable to the  respondent in accordance with the relevant rules.     The  respondent was working as an Executive Engineer  in the Public Works Department of the Hyderabad State  and  was in  charge of certain project works during the  period  June 1949  to September 1950.  On the basis of  some  information the explanation of the respondent was called for in  respect of  certain  alleged  irregularities  in  the  execution  of certain   project   works.   The  respondent  sent  in   his explanations dated June 14,  1951  and December 10, 1951  to the Superintending Engineer, Munirabad. In October 1953  the Enquiry  Officer came to the conclusion that some  loss  had been caused in respect of four projects more due to lack  of foresight  and  organising  capacity on  the  part  of   the respondent  than to any intentional misappropriation  and  a show  cause notice was issued on March 11, 1955  asking  the respondent  to show cause why he should not be stopped  from crossing  the  efficiency bar with effect from  February  9, 1952 and why a sum of Rs. 23,371/.- should not be  recovered from  his  salary  on  account of the  loss  caused  to  the Government  by  the  respondent’s  negligence.   After   the respondent  had  shown  cause the  matter was  sent  by  the Government  to  the Public Service  Commission.  The  Public Service Commission recommended that in addition to  stopping the respondent at the efficiency bar for the period 1952  to 1957  as recommended by the Government, the  pecuniary  loss caused  to  the  Government should  be  recovered  from  the respondent.  On November 1, 1956 the States’  Reorganisation came     into force and the services of the respondent stood transferred  to  the State of Mysore.  By  its  order  dated October  14, 1958  the Mysore Government directed  that  the respondent  should be retired compulsorily from service  and should  also be asked to make good sum of Rs. 4,576/-  being the  amount  of  loss  caused to  Government  in  the  above connection.  The respondent challenged this order by a  writ petition on the ground that the Enquiry Officer at Hyderabad had  exonerated  him of all the charges  excepting  one  and also.  because  the report of the Enquiry Officer  was   not furnished  to  the  respondent.  The High  Court  of  Mysore allowed  the  writ petition and quashed the  order   of  the Government.  Thereafter the Mysore Government took   further steps  in  the matter and the respondent  presented  several other writ petitions in the Mysore High Court impinging  the subsequent action of the 161 Mysore  Government.  It is unnecessary  for the  purpose  of the  purpose of the present appeal to set out the orders  of the  Mysore Government and the writ petitions filed  by  the respondent  and the Orders made by the High Court except  to

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state  that  by  an  order made  on  December  10,  1960  he respondent who was to have retired with effect from  October 27,   1960, the=  date  on which he completed the age of  55 years was continued in service but under suspension  pending completion  of the disciplinary proceedings against him  and that the Government by a subsequent order dated May 19, 1961 revoked  the  previous  order  of  December  10,  1960’  and permitted  the respondent to retire dropping altogether  the disciplinary    proceedings    against   him.    After   his retirement  the respondent flied writ petition No.  1280  of 1961 praying for declaration that he  should be  regarded as having  crossed  the  efficiency bar in  his  pay  scale  on February  9,  1952   and that he should  be  given  all  the increments  after the efficiency bar in the pay scale of  an Executive Engineer and that he should be paid the difference and his pension  should be  fixed on  the basis of  enhanced salary  claimed  by him.  The claim of  the  respondent  was resisted by the Mysore  State on the  ground  that under  r. 38  of  the Hyderabad Civil Service Rules a  specific  order ought  to  be made permitting the respondent  to  cross  the efficiency  bar.  The High Court rejected the contention  of the appellant and held that consequent upon the dropping  of the proceeding against the respondent the increment withheld by  way  of  penalty should be restored  and  the  increased salary should be taken into account in fixing the amount  of pension payable to the respondent.     Rule  38  of the Hyderabad Civil  Services  Rules,  1952 reads as follows:                     "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." Rule  52 of the Mysore Civil Services Rules, 1958 is in  the same  language.  as  r. 38 of the  Hyderabad  Civil  Service Rules.     On  behalf of the respondent it was contended  that  the with  holding  of  the increment of the  respondent  at  the efficiency  ’bar was intended  to operate as a  penalty  for alleged  misconduct. It was said that upon the facts of  the case  the only conclusion possible was ,that the  Government wanted  to stop the respondent at the efficiency bar in  the time scale with a view to reimburse itself at the expense of the  respondent the loss said to have been caused by him  to the  Government.  It was, therefore, argued that  after  the dropping of disciplinary proceedings against the  respondent without  recording any finding of guilt no penalty could  be imposed. It was Contended that once the Government had taken the decision 162 to  stop  the  respondent at the efficiency bar  by  way  of penalty it must be held that the Government had waived their right  to  stop  the respondent at the  efficiency  bar  for administrative reasons under r. 38. In our opinion there  is no  warrant  for the contentions advanced on behalf  of  the respondent.  It is manifest that in view of the language  of r.  38 of the Hyderabad Rules and r. 52 of the Mysore  Rules before the respondent could claim payment of increments next above  the  bar it is necessary that the  Government  should make  a special order sanctioning such payment.  It is  true that  disciplinary proceedings against the  respondent  were dropped  but  the result claimed by  the  respondent  cannot automatically  follow  a  result  of  the  dropping  of  the disciplinary  proceedings. In this connection  the  Attorney General  pointed  out that the notice dated March  16,  1955

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against the respondent asked him to show cause why: ( 1 ) he should not be stopped from crossing. the efficiency bar  and (2)  why  a sum of Rs. 23,371-14-2 should not  be  recovered from him on account of loss caused to the Government by  his negligence.    The  stoppage  at  efficiency  bar   had   no connection  with  the  recovery of  loss  sustained  by  the Government  and  it  cannot, therefore,  be  said  that  the Government  wanted to impose the efficiency bar  because  it wanted  to  reimburse  itself for  the loss  caused  by  the respondent.  So far as the language of r. 38 is concerned it is  manifest  that  an  express  order  of  the  appropriate ’authority is necessary before the respondent is allowed  to cross the efficiency bar.  It is not, therefore, possible to accept the contention of the respondent that the  Government must  be deemed to have given specific sanction under r.  38 of  the Hyderabad Rules permitting the respondent  to  cross the  efficiency bar merely because disciplinary  proceedings against him had been dropped for certain reasons.     In  the  High  Court the case was  argued  by  both  the parties on the assumption that r. 38 applied to the case  of the  respondent.  During the hearing of the appeal  in  this Court it was stated by Mr. Iyengar that when the  respondent became  due  for  crossing the efficiency bar r.  38  as  it stands at present was not in operation. But it was said that a  rule  similar to r. 38 was in operation at  the  relevant time.     For  these  reasons we held that this appeal  should  be allowed  and  the judgment of the Mysore  High  Court  dated October  1, 1962 should be set aside and the  writ  petition filed by the respondent should be ordered to be dismissed. There will be no order with regard to costs in this appeal V.P.S.                         Appeal allowed. 163