H/C Yogesh Singh vs Director General, Cisf & Ors.
2009 Latest Caselaw 4749 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                   Judgment Reserved on: 18th November, 2009
                   Judgment Delivered on: 20th November, 2009


+                       WP(C) 5903/2007


       H/C YOGESH SINGH                    ..... Petitioner
                Through:      Mr.V.S.Tomar, Advocate.


                  versus


       DIRECTOR GENERAL, CISF & ORS.   ..... Respondents
                Through: Ms.Barkha Babbar, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT


     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?       No

     3. Whether the judgment should be reported in the
        Digest?                                   No



PRADEEP NANDRAJOG, J.

1. Holding the substantive rank of a Head Constable

under Central Industrial Security Force (CISF), punishment of

„Censure‟ was awarded to the petitioner in the year 1988. The

next year i.e. in the year 1989, the petitioner became eligible to

be considered for clearing the efficiency bar. The Departmental

Promotion Committee (DPC) considered the service record of the

petitioner as also of other persons who were eligible to be

considered for crossing the efficiency bar and noted that his

service record revealed his being graded as „Average‟ in the

years 1986, 1987 and 1989. It was noted that for the year 1988

his ACR reading was „Good‟. Further noting that vide order

dated 14.6.1986 and order dated 31.12.1988 two penalties of

censure were inflicted upon the petitioner, he was declared not

fit for being cleared to cross the efficiency bar.

2. The next year i.e. in the year 1990 similar exercise

was conducted and noting that for the next year i.e. the year

1990 he was still graded as „Average‟ he was declared, once

again, unfit to clear the efficiency bar.

3. The petitioner cleared the efficiency bar in the year

1991 and started receiving the pay as per relevant rule

applicable.

4. In the year 2003, the petitioner took up the issue of

pay fixation and claimed that once he had cleared the efficiency

bar, he was entitled to be placed in the next higher grade with

increments with effect from the year 1989 i.e. the year when he

became eligible to be considered for clearing the efficiency bar.

The petitioner made a representation dated 26.2.2003 and in so

doing predicated a claim under an office memorandum dated

18.9.1991 issued under the CCS (Revised Pay) Rules 1986. The

memorandum threw light on the manner of operation of

efficiency bars. It reads as under:-

"The undersigned is directed to say that Note-1 below Rule 8 of Central Civil Services (Revised Pay) Rules 1986 provides that wherever the pay has been fixed in terms of the above rules efficiency bar will become operative only with reference to such bar(s) in the revised scale, irrespective of whether a Govt. Servant had crossed or not crossed or had been held up at the efficiency Bar in the existing scale. In this connection, provisions of this Ministry‟s office memorandum No.7 (63)/E III/87 dated 27th May 1988 are also relevant. The Staff side in the National Council (JCM) have pointed out that the application of the above provisions has caused hardship to the govt. servants

(i) who prior to 1.1.86 were held up at efficiency bar in the pre-revised scale and (ii) where increment was due at efficiency bar stage on 1.1.86.

2. The matter has been examined and the President is not pleased to decide the cases of all Govt. servants who were held up at efficiency bar in the pre-revised scales of pay prior to 1.1.86 may be laced before respective DPCs for review in terms of guidelines contained in Department of Personnel and Training O.M. No.29014/88-estt. (A) dated 30th March 1989. If the DPC recommends the Govt. Servant is fit to cross efficiency Bar, necessary increment(s) may be released in accordance with due process of rules, viz., the benefits of withheld increment(s) may be allowed from the date Govt. Servant is found fit to cross efficiency bar.

3. The President has further been pleased to decide that in cases where the increment was due at efficiency bar stage on 1.1.86, the incensement may be released with any review in the pre-revised scale and then the pay fix in the revised scale under Central Civil Services (Revised Pay) Rules 1986.

4. In so far as the person serving in the Indian Audit and Accounts departments are concerned these orders may be issued in consultation with the Comptroller and Auditor General of India."

5. The Accounts Officer CISF, vide letter dated

3.4.1992, recommended that the pay of the petitioner be re-

fixed by granting him the pay in the next higher grade with

effect from the year 1989.

6. Needless to state, if on clearing the efficiency bar in

the year 1991 the petitioner was required to be paid the pay in

the next grade with effect from the year 1989 he would have

got the benefit of two increments in the year 1989 and the year

1990. If not to be granted the said benefit, his pay in the next

higher grade in the year 1991 was to be fixed in the minimum of

the next higher grade, of course, existing pay had to be

protected.

7. Considering the representation of the petitioner as

also the recommendation of the Accounts Officer, the

Commandant CISF, vide letter dated 17.6.2003 rejected the

request and informed the petitioner as under:-

"Reference your office letter No.E-

12019B/CISF/DHEP/P.F./ADM-3/646 dated 04.03.2003.

2. In this connection, it is to inform that No.822120074 HC/GD Yogesh Singh was awarded Censure during the year 1986 and 1988 for sleeping on duty and gross act of misconduct, dereliction and negligence in duty respectively. The said individual was maintaining bad record of service as a result he was not found fit to cross efficiency bar in the rank of constable during the year 1989 & 1990. As such, he was declared fit to cross EB during the year 1991 by the DPC but his case was not considered for fixation in the higher stage by the competent authority. Thus, his pay was not fixed at the higher stage in the light of FR-56 sub para 2.6. At this belated stage, the

question of review of DPC proceeding for crossing of EB in respect of the above Head Constable, does not arise. The individual may be informed above facts accordingly.

3. The service document and all enclosures in respect of HC/GD Yogesh Singh received vide letter under reference are returned herewith for further necessary action please.

4. This has the approval of DIG/WZ."

8. The petitioner kept quiet for two years. On

30.7.2006 he got issued a legal notice through his lawyer

demanding the benefit of two increments. The lawyer‟s notice

was refuted by the respondents vide their letter dated

11.12.2006. Instant petition was thereafter filed in the year

2007.

9. Needless to state, claim of the petitioner is based on

the office memorandum dated 18.9.1991.

10. As per the respondents, the petitioner is not entitled

to the benefit as claimed by him for the reason he cleared

efficiency bar in the year 1991 i.e. on 1.1.1991 when the DPC

met and that on the issue of increments in the next above the

bar in the prescribed timescale, FR 25 was applicable. FR-25

reads as under:-

"FR-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 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, authorize in this behalf."

11. It may be noted that FR-25 was on the Statute Book

till the year 1997 when it was deleted with the promulgation of

the CCS (Revised Pay) Rules 1997.

12. Needless to state, the claim of the petitioner was

with respect to the year 1991 when the fundamental right in

question was in force.

13. According to the respondents it is apparent from the

language of FR-25 that where an efficiency bar is prescribed in a

timescale, the increment next above, the bar is not a matter of

right and is not to be given unless there is a specific information

of the authority empowered to withhold the increments.

14. With respect to the relevant record it is pleaded by

the respondents that since the petitioner has raised the claim at

a very late stage and after the old record up to the year 1998

was weeded out by the Board of Officers on 3.1.2003, as per the

order of the Commandant (Annexure R-1), the respondent is

unable to produce the decisions taken on the file.

15. Needless to state, the respondents also opposed the

writ petition on account of inordinate delay and laches. It was

urged by learned counsel for the respondents that a claim which

ought to have been raised in the year 1991 was raised for the

first time on 6.2.2003 and the result was that in the

interregnum the relevant record, as noted above, was weeded

out in the year 1998, thereby rendering it a handicap to the

respondent to effectively defend the case.

16. It may be noted that the petitioner has referred to

the case of Constable Ajit Singh and Constable Shashi Kumar

who were granted the benefit claimed by the petitioner. In

respect thereof, the respondents have explained that the

service profile of Constable Ajit Singh and Constable Shashi

Kumar was different inasmuch as Constable Ajit Singh had only

one grading of „Average‟, he had two gradings of „Good‟ and two

gradings of „Very Good‟. Constable Shashi Kumar had two

gradings of „Average‟, one grading of „Good‟ and two gradings

of „Very Good‟ when their cases were considered in the year

1994 and the year 1992 respectively for clearing the efficiency

bar. It was pleaded that the competent authority passed orders

qua said two officers in terms of FR 25 to grant them the benefit

of pay in the scale next above the bar.

17. On the rival pleadings of the parties three issues

need to be decided. Firstly, is the claim of the petitioner that he

has been discriminated, with reference to Constable Ajit Singh

and Constable Shashi Kumar justified? Secondly, what is the

effect of the petitioner raising a belated claim and lastly

whether the petitioner is entitled to the relief claimed for in the

teeth of FR 25?

18. On the first issue suffice would it be to state that the

claim of each person who clears the efficiency bar at a later

date but is to be granted benefit of the pay in the scale next

above the bar with effect from the date he became eligible to

be considered for clearing the efficiency bar has to be

adjudicated with reference to the service record of the claimant

and unless it is shown that there is complete identity in the

service profiles of the two officers, no claim for discrimination

can be raised.

19. With reference to the ACR gradings of the petitioner

and the two officers with whom petitioner claims parity, it is

apparent that the service profile of the petitioner is much

inferior. Thus, the petitioner cannot claim any parity with the

two officers.

20. Pertaining to the claim predicated under the office

memorandum dated 18.9.1991, it may be noted at the outset

that the claim was raised very belatedly in the year 2003 and in

the interregnum the relevant record was weeded out in the year

2003. The relevant record was the deliberations taken at the

Departmental Promotion Committee meetings held in the year

1989 and 1990 as also the year 1991 and the decision taken in

the year 1991 not to grant the benefit to the petitioner of being

granted the benefit of the increments in the next grade for the

two previous years. Thus, it is apparent that the respondents

have been put to a handicap by the belated filing of the writ

petition and this must factor into our decision.

21. FR 25 was in existence till it was removed from the

Statute Book in the year 1997. The issue raised by the

petitioner came into birth in the year 1991 and therefore the

same needs resolution in terms of FR 25.

22. Suffice would it be to state that in terms of FR 25

where an efficiency bar is prescribed in a timescale, the

increment next above the bar has not to be given to a

government servant without the specific sanction of the

authority empowered to withhold the increments under Rule 24

or the relevant disciplinary rules. In other words, those who

earn clearance of efficiency bar at later points of time, having

been found unfit at a prior point of time do not have an

automatic right to be granted the benefit as contemplated by

the office memorandum dated 18.9.1991. To this extent, the

claim of the petitioner must fail.

23. Now, the decision taken in the year 1991 not to grant

the benefit as contemplated by the office memorandum dated

18.9.1991, has not been challenged by the petitioner and we

cannot even call upon the respondents to do so for the reason

relevant record was weeded out in the year 2003 as per

Annexure R-1. As per said decision record up to the year 1998

was weeded out. Thus, even on said count the petition must

fail.

24. The writ petition is dismissed.

25. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 20, 2009 Dharmender