Punjab-Haryana High Court
Mrs. Sneh Lata Tewari vs State Of Haryana And Others on 15 November, 2013
CWP NO. 4879 of 1993 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP NO. 4879 of 1993
Date of Decision: 15.11.2013
Mrs. Sneh Lata Tewari
-----------------Petitioner
Versus
State of Haryana and others
----------------Respondents
CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN
PARSOON
Present: Shri C.M. Sharma, Advocate, for the petitioner.
Shri Rajeev Kwatra, Sr. DAG, Haryana, for the
respondents.
DR. BHARAT BHUSHAN PARSOON, J.
1. The petitioner who was serving with respondents No. 1 and 2 was not allowed to cross efficiency bar at the stage of Rs. 2900/- in her pay- scale w.e.f. 01.09.1988 and when the matter was reviewed on year to year basis with reference to the service record for the year 1988-89, 1989-1990 and 1990-1991 vide order dated 27.05.1992 (Annexure P-2), she was not found fit to cross efficiency bar. Annual Confidential Report for the year 1985-86 had adverse entries which were duly conveyed vide letter Annexure P-1 wherein inter-alia her integrity was found to be doubtful. Representation made by her against such adverse entries was rejected on 13.03.1992 (Annexure P-26). The letter conveying adverse entries, action of the department in refusing her crossing of the efficiency bar vide order Ex. P-2 and rejection of representation against adverse entries in ACR vide order Ex. P-26, are under challenge in this petition.
2. The petitioner has claimed that while working with the respondents since 1962 onwards, she had earned outstanding/very Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -2- good/good reports in her service, except the report for the year 1985-86, which is 'average'. It is claimed that the said report was made by respondent No.3 just to malign the image of the petitioner. Castigating functioning of the respondents, it is claimed that though the orders with regard to crossing of the efficiency bar were to be passed before the due date or shortly thereafter, but no orders were passed till 26.05.1992. It is claimed that the department vide communication dated 27.05.1992 (Annexure P-2), stopped the petitioner to cross the efficiency bar w.e.f. 01.09.1988, which was apparently contrary to the rules. It is averred that for the year 1985-86 her overall assessment is rated as "average" which cannot be treated as "bad report" in law. It is then pleaded that after 1985-86 her Annual Confidential Reports are very good but still she was not allowed to cross the efficiency bar.
3. Claiming respondent No.3 responsible for her bad entry in the ACR for the year 1985-86, it is averred that the petitioner had been informing about the misdeeds of respondent No.3 to the authorities vide Annexures P-4 and P-8 and she had already apprehended adverse remarks from respondent No.3 against her, as she was working at the instance of opponents of younger brother of her husband, who was an M.L.A. (independent) from Kaithal and had crossed over to the Congress party where he had remained Chief Parliamentary Secretary upto 1986. It is, thus, claimed that in 1987 with the formation of Lok Dal Government, opponents of younger brother of her husband, became active and started humiliating the petitioner as well as her husband Captain S.S.L. Tewari, Secretary Zila Sainik Board, Kurukshetra.
4. It is averred further that ACR for the year 1985-86 was initiated in March 1987 and all sorts of adverse entries were incorporated therein just to spoil the career of the petitioner as she was due to cross the efficiency bar on 01.09.1988. It is further pointed out that she and her Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -3- husband being a couple were to be given posting at one place and, thus, she was transferred from Kaithal to Thanesar on 28.10.1986 where her husband was posted but later, she was sent back to Kaithal on 04.08.1987 and her representation (Annexure P-15) for cancellation of her transfer order was rejected. She was again transferred to Tohana(Hissar) on 13.06.1990 (Annexure P-16) and was thereafter transferred to Pai (Kaithal) on 18.09.1990 (Annexure P-17). She was later posted as Principal, Govt. Sr. Sec. School, Shahbad (Kurukshetra) vide order dated 17.10.1990 (Annexures P-17 and P-18). It is claimed that she was subjected to mental torture by way of frequent transfers from one place to another against the government instructions till her superannuation.
5. By way of this petition, apart from quashing of Annexures P-1, P- 2 and P-26, the petitioner has claimed that she be deemed to have crossed the efficiency bar and has also prayed for release of consequential benefits i.e. arrears of salary etc. along with interest @12%.
6. No written statement came from respondent No.3 as she was proceeded against ex-parte having not appeared despite service. Joint written statement however was filed by respondents No. 1 and 2.
7. It is claimed that when integrity of the petitioner was found to be doubtful as per her ACR for the year 1985-86, she was not allowed to cross the efficiency bar w.e.f. 01.09.1988. Her case was reviewed on year to year basis and she was not found fit to cross the efficiency bar. Allegation that adverse remarks by respondent No.3 were made to malign her service career, was denied. It is also explained that orders regarding crossing of her efficiency bar could not be passed earlier on 27.05.1992, as representation of the petitioner against such adverse remarks was pending, which was rejected only on 13.03.1992 vide order Annexure P-26.
Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -4-8. It is claimed that even if the petitioner had earned good reports after 1985-86, impact of adverse remarks regarding 'doubtful integrity' remains for 10 years and, thus, she was not found fit to cross the efficiency bar upto her retirement i.e. 30.04.1993. However, it has been conceded that ACR for the year 1985-86, was recorded in March 1987 and was conveyed to her on 18.04.1988 vide letter Annexure P-1.
9. In response to her plea of frequent transfers, it is claimed that transfer of an employee is a normal event of service and that there was no humiliation at the instance of politicians or by transfers as these were routine transfers. It is averred further that the ACR having been recorded by respondent No.3 was to be counter-signed by Sub Divisional officer (civil) and Director Secondary Education, Haryana, which took time and, thus, it was conveyed late. Dismissal of the writ petition has been sought.
10. Hearing has been provided to counsel for the parties while going through the paper-book.
11. Counsel for the petitioner has urged that not only instructions regarding recording and communication of ACRs were flouted but even normal course of conduct of the respondents towards the petitioner was humiliating. It is further claimed that neither the ACRs were written in time by respondent No.3 nor were communicated to the petitioner expeditiously.
12. Counsel for the respondents on the other hand has urged that there is no violation of instructions; validity and legality of the impugned orders is asserted.
13. Foundation of entire case against the petitioner finds its genesis in adverse remarks in the ACR for the year 1985-1986. There is categoric admission of the respondents that the ACR of 1985-86 was written by Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -5- respondent No.3 in March, 1987 and that its communication was made only on 18.04.1988 vide letter Annexure P-1. There is absolutely no reason given by the respondents for non-recording of ACR of 1985-86 in time; it took an year for respondent No.3 to record such ACR. Then the respondents took more than a year for communicating the same. Purpose of recording of an ACR is to improve working of the official, so that his usefulness for the department where he is working, may increase.
14. In authority recorded as State of Haryan Versus Shri P.C. Wadhawa, IPS, Inspector General of Police and another in 1987(2) SLR 393 (SC), it was held that adverse remarks are not to be understood in terms of punishment but it should be taken as an advice to the officer concerned, so that he improves his service career. Where the adverse remarks were communicatd belatedly to the officer concerned, it was held to be not proper. Relevant portion of the judgement is reproduced as below:-
"The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or character, as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months."
15. It remains a fact that neither the ACR was recorded in time nor the same was communicated in time. Moreover, there is no supporting material to sustain the entries in ACR. Though, there is neither any material nor there exists any circumstance to show that ACR was not written in time by respondent No.3 at the behest of others, as claimed by the petitioner in the writ petition, or that it was designed to malign the service career of the Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -6- petitioner, and it were remains a fact that the time schedule on this count was not adhered to. Moreover, respondent No.3 despite service has not come to contest the petition by refuting the allegations levelled against her. Learned counsel for the petitioner has sought to draw adverse inference against respondent No.3 on this count also.
16. In authority reported as Balwant Rai Mahajan Vs Shri V.P. Khosla, Deputy Controller and others, 1979(1) SLR 391, in a case of levelling of allegation of malafides against one of the respondents, in a situation of filing of no counter affidavit by him denying allegations and where affidavit was filed by his successor, who had no personal knowledge regarding such allegations against respondent No.1, it was taken to be a case that allegations remained un-controverted on facts of the said case and consequently order of dismissal was set aside.
17. However, though in this case intervention of politicians even prima facie is neither found nor proved, but, ACR having not been written and communicated in time is a fact which is squarely because of the fault of respondent No.3, who has not come to controvert the allegations of bias against her.
18. It is noteworthy that there are specific allegations of the petitioner against respondent No.3, who was her Reporting Officer for the year 1985-
86. It is conceded by the respondents that no other ACR of the petitioner except for this year, has any adverse comments. Relevant pleadings containing allegations against respondent No.3 are containd in para 8 of the writ petition, which for ready reference are reproduced as below:-
"That the petitioner was working as Project Officer, Kurukshetra under Smt. Sarla Sharma who was working as District Adult Education Officer at Kurukshetra during 1985-86 and Smt. Sarla Sharma was inimical towords the petitioner as the petitioner pointed out the misdeeds of Smt. Sarla Sharma to the Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -7- higher authorities from time to time as is clear from Annexure P- 4 to P-8. The petitioner even apprehended that ACR for the period 1985-86 will be spoiled which fact came out true when adverse remarks were conveyed to the petitioner on 18.04.1988 vide Annexure P/1."
19. Further, allegations of malafide intention have been levelled against respondent No.3 in para 16 of the petition. Relevant portion whereof for ready reference is appended as below:-
"That the report annexure P/1 has been recorded with a malafide intention is not supported by reasons as contemplated in the instructions issued by the Haryana Government (Annexure P/27) which casts a mandatory duty on the Reporting Officer to give reasons for adverse remarks, without which the petitioner cannot effictively make any representation for expunging those adverse remarks in the ACR."
20. Even when there was no specific material on record to write adverse remarks against the petitioner and she was made handicapped in moving representation against such adverse remarks in time well before crossing the efficiency bar i.e. before 01.09.1988 as neither ACR for the year 1985-86 was recorded in time nor the same was conveyed in time.
21. There is consistent course of communication in various letters by the petitioner to respondent No.3 which shows that the petitioner was bringing everything on record to pin point the missing links and gaping holes qua respondent No.3. Such communications addressed by the petitioner to respondent No.3 are of 10.01.1986(Ex.P-4), of 18.03.1986 (Ex. P-5), with reference to letter of 05.06.1986 (Ex. P-6), of 28.06.1986 (Ex. P-
7) and of 14.05.1986 (Ex. P-8). The petitioner was under such stress that she had even apprehended that respondent No.3 was nurturing personal grudge against her and was likely to spoil her Annual Confidential Report.
Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -8-A communication to this effect was made by her to the Director Education Department, Haryana, Chandigarh on 18.03.1986 (Annexure P-5) which being relevant is reproduced as below:-
"To The Director Education Department, Haryana Chandigarh.
Memo No.21 dt. 18.3.86.
Dear Sir, Smt. Sarla Sharma, District Adult Officer has refused to become Chairman of the purchase Committee. Therefore, it is impossible to make purchases for the year 1985-86.
As I have already informed that the officer's approach is negative. I am afraid that due to personal grudge she may not spoil my Annual Confidential Report. She has been telling everyone that she will teach a lesson to me.
Sd/-
Sneh Lata Tiwari."
22. Non-writing of ACR of 1985-86 in time and prolonging it for two years when it was communicated only on 18.04.1988 reveals that allegations of personal grudge of respondent No.3 nurtured against the petitioner and her apprehension of spoiling of her ACR by respondent No.3 were not misfounded and the same cannot be ignored from consideration.
23. By now, it is clear that ACR (Ex. P-1) of the petitioner is not based on facts and is rather due to considerations other than the facts and, thus, is not binding on the petitioner.
24. What followed thereafter is also worth notice. Efficiency bar of the petitioner which was to be cleared on 01.09.1988 at the stage of Rs. 2900/- in the scale of her pay of Rs. 2000-3500, was not allowed to be Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -9- crossed due to adverse remarks in the ACR for the year 1985-86 (Annexure P-1). It was only on 27.05.1992 that her case was considered and was rejected. Relying on Padam Singh Jhina Vs. Union of India and others, 1974(1) S.L.R. 594, learned counsel for the petitioner has urged that order preventing crossing of efficiency bar should be passed either before the appointed date or shortly thereafter. Relevant portion of this authority is reproduced as below:-
"In fairness to a public servant, it is true, the order preventing him from crossing the efficiency bar should be passed either before the appointed date, or shortly thereafter. It is unfortunate that the Government did not pass an order for nearly two years after the appointed date."
25. Why representation (Annexure P-22) made by the petitioner on 27.07.1988 against adverse comments in her ACR was kept pending till 13.03.1992 is again a mystry. In any case, there is absolutely no explanation emerging for this long delay.
26. It is a clear case where right from 01.09.1988, the order was not passed and it was only on 27.05.1992 that the order was passed regarding not crossing of the efficiency bar. In a case where for three consecutive years, increments were not allowed due to stoppage of efficiency bar, it was held that atleast prior to stoppage of efficiency bar, hearing should be provided to the petitioner. Support has been sought from the case of Dr. R.N. Arora H.C.M.S. (Retd.) Vs. State of Haryan and others 1990(1)SLR 703 (P&H). Even though stoppage of efficiency bar is not a punishment, but still right of earning of annual grade increments is vested in the official and, thus, providing a hearing to him would be in consonance with the requirement of principle of natural justice, so that the official may put forth his case.
27. Keeping in view the totality of facts and circumstances, there is no material to sustain letter Annexure P-1, order Annexure P-2 and letter Anjal Gupta 2013.11.21 10:24 I attest to the accuracy and integrity of this document high court chandigarh CWP NO. 4879 of 1993 -10- Annexure P-26, as the same are also against the intructions and in addition remain unsubstantiated. Sequelly, impugned Annexures P1, P2 and P26 are quashed.
28. Resultantly, the petitioner who has since retired, would be deemed to have crossed the efficiency bar w.e.f. 01.09.1988 and her pay and arrears thereof would be released to her with interest @ 9% within two months. If payment is not released by respondents No. 1 and 2 within the time, insterest @ 12 % would be payable to the petitioner.
29. The writ petition is allowed in the above terms.
November 15 , 2013 (Dr. Bharat Bhushan Parsoon)
"Anjal" Judge
Anjal Gupta
2013.11.21 10:24
I attest to the accuracy and
integrity of this document
high court chandigarh